Bhopal Singh Verma vs Deputy Director of Education and Others

B.D. Agrawal, J.—The Petitioner was appointed assistant clerk in the Janta Higher Secondary School, Kharkhaude, district Meerut on August 27, 1959. He was confirmed on August 27, 1960 and promoted as head clerk on November 10, 1960. In the year 1961 he was confirmed as Head clerk. The Committee of Management initiated disciplinary proceedings against him on certain charges. He was placed under suspension by the order dated May 1, 1970. After enquiry he was dismissed by order dated February 7, 1975 with effect from May 1, 1970 the date on which he was placed under suspension. The Petitioner represented to the District Inspector of Schools, Meerut on February 14, 1975 for disapproval on ground principally that the entire disciplinary proceedings took place behind his back and there was no opportunity accorded to him. The Inspector rejected this representation on July 29, 1975 observing that prior to March 15, 1975 there was no question of his approval being obtained in the matter of punishment inflicted by the Management against a clerk in the educational institution. An appeal was filed by the Petitioner against this order to the Deputy Director of Education on September 24, 1975. The appellate authority declined to entertain the appeal on the ground that prior to March 15, 1975 Section 16-G of the Intermediate Education Code or any other provision for that matter did not apply and there was no provision to accord approval to the punishment by the District Inspector of Schools or an appeal being filed to the Deputy Director of Education. This order by the appellate authority was passed on June 25, 1976. Aggrieved the Petitioner has approached this Court.

The sole question for determination before the Court at this stage is whether the appeal lay to the Deputy Director of Education. The Intermediate Education Act, 1921 as originally framed was concerned only with the establishment of the Board of High School and Intermediate Education and the constitution thereof. It did not contain any provision with respect to the conditions of services of the teachers or other employees. All that was left to be governed under the terms of the agreement entered into by the Management. Nor was anything in this direction introduced by the amendment brought by the U.P. Act V of 1941 or 4 of 1950. The U.P. Act XXXV of 1958 introduced for the first time Sections 16-A to 16-G in the parent Act. Section 16-G (1) provided that every person employed in a recognised institution shall be governed by such conditions of service as may be prescribed by Regulations and any agreement between the management and such employee in so far as it is consistent with the provisions of this Act or with the Regulations shall be void. According to Clause (a) of Sub-section (2), the Regulations could provide, inter alia, the procedure and conditions for punishment and termination of service with notice. Section 8 (l) of the Amending Act, 1958 stated that the State Government could make within one year from the commencement of the Act Regulations in respect of matters covered by Sections 16-A to 16-G. With effect from February 18, 1959 these provisions were amended. Section 16-G, in so far as relevant, provided subsequent to this amendment that the existing agreement between the Management of Institution on the one hand and any Principal, Head Master or teacher as the case may be on the other, in so far as they were inconsistent with the provisions of this Act or with the Regulations shall be void. Sub-section (2) was omitted. It will be noticed that Section 16-G as introduced by the amending Act, 1958 and also as amended thereafter with effect from February 18, 1959 remained confined in its application to Principal, Head Master and teachers. Nothing was provided therein in relation to clerks. The U.P. Act VI of 1959 did not improve upon this. Section 16-G underwent a change by the U.P. Ordinance XVIII of 1975 which was replaced by the U.P. Act XXVI of 1975. Sub-section (1) of Section 16-G as now in force relates to conditions of service of Head of Institution, Teachers and also other employees. It provides that every person employed in a recognised Institution shall be governed by such conditions as may be prescribed by Regulations and any agreement between the Management and such employee in so far as it is consistent with the provisions of this Act or with the Regulations shall be void. Clause (a) of Sub-section (2) as amended above also stands restored. It is clear thus that in so far as the Intermediate Education Act is concerned, it remained silent till the U.P. Ordinance XVIII of 1975 came into force with respect to the conditions of service governing the clerks of recognised educational Institutions.

In exercise of powers u/s 8(1) of the U.P. (Amendment) Act, 1958 the State Government framed Regulations on 24th November, 1959. In matters of termination of service, these Regulations did not govern the Clerks. The Explanation to Regulation 24 (Chapter III) specified that the provisions for termination of service governed only teachers, Principal and Head Master. Regulation 31 (Chapter III) as now in force read along with Section 16-G as amended by the U.P. Act XXVI of 1975 does, of course, provide for prior approval of the District Inspector of Schools to any punishment being imposed against any employee including a clerk in these Institutions.

For the Petitioner the attention of this Court was invited to provisions contained in paragraph 293 (2) of the Education Code. In so far as relevant para. 293 (2) shows that the conditions of service of Head clerk. Clerk and Librarian appointed substantively on probation shall be governed by the draft agreement executed by him and the Management Committee on a stamped paper of value. The approved form of agreement applicable in relation to this class of employees appears as Appendix VII to this Code. Clause (10) of this approved form envisages an stipulation to the effect that the Committee shall not terminate the agreement in any case unless a resolution to this effect has been passed, at a meeting of the Committee especially convened for the purpose, by a two-third majority of the members present and voting and unless adequate reasons for such action are recorded in the resolution. It says further that before the termination of an agreement the Manager should consult the District Inspector of Schools and should give full reasons for willing to discharge the officials and that the action proposed to be taken by the manager should only be valid if the Inspector approves. If the Manager or the clerk is dissatisfied with the decision of the Inspector an appeal would lie to the Regional Deputy Director of Education concerned within three months. The application of paragraph 293 (2) Education Code is dependent on proof that agreement in the approved form was entered into between the Petitioner on his appointment as a clerk on the one hand and the management on the other. In the instant case the management contends that no such agreement came into being. In support of this contention the management has cited Manager''s returns for the years 1966-67 to 1969-70 and urged that the Petitioner himself mentioned in the relevant column in these returns that there was no such agreement existing. The Petitioner has sought to explain these returns in his rejoinder affidavit and has also sought to place reliance on an affidavit of the Principal of the college. For the purposes of this case, however, it may be assumed as contended by the management that no such agreement came into existence. I proceed accordingly on the basis that an agreement such as referred to by the Petitioner was not executed.

