# M/S Ramkali Balika Inter College, Sultanpur & Anr v. State of U.P. & Ors

- **Citation:** (2023) 9 ILRA 487
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-15
- **Case number:** Writ-C No. 7663 of 2023
- **Bench:** Pankaj Bhatia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-ramkali-balika-inter-college-sultanpur-anr-v-state-of-u-p-ors-50819
- **Pages:** 6

## Headnote

Law
-
U.P.
High
Schools
&
Intermediate
Colleges
(Payment
of
Salaries
of
Teachers
and
Other
Employees) Act, 1971 - Sections 4, 5 & 6 -
Power
under
Section
4(1)
restricted
to
inspection and issuance of directions for
ensuring proper payment of salaries and
observance of financial propriety - In absence of
any irregularity relating to salary payment,
Inspector lacked jurisdiction to recommend
appointment of Authorized Controller - Report
forming basis of such appointment found
arbitrary, speculative and outside the scope of
the Act - Exercise of power held to be
colourable and violative of Article 14 of the
Constitution.

Impugned orders quashed.

Case Law Discussed:

Whirlpool Corp. Vs Registrar of Trade Marks,
Mumbai & ors.; (1998) 8 SCC 1

## Text

9 All. M/S Ramkali Balika Inter College, Sultanpur & Anr. Vs. State of U.P. & Ors.
487
Common Era) indicates that the property is
being managed by Custodian (Jere Intijam
Custodian Sahab Bahadur Zila Sitapur) and
also the provisions of unamended/original
Act of 1968, including Section 2(b), 2(c)
and Section 18, this Court is of the opinion
that in the instant case the expression(s) 'an
order vesting a property as enemy property
in the Custodian'; and 'receipt of such order'
or 'from the date of publication in the
Official Gazette' mentioned in Section 18
as also the word 'order' mentioned in other
sections of the Act of 1968 inserved vide
Act No.3 of 2017, would not empower the
Civil Court or Authority to adjudicate the
issue related to the revenue entry in favour
of the Custodian in view of Section 18B, as
this section specifically excludes the
jurisdiction of the Civil Court or Authority.

24. Accordingly, in the view of this
Court, the question related to validity of the
entry in revenue records including the
question as to whether the entry in revenue
record is based upon the order vesting a
property as enemy property in favour of
Custodian has to be decided by the
Authority under the Act of 1968.

25. For the foregoing reasons, this
Court finds that the petition has no force. It
is misconceived and dismissed accordingly.
----------
(2023) 9 ILRA 487
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.09.2023

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Writ-C No. 7663 of 2023

M/S
Ramkali
Balika
Inter
College,
Sultanpur & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Ashish Verma, Ashish Kumar Pandey

Counsel for the Respondents:
C.S.C., D.K. Singh Chauhan

Civil
Law
-
U.P.
High
Schools
&
Intermediate
Colleges
(Payment
of
Salaries
of
Teachers
and
Other
Employees) Act, 1971 - Sections 4, 5 & 6 -
Power
under
Section
4(1)
restricted
to
inspection and issuance of directions for
ensuring proper payment of salaries and
observance of financial propriety - In absence of
any irregularity relating to salary payment,
Inspector lacked jurisdiction to recommend
appointment of Authorized Controller - Report
forming basis of such appointment found
arbitrary, speculative and outside the scope of
the Act - Exercise of power held to be
colourable and violative of Article 14 of the
Constitution.

Impugned orders quashed.

Case Law Discussed:

Whirlpool Corp. Vs Registrar of Trade Marks,
Mumbai & ors.; (1998) 8 SCC 1

(Delivered by Hon'ble Pankaj Bhatia, J.)

1. Heard learned Counsel for the
petitioners
and
learned
Standing
Counsel.

2. The present petition has been filed
challenging the order dated 13.02.2023,
whereby the Authorized Controller was
appointed in purported exercise of power
under Section 5 of the Uttar Pradesh High
Schools
and
Intermediate
Colleges
(Payment of Salaries of Teachers and other
Employees) Act, 1971 (in short 'the 1971
Act') as well as the order dated 09.08.2023,
whereby the appeal preferred by the
petitioner was rejected.
488 INDIAN LAW REPORTS ALLAHABAD SERIES

3. The contention of the Counsel for
the petitioners in brief is that an order came
to be passed appointing the Authorized
Controller over the instructions vide order
dated
13.02.2023
as
contained
in
Annexure-2 to the writ petition. On perusal
of the said order, it is revealed that the said
order has been passed observing that in a
report dated 17.01.2023, grave financial
irregularity were observed and in exercise
of powers under Section 4(1) and Section
6(1) of the 1971 Act, recommendation was
made for appointment of Authorized
Controller and based upon the said report
and the recommendation, the Authorized
Controller was appointed.

