Committee of Management, Acharya Raghubir Inter College vs State of U.P. and Others

V.K. Shukla, J.—The Committee of Management of Acharya Raghubir Inter College, Kanpur Nagar through its manager, Dr. Arvind Dixit, has approached this Court, questioning the validity of decision dated 30.8.2010 taken by the District Inspector of Schools, Kanpur, proceedings disapprove the suspension of Hari Prakash Tiwari as Principal of the said College, with a further direction to ensure payment of entire remuneration. Brief background of the case, as disclosed from the record, is that in the district of Kanpur Nagar, there is a recognized institution known as Acharya Raghubir Inter College, Kanpur Nagar. Affairs of the said institution are being run and managed as per provisions of U.P. Act No. 2 of 1921. Said institution in question is not at all on grant-in-aid list of the State Government, as such provisions of U.P. Act No. 24 of 1971 are not at all applicable to the said institution. The institution in question has been accorded VITT VIHIN recognition in terms of Section 7A of U.P. Act No. 2 of 1921. In the said institution Hari Prakash Tiwari was appointed as its Principal in the year 1990; he has been functioning in the said capacity and salary was being ensured to him from the resources generated by the Committee of Management of the institution. The Committee of Management took over the charge in the year 2008; allegation of the Committee of Management was that the Principal of the institution at no point of time had been cooperating and at all point of time he flouted the directives issued by the Committee of Management. In such a situation and in this background, the Committee of Management resolved to place Hari Prakash Tiwari under suspension on 25.5.2009. Charge sheet dated 8.6.2009 was served on Hari Prakash Tiwari, reply to which was submitted by him on 27.7.2009. It appears that, as nothing was being done by the Committee of Management after placing him under suspension, Hari Prakash Tiwari preferred writ petition No. 67648 of 2009. This Court on 11.12.2009 asked the District Inspector of Schools to look into the matter and take appropriate decision. The District Inspector of Schools, thereafter, took the proceedings and on 30.8.2010 proceeded to pass order revoking the suspension on the ground of lack of authority to pass the order of suspension and further directed for ensuring payment of salary. At this juncture, present writ petition has been filed by the Committee of Management.

Sri Ashok Khare, Senior Advocate, assisted by Sri Sunil Kumar Srivastava, Advocate, appearing for Hari Prakash Tiwari, at the very outset, contended that his client does not intend to file any counter affidavit and on the basis of arguments advanced, writ petition be heard and disposed of, as issue involved in present case is one of the jurisdiction, which requires no pleadings, whatsoever. In such a situation and in this background, present writ petition is being finally heard and disposed of with the consent of parties. Learned standing counsel also consented to this proposal.

Sri Ashok Mehta, Advocate contended with vehemence that appointment of Hari Prakash Tiwari had been made following the provisions as contained u/s 7AA of U.P. Act No. 2 of 1921, in such a situation and in this background, the Committee of Management of the institution in question had got absolute authority to place the incumbent under suspension, and the District Inspector of Schools has got no authority to set aside the aforementioned order on the ground that under the Government Order dated 10.8.2001 there is no authority to place the incumbent under suspension, as such writ petition deserves to be allowed.

Sri Ashok Khare, Senior Advocate, countered the said submission by contending that the provisions of Section 16G (7) of U.P. Act No. 2 of 1921 are fully applicable and as suspension order has not been approved within sixty days, as such by operation of law, said suspension order became non-existent; in such a situation and in this background, the order which has been passed, requires no interference by this Court. Coupled with this, it has also been sought to be contended that the power of suspension has been misused in the present case as even the amount due has not been paid, and further even after submission of reply to the charge sheet not even a single step has been taken up to conclude the disciplinary proceedings and to bring the same to its logical end, as such writ petition, in the facts of the case, deserves to be dismissed.

Learned standing counsel contended before this Court that since both the contesting parties have argued the matter, the issue being legal one, same be answered accordingly.

In order to appreciate the respective arguments advanced on behalf of the parties, the relevant provisions, which deal with the recognition and employment of part time teachers or part time instructor, are being looked into.

For Vitt Vihin recognition and appointment of part-time teachers/instructors, the provision has been introduced, the State Government issued an Order dated 14.10.1986 followed by another Government Order dated 3.8.1987. Relevant extract of the said Government Orders are being excerpted below:

In this context the provisions of Sections 7 (4), 7A, 7AA, 7AB of U.P. Act No. 2 of 1921 after being introduced and made part of the Statute are being quoted below:

Section 7 (4): to recognize institution for the purposes of this its examination.

7-A. Recognition of an institution in any new subject or for a higher class.--Not withstanding anything contained in clause (4) of Section 7--

(a) the Board may, with the prior approval of the State Government, recognize an institution in any new subject or group of subjects or for a higher class.

(b) The Inspector may permit an Institution to open a new section in an existing class.

7AA. Employment of part time teachers or part time instructors.- (1) Notwithstanding anything contained on this Act, the management of an institution may, from its own resources, employ-

(i) as an interim measure part time teachers for imparting instructions in any subject or group of subjects or for a higher class for which recognition is given or in any Section of an existing class for which permission is granted u/s 7A;

(ii) part-time instructors to impart instructions in moral education or any trade or craft under socially useful productive work or vocational course.

