# C/M Sarswati Laghu Madhyamik Vidyalaya v. State of U.P

- **Citation:** (2021) 3 ILRA 165
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-18
- **Case number:** Service Single No. 7777 of 2010
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-m-sarswati-laghu-madhyamik-vidyalaya-v-state-of-u-p-46906
- **Pages:** 10

## Headnote

A. Civil Law - UP Basic Education Act,
1972 - UP Basic Schools (Junior High
School) (Recruitment and Conditions of
Services of Teachers) Rules, 1978 -
Rules 15 - Disciplinary proceeding
against Head Master - No approval by
District
Basic
Education
Officer
-
Director's order to the committee of
management for payment of salary -
Validity
-
Held,
the
Director
of
Education (Basic), in absence of any
order passed by the District Basic
Education Officer, has no jurisdiction to
usurp the power of the District Basic
Education Officer, but as a matter of
fact,
the
disciplinary
proceeding
initiated
against
the
Head
Master/respondent and proposal made
to the District Basic Education Officer is
subject to approval required under Rule
15 - In absence of such approval, the
disciplinary
proceeding
against
the
Head
Master/respondent
has
not
attained finality in the eyes of law.
(Para 14 and 17)

B. Service law - Disciplinary proceeding
- Its continuance even after retirement
- Validity - In absence of provision, no
disciplinary proceeding can continue
after the retirement and the employee
is entitled for all consequential benefit
permissible to the post - Held, once
this Court has come to the conclusion
that the Head Master/respondent has
retired and disciplinary proceeding has
not been finalized by granting approval
to the proposal of the Committee of
Management, the cause of action of the
petition has rendered infructuous -
Head Master/Respondent, held, entitled
for the payment of salary applicable to
the
post
of
Headmaster
of
the
institution inasmuch as the arrears of
salary. (Para 16, 18 and 19)

Writ Petition disposed of. (E-1)

Cases relied on :-

## Text

3 All. C/M Sarswati Laghu Madhyamik Vidyalaya Vs. State of U.P.
165

39. The respondents are directed to
allow the petitioners to participate in the
interview to be held in pursuance of the
Advertisement
No.20-Examination/2016
and consider the candidature of the
petitioners on merit in accordance with law.

40. Accordingly, the writ petitions are
allowed. No order as to costs.
----------
(2021)03ILR A165
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.01.2021

BEFORE

THE HON'BLE IRSHAD ALI, J.

Service Single No. 7777 of 2010

C/M Sarswati Laghu Madhyamik Vidyalaya
 ...Petitioner
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
G.C. Verma

Counsel for the Respondent:
C.S.C., A.M. Tripathi, Avnish Kumar Singh,
P.K. Singh Bisen, Pankaj Pathak

A. Civil Law - UP Basic Education Act,
1972 - UP Basic Schools (Junior High
School) (Recruitment and Conditions of
Services of Teachers) Rules, 1978 -
Rules 15 - Disciplinary proceeding
against Head Master - No approval by
District
Basic
Education
Officer
-
Director's order to the committee of
management for payment of salary -
Validity
-
Held,
the
Director
of
Education (Basic), in absence of any
order passed by the District Basic
Education Officer, has no jurisdiction to
usurp the power of the District Basic
Education Officer, but as a matter of
fact,
the
disciplinary
proceeding
initiated
against
the
Head
Master/respondent and proposal made
to the District Basic Education Officer is
subject to approval required under Rule
15 - In absence of such approval, the
disciplinary
proceeding
against
the
Head
Master/respondent
has
not
attained finality in the eyes of law.
(Para 14 and 17)

B. Service law - Disciplinary proceeding
- Its continuance even after retirement
- Validity - In absence of provision, no
disciplinary proceeding can continue
after the retirement and the employee
is entitled for all consequential benefit
permissible to the post - Held, once
this Court has come to the conclusion
that the Head Master/respondent has
retired and disciplinary proceeding has
not been finalized by granting approval
to the proposal of the Committee of
Management, the cause of action of the
petition has rendered infructuous -
Head Master/Respondent, held, entitled
for the payment of salary applicable to
the
post
of
Headmaster
of
the
institution inasmuch as the arrears of
salary. (Para 16, 18 and 19)

