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IN THE HIGH COURT OF ALLAHABAD
B. Mukerji and S. C. Manchanda, JJ.
GHULAM HAQQANI KHAN - Appellant
Versus
STATE OF UTTAR PRADESH - Respondents
Special Appeal 114 Of 1958
Decided On : 11/14/1961
CONSTITUTION OF INDIA - ARTICLES 154, 309, 310, 311 - U. P. INTERMEDIATE EDUCATION ACT, 1921 (ACT II OF 1921) - U. P. EDUCATION CODE - BOARD OF HIGH SCHOOL AND INTERMEDIATE EDUCATION - STATUS - WHETHER A CORPORATE BODY OR A DEPARTMENT OF GOVERNMENT - APPOINTMENT, TRANSFER, SUSPENSION AND REMOVAL OF EMPLOYEES - POWERS OF THE BOARD AND THE GOVERNMENT - INTERPRETATION OF STATUTES - RULES REGULATING CONDITIONS OF SERVICE - DELEGATION OF POWERS - GOVERNOR'S EXECUTIVE POWER - WRIT PETITION UNDER ARTICLE 226 - LACHES.
Fact of the Case:
The appellant, an employee of the Board of High School and Intermediate Education (the Board), was transferred from the Board's office to the office of the District Inspector of Schools. He challenged the transfer order, alleging that it was illegal and void as the Board was a corporate body and the transfer was made by an authority not subordinate to the appointing authority. He also challenged the subsequent orders of suspension and removal from service.
Finding of the Court:
1. The Board was not a corporate body with a perpetual succession, a common seal, and the right to sue and be sued in its own name. It was a statutory body created by the U. P. Intermediate Education Act, 1921 (Act II of 1921) for the purpose of regulating and supervising the system of High School and Intermediate Education in Uttar Pradesh. 2. The Board was not given the status of a corporation, unlike the Allahabad University which was established in the same year by a separate Act and was declared to be a body corporate. 3. The Act did not confer on the Board the power to make appointments, transfers, suspensions, or removals of its employees. These powers were delegated to the Secretary of the Board under Section 7(3) of the U. P. Education Code. 4. The Board was not treated as a separate legal entity but was considered a department of the Government for all purposes other than those powers specifically conferred on it by the Act. 5. The appellant was a civil servant holding a civil post under the State and was subject to the provisions of Articles 310 and 311 of the Constitution. 6. The transfer order was valid as it did not involve any reduction in rank and was made by the Governor, who had the executive power to transfer and remove civil servants. 7. The orders of suspension and removal were also valid as they were passed by the Governor, who had the pleasure to dismiss a civil servant from service.
Issues: 1. Whether the Board of High School and Intermediate Education was a corporate body or a department of the Government? 2. Whether the Board had the power to appoint, transfer, suspend, and remove its employees? 3. Whether the appellant was a civil servant holding a civil post under the State? 4. Whether the transfer order was valid? 5. Whether the orders of suspension and removal were valid?
Ratio Decidendi: 1. The status and position of the Board is probably as set out in the G. O. dated the 13th April 1951, by the secretary to Government Annexure K (page 50) where it is observed that the office of the Board of High School is separate from that of the Director of Education and the appointments to higher clerical posts in any one of those offices are to be confined to the clerics of that office only. This only means that for certain purposes the Board is treated as separate from the Education department and that normally higher clerical posts are not interchangeable. 2. The specific provisions made in Chapter II of the Education Code of the Uttar Pradesh in which Sections 4, and 7 (3) fall, the latter being the one on which the appellant himself relied on, shows that the Government intended to treat the Board as one of its departments though independent in respect of the powers specifically given to it. 3. The appellant himself had no doubt either at the time when he filed his appeal to the Governor against his suspension and removal or at the time when he filed the writ petition under Article 226 of the Constitution or even at the time when the case was argued before the learned single Judge that he was a civil servant in the service of the State and that in any event he held a civil post in the State- He relied, as already noticed herein, above specifically on article 311 of the Constitution which he could not have done if he was not a Civil servant within, the meaning of Article 310 of the Constitution. 4. All civil servants of a State hold office at the pleasure of the Covernor. As the aforesaid orders were passed by him, it is idle for the appellant to contend, that the transfer or suspension could only have been made by the Secretary of the Board and by no one else.
Final Decision: The appeal was dismissed. The parties were directed to bear their own costs.
( 1 ) I have had the advantage of reading my brothers opinion and I may, with respect, say that I am in general agreement with his opinion. I agree that this appeal must fail and that the parties should bear their own costs of the appeal.
( 2 ) SINCE the appeal raised some interesting questions for determination I thought it desirable to, very briefly, indicate my own views on some of the questions falling for determination.
( 3 ) THE facts and the important controversies arising on those facts have been fully set out in my learned, brothers judgment and hence I content myself with dealing specifically with only two questions; first, whether the Board of High School and Intermediate Education which was established by the Intermediate Education, Act, 1921 (U. P. Act II of 1921) was a corporate body with all the privileges and liabilities of such a body, or whether the Board of High. School and intermediate Education was merely a statutory body with no different existence from being a department of Government; and secondly, whether the appellant, even if he could be treated as an employee of a body which had been created under a statute necessarily, lost the character of a servant of the State Government when he, in fact, had been appointed by an officer who was invested, with powers under rules, made for guidance of officers of a Department of the State.
( 4 ) IN order to be able to pronounce with an amount of certainty on the legal questions formulated above, it would be helpful to know the background in which the Intermediate Education Act of 1921 came into existence. It was as a result of the recommendations contained in the Saddler commissions Report that Government of this State, which then functioned as a diarchy, appears to have conceived the idea of separating the Intermediate Education from the University and adding it to the School Education. One of the main arguments which was put out at the time to sustain the idea of separation was that the stage of school Leaving, as it obtained up to the year 1919-20 was not a sufficiently -advanced stage in the education of a young man to make him fitted for starting on a career with much confidence.
( 5 ) IT was the belief of some of the educationists of the time that the School Education should be divided into three clear-cut stages: (1) the primary stage, (2) the Secondary stage, and (3) the Higher Secondary stage.
( 6 ) I mentioned earlier that at the time the idea of separating the Intermediate Education, from the university was taken up by Government, there was, what was called, a diarchy in action and education was one of the transferred subjects" as those "responsibilities" of the State in respect of which Ministers acted were referred to.
( 7 ) THE object of the Intermediate Act (to be referred to later as the Act) has been stated in the Act thus: "whereas it is expedient to establish a Board to take the place of the Allahabad University in regulating and supervising the system of High School and intermediate Education in Uttar pradesh and to prescribe courses thereof. " by looking at the object of the Act, quoted above, it would be fairly clear that the Board was created for the sole purpose of taking over the supervision of the system of High School and intermediate Education--the latter having been taken out of the purview of the Allahabad university. Under the Act the Board was not given the status of a corporate Body, having a perpetual succession, a common seal, a right to sue and be sued in its own name, etc. It is interesting in this connection to note that the status of a "body corporate was conferred on the university while it was apparently denied to the Board even though both the Acts were of the year 1921 and passed in quick succession.
( 8 ) SECTION 3 of the Act only says "the Board shall be established. The section does not speak of the Board being incorporated. In contrast, this is what Section 3 (2) of the University Act says: "the Universit
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