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Satish Chandra Saxena v/s State of U.P.

    C.M.W.P. Appeal No. 17705 of 1987

    Decided On, 11 July 1997

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MR. JUSTICE R.H. ZAIDI

    For the Appearing Parties: Khalil Ahmad Ansari, Advocate.



Judgment Text

R.H. ZAIDI, J.


(1) BY means of this petition, under Article 226 of the Constitution of India, petitioner prays for a writ, order or direction in the nature of certiorari quashing the order dated 18. 6. 1987 passed by the Regional Inspectress of Girls Schools, Xlth and XIIth Region, Moradabad, according the approval to the order of termination dated 16. 12. 1978, whereby the services of the petitioner as clerk were terminated by the Committee of Management of the institution. Prayer for a writ of mandamus directing the respondent No. 3 to treat the petitioner in continuous service and pay him his salary including the arrears of salary, in accordance with law has also been made.


(2) THE brief facts of the case, giving rise to the present petition, are that petitioner was appointed as a clerk in Ram Chandra Singh Khatri Kanya Uchchatar Madhyamic Vidyalaya, Amroha, moradabad, on 1. 7. 1970 on one year's probation. The petitioner claims that on expiry of period of probation, i. e. . one year, his services stood be confirmed. It was on 1

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/18. 8. 1978 the petitioner went on casual leave for 2 days after submitting application before the Principal, which was accepted. The petitioner thereafter could not attend the college on account of his illness. It was on 16. 12. 1978 the petitioner was suddenly informed by the Principal of the College that the committee of Management passed a resolution on 4. 12. 1978 terminating his services w. e. f. 17. 8. 1978. It was on 10. 3. 1979 that the Manager of the Institution sought approval of termination of the petitioner from the respondent No. 2. The petitioner thereafter submitted several applications before R. I. G. S. requesting that he be reinstated and his salary be directed to be paid as the order of termination was passed without prior approval of respondent No. 2. It is stated that the respondent No. 2 asked the petitioner to submit apology otherwise his services were to be terminated. As desired by respondent No. 2, the apology was submitted by the petitioner. Respondent No. 2, however, instead of accepting his apology and directing petitioner's reinstatement on the post in question, accorded approval vide order dated 18. 6. 1987. i. e. . about 19 years after the order of termination was passed. The services were terminated w. e. f. 17. 8. 1978. Since according to the petitioner, the order was passed in contravention of the provisions of Section 16g (I) of U. P. Intermediate Education Act and Regulation 31 framed thereunder, he challenged, the validity of the said order by means of this petition.(3) ON behalf of the contesting respondent No. 3, the Committee of Management of the college, a counter-affidavit has been filed controverting the facts stated in the writ petition. It has been stated that petitioner absented from duly without leave and in spite of notice being published in the newspaper did not attend his duties, that the charge-sheet was served upon the petitioner but no explanation was submitted by him nor he attended the school. The Committee of management, therefore, after following the procedure prescribed under the law, passed a resolution terminating the services of the petition on 4. 12. 1978. Thereafter papers were submitted before R. I. G. S. . Moradabad, on 14. 12. 1978 for approval of the order of termination. The respondent No. 2 sought some information from the respondent No. 3. which was supplied well in time. It has also been stated that the petitioner admitted his guilt and prayed for pardon and reinstatement in the service. The letters written by the petitioner to the R. I. G. S. for granting him pardon were communicated by the respondent No. 2 to the respondent No. 3. It was on 17. 6. 1987 that the respondent No. 2 after hearing both the parties, accorded approval to the order of termination passed against the petitioner vide order dated 17. 6. 1987. After termination of services of the petitioner it is alleged that one Naresh Kumar was appointed on the post in question, whose appointment was also approved by the respondent No. 2. It has been contended that approval to the order of termination shall be deemed to have been accorded automatically on expiry of 6 months from the date the papers were submitted before the respondent No. 2.