# Smt. Tejendra Chawla v. State of U.P. and others

- **Citation:** (2006) 3 ILRA 1125
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-07-28
- **Case number:** Civil Misc. Writ Petition No.34681 of 2006
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-tejendra-chawla-v-state-of-u-p-and-others-40753
- **Pages:** 10

## Headnote

Sri Vinod Kumar Rai
Sri R.P. Dubey
Sri Janardan Prasad Pandey
Sri A.B. Saran
S.C.

U.P.
Secondary
Education
Service
Commission (Procedure for Approval of
Punishment)
Regulation
1985Regulation-21-Power
of
Board-can
approve,
disapprove
or
modify
the
proposal of punishment given by the
management-but can not debar from
exercising the power as principal-Order
ceasing the financial and administrative
power of the Head of Institution-Heldwithout jurisdiction.

Held: Para 14, 20,21

In view of the aforesaid decisions, it is
clear that the Board has a power to
approve or disapprove the punishment
proposed
by
the
Committee
of
Management including the power to
modify the proposed action to be taken
by the Committee of Management. The
Board has the power to modify the order
of proposed punishment.

The petitioner, being the head of the
institution is entitled to perform the
1126 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
duties and functions attached to the
office of the Principal by virtue of
Regulations 9, 10, 11 and 12 of Chapter I
of the Regulations framed under the
Intermediate Education Act. Regulation
9 provides that the Principal would
perform all the duties as appertained to
his post and would be responsible to the
Committee of Management for the due
discharge of such duties. Various powers
to be exercised by the Principal is
enumerated in Regulation 10 whereas
Regulation 12 provides that the head of
the institution would be a channel of
correspondence between the staff of the
institution
and
the
Management.
Consequently, if the petitioner is allowed
to work as a Principal, he must be
allowed to discharge all the functions
and duties attached to the office and
cannot be divested of its financial and its
administrative powers. Such an order
would not only be without jurisdiction,
but in my opinion, would also be
opposed to public policy, especially when
the salary is paid to the petitioner from
the State exchequer without taking work
from him.

There is also another aspect of the
matter. Divestation of financial and
administrative powers is normally used
as
a
temporary
measure.
Such
a
direction could be issued where a person
has been suspended and was not entitled
to perform his duties or exercise the
powers attached to the office. Such a
direction could also be issued so long as
he holds the office until legally dismissed
or discharged, but once the order of
suspension is lifted, then he has a right
to perform the duties and functions
attached to that office. Simultaneously,
once an order of proposed termination or
dismissal is removed and the petitioner
is allowed to function on the post of
Principal he should consequently be
allowed to discharge his duties attached
to that post and could not be divested of
the financial and administrative powers.
Similar view has been expressed by this
Hon'ble
Court
in
Committee
of
Management of Vasu Dev Mishra Higher
Secondary School, Kanpur Nagar and
another
vs.
Deputy
Director
of
Educations, Kanpur Region, Kanpur and
others, 1992(2) UPLBEC 1325. I am in
complete agreement with the aforesaid
judgment.

## Text

3 All] Smt. Tejendra Chawla V. State of U.P. and others
1125
finding of the learned Single Judge that
the Primary Section of the Institution is
not covered by the Act cannot be
sustained."

9.

Learned
counsel
for
the
contesting respondent has also very fairly
drawn my attention to Appendix 'A' of
Chapter-II, which provides qualifications
for teachers of junior classes (6 to 8) and
teachers of primary sections (Classes 1 to
5). The prescription of the qualification in
Appendix 'A' clearly indicates that the
teachers of the primary sections are not
out
of
the
purview
of
the
U.P.
Intermediate Education Act, 1921. The
Division Bench has already held that
provisions of U.P. Intermediate Act, 1921
are applicable to the teachers of primary
section. Moreso, in the present case the
transfer order was passed by the Regional
Inspectress of Girls School specifically
referring Regulations 55 to 62, thus, the
transfer order itself was under the power
conferred under Regulations 55 to 62. In
this writ petition there cannot be any
challenge to the transfer order which was
passed 23 years ago nor any such
challenge has been made. Regulation 59A
is squarely applicable as it was existing at
the relevant time, hence the petitioner's
services prior to transfer has to be added
for the purposes of seniority.

