# Kapil Deo Prasad v. Joint Director of Education & Ors

- **Citation:** (2020) 7 ILRA 234
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-03-05
- **Case number:** Writ A No. 442 of 2020
- **Bench:** Surya Prakash Kesarwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kapil-deo-prasad-v-joint-director-of-education-ors-45871
- **Pages:** 4

## Headnote

C.S.C., Sri Akhilesh Kumar Singh, Sri Ashok
Kumar
Pandey,
Sri
Ramesh
Chandra
Dwivedi, Sri Samarath Singh, Sri Sankalp
Narain, sri G.K. Singh, Sri H.P. Sahi

A.
Education/Service
Law
-
U.P.
Intermediate
Education
Act,
1921:-
Sections 16G (3)(a), 16G (5), 16G (7)
Disciplinary proceedings - Reversion -
Reduction in emolument - - Petitioner was
reverted by Manager of institution on the same
day vide impugned order dated 26.12.2019,
after receiving direction to take action against
the petitioner. It was held that provisions of
7 All. Kapil Deo Prasad Vs. Joint Director of Education & Ors.
235
S.16G (5) and S.16G (7) have not been followed
by the Manager of the institution, while passing
the impugned order. (Para 7, 8)

B.
U.P.
Secondary
Education
Service
Selection Board Act, 1982- Section 21 -
The impugned order passed by the Manager of
the institution certainly amounts to reduction in
emolument. This could not have been done by
the manager of the institution without approval
under Section 21 of Act, 1982. (Para 10)

Writ Petition allowed. (E-4)

Precedent followed:

## Text

234 INDIAN LAW REPORTS ALLAHABAD SERIES

39. There is yet another aspect of the
matter that a futile relief cannot be granted
by the court. It is not in dispute that the
assertion / pleadings of the plaintiff that his
son has left the house and is living
elsewhere could not be dislodged by the
defendant-appellant
and
there
is
a
concurrent finding of fact by both the
courts below, which does not appear to be
perverse in nature so as to require any
interference by this court. Thus, to say that
the appellant daughter-in-law cannot be
evicted without seeking decree of eviction
against son with whom she had moved on
the 1st floor of the suit property after
marriage of the son of the plaintiff with the
appellant, would be a futile relief claimed
against the son who is not residing in the
house in question, therefore, cannot be
granted by the court.

40. In fact, generally speaking, it is
unfortunate that a doctor son had to leave
the house because of strained relationship
between husband and wife leaving his
parents in old age, particularly, his mother
being
in
such
physically
challenged
condition and even if doctor son is visiting
them periodically to look after them, the
same is being projected as a negative
activity on his part. It is not even the case
of the defendant-appellant that she is
looking after them. In fact, the plaint case
is contrary to the same. Therefore, it would
be even more unfortunate that under such
circumstances the parents are compelled to
seek decree of eviction against the son
when the real relief is, in fact, being sought
against the daughter-in-law who has made
the life of in-laws miserable.

41. Thus, for the discussion made
hereinabove, the answer to the substantial
question of law framed in the present case
is in negative and is that even considering
the definition of shared household as
provided under Section 2 (s) of the Act,
2005, the appellant daughter-in-law can be
evicted without seeking decree of eviction
against son with whom she had moved on
the 1st floor of the suit property after
marriage of the son of the plaintiff with the
appellant.

42. With the observations made
hereinabove
present
appeal
stands
dismissed.
----------
(2020)07ILR A234
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.03.2020

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.

Writ A No. 442 of 2020

Kapil Deo Prasad ...Petitioner
Versus
Joint Director of Education & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri R.K. Ojha, Sri Indra Raj Singh, Sri
Adarsh Singh

Counsel for the Respondents:
C.S.C., Sri Akhilesh Kumar Singh, Sri Ashok
Kumar
Pandey,
Sri
Ramesh
Chandra
Dwivedi, Sri Samarath Singh, Sri Sankalp
Narain, sri G.K. Singh, Sri H.P. Sahi

A.
Education/Service
Law
-
U.P.
Intermediate
Education
Act,
1921:-
Sections 16G (3)(a), 16G (5), 16G (7)
Disciplinary proceedings - Reversion -
Reduction in emolument - - Petitioner was
reverted by Manager of institution on the same
day vide impugned order dated 26.12.2019,
after receiving direction to take action against
the petitioner. It was held that provisions of
7 All. Kapil Deo Prasad Vs. Joint Director of Education & Ors.
235
S.16G (5) and S.16G (7) have not been followed
by the Manager of the institution, while passing
the impugned order. (Para 7, 8)

