# C/M Public Intermediate College v. State of U.P. and others

- **Citation:** (2012) 2 ILRA 593
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-05-11
- **Case number:** Civil Misc. Writ Petition No.8009 of 2011
- **Bench:** Pradeep Kumar Singh Baghel
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-m-public-intermediate-college-v-state-of-u-p-and-others-42217
- **Pages:** 7

## Headnote

U.P. Intermediate Education Act-1921Section 16-G(7)-life of suspension orderif not approved or disapproved within 60
days-deemed
approved-generaly
misused by the authorities with collusion
of erring teacher-R-4-facing criminal
Trail for serious charges-injailed for 14
days and drawn salary of detention
period
also-adversely
affect
the
discipline of the Institution-DIOS take
appropriate decision within two weeksupon in action on part of DIOS-liberty
granted
to
approach
before
Joint
Director to look into the conduct of such
officer.

Held: Para 33

In the totality of the circumstances, a
direction is issued upon the District
Inspector of Schools to take decision in
accordance with law in the matter of
594 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
suspension of respondent no. 4 within
two
weeks
from
the
date
of
communication of this order. If the
District Inspector of Schools for any
reason fails to take the decision within
the said period, the Committee of
Management may file a representation
before the Joint Director.
Case law discussed:
1995-LAWS (All)-2-4; 2001 (1) UPLBEC 468;
(1996) 11 SCC 760 at page 768; AIR 2004 SC
49; 1991 (3) SCC 67; AIR 1992 SC 2219

## Text

2 All] C/M Public Intermediate College V. State of U.P. and others
593
temporary
employees
appointed
on
regular
basis
for
those
temporary
employees who are given temporary status
and who completed three years of service
in that status while granting them pension
and
retirement
benefits
after
their
regularisation.............."

10. From the aforesaid circular, it is
ample clear that in compliance of
directions issued by the Apex Court, policy
decision was taken by the department that
those casual labourers who have been
conferred with temporary status, are to be
treated at part with temporary group 'D'
employees on completion of three years of
service and terminal benefits would be
admissible to them as admissible to
temporary employees appointed on regular
basis. It is not in dispute that applicant
before the Tribunal was granted temporary
status w.e.f. 10.1.1993 and he retired from
service on 14.7.1999, after completing
more than three years of service as
required for the purpose.

11. So far as subsequent circulars
referred to by the counsel for petitioner but
not annexed with the petition, are
concerned, suffice it to say that any
departmental
circular
or
executive
instruction which is not in consonance with
the directive issued by the Apex Court, is a
nullity.

12. Considering the facts and
circumstances of the case, we are of the
considered view that conclusions drawn by
the Tribunal in the impugned judgment and
order, do not suffer from any illegality and
infirmity, warranting interference in extra
ordinary powers under Art. 226 of the
Constitution.

13. For all the reasons stated above,
the writ petition fails and is accordingly
dismissed, upholding the judgment and
order passed by the Tribunal. No order as
to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.05.2012

BEFORE
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.

Civil Misc. Writ Petition No.8009 of 2011

C/M Public Intermediate College

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Yogish Kumar Saxena

Counsel for the Respondents:
C. S. C.
Sri Sushma Devi

U.P. Intermediate Education Act-1921Section 16-G(7)-life of suspension orderif not approved or disapproved within 60
days-deemed
approved-generaly
misused by the authorities with collusion
of erring teacher-R-4-facing criminal
Trail for serious charges-injailed for 14
days and drawn salary of detention
period
also-adversely
affect
the
discipline of the Institution-DIOS take
appropriate decision within two weeksupon in action on part of DIOS-liberty
granted
to
approach
before
Joint
Director to look into the conduct of such
officer.

Held: Para 33

In the totality of the circumstances, a
direction is issued upon the District
Inspector of Schools to take decision in
accordance with law in the matter of
594 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
suspension of respondent no. 4 within
two
weeks
from
the
date
of
communication of this order. If the
District Inspector of Schools for any
reason fails to take the decision within
the said period, the Committee of
Management may file a representation
before the Joint Director.
Case law discussed:
1995-LAWS (All)-2-4; 2001 (1) UPLBEC 468;
(1996) 11 SCC 760 at page 768; AIR 2004 SC
49; 1991 (3) SCC 67; AIR 1992 SC 2219

(Delivered by Hon'ble Pradeep Kumar
Singh Baghel, J.)

