# Rishikesh Lal Srivastava v. State of U.P. & others

- **Citation:** (2009) 3 ILRA 1045
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-10-15
- **Case number:** Civil Misc. Writ Petition No.19101 of 1999
- **Bench:** C.K. Prasad, C.J. Dilip Gupta, A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rishikesh-lal-srivastava-v-state-of-u-p-others-41463
- **Pages:** 27

## Headnote

Sri R.C. Dwivedi,
Sri N.K. Pandey,
Sri R.C. Singh
Sri Dinesh Dwivedi
Sri M.C. Chaturvedi, C.S.C.
assisted by Dr. Y.K. Srivastava,
Standing Counsel.

U.P. Intermediate Education Act-1921-
Chapter III Reg.-31- prior approval of
dismissal-whether
prior
approval
for
awarding punishment of dismissal to a
Class
4th
employee
is
must
as
contemplated in Regulation 31? held
"No" various reasons discussed?

Practice and Procedure-Law Conflicting
view of different D.B. Judgment-the
judgment reported in 2006 (3) ESC 1765,
2006(65) ALR 767 and 2000 (1) UPLBEC
707 approved hold correct law.

Held: Para -73

Our answer to the questions referred to
us are as under:
(i)
For
awarding
a
punishment
as
enumerated
under
Regulation
31
Chapter III of the U.P. Intermediate
Education
Act,
1921
to
a
Class-IV
employee of a institution recognized
under
the
aforesaid
Act,
no
prior
approval or sanction from the Inspector
of Schools is required.
(ii) The Division Bench judgments in the
case of Ali Ahmad Ansari Vs. District
Inspector
of
Schools,
Kushinagar
[2006(3) ESC 1765 (All)] and Pujari
Yadav Vs. Ram Briksh Yadav [2006(65)
ALR 767] lay down the correct law in
contradistinction to the Division Bench
judgment of Principal, Rashtriya Inter
College,
Bali
Nichlaul,
District
Maharajganj
And
Others
[(2000)
1
UPLBEC 707] and the other judgments to
that effect.
Case law discussed:
[1991 (1) UPLBEC 467], [1998(2) UPLBEC
1101], [2000(1) UPLBEC 707],[2000 (3) E.S.C.
1880 (All.), [2001(1) UPLBEC 487], [2002 (4)
ESC 201], [2006(3) ESC 1765 (All) (DB)],
(1998)2 UPLBEC 1101, [2000(3) E.S.C. 1880
(All), 1998 Lab IC 1252, (2007) 1 AWC 253,
1981 U.P.L.B.E.C. 135, 1988 U.P.L.B.E.C 123,
1998(3) A.W.C.1940(L.B.), [AIR 2002 SCC
1334], [(1951) 2 All E.R. 839], [AIR 1953 SCC
1046 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
394], [(2003) 2 SCC 577], [(2005) 5 SCC 561],
[2002 (3) ESC 108]

## Text

_Characters 0–39,942 of 87,677. This is a partial read: ask again with offset=39942 for what follows._

3 All] Rishikesh Lal Srivastava V.State of U.P. and others
1045
Labour Court (IV) Kanpur Nagar and
another.

17. In view of that, the impugned
order passed by the Tribunal cannot be
sustained. The writ petition succeeds and
is allowed. The impugned orders dated
3rd May, 1997 and 22nd August, 1997
passed by Industrial Tribunal (4) Agra
(respondent no. 1) are hereby quashed.
There shall be no order as to costs.
However dismissal of this writ petition
will not preclude the respondents to
approach the appropriate forum if any
available under law against the exparte
award.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.10.2009

BEFORE
THE HON'BLE C.K. PRASAD, C.J.
THE HON'BLE DILIP GUPTA, J.
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No.19101 of 1999
With
Civil Misc. Writ Petition No.21965 of 2003.

Rishikesh Lal Srivastava
...Petitioner
Versus
State of U.P. & others ...Opposite Parties

Counsel for the Petitioners:
Sri Harish Chandra Singh
Sri R.K. Ojha
Sri O.P. Pandey
Sri A.P. Singh
Sri S.C. Singh

Counsel for the Opposite Parties:
Sri R.C. Dwivedi,
Sri N.K. Pandey,
Sri R.C. Singh
Sri Dinesh Dwivedi
Sri M.C. Chaturvedi, C.S.C.
assisted by Dr. Y.K. Srivastava,
Standing Counsel.

U.P. Intermediate Education Act-1921-
Chapter III Reg.-31- prior approval of
dismissal-whether
prior
approval
for
awarding punishment of dismissal to a
Class
4th
employee
is
must
as
contemplated in Regulation 31? held
"No" various reasons discussed?

Practice and Procedure-Law Conflicting
view of different D.B. Judgment-the
judgment reported in 2006 (3) ESC 1765,
2006(65) ALR 767 and 2000 (1) UPLBEC
707 approved hold correct law.

