# The C.O.M., Sri Durga Ji Purva Madhyamik Balika Jamin Rasulpur, Azamgarh & Anr v. State of U.P. & Ors

- **Citation:** (2020) 11 ILRA 129
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-07-20
- **Case number:** Writ-A No. 5540 of 2020
- **Bench:** Pankaj Bhatia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-c-o-m-sri-durga-ji-purva-madhyamik-balika-jamin-rasulpur-azamgarh-anr-v-45374
- **Pages:** 13

## Headnote

A. Service Law - U.P. Basic Education Act,
1972: Section 3, 4, 13, 19-U.P. Recognized
Basic
Schools
(Junior
High
Schools)
(Recruitment and Conditions of Service of
Teachers) Rules, 1978:- Rules 4, 5, 7, 10,
15, 16, 26- U.P. Junior High School
(Payment of Salaries of Teachers and
other Employees) Act, 1978 - Disciplinary
Enquiry -Once the Commissioner did not
have any authority under the scheme of
the Act, the initiation of the enquiry by
constituting a four member Committee
was wholly unwarranted and was a clear
interference in the functioning of the
statutory authorities conferred with the
powers under the Act and thus wholly
without jurisdiction. (Para 29, 30)

A perusal of the two Acts and the Rules,
mentioned above, shows that no powers have
130 INDIAN LAW REPORTS ALLAHABAD SERIES
been conferred upon the Commissioner or the
District Administration to interfere in the
functioning of the Schools and statutory
authorities have been created for regulating the
functioning of the Schools, the recruitment and
removal of Teachers and other employees and
payment of their salaries. The entire control
over the Basic Education is conferred upon the
statutory authorities created under the Act with
a limited supervisory control of the Board and
also with a very limited supervisory role of the
State Government confined only for proper and
efficient administration of the scheme of the
Act. (Para 20, 28)

B. It is well settled that 'rule of law' is
fundamental
and
the
essence
of
a
democratic set up and the enactment of
various acts and the rules are aimed at
strengthening the 'rule of law'. A society
based upon the 'rule of law' also negates the
role of executive authorities other than those
specified under the Act and are vital for vibrant
democracy. (Para 31)

C. The directions of the Secretary Education
based upon the said recommendations of
the enquiry Committee do not demonstrate
any independent application of mind and
has also transgressed the statutory limits
conferred upon the State in directing initiations of
FIRs and termination of the Teachers. The
Secretary Education has clearly erred in issuing the
directions for lodging of the FIRs and for
termination of the Teachers without there being
any powers conferred upon him under the Act and
that too based upon an enquiry which has already
been held to be illegal. (Para 32)

Writ Petitions allowed. ( E-4)

Precedent followed:

## Text

_Characters 0–39,812 of 43,438. This is a partial read: ask again with offset=39812 for what follows._

11 All. The C.O.M., Sri Durga Ji Purva Madhyamik Balika Jamin Rasulpur, Azamgarh & Anr. Vs. State of
 U.P. & Ors.
129
the advertisements dated 10.05.2015 and
14.05.2015. The petitioner had chosen not
to participate in the interview, which was
held on 31.05.2015, as per schedule
advertise
in
the
advertisement
dated
10.05.2015
&
15.05.2015.
Once
the
petitioner had chosen not to participate in
the interview, he is neither a person
aggrieved nor an affected party. The
petitioner has no right to challenge the
selection of respondent nos. 4 and 5 after
having acted upon in pursuance of the
advertisement, now the petitioner can not
challenge the same.

8. The petitioner, in writ petition has
no where pleaded that he had gone to
participate in the interview but he was not
permitted to participate in the same. Even
in the para 26 of the counter affidavit, it has
specifically been pleaded that petitioner
was absent at the time of interview. This
fact has not been rebutted on the other hand
the statement was made on 20.07.2020 in
the Court that no rejoinder affidavit is
required to be filed in this regard.

9. A person who applies for
appointment on a post in response to an
advertisement
is
precluded
from
challenging the selection on the ground of
defect in the advertisement. He acquiesces
to the advertisement made and having
taken advantage of the same in response
thereto cannot turn around to point out in
the
manner
of
publication
of
the
advertisement.

10. Yet again, it may be observed that
in case a candidate after having applied for
appointment for a post later voluntarily
chooses not to appear in the interview i.e.
the selection process has no locus to
challenge the appointments of selected
candidates.