4. The petitioners had initially
preferred an appeal against the order dated
13.02.2023 which was rejected. Aggrieved
against the said order, the petitioner had
approached this Court by filing Writ-C
No.3977 of 2023, which was decided on
17.05.2023. In terms of the said order, the
appellate
order
dated
19.04.2023
dismissing the appeal was set aside and the
matter was remanded for decision afresh. In
the light of the said remedy, the impugned
order came to be passed dismissing the
appeal on 24.07.2023.

5. The net contention of the Counsel
for the petitioners is that assuming the
report dated 17.01.2023, to be a gospel
truth, no power vests, either under Section
4(1) or under Section 6(1) of the 1971 Act,
to recommend the appointment of an
Authorized Controller as there is no
allegation with regard to any irregularity or
non-payment of salary. He argues that the
1971 Act was enacted to regulate the
payment of salary to teachers and other
employees of the High Schools and
Intermediate Colleges receiving aid out of
the State fund and to provide for matters
connected
therewith.
He
draws
my
attention to Section 4(1) of the 1971 Act,
which is as under:

"4. Power to inspect etc. - (1) The
Inspector may at any time, for the purposes
of this Act, inspect or cause to be inspected
any institution or call for such information
and records (including registers, book of
account
and
vouchers)
from
its
management with regard to the payment of
salaries to its teachers or employees or
give to its management any direction for
the observance of such cannons of financial
propriety (including any direction for
retrenchment of any teacher or employee or
for prohibition of any wasteful expenditure)
as he thinks fit."

6. The object of the Act, Sections 5
and 6 which are relevant are as under:

"Purpose/ Object of the Act

An Act to regulate the payment of
salaries to teachers and other employees of
High Schools and Intermediate Colleges
receiving aid out of the State funds and to
provide for matters connected therewith.

"5. Procedure for payment of salary
in the case of certain institutions. - (1) The
management of every institution shall, for
the purpose of disbursement of salaries to
its teachers and employees, open [in a
Scheduled Bank or a Cooperative Bank] a
separate account to be opened jointly by a
representative of the management and by
the Inspector or such other officer as may
be authorised by the Inspector in that
behalf:

Provided that after the account is
opened, the Inspector may, if he is, subject
to any rules made under this Act, satisfied
that it is expedient in the public interest so
to do, instruct the bank that the account
shall be operated by the representative as
9 All. M/S Ramkali Balika Inter College, Sultanpur & Anr. Vs. State of U.P. & Ors.
489
the management alone, and may at any
time revoke such instruction:

Provided further that in the case
referred to in the provision to subsection
(2), or where a difficulty arises in the
disbursement of salaries due to any default
of the management, the Inspector may
instruct the Bank that the account shall be
operated only by himself or by such other
officer as may be authorised by him in that
behalf and may at any time revoke such
instruction.

(2) The management shall deposit in
the said amount by such date as may be
specified by general or special orders by
the Inspector, eighty per cent or where the
State Government or an officer authorised
by the State Government having regard to
the money required to be disbursed directs
a higher percentage, then such higher
percentage as it or he may direct, of the
amount received from students as fees
which in accordance with the general or
special orders of the State Government in
that behalf [and for so along as such orders
are not made in accordance with the
direction of the Inspector] form part of the
maintenance fund:

Provided
that
where
the
said
percentage of fees is not deposited as
aforesaid the Inspector may by order
prohibit the management from making any
realization of fees from the students, and
thereupon the Inspector may recover the
fees (either through the teachers of the
institution or in such other manner as the
thinks fit) directly from the students and
shall deposit the fees so recovered in the
said account.

(3)
The
entire
amount
of
the
maintenance grant and the amount of
eighty per cent or such higher percentage
as the State Government or an officer
authorised by the State Government, may
be general or special order in that behalf
determine, of the grants for reimbursement
of freeships and other similar concessions
shall also be paid by the State Government
into the said account.

(4) No money credited to the said
account shall be applied for any purpose
except the following, namely:

(a) payment of the said salaries falling
due for any period after March 31, 1971;

(b)
credit
of
the
institution's
contribution, if any, to the provident fund
accounts of the teachers and employees;

(c) such other expenditure for the
purposes of the institution as may be
directed by the State Government in that
behalf;

and such portion of the balance in the
accounts at the end of the month of July
each year as exceeds the aggregate of one
month's salary of the teachers and
employees of the institution after meeting
the liability for payment of their salaries
for the period for which fees have been
realised from the students shall be made
over to the management for expenditure on
the institution;

(5) The salary of a teacher or
employee shall be paid by transfer of the
amount from the said account to his
account, if any, in the same bank, or if he
has no account in that bank, then by
cheque.
(6) In respect of a place where there is no
Scheduled Bank or a Cooperative Bank, the
provisions of this section shall apply with
such modifications as the State Government
may, by notification in the Gazette specify,
and the reference in this section to bank
shall in that case be construed as
references to a post office savings bank.