Held: Para -73

Our answer to the questions referred to
us are as under:
(i)
For
awarding
a
punishment
as
enumerated
under
Regulation
31
Chapter III of the U.P. Intermediate
Education
Act,
1921
to
a
Class-IV
employee of a institution recognized
under
the
aforesaid
Act,
no
prior
approval or sanction from the Inspector
of Schools is required.
(ii) The Division Bench judgments in the
case of Ali Ahmad Ansari Vs. District
Inspector
of
Schools,
Kushinagar
[2006(3) ESC 1765 (All)] and Pujari
Yadav Vs. Ram Briksh Yadav [2006(65)
ALR 767] lay down the correct law in
contradistinction to the Division Bench
judgment of Principal, Rashtriya Inter
College,
Bali
Nichlaul,
District
Maharajganj
And
Others
[(2000)
1
UPLBEC 707] and the other judgments to
that effect.
Case law discussed:
[1991 (1) UPLBEC 467], [1998(2) UPLBEC
1101], [2000(1) UPLBEC 707],[2000 (3) E.S.C.
1880 (All.), [2001(1) UPLBEC 487], [2002 (4)
ESC 201], [2006(3) ESC 1765 (All) (DB)],
(1998)2 UPLBEC 1101, [2000(3) E.S.C. 1880
(All), 1998 Lab IC 1252, (2007) 1 AWC 253,
1981 U.P.L.B.E.C. 135, 1988 U.P.L.B.E.C 123,
1998(3) A.W.C.1940(L.B.), [AIR 2002 SCC
1334], [(1951) 2 All E.R. 839], [AIR 1953 SCC
1046 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
394], [(2003) 2 SCC 577], [(2005) 5 SCC 561],
[2002 (3) ESC 108]

(Delivered by Hon'ble C.K. Prasad, C.J.)

1. The learned Single Judge while
hearing this petition on 21.3.2007 and
finding conflicting views between the two
Division Bench judgments of this Court in
the case of 2000(1) UPLBEC 707 and
2006(3) ESC 1765 (All), referred, under
Rule 6 Chapter VIII of the Allahabad
High Court Rules, the following questions
for determination by a larger Bench:

(i) Whether prior approval for awarding
punishment of dismissal to a ClassIV employee is contemplated and
required
under
Chapter-III,
Regulation 31 of U.P. Intermediate
Education Act, 1921 ?

(ii) Which
of
the
Division
Bench
judgments, as noticed above, lays
down the correct law ?

2. In the light thereof, the case was
posted for consideration before a Division
Bench on 12.08.2009 which, finding
conflict between the judgments rendered
by the two Division Benches as referred
in the order of the learned Single Judge,
directed the matter to be heard by a larger
Bench and accordingly the matter has
come up before us for consideration.

3. The facts lie in a narrow compass.
Petitioner - Rishikesh Lal Srivastava is a
class
IV
employee
working
in
Intermediate College, Vedupar in the
district of Kushi Nagar (hereinafter
referred to as ''the College'). While he was
in service, the Principal of the College by
order dated 5th of July 1994 dismissed
him from service and aggrieved by the
same, he filed Writ Petition No. 473 of
1996 (Rishikesh Lal Srivastava vs. State
of U.P. & others) before this Court inter
alia praying for a direction to the District
Inspector of Schools to pay salary. This
Court directed the District Inspector of
Schools to examine his case and in the
light thereof, the District Inspector of
Schools passed order dated 21st of April
1998 for payment of his salary. The
Committee of Management of the College
challenged the said order of the District
Inspector of Schools by filing another writ
petition and the same was disposed off
with a direction to the District Inspector
of Schools to record reasons as to whether
the service of the said employee was
legally terminated, whether approval of
the District Inspector of Schools was
required for such termination and whether
in fact approval was granted or not. In the
light of the aforesaid direction, the
District Inspector of Schools passed order
dated 28th of July 1998 and upheld the
order of removal of the petitioner from
service. It is this order of the District
Inspector of Schools, which has been
challenged in Civil Misc. Writ Petition
No. 19101 of 1999 (Rishikesh Lal
Srivastava vs. State of U.P. & others).

4. Chandra Bali, a class IV
employee of Seth Ganga Ram Jaiswal
Inter
College,
Baraut,
Allahabad,
aggrieved by the order of termination
passed by the Principal of the College,
represented before the District Inspector
of Schools, Allahabad who disapproved
his dismissal by order dated 12th of May
2003 inter alia observing that before
terminating his service, prior approval
under Regulation 31 of Chapter III framed
under the U.P. Intermediate Education
Act, 1921 was not obtained. The Principal
of the College aggrieved by the same has
3 All] Rishikesh Lal Srivastava V.State of U.P. and others
1047
preferred Civil Misc. Writ Petition No.
21965 of 2003 (The Principal, Seth Ganga
Ram Jaisawal Inter College, Baraut,
Allahabad vs. The District Inspector of
Schools, Allahabad and others).

5. It is not in dispute that both the
Colleges are duly recognized by the U.P.
Intermediate Education Act 1921 (U.P.
Act 2 of 1921) [hereinafter referred to as
the ''Act'] and the Regulations framed
thereunder. It is also an admitted position
that both the Colleges receive grant-in-aid
from
the
State
Government
and
disbursement of salary of the employees
is governed by the U.P. High School and
Intermediate
Colleges
(Payment
of
Salaries
of
Teachers
and
other
Employees) Act, 1971 (U.P. Act No. 24
of 1971).