10. In view of the foregoing
discussions, the order of Joint Director of
Education, impugned in the writ petition,
cannot be sustained and is hereby
quashed. It is held that petitioner is senior
to respondent No. 6.

11. The writ petition is allowed
accordingly.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.07.2006

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No.34681 of 2006

Roop Chand Chauhan

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

Counsel for the Petitioner:
Sri Ashok Khare
Sri Sunil Kumar Srivastava

Counsel for the Respondents:
Sri Vinod Kumar Rai
Sri R.P. Dubey
Sri Janardan Prasad Pandey
Sri A.B. Saran
S.C.

U.P.
Secondary
Education
Service
Commission (Procedure for Approval of
Punishment)
Regulation
1985Regulation-21-Power
of
Board-can
approve,
disapprove
or
modify
the
proposal of punishment given by the
management-but can not debar from
exercising the power as principal-Order
ceasing the financial and administrative
power of the Head of Institution-Heldwithout jurisdiction.

Held: Para 14, 20,21

In view of the aforesaid decisions, it is
clear that the Board has a power to
approve or disapprove the punishment
proposed
by
the
Committee
of
Management including the power to
modify the proposed action to be taken
by the Committee of Management. The
Board has the power to modify the order
of proposed punishment.

The petitioner, being the head of the
institution is entitled to perform the
1126 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
duties and functions attached to the
office of the Principal by virtue of
Regulations 9, 10, 11 and 12 of Chapter I
of the Regulations framed under the
Intermediate Education Act. Regulation
9 provides that the Principal would
perform all the duties as appertained to
his post and would be responsible to the
Committee of Management for the due
discharge of such duties. Various powers
to be exercised by the Principal is
enumerated in Regulation 10 whereas
Regulation 12 provides that the head of
the institution would be a channel of
correspondence between the staff of the
institution
and
the
Management.
Consequently, if the petitioner is allowed
to work as a Principal, he must be
allowed to discharge all the functions
and duties attached to the office and
cannot be divested of its financial and its
administrative powers. Such an order
would not only be without jurisdiction,
but in my opinion, would also be
opposed to public policy, especially when
the salary is paid to the petitioner from
the State exchequer without taking work
from him.

There is also another aspect of the
matter. Divestation of financial and
administrative powers is normally used
as
a
temporary
measure.
Such
a
direction could be issued where a person
has been suspended and was not entitled
to perform his duties or exercise the
powers attached to the office. Such a
direction could also be issued so long as
he holds the office until legally dismissed
or discharged, but once the order of
suspension is lifted, then he has a right
to perform the duties and functions
attached to that office. Simultaneously,
once an order of proposed termination or
dismissal is removed and the petitioner
is allowed to function on the post of
Principal he should consequently be
allowed to discharge his duties attached
to that post and could not be divested of
the financial and administrative powers.
Similar view has been expressed by this
Hon'ble
Court
in
Committee
of
Management of Vasu Dev Mishra Higher
Secondary School, Kanpur Nagar and
another
vs.
Deputy
Director
of
Educations, Kanpur Region, Kanpur and
others, 1992(2) UPLBEC 1325. I am in
complete agreement with the aforesaid
judgment.

(Delivered by Hon'ble Tarun Agarwala, J.)