6. Enforcement of provisions and
directions. - (1) Where the Inspector, on the
basis of an inspection of an institution or
its records or otherwise, is satisfied that its
management has committed default in
490 INDIAN LAW REPORTS ALLAHABAD SERIES
complying with any direction given under
Section 4 or with any provisions of Section
3 or Section 5, he may recommend to the
Regional Deputy Director of Education,
that action be taken against the institution
under sub-section (2).

(2) On receipt of a recommendation
under sub-section (1) the Regional Deputy
Director of Education, may call upon the
management to comply with the said
direction or provisions or to show cause
with a weeks why the management should
not be suspended.

(3) Where the management fails to
comply as aforesaid or to show cause, or
the Regional Deputy Director of Education
considers
the
cause
shown
to
be
insufficient, he may by order supersede the
management for such period not exceeding
one year as may be specified in the Order,
and authorise any person (hereinafter
referred to as Authorised Controller) to
take over the management of the institution
for the said period:

Provided that the Regional Deputy
Director of Education, may where he
considers it necessary or expedient so to
do, -

(i) extend the said period, from time to
time, so however, that the period so
extended does not exceed five years in the
aggregate; or

(ii) revoke the order at any time :

Provided further that nothing in clause
(ii) of the preceding proviso shall bar the
passing of a fresh order under this section.

(4) On an order being made under
sub-section (3) the Authorised Controller
shall, to the exclusion of the management
and subject only to the Directions, if any, of
the Regional Deputy Director of Education,
the Director or the State Government,
exercise all the powers and perform all the
functions of the management, including
management of the property belonging to
or vested in the institution and in
particular, operate singly the bank account
referred to in Section 5:

Provided that nothing in this section
shall be construed to confer on the
Authorised Controller the power to transfer
any such property (except by way of letting
from month to month in the ordinary course
of management) or to create any charge
thereon (except as a condition of receipt of
any grant-in-aid of the institution from the
State Government).

(5) Any order made or direction given
under this Section shall have effect
notwithstanding
anything
inconsistent
therewith contained in any other enactment
or instrument relating to the management
and control of the institution (including any
scheme of administration) or relating to the
property belonging to or vested in the
institution."

7. In the light of the said, it is argued
that the Section 4(1), vests a power of
inspection
and
for
summoning
of
information
and
records
from
the
management with regard to the payment of
salaries or to give its Management any
direction for the observance of such
cannons of financial propriety including
any direction for retrenchment of any
teacher or employee or for prohibition of
any wasteful expenditure, as he thinks fit.

8. The Counsel for the petitioners
argues that on a plain reading of the said
provisions, the power of inspection or
calling for record, can be only for the
purpose, for which, the Act was enacted
and not for any other purpose. He argues
that in the entire report, which is the
foundation for passing the order under
Section 5, there is no allegation whatsoever
with regard to any irregular payment or
non-payment of salary to either the teachers
9 All. M/S Ramkali Balika Inter College, Sultanpur & Anr. Vs. State of U.P. & Ors.
491
or the employees, as such, the Inspector, at
the first instance, did not even have any
jurisdiction to record any finding over and
above the issues, which do not fall within
the scope and purpose of this Act.

9. The Counsel for the petitioners
further argues that the second limb of the
power under Section 4(1) with regard to the
summoning of information and records,
empowers the Inspector to give directions
for maintaining the financial propriety and
to avoid any wasteful expenditure and the
said power also can be exercised only for
the purpose of the Act. He argues that in the
garb of power under Section 4(1), the
Inspector, as acted, as if he is in the control
of the entire affairs of the Institution, which
is neither authorized under the Act nor
otherwise.

10. Learned Standing Counsel, on the
other hand, argues that the power was
rightly exercised as no reply was given to
the show cause notice and the appeal has
also been rightly rejected. It is further
argued that a revision lies against the
appellate
order
before
the
State
Government under Section 8 of the 1971
Act, as such, the petitioner should be
relegated to avail the remedy of revision.