6. We have heard Sri Harish
Chandra Singh, learned counsel for the
petitioner in writ petition no.19101 of
1999, Sri R.C. Dwivedi, learned counsel
for respondent Nos. 3 and 4 and Sri N.K.
Pandey, learned counsel for respondent
no.5. We have also heard Sri R.K. Ojha,
learned counsel for the Principal of the
College - petitioner in writ petition
no.21965 of 2003 and Sri R.C. Singh,
learned
counsel
on
behalf
of
the
respondent no.4 - employee therein and
Sri M.C. Chaturvedi, learned Chief
Standing Counsel on behalf of the State in
both the petitions.

7. Before we enter into merit of the
case, it is apt to go into the legislative
history. The legislature enacted the U.P.
Intermediate Education Act, 1921 (U.P.
Act No 2 of 1921) for regulating and
supervising the system of the High School
and Intermediate Education.

8. Sections 16-A to 16-I were
inserted in the Act by Section 7 of
Intermediate
Education
(Amendment)
Act, 1958 (U.P. Act No. 35 of 1958).
Section 16-G of the Act as inserted by the
U.P. Act No. 35 of 1958 reads as
follows:-

"16-G. Conditions of service of
teachers -(1) Every person employed in a
recognized institution shall be governed
by such conditions of service as may be
prescribed by Regulations and any
agreement between the management and
such employee insofar as it is inconsistent
with the provisions of this Act or with the
Regulations shall be void.

(2) Without prejudice to the generality
of the powers conferred by subsection (1), the Regulations may
provide for--

(a) the
period
of
probation,
the
conditions of confirmation and the
procedure
and
conditions
for
promotion and punishment, including
suspension pending inquiry and the
emoluments
for
the
period
of
suspension
and
termination
of
service with notice;
(b) the scales of pay, and payment of
salaries ;
(c) transfer
of
service
from
one
recognized institution to another ;
(d) grant of leave and Provident Fund
and other benefits ; and
(e) maintenance of record of work and
service.

(3)(a). No Principal, Headmaster or
teacher
may
be
discharged
or
removed or dismissed from service
or reduced in rank or subjected to
any diminution in emoluments, or
1048 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
served with notice of termination of
service
except
with
the
prior
approval in writing of the Inspector.
The decision of the Inspector shall be
communicated within the period to
be prescribed by regulations.
(b). The Inspector may approve or
disapprove or reduce or enhance the
punishment or approve or disapprove
of the notice for termination of
service
proposed
by
the
management:
Provided that in the cases of
punishment, before passing orders, the
Inspector shall give an opportunity to the
Principal, the Headmaster or the teacher
to show cause within a fortnight of the
receipt of the notice why the proposed
punishment should not be inflicted.
(c) An appeal against the order of the
Inspector under clause (b), may be
made to the Regional Appellate
Committee constituted under clause
(d) within one month from the date
of such order being communicated to
the
parties
concerned
and
the
Regional Appellate Committee may,
after such enquiry as it considers
necessary, confirm the order or set
aside or modify it, and the order
passed by the Regional Appellate
Committee shall be final.
(d) The Regional Appellate Committee
in each region shall consist of--
(i) the
Regional
Deputy
Director,
Education who will be President of
the Committee,
(ii) a member of the State Maneger's
Association
nominated
by
that
Association, and
(iii) a member of the U.P. Madhyamik
Shiksha Sangh nominated by that
Sangh.
(4) An order made or decision given by
the competent authority under subsection (3) shall not be questioned in
any court and the parties concerned
shall be bound to execute the
directions contained in the order or
decision within the period that may
be specified therein.
(5) In this section and section 16-F the
powers conferred on or the duties
assigned to the Inspector and the
Regional Deputy Director, Education
shall, in the case of an institution for
girls, be respectively exercised or
discharged
by
the
Regional
Inspectress of Girl's Schools and the
Deputy
Director
of
Education
(Women).

9. Section 2 of the U.P. Act No. 7 of
1966 amended Section 16-G of the Act
and substituted Section 16 G (3) (c).
Section 2(i) of U.P. Act 7 of 1966 reads
as follows:

"2. Amendment of Section 16-G of
U.P. Act II of 1921.--In Sub-section (3)
of Section 16-G of the Intermediate
Education Act, 1921, hereinafter referred
to as the principal Act,--
(i) For clause (c) the following shall be
substituted, namely -
"(c) Any party may prefer an appeal to
the
Regional
Deputy
Director,
Education, against an order of the
Inspector under clause (b), whether
passed
before
or
after
the
commencement of the Uttar Pradesh
Intermediate
Education
(Sanshodhan)
Adhiniyam,
1966,
within one month from the date of
communication of the order to that
party, and the Regional Deputy
Director may after such further
enquiry, if any, as he considers
necessary, confirm, set aside or
modify the order, and the order
3 All] Rishikesh Lal Srivastava V.State of U.P. and others
1049
passed by the Regional Deputy
Director shall be final. In case the
order under appeal was passed by the
very person holding the office of
Regional Deputy Director while
acting as Inspector, the appeal shall
be transferred by order of the
Director to some other Regional
Deputy Director for decision, and the
provisions of this clause shall apply
in relation to decision by that other
Regional Deputy Director as if the
appeal
had
been
preferred
to
himself."