1. The petitioner, Committee of
Management, Public Intermediate College,
Motihan, Allahabad has made this writ
petition for a direction upon District
Inspector of Schools, Allahabad to approve
the suspension of respondent no. 4, in
accordance with law, who is the Principal
of the said College.

2. A brief reference to the factual
aspect would suffice.

3. Petitioner is a Committee of
Management of an educational institution
namely
Public
Intermediate
College,
Motihan, Allahabad (for short College). It
is a recognised Institution. It is governed
by the provisions of U.P. Intermediate
Education Act, 1921, the Regulations
framed thereunder and U.P. Secondary
Education (Service Selection Board) Act,
1982.

4. The respondent no. 4 is an
Assistant Teacher in the institution. He was
initially
appointed
on
compassionate
ground. He was placed under suspension
by the Committee of Management on
23.9.2010 on the serious allegations of
indiscipline
and
misconduct.
The
resolution
of
the
Committee
of
Management
placing
him
under
suspension, was sent to the District
Inspector of Schools on the same day.
However, the District Inspector of Schools
has failed to take any action in terms of
Section 16(G)(7) of U.P. Intermediate
Education Act, 1921 (for short Act 1921).
In view of his failure to exercise his
statutory power, the respondent no. 4 has
joined the institution, as suspension order
lapses after 60 days as envisaged by
Section 16-G(7).

5. I have heard Mr. Yogish Kumar
Saxena, learned counsel for the petitioner
and the learned Standing Counsel for the
respondents.

6. Learned counsel for the petitioner
urged
that
there
are
very
serious
allegations against respondent no. 4 under
the Gambling Act. Several criminal cases
are pending against him and he was also
sent to jail for about 14 days and
concealing the said facts he had drawn the
salary of the period when he was in jail.
However, the District Inspector of Schools
has failed to pass any order.

7. He has further submitted that the
action of District Inspector of Schools is
wholly arbitrary and there is no justifiable
reason for not passing the order within the
reasonable period.

8. Mr. Saxena has placed reliance
upon a Full Bench judgement of this Court
in the case of Chandra Bhushan Misra vs.
District Inspector of Schools Deoria
reported in 1995-LAWS (All)-2-4. Para 4
of this judgement are as follows:

"If the Inspector has not passed any
order under sub-section (7) or has passed
unsustainable order, this Court at the
2 All] C/M Public Intermediate College V. State of U.P. and others
595
instance of the person aggrieved can under
Article 226 of the Constitution pass
appropriate order and issue direction to
the Inspector for passing the order afresh
in accordance with law. Such a writ
petition does not become infructuous after
the expiry of sixty days from the date of the
order of suspension. This Court has the
jurisdiction under Article 226 of the
Constitution to pass effective order in view
of the facts and circumstances of the case."

9. Following the said Full Bench
decision, this Court time and again has
highlighted the same view that the District
Inspector of Schools should take a decision
within reasonable time, provided that the
Committee of Management has complied
the Regulations 39 and has sent all the
required papers within a stipulated period
in terms of said Regulation.

10. Mr. Saxena has further urged that
on 11.2.2011 when this writ petition was
entertained, this Court requested the
Standing Counsel to seek the instruction
and the mater was directed to put up on
15.2.2011. Thereafter the District Inspector
of Schools issued a notice dated 24.2.2011
wherein he asked the Committee of
Management to be present on 28.2.2011.
The said notice has been brought on record
by the learned counsel for the petitioner by
way of a supplementary affidavit.

11. Sri Saxena lastly submitted that
in response to the notice dated 24.2.2011,
the Committee of Management has again
submitted all the papers at the earlier
occasion. However, till date no decision
has been taken by the District Inspector of
Schools.