Writ Petition disposed of. (E-1)

Cases relied on :-

1. Bhagirathi Jena Vs Board of Directors
O.S.F.G. & ors.; AIR 1999 SC 1841

2. Writ Petition No.16905 of 2000; Ravindra
Singh Rathore Vs District Inspector of
Schools & ors. decided by the Allahabad High
Court on 26.9.2003

(Delivered by Hon'ble Irshad Ali, J.)

1: Heard Sri G.C. Verma, learned
counsel for the petitioner, learned Standing
Counsel for respondent Nos.1 and 2, Sri
P.K. Singh Bisen, learned counsel for
respondent Nos.3 and 4 and Sri Avnish
Kumar
Singh,
learned
counsel
for
respondent No.5.
166 INDIAN LAW REPORTS ALLAHABAD SERIES

2: By means of the present writ
petition, the petitioner is challenging an
order passed by the Director of Education
(Basic), whereby certain benefits have been
granted to the respondent No.5 of the post
of Headmaster of an institution run and
managed by the private Management
receiving aid from the State Government.

3: Brief fact of the case is that the
respondent No.5 was granted appointment
on the post of Headmaster and while
holding the post, disciplinary proceeding
was initiated against him and he was
suspended vide order dated 9.8.2005,
which was challenged by way of Writ
Petition No.5489 (S/S) of 2005, wherein
this Court granted interim order and in
pursuance thereof, the respondent No.5 was
reinstated in service and continued to
discharge his duties. The interim order
granted by this Court was modified on
25.1.2006 with the permission to conclude
the disciplinary proceeding, if any, against
respondent No.5. In pursuance thereof, the
disciplinary proceeding was initiated and
after its conclusion, papers were submitted
before the District Basic Education Officer
for grant of prior approval as required
under Rule 15 of the Rules of 1978. The
District Basic Education Officer, after
hearing
the
parties,
disapproved
the
proposal of the prior approval of the
disciplinary proceeding of the respondent
No.5 on the ground that while concluding
the
disciplinary
proceeding
proper
opportunity of hearing was not provided to
the respondent No.5.

4: After the order passed by the
District Basic Education Officer, the
Committee of Management resolved to
initiate proceeding by giving full fledged
opportunity of hearing to the respondent
No.5. It is the case of the Committed of
Management that after giving opportunity
of hearing to the respondent No.5,
disciplinary proceeding was concluded and
papers were submitted before the District
Basic Education Officer for grant of prior
approval on 23.11.2007. The District Basic
Education Officer issued notice to the
respondent
No.5
and
thereafter,
the
respondent No.5 sought one month time to
file reply to the same.

5: Writ Petition No.6419 (S/S) of
2008
was
filed
before
this
Court,
challenging the notice issued by the District
Basic Education Officer as well as against
the resolution passed by the Committee of
Management proposed to dismiss the
respondent No.5 with the prayer to pay all
consequential benefits of service. The said
writ petition was decided vide order dated
1.10.2008, whereby direction was issued to
decide the claim setup by the respondent
No.5 before the Director of Education
(Basic).

6: The judgment and order passed by
this Court was subject matter of challenge
in Special Appeal No.661 of 2008, whereby
the order passed by the learned Single
Judge was set aside and the Division Bench
of this Court held that the Director of
Education (Basic) has no jurisdiction to
decide the issue of grant of prior approval,
as required under Rule 15 of the Rules and
under the Rules, Basic Education Officer is
the competent authority to exercise this
power. After the judgment, the District
Basic Education Officer again issued notice
on the matter of grant of prior approval. It
is the case of the petitioner that concealing
the fact of pendency of earlier writ petition,
he moved an application for recall of the
judgment. After the judgment passed by the
Division Bench of this Court, the District
Basic Education Officer issued notice
3 All. C/M Sarswati Laghu Madhyamik Vidyalaya Vs. State of U.P.
167
under Rule 15. The notice was challenged
before this Court by the respondent No.5,
which
was
finally
decided, whereby
direction was issued that the competent
authority
shall
decide
the
matter
expeditiously, within a period of four
months.