Further Section 15 of the U.P.
Secondary Education Laws (Amendment)
Act, 1975 (Act No. 26 of 1975) amended
Section 16 G of the Act. Same reads as
follows:

15. Amendment of Section 16 G.-- In
Section 16 G of the principal Act -
(i) in the marginal heading for the words
"conditions of service of teachers"
the words "conditions of service of
Head of Institutions, teachers and
other
employees"
shall
be
substituted;
(ii) in sub-section (2), in clause (a), for
the words "including suspension
pending enquiry", the words and
brackets
"(including
suspension
pending or in contemplation of
enquiry or during the pendency of
investigation, enquiry or trial in
criminal
case
for
an
offence
involving moral turpitude)" shall be
substituted;
(iii) for sub-section (5), the following
sub-sections and Explanation shall be
substituted, namely:-

"(5) No Head of Institution or teacher
shall
be
suspended
by
the
Management, unless in the opinion
of the Management-
(a) the charges against him are serious
enough to merit his dismissal,
removal or reduction in rank; or
(b) his continuance in office is likely to
hamper or prejudice the conduct of
disciplinary proceedings against him;
or
(c) any criminal case for an offence
involving moral turpitude against
him is under investigation, enquiry or
trial.

(6) Where any Head of Institution or
teacher
is
suspended
by
the
Committee of Management, it shall
be reported to the Instructor within
thirty days from the date of the
commencement of the Uttar Pradesh
Secondary
Education
Laws
(Amendment) Act, 1975, in case the
order of suspension was passed
before such commencement, and
within seven days from the date of
the order of suspension in any other
case, and the report shall contain
such particular as may be prescribed
and be accompanied by all relevant
documents.
(7) No such order of suspension shall,
unless approved in writing by the
Inspector, remain in force for more
than sixty days from the date of
commencement of the Uttar Pradesh
Secondary
Education
Laws
(Amendment) Act, 1975 or as the
case may be from the date of such
order and the order of the Inspector
shall be final and shall not be
questioned in any Court.
(8) If, at any time, the Inspector is
satisfied
that
disciplinary
proceedings against the Head of
Institution or teacher or being
1050 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
delayed, for no fault of the Head of
Institution
or
the
teacher,
the
Inspector
may
after
affording
opportunity to the Management to
make representation revoke an order
of suspension passed under this
section.
(9) All appeals pending before the
Deputy
Director
of
Education
(Women) immediately before the
commencement of this sub-section
shall be transferred to the Joint
Director of Education (Women) for
disposal:

Provided that where the Deputy
Director of Education (Women) has
already commenced the hearing of any
such appeal before the commencement of
this sub- section, the appeal shall be
disposed of by the Deputy Director of
Education (Women) herself.

Explanation. - For the purposes of
this section, the expression ''Regional
Deputy Director, Education shall, in
relation to a girls' institution mean the
Joint Director of Education (Women)."

10. In exercise of power conferred
under
Section
16-G
of
the
Act,
Regulations have been framed
and
Chapter 3 thereof pertains to Conditions
of Service. Regulation 31, which is
relevant for the purpose, reads as
follows:-

"31. Punishment to employees for
which prior sanction from Inspector or
Regional Inspectress would be essential
may be any one of the following:
(1) Discharge,
(2) Removal or Termination,
(3) Demotion in grade,
(4) Reduction in emoluments.
Principal
or
Headmaster
would
be
competent to give above punishment to
Fourth-class employees. In case of
punishment
awarded
by
competent
officer, the Fourth-class employee may
appeal to Management Committee. This
appeal must be preferred within one
month of the date of intimation of the
punishment and Management Committee
on receipt of appeal will decide the matter
within six weeks. On consideration of all
necessary records and after giving an
opportunity of hearing to the employee, if
he
wants
to
appear
before
the
Management Committee, it will give its
decision.

Fourth-class employee would also have a
right to represent against the decision of
the Management Committee on his appeal
to
the
District
Inspector
of
Schools/Regional Inspectress of Girls
Schools within one month of the date of
intimation of the decision:

11. By this juncture, it would be
appropriate to quote Regulation 100 of
Chapter 3, which reads as follows:-

"100. In respect of clerks, which includes
Librarian
also,
the
Management
Committee and in respect of Fourth
class
employees,
the
Principal/Headmaster
shall
be
the
appointing
authority.
Regarding
appointment, probation of clerk, which
includes Librarian also, and Fourth class
employees, the period for which is one
year, confirmation and other service
conditions, etc. relating to it, provisions
with necessary changes described in
Regulations 1, 4 to 8, 10, 11, 15, 24 to 26,
30, 32 to 34, 36 to 38, 40 to 43, 45 to 52,
54, 66, 67, 70 to 73 and 76 to 82 shall
apply. But in respect of Fourth class
3 All] Rishikesh Lal Srivastava V.State of U.P. and others
1051
employees Regulations 77 to 82 would
apply only when necessary directions in
this regard are issued by the State
Government. Provisions in Regulations 9,
12, 13, 14, 16 to 20, 27, 28, 54, 55 to 65
and 97 would not apply in respect of such
employees."

12. From a plain reading of the
aforesaid Regulation, it would be evident
that
various
Regulations
would
be
applicable in the case of Class IV
employees
for
the
purpose
of
confirmation and other service conditions,
but Regulation 31 has not been made
applicable in the case of Class IV
employees. It is, at this stage, to apt to
quote Regulation 37, which reads as
follows:-

"37. Soon after the report of the
proceedings and recommendation from
the inquiring authority are received, the
Committee of Management shall after
notice to employee, meet to consider the
report
of
the
proceeding
and
recommendation made and take decision
on the case. The employee shall be
allowed, if he so desires, to appear before
the Committee in person to state his case
and answer any question that may be put
to him by any member present at the
meeting. The Committee shall then send a
complete
report
together
with
all
connected papers to the Inspector or
Regional Inspectress as the case may be,
for approval of action proposed by it.