This leaves us with paragraph 143 (i) of the Education Code read along with Government order dated June 4, 1966 (Annexure V-A to the writ petition). This provides that the punishment and appeal of Headmasters/ Principals/Teachers/Clerks including Librarians shall be regulated in accordance with the provisions of Section 16-G and Regulations made thereunder and further that on any matter not covered by the provisions referred to above an appeal shall lie to the competent authority under the Act whose decision shall be final. This means in other words that though Section 16-G (as existing prior to the U.P. Ordinance XVIII of 1975) and the Regulations framed there under did not in terms apply to the case of a clerk, there were executive instructions issued on June 4, 1966 to enforce them and making them applicable with respect to this class of employees as well. These executive instructions thus brought into picture Section 16-G (3) read with Regulations 31 to 45 as then existing with respect to punishment, enquiry and suspension. They provide, interalia, for an approval of the Inspector to termination of service. An appeal lies to the Deputy Director of Education against an order of the Inspector approving or disapproving the punishment. Section 16-G (3)(b), it may be pointed, shows that the Inspector may approve or disapprove or reduce or enhance the punishment or approve or disapprove the notice for termination of service proposed by the Management. According to Clause (c) of Section 16-G (3) an appeal against the order of the Inspector under Clause (b) may be made to the authority specified therein. Regulation 31 specifies the punishments including the dismissal from service which may be imposed but subject to the prior approval of the Inspector. In view, therefore, of the Government order dated June 4, 1966 read along with these provisions of Section 16-G/Regulations 31 to 45 as then existing it may not be said that even prior to the U.P. Ordinance XVIII of 1975 coming into force prior to the approval of the Inspector was not required for purpose of imposition of punishment or dismissal or that an appeal against the order of the Inspector did not lie. In the present case the Inspector/Deputy Director of Education overlooked, it seems, the Government order dated June 4, 1966 referred above.

The law as laid by this Court is settled that paragraph 143 of the Education Code comprises executive instructions. It does not have the status of statutory rules. In Dhata Intermediate College v. Brahma Nand Singh 1975 ALR 655 a Division Bench of this Court held that Rule 143 (1) of the Education Code remains executive instruction and cannot be given the status of statutory rule despite Rule 2 Chapter XVII of the Regulations which says that the rules of the Education Code shall apply to all the Institutions recognised by the Board in so far as they are not inconsistent with the Regulations. Reference in this connection was also made to the earlier decision of another Division Bench in Muslim Association Kanpur v. Hamid Husain Second Appeal No. 831 of 1970, decided on February 25, 1972. In so far as the instructions contained in the Government order dated June 4, 1966 are concerned they are undisputedly executive in nature. The Petitioner in the instant case has, however, not sought that this Court may pass an order quashing the punishment of dismissal imposed upon him by the Management. The executive instructions referred to above cast upon the Deputy Director of Education the public duty to entertain and decide upon merit an appeal against an order of the District Inspector of Schools whereby he approves an order imposing punishment or declines to interfere with the order of punishment made by the Committee of Management. The appeal in other words concerns adjudication of a right in which the Petitioner has legal interest and it seeks enforcement of a public duty enjoined upon a Public Officer. The chief function of the writ of mandamus is to compel the performance of the public duties prescribed by statute and to keep subordinate bodies and tribunals exercising public functions within their jurisdiction. It is not necessary however, that the duty be imposed by statute, mandamus lies as well for the enforcement of a common law duty (Farris-The Law of Extra Ordinary Legal Remedies) (1926) Page 223, Mandamus lies to secure the performance of the public duty in the performance of which the applicant has a sufficient legal interest, the applicant must show that he has demanded performance of the duty and that performance has been refused by the appellate authority to discharge it. To be enforceable by mandamus a public duty does not necessarily have to be one imposed by the Chapter, Common law, custom or even contract (See: De Smith: Judicial Review of Administrative Action, 4th Edition, (1980) P. 540). It is true that in general administrative instructions which seek to apply only to a particular individual cannot be treated to have the force of law as statutory rules. Certain class of administrative action of General application can, however, be enforced in courts. The reason for holding this class of administrative instruction to be justiciable is two fold. In the first place, it is open to the Government to fill in a lacuna in the rules by administrative instructions in such a manner as not to override any provision of the rules vide Union of India (UOI) Vs. K.P. Joseph and Others, ; Sant Ram Sharma Vs. State of Rajasthan and Another, . Secondly if the administrative instruction of General application is made the State should apply the same to all its employee alike and without distinction. The ratio is that State cannot depart without reason and arbitrarily from a general policy decision taken by itself for such departure may result in discrimination and violation of the general principle of administrative law. The public duty being thus enjoined upon the Deputy Director of Education in this behalf as appearing from the Government order dated June 4, 1966 read along with paragraph 143 (1) of the Education Code, he cannot arbitrarily, it would appear, decline to entertain or decide the appeal upon merit in accordance with law and in an appropriate case this Court may issue a writ of mandamus directing him to perform the said public duty.

The petition, accordingly, succeeds and is allowed. The order passed by the Deputy Director of Education dated June 25, 1976 is set aside. He is directed to entertain and decide on merits in accordance with law after giving opportunity to both the parties the appeal preferred by the Petitioner before him against the order of the District Inspector of Schools dated 29th July 1975. No order as to costs.