7: Thereafter, the respondent No.5
approached the Director of Education
(Basic) and requested that in absence of
any order of suspension, termination or
dismissal,
the
salary
and
other
consequential benefits have been stopped,
thus, direction be issued to the Committee
of Management and other education
authorities to release the benefits available
to him. The Director of Education (Basic)
issued notice to the parties including the
Committee of Management and passed an
order, whereby benefit was granted to the
respondent No.5 to ensure payment as
prayed by the respondent No.5.

8: The order passed by the Director of
Education (Basic) dated 31.8.2010 is the
subject matter of challenge in the present
writ petition to the extent that the benefits
have been provided to the respondent No.5.
It is also relevant to record that in the
meantime, the respondent No.5 retired from
service on 30.6.2002.

9: Submission of learned counsel for
the petitioner is that the Director of
Education (Basic) is having no jurisdiction
to try and decide the dispute in regard to
the termination or dismissal of Teacher
appointed in an institution by a private
Committee receiving aid from the State
Government. Next submission is that under
Rule 15, the District Basic Education
Officer is empowered to exercise his power
for the grant of approval or disapproval and
the order passed therein is appealable
before the Director of Education (Basic),
thus, the submission is that without any
order, the Director of Education (Basic)
cannot assume jurisdiction of the appellate
court.

10: His next submission is that the
Director was not having jurisdiction to
issue direction to the Committee of
Management or the other educational
authorities to release the salary and other
consequential benefits on the ground that
the matter in regard to the grant of prior
approval was pending before the District
Basic Education Officer. His
further
submission is that the claim setup by the
Committee of Management before the
Director of Education was not taken into
consideration and ignoring the same, the
impugned order has been passed.

11: In submission on the point of
jurisdiction,
learned
counsel
for
the
petitioner placed reliance upon a judgment
which was passed during the course of
present dispute in Special Appeal No.661
of 2008 (Committee of Management Vs.
State of U.P. & Others). In support of his
submission, he further placed reliance upon
a judgment passed in Writ Petition No.5996
(S/S) of 2010 (Jagdish Yadav Vs. State of
U.P.), wherein several judgments of the
Hon'ble Apex Court were taken into
consideration that the authority who has
been empowered to assume jurisdiction of
appellate court cannot usurp power without
any order passed by his subordinate officer.

12: On the other hand, learned
counsel for the respondents submitted that
it is a matter of Basic Education department
recognized under the provisions of U.P.
Basic Education Act, 1972 inasmuch as the
provisions of U.P. Junior High Schools
(Payment of Salaries of Teachers and other
168 INDIAN LAW REPORTS ALLAHABAD SERIES
Employees) Act, 1978 are also applicable.
It has further been submitted that during the
pendency of the disciplinary proceeding,
the petitioner retired from service on
30.6.2002,
pending
approval
of
the
proposal of the Committee of Management
to grant approval. In the Basic Education
Act, 1972 and Act of 1978, there is no
provision to continue the disciplinary
proceeding, therefore, his submission is
that in absence of any provision under the
Act to continue the disciplinary proceeding
after the retirement, no proceeding can be
continued against the petitioner, thus, he is
entitled for all benefits available to the post
of Headmaster.

13: I have considered the submission
advanced by learned counsel for the parties
and perused the material on record.