11. In view of the aforesaid, the writ
petition is devoid of any merit, accordingly,
it is dismissed.
----------
(2020)11ILR A129
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.10.2020

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Writ-A No. 5540 of 2020
Connected with
Writ-A No. 5795 of 2020 & other connected
cases

The C.O.M., Sri Durga Ji Purva Madhyamik
Balika Jamin Rasulpur, Azamgarh & Anr.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Kunwar Bhaskar Parihar, Sri R.K. Ojha

Counsel for the Respondents:
C.S.C., Sri Bhanu Pratap Singh, Sri Lal Ji
Yadav

A. Service Law - U.P. Basic Education Act,
1972: Section 3, 4, 13, 19-U.P. Recognized
Basic
Schools
(Junior
High
Schools)
(Recruitment and Conditions of Service of
Teachers) Rules, 1978:- Rules 4, 5, 7, 10,
15, 16, 26- U.P. Junior High School
(Payment of Salaries of Teachers and
other Employees) Act, 1978 - Disciplinary
Enquiry -Once the Commissioner did not
have any authority under the scheme of
the Act, the initiation of the enquiry by
constituting a four member Committee
was wholly unwarranted and was a clear
interference in the functioning of the
statutory authorities conferred with the
powers under the Act and thus wholly
without jurisdiction. (Para 29, 30)

A perusal of the two Acts and the Rules,
mentioned above, shows that no powers have
130 INDIAN LAW REPORTS ALLAHABAD SERIES
been conferred upon the Commissioner or the
District Administration to interfere in the
functioning of the Schools and statutory
authorities have been created for regulating the
functioning of the Schools, the recruitment and
removal of Teachers and other employees and
payment of their salaries. The entire control
over the Basic Education is conferred upon the
statutory authorities created under the Act with
a limited supervisory control of the Board and
also with a very limited supervisory role of the
State Government confined only for proper and
efficient administration of the scheme of the
Act. (Para 20, 28)

B. It is well settled that 'rule of law' is
fundamental
and
the
essence
of
a
democratic set up and the enactment of
various acts and the rules are aimed at
strengthening the 'rule of law'. A society
based upon the 'rule of law' also negates the
role of executive authorities other than those
specified under the Act and are vital for vibrant
democracy. (Para 31)

C. The directions of the Secretary Education
based upon the said recommendations of
the enquiry Committee do not demonstrate
any independent application of mind and
has also transgressed the statutory limits
conferred upon the State in directing initiations of
FIRs and termination of the Teachers. The
Secretary Education has clearly erred in issuing the
directions for lodging of the FIRs and for
termination of the Teachers without there being
any powers conferred upon him under the Act and
that too based upon an enquiry which has already
been held to be illegal. (Para 32)

Writ Petitions allowed. ( E-4)

Precedent followed:

1. Madan Kumar & ors. Vs D.M., Auraiya & ors.,
[2013 (10) ADJ 606] (Para 13)

2. Manish Kumar Rai Vs St. of U.P. & ors.,
Judgment dated 09.09.2019 passed in WP No.
48256 of 2009 (Para 13)

3. Chhote Lal Singh Vs St. of U.P. & 5 ors.,
Judgment dated 22.03.2018 passed in WP No.
38429 of 2017 (Para 13)
4. V.N. Daipuria Vs St. of U.P. & 3 ors., Judgment
dated 27.10.2015 passed in WP No. 58619 of 2015
(Para 13)

5. Surya Prakash Rai Vs St. of U.P. & ors,
Judgment dated 29.05.2018 passed in Writ
Petition No. 73647 of 2010 (Para 13)

6. Anirudhsinhji Karansinhji Jadeja Vs St. of Guj.,
(1995) 5 SCC 302 (Para 20)

7. Tarlochan Dev Sharma Vs St. of Punj., (2001) 6
SCC 260 (Para 20)

8. Purtabpore Co. Ltd. Vs Cane Commissioner of
Bihar, (1969) 1 SCC 308 (Para 20)

9. Manohar Lal (Dead) By Lrs. Vs Ugrasen (Dead)
By Lrs. & ors., (2010) 11 SCC 557 (Para 27)

Precedent distinguished:

1. Dr. Arvind Kumar Ram Vs St. of U.P., 2007 (4)
AWC 4163 (Par 24)

2. Managing Director ECIL Hyderabad Etc. Vs
Karunakar Etc., passed in Civil Appeal No. 3056 of
1991, Judgment dated 01.10.1993 (Para 25)

Present petitions challenge the enquiry
report dated 28.01.2020, the notices
issued in pursuance to the enquiry report
as well as the order dated 17.02.2020,
issued
by
Special
Secretary
(Basic
Education) U.P. Shashan, Lucknow.

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

1. The present petitions have been
filed by the Committee of Management as
well as the Teachers challenging the
enquiry report dated 28.1.2020, the
notices issued in pursuance to the enquiry
report dated 25.6.2020 as well as the
order dated 17.2.2020 issued by the
respondent no. 1 dated 17th February,
2020 directing the respondent no. 2 and
respondent no. 5 to take requisite action
in pursuance to the enquiry report dated
28.1.2020.
11 All. The C.O.M., Sri Durga Ji Purva Madhyamik Balika Jamin Rasulpur, Azamgarh & Anr. Vs. State of
 U.P. & Ors.
131

2. The present judgment decides all
the above writ petitions filed by the
Committee of Managements and individual
Teachers.

3. Heard Sri R.K. Ojha, learned
Senior Advocate assisted by Sri K.B.
Parihar, counsel for the petitioners and Sri
M.C.
Chaturvedi,
learned
Additional
Advocate General assisted by Sri Apoorva
Hajela, counsel for the respondents.