(2) No recognition shall be given and no permission shall be granted u/s 7A, unless the Committee of Management furnishes such scrutiny in case or by way of Bank Guarantee to the Inspector as may be specified by the State Government from time to time.

(3) No part time teacher shall be employed in an institution unless such conditions may be specified by the State Government by order in this behalf are complied with.

(4) No part time teacher or part-time instructor shall be employed unless he possesses. The view taken by the District Inspector of Schools is correct view and warrants no interferences such minimum qualifications as may be prescribed.

(5) Apart-time teacher or a part-time instructor shall be paid such honorarium as may be fixed by the State Government by general or special order in this behalf.

(6) Nothing in this Act shall preclude a person already serving as a teacher in an institution from being employed as a part time teacher or part-time instructor u/s 7AA.

7AB. Exemption. Nothing in the Uttar Pradesh High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (U.P. Act No. 24 of 1971) or the Uttar Pradesh Secondary Education Services Selection Boards Act, 1982 (U.P. Act No. 5 of 1982) shall apply in relation to part time teacher and part-time instructor employed in an institution u/s 7AA.

Section 7A was substituted in the Statute by an amendment with effect from 14.10.1986 by means of U.P. Act No. 18 of 1987 and same provided for that not withstanding anything contained in sub-sections (4) of Section 7; (a) the Board may, with the prior approval of the State Government, recognize an institution in any new subject or group of subjects or for a higher class; (b) the Inspector may permit an Institution to open a new section in an existing class. Section 7 enumerates the power of the Board and in sub-section (4) thereof one of the powers vested in the Board is to recognize the institutions for the purposes of its examinations. Section 7AA, inserted by U.P. Act No. 18 of 1987 makes provisions for employment of part-time teachers or part-time instructors also. It provides inter alia that notwithstanding anything contained in this Act, the Management of an institution may, from its own resources, employ-(i) as an interim measure part-time teachers for imparting instructions in any subject or group of subjects or for a higher class for which recognition is given or in any Section of an existing class for which permission is granted u/s 7A; (ii) part-time instructors to impart instructions in moral education or any trade or craft under socially useful productive work or vocational course. Sub-sections (3) to (5) of Section 7AA lay down pre-conditions for appointment of part-time teachers. Sub-section (6) of Section 7-AA provides that nothing in the Act shall preclude a person already serving as a teacher in an institution from being employed as a part-time teacher or part-time instructor u/s 7AA of the Act.

As the arrangement to be made for employment of part-time teacher or part-time instructor was not saddling the State Government with any financial liability and entire expenditure on the said score was to be arranged by the Committee of Management of the institution from its own resources, the position was made more clear under U.P. Act No. 18 of 1987 that in relation to part-time teacher and part-time instructor employed in the institution u/s 7AA, the provisions of U.P. Act No. 24 of 1971 and U.P. Act No. 5 of 1982 will not be applicable. This specific provision clearly intended to make the position clear that by acquiring the status of part-time teacher or part-time instructor, an incumbent would ipso fact not be entitled to any payment under U.P. Act No. 24 of 1971, and further as no creation of post is involved, as such there is no occasion for making any selection and appointment under the provisions of U.P. Act No. 5 of 1982, and thus giving a free hand to the Management to make selection and appointment of part-time teacher and part-time instructor from their own personal resources, ignoring the provisions of U.P. Act No. 5 of 1982, inasmuch as Section 16 of U.P. Act No. 5 of 1982 clearly provides that appointment of any incumbent as mentioned in the Schedule without the recommendation of the Board would be void and illegal.

This is not disputed that the institution in question has been accorded recognition in terms of the provisions of Section 7A of U.P. Act No. 2 of 1921. When recognition was accorded to the said institution by U.P. Madhyamik Shiksha Parishad, at the said point of time this fact is also not disputed that selection and appointment of part-time teacher and part-time instructor was to be made strictly in consonance with the provisions as contained in Government Order dated 14.10.1986 read with Government Order dated 3.8.1987 and the selection proceedings had been undertaken also as per Government Order holding the filed and at no point of time any proceeding had been undertaken for making selection and appointment on the post of Head Master and Principal as is enumerated either under U.P. Act No. 2 of 1921 or U.P. Act No. 5 of 1982.

Under U.P. Act No. 2 of 1921 and the Regulations framed thereunder for making selection and appointment of Principal/Teacher, Selection Committee has to be constituted in terms of Section 16F and procedure provided for under Chapter II Regulations 10 to 15 has to be adhered to and before said appointment is to be finalized by issuance of appointment letter, the District Inspector of Schools has to examine the validity of said appointment. Similarly, under U.P. Act No. 5 of 1982 read with Rules, altogether a different procedure has been provided for in the matter of selection and appointment of Principal and Teacher. Accepted position is that at no point of time while making selection and appointment of petitioner as Principal, either the provisions as contained and noted above under U.P. Act No. 2 of 1921 or U.P. Act No. 5 of 1982 had ever been followed, rather petitioner''s selection and appointment has been made in consonance with the two Government Orders quoted above, namely, Government Orders dated 14.10.1986 and 3.8.1987.

The provisions in reference to payment of salary to part-time teachers and part-time instructors, qua their rights, has been subject matter of consideration before Full Bench of this Court in the case of Gopal Dubey Vs. District Inspector of Schools, Maharajgani and another, . The Court held as under:

Section 7 of the said Act, enumerates power of the Board. In sub-section, (4) thereof one of the powers vested in the Board is to recognise institutions for the purposes of its examinations.