14: On perusal of the record, it is
evident that the Director of Education
(Basic) has directed the Committee of
Management to make payment of salary as
well as arrears to the respondent No.5. The
Director of Education (Basic) in absence of
any order passed by the District Basic
Education Officer, has no jurisdiction to
usurp the power of the District Basic
Education Officer, but as a matter of fact,
the disciplinary proceeding initiated against
the respondent No.5 and proposal made to
the District Basic Education Officer is
subject to approval required under Rule 15
of the Rules of 1978. The provision
contained under Rule 15 of The U.P.
Recognised Basic Schools (Junior High
Schools) (Recruitment And Conditions Of
Service Of Teachers) Rules, 1978 is quoted
below :-

"15. Termination of service. - No
Headmaster or Assistant Teacher of a
recognised school may be discharged or
removed or dismissed from service or
reduced in rank or subjected to any
diminution in emoluments or served with
notice of termination of service except with
the prior approval in writing of the District
Basic Education Officer :

Provided that in the case of the
Headmaster or an Assistant Teacher of a
minority institution the approval of the
District Basic Education Officer shall not
be necessary."

15: The controversy in regard to the
continuation of disciplinary proceeding and
payment of salary after retirement came for
consideration before the Hon'ble Supreme
Court in the case of Bhagirathi Jena Vs.
Board of Directors O.S.F.G. & others
[AIR 1999 SC 1841], wherein the Hon'ble
Supreme Court while considering the
disciplinary proceeding after retirement,
has held as under :-

"It will be noticed from the
abovesaid regulations that no specific
provision was made for deducting any
amount from the provident fund consequent
to any misconduct determined in the
departmental

enquiry nor was any provision
made for continuance of departmental
enquiry after superannuation, in view of the
absence of such provision in the abovesaid
regulations, it must be held that the
Corporation had no legal authority to make
any reduction in the retiral benefits of the
appellant. There is also no provision for
conducting a disciplinary enquiry after
retirement of the appellant and nor any
provision stating that in case misconduct is
established, a deduction could be made
from retiral benefits. Once the appellant
had retired from service on 30.6.95. there
was no authority vested in the Corporation
or continuing the departmental enquiry
3 All. C/M Sarswati Laghu Madhyamik Vidyalaya Vs. State of U.P.
169
even for the purpose of imposing any
reduction in the retiral benefits payable to
the appellant. In the absence of such
authority, it must be held that the enquiry
had lapsed and the appellant was entitled
to full retiral benefits on retirement.

Learned senior counsel for the
respondent placed reliance on the judgment
of this Court in T.S. Mankad v. State of
Gujarat reported in, [1989] Suppl. 2 SCC
110. It is true that that was a case of
imposing a reduction in the pension and
gratuity on account of unsatisfactory
service of the employee as determined in an
enquiry which was extended beyond the
date of superannuation. But the above
decision
cannot
help
the
respondent
inasmuch as in that case there was a
specific rule namely Rule 241-A of the
Junagadh State Pension and Parwashi
Allowance Rules, 1932 which enabled the
imposition of a reduction in the pension or
gratuity of a person after retirement.
Further, there were rules in that case which
enabled the continuance of departmental
enquiry even after superannuation for the
purpose of finding out whether any
misconduct was established which could be
taken into account for the purpose of Rule
241-A. In the absence of a similar provision
with
Regulations
of
the
respondent
Corporation,
the
above
judgment
of
Mankad's case cannot help the respondent.

The question has also been raised
in the appeal in regard to the payment of
arrears of salary and other allowances
payable to the appellant during the period
he was kept under suspension and upto the
date of superannuation. Inasmuch as the
enquiry had lapsed, it is, in our opinion,
obvious that the appellant would have to
get the balance of the emoluments payable
to him after deducting the suspension
allowance that was paid to him during the
abovesaid period.

The appeal is therefore allowed
directing the respondent to pay arrears of
salary and allowances payable to him
during the period of suspension upto the
date of superannuation after deducting the
suspension allowance paid to him for the
said period and also to pay the appellant,
all the retiral benefits otherwise payable to
him in accordance with the rules and
regulations applicable, as if there had been
no disciplinary enquiry or order passed
there in."

In
the
circumstances
the
judgment and order of the High Court is set
aside. The writ petition of the appellant is
allowed in terms of the directions given
above. No order as to costs."