4. The present petitions raises a very
important question with regard to the role
of the District Authorities in the working of
the Authorities created under a statute and
conferred powers by virtue of the said
specific statutes.

Facts in brief

5. The facts in brief are that the
petitioners
were
appointed Assistant
Teachers/Head Masters in the Junior High
School in the Institutions which are duly
recognized under the U.P. Basic Eduction
Act,
1972.
It
is
stated
that
the
appointment
of
the
Assistant
Teacher/Head Master was made under the
U.P. Basic Education Act and the service
conditions are governed by the U.P.
Recognized Basic Schools (Junior High
Schools) (Recruitment and Condition of
Service of Teachers) Rules, 1978 and the
payment to the said Teachers is made
under the U.P. Junior High School
(Payment of Salaries of Teachers and
other
Employees)
Act,
1978.
The
petitioners claim that they were appointed
by following the procedure prescribed in
the Acts and the Rules referred above. It
is also stated that the appointment of the
petitioners was in consonance with the
permission given by the Zila Basic
Shiksha Adhikari, which was done after
following the procedure prescribed with
regard to the advertisements and in the
presence of the nominee of Zila Basic
Shiksha
Adhikari
in
the
Selection
Committee duly constituted with the
approval of the Zila Basic Shiksha
Adhikari. It is claimed that the petitioners
in terms of their appointment were
working against the posts against which
they were appointed and were being
regularly paid their salaries without any
objection with regard to either the
working of the petitioners or any other
misconduct being alleged against them.

6.

It
is
alleged
that
the
Commissioner of Azamgarh, who was
due to retire on 30th June, 2020 passed an
order dated 6th December, 2019 and
thereby
constituted
a
four
member
Enquiry Committee to conduct enquiry
over
the
approvals
granted
to
the
appointment
of Teachers
and
Head
Masters by the then Zila Basic Shiksha
Adhikari in the District of Azamgarh
during his tenure. The four member
Enquiry Committee comprised of the
Additional
Commissioner
(Administration)
as
Chairman,
the
Assistant Account Officer, Azamgarh,
Assistant
Director
of
Education,
Azamgarh and the Joint Director of
Education, Azamgarh as its members.
The said four member Committee never
gave any information to the petitioners
nor was any notice served to either the
petitioners
or
the
Committee
of
Management
and
a
report
dated
29.1.2020 was submitted by the said four
member Committee. The said report is on
record as Annexure-3 to the writ petition.

7. A perusal of the enquiry report
dated 28.1.2020 reveals that the said
Enquiry Committee called for the records
132 INDIAN LAW REPORTS ALLAHABAD SERIES
from the Office of Zila Basic Shiksha
Adhikari and found minor discrepancies as
under:-

(a) A permission for publication
was referred as sought by the Manager on
26.9.2018, however, the same was not
found on record.

(b) The interview for the selection
on one post for Science was fixed on
28.10.2018, however, as the interview
could not be held on the said date, the same
was adjourned to 3.11.2018 and the said
adjournment was published in only one
newspaper.

(c) The same also records that in
the interview out of eight persons, five
persons had appeared.

(d) It was also recorded that in
the School in question, there was no
Teacher for Mathematics, however, the
Basic Shiksha Adhikari assigned them for
teaching
Science
alone,
which
was
irregular.

8.

After
observing
the
said
irregularities, the report dated 28.1.2020
was forwarded along with a covering letter
dated 29th January, 2020 by the Enquiry
Committee to the said Commissioner. The
Commissioner in turn forwarded the said
report to the Education Secretary, State of
U.P. for further action on the matter. The
Education Secretary based upon the said
recommendation dated 29th January, 2020
and the report dated 28.1.2020 passed an
order on 17th February, 2020 directing the
respondent no. 5 to lodge FIRs against the
officials and the respective Committee of
Managements. Simultaneously on the same
day i.e. 17.2.2020, the Secretary respondent
no. 1 passed an order directing the
respondent no. 2 to immediately dismiss
the services of the appointed Teachers in
accordance with law.

9. In pursuance to the directions given
on 17th February, 2020, the respondent no.
5 issued a notice dated 25.6.2020 calling
upon the petitioners to show cause as to
why their services may not be terminated.
The said notice is on record as Annexure
No. 6. A perusal of the said notice shows
that the sole ground for issuance of the
show cause notice was the enquiry report of
the four member Committee. It is also on
record that simultaneously another order
was passed stopping the salaries of the
petitioners pending the adjudication of the
show cause notice. The petitioners have
thus
approached
this
Court
seeking
quashing of the enquiry report as well as
the
show
cause
notice
and
the
consequential action of stopping the
salaries of the petitioners.