In Section 7A, which was substituted in the statute by amendment with effect from 14.10.1986 by U.P. Act No. XVIII of 1987, it is laid down that notwithstanding anything contained in clause (4) of Section 7, (a) the Board may, with the prior approval of the State Government, recognise an institution in any new subject or group of subjects or for a higher class; (b) the Inspector may permit an Institution to open a new section in an existing class.

Section 7AA, which was inserted by U.P. Act XVIII of 1987 makes provision for employment of part time teachers or part lime instructors. It provides, infer alia, that notwithstanding anything contained in this Act the management of an institution may from its own resources employ: (i) as an interim measure part time teachers for Imparting instructions in any subject or group of subjects or for a higher class for which recognition is given or in any section of an existing class for which permission is granted u/s 7A; (ii) part time instructors to impart instructions in moral education or any trade or craft under socially or useful productive work or vocational course. Sub-sections (2) to (5) lay down preconditions for appointment of a part time teacher. In sub-section (6) of Section 7AA it is provided that nothing in the Act shall preclude a person already serving as a teacher in an institution from being employed as a part time teacher or a part time instructor u/s 7AA. In this connection a provision in the Regulations framed under the Intermediate Education Act is relevant. In Regulation 19 under Chapter II of the Regulations, it is laid down that where any person is appointed as, or any promotion is made on any post of head of Institution or teacher in contravention of the provisions of this Chapter or against any post other than a sanctioned post, the Inspector shall decline to pay salary and other allowances, if any, to such person where the Institution is covered by the provisions of the U. P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act. 1971 and in other case shall decline to give grant for the salary and allowance in respect of such person.

In the present case, accepted position is that as far as Hari Prakash Tiwari is concerned, his selection and appointment at no point of time had been made as per provisions contained under Sections 16E and 16F of U.P. Act No. 2 of 1921 read with Chapter II Regulations 10 to 16 of the Regulations framed thereunder nor under the provisions of U.P. Act No. 5 of 1982 and Rules framed thereunder. Once this is accepted position that the appointment of Hari Prakash Tiwari had been made after following the procedure as provided for under the Government order meant for part time teachers and part-time instructors, then in such a situation and in this background, the protection as is envisaged u/s 16G of U.P. Act No. 2 of 1921 is available or not, is the core issue. This Court in the case of Dharmendra Pal Dwivedi Vs. District Inspector of Schools, Bulandshar and another, , took the view that on institution being recognized, consequences flowing from recognition would flow and consequently regulations governing condition of service would apply. This Court in the case of Smt. Shashi Kala Singh Vs. District Inspector of Schools, Mahrajganj and others, , decided on 30.8.2000 took the view that the provisions of Section 16G (3) of U.P. Act No. 2 of 1921 are applicable and attracted in the facts of the case. Relevant portion of the judgment is being quoted below:

.....Appointment of a part time teacher u/s 7AA in an Institution, which has been given Vitta Vihin recognition, is not required to be made in the manner prescribed by Section 16-F of the Act and the Regulations made thereunder. But that by itself does not lend support to the interpretation that the part-time teachers appointed u/s 7-AA of the Act could be given tertiary treatment and dealt within arbitrary fashion by the Management. An element of public interest is involved both in the appointment and termination of services of such teachers in that the duties and functions of such teachers have the complexion of public nature. No person having requisite qualification prescribed in Appendix A to Regulation of Chapter II of the Act can be appointed as part time teacher u/s 7AA of the Act and once a teacher is appointed u/s 7-AA, he acquires a right to be dealt with reasonably by the management. The principle contained in Section 16-G (3) (a) of Chapter III of the Regulations made under the Act, being of regulatory nature, would be attracted even in relation to part-time teacher appointed u/s 7AA of the Act and by this reckoning, obligation is cast upon the District Inspector of Schools to ensure that such teachers are not dealt with by the Management in antagonism of the principle of natural justice. It would be contrary to public policy and public interest to clothe the Management of an institution with unfettered power to terminate the services of part-time teachers who perform as much public function as regularly appointed teachers. Even the District Inspector of Schools was of the view that the Management could not terminate the services of part-time teachers arbitrarily and in breach of the canon of natural justice but he failed to examine whether in the present case, the Management acted arbitrarily and in violation of rules of natural justice which are embodied in Regulations 36 and 37 of Chapter III of the Regulations made under the Act. The non-obstinate clause ''notwithstanding'' in Section 7-AA overrides the provisions of the Act in so far as method of appointment of part time teachers and instructors is concerned. In my opinion, it does not exclude the applicability of Section 16-G of the Act and related provisions of the Regulations. Section 16-E (10) of the Act will also be attracted in appropriate cases e.g. where the appointee does not possess the requisite qualification, the appointment will be liable to be cancelled by competent authority. Though there is no need for creation of posts of part time teachers, employment of part time teachers too is ''Niyamit'' (regular) subject to certain conditions as visualized by condition No. 4 of the G.O. darted 15.10.1986. Since prior approval of District Inspector of Schools as visualized by Section 16-G (3) of the Act has not been obtained, and the validity of the decision of the Management has not been examined on the anvil of canons of justice and fair play, the order impugned herein cannot be sustained.