1. The petitioner was selected in the
year 1999 for the post of Principal by the
U.P.
Secondary
Education
Service
Selection
Board
and,
in
pursuance
thereof, the petitioner joined the post of
Principal in the institution concerned. On
30.5.2002, a charge-sheet was issued to
the petitioner and was simultaneously
placed under suspension. Subsequently by
an order dated 22.7.2002, the District
Inspector
of
Schools
revoked
the
suspension
order
and
allowed
the
petitioner to discharge the duties of the
post of Principal. In November 2002, the
petitioner
was
placed
again
under
suspension and a second charge-sheet was
issued. It transpires that on the basis of an
inquiry
report,
the
Committee
of
Management passed a resolution dated
25.1.2003 proposing to dismiss the
petitioner from the service. By another
order
dated
25.1.2003,
the
District
Inspector
of
Schools
revoked
the
suspension order against which the
Committee of Management filed Writ
Petition No.7356 of 2003 which was
allowed by judgment dated 19.2.2003
holding that the District Inspector of
Schools had no jurisdiction to pass an
order and remanded the matter back for
reconsideration. The Court however,
restrained the petitioner from functioning
as the Principal till the disposal of the
matter. The District Inspector of Schools
by an order dated 28.3.2003 disapproved
the order of suspension, against which the
Committee of Management filed Writ
3 All] Roop Chand Chauhan V. State of U.P. and others
1127
Petition No.16307 of 2003. This writ
petition was dismissed by a judgment
dated 17.4.2003. A Special Appeal
No.339 of 2003 was filed which was
disposed of directing the Selection Board
to take a decision in the matter of the
proposed punishment. The Court further
directed that the order of suspension
would remain in operation for a period of
two months. Since the Board did not take
action within six weeks, the District
Inspector of Schools by an order dated
9.7.2003 directed the reinstatement of the
petitioner. Subsequently, the District
Inspector of Schools by an order dated
7.10.2003 revoked his earlier order dated
9.7.2003. The petitioner filed writ petition
No.47583 of 2003 in which an interim
order dated 28.10.2003 was issued staying
the operation of the order dated 7.10.2003
passed by the District Inspector of
Schools. Since November 2003, the
petitioner is consequently working as the
Principal and is discharging his duties. It
has also come on record that the petitioner
would retire on 30.6.2007.

2. The Selection Board by an order
dated 18.5.2006 found that the charges
leveled against the petitioner stood proved
but in its wisdom did not approve the
recommendation of the Committee of
Management for the dismissal of the
petitioner and, directed on humanitarian
ground, to permit the petitioner to
function as the Principal but divested the
financial and administrative powers. The
said
order
of
the
Board
was
communicated to the petitioner vide letter
dated 26.5.2005. Aggrieved by the order
of the Board, the petitioner has filed the
present writ petition.

3. Heard Sri Ashok Khare, the
learned senior counsel assisted by Sri
Sunil Kumar Srivastava, Advocate, for
the petitioner, the learned Standing
Counsel for the respondent Nos.1, 3 and
4, Sri R. P. Dubey for respondent No.2
and Sri A.B.Saran, senior counsel for
respondent No.5.

4. Since disputed questions of fact
are not involved in the present writ
petition and the only controversy which is
required to be addressed is whether the
Selection Board could have passed such
an order of punishment, the writ petition
is being disposed of at the admission
stage itself without calling for a counter
affidavit.

5. The learned counsel for the
petitioner submitted that the inquiry
report was vague and did not consider the
material facts and evidence nor was the
objection of the petitioner considered by
the Selection Board. The learned counsel
further submitted that the order of
punishment passed by the Selection Board
was in violation of Section 21 of the Act
of 1981 read with Regulations 35, 36, and
37 of Chapter III of the Regulations
framed under the Intermediate Education
Act. The learned counsel submitted that
the such an order of divesting the
petitioner
from
exercising
the
administrative and financial powers of the
post of Principal could not be passed by
the Selection Board.

6. Sri R.P. Dubey, the learned
counsel for the Selection Board submitted
that the Board has ample power to pass
such an order and in support of his
submissions has relied upon a decision of
the Court in Committee of Management
vs. U.P. Secondary Education Services
Commission, Allahabad 2004 AWC(1)
181. Sri A.B. Saran, the learned senior
1128 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
counsel, appearing for the Committee of
Management submitted, that the Selection
Board had ample power to pass any order
under Regulation 8 of the Uttar Pradesh
Secondary
Education
Services
Commission (Procedure for Approval of
Punishment) Regulations, 1985 and that
the
order
had
been
passed
on
humanitarian
ground
taking
into
consideration that the petitioner would
retire on 30.6.2007. Consequently, there
was no infirmity in the order passed by
the Selection Board.