Submissions of the Counsels

10. Shri R.K. Ojha, learned Senior
Advocate has extensively argued that the
appointment of the Assistant Teacher/Head
Master in the Junior High School which are
duly recognized under the U.P. Basic
Education Act, are governed by the U.P.
Recognized Basic Schools (Junior High
Schools) (Recruitment and Condition of
Service of Teachers) Rules 1978 and the
payment of the salary to Teachers and the
other staff is governed under the provisions
of U.P. Junior High School (Payment of
Salaries of Teachers and other Employees)
Act, 1978. He argues that the recruitment
and the conditions of service are governed
by statutory rules which provide for
manner of recruitment and the conditions
of service. He further argues that all the
requirements
for
recruitment
were
scrupulously followed while making the
recruitment and there was no complaint
whatsoever with regard to either the
appointments or the working of the
11 All. The C.O.M., Sri Durga Ji Purva Madhyamik Balika Jamin Rasulpur, Azamgarh & Anr. Vs. State of
 U.P. & Ors.
133
petitioners Teacher. He further argues that
the constitution of four member Committee
by the Commissioner was wholly arbitrary
and contrary to the scheme of the Act
inasmuch as under the Acts specific powers
are conferred upon the specific Authorities
and the Commissioner or the persons
appointed in the Enquiry Committee do not
have any role to play in the scheme of the
statute covering the recruitment or the
dismissal of the Teachers/Head Masters.
Shri R.K. Ojha further argues that on the
bare perusal of the scheme of the Acts, it is
clear that it lays down a complete code and
confers
specific
powers
on
various
Authorities.

11. He has further highlighted that
Rule 15 of the 1978 Rules prohibits the
termination/removal/dismissal or discharge
of the services without serving a notice to
be given after approval from the District
Basic Education Officer. Similarly, Rule 16
provides for the manner of disciplinary
proceedings.

12. Thus, in sum and substance, the
argument of Shri R.K. Ojha, Senior
Advocate is that the Commissioner has no
jurisdiction to initiate the enquiry as has
been done by the Commissioner. The
Enquiry Committee did not have the
jurisdiction in the scheme of the Act to
initiate and complete the enquiry as has
been done by the Enquiry Committee. The
Enquiry Committee has erred in not even
seeking a response from the petitioners
before concluding the enquiry and the
Authorities entrusted with the exercise of
the powers under the Act are acting under
dictation without application of their own
mind, which is contrary to the statutory
scheme and thus the entire proceedings
initiated and pending against the petitioners
are nothing but an outcome of colourable
exercise of powers and exercise of power
without jurisdiction and thus liable to be
quashed.

13. Shri R.K. Ojha, Senior Advocate
has placed reliance on the judgment of this
Court dated 13.3.2003 in the case of
Madan Kumar and Others Vs. District
Magistrate, Auraiya and Others reported
in [2013 (10) ADJ 606], judgment dated
9.9.2019 passed in Writ Petition No. 48256
of 2009, Manish Kumar Rai Vs. State of
U.P. and Others, judgment dated 22.3.2018
passed in Writ Petition No. 38429 of 2017,
Chhote Lal Singh Vs. State of U.P. and 5
Others, judgment dated 27.10.2015 passed
in Writ Petition No. 58619 of 2015, V.N.
Daipuria Vs. State of U.P. and 3 Others
and Judgment dated 29.5.2018 passed in
Writ Petition No. 73647 of 2010, Surya
Prakash Rai Vs. State of U.P. and Others.

14. Shri M.C. Chaturvedi, learned
Additional
Advocate
General
was
specifically asked to address this Court as
to how and under what powers has the
Commissioner constituted an Enquiry to
which Shri M.C. Chaturvedi argued that the
Commissioner merely acted as a Whistle
Blower and he did not pass any orders as a
disciplinary authority, however exercised
his jurisdiction being the supervisory
authority. He thus argued that no fault
could be found with the bona fides of the
Commissioner. He has further argued that
mere show cause notices have been issued
and thus the petitioners have approached
this Court immaturely and thus the writ
petitions are liable to be dismissed.

15. The written submissions filed by
the learned counsel for the petitioners as
well as the State are on record and
reiterated their arguments as recorded
above.
134 INDIAN LAW REPORTS ALLAHABAD SERIES

Discussion

16. In view of the specific
submissions raised by Shri R.K. Ojha
that in terms of the scheme of the Act,
the Commissioner has no role to play, it
is essential to see the scheme of the Act
namely
The
Uttar
Pradesh
Basic
Education
Act,
1972
(hereinafter
referred to as the ''1972 Act'. The said
Act
was
enacted
to
provide
for
establishment of a Board of Basic
Education with a view to regulate the
Basic Education in the State of Uttar
Pradesh. The constitution of the Board
is defined under Section 3 and Section
3(2) provides that the Board shall be a
body
corporate
and
Section
3(3)
provides for Officers, who shall be the
member of the said Board. Section 3(3)
is being quoted hereinbelow:-

"(3) The Board shall consist of
the following members, namely -

(a) the Director, ex officio,
who shall be the chairman;

(b)
two
persons
to
be
nominated by the State Government
from amongst the Adhyakshas, if any, of
[Zila Panchayats established under
Section
17 of
the
Uttar Pradesh
Kshettra
Panchayats
and
Zila
Panchayats Adhiniyam, 1961];