Before parting with the case, I would like to observe that the question whether the post of Principal will also come under the provisions of Section 7-AA of the Act is left open to be decided by District Inspector of Schools and the parties are given liberty to have their say on the point before the District Inspector of Schools, who will examine the question keeping in mind clause 5 of the recognition order dated 16.1.1997. Appointment in the instant case was made not on a fixed honorarium but in a given scale of pay i.e. 2000-3500. In case, it is found that the post of Principal would be deemed to have been created in view of clause 5 of the recognition order, whole complexion of appointment would be changed. The post of Principal in that event would go out of the purview of Section 7AA of the Act and will have to be filled in accordance with the provisions of the U.P. Secondary Education Service Selection Board Act, 1982.

Subsequently the judgment of Shashi Kala Singh (supra) was disapproved by this Court in the case of Smt. Sumanlata Sharma Vs. Regional Joint Director of Education, Meerut and others, . Relevant paragraphs 4 to 7 are being extracted below:

Sri S.P. Pandey the learned standing counsel has urged that the petitioner was not working against any sanctioned post, therefore, she was not entitled for any salary. He urged that the petitioner was not entitled to claim regularization of service and the provisions of U.P. Act No. 5 of 1982 is not applicable to a part time teacher or a teacher who is worming on a post which has neither been created nor sanctioned under the Salaries Act. He urged that in view of the Full Bench decision of this Court in Gopal Dubey Vs. District Inspector of Schools, Maharajgani and another, , the petitioner is not entitled for any relief.

From the facts stated above it is clear that even though the permission to teach science subjects was granted in 1982 but when the petitioner was appointed in July, 1989 in pursuance of advertisement dated 28.6.1989 Section 7A had been substituted and Section 7AA had been inserted on 14.10.1986 by U.P. Act No. 18 of 1987. Since the permission granted by the authorities was ''Vitta vihin'' that is unaided, and no post was sanctioned or created, the appointment of the petitioner could be part time or honorarium. In the first appointment letter she was appointed on a salary of Rs. 450/- per month. The second letter filed as Annexure-3 to the petition appointing her in 1995 shows that she was appointed as part-time assistant teacher on a salary of Rs. 550/- per month. The allegation in the counter affidavit filed in earlier writ petition shows that she used to be engaged for nine or ten months in a year. The petitioner does not claim that the statement of fact in the counter affidavit is incorrect. Her entire claim is based on length of period she has been serving and applicability of U.P. Act No. 5 of 1982. It is true that the petitioner appears to have worked for more than ten years on a meagre salary. She is M. Sc. B. Ed. She might have accepted the appointment in the hope that sooner or later she would be absorbed as a regular teacher. But the expectations did not materialize. She had to approach this Court thrice. It is unfortunate. But no amount of sympathy or compassion can overcome the law. The petitioner can succeed only if she can be held to have some right either for regularization or salary. This Court in Full Bench decision in Gopal Dubey (supra) has held that if permission to teach a subject has been granted but the post has not been created or sanctioned under the Salaries Act then no salary could be paid to the teacher from the grant-in-aid received from the Government. The learned counsel for the petitioner urged that in view of the decision of Apex Court in Chandigarh Administration (supra) the respondents cannot refuse payment of salary to the petitioner who is teaching science subject in High School classes. And non-payment of salary amounted to discrimination as other teachers working in the institutions are being paid salary from the grant-in-aid received from the Government. This argument is devoid of any merit. This Court in Civil Misc. Writ Petition No. 29097 of 1998, Mohammad Fuzail Ansari Vs. State of U.P. and Others, , has held that the decision of Apex Court could not help a teacher who has been appointed on a post which has not been created or sanctioned,

Shri Khare urged that Section 7A and Section 7AA of Act came into force with effect from 14.10.1986 but since recognition for teaching science subject having been granted on 31.8.1982 with effect from 1984 High School Examination, the amended provisions did not apply and the petitioner could not be treated to be a part-time teacher. The argument is devoid of any substance. The petitioner can claim right on the law prevalent on the date of her appointment and not on the law as it was when permission was granted. And in 1989 the date of her first appointment, Sections 7A and 7AA had come into force, therefore, she could be treated either a part-time teacher or honorary assistant teacher. The recognition granted in 1982 was of no consequence. If the argument of the learned counsel for the petitioner is accepted it would be in contrary to statutory provisions. The nature of petitioner''s appointment has been explained in the counter affidavit filed by the principal of the institution in Civil Misc. Writ Petition No. 38018 of 2000. It shows that the petitioner was never appointed as a regular teacher in the institution. And since she did not accept the appointment made by the management on 1.7.2000 as a part time teacher the petitioner cannot claim that she has acquired any right to continue as a teacher in the institution. Even if the petitioner had worked for short period in the institution from time to time for more than ten years, it would not confer any right on her to claim a regular appointment or claim that she be regularized in the institution. The claim that one lady teacher Smt. Krishna Mukherjee was appointed in 1991 for teaching Biology to High School classes and she has been granted approval and her salary is being paid by D.I.O.S. cannot be accepted as the learned counsel for the petitioner has not filed the order of the D.I.O.S. by which salary is being paid to Smt. Krishna Mukherjee. Further it was not raised before the D.I.O.S. In absence of any material to support the assertion made in paragraph 14 of writ petition, it cannot be accepted that Smt. Krishna Mukherjee is being paid salary against a post which is not created or sanctioned under the Salaries Act.

