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1980 DIGILAW 601 (ALL)

Adarsh Kanya Uchchtar Madhyamik Vidyalaya v. Janki Singh

1980-07-03

S.D.AGRAWAL

body1980
JUDGMENT S.D. Agrawal, J. - This is a defendants appeal arising out of a suit filed by the respondent Smt. Janki Singh for a permanent injunction restraining the appellant from removing, discharging, or terminating the services of the plaintiff respondent in the Adarsh Kanya Uchchtar Madhyamik Vidyalaya, Darangar, Varanasi in consequence of a notice dated 19th December, 1968. The suit was dismissed by the trial court on 1st August, 1969. Against the said judgment an appeal was filed by the plaintiff respondent. The said appeal was allowed by the lower appellate court on 25th April, 1970 and a perpetual injunction was issued restraining the appellants from removing the [plaintiff respondent from the services of the college in consequence of the notice dated December 19, 1968. Against the judgment dated 25th April, 1970 the present second appeal has been filed in the Court. 2. Briefly the facts giving rise to the present second appeal are as follows; On 2nd June, 1967 an application was made by Smt. Janki Singh to the Manager of the College for appointment to the post of a teacher in the College in pursuance of an advertisement given by the College on 25th May, 1967. By an appointment letter dated 8th July, 1967 Smt. Janki Singh was appointed as a temporary teacher for a period of one year from 1st July 1967 to 30th June, 1968. The appointment letter is in the following words: Visai - Asthai Niyukti Mahodaya, Apki Niyukti asthai taur per ek vars ke prasikshan kaal per dinak 1-7-1967 se 30 June san 1968 Uk ke liye betan kram 12j-20-20 me, prabadh samiti vibhagiya aoumodan ke liye presitkar, ki gai hai, Anumodan na milne per aapki sewa bina agrim suchna samapt Kar kdi jayegi." In pursuance of this appointment letter Smt. Janki Singh started teaching in the college. This appointment being for, one year till 30th June, 1968 had automatically come to an end after the expiry of the said period. 3. It appears that thereafter again the college advertised the post. Smt. Janki Singh again applied on 25th June, 1968 for appointment to the said post. This application is Ex A4 on record. The college appointed Sm C. Janki Singh, the plaintiff respondent, temporarily for a period of. one year from 8th July, 1968 to 30th June, 1969. 3. It appears that thereafter again the college advertised the post. Smt. Janki Singh again applied on 25th June, 1968 for appointment to the said post. This application is Ex A4 on record. The college appointed Sm C. Janki Singh, the plaintiff respondent, temporarily for a period of. one year from 8th July, 1968 to 30th June, 1969. The actual words of the second appointment letter are also quelled below ; "Visai - Ashtai Niyukti. Mahodaya, Apki nyukti abthai taur per ek vars ke prasikshan kaal per dinak 8 7 68 se 30 June 1969 tak ke liye betan kram 120-20-20 me prabaodh samiti vibhagiya anumodan ke liye presitkar ki gai hai anumodau na milne par aapki sewa bina agrim suchna samapt kar oi jayegi." Subsequently a notice dated 19th December, 1968 was issued to the plaintiff respondent that her services are no longer required and accordingly terminated. Immediately after the issue of this notice the present suit was filed by the plaintiff respondent for the relief which have already been mentioned above. 4. The lower appellate court decreed the suit on the findings firstly that the letter Ex A-3 dated 8th July, 1967 was a letter appointing the plaintiff respondent against a substantive post on a probation of one year. The lower appellate court further held that after the expiry of this period the plaintiff respondent became a permanent teacher in the college. It was further found by the lower appellate court that since the termination of the service was done without the prior approval as required by Section 16G, sub clause (3), the order of termination was clearly void. 5. Sri R.N. Bhalla, learned counsel for the appellants has contended that the view taken by the lower appellate court that appointment of the plaintiff respondent was on a substantive post on probation is clearly erroneous. The second contention of the learned counsel is that the provisions of Section 16-F of the U.P. Intermediate Education Act were not followed at all which clearly shows that it was not a permanent appointment on a substantive pest. The second contention of the learned counsel is that the provisions of Section 16-F of the U.P. Intermediate Education Act were not followed at all which clearly shows that it was not a permanent appointment on a substantive pest. In any case if the argument of the plaintiff respondent is accepted that she was appointed on a permanent post then since the provisions of Section 16-F have not been I followed the