But,
regarding
fourth-class
employees, no report shall be sent to
the
Inspector
or
Inspectress
for
approval. Abovesaid all proceedings in
this regard shall be done by appointing
authority."
13. It has been contended on behalf
of Class IV employees that prior approval
from the District Inspector of Schools is
sine qua non for dismissing Class IV
employee
and
in
support
of
the
submission, reliance has been placed on
the following judgments of this Court :-
Shankar Saran Vs. Vesli Inter College,
[1991 (1) UPLBEC 467], Daya Shankar
Tewari
Vs.
Principal,
R.D.B.M.
Uchchatar
Madhyamik
Vidyalaya,
Neogaon, Mirzapur and others, [1998 (2)
UPLBEC 1101], Principal, Rastriya Inter
College,
Bali
Nichlaul,
District
Maharajganj and another Vs. District
Inspector of Schools, Mahrajganj and
others, [2000 (1) UPLBEC 707], Sita
Ram Vs. District Inspector of Schools,
Allahabad and others, [2000 (3) E.S.C.
1880 (All.)], Committee of Management,
St. Charles Inter College, Sardhana and
others Vs. District Inspector of Schools,
Meerut and others, [2001 (1) UPLBEC
487], Ram Khelawan Maurya Vs. District
Inspector of Schools, Jaunpur and others,
[2002 (4) ESC 201].

14. However, counsel representing
the Committee of Management and the
Principal, contend that prior approval of
the District Inspector of Schools is not
necessary before terminating the services
of Class IV employees and in support
thereof, reliance has been placed on the
following judgments of this Court:

Principal, Shitladin Inter College,
Bagbana, District Allahabad Vs. District
Inspector of Schools, Allahabad and
another, [1994 (3) ESC 112 (All)], Swami
Vivekanand
Uchchatar
Madhyamik
Vidyalaya, Unnao and another Vs.
District Inspector of Schools, Unnao and
another, [1998 (3) A.W.C. 1940 (L.B.)],
Ali Ahmad Ansari Vs. District Inspector
1052 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
of Schools, Kushinagar and others,
Reported in [2006 (3) ESC 1765
(All)(DB)].

15. In the case of Shankar Saran
(Supra), a Division Bench of this Court
has held that an order of dismissal passed
against a class IV employee without prior
approval of the District Inspector of
Schools, is illegal. Relevant portion of the
judgment of this Court in the aforesaid
case reads as follows:
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tkuk Hkh iw.kZr;k voS/kkfud FkkA iwjs rF;ksa ls ;g Hkh Li"V
gS fd izcU/k lfefr vkSj iz/kkukpk;Z us ?kksj :i ls vuqfpr
n`f"Vdks.k ;kph ds lEcU/k esa viuk;k vkSj ftyk fo|ky;
fujh{kd vkSj iz/kkukpk;Z us ;kph dks voS/kkfud :i ls ckgj
j[kkA"

16. A more detailed and exhaustive
consideration is found in the case of Daya
Shankar Tewari (supra), wherein the
learned
Single
Judge
concluded
as
follows:

"8. While considering the aforesaid
contention, I find that sub-section (3) of
Section
16-G
of
U.P.
Intermediate
Education Act, 1921 clearly provides for
approval of Inspector in case of discharge,
removal,
dismissal
from
service,
reduction
in
rank
diminution
in
emoluments and termination of service
but this provision only makes reference of
Principal, Headmaster and teachers and
no categorical reference of Class-IV
employee has been made therein. But subsection (1) of Section 16-G provides that
the condition of service of every person
employed in a recognized institution shall
be governed by Regulations. Therefore,
Statute permits framing of Regulations
providing conditions of service every
person employed and therefore, this
includes
Class-IV
employees
also.
Regulation 31 of Chapter-III of the
Regulations so framed under the U.P.
Intermediate
Education
Act,
1921,
provides for prior approval in case of
certain
punishments
including
termination. Regulation 100 of the said
Regulations though does not categorically
make Regulation 31 applicable in case of
Class-IV employees but it also does not
categorically exclude Regulation 31 from
its applicability to Class-IV employees.
Therefore,
the
only
provisions
of
Regulation 31 indicates its scope of
applicability. It is true that first paragraph
of Regulation 31 while providing for prior
approval in case of some punishment,
does not refer to Class-IV employees
specially but the said first paragraph
providing for prior approval refers to all
employees and there is no reason to
presume exclusion of Class-IV employees
from the applicability of the said
Regulation. The subsequent paragraphs in
Regulation 31 clearly refer to Class-IV
employees."

