Premwati Nautiyal v. Narendra Mahila Vidyalaya — 1984 DIGILAW 644 (ALL)

JUDGMENT M. Wahjuddin, J. - The present respondent, namely, Narendra Mahila Vidyalaya, through its Manager brought the suit against appellant Premwati Nautiyal and others with a prayer that the order No. Samanya (1) 2670/14-207/8-79 dated 8.5.1978 of the Director of Education, Uttar Pradesh, addressed to the Regional inspectress of Girls Schools Pauri Garhwal, regularising the appointment of the present appellant under Section 16-GG of the U.P. Intermediate Education Act be declared illegal, invalid and inoperative and the present appellant be also restrained by means of a permanent injunction interfering with the teaching and working programme of the institution directly or indirectly in any manner and that suit was decreed by the District Judge, Tehri Garhwal. This appeal has been preferred by the defendant No. 1 against such judgment and decree. 2. The facts and allegations giving rise to the suit may be briefly stated first. It would appear that as per order dated 28.10.1974 of the institution the present appellant started working as a teacher in the institution, to teach Home Science in plaintiff's College. The order was made by the Manager of the institution and is contained in the respondent's paper book at page 3. The order in question is in a form of letter addressed to the present appellant. It recites that the appellant is appointed as a teacher in Home Science by the Selection Committee on temporary, basis, but this temporary appointment will be valid only on approval by the Regional Inspectress of Girls Schools, Nainital, (hereinafter referred to as R.I.G.S.') and the salary will also be paid on that authority It would appear from the order dated 17.1.1975 of R.I.G.S., (Ext. 14) at page 4 of the respondent's paper book that the R.I.G.S. informed the institution that as M.A. is a requisite qualification for a teacher in Home Science and Smt. Nautiyal, present appellant, does not possess that qualification, it is not possible to approve her appointment. The appellant, however, continued to work in the institution. She later moved an application on 19.9.1975 (Ext. 5) that she had been selected for B.Ed. course and the session was to start from 9th October, 1975, so for such course and examination orders may be passed for her 'Sewa Kaal Se Mukt'. She thereafter moved another application to the Principal of the institution on 8.7.1976 (Ext. She later moved an application on 19.9.1975 (Ext. 5) that she had been selected for B.Ed. course and the session was to start from 9th October, 1975, so for such course and examination orders may be passed for her 'Sewa Kaal Se Mukt'. She thereafter moved another application to the Principal of the institution on 8.7.1976 (Ext. 6) conveying that she had taken leave from 1.10.74 to 7.7.1976 and she has done her B.Ed., so she be permitted to resume work (Karya Bhar Grehan Karne Ki) from 8.7.1976. It would further appear that actually the leave taken earlier was from 1.10.75 to 30.6.76, so simultaneously she moved another application that very date to extend her leave upto 7.7.1976 and it is Ext. 7. The order passed is again important and may arise for interpretation. It is Ext. A-3 at page 22 of the respondent's paper book. I may add that hereinafter whenever I refer to the pages of the paper book it would be relating to respondent's paper book, unless I expressly mention appellant's paper book. The order passed by the Manager referring to the aforesaid application of the appellant states that the appellant is permitted to work as Home Science Teacher upto 30th September, 1976, and in between the appellant will be bound by any instructions received from the Education Department, concerning filling of the vacancy. It would appear that on 8.8.1977 a notice was given by the Manager of the Society to the appellant referring to a letter dated, 13.7.1977 of R.I.G.S. that the appellant is not qualified for the post of Home Science teacher and the services of the appellant were terminated with effect from 8.9.1977. Another letter was addressed to the appellant by the Manager on 12.8.1977 (Ext. A-15) paper No. 27 of the paper book referring to the notice given earlier and stating that from 8.9.1977 the name of the appellant is removed from the roll of teachers and she would not be getting any pay from 9.9.1977. There is also a resolution of the Committee of Management of the institution (Ext. 11) to the effect that the services of Smt. Nautiyal, present appellant, from the post of Home Science teacher be terminated immediately and the Manager may give her one month's notice. It is paper No. 28 of the paper book. A resolution to that effect is paper No. 24. 11) to the effect that the services of Smt. Nautiyal, present appellant, from the post of Home Science teacher be terminated immediately and the Manager may give her one month's notice. It is paper No. 28 of the paper book. A resolution to that effect is paper No. 24. There is one more circumstance in this connection, namely, that a letter of R.I.G.S. dated 16.7.1977 was addressed to the Manager of the institution stating that Smt. Nautiyal is not qualified for the post and fresh application be invited and the R.I.G.S. be informed concerning the decision taken in the matter. Page 29 of the paper book (Ext. B-7) dated. 12.7.1977) would indicate that only the appellant appeared for the post and she was not found fit and none others appeared. This may be relevant to indicate that fresh applications for the post were entertained by the institution. There is another order dated, 17.8.1977 on this subject addressed by the R.I.G.S. to the Manager (Ext. A-5) on the record itself. Besides referring to certain other matters and also regarding payment of salary, it is stated in paragraph 4 that vide application dated 8.8.1977 Smt. Nautiyal has informed that she has been given a notice of termination of service, though direction given was that any action concerning termination of services may not be taken until a final decision is taken in her matter. There is a further order of the Director of Education dated 8.5.1978, which is the impugned order (Ex. 4), page 8 of the paper book. This letter is addressed by the Director of Education to the R.I.G.S. and referring to the letter's latter. It is conveyed that Smt. Nautiyal after obtaining full qualification has continued work from July 1976, and she is, therefore, entitled to the benefits of Section 16-GG. This was communicated for further actions and copy of this order was also endorsed to the Manager of the institution. I have laid down the above facts at the very outset, as they may help in appreciation of the points involved in this appeal. 