12. The learned Standing Counsel
has submitted that after 60 days lapsed, the
respondent no. 4 was entitled to join as
there is no suspension order in operation.
The learned Standing Counsel has further
submitted that there is no statutory
requirement that District Inspector of
Schools must pass the order within 60
days.

13. I have considered the rival
submissions of the respective parties.

14. Section 16 G(7) is designed with
a laudable objective that Management may
not harass the teacher by placing him
under suspension and prolonging the
disciplinary proceedings for an indefinite
period. The intention of the legislature is
obvious from the plain reading of Section
16-G(5) (7) and (8) that a Head/teacher of
Institution may be placed under suspension
when charges against him are serious
enough and/or any criminal case for an
offence involving moral turpitude against
him is under investigation, inquiry or trial.
But facts of this case eloquently speak how
the office of the District Inspector of
Schools is abusing the power in favour of
teacher
to
frustrate
the
disciplinary
proceedings itself. If during disciplinary
proceedings a teacher is allowed to remain
in the institution, he can temper relevant
documentary evidences and consequently
change
the
course
of
disciplinary
proceedings.
The
office
of
District
Inspector of Schools becomes easy tools in
the hands of erring teacher/Principal.

15. In Chandra Bhushan Misra's
case (supra), it has been observed that
although the order of suspension will lapse
after the expiry of 60 days. However, it
will come into force and will become
effective immediately on such approval.
The Court has further observed that any
596 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
other constructions may frustrate the object
of the provision.

16. This Court in the case of
Committee
of
Management,
Intermediate College, Gorai vs. District
Inspector of Schools, Varanasi &
another, 2001 (1) UPLBEC 468 has taken
note of the inaction of the office of the
District Inspector of Schools in such
matters. The relevant part of the judgement
is as follows:

4. Section 16- G (8) of the Act
empowers the District Inspector of Schools
to revoke suspension if the management is
found to be delaying inquiry. Section 16-G
(7) provides for automatic cessation of
suspension order if no approval or
disapproval is granted within sixty days.
The two provisions read together manifest
the legislative anxiety of protecting a
teacher against arbitrary action of the
management. But it does not empower the
District Inspector of Schools to abuse it so
as
to
frustrate
the
action
of
the
management where it proposes to proceed
in accordance with law. Facts of this case
demonstrate that the District Inspector of
Schools has failed to discharge his duty
with responsibility. It calls for an inquiry
by the higher authorities. When the
management sent the suspension order
under Section 16-G (6) of the Act to the
District Inspector of Schools for grant of
approval, he could not sit tight over the
matter till the expiry of sixty days statutory
period.

17. This Court, in the aforesaid case,
has laid down the law that such action calls
an enquiry by the higher authority. On
similar facts, there are series of decisions
deprecating the delay on the part of District
Inspector of Schools in taking decision.

18. If a teacher or Principal is placed
under suspension and no action is taken by
District Inspector of Schools by virtue of
the
statutory
provision,
the
Principal/teacher is entitled to resume his
duties after lapse of 60 days when the
suspension order becomes inoperative.
Consequent
upon
such
inaction
the
suspended Principal/teacher resumes his
duty as a Principal likewise teacher is also
allowed to discharge his duties as a
teacher. If there are serious charges of
misconduct or criminal cases against
Principal/teacher,
it
affects
general
administration, discipline, control over
subordinate staff and employees as well as
standard of the education of the institution.

19. The Supreme Court in the case of
Mahak Singh (Dr) v. Chancellor, Ch.
Charan Singh University, Meerut, (1996)
11 SCC 760, at page 768 has observed in
the following terms:

"We would be loath to give any relief
to the appellant so as to entitle him to work
as Acting Principal of the Degree College
when he is facing the charge of double
murder. We obviously cannot and do not
express any opinion on his culpability but
at least this involvement and cloud affect
his credentials for being considered as a
suitable candidate for the post of Acting
Principal of the college wherein students
have to be taught discipline and are to be
equipped with knowledge, expertise and
higher values of life so as to make them
better citizens."