The petitioner having been appointed in 1989 against a post which was neither sanctioned nor created but to teach a subject for which permission was granted, her appointment could be deemed to be u/s 7AA only. A Full Bench of this Court in Kumari Radha Raizada Vs. Committee of Management, Vidyawati Darbari Girls Inter College and Others, , had considered the question of ad-hoc short term appointment on a post of teacher which has occurred and remained unfilled due to non-appointment of a regular teacher selected by Commission under U.P. Act No. 5 of 1982. In his separate but concurring judgment Hon''ble G.P. Mathur, J. in paragraph 72 has observed that the management could make arrangement during the interregnum by appointing suitable persons and pay them salary out of its own resources. And it was not repugnant to any statutory provision or scheme of the Act. The management could appoint or employ qualified persons who may be even retired teachers u/s 7AA of the Act as part-time teachers for the period of interregnum. In another Division Bench judgment of this Court in Tulsi Ram and others v. State of U.P. and others, 1998 (3) ESC 1617, it had been held that the part-time teachers appointed u/s 7AA are not regularly appointed teachers. They are engaged for imparting instructions on the part-time basis for which the Board has granted permission u/s 7A of the Act. The provisions of Salaries Act and U.P. Act No. 5 of 1982 are not applicable in relation to part-time teachers and part-time instructors employed in the institution u/s 7AA of the Act. The Bench held that three years'' teaching experience of part-time teachers working in any recognized institution cannot be deemed to be equivalent to three years teaching experience of regularly selected teachers according to Rules. It is, thus clear that a part-time assistant teacher or a teacher engaged on honorarium is not a regular teacher. The U.P. Act No. 18 of 1987 in the Act inserted Section 7A and 7AA. The objective of these provisions is that studies of the students may not suffer due to non-availability of the regularly selected teachers. They are engaged by the management on part-time basis, without obtaining the approval of the District Inspector of Schools and they can be disengaged by the management either at the end of the session or when the necessity to continue such teachers comes to an end. There is no bar or restriction against such disengagement. Thus, part-time teachers cannot be deemed to be a teacher as mentioned in Section 16G of the Act and Regulations framed thereunder. The decision of this Court in the case of Shashi Kala Singh (supra) is of no help to the petitioner as in this decision the Court was not concerned with regularization or payment of salary. Further this decision was obtained on incorrect facts. The Hon''ble Judge was led to believe that the employment of even part-time teacher was "Niyamit". The actual word in the Government Order is "Niyantrit". But in the photocopy attached with the supplementary affidavit to the writ petition of Shashi Kala Singh (supra) only the first three letters Niyamiti were legible and the learned Judge reading it as "Niyamit" held that appointment of part-time teacher being "Niyamit" (regular) his services could not be terminated without complying Section 16G of the Act. But with the word "Niyantrit" the entire meaning changes. The petitioner was a part-time teacher or honorary teacher therefore, could not claim payment of salary under the Salaries Act as Section 7AB inserted by U.P. Act No. 18 of 1987 exempts applicability of Act to part-time teachers. The decision in Dharmendra Pal Dwivedi (supra) is also of no help. It was concerned with Regulation 29. The Court was not concerned with nature of appointment, as an assistant teacher u/s 7AA of the Act.

Judgment quoted above has been followed in the case of Rajendra Singh Vs. District Inspector of Schools, Fatehpur and others, , decided on 11.12.2000, clearly taking the view that part time teachers cannot be kept at par with regular teachers appointed under U.P. Act No. 2 of 1921, and in such a situation the Committee of Management has got unfettered right in such matters. Relevant paragraphs 3 and 4 of the said judgment are being quoted below:

On the other hand, Sri K.K. Chand, the learned Standing Counsel, has urged that decision of this Court in Civil Misc. Writ Petition No. 51940 of 2000, Smt. Sumanlata Sharma Vs. Regional Joint Director of Education, Meerut and others, , it has been held that a part-time teacher appointed u/s 7AA of the U.P. Intermediate Education Act, 1921 (in brief Act) is not a teacher as envisaged u/s 16G of the Act. The service conditions of such teachers are to be governed by the Government Order dated 15.10.1986. The Government Order dated 15.10.1986 provided that the scheme of engaging part-time teachers is being made on experimental basis for imparting education in the interest of students and the payment was to be made from the own funds of the management. The Government Order further provided that there was no age limit for appointing any person as part time teacher and even a retired person could be appointed as part-time teacher.

A teacher working in a recognised unaided institution could not be said to be a regular teacher as envisaged by Section 16G of the Act. He can only be a part-time teacher or an honorary teacher. He could be engaged or disengaged by the management, which pays honorarium from its own resources. The controversy involved in the case is covered by the decision of this Court in Suman Lata (supra).

In the case of Smt. Shashi Kala Singh v. District Inspector of Schools, Maharajganj, Civil Misc. Writ Petition No. 1070 of 2001, decided on 5.2.2001, in the second round of litigation, this Court found earlier decision inter se parties binding, the District Inspector of Schools was obliged to consider the matter as to whether the order passed terminating the services of Shashi Kala Singh should be approved or not qua applicability of Section 16G of U.P. Act No. 2 of 1921, no independent adjudication has been done, and on the premises of earlier judgment being there inter se parties, said view has been taken.

