COMMITTEE OF MANAGEMENT BABA SHOBHA MANI LAGHU MADHYAMIK VIDYALAYA CHERO BHARTI DEORIA Vs. DIRECTOR OF EDUCATION BASIC/CHAIRMAN U P BASIC SHIKSHA PARISHAD LUCKNOW

JUDGEMENT

(1.) THIS special appeal has been preferred under Chapter VIII, Rule 5 of the Rules of the Court against the judgment of the Hon'ble single Judge dated 11.1.2007 passed in Civil Misc. Writ Petition No. 38875 of 1996.

(2.) AT the outset, Sri R. S. Misra, learned counsel appearing for respondent No. 3 raised a preliminary objection about the maintainability of appeal under Chapter VIII, Rule 5 of the Rules of the Court on the ground that the order impugned in the writ petition was passed in exercise of appellate jurisdiction under Section 12 of the U. P. Recognized Basic School (Recruitment and Conditions of Service of Teachers and other Conditions) Rules, 1975 (hereinafter referred to as 1975 Rules) and thus the special appeal would not lie under the Rules of the Court. In support of the above preliminary objection reliance has been placed on a Division Bench judgment of this Court in the case of Sita Ram v. District Inspector of Schools and others, 1994 (1) UPLBEC 24. On the other hand, learned counsel for the appellant submitted that the services of contesting respondent No. 3 are governed by U. P. Recognized Basic School (Junior High School Recruitment and Conditions of Services of Teachers) Rules, 1978 (hereinafter referred to as 1978 Rules). He further submitted that under 1978 Rules, no appeal is provided against the order of Basic Shiksha Adhikari refusing to grant approval to the order of termination and thus the appeal would be maintainable. It has further been submitted that even though the Committee of Management filed an appeal before the Director of Education (Basic), the same cannot be treated as a statutory appeal and any decision thereon is non est. It has further been submitted that in the absence of any statutory appeal having been provided under the Rules, the appeal filed by the Committee of Management under wrong advice at best can be treated to be a representation and any decision thereon cannot be said to have trappings of judgment or award of a Tribunal or statutory arbitrator made under the purported exercise of jurisdiction under any U. P. Act or any Central Act with respect to the matters enumerated in the State List or concurrent list in the seventh schedule of the Constitution, hence special appeal would be maintainable.

(3.) THUS, the answer to the question of maintainability of the present special appeal depends upon the availability of the right to appeal at the behest of the Committee of Management against order or decision of Basic Shiksha Adhikari denying approval to the punishment awarded to the headmaster or teacher of the institution in question.