17. A perusal of the said decision
indicates that the Court came to the
conclusion that even though Regulation
100
does
not
categorically
apply
Regulation 31, yet it also does not exclude
the same. Further, the learned Single
Judge in paragraph 11 found that
Regulation
37,
which
provides
for
sending of a report, limits the same in
respect of Class-IV employees to be sent
to the appointing authority instead of the
Inspector and nothing more, which is
quoted below:

"11. A perusal of Regulations 36 and
37 of the said Regulations indicate that
they provide for procedure in respect of
3 All] Rishikesh Lal Srivastava V.State of U.P. and others
1053
disciplinary
proceeding.
Proviso
to
Regulation 37 only excludes Class-IV
employees
to
the
extent
the
said
Regulation 37 requires sending of the
report and the recommendation to the
District Inspector of Schools for approval
making it clear that the said entire
proceedings
relating
to
Class-IV
employees are to be performed by the
appointing authority. This has been done
as in respect of Class-IV employees the
appointing authority is the Principal
whereas in respect of teachers the
appointing authority is committee of
management and Regulation 37 provides
for sending of report and recommendation
of the Enquiry Officer to committee of
management which was to consider the
same and take a decision and then to send
the entire record to the Inspector for his
approval.
Therefore,
proviso
to
Regulation 37 was required making it
clear that for Class-IV employees ending
of papers to the Inspector was to be made
by the Principal, being the appointing
authority and in this case papers were not
to
be
sent
by
the
committee
of
management which is not the appointing
authority."

18. For ready reference, at this
juncture, we may record that even though
there was a decision to the contrary in the
case of Principal, Shitladin Inter College
(supra), the same appears to have not been
noticed in the judgment of Daya Shankar
Tewari (supra), which was rendered at
later point of time.

19. The decision in the case of Daya
Shankar Tewari (supra) came to be
considered by a Division Bench in the
case of Principal, Rastriya Inter College,
(supra) and the Division Bench affirmed
the decision of Daya Shankar Tewari's
(supra) case, with an approval in
paragraph 4 and 5, which is as follows:-

"4. A learned Single Judge of this
Court (Hon'ble Aloke Chakrabarti, J.) in
Daya Shankar Tewari Vs. Principal and
others, (1998) 2 UPLBEC 1101, has held
that such prior approval is necessary. The
learned Single Judge has gone into the
matter in great detail and has examined
the relevant provisions in the U.P.
Intermediate Education Act as well as
Regulations
31
and
100
of
the
Regulations made under the aforesaid
Act.
5. We are in respectful agreement with
the aforesaid decision of the learned
Single Judge in Daya Shankar Tewari's
case. The decision of the Full Bench of
this Court in Magadh Ram Yadav v. Dy.
Director of Education and others, 1979
ALJ 1351, which is relied upon by the
learned Counsel for the appellant is in our
opinion not applicable as it has not
considered Regulations 31 and 100 of the
U.P. Intermediate Education Regulation."

20. A learned Single Judge of this
Court followed the case of Daya Shankar
Tewari (supra) in the decision of Sita
Ram Vs. District Inspector of Schools,
Allahabad and others, [2000 (3) E.S.C.
1880 (All.)] and held as follows :

"6. Now there is no escape from the in
holding that prior approval of the DIOS is
essential in awarding punishment of
termination, dismissal etc. of Class-IV
employee. The contention of the learned
Counsel for the respondent is that
approval was not required because
petitioner was a Class-IV employee, is not
acceptable. It is not disputed by the
respondents that no approval of the DIOS
prior to his termination by the Principal
1054 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
was obtained. The petition, therefore,
deserves to be allowed and the impugned
order of termination be quashed on this
ground alone. Since the impugned order is
liable to be quashed on the ground that no
approval of the DIOS was obtained in the
case of the petitioner, prior to terminating
him from service, the other grounds
sought to challenge the propriety of the
impugned order is not considered."

21. It may again be pointed out that
none of the aforesaid decisions took
notice of the decision in the case of
Principal,
Shitladin
Inter
College,
(supra). The same position was reiterated
in
the
case
of
Committee
of
Management, St. Charles Inter College,
Sardhana (supra) by a learned Single
Judge of this Court, as contained in
paragraph 12, which reads as follows:-

"12. The next question is whether
the management could dismiss a class IV
employee
without
obtaining
prior
approval of the DIOS as provided in
Chapter III, Regulation 31. Counsel for
the petitioners argued that no prior
approval of DIOS was required for
dismissing a class IV employee. On the
other hand Counsel for the respondent
No. 2 urged that prior approval of DIOS
was necessary. In the alternative the
learned Counsel urged that in cases where
prior approval of DIOS has not been
obtained the class IV employee could
prefer appeal before the management and
representation before the DIOS. The
argument is supported by a Single Judge
decision of this Court in Daya Shanker
Tiwari v. Principal, R.D.B.M. Uchchatar
Madhyamik
Vidyalaya,
Neogaon,
Mirzapur and others, 1998 (1) ESC 403
(All). The learned Single Judge held that
the provisions of Regulation 31 read with
Section 16-G (1) were applicable before
dismissing a class IV employee. And
prior approval of Inspector or Regional
Inspectress was required to be obtained by
the management. This decision was
approved by a Division Bench of this
Court
in
Principal,
Rastriya
Inter
College,
Bali
Nichlaul,
District
Maharajganj and others v. District
Inspector of Schools, Maharajganj and
others, (2000) 1 UPLBEC 707. Therefore,
since prior approval of DIOS was not
obtained
by
the
petitioners
before
dismissing the respondent No. 2, the
DIOS rightly set aside the dismissal
order."