As there has been conflicting view, the State Government in its wisdom on 10.8.2001 proceeded to fix and prescribe the terms and conditions of teachers, who have been appointed in exercise of authority vested u/s 7AA of U.P. Act No. 2 of 1921. Relevant portion of the Government Order dated 10.8.2001 is being quoted below:

Division Bench of this Court in the case of Committee of Management v. District inspector of Schools, Shahjahanpur, 2003 (3) ESC 1388, has also taken the view that service conditions of part-time teachers are to be governed by the Rules made in this regard. In the case of Dr. Bhimrao Ambedkar Shiksha Samiti v. State of U.P. and others, writ petition No. 58230 of 2005, decided on 5.9.2005 this Court took the view that in respect of part-time teachers though not provided in the Government Order 10.8.2001, in view of the provisions of Section 16 of the U.P. General Clauses Act, 1897, Committee of Management of the institution has the authority to pass order of suspension. Paragraphs 9 to 16 of the said judgment being relevant are being quoted below:

The District Inspector of Schools records that since there is no provision for suspending a Teacher under the Government Order dated 10.8.2001, therefore, the Committee of Management could have only proceeded to seek approval with regard to termination of the services of Respondent Nos. 4 and 5. In essence, the action of the Committee of Management in suspending the Respondent Nos. 4 and 5 was presumed to be without authority in law on the aforesaid basis by the District Inspector of Schools. Even assuming for the sake of argument that the Respondent Nos. 4 and 5 enjoyed the status of a part time Teacher, the aforesaid presumption of the District Inspector of Schools that the Committee did not have any power to suspend them from their services is unsustainable in law for the following reasons:

The Apex Court on the aforesaid issue had the occasion to pronounce upon such a situation by referring to Section 16 of The Uttar Pradesh General Clauses Act, 1897 quoted herein below:

Power to appoint to include power to suspend, dismiss or otherwise terminate the tenure of office.-Where, by any Uttar Pradesh Act, a power to make any appointment is conferred then, unless a different intention appears, the authority having for the time being power to make the appointment shall also have the power to suspend, dismiss, remove or otherwise terminate the tenure of office of any person appointed, whether by itself or any other authority, in exercise of that power.

In the case of R.P. Kapoor v. Union of India and others, (para 11) had to state as under:

The general principle therefore is that an employer can suspend an employee pending an enquiry into his conduct and the only question that can arise on such suspension will relate to the payment during the period of such suspension. If there is no express term in the contract relating to suspension and payment during such suspension or if there is no statutory provision in any law or rule, the employee is entitled to his full remuneration for the period of his interim suspension; on the other hand if there is a term in this respect in the contract or there is a provision in the statute or the rules framed thereunder providing for the scale of payment during suspension, the payment would be in accordance therewith. These general principles in our opinion apply with equal force in a case where the Government is the employer and a public servant is the employee with this modification that in view of the peculiar structural hierarchy of Government, the employer in the case of Government, must be held to be the authority which has the power to appoint a public servant. On general principles therefore the authority entitled to appoint a public servant would be entitled to suspend him pending a departmental enquiry into his conduct or pending a criminal proceeding, which may eventually result in a departmental enquiry against him. This general principle is illustrated by the provision in Section 16 of the General Clauses Act, No. X of 1897, which lays down that where any Central Act or Regulation gives power of appointment that includes the power to suspend or dismiss unless a different intention appears. Though this provision does not directly apply in the present case, it is in consonance with the general law of master and servant. But what amount should be paid to the public servant during such suspension will depend upon the provisions of the statute or rule in that connection. If there is such a provision the payment during suspension will be in accordance therewith. But if there is no such provision, the public servant will be entitled to his full emoluments during the period of suspension. This suspension must be distinguished from suspension as a punishment which is a different matter altogether depending upon the rules in that behalf. On general principles therefore the Government, like any other employer, would have a right to suspend a public servant in one of two ways. It may suspend any public servant pending departmental enquiry or pending criminal proceedings; this may be called interim suspension. On the Government may proceed to hold a departmental enquiry and after his being found guilty order suspension as a punishment if the rules so permit. This will be suspension as a penalty. These general principles will apply to all public servants but they will naturally be subject to the provisions of Article 314 and this brings us to an investigation of what was the right of a member of the former Secretary of State''s Services in the matter of suspension, whether as a penalty or otherwise.

The same view was reiterated by the Apex Court in the case of B.R. Patel v. State of Maharashtra.

The view that the power to terminate the services is a necessary adjunct of the power of appointment and also includes the power of suspension was re-affirmed by the Apex Court in the case of Heckett Engineering Company v. Workmen, (para 14). This view was again quoted with the approval by the Apex Court in the case of Scientific Adviser to the Ministry of Defence and Others Vs. S. Daniel and Others, .