3. The respective parties in support of their stand in the suit took various pleas in the plaint and the written statement. I have laid down the above facts at the very outset, as they may help in appreciation of the points involved in this appeal. 3. The respective parties in support of their stand in the suit took various pleas in the plaint and the written statement. The trial court framed as many as 7 issues in the suit, which I may lay down here, as from them the pleas that arose for consideration before the trial court will become abundantly clear:-- (1) Whether the appointment of defendant No. 1 made by the plaintiff in the year 1974 was purely temporary? If so, its effect? (2) Whether the defendant No. 1 was appointed on ad hoc basis as alleged by her and whether her services were subsequently validly regularised by defendant No. 2? (3) Whether defendant No. 2 had a right to regularise the services of defendant No. 1. If so, its effect? (4) Whether the civil court has no jurisdiction to entertain and try the suit as alleged by defendant No. 2 on account of the bar of Section 16G(4) of U.P. Intermediate Education Act? (5) Whether the services of defendant No. 1 were validly terminated by the plaintiff on 8.9.1977? If so, its effect? (6) Whether the resumption of duty by defendant No. 1 after return from leave amounts to a new appointment as alleged by her? (7) To what relief, if any, is the plaintiff entitled? 4. The trial court on issue No. 1 held that appointment of the appellant was temporary and the matter whether her salary was paid cut of the funds of Maharaja Nerendra Shah Trust or from the maintenance fund of the College is immaterial. Issues Nos. 2, 3 and 6 were all disposed of together and the trial court after considering the matter thread bare held that the Director of Education has no right to regularise the services of defendant No. 1, the present appellant, and, as such, the order of the Director of Education is not binding on the Management of the College or the court and the resumption of duty by defendant No. 1 on return from leave did not amount to new appointment. On issue No. 5 it held that the services of defendant No. 1 were validly terminated. On issue No. 5 it held that the services of defendant No. 1 were validly terminated. On issue No. 4 it found that the civil court has jurisdiction to proceed with the matter and on issue No. 7 it found that the plaintiff is entitled to the reliefs. 5. All these findings are assailed in the grounds of appeal and a number of arguments have been advanced. For a proper approach to the matter, the first point that may arise for consideration is what was the nature of the appellant's appointment and what is or has been her status in this regard. The provisions of Intermediate Education Act would be relevant in that connection. Section 16-E(2) lays down the procedure for selection of a candidate for appointment as a teacher in the institution. Sub-clause (3) provides that no person shall be so appointed as teacher, unless he possesses the minimum qualifications prescribed by the regulations. Of course, there is a further provision for exemption granted by the Board, but in this case no exemption is claimed by any side. The appointment of the appellant was made on October 28, 1947. A perusal of the Intermediate Education Act, 1921, and the regulations framed under that Act would show that as per provisions then enforced the approval of the Inspector of Schools had to be obtained concerning the appointment under Section 16-F. The approval was also sought, but the R.I.G.S. declined to give approval for this appointment, because the teacher was not possessed of the requisite qualification. I have already referred to that order of 16th January 1975, of the R.I.G.S. The Division Bench Case of A.K. Pathshala v. M.D. Agnihotri 1971 A.L.J. 983, is an authority for the proposition that Section 16-F(1) of the U.P. Intermediate Education Act, 1921, is mandatory and an appointment of a Principal of the institution and, consequently, in the like manner appointment of a teacher of the institution without prior approval of the concerned authority no appointment at all in the present case of R.I.G.S., is in the eye of law no appointment at all. It will be found to have been discussed in paragraph 11 of the pronouncement. 6. It will be found to have been discussed in paragraph 11 of the pronouncement. 6. Learned Counsel for the appellant relied upon two cases, namely, Ayesha v. Manager Ram Dei Devi Kanya Higher Secondary School 1980 U.P. L.B.E.C. p. 241 and Smt. Shanti Devi Verma v. Deputy Director of Education 1982 U.P., L.N.E.C. p. 365, a single Judge pronouncement. In the former case it was held that a termination of service without prior approval cannot be sustained. In that case the appointment was made on probation with a condition that the employee would qualify in High School with Hindi or any equivalent examinations recognised by the Board within the period of probation. She did not acquire that qualification within that period. It was Held that still prior, approval of competent authority for termination of her services was requisite. This case is, however, distinguishable on facts. In the case of the present appellant the appointment was not subject to acquiring the requisite qualifications allowing certain period. Actually it was a sort of ad hoc temporary appointment and the very authority, which had to approve such appointment, disapproved it, which would mean that actually the appointment was bad in law as such. The facts in this case are analogous to the facts of the case of A.K. Pathshala (supra), which is also a Division Bench pronouncement expressly laying