16: This Court in the case of
Ravindra Singh Rathore Vs. District
Inspector of Schools and Others decided
by the Allahabad High Court in Writ
Petition No.16905 of 2000 vide judgment
and order dated 26.9.2003 has held that in
absence of provision, no disciplinary
proceeding
can
continue
after
the
retirement and the employee is entitled for
all consequential benefit permissible to the
post. The relevant paragraphs 23, 24, 25,
26, 27, 28, 29, 30, 31 and 32 are being
quoted below :-

"23. As noticed hereinbefore there
is no specific provision which empowers
the
continuance
of
a
disciplinary
proceedings against an employee, teacher
and Principal of an aided educational
institution in the State of U.P. Rules 30 and
32 of the 1964 Rules also do not empower
for continuance of departmental enquiry
once the person has retired. Thus, the
disciplinary proceedings could not have
continued and it lapsed.

24. In the case of State Bank of
India v. A.N. Gupta and Ors., (1997) 8 SCC
170 INDIAN LAW REPORTS ALLAHABAD SERIES
60, the Hon'ble Supreme Court was
considering the question as to whether a
departmental enquiry can be continued
after the retirement in case of an employee
of the State Bank of India. The Apex Court
considered the judgment of the Andhra
Pradesh High Court in T. Narasiah v. State
Bank of India, (1978) 2 LLJ 173. In
paragraph 14 of the judgment, the Hon'ble
Supreme Court has held as follows :

"14. In the case before the
Andhra Pradesh High Court (T. Narasiah)
the petitioner was an officer in the State
Bank.
Disciplinary
proceedings
were
initiated against him but before these could
be completed the officer was informed by
the Bank through its letter dated 5.5.1976,
that it was not possible for the Bank to
complete the enquiry well in time before the
officer attained the age of 60 years which
was the date of his superannuation. He was
told he would therefore cease to be in the
Bank's service on the date of his
superannuation and he would not be paid
any subsistence allowance with effect from
that date. The officer was treated as having
retired and ceasing to be in the employment
of the Bank with effect from 10.5.1976. The
Officer claimed his provident fund and
pension and on the Banks' refusal to pay
the same, a writ petition was filed. During
the course of the hearing of the writ
petition it was submitted by the Bank that it
had since decided to pay the provident fund
in full to the officer and the Bank had also
no objection to pay his contribution to the
pension and that as far as the payment of
the Bank's share in the pension fund was
concerned, the officer was not entitled
thereto unless and until the Bank granted
the same in accordance with Rule 11 of the
Pension Rules. It was contended before the
Andhra Pradesh High Court by the officer
that Rule 11 had no application in his case
and on attaining the age of superannuation
he automatically went out of the service of
the Bank. The Bank, however, relied on
Rule 11 to withhold the Bank's contribution
to the pension fund. The Court was of the
view that Rule 11 had to be read in its
context and consistent with the object
behind the said Rule. It held that the Rule
applied not only in the case of the
retirement contemplated by Rule 19 but
also to cases of retirement of employees on
attaining the age of superannuation. The
Court observed that it might happen that
the irregularities of misfeasance of an
employee could not be detected well before
his retirement so as to initiate and complete
disciplinary enquiry in the matter and
again there might be a case where
disciplinary enquiry was initiated but could
not be completed before the delinquent
employee
attained
the
age
of
superannuation. The Court noted that there
was no provision in the Service Rules of the
Bank providing for extension of service of
an employee to enable the authorities to
complete the disciplinary enquiry against
him which power was available under the
Government Service Rules. The Court said
even if an enquiry was pending against an
employee there was nothing to stop him
from retiring on his attaining the age of
superannuation. The enquiry could not
continue after his retirement. The Court
was therefore, of the opinion that it was for
that reason that the bank had reserved to
itself the power to sanction the pensionary
benefit under Rule 11 and if there was
nothing wrong with the service of an
employee throughout, the Bank would
naturally sanction the pension, but if there
was sufficient material disclosing grave
irregularities on the part of the employee,
the Bank might be well within its power in
refusing
to
sanction
the
pensionary
benefits, or in sanctioning them only partly.
The learned single Judge of the Andhra
3 All. C/M Sarswati Laghu Madhyamik Vidyalaya Vs. State of U.P.
171
Pradesh High Court then went on to hold
as under :