appointment is void in the eye of law and the plaintiff respondent cannot take benefit of the said appointment and no relief can be granted to the plaintiff respondent in the present suit. 6. I have heard learned counsel for the parties. Ex. 3, dated 8th July, 1976, by which the plaintiff respondent was appointed from 1st July, 1967 to 30th June, 1968 categorically states that it is a temporary appointment. No doubt this letter of appointment further says that the plaintiff respondent shall be on trial for a period of 1st July 1967 to 30th June 1968. It is in my opinion by itself does not make it a permanent appointment on a substantive post. The plaintiff respondent also took this appointment only for fixed period as after the expiry of this period on 30th June 1968 she again applied on 25th June, 1968 vide Ex. A 4, for a fresh appointment to the said post. Ex. A-3 read with Ex. A-4 clearly shows that the appointment was a purely temporary appointment. The lower appellate court has without any evidence on record erred in holding that this was a permanent appointment. 7. The procedure for making a permanent appointment has been laid down in Section 16-F of the U.P. Intermediate Education Act, 1921. Section 16-F requires that the candidates must (a) possess the prescribed qualification and (b) must have been recommended by a Selection Committee constituted under sub-section (2) or sub-section (3), as the case may be. The proviso to Section 16-F further provide that an appointment can also be made temporarily if candidates having prescribed qualifications are not available or if there is a leave vacancy. The provisions of Section 16-F are clearly mandatory. There is no averment in the plaint that the plaintiff respondent had been recommended by the Selection Committee. The plaintiff respondent has not filed any evidence to show that she had been recommended by the Selection Committee. The provisions of Section 16-F are clearly mandatory. There is no averment in the plaint that the plaintiff respondent had been recommended by the Selection Committee. The plaintiff respondent has not filed any evidence to show that she had been recommended by the Selection Committee. The provisions of Section 16 F of the Act are clearly mandatory and unless the plaintiff respondent had appeared before the Selection Committee and had been recommended by the said Selection Committee no appointment on a substantive post could have been made by the college concerned. This, therefore, also shows that the appointment was only a temporary one. In this view of the matter the first submission of the learned counsel is well founded. 8. The appointment being on a temporary measure would automatically come to an end after the expiry of the period for which the appointment had been made. 9. In the alternative even if it is taken that the petitioners appointment was a permanent one and the termination order was passed without prior approval as required by Section 16-G, sub-clause (3), of the Act the fact remains that the appointment of the plaintiff respondent was not made in accordance with Section 16-F of the Act. In Arya Kanya Pathshala v. Smt. Manorama Devi Agnihotri, (1971 ALJ 983), a Division Bench of this court had occasion to consider the provisions of Section 16 F and Section 16 G of the the Act. Their Lordships have held that the provisions of Section 16 F are mandatory. Their Lordships have further held that the provisions of Section 16-G, sub clause (2) will apps only to a case where a teacher has been validly appointed in conformity with the provisions of Section 16-F of the Act and if an appointment is spade in contravention of Section 16 F of the Act it is a void appointment and is no appointment in the eye of law and no benefit can be taken by the mere fact that no prior approval hid been taken. The principle laid down in the case of Arya Kanya Pathshala (supra) fully applies to the instant case. 10. As I have already held above the appointment of the plaintiff respondent was not made in accordance with Section 16-F of the Act. The principle laid down in the case of Arya Kanya Pathshala (supra) fully applies to the instant case. 10. As I have already held above the appointment of the plaintiff respondent was not made in accordance with Section 16-F of the Act. Since the appointment was not made in accordance with Section 16F of the Act the appointment was void in the eye of law and as such the mere fact that no prior approval was taken does not entitle the plaintiff respondent for any relief In the circumstances the second submission made by the learned counsel for the appellant is also yell founded. 11. In the result the appeal is allowed, the judgment and decree of the lower court dated 25th April, 1970 is set aside and the suit is dismissed. In the circumstances of the case parties are directed to bear their own costs.