Another learned Single Judge in the
case of Ram Khelawan Maurya Vs.
District Inspector of Schools (supra)
arrived at the same conclusion by holding
as follows:-

"7. It is settled law that the
punishment can be awarded after prior
approval of the District Inspector of
Schools or the Regional Inspectress of
Girls School. Since approval of the
District Inspector of Schools was not been
obtained, the decision of the Committee
of Management is bad in law.
It
is
submitted
on
behalf
of
respondents that Regulation 31 of the U.P.
Intermediate Education Regulations while
providing for prior approval in case of
Class IV employees the said paragraph
refers to all employees and there is no
reason to exclude Class IV employees
from the applicability of the said
regulation. Subsequent paragraph of the
Regulation 31 also refers to Class IV
employee.
This Court in the case of Principal,
Rashtriya Inter College (supra) has held
that prior approval in case of dismissal of
3 All] Rishikesh Lal Srivastava V.State of U.P. and others
1055
non-teaching staff is necessary and if such
prior approval is not taken before
termination
of
the
services,
the
termination is illegal.
The learned Single Judge in Daya
Shankar
Tiwari
v.
Principal,
Smt.
Ramwati Devi Beni Madho Uchchatar
Madhyamik Vidyalaya, Mirzapur and
others, 1998 Lab IC 1252, has held that
the provision of Regulation 31 read with
Section 16-G (1) of the Act make it clear
that in case of Class IV employees prior
approval
of
Inspector
or
Regional
Inspectress is necessary. This case has
been approved by the Division Bench of
this Court."

22. There is yet another decision of
a learned Single Judge to the same effect
in the case of Principal, P.N.V. Inter
College, Chilli Hamirpur & another Vs.
D.I.O.S. Hamirpur & another, (2007) 1
AWC 253.

Thus, it can be seen that the decision
in the case of Shankar Saran Vs. Vesli
Inter
College
(supra),
which
was
delivered on 3rd March, 1991, there was
no detailed discussion on the various
provisions of the Act and a conclusion
was drawn on the strength of Regulation
31 only to the effect that prior approval
was required. The latter decisions from
Daya Shankar Tewari's case (supra)
onwards, upon a discussion of the
relevant
provisions,
came
to
the
conclusion that prior approval was
required, but as pointed out hereinabove,
none of the said decisions took notice of
the decision in the case of Principal,
Shitladin Inter College, (supra).

23. The decisions, which hold that
no such prior approval is required begin
with the case of Principal, Shitladin Inter
College (supra), wherein a learned Single
Judge drew the following conclusion:

"9. Regulations 35 to 44-A provide the
manner in which enquiry is to be
conducted. In case the enquiry is not
conducted
against
the
delinquent
employee,
any
order
awarding
punishment will be illegal. In case all the
procedures were followed, the order of
punishment imposed by the authority
concerned cannot be set aside. The
District Inspector of Schools has not
recorded any finding that the enquiry
officer or the Principal did not follow the
procedure prescribed for holding enquiry
and in giving opportunity of hearing
before awarding punishment.

The disciplinary proceedings against
a Class IV employee of the institution is
in the nature of domestic enquiry. If the
disciplinary authority, after holding the
enquiry, in a fair manner, comes to the
conclusion on the basis of appreciation of
evidence on record that the charges
against the delinquent employee is
proved, the Committee of Management on
appeal being filed can re-appraise the
evidence and can come to different
conclusion. The aggrieved employee is
given right of making representation
against the decision of the Committee of
Management given in appeal. The power
given to the District Inspector of Schools
is in the nature of supervisory jurisdiction.
He can set aside the findings recorded by
the
disciplinary
authority
of
the
Committee of Management when it is
either perverse or based on no material
evidence or certain material evidence has
been ignored. He has further to examine
whether procedure prescribed for holding
the enquiry was followed and it was fair
and impartial enquiry. He has, however,
1056 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
no jurisdiction to re-appraise the evidence
on record.

Learned counsel for the respondent
urged that the order of dismissal from
service was otherwise illegal as before
passing the order of dismissal no prior
approval of the District Inspector of
Schools was taken as provided under
Regulation 31 of Chapter III of the
Regulations
framed
under
the
Act
Regulation 31 of Chapter III of the
Regulation framed under the Act had been
amended by Notification No. 7/562/5-8
(Board, September 1974) Allahabad dated
10th March, 1975 issued in pursuance to
the approval of the State Government
contained in G.O. No. 789(1)-15/(7) 75
dated March 1, 1975 and by the
amendment so brought specific provisions
have
been
made
pertaining
to
appointment, disciplinary proceedings,
appeal etc. in so far as Class IV
employees are concerned. Amendment to
Regulation 31 lays down power to
appoint, punish and further provides for
the appellate authority to hear appeals
against
punishment
imposed
and
procedure for disposal of appeal and
against
the
said
appeal
a
further
representation has been provided to the
District Inspector of Schools, Regional
Inspectress of Girls Schools concerned.
The
said
Regulation
is
extracted
hereunder.