A perusal of the Government Order dated 10.8.2001 indicates that the Management has been given the power to terminate the services of a part time Teacher in accordance with the aforesaid Rules. Applying the principles stated herein above, the power to suspend a part time Teacher can safely be read to be available to the management for proper and efficient administration of disciplinary proceedings. The Rules clearly contemplate the holding of an inquiry and, as such, the power to suspend could be exercised in contemplation of an inquiry. The District Inspector of Schools has been unable to appreciate the existence of such a power for the effective discharge of the duties of the Committee of Management and, as such, the conclusion drawn by the District Inspector of Schools is untenable. The power to suspend is clearly implied and is available to the Committee of Management in respect of part time Teacher as well.

This Court has had the occasion to consider the status of a part-time Teacher. A reference to Section 7AB would indicate that the Teachers appointed u/s 7AA are exempted from the applicability of the Payment of Salary Act and the Selection Board Act, 1982. No other provision of the U.P. Intermediate Education Act has been made inapplicable by the aforesaid provision. However, this Court in the case of Smt. Shashi Kala Singh Vs. District Inspector of Schools, Mahrajganj and others, , held that the regulations framed u/s 16-G of the U.P. intermediate Education Act to the extent that they are regulatory in nature can be made applicable in the case of part time Teachers. However, the aforesaid view taken by this Court met with disapproval in the case of Rajendra Singh Vs. District Inspector of Schools, Fatehpur and others, . Later on this Court in the Division Bench judgment relied by the learned counsel for the petitioner in Committee of Management v. District Inspector of Schools, Shahjahanpur, 2003 (3) ESC 1388, has held that the conditions of service of part time Teachers are to be governed by the Rules made in this regard. The Rules have now been framed by the State Government vide Government Order dated 10.8.2001 referred to herein above. In these circumstances, the services of part time teachers are being regulated under the aforesaid Government Order and, as such, compliance thereof has to be ensured.

Sri Khare has urged that there is absolutely no requirement of any approval from the District Inspector of Schools in respect of suspension as the Government Order does not make any such provision and to substantiate his plea he has relied on the Full Bench decision of this Court in the case of Smt. Shyama Verma v. Basic Education Board, U.P. Allahabad and others, (1995) 2 UPLBEC 779. In the aforesaid decision, the power for granting approval to the suspension of a Teacher in an institution governed by the Basic Education Act was under consideration. It was held that the order of suspension pending or in contemplation of inquiry is not a punishment and referring to Rule 4 of the Basic Education (Staff) Rules, the Full Bench concluded that no prior approval of the Basic Education Officer is required before suspending a Teacher. In the instant case, the Government Order dated 10.8.2001 does not require any prior approval for suspending a part time Teacher. However, the question as to what would be the enumeration payable to such a suspended part time Teacher has yet to be decided. Clause 6 of the said Government Order makes provisions for the payment of part time Teachers. The question as to what emolument would be payable to such a Teacher during the period of suspension has also to be taken into consideration and, as such, to that extent in the event there is a violation of the Government Order dated 10.8.2001, the District Inspector of Schools can be stated to have powers to examine such an issue. However, since the aforesaid controversy is yet to be decided in an appropriate case, the said question is left open for being adjudicated at the appropriate time.

Legal position on the subject is thus, clear that even in reference to part-time teachers, though it is not provided in the Government Order dated 10.8.2001, as the Committee of Management is vested with the authority to take disciplinary proceedings, and during this interregnum period till said proceedings are not finalised, the Committee of Management in exercise of its authority vested u/s 16 of the U.P. General Clauses Act is empowered to pass order of suspension. The authority of the Committee of Management of the institution in reference to part time teachers to pass order of suspension cannot be doubted on any score. Hon''ble Apex Court in the case of L.K. Verma Vs. H.M.T. Ltd. and Another, has taken the view that there are three kinds of suspension; (i) suspension may be passed by way of punishment in terms of Conduct Rules; (ii) suspension can be passed in exercise of inherent power, in the sense that work may not be taken from the delinquent official, but in that event salary has to be paid; and (iii) suspension order can be passed if there exist provisions in the Rules laying down that in place of full salary the delinquent would be entitled to subsistence allowance only.

In such a situation and in this background, once the Committee of Management of the institution happens to be the employer qua part time teachers, then to say and suggest that it has got no authority to place an incumbent under suspension or undertake disciplinary proceedings, cannot be accepted by any stretch of imagination, as an employer, it has inherent power to place an employee under suspension, and in the absence of Rules providing that in place of full salary the part time teacher would be entitled to subsistence allowance. Part time teacher would be temporarily prevented from discharging duty, but salary would be ensured to him.

Section 16G of U.P. Act No. 2 of 1921 deals with conditions of service of Head of Institution, teachers and other employees, and in mandatory terms Section 16G (1) provides that every person employed in recognized institution shall be governed by such conditions of service as may be prescribed by Regulations. Section 16G (2) provides for the field to be covered under Regulations, covering conditions of service. Section 16G (3) clearly provides for approval in case of discharge, removal, dismissal from service, reduction in rank, diminution in emoluments and termination of service. Sub-Sections (5), (6), (7) and (8) of Section 16G deal with authority of suspension vested in the Managing Committee in given set of circumstances, and to ensure that Management does no act in high handedness while suspending Head of Institution or teacher, said suspension if not approved within sixty days, to become inoperative and after approval, in the event of delay in concluding the enquiry to revoke the same after providing opportunity of hearing to the Managing Committee. The question is as to whether the provisions of Section 16G are applicable vis-�-vis part-time teachers also, and after expiry of the period of sixty days in absence of approval of said suspension by District Inspector of Schools, same becomes inoperative by operation of law. Provisions of Section 16G of U.P. Act No. 2 of 1921 would apply, as per scheme of the things provided for, wherein appointment on the post of Head of Institution or teacher is made following the provisions of Section 16E, 16F, 16FF of U.P. Act No. 2 of 1921 and after enforcement of U.P. Act No. 5 of 1982 as per the provisions provided therein and not qua the appointments made contrary to aforementioned provisions, Part time teachers constitute a separate class for themselves and cannot be equated with Head Master and teachers. Mode of selection and appointment, terms and conditions of service of part-time teachers is qualitatively different vis-�-vis appointments to be made as per Section 16E, 16F and 16FF or under the provisions of U.P. Act No. 5 of 1982.