(4) LEARNED counsel for the petitioner has vehemently urged that the order of termination passed by respondent No. 3 was wholly Illegal and without Jurisdiction inasmuch as no prior approval as required under the law was ever sought by the respondent No. 3 and the services of the petitioner were terminated arbitrarily. It has also been urged that the petitioner was not afforded an opportunity of being heard before the services of the petitioner were terminated. Learned counsel for the petitioner submits that the petitioner being a permanent employee of the institution, his services could not be terminated without affording an opportunity of being heard and after following the procedure prescribed under the law.(5) ON the other hand, learned counsel for the contesting respondent No. 3 submitted that the order of termination was passed after following the procedure prescribed under law and after giving full opportunity of being heard to the petitioner. It has also been urged that on expiry of 6 months from the date the papers were submitted before the respondent No. 2, the approval shall be deemed to have been accorded automatically.(6) 1 have considered the rival submissions made by the learned counsel for the parties and perused the record.(7) THE resolution terminating the services of the petitioner dated 4. 12. 1978 w. e. f. 17. 5. 1978 was passed by the Committee of Management without taking prior approval from the respondent No. 2, and the same has been approved by the respondent No. 2 vide order dated 18. 4. 1987 after about 9 years. Therefore, the question which calls for consideration is as to whether the committee of Management had the jurisdiction to pass the resolution terminating the services of the petitioner without seeking prior approval from the respondent No. 2. Section 16g (1) of U. P. Intermediate Education Act and Regulation 31 framed under the aforesaid section provides as under :"16g. Conditions of service of Heads of Institutions, teachers and other employees.-- (1) Every person employed in a recognized 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 inconsistent with the provisions of this Act or with the Regulations shall be void. 31. Punishment of an employee that would require the prior approval of the Inspector or regional Inspectress, may take any of the following forms : (a) Dismissal, (b) Removal or discharge, (c) Reduction in rank, (d) Diminution In emoluments. Note.--This Regulation has been amended by Notification No. 7/562/5-8 (Board, September, 1974), dated 10th March. 1975, at page 221. "(8) BEFORE promulgation of U. P, Ordinance No. XVIII of 1975 converted into U. P. (Amendment) Act No. XXVI of 1975, w. e. f. 10. 3. 1975, the services of the members of ministerial staff could be terminated without prior approval of the Inspector. However, after enforcement of the aforesaid ordinance and amendment in the Act and in the regulations, it has become obligatory upon the management to seek prior approval even for terminating the services of the members of the Ministerial staff. The petitioner being a clerk in the institution, his services could not be terminated without prior approval of respondent No. 2 as the college in question is a girls College and is in administrative control of the said respondent. In Bhopal Singh Verma v. Deputy Director of Education and others. 1983 UPLBEC 597, this Court was pleased to rule as under:"section 16g 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 16g 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 Educations Act is concerned, it remained silent till the U. P. Ordinance XVI11 of 1975 came into force with respect to the conditions of service governing the clerks of recognised educational Institutions. In exercise of powers under Section 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 headmaster. Regulation 31 (Chapter III) as now in force read along with Section 16g 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. "(9) SIMILAR view was taken by a Division Bench of this Court in Ball Ram Singh v. Committee of management, Amar Bir Inter College, Dhanpur, Varanasi, 1993 (II) ESC 305 (DB).(10) IT is, thus, now settled In law that after enforcement of U. P. Ordinance No. XVIII of 1975, the services of the members of ministerial staff could not be dispensed with without prior approval of the Inspector. The petitioner's services, in the present case, were terminated by the committee of Management vide its resolution dated 4. 12. 1978, therefore, in the present case prior approval of respondent No. 2 was necessary which was admittedly not taken. Therefore, the order passed by the respondent No. 2 approving the order of termination passed against the petitioner vide order dated 13. 6. 1987 is illegal and deserves to be quashed.(11) THE writ petition succeeds and is allowed. The resolution dated 4. 12. 1978 and the order dated 18. 6. 1987 passed by the respondent No. 3 are hereby quashed. Respondent Nos. 2 and 3 are directed to reinstate the petitioner on the post in question and to pay his salary from the date the same is due in accordance with law and continue to pay the salary as and when the same falls due.
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