(c) one person to be nominated
by the State Government from amongst
the Nagar Pramukhs, if any, of the
[Corporations
constituted
under
Section
9
of
the
Uttar
Pradesh
Municipal Corporation Act, 1959];

(d) one person to be nominated
by the State Government from amongst
the Presidents, if any, of the [Municipal
Council
and
Nagar
Panchayats
established under the Uttar Pradesh
Municipalities Act, 1916];

(e) the Secretary to the State
Government in the Finance Department, ex
officio;

(f) the Principal, State Institute of
Education, ex officio;

[(f1) the Secretary, Board of High
School
and
Intermediate
Education,
Allahabad, ex officio;

(f2) the President of the Uttar
Pradesh Prathamik Shikshak Sangh, ex
officio;]

(g) two educationists to be
nominated by the State Government;

(h) an officer not below the rank
of Deputy Director of Education, to be
nominated by the State Government, who
shall be the Member Secretary."

17. Section 4 of the said Act provides
for the functions of the Board. Section 4(2)
(h) confers the ancillary powers on the
Board. Section 4(2)(h) is quoted herein
below:-

"(h) to take all such steps as may
be necessary or convenient for, or may be
incidental to the exercise of any power, or
the discharge of any function or duty
conferred or imposed on it by this Act :

[Provided that the courses of
instruction and books prescribed and
institutions
recognised
before
the
commencement of this Act shall be deemed
to be prescribed or recognised by the Board
under this Act.]"

18. Section 13 of the said Act confers
the control of the State Government over
the functioning of the Board. In pursuance
to the powers conferred under Section 19 of
the said Act for framing the rules, the State
Government has framed the Rules with
regard to the recruitment and condition of
service of the Teachers known as the Uttar
Pradesh Recognized Basic Schools (Junior
11 All. The C.O.M., Sri Durga Ji Purva Madhyamik Balika Jamin Rasulpur, Azamgarh & Anr. Vs. State of
 U.P. & Ors.
135
High Schools) (Recruitment and Condition
of Service of Teachers) Rules 1978. Rule 4
of the said Rules of 1978 provide for
minimum qualification for appointment of
Assistant Teachers and Rule 5 of the said
Rules provides for the eligibility to be
appointed as Head Master. Rule 7 of the
said Rules provides for advertisement of
vacancies and Rule 10 provides for
procedure in selections. Rule 15 of the said
Rules provides for disciplinary proceedings
and rule 26 provides for power to inspect.
The said power to inspect has been
conferred upon the Education Officer for
inspecting the records of the management
with regard to the payment of salaries to its
Teachers and employee and he is further
empowered to give directions to the
management to observe financial propriety
as he may deem fit.

19. The salaries and other benefits
payable
to
the
Teachers
and
other
employees
are
governed
under
the
provisions of Uttar Pradesh Junior High
Schools (Payment of Salaries of Teachers
and Other Employees) Act, 1978. The said
Act has been framed to regulate the
payment of salaries to Teachers.

20. Thus, a perusal of the two Acts
and the Rules, as referred above, show that
no powers have been conferred upon the
Commissioner
or
the
District
Administration
to
interfere
in
the
functioning of the Schools and statutory
authorities have been created for regulating
the functioning of the Schools, the
recruitment and removal of Teachers and
other employees and payment of their
salaries. Under the scheme of the Acts, it is
a Board which exercises the controls over
the affairs with regard to the Basic
Education in the State of Uttar Pradesh and
the Commissioner or any Officer of the
District Administration is neither a member
of the Board nor does he have any
supervisory control over the Board. The
supervisory control of the States over the
Boards is also very limited in nature and is
confined to issuing the directions to the
Board for efficient administration of the
Act. The State is also an arbitrator in the
event of dispute arising between the Board
and the State Government. Thus, the entire
control over the Basic Education is
conferred upon the statutory authorities
created under the Act with a limited
supervisory control of the Board and also
with a very limited supervisory role of the
State Government confined only for proper
and efficient administration of the scheme
of the Act. This Court in its judgment dated
13.3.2013 in the case of Madan Kumar
(supra) was confronted with question of
the role of the District Magistrate in issuing
directions to the educational authorities
under the statutes, which are self contained
and this Court held that from the perusal of
the scheme of the Act, it is clear that
District Magistrate is a foreign authority
and has no role to play in the scheme of the
Act. This Court relied upon the judgment of
the
Apex
Court
in
the
case
of
Anirudhsinhji Karansinhji Jadeja v. State
of Gujarat, (1995) 5 SCC 302 and the
judgment of the Apex Court in the case of
Tarlochan Dev Sharma v. State of Punjab,
(2001) 6 SCC 260 as well as the judgment
in the case of Purtabpore Co. Ltd. v. Cane
Commissioner of Bihar, (1969) 1 SCC
308.