7. Before proceeding any further, it
would be appropriate to refer to a few
provisions.

Section 21 of the Uttar Pradesh
Secondary Education (Services Selection
Board)Act, 1982 provides as under:

"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 temporarily or permanently) and
any such prior approval shall be void.

Regulations 31 and 33 of the Chapter
III of the Regulations framed under the
Intermediate Education Act states as
under:-

"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 employments.
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 record 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;
Provided
that
if
Management
Committee does not give its decision on
above appeal within stipulated period of
six weeks, the concerned employee after
the expiry of above six weeks may
represent directly to District Inspector of
School/Regional Inspectress of Girls
School.
District Inspector of School/Regional
Inspectress of Girls Schools would give
its decision within three months from the
date of receipt of the representation and
his decision would be final.
Regulations 86 to 98 of this Chapter
would
apply
to
presentation,
consideration
and
decision
of
the
representation with necessary changes.

33. (1) An employee may also be
punished by stoppage of increment in a
3 All] Roop Chand Chauhan V. State of U.P. and others
1129
time-scale for any period with temporary
or permanent effect.

(2) An appeal against such an order
shall
lie
to
the
Inspector/Regional
Inspectress within thirty days of the
communication of this order to the
employee and his/her decision shall be
final."

8. From a perusal of the aforesaid
provisions, it is clear that the Committee
of Management has the power to dismiss,
remove, reduce the emoluments, withhold
increments or stop the increments or
reduce the rank of a teacher or of the
principal, as the case may be. Apart from
the
aforesaid,
the
Committee
of
Management cannot pass any other order
of punishment. The punishment indicated
in Section 21 of the Act is exhaustive in
nature. But the order of punishment is
required to be approved or disapproved by
the Selection Board. The Selection Board
is required to apply its mind to the facts
and circumstances of the case and the
material brought on record in order to
determine as to whether the Committee of
Management had acted in consonance
with the principles of natural justice and
whether
the
punishment
awarded
commensurate with the gravity of the
charges. Section 21 of the Act was
designed to control the arbitrary exercise
of powers vested in the Committee of
Management. Consequently, the Selection
Board was required to look into the matter
including the quantum of punishment.

9. The power of the Selection Board
is given under Regulation 8 of the
Regulation of 1985 which states as
under:-

"8. Disposal by Commission.- The
Commission shall after due consideration
approve or disapprove the punishment
proposed
or
may
issue
any
other
directions as may be deemed fit in the
case."

10. From the aforesaid, it is clear
that the Selection Board has the power to
approve or disapprove the punishment
proposed
by
the
Committee
of
Management, and could also issue any
other directions.
In Committee of Management of
M. L. M. L. Inter College, Faizabad Vs.
District Inspector of Schools, Faizabad
and another, 1980 LIC 595, a Division
Bench of this Court held as under:-
"When power is given to the D.I.O.S.
to approve or disapprove of an order of
punishment or suspension, that authority
is bound to sit in judgment over the
decision of the Management. Jurisdiction
of these authorities is not akin to the
jurisdiction of a Civil Court. Although the
proposal sent to the D.I.O.S. by the
Management is for approval and the word
'appeal' is not mentioned in the statutory
provisions, it is obvious that the D.I.O.S.,
as the authority required to take a decision
on the proposal, can review the findings
and also the validity of the proceedings.

11. In Committee of Management
Bishambhar
Sharan
Vaidic
Inter
College, Jaspur, Nainital and another
vs. U.P. Secondary Education Service
Commission
and
others
1995
Supp.(3)SCC 244, the Supreme Court
held-

"According to us, in view of the
provisions of the said Section 21, the
Commission while deciding whether or
not to grant approval for the removal of a
1130 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
teacher, has necessarily to go into the
merits of the case and apply its mind
independently to the question whether the
evidence on record justified the removal.
It
must
be
remembered
that
the
Commission appointed under the Act is a
high-powered 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 scrutinises
the material and applies its mind carefully
to the facts on record. Hence, if the
Commission goes through the entire
record and the merit of the action taken,
its action cannot be faulted."