"31& deZpkfj;ksa dks izk;% n.M] ftlds fy, fujh{kd vFkok
e.Myh; fujhf{kdk dh iwoZ Lohd`fr vko';d gksxh]
fuEufyf[kr esa ls fdlh ,d :i ls gks ldrh gS%&
1⁄4d1⁄2 i`FkDdj.k vFkok izeqfDrA
1⁄4[k1⁄2 Js.kh esa voufrA
1⁄4x1⁄2 ifjfLFkfr;ksa esa dehA
prqFkZ Js.kh deZpkfj;ksa dks mijksDr dksbZ n.M nsus gsrq
iz/kkukpk;Z vFkok iz/kkuk/;fidk l{ke gksxkA l{ke vf/kdkjh
}kjk n.M fn;s tkus dh n'kk esa prqFkZ Js.kh deZpkfj;ksa }kjk
izca/k lfefr dks vihy dh tk ldsxhA ;g vihy n.M
lwfpr fd;s tkus dh frfFk ls ,d ekg ds vUnj izLrqr gks
tkuh pkfg, vkSj ml ij izca/k&lfefr }kjk fu.kZ; dj
vihy dh izkfIr frfFk ls vf/kdre N% ekg ds Hkhrj ns fn;k
tk;sxkA leLr vko';d vfHkys[kksa ij fopkj djus ,oa
deZpkjh dks] ;fn og izca/k lfefr ds le{k Lo;a mifLFkr
gksuk pkgs] lquokbZ ds i'pkr izca/k&lfefr vihy ij fu.kZ;
nsxhA
prqFkZ Js.kh deZpkjh dks ;g Hkh vf/kdkj gksxk fd
mldh vihy ij fd;s x;s izca/k lfefr ds fu.kZ; ds fo:)
og ftyk fon~;ky; fujh{kd e.Myh; ckfydk fon~;ky;
fujhf{kdk dks] fu.kZ; lwfpr fd;s tkus dh frfFk ls ,d ekg
ds vUnj lE;kosnu dj ldsxkA
fdUrq izfrcU/k ;g gksxk fd ;fn izca/k lfefr mi;qZDr
fu/kkZfjr N% lIrkg dh vof/k ds Hkhrj viuk fu.kZ; mijksDr
vihy ij u ns rks lEcaf/kr deZpkjh viuk vH;kosnu lh/ks
ftyk fon~;ky; fujh{kd e.Myh; ckfydk fon~;ky; fujhf{kdk
dks mijksDr N% lIrkg dh vof/k chr tkus ij ns ldrk gSA
ftyk fon~;ky; fujh{kd e.Myh; ckfydk fon~;ky; fujhf{kdk
}kjk mijksDr vH;kosnu ij vH;kosnu dh izkfIr dh frfFk ls
vf/kdre rhu ekg ds Hkhrj fu.kZ; ns fn;k tk;sxk vkSj ;g
fu.kZ; vfUre gksxkA
vH;kosnu ds izLrqrhdj.k] fopkj ,oa fu.kZ; ds laca/k esa
vko';d ifjorZu ds lkFk bl v/;k; ds fofu;e 86 ls
92 ykxw gksxsA"

24. Regulation 100 of Chapter III
inserted
by
the
said
Notification
Regulations 1, 4 to 8, 10, 11, 15, 24 to 26,
30, 32 to 34, 36 to 38, 40 to 43, 45 to 52,
66, 67, 70 to 73 and 76 to 82 with
necessary modifications have been made
applicable in the case of Class IV
employee. Unamended Regulation 31 has
not been applicable.

25. From a reading of amended
Regulation 31 it is clear that as far as
employees
who
are
employed
by
Committee of Management a different
procedure has been prescribed but as
regards Class IV employees, different
procedure has been prescribed before
passing an order of punishment. In case of
an employee other than Class IV
employee it is Committee of Management
who has to impose punishment and such
punishment cannot be made without prior
3 All] Rishikesh Lal Srivastava V.State of U.P. and others
1057
approval of the District Inspector of
Schools/Regional Inspectress of Girls
Schools concerned. But in a case of Class
IV
employee
the
imposition
of
punishment is made by the Principal or
the
Headmaster
of
the
institution
concerned and against the said order an
appeal
is
maintainable
before
the
Committee
of
Management
of
the
institution within a prescribed time and
after the dismissal of appeal by the
management a right to make further
representation has been given within a
prescribed time. The procedure for
disposal of representation by the District
Inspector of Schools is to be made in
accordance with Regulations 86 and 98 of
the Regulations framed under the Act.

26. This provision clearly makes
distinction in the manner of imposition of
punishment.
In
case
of
Class
IV
employees no prior approval of the
District Inspector of Schools is required.
In case, the intention of the Legislature
had been to obtain prior approval of the
District Inspector of Schools before
imposition of penalty, the right of appeal
could have not been given to the
Management and thereafter a further right
to make representation to the District
Inspector of Schools.

27. Learned counsel for respondent
No. 2 has placed reliance upon the
Committee of Management, Janta Inter
College, Karni, Faizabad vs. District
Inspector of Schools, Faizabad and
others, 1981 U.P.L.B.E.C. 135, wherein it
was held that prior approval of the
District Inspector of Schools is to be
obtained to the decision of the Committee
of Management to award punishment. It
was a case of Class III employee and is
not applicable to the facts of the present
case.
In Brij Raj Singh vs. District
Inspector of Schools and other, 1988
UPLBEC 123, it was held that if the order
of termination is passed in violation of
Regulations 35 and 36 in terminating the
services of a Class IV employee the same
cannot be upheld.