20. Similar view has been take by
the
Supreme
Court
in
Nirmala
Secondary School, Port Blair vs. M.T.
Khan, AIR 2004 SC 49.
2 All] C/M Public Intermediate College V. State of U.P. and others
597

21. In the present case, the
respondent no. 4 was placed under
suspension on 22.9.2010 on the grounds
that he was facing criminal case under
sections 308, 323, 504 and 506 I.P.C. and
he was in jail for 14 days. It is stated that
he is also facing the charges under
Gambling Act and a charge sheet in
Criminal Case No. 472 of 2007 under
sections 308, 323, 504 and 506 I.P.C. has
also been submitted against him.

22. The Committee of Management
has sent all the papers relating to the
suspension of respondent no. 4 in the
office of District Inspector of Schools on
23.9.2010. The said document bears the
receipt of the office of District Inspector
of
Schools
The
Committee
of
Management has also served the charge
sheet in the disciplinary proceedings on
14.10.2010 which the respondent no. 4
had refused and, therefore, it was
published
in
the
newspaper.
The
Committee of Management after the lapse
of 60 days had permitted the respondent
no. 4 to join the institution. It is also
stated that this Court in the instant writ
petition
on
11.2.2011
directed
the
Standing Counsel to seek instruction and
the matter was to be heard on 18.2.2011.
On the said date, time was again sought to
seek instruction. In the mean time, during
the pendency of the writ petition, the
District Inspector of Schools had issued a
notice on 24.2.2011 and fixed 28.2.2011.
According to the petitioner on 28.2.2011,
the representative of the Committee of
Management appeared on the said date
and he has again submitted all the
documents and the records. The District
Inspector of Schools did not take any
decision. The petitioner had made two
representations
dated
30.5.2011
and
thereafter
15.7.2011
but
those
representations
failed
to
find
any
favourable response from the office of
District Inspector of Schools. From the
facts of the case, it is established that the
office of District Inspector of Schools is
abusing its power under section 16-G (7)
of the Intermediate Education Act, 1921.

23. The Intermediate Education Act
and the Regulations framed therein are
silent that in such a situation what course
of action may be adopted against erring
Principal/teacher.

24. After coming into force of U.P.
Secondary Education Service Selection
Board Act, 1982, Section 21 of the said
Act put a restriction on dismissal, removal
or reduction in rank of a Principal/Head
of Institution/teacher except with prior
approval of the Board. Section 21 further
enjoins that any action without prior
approval shall be void.

25. In exercise of powers under
sections 7 and 34 of the U.P. Secondary
Education
Service
Commission
and
Selection Board Act, 1982, the U.P.
Secondary
Education
Services
Commission (Procedure for Approval of
Punishment) Regulations, 1985 have been
framed.
The
Regulation
provides
elaborate procedure to be followed before
taking any decision on the proposal of
Committee
of
Management
for
dismissal/removal/reduction in rank or
any
other
punishment
of
Principal/teacher.

26. It is a common ground that the
Board usually takes sometimes upto
three/four years to complete the entire
process of the hearing provided under the
above regulation and in the mean time the
Principal/teacher is allowed to continue in
598 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
the institution. Keeping in view of ground
realities, it is more important to exercise
the power under Section 16-G (7)
objectively and timely by the District
Inspector of Schools.

27. In absence of any statutory
remedy provided under the Intermediate
Education
Act
or
U.P.
Secondary
Education Service Selection Board, the
Committee of Management or the teacher
does not have any statutory remedy
except
to
invoke
the
extraordinary
jurisdiction of this Court under Article
226 of the Constitution. The docket of this
Court is already choked by huge pending
cases.

28. At the cost of repetition, the
Principal/teacher is facing disciplinary
proceeding, the administration of the
institution and the studying of the students
are adversely affected. Such a situation is
not in the interest of institution and the
students. In absence of any statutory
remedy, in my view, if the District
Inspector of Schools fails to exercise his
statutory power within 60 days, aggrieved
party may file a representation to the
higher authority, the Joint Director of
Education, inviting his attention to
inaction on the part of the office of
District Inspector of Schools. If such a
representation is filed before the Joint
Director he may seek the comments of
District Inspector of Schools for the
reason of inaction on his part.