12. In Pradumna Kumar Jain vs.
U.P.
Secondary
Education
Service
Commission, Allahabad and others,
1997(3)AWC 1573, this Court held :-

"that the power to approve or
disapprove includes the power to modify,
which power is implicit in it and is an
established principle by now. It is an
established principle that when an order is
open to a superior authority to decide on
the merits of it for the purpose of either
affirming or reversing the same, the same
is also akin to approving or disapproving,
inasmuch as though two different terms
have been used, they mean the identical
situation. To approve or to disapprove has
the same meaning for all practical
purposes to affirm or reverse. In respect
of the appellate jurisdiction, it is the
consistent view of the High Courts and
the Apex Court that the power to affirm or
reverse includes the power to modify.
Unless such power or jurisdiction is
barred by express provision, the same is
always explicit in its. But in the present
case, the including of the phrase "or may
issue any other directions deemed fit in
the case" indicates the very existence of
the power to modify. Such expression
cannot be interpreted to narrow down the
meaning so as to make the provision
ineffective.

It further held-

"Then again unless an act is
expressly prohibited by law, the Court is
not supposed to presume as a matter of
general principle that certain act is
prohibited
beyond
what
has
been
expressly conferred to the extent it is
acceptable on the principle as enunciated
in the foregoing para, namely, to the
extent that the power to approve or
disapprove a particular order includes the
power to modify such order as well
particularly when the structure of the
Statute
conceives
of
a
liberal
interpretation furthering the object and
purpose
for
which
the
same
is
incorporated. The purpose and object of
incorporation
of
the
approval
and
disapproval has been ensured to safeguard
the interest of the delinquent from the
arbitrary and highhanded actions on the
part of the Committee of Management."

In Raja Ram Shukla vs. U.P.
Secondary
Education
Services
Commission, Allahabad and others,
1998(1) AWC 513, the Court held-

"Thus, Regulation 8 gives three
alternatives to the Commission; firstly, it
may accept as such the recommendation
of
the
Committee
of
Management,
secondly,
it
may
reject
the
recommendation of the Committee of
Management and thirdly, it may issue any
other direction as may be considered fit in
3 All] Roop Chand Chauhan V. State of U.P. and others
1131
the facts and circumstances, meaning
thereby, the recommendation made by the
Committee of Management may be
modified or altered. The power to affirm
or to reverse a particular recommendation
implies that the authority has also the
power to modify."

13. In Committee of Management
of
Madan
Mohan
Malviya
Inter
College, Karchhana, Allahabad and
another vs. U.P. Secondary Education
Services Commission, Allahabad and
others 2004(1)AWC 181, the Court held
that the Board can pass an order imposing
a lesser punishment than proposed by the
Committee of Management.

14. In view of the aforesaid
decisions, it is clear that the Board has a
power to approve or disapprove the
punishment proposed by the Committee
of Management including the power to
modify the proposed action to be taken by
the Committee of Management. The
Board has the power to modify the order
of proposed punishment.

15. The question still remains to be
answered, namely, whether the Selection
Board could issue a direction divesting
the
petitioner
from
exercising
the
financial and administrative powers?

16. What does the words "any other
directions" connote under Regulation 8 of
the Regulations of 1985. Does it mean
that the Board can pass such orders of
punishment which are not contemplated
under Section 21 of the Act or can the
Board
only
pass
such
orders
of
punishment which are contemplated under
the Act. Take another aspect of the
matter.
Can
the
Committee
of
Management pass an order of punishment
divesting the Principal from exercising its
financial and administrative powers? Is
such a punishment contemplated under
Section 21 of the Act? If the Committee
of Management could not pass such an
order, could the Selection Board pass
such an order?

17. The Act expressly confers
various types of punishment that can be
awarded to a teacher including the
Principal. The punishment indicated in
Section 21 of the Act is exhaustive in
nature and therefore, the Committee of
Management can propose such orders of
punishment that is contemplated under
Section 21 of the Act. The Selection
Board, consequently, can approve or
disapprove the proposed punishment, but
if the Selection Board proposes to modify
the punishment, it can do so, but the
modified punishment must be one as
contemplated in Section 21 of the Act.
The Selection Board could not pass an
order of punishment which is not
contemplated under Section 21 of the Act.