The view which has been taken by this Court in the case of Shashi Kala Singh (Supra) cannot be approved of after 10.8.2001, inasmuch as, thereafter specific terms and conditions of service have been framed for part-time teachers and the same holds the field for selection and appointment of part-time teachers as well as dispensation of service including remedy of appeal before the District Inspector of Schools against the punishment order qua them, then the provisions of Section 16G of U.P. Act No. 2 of 1921 cannot be pressed into service and made applicable to those teaching staff of the institution whose appointment has not been made after following the procedure as contained under Sections 16E, 16F and Chapter II Regulations 10 to 16 and 18 of the Regulations framed under U.P. Act No. 2 of 1921 or under U.P. Act No. 5 of 1982, and in every case where appointment has been made following the aforesaid provisions, then the provisions of Section 16G can be permitted to be invoked. Section 16G of U.P. act No. 2 of 1921 is not be read in isolation, and entire scheme of thing has to be kept in mind, including the class for whose benefit said provision has been introduced. Full fledged procedure has been provided for making selection and appointment of teachers, and once appointment itself has not been made after following the procedure as contained under Sections 16E, 16F and Chapter II Regulations 10 to 17 and 18 of U.P. Act No. 2 of 1921, and U.P. Act No. 5 of 1982, then in such a situation and in this background, the provisions of Section 16G of the Act would not be applicable or attracted qua part time teachers who constitute separate class by themselves. Thus, the Committee of Management was not obliged to take approval from the District Inspector of Schools to the resolution of suspension, which had been passed by it, as provisions of Section 16G (5) deals with teacher and Head of the Institution and Section 16G (7) provides that such suspension by Inspector shall not remain in force unless approved, for more than sixty days, said provision is in reference of suspension of teachers and Head of Institution, and not at all in reference of part time teachers.

Order impugned in the present case has been perused. It proceeds to mention that under the Government order dated 10.8.2001, there is no authority to place an incumbent under suspension, and as such the action of the Committee of Management is altogether void and without jurisdiction; on this presumption order impugned has been passed. The view taken by the District Inspector of Schools runs counter to the view taken in the case of Dr. Bhimrao Ambedkar Shiksha Samiti v. State of U.P. and others (supra); and in such a situation and in this background the order which has been passed saying that the Committee of Management had no authority to place Hari Prakash Tiwari under suspension is not at all being approved of and the same deserves to be quashed and set aside.

Government Order dated 10.8.2001 deals with the terms and conditions of service, sane does not lay down any specific power to place a part-time teacher under suspension, but under inherent power as well as under the authority vested u/s 16 of U.P. General Clauses Act, 1897, the Committee of Management is entitled to place a part-time teacher under suspension. The power of suspension is, thus, being exercised, in exercise of inherent powers and the powers vested in the Committee of Management in view of the provisions of General Clauses Act, once Rules are not at all there in this direction, then net effect of the same would be that the Committee of Management of the institution has authority to place a teacher under suspension, but in that event the incumbent would be entitled to full salary. Once the provisions of Section 16G of U.P. Act No. 2 of 1921 have been held to be not applicable vis-�-vis part time teachers and there being nothing contrary in the Government Order dated 10.8.2001, then the Committee of Management of the institution would have the authority to place an incumbent under suspension, but in that event the delinquent would be entitled to full salary and no deduction can be made on the said score.

This much has also been stated that in the present case power of suspension has been misused and has been colourably exercised, as after the reply had been submitted, not a single step has been taken in the direction of concluding the disciplinary proceedings; in such a situation and in this background, Hari Prakash Tiwari cannot be left to be placed under suspension for all the times to come.

Consequently, in the facts of the case, present writ petition is allowed partly. The order dated 30.8.2010 passed by the District Inspector of Schools, to the extent it sets aside the order of suspension and restores functioning of Hari Prakash Tiwari as Principal, is hereby quashed and set aside, but so far as directives issued by District Inspector of Schools to the extent it ensures payment of entire remuneration to him is concerned, same is maintained, and it is hereby directed that entire amount of arrears of remuneration be ensured to Hari Prakash Tiwari within a period of two months from the date of receipt of certified copy of the judgment alongwith current remuneration. Further the Committee of Management is directed to conclude the disciplinary proceedings in accordance with law, keeping in view the Government Order dated 10.8.2001 within three months from the date of receipt of certified copy of the judgment. It is expected that Hari Prakash Tiwari will extend all possible cooperation in conclusion of the aforesaid enquiry. No order as to costs.