"Of course, such decision has to
be arrived at fairly, which necessarily
means after holding an enquiry, giving a
fair opportunity to the concerned officer to
defend himself against the accusation. Such
an enquiry would not be a 'disciplinary
enquiry' within the ordinary meaning of the
term, but an enquiry confined to the
purposes of the Rules, viz., whether the
employee
should
be
granted
any
pensionary benefits ; and if so, to what
extent? Such an enquiry can also be made
after the retirement (of an employee ; and
particularly in cases of retirement) on
attaining the age of superannuation,
probably, such enquiry will have to be
conducted only after retirement."

The
Court,
therefore,
gave
direction as to how the enquiry was to be
conducted against the officer so as to
entitle him to the pensionary benefits if he
was exonerated. We are afraid that this
view of the Andhra Pradesh High Court
does not commend to us. By giving such an
interpretation to Rule 11 the Andhra
Pradesh High Court has, in effect, lend
validity to disciplinary proceeding against
an employee even after his superannuation
for which no provision existed either in
Pension Rules or in the Service Rules and
when the High Court had himself observed
that an enquiry even if initiated during the
service period of the employee could not be
continued
after
his
retirement
on
superannuation."

Thus, the Hon'ble Supreme Court
has held that no disciplinary proceedings
against an employee even after his
superannuation for which no provision
existed either in the Pension Rules or in the
Service Rules, can be continued.

25.
Recently,
the
Hon'ble
Supreme Court in the case of Chandra
Singh v. State of Rajasthan and Anr., JT
2003 (6) SC 20, has held as follows :

"37.
.........A
departmental
proceeding can continue so long as the
employee is in service. In the event, a
disciplinary proceeding is kept pending by
the employer the employee cannot be made
to retire. There must exist specific provision
in the pension rules in terms whereof,
whole or a part of the pension can be
withheld
or
withdrawn
wherefor
a
proceeding
has
to
be
initiated.
Furthermore, no rule has also been brought
to our notice providing for continuation of
such proceeding despite permitting the
employee concerned to retire. In absence of
such a proceeding, the High Court or the
State cannot contend that the departmental
proceedings against the appellant Mata
Deen Garg could continue."

26. Applying the principle laid
down in Chandra Singh (supra) and
Bhagirathi Jena (supra) to the facts of the
present case, in the absence of any specific
provision
in
the
1964
Rules,
the
proceedings for continuation of enquiry
after the retirement of the employee lapsed.

27. The disciplinary proceedings
can also not be saved in the present case on
the
ground
that
the
committee
of
management had passed a resolution
dismissing Sri Ravindra Singh Rathore
from the post of Principal in the college
and only the proposed punishment was
required to be approved by the Board under
Section 21 of the Act of 1982. Section 21 of
the Act of 1982 reads as follows :

"21. Restriction on dismissal etc.
of teachers.--The Management shall not,
except with the prior approval of the Board,
dismiss any teacher or remove him from
service, or serve on him any notice of
removal from service, or reduce him in
rank or reduce his emoluments or withhold
his increment for any period (whether
172 INDIAN LAW REPORTS ALLAHABAD SERIES
temporarily or permanently) and any such
thing done without such prior approval
shall be void."

28. The statement of objects and
reason for enacting the Act of 1982, inter
alia, provided as follows ;

"...................Under Section 16G
(3) of the Intermediate Education Act,
1921, managements were authorised to
impose punishment with the approval of the
District Inspectors of Schools in matters
pertaining to disciplinary action. This
provision was found to be inadequate in
cases where the management proposed to
impose
the
punishment
of
dismissal,
removal or reduction in rank and so it was
considered necessary that this power
should be exercised subject to the prior
approval of the Commission or the
Selection Boards, as the case may be,
which could function as an independent
and impartial body."