B.
U.P.
Secondary
Education
Service
Selection Board Act, 1982- Section 21 -
The impugned order passed by the Manager of
the institution certainly amounts to reduction in
emolument. This could not have been done by
the manager of the institution without approval
under Section 21 of Act, 1982. (Para 10)

Writ Petition allowed. (E-4)

Precedent followed:

1. Hem Lata Agrawal Vs District Inspector of
Schools, 2003 (2) AWC 939 (Para 11)

Petition
challenges
orders
dated
24.12.2019, 26.12.2019 and 26.12.2019,
passed by Joint Director of Education, 7th
Region Gorakhpur, District Inspector of
Schools,
Kushinagar
and
Authorised
Controller, Janta Inter College Sohsa,
Mathiya, Kushinagar respectively.

(Delivered by Hon'ble Surya Prakash Kesarwani, J.)

1- Heard Sri R.K.Ojha, learned Senior
Advocate assisted by Sri Assisted by Sri
Adarsh Singh, learned counsel for the
petitioner, learned Standing Counsel for
respondent nos. 1 to 4 and Sri G.K. Singh,
learned senior Advocate assisted by Sri
Ashok Kumar Pandey, learned counsel for
respondent no.7. None appears on behalf of
respondent no.6.

2- This writ petition has been filed
praying for the following relief:

"I. Issue a writ, order or direction
in the nature of certiorari quashing the
impugned
order
dated
24.12.2019,
26.12.2019 and 26.12.2019 passed by
respondent no. 1,2 and 3 (Annexure No.7, 8
and 9 to the writ petition respectively).

II. Issue a writ, order or direction
in the nature of mandamus restraining the
respondents
from
interfering
in
the
functioning of the petitioner on the post of
Principal of the Janta Inter College Sohsa,
Mathiya, Kushinagar under the impugned
orders dated 24.12.2019, 26.12.2019 and
26.12.2019 passed by respondent no. 1,2
and 3 (Annexure No.7, 8 and 9 to the writ
petition respectively) and to give all service
benefits including salary for the post of
Principal."

3- On 26.2.2020, this Court passed
the following order:

"Second Supplementary Affidavit
filed today, is taken on record.

Learned
standing
counsel
representing the respondent nos. 1 to 4 and
the learned counsel for respondent nos.5
and 6 pray for and are granted a week's
time to file counter affidavit. In the counter
affidavit, the State respondents shall also
disclose the authority of law under which
the impugned order has been passed. They
shall also file a copy of the inquiry report,
if any.

Put up in the Additional Cause
List on 5.3.2020."

4- Despite afore-quoted order dated
26.2.2020, the respondents have not filed
any counter affidavit.

5- Standing Counsel on instructions
states that in the matter of the F.I.R.
No.0722 of 2019 dated 18.12.2019, under
Sections 419, 420, 406 and 506 I.P.C.,
Police Station Kasya, lodged by the
committee of management against the
petitioner, the police has submitted final
236 INDIAN LAW REPORTS ALLAHABAD SERIES
report dated 6.2.2020 before the concerned
court, which has not yet been accepted.

6- By the impugned order dated
24.12.2019, the Joint director of Education,
7th Region, Gorakhpur, has directed the
District Inspector of Schools, Kushinagar,
to take action against the petitioner
working as Officiating Principal on the
basis of a complaint received against him.
The impugned order dated 26.12.2019 was
passed by the District Inspector of Schools,
Kushinagar in consequence to the order of
the Joint Director of Eduction, Gorakhpur,
whereby the District Inspector of Schools,
Kushinagar, has directed the committee of
management to take action against the
petitioner. On the same day, the impugned
order dated 26.12.2019 was passed by the
manager of the respondent no.3 institution,
whereby
he
initiated
disciplinary
proceeding against the petitioner and
reverted him.

7- Despite being asked and also despite
the afore-quoted order dated 26.12.2020, none
of the respondents have shown authority of law
to pass the impugned orders. By the impugned
order dated 26.12.2019, the petitioner has
not been suspended instead he has been
reverted. The committee of management has
power to initiate the disciplinary proceeding
and to suspend the petitioner under Section 16G
(5) of the U.P. Intermediate Education Act,
1921 (hereinafter referred to as the 'Act'). Sub
section (3)(a) of Section 16G of the Act,
provides that no Head of Institution or
teacher
shall
be
suspended
by
the
Management, unless in the opinion of the
management, the charges against him are
serious enough to merit his dismissal,
removal or reduction in rank; or his
continuance in office is likely to hamper or
prejudice the conduct of disciplinary
proceedings against him; or any criminal
case for an offence involving moral turpitude
against him is under investigation, inquiry or
trial.
Section
16G(7)
provides
for
approval/disapproval of suspension.

