Sanjeev Massey vs State of Uttarakhand and Others

Sudhanshu Dhulia, J.—Heard Mr. Vinod Tiwari, Advocate for the Petitioner and Mr. N.P. Sah, Standing Counsel for the State of Uttarakhand as well as Mr. Kanwaljit Singh, Advocate for Respondent Nos. 3 and 4.

The Petitioner has filed this writ petition with the prayer that Respondent Nos. 3 and 4, who are Manager and Principal of Ferger Junior High School, 51, Rajpur Road, Dehradun respectively be directed to give joining to the Petitioner in compliance of order dated 20.4.2009 which has been passed by District Education Officer, by which the Principal (Respondent No. 4) has been directed that the Petitioner be given joining.

The facts of the case are that the Petitioner is a Lower Division Clerk in the aforesaid school, which is a minority institution, though under grant-in-aid of the State Government. The Petitioner was appointed as a Lower Division Clerk in the said school on 30.6.1989. From the averments made in the writ petition as well as in the counter affidavit, it appears that there have been various allegations against the Petitioner, primarily for remaining absent from duties without prior information to the Principal or to the Management, and thereafter in order to cover up his lapses, he had also forged the necessary documents. As such disciplinary proceedings were initiated against the Petitioner by the Management Committee but the Petitioner refused to respond to the notices and went on leave. Consequently, the Management Committee terminated the services of the Petitioner. The Petitioner thereafter went to the District Education Officer who vide his order-dated 20.4.2009 directed the Principal of the School to accept joining of the Petitioner.

From the perusal of the averments made in the writ petition as well as in the counter affidavit filed by the State as well as by the Management Committee of the School, it appears that both the Management as well as the District Education Officer have not acted in accordance with the law applicable in the matter. The State of Uttarakhand has framed its own Act known as "Uttaranchal School Education Act, 2006" (From hereinafter referred to as the "Act"). In the said Act, u/s 25 a Board has been constituted which has been given power u/s 24 to make regulation and u/s 25 to make byelaws. Sections 24 and 25 of the said Act read as under:

Section 24. Power to make Regulation of the Board.- (1) the Board may make regulations to provide for all or any of the following matters, namely:

(a) the constitution, powers and duties of committees;

(b) the conferment of diplomas and certificates;

(c) the conditions of recognition of institutions for the purposes of its examinations;

(d) the courses of study to be laid down for all certificates and diplomas;

(e) the conditions under which candidates shall be admitted to the examinations of the Board and shall be eligible for diplomas and certificates;

(f) the fees for admission to the examinations;

(g) the conduct of examinations;

(h) the appointment of examiners and their duties and powers in relation to the Board''s examinations;

(i) the admission of institution to the privileges of recognition and the withdrawal of recognition;

(j) appointment of committees at village, nyaya panchayat, block, district and regional level for inspection, supervision, management and recognition of institutions, and delegation of powers to them;

(k) all matters which by this Act are to be or may be provided for by Regulations;

(l) the conditions under which grants-in-aid shall be given to institutions recognized by the Board;

(m) the formation of parent-teachers association.

(2) No regulation under Sub-section (1) shall be made except prior approval of the State Government.

Section 25. Power of Board to make bye-laws.- (1) Subject to the provisions of this Act the Board may make bye-laws to provide for all or any of the following matters, namely:

(a) laying down the procedure to be observed at their meetings and the number of members required to form a quorum;

(b) such matters which are not provided for in this Act and regulations.

(2) The State Government may issue direction to amend or rescind of any by-laws made under this section by the Board or its Committee.

Under the said provision Regulations have been framed. Regulation 25 says that any punishment which has been imposed on an employee of the School prior permission of District Education Officer is necessary.

Under Regulation 38 A (1) of the Regulation the Management Committee can pass a punishment order, which has to get an approval from the District Education Officer. The District Education Officer, can either approve or refuse to grant such approval or can even increase or decrease the quantum of such punishment. The restriction, however, is that before doing so the District Education Officer shall give a prior notice to the concerned Class III employee as to why such punishment should not be imposed upon him. Against the order of District Education officer, an appeal is provided before Regional Director of Education.

All these provisions have been by passed in the present case. Admittedly, there are serious charges against the Petitioner. All the same, from the conduct of the Petitioner it appears that the Management Committee had no option but to proceed ex parte against the Petitioner as apparently in spite of repeated notices given by the Management Committee, the Petitioner refused to accept those notices. All the same, there is a flaw in the termination order inasmuch as it still does not have an approval of the District Education Officer. It is District Education Officer who in its turn, instead of granting approval refused to grant approval and has simply directed the Management Committee to accept joining of the Petitioner. In short, the Management as well as District Education Officer have acted dehors the prescribed law. As such, this writ petition is disposed of with the direction that the Management Committee shall give a show cause notice to the Petitioner and after giving an opportunity of hearing pass an appropriate order and thereafter if the order demands, get the approval of the same from the District Education Officer. Once an order is sent for approval of the District Education Officer, the District Education Officer shall without any further delay, in accordance with law pass an appropriate order on the said requisition made by the Management Committee. Depending upon the order passed by the District Education Officer, the Petitioner as well as the Management Committee will be free to approach the relevant authorities prescribes under the Regulations.

It is, however, made clear that till a decision is reached in this matter the services of the Petitioner will be treated to be under suspension. For abundant precaution, it is directed that since counsels for the Petitioner and the Management Committee are present before this Court, a show cause notice shall be served by the Management Committee to the Petitioner within a period of fifteen days from today and it is expected that the Petitioner shall cooperate in the disciplinary proceedings. However, it is made clear that in case the Petitioner refuses to cooperate or absents himself without any just reasons, the Management Committee is free to proceed ex parte against the Petitioner.

With these directions, the writ petition is disposed of.

No order as to costs.