29. The Hon'ble Supreme Court
in the case of Committee of Management,
St. John Inter College v. Girdhari Singh
and Ors., (2001) 4 SCC 296, has, after
taking into consideration the statement of
objects and reasons of the Act of 1982, held
that it unequivocally indicates that earlier
provisions continued under Section 16G (3)
(a) of the Education Act were found to be
inadequate
where
the
management
proposed to impose the punishment of
dismissal, removal or reduction in rank. In
other words, the Legislature thought that
the power of approval/disapproval to an
order of punishment imposed by the
management should not be vested with a
lower educational authority, like the
District Inspector of Schools, but should be
vested with an independent Commission or
Board which would function as an
independent and impartial body.

30. Under Section 21 of the Act of
1982 the Board has to examine the merits
of
the
case
and
apply
its
mind
independently to the question whether the
evidence on record justify the removal or
not. The Hon'ble Supreme Court in the case
of Committee of Management Bishambhar
Sharan Vaidic Inter College, Jaspur,
Nainital and Anr. v. U.P. Secondary
Education Service Commission and others,
1995 (Supp) 3 SCC 244, in paragraph 4 of
the judgment, has held as follows :

"............. We have also noticed
Section 21 of the Act to which our
attention was particularly drawn. We are
of the view that the High Court has fallen
in error in holding that the enquiry was
vitiated because the charge-sheet was not
framed by the enquiry committee but by
the committee of management. The High
Court has also committed an error in
holding that the Commission could not
have gone into the merits of the case.
According to us, in view of the provisions
of the said Section 21, the Commission
while deciding whether or not to grant
approval of the removal of a teacher, has
necessarily to go into the merits of the
case and apply its mind independently to
the question whether the evidence on
record justify the removal. It must be
remembered
that
thecommission
appointed under the Act is a highpowered body and as a body entrusted
with the important function of supervising
the actions taken by the Management
against the teachers, it has to discharge
its responsibility
circumspectively. It
cannot exercise its function effectively
unless it scrutinizes the material and
applies its mind carefully to the facts on
record..................."

31. In the case of Punjab
National Bank and Ors. v. Kunj Behari
Misra, (1998) 7 SCC 84, the Hon'ble
Supreme
Court
has
held
that
the
disciplinary proceedings breaks into two
3 All. C/M Sarswati Laghu Madhyamik Vidyalaya Vs. State of U.P.
173
stages. The first stage commences when
the disciplinary authority arrives at its
conclusion on the basis of the evidence,
the enquiry officer's report and the
delinquent employee replied to it. The
second
stage
begins
when
the
disciplinary authority decides to impose
penalty on the basis of its conclusion.
Since under Section 21 of the Act of 1982,
it
has
been
provided
that
if
the
management dismisses any teacher or
removes him from service or serves on
him any notice of removal from service or
reduces him in rank or reduces his
emoluments or withholds his increments
for any period, whether temporarily or
permanently, except the prior approval of
the Board, such thing done without such
prior approval shall be void.

32. Thus, it can safely be said
that till such time the Board after
considering the relevant material and
going into the merits of the charges either
approves or disapproves the proposed
order of punishment, the disciplinary
proceedings are continuing. Since Sri
Ravindra Singh Rathore has retired
before the Board had considered the
matter
for
according
approval,
as
required under Section 21 of the Act of
1982, the disciplinary proceedings cannot
be continued."

17: In view of the above, the cause
of action in challenging the order of
Director on the ground of jurisdiction is
not required to be decided at present. It is
admitted case of the parties that the
District Basic Education Officer has yet
not granted approval, as required under
Rule 15, therefore, it cannot be termed
that the disciplinary proceeding against
the respondent No.5 has attained finality
in the eyes of law. Under Rule 15, the
District Basic Education Officer can
approve the proposal of the Committee of
Management and also can disapprove the
same with the direction to conclude the
disciplinary proceeding in the light of the
observation made therein. The respondent
No.5
on
attaining
the
age
of
superannuation, has retired from service
on 30.6.2002, therefore, challenge to the
order
of
Director
has
rendered
infructuous.