11. In rejoinder, the Counsel for the
petitioners argues that as the order passed is
beyond the scope of powers conferred upon
the Inspector and thus without jurisdiction,
the argument of relegating to avail
alternative remedy is futile exercise. He
relies upon the judgment of the Hon'ble
Supreme Court in the case of Whirlpool
Corporation vs Registrar of Trade Marks,
Mumbai and others; (1998) 8 SCC 1.

12. Considering the submissions
made at the bar and recorded above, prima
facie, on a plain reading of the purpose of
the Act and Section 4(1), as quoted above,
it is clear that Inspector is empowered to
inspect or cause to be inspected any
institution for the 'purpose of this Act' and
similarly can call for information and
record only for 'the purpose of this Act'.
The purpose of the Act, as extracted is only
to ensure the payment of salary. The said
interpretation is fortified by the mandate of
Section 5, which empowers the Inspector to
carry out the single operation of the
account, which is opened strictly for
disbursement of the salaries to the teachers
and the employees. Sections 4 and 5, are the
powers, which are prima facie, ex-propriatory
in nature and have the effect of impinging
upon the rights of the Management to carry
out the functioning of the Institution, when
exercised for purposes other than for 'the
purpose of the Act'. It is well settled that an
ex-propriatory power has to be exercised
strictly in accordance with law and if the
same is exercised for consideration and
purpose other than for which, the power is
vested, the same would follow short of test of
Article 14 of the Constitution of India.

13. In the present case, on a plain
reading of the report, assuming the same to
be correct, for the sake of argument, does
not record any shortcoming falling within
the 'purpose of this Act'. The report, on the
face of it, is arbitrary as for example, a
conclusion has been draw that as the loss of
Rs.14/- lakhs was shown in the year 201213, a similar loss is to be presumed in the
subsequent years upto 2022-23 without
there being any finding or material to form
that view. The said view expressed in the
report is only a fiction of the mind of the
author of the report.

14. I have no hesitation in holding
that the Inspector has clearly misused his
492 INDIAN LAW REPORTS ALLAHABAD SERIES
power in making a recommendation for
appointment of Authorized Controller,
based upon the materials and purposes,
which are other than 'the payment of salary
to the teachers and the other employees'. I
am constrained to observe that the
Inspector has clearly erred in making the
recommendation de hors the provisions of
the 1971 Act and for the reasons, which are
not prescribed under Section 4(1). As the
very foundation is found to be arbitrary, the
orders passed on the said foundation also
do not have any legs to stand, as such, the
impugned order dated 13.02.2023 as well
as the subsequent appellate order dated
24.07.2023 are wholly arbitrary and illegal
and are quashed merely on the ground of
lack of jurisdiction and arbitrary exercise of
power. The consequential order dated
09.08.2023 is also quashed.

15. The writ petition stands allowed
on the aforesaid observations.
----------
(2023) 9 ILRA 492
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.08.2023

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE SYED QAMAR HASAN RIZVI, J.

Writ-C No. 10049 of 2014

Gauri Garg ...Petitioner
Versus
I.O.C. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rakesh Kumar, Sri Tarun Agrawal

Counsel for the Respondents:
Sri Prakash Padia, Sri Anand Tiwari, Sri Rajiv
Gupta, S.C.

Held:
As per the brochure issued by Indian Oil
Corporation,
the
evaluation
of
financial
soundness - particularly under the head of fixed
and movable assets - must be based on a
valuation report duly certified by a Government
Approved Valuer. In the absence of such a
report from either party, awarding marks under
that
head
was
impermissible.
The
word
"necessary" used in the brochure is to be
construed as "mandatory", and any deviation
renders the evaluation flawed. Hence, the
selection process undertaken without adhering
to this requirement was vitiated.

Case Law Discussed:

None cited directly in the judgment.

(Delivered by Hon'ble Syed Qamar Hasan
Rizvi, J.)

Order of Chief Manager (Retail Sales) dated
31.01.2014 quashed - Matter remanded for
fresh evaluation strictly in accordance with the
brochure guidelines after obtaining valuation
reports from Government Approved Valuers.

Petition partly allowed.

(Delivered by Hon'ble Syed Qamar Hasan
Rizvi, J.)

1. Heard learned counsel for the
petitioner, the learned Standing Counsel for
the State respondents and the counsel for
the Indian Oil Corporation.

2. Indian Oil Corporation issued an
advertisement in the daily newspaper,
namely Amar Ujala on 17.12.2010 and
invited applications for the dealership of
retail outlets in various places in Eastern
U.P. The location in question was on the
State Highway No. 51 between Kilometers
stone 119 and 124. The category was an
"open women" category. The petitioner and
the respondent no. 4 submitted the duly
completed application forms on 31.1.2011
at the relevant office of the IOC. The