29. The Court is not oblivious of the
fact that in absence of any statutory
provision whether such a jurisdiction can
be exercised by the Joint Director and
whether this Court can issue such a
direction.
The
Supreme
Court
has
answered the question in Ratan Chand,
Hira Chand vs. Askar Nawazung
reported in 1991 (3) SCC 67 in
following terms:

"the legislature often fails to keep
pace with the changing needs and values
nor is it realistic to expect that it will have
provided
for
all
contingencies
and
eventualities. It is, therefore, not only
necessary but obligatory on the Courts to
step in to fill the lacuna. When Courts
perform this function undoubtedly they
legislate judicially. But that is a kind of
legislation
which
stands
implicitly
delegated to them to further the object of
the legislation and to promote the goals of
the society."

30. In another case, the Supreme
Court in Sarojini Ramaswami vs. Union
of India, AIR 1992 SC 2219 has ruled as
under:

"In this context it is also useful to
recall the observation of R.S. Pathak, CJ.
speaking for the Constitution Bench in
Union of India v. Raghubir Singh (dead)
by LRs, (1989) 2 SCC 754 (AIR 1989 SC
1933) about the nature and scope of
judicial review in India. The learned
Chief Justice stated thus:

"........It used to be disputed that
Judges make law. Today, it is no longer a
matter of doubt that a substantial volume
of law governing the lives of the citizen
and regulating the function of the State
flows from the decisions of the Superior
Courts. "There was a time", observed
Lord Reid, "When it was thought almost
indecent to suggest that judges make lawthey only declare it... But we do not
believe in fairy tales any more."
2 All] Babu Ram V. State of U.P. and others
599

31. Bearing in the mind the principle
aforesaid, I am of the view that if the Joint
Director is conferred only this much power
to ask the District Inspector of Schools,
reason for delay and to issue a direction to
him to take decision within reasonable
time, will not be tantamount to exceed the
jurisdiction under Article 226 of the
Constitution.

32. Regard being had to the fact that
section 16-A (7) provided forum to decide
the election dispute of Committee of
Management. The Joint Director had
jurisdiction to decide the claim of rival
Committee of Management but in view of
large number of complaints received by the
State Government that Authority entrusted
the statutory obligations are misusing their
power
under
Act
1921,
the
State
Government issued Government Order
19.12.2000
for
redistributing
the
jurisdiction to various authorities at
regional level. The validity of the
Government Order was challenged in this
Court. However, this Court upheld its
validity. The Regional Committees so
constituted are functioning smoothly for
more than a decade

33.

In
the
totality
of
the
circumstances, a direction is issued upon
the District Inspector of Schools to take
decision in accordance with law in the
matter of suspension of respondent no. 4
within two weeks from the date of
communication of this order. If the District
Inspector of Schools for any reason fails to
take the decision within the said period, the
Committee of Management may file a
representation before the Joint Director.

34. The writ petition is allowed in the
aforesaid terms. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.05.2012

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 9511 of 2009

Babu Ram

 ...Petitioner
Versus
State of U.P. and others ...Respondent

Counsel for the Petitioner:
Sri Uemsh Chandra Mishra

Counsel for the Respondents:
C.S.C.

Arms Act-Section 17 (3) (b)-cancellation
of fire arm license on ground of public
interest-can be canceled on ground of
public safety-public safety can not be
equated
with
Public
interest-when
statute do not provide such groundlicensing
authority
committed
great
illegality-both
order
quashed-being
without jurisdiction.

Held: Para 3

Both
the
authorities
below
have
recorded
their
satisfaction
that
cancellation
of
petitioner's
firearm
licence is necessary for public interest.
Under Section 17 of Arms Act a firearm
licence cannot be cancelled in public
interest.
The
grounds
specifically
mentioned says that it is only either of
public peace or safety. The word "public
interest" is not the same thing as "public
peace" or "public safety". In fact the
word "public interest" is much wider
than the word "public peace" or "public
safety". When Legislature itself has not
conferred any power upon the licensing
authority to cancel a firearm licence in
public interest, such exercise in public
interest by authorities below is wholly
without jurisdiction.
Case law discussed:
2003 All L.J. 1769; 2012 (4) ADJ 716