21. The order dated 9.9.2009 passed
in Writ-A No. 48256 of 2009 cited by Shri
R.K. Ojha is only an interim order and has
no precedential value. Similarly, the order
dated 22.3.2018 passed in Writ-A No.
38429 of 2017 also is based upon an
agreement and has no precedential value.
136 INDIAN LAW REPORTS ALLAHABAD SERIES

22. The other judgment cited by Shri
R.K.
Ojha
being
judgment
dated
27.10.2015 passed in Writ-A No. 58619 of
2015 is an authority on the question
whether the discretion can be exercised on
dictation and this court held that the
discretion has to be exercised after exercise
of
independent
mind
and
not
on
recommendation. The said judgment is
relevant only for adjudicating of the order
dated 17.2.2020 in the present case.

23. The next judgment cited by Shri
R.K. Ojha is the judgment dated 29.5.2018
passed in Writ-A No. 73647 of 2010,
wherein this court was confronted with
conclusion as to whether the Additional
Commissioner and the Joint Commissioner
are vested with any power under the
Intermediate Education Act. This Court
concluded
that
the
Divisional
Commissioner could not have directed an
enquiry.

24. The next judgment cited by Sri
R.K. Ojha is the judgment of this Court in
the case of Dr. Arvind Kumar Ram Vs.
State of U.P., 2007 (4) AWC 4163, which
relates to the exercise of discretion to
suspend a person and has no relevance to
the facts of the present case.

25. The next judgment cited by Shri
R.K. Ojha is the judgment of Apex Court in
the case of Managing Director ECIL
Hyderabad Etc. Etc. v. Karunakar Etc.
Etc., passed in Civil Appeal No. 3056 of
1991, judgment dated 1st October, 1993,
which categorically lays down that the
termination without following the due
procedure is bad in law. The said case has
no applicability to the facts of the present
case as only a show cause notice has been
issued purporting to terminate the services
of the petitioner and cannot be considered
to be an authority on the proposition as to
whether the power exercised by an
authority which is violative to the scheme
of the Act can be subjected to judicial
review or not.

26. The learned Additional Advocate
General has not cited any case laws in
support of the contentions.

27. The Supreme Court in the case of
Manohar Lal (Dead) By Lrs. v. Ugrasen
(Dead) By Lrs. and Others, (2010) 11 SCC
557, while considering the power of the State
Government as a revisional authority under
Section 41(3) and Section 18 of the U.P.
Urban Planning and Development Act, 1973
and interpreting the role of administrative and
regulatory bodies in respect of the statutory
powers, recorded and held as under:-

"12. In Rakesh Ranjan Verma v.
State of Bihar [1992 Supp (2) SCC 343 :
1992 SCC (L&S) 866 : (1992) 21 ATC 521 :
AIR 1992 SC 1348] the question arose as to
whether the State Government, in exercise of
its statutory powers could issue any direction
to the Electricity Board in respect of
appointment of its officers and employees.
After examining the statutory provisions, the
Court came to the conclusion that the State
Government could only take the policy
decisions as to how the Board will carry out
its functions under the Act. So far as the
directions issued in respect of appointment of
its officers was concerned, it fell within the
exclusive domain of the Board and the State
Government had no competence to issue any
such direction. The said judgment has been
approved and followed by this Court in U.P.
SEB v. Ram Autar [(1996) 8 SCC 506 : 1996
SCC (L&S) 1023] .

13. In Bangalore Development
Authority v. R. Hanumaiah [(2005) 12 SCC
508] this Court held that the power of the
11 All. The C.O.M., Sri Durga Ji Purva Madhyamik Balika Jamin Rasulpur, Azamgarh & Anr. Vs. State of
 U.P. & Ors.
137
Government under Section 65 of the
Bangalore Development Authority Act,
1976 was
not
unrestricted
and
the
directions which could be issued were those
which were to carry out the objective of the
Act and not those which are contrary to the
Act and further held that the directions
issued by the Chief Minister to release the
lands were destructive of the purposes of
the Act and the purposes for which BDA
was created.

14. In Bangalore Medical Trust v.
B.S. Muddappa [(1991) 4 SCC 54 : AIR
1991 SC 1902] this Court considered the
provisions of a similar Act, namely, the
Bangalore Development Authority Act,
1976 containing a similar provision and
held that the Government was competent
only to give such directions to the Authority
as were in its opinion necessary or
expedient and for carrying out the purposes
of the Act. The Government could not have
issued any other direction for the reason
that
the
Government had not
been
conferred upon unfettered powers in this
regard. The object of the direction must be
only to carry out the object of the Act and
only such directions as were reasonably
necessary or expedient for carrying out the
object of the enactment were contemplated
under the Act. Any other direction not
covered by such powers was illegal.

15. In Poonam Verma v. DDA
[(2007) 13 SCC 154 : AIR 2008 SC 870] a
similar view has been reiterated by this
Court dealing with the provisions of the
Delhi Development Authority Act, 1957. In
the said case, the Central Government had
issued a direction to make allotment of flat
out of turn. The Court held as under: (SCC
pp. 160-61, paras 13 & 15)

"13. ... Section 41 of the Act, only
envisages that the respondent would carry
out such directions that may be issued by
the Central Government from time to time
for the efficient administration of the Act.
The same does not take within its fold an
order which can be passed by the Central
Government in the matter of allotment of
flats by the Authority. Section 41 speaks
about policy decision. Any direction issued
must have a nexus with the efficient
administration of the Act. It has nothing to
do with carrying out of the plans of the
authority in respect of a particular scheme.