18: In case the order of the Director
is set aside on the ground that he was
having no jurisdiction to pass the order
for payment of salary and other benefits
to the respondent No.5, at best, after
setting aside the order, the matter would
be remanded to the District Basic
Education Officer for consideration of
claim of the respondent No.5 in regard to
his entitlement of salary. Once this Court
has come to the conclusion that the
respondent
No.5
has
retired
and
disciplinary proceeding has not been
finalized by granting approval to the
proposal
of
the
Committee
of
Management, the cause of action of the
petition has rendered infructuous.

19:

The
respondent
No.5,
accordingly, is entitled for the payment of
salary
applicable
to
the
post
of
Headmaster of the institution inasmuch as
the arrears of salary w.e.f. the date found
due.
Therefore,
the
District
Basic
Education Officer is directed to ensure
entire payment to the respondent No.5
within a period of three months from the
date of production of certified copy of
this order.

20: With the aforesaid observation
and direction, the writ petition is finally
disposed of.
----------
174 INDIAN LAW REPORTS ALLAHABAD SERIES
(2021)03ILR A174
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.01.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Single No. 8368 of 2020

Roshanee Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Onkar Singh

Counsel for the Respondent:
C.S.C., Ajay

A.
Civil
Law
-
UP
Basic
Education
(Teacher) Service Rules, 1981 - Clause
2(V) - Word 'Shiksha Mitra' - Definition -
Absence from duty - Weightage of past
service - Benefit, when can be given -
Held, definition of Shiksha Mitra under
Clause 2 (V) of the Rules, 1981 is very
clear and purpose thereof is laudable as
only those Shiksha Mitras can be given
weightage of past services, who are
working as Shiksha Mitra after being
reverted as Shiksha Mitra from the post of
Assistant Teacher in compliance of the
dictum of Hon'ble Apex Court in re; Anand
Kumar Yadav's case - Such benefit cannot
be provided to those Shiksha Mitras, who
are not Shiksha Mitra for substantial
period at the time when such benefit was
to be provided. (Para 12)

Writ Petition dismissed. (E-1)

Cases relied on :-

1. Civil Appeal No. 9529 of 2017; St. of U.P. &
anr. Vs Anand Kumar Yadav & ors. decided by
Supreme Court on 25.07.2017

2. Vijay S. Sathaye Vs Indian Airlines Limited &
ors.; (2013) 10 SCC 253
(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri Onkar Singh, learned
counsel for the petitioner and Sri Ran Vijay
Singh, learned counsel for the opposite
parties.

2. By means of this petition, the
petitioner has prayed following reliefs:-

(I) Issue a writ, order or direction
in the nature of Certiorari for quashing the
definition of "Shiksha Mitra" as provided in
Clause 2 (V) of the Uttar Pradesh Basic
Education (Teacher) Service Rules, 1981, to
the extent which says that the "Shiksha
Mitra" means "working Shiksha Mitra"
Annexure No.1.

(II) Issue a writ, order or direction
in the nature of Certiorari for quashing and
set aside all the consequential Government
Orders, to the extent which treats "Shiksha
Mitra" as "Working Shiksha Mitra".

(III) Issue a writ, order or direction
in the nature of mandamus commanding to
the opposite parties to give all the benefits i.e.
weightage of Shiksha Mitra, as per her
Shiksha Mitra experience, to the petitioner
ignoring the condition of "Working Shiksha
Mitra".

(IV) Issue a writ, order or direction
in the nature of mandamus commanding to
the opposite parties, to permit the petitioner
to rejoin on the post of Shiksha Mitra, in
Primary School Badiyan Kheda, Block
Sikandarpur Karna, District Unnao.

(V) Issue any other writ, order or
direction that this Hon'ble Court may deem fit
and proper in the facts and circumstances of
the case and allow this writ petition with
cost."

3. By means of order dated 13.1.2021,
this Court while considering the request of