8- Undisputedly, the provisions of Section
16G (5) and 16G (7) of the Act, have not been
followed by the Manager of the institution,
while passing the impugned order dated
26.12.2019.

9- Section 21 of U.P. Secondary
Education Service Selection Board Act, 1982
provides that the management shall not,
except with the prior approval of the Board,
dismissed 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
temporarily or permanently and any such
thing done without such prior approval shall
be void.

10- The impugned order passed by the
Manager
of
the
institution
certainly
amounts to reduction in emolument. This
could not have been done by the manager
of the respondent no.3 institution without
approval under Section 21 of Act 1982.
Therefore, the impugned order dated
26.12.2019 passed by the respondent no.3
is wholly without authority of law.

11- Section 21 of the Act, 1982 has
also been similarly interpreted by this
Court in Hem Lata Agrawal v. District
Inspector of Schools, 2003(2) AWC 939.
Relevant portion of the judgment in the
case of Hem Lata Agrawal (supra) is
reproduced below:

"9. The question whether the
reversion of a teacher, who was appointed
on temporary adhoc basis as Principal
7 All. Raj Kumar Vs. State of U.P. & Ors.
237
under Section 18 of the Act would amount
to reduction in rank so as to require
approval of the Board need not be
considered here as whether or not it is a
reduction in rank, it is clear that it amounts
to reduction of emoluments. The petitioner
is entitled to the salary for the post of
Principal and reverting her, as a Lecturer
would undoubtedly affect the emoluments
to which she is entitled. The language of
Section 21 of the Act is wide enough to
cover within its scope the order impugned
in this writ petition."....

10. Even though the promotion as
Principal on purely ad hoc basis may not be
treated as a promotion in rank, the substantive
post of the teacher being still that of lecturer but
it is clear that Section 18 creates a right in
favour of the senior most teacher to be given a
promotion on adhoc basis as Principal and a
person appointed on the basis of such seniority
cannot be divested of the right to work as ad
hoc Principal unless the statute so provides and
no such provision has been brought to my
notice. In such cases, if the ad hoc Principal
commits any misconduct such as is alleged in
the present case in the counter-affidavit, the
power of suspension can be invoked."

12- For all the reasons afore-stated, the
impugned order dated 24.12.2019 passed by the
Joint Director of Education 7th Region,
Gorakhpur (respondent no.1), impugned order
dated 26.12.2019 passed by the District
Inspector of Schools, Kushinagar (respondent
no.2) and the impugned order dated 26.12.2019
passed by the Authorised Controller, Janta Inter
College, Soha, Mathiya, Kushinagar are hereby
quashed. Liberty is granted to the respondent
no.3 to proceed against the petitioner in
accordance with law, if lawfully required.

13- With the aforesaid observations, the
writ petition is allowed.
----------
(2020)07ILR A237
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.02.2020

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE PRAKASH PADIA, J.

Writ A No. 2838 of 2020

Raj Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Shrawan Dwivedi, Sri Chandra Bhan
Gupta

Counsel for the Respondents:
C.S.C.

A.
Education/Service
Law
-
Appointment/Recruitment
-
Sanjay
Gandhi Post Graduate Institute Act, 1983:
Section 12; Sanjay Gandhi Post Graduate
Institute
First
Rules,
2011
-
No
investigation into allegation of malafide
can be directed by the Court if detail of
the particulars and supporting documents
are not brought on the record by the
petitioner - Petitioner has made wild and
reckless allegations of malafides without any
particular or materials. (Para 10 to 16)

B. Scope of judicial review in respect of
selection and appointment of holder in
office which carries high responsibility in
the administration - In the absence of the
statutory provision, the administrative authority
is under no legal obligation to record reason in
support of its decision. The function of the
Selection Committee is neither judicial nor
adjudicatory. It is purely administrative. In the
academic matters, the Courts have a very
limited role particularly when no malafides have
been alleged against the experts constituting
the selection committee. It would normally be
prudent, wholesome and safe for the Courts to