***

15.
Evidently,
the
Central
Government had no say in the matter either
on its own or under the Act. In terms of the
brochure, Section 41 of the Act does not
clothe any jurisdiction upon the Central
Government to issue such a direction."

16. In State of U.P. v. Neeraj
Awasthi [(2006) 1 SCC 667 : 2006 SCC
(L&S) 190] this Court held as follows in
the context of government directions: (SCC
p. 683, para 41)

"41. Such a decision on the part
of the State Government must be taken in
terms of the constitutional scheme i.e. upon
compliance with the requirement of Article
162
read
with
Article
166
of
the
Constitution of India. In the instant case,
the directions were purported to have been
issued by an officer of the State. Such
directions were not shown to have been
issued pursuant to any decision taken by a
competent authority in terms of the Rules of
Executive Business of the State framed
under Article 166 of the Constitution of
India."
17. In Purtabpore Co. Ltd. v.
Cane Commr. of Bihar [(1969) 1 SCC 308 :
AIR 1970 SC 1896] this Court has
observed: (SCC p. 315, paras 11-12)

"11. ... The power exercisable by
the Cane Commissioner under Clause 6(1)
is a statutory power. He alone could have
exercised that power. While exercising that
power he cannot abdicate his responsibility
in favour of anyone--not even in favour of
138 INDIAN LAW REPORTS ALLAHABAD SERIES
the State Government or the Chief Minister.
It was not proper for the Chief Minister to
have interfered with the functions of the
Cane Commissioner. In this case what has
happened is that the power of the Cane
Commissioner has been exercised by the
Chief Minister, an authority not recognised
by Clause 6 read with Clause 11 but the
responsibility for making those orders was
asked
to
be
taken
by
the
Cane
Commissioner.

12.
The
executive
officers
entrusted with statutory discretions may in
some cases be obliged to take into account
considerations of public policy and in some
context the policy of a Minister or the
Government as a whole when it is a
relevant factor in weighing the policy but
this will not absolve them from their duty to
exercise
their
personal
judgment
in
individual cases unless explicit statutory
provision has been made for them to be
given binding instructions by a superior."

18. In Chandrika Jha v.State of
Bihar [(1984) 2 SCC 41 : AIR 1984 SC
322] this Court while dealing with the
provisions of the Bihar and Orissa
Cooperative Societies Act, 1935, held as
under: (SCC p. 48, para 13)

"13. The action of the then Chief
Minister cannot also be supported by the
terms of Section 65-A of the Act which
essentially confers revisional power on the
State
Government.
There
was
no
proceeding pending before the Registrar in
relation to any of the matters specified in
Section 65-A of the Act nor had the
Registrar passed any order in respect
thereto. In the absence of any such
proceeding or such order, there was no
occasion for the State Government to
invoke its powers under Section 65-A of the
Act. In our opinion, the State Government
cannot for itself exercise the statutory
functions of the Registrar under the Act or
the Rules."

19. In Anirudhsinhji Karansinhji
Jadeja v. State of Gujarat [(1995) 5 SCC
302 : 1995 SCC (Cri) 902 : AIR 1995 SC
2390] it was observed: (SCC p. 307, para
11)

"11. ... This is a case of power
conferred upon one authority being really
exercised by another. If a statutory
authority has been vested with jurisdiction,
he has to exercise it according to its own
discretion. If the discretion is exercised
under the direction or in compliance with
some higher authority's instruction, then it
will be a case of failure to exercise
discretion altogether."

20. In K.K. Bhalla v. State of M.P.
[(2006) 3 SCC 581 : AIR 2006 SC 898] this
Court has delineated the functions of the
State Government and the Development
Authority, observing that: (SCC pp. 596-97,
paras 59-60 & 62-63)

"59. Both the State and JDA have
been assigned specific functions under the
statute. JDA was constituted for a specific
purpose. It could not take action contrary
to the scheme framed by it nor take any
action which could defeat such purpose.
The State could not have interfered with the
day-to-day functioning of a statutory
authority. Section 72 of the 1973 Act
authorises
the
State
to
exercise
superintendence and control over the acts
and proceedings of the officers appointed
under Section 3 and the authorities
constituted under the Act but thereby the
State cannot usurp the jurisdiction of the
Board itself. The Act does not contemplate
any independent function by the State
except as specifically provided therein.

60. ... the State in exercise of its
executive power could not have directed
that lands meant for use for commercial
11 All. The C.O.M., Sri Durga Ji Purva Madhyamik Balika Jamin Rasulpur, Azamgarh & Anr. Vs. State of
 U.P. & Ors.
139
purposes may be used for industrial
purposes.