18. In the opinion of the Court, the
direction given by the Selection Board
divesting the petitioner from exercising its
financial or administrative powers is
without jurisdiction. The Selection Board
can
only
pass
such
an
order
of
punishment which is contemplated under
Section 21 of 1982 Act. The punishment
of divesting the Principal of his financial
and administrative powers is not one of
the
punishment
contemplated
under
Section 21 of the Act. Consequently, the
Board had no jurisdiction to pass such an
order.

19. There is another aspect of the
matter. Regulations 9, 10, 11 and 12 of
Chapter-I of the Regulations framed
1132 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
under the Intermediate Education Act
defines the powers, duties and functions
of a Principal. The said Regulations are
quoted herein under:-

"9. Powers, duties and functions of
the Principal or Headmaster.- The
Headmaster or the Principal shall perform
in addition to all the duties of a
Headmaster or Principal all such duties as
appertain to his post, and shall be
responsible
to
the
Committee
of
Management through the Manager of the
institution for the due discharge of such
duties, for which he shall have the
necessary powers.

10. The Headmaster or the Principal
shall be solely responsible and shall have
necessary
powers
for
the
internal
management
and
discipline
of
his
institution including;

(i) Admissions
and
withdrawals
of
students
and
their
punishment
including
expulsion
or
recommendation
for
rustication;
selection of text books, books and
magazines for the library, readingroom and prizes; arrangements of
time table and allocation of duties of
members of the staff relating to the
schools
time
table;
holding
of
examination
and
test;
students'
promotion
and
detention;
maintenance of all forms an schools
registers and progress reports of
students and sending the same to
their
guardians;
preparation
of
requisition for furniture; equipment
and apparatus needed for the school
and for their repair and replacement;
organization of games and other
curricular
activities;
making
provisions for health and medical
treatment of students, utilizing the
services of the staff for educational
purposes and activities inside or
outside
the
schools
premises;
appointment, promotion, control and
punishment including removal and
dismissal of the inferior servants;
control or the hostel through its
Superintendent.

(ii) Maintenance of service books and
character rolls of teachers, clerks,
librarians and inferior staff; making
entries in their character rolls and
communicating adverse entries to the
person
concerned;
control
and
supervision
of
the
clerks
and
librarians; their suspension, and
making recommendations for their
confirmation,
promotion
and
crossing of efficiency bar; granting
of casual leave to the staff of the
institution;
recommending
disciplinary action against teachers;
clerks
and
librarians
to
the
Committee
of
Management,
recommending to the Committee
their applications for permission to
appear in academic examinations;
permitting teachers to undertake
private tuitions.

(iii) Control and administration of all
Boys' Funds; it shall be the duty of
the Principal to see to it that each
such fund is spent only for that item
for which it is allowed; and if there is
saving on any item, the stoppage of
fee realisation for that fund; granting
freeship and half-freeship within the
number
sanctioned
by
the
Management;
drawing
and
disbursing of stipend and scholarship
money,
3 All] Roop Chand Chauhan V. State of U.P. and others
1133
11. In financial and other matters for
which he is not solely responsible the
Headmaster or Principal shall follow the
directions
of
the
Committee
of
Management as issued to him through the
Manager.

12. The Headmaster or Principal
shall be the channel of correspondence
between the staff of the institution and
Management."

20. The petitioner, being the head of
the institution is entitled to perform the
duties and functions attached to the office
of the Principal by virtue of Regulations
9, 10, 11 and 12 of Chapter I of the
Regulations
framed
under
the
Intermediate Education Act. Regulation 9
provides that the Principal would perform
all the duties as appertained to his post
and
would
be
responsible
to
the
Committee of Management for the due
discharge of such duties. Various powers
to be exercised by the Principal is
enumerated in Regulation 10 whereas
Regulation 12 provides that the head of
the institution would be a channel of
correspondence between the staff of the
institution
and
the
Management.
Consequently, if the petitioner is allowed
to work as a Principal, he must be allowed
to discharge all the functions and duties
attached to the office and cannot be
divested
of
its
financial
and
its
administrative powers. Such an order
would not only be without jurisdiction,
but in my opinion, would also be opposed
to public policy, especially when the
salary is paid to the petitioner from the
State exchequer without taking work from
him.