***

62. ... the power of the State
Government to issue direction to the
officers appointed under Section 3 and the
authorities constituted under the Act is
confined only to matters of policy and not
any other. Such matters of policy yet again
must be in relation to discharge of duties by
the officers of the authority and not in
derogation thereof.

63. ... The direction of the Chief
Minister being dehors the provisions of the
Act is void and of no effect."

21. In Municipal Corpn. v.
Niyamatullah [(1969) 2 SCC 551 : AIR
1971 SC 97] this Court considered a case
of dismissal of an employee by an authority
other than the authority competent to pass
such
an
order
i.e.
the
Municipal
Commissioner, the order was held to be
without jurisdiction and thus could be
termed to have been passed under the
relevant Act. This Court held that: (SCC p.
554, para 12)

"12. ... To such a case, the statute
under which action was purported to be
taken could afford no protection."

22. In Tarlochan Dev Sharma v.
State of Punjab [(2001) 6 SCC 260] this
Court, after placing reliance upon a large
number of its earlier judgments, observed
as under: (SCC p. 273, para 16)

"16. In the system of Indian
democratic governance as contemplated by
the Constitution, senior officers occupying
key positions such as Secretaries are not
supposed to mortgage their own discretion,
volition and decision-making authority and
be prepared to give way or being pushed
back or pressed ahead at the behest of
politicians for carrying out commands
having no sanctity in law. The Conduct
Rules of Central Government services
command the civil servants to maintain at
all times absolute integrity and devotion to
duty and do nothing which is unbecoming
of a government servant. No government
servant shall in the performance of his
official duties, or in the exercise of power
conferred on him, act otherwise than in his
best judgment except when he is acting
under the direction of his official superior."

23. Therefore, the law on the
question can be summarised to the effect
that no higher authority in the hierarchy
or an appellate or revisional authority can
exercise the power of the statutory
authority nor can the superior authority
mortgage its wisdom and direct the
statutory authority to act in a particular
manner. If the appellate or revisional
authority takes upon itself the task of the
statutory authority and passes an order, it
remains unenforceable for the reason that
it cannot be termed to be an order passed
under the Act."

Conclusion

28. The scheme of the Act, as
extracted and referred to above, makes it
clear that the Basic Education Act was
enacted as a complete code for governing
the Basic Education in the State of Uttar
Pradesh and conferred the powers on
separate authorities under the Act without
conferring any authority whatsoever on the
Commissioner
or
the
Administrative
Authorities other than those specified under
the Acts and the Rules.

29. It is well settled that the creation
of statutory bodies by various Acts and the
Rules for discharging specific functions is
aimed at development of systems of checks
and balances and aims at reducing the
overlapping executive interferences and
thus try to overcome the malady of
140 INDIAN LAW REPORTS ALLAHABAD SERIES
overlapping executive functions. I have no
hesitation
in
holding
that
once
the
Commissioner did not have any authority
under the scheme of the Act, the initiation
of the enquiry by constituting a four
member
Committee
was
wholly
unwarranted and was a clear interference in
the functioning of the statutory authorities
conferred with the powers under the Act
and thus wholly without jurisdiction.

30. The law laid down by the
Supreme Court in Manohar Lal (supra)
clearly covers the controversy in the
present
case.
I
am
in
complete
agreement with the judgment of this
Court in the case of Madan Kumar
(Supra) and have no hesitation in
holding that the initiation of enquiry and
the
enquiry
were
wholly
without
jurisdiction.

31. It is well settled that ''rule of
law' is fundamental and the essence of a
democratic set up and the enactment of
various acts and the rules are aimed as
strengthening the ''rule of law'. A society
based upon the ''rule of law' also negates
the role of executive authorities other
than those specified under the Act and
are vital for vibrant democracy. The
Commissioner
clearly
exceeded
its
jurisdiction and powers in directing an
enquiry and the submissions of the State
that he merely acted as a whistle blower
cannot be accepted and is liable to be
rejected.

32. Similarly, the directions of the
Secretary Education based upon the said
recommendations
of
the
enquiry
Committee also do not demonstrate any
independent application of mind and has
also transgressed the statutory limits
conferred upon the State in directing
initiations of FIRs and termination of the
Teachers. The Secretary Education has
clearly erred in issuing the directions for
lodging of the FIRs and for termination
of the Teachers without there being any
powers conferred upon him under the Act
and that too based upon an enquiry which
has already been held to be illegal and
thus I have no hesitation in quashing the
directions issued by the Secretary and as
contained in the orders dated 17.2.2020. I
have also no hesitation in holding that the
show cause notices have been issued
without any application of mind by the
respondent no. 5 and only on the dictation
of the respondent no. 1 and thus are liable
to be dismissed on that ground alone.

33. In view of the finding recorded
above, the writ petitions are allowed. The
enquiry
report
dated
28.1.2020
(Annexure 3 to the writ petition) is
quashed, the orders dated 17.2.2020
(Annexure-4
to
the
writ
petition)
directing lodging of the FIR is quashed
insofar as it relates to petitioners in Writ
Petition No.