21. There is also another aspect of
the matter. Divestation of financial and
administrative powers is normally used as
a temporary measure. Such a direction
could be issued where a person has been
suspended and was not entitled to perform
his duties or exercise the powers attached
to the office. Such a direction could also
be issued so long as he holds the office
until legally dismissed or discharged, but
once the order of suspension is lifted, then
he has a right to perform the duties and
functions
attached
to
that
office.
Simultaneously,
once
an
order
of
proposed termination or dismissal is
removed and the petitioner is allowed to
function on the post of Principal he
should
consequently
be
allowed to
discharge his duties attached to that post
and could not be divested of the financial
and administrative powers. Similar view
has been expressed by this Hon'ble Court
in Committee of Management of Vasu
Dev Mishra Higher Secondary School,
Kanpur Nagar and another vs. Deputy
Director
of
Educations,
Kanpur
Region,
Kanpur
and
others,
1992(2)UPLBEC 1325. I am in complete
agreement with the aforesaid judgment.

22. In view of the aforesaid, this
Court is of the opinion that the order of
the Selection Board is without jurisdiction
and cannot be sustained. The impugned
order dated 26.5.2006 is quashed. The
writ petition is allowed and the matter is
remitted back to the U.P. Secondary
Education Services Selection Board, the
respondent No.2, to take a fresh decision
in accordance with law after giving an
opportunity of hearing to all the parties
within two months from the date of the
production of a certified copy of this
order.
---------
1134 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.07.2006

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No. 37265 of 2006

Ghanshyam

...Petitioner
Versus
District Magistrate, Lalitpur and others

 ...Respondents

Counsel for the Petitioner:
Sri A.N. Agrawal

Counsel for the Respondents:
S.C.

U.P. Police Regulation-Regulation 96readwith Village and Road Police Act,
1873 of Oudh Laws Act, 1876, Section
36-Natural Justice-termination of village
chaukidar-without show cause noticewithout enquiry on the basis of G.O.
3.6.06-held-illegal-principle of natural
justice violated-order can not sustain.

Held: Para 5

A perusal of the same indicates that the
dismissal shall be made only if the
Magistrate has reason to think that such
a dismissal is required. The principles of
natural justice are implicit in the said
provision and therefore it was incumbent
upon the District Magistrate to have at
least given a show cause notice to the
petitioner before dispensing his services
in order to ensure fairness.

(Delivered by Hon'ble A.P. Sahi, J.)

1. Heard Sri Arvind Nath Agrawal,
learned counsel for the petitioner at
length, and learned Standing Counsel for
the respondents.

2. The petitioner was appointed as a
Chaukidar
under
the
provisions
of
Regulation
96
of
the
U.P.
Police
Regulations, read with the provisions of
N.W. I. Village and Road Police Act,
1873 and The Oudh Laws Act, 1876. By
the impugned order dated 3rd June, 2006
the services of the petitioner have been
terminated by the District Magistrate,
Lalitpur with immediate effect on the
basis of some recommendations having
been made by the Superintendent of
Police, Lalitpur.

3. The petitioner contends that the
aforesaid order has been passed without
offering opportunity of hearing to the
petitioner and without giving a show
cause to explain the allegations made
against him. The petitioner further asserts
that he is not aware of any such report
submitted by Superintendent of Police,
Lalitpur nor did the District Magistrate,
Lalitpur (respondent No. 1) provide an
opportunity for verifying the allegations
contained in Annexure 2 to the writ
petition and therefore, the impugned order
is liable to be set aside as the same is in
violation of principles of natural justice.

4. The dismissal of a village or roadpoliceman is provided for under Section
36 of The Oudh Laws Act, 1876, which is
quoted hereinbelow:-

"Dismissal of village or roadpoliceman.-The Magistrate of the district
may dismiss any village-policeman or
road-policeman for any misconduct or
neglect of duty.

Where
any village-policeman
is
guilty of neglect of duty or other misconduct,
the
person
authorized
to
nominate to his office may report him for
dismissal to the Magistrate of the district;