down that where the approval is provided for the appointment in absence of approval is no appointment at all in the eye of law. The present case of the appellant rather stands on a worst footing. In the case of A.K. Pathshala (supra) the papers for approval first were wrongly sent to the District Inspector of Schools, who returned the papers conveying that the approval of the R.I.G.S. is required. The papers were then not sent there. In the present case the institution sent the papers to the relevant authority, which disapproved the appointment. What was held in the case of A.K. Pathshala is that where the approval is required, it is mandatory and if such approval is not obtained, irrespective of the party at fault, the appointment will be no appointment in the eyes of law, as the provisions for approval are mandatory and non-compliance would render the order of appointment a nullity as non-existent in the eyes of law. As regards the second case of Smt. Shanti Devi (supra) the matter of lack of approval by the concerned authority did not arise for consideration nor was considered. By lapse of time the employee had acquired the requisite qualification and it was held that earlier irregularity is stood cured and not that the provisions for approval contained in the Intermediate Education Act are not mandatory. I may also add that so far as the present case is concerned, the authority concerned expressly disapproved the appointment. I am, therefore, of the view that actually any appointment in the eyes of the law did not exist. 7. Reliance was placed upon the case of Ram Sarup v. State of Haryana A.I.R. 1978 S.C. 1536. This case related to Punjab Labour Services Rules, 1955. In that case the employee did not possess the requisite qualification, though appointed and the post in question was held by him for 9 years. It was held that the appointment was irregular, but not void and on the expiry of five years period from the date of appointment he acquired the prescribed experience and from that date his appointment will be operative and valid. The facts are distinguishable. It was not a case where an approval was required and such approval was declined. When appointment cannot be made without approval and the approval is declined, on the authority of the case of A.K. Pathshala (supra) the very appointment will not be an appointment in the eye of law and in such situation any question of regularisation on acquiring the requisite qualification later would not arise. Regularisation arises where the appointment is there, but the requisite qualification is lacking and such qualification later acquired. Where the very appointment does not exist in the eyes of law for disapproval on whatever considerations by the approving authority, the appointment itself will be non-existent. It would no doubt appear that the appellant even after such disapproval continued working and was paid salary and even paid leave salary for a certain period and given advance to the appellant in the eyes of law simply continued by indulgence and by licence as an ad hoc temporary employee, this would not either regularise her services or would be relevant for consideration whether she is a duly appointed teacher. 8. 8. Being conscious of such difficulties in the way an alternative argument was advanced that actually after the appellant returned after doing requisite course she was appointed afresh and as such appointment was made on 8.7.1976, the provisions of Section 16-GG of the Intermediate Education Act are attracted. The question whether there was any fresh appointment is to be examined with reference to context and the conduct. The application which the appellant preferred when proceeding to undertake the B. Ed. course was not for discharge from service, but for being relieved from duty, as she was proceeding to take B.Ed. course. The very expression "Sewa Kal Se mukt" would indicate the nature of her relieving. It is also noteworthy that while so proceeding the appellant took leave from 1.10.1975 to 30.6.1976 and further extension from 1.7.1976 to 7.7.1976 and it will be preposterous to say that actually while proceeding for B.Ed. course the appellant gave up the job or her services were discontinued as to call for any fresh appointment. It is also noteworthy that as per application of 8.7.1976 the appellant did not seek any fresh appointment. On the contrary she sought permission to join on expiry of her leave period. When all these are taken into consideration, it will be crystal clear that the letter dated 8.7.1976 of the Manager of the institution is not an appointment letter at all. It simply purported to accord permission to the appellant to continue as a temporary measure upto 30.9.1976 also clearly stating that meanwhile the direction of the educational authorities regarding filling of the vacant post will be binding upon the appellant also. This letter by no stretch of imagination can be treated as an appointment letter or any fresh appointment. Actually the position is that by the indulgence and licence of the institution the appellant continued to work as a teacher just as a make-shift arrangement of temporary nature. The arguments to the contrary have no force. 9. After coming to such conclusion, I proceed to examine whether Section 16-GG of the Act will be attracted and applicable in this case. The arguments to the contrary have no force. 9. After coming to such conclusion, I proceed to examine whether Section 16-GG of the Act will be attracted and applicable in this case. That section of the Intermediate Education Act covers only those teachers who were appointed between August 18, 1975 and September 30, 1976, on ad hoc basis against a clear vacancy and provides that on the commencement of this section they will be deemed to have been appointed in a substantive capacity. This provision was made, because during a certain period, Removal of Difficulties Orders were issued from time to time and after the introduction of Section 16-GG, they were to be given effect to in the matter provided under Section 16-GG as to regularise the appointments made during the period mentioned in Section 16-GG. I have already held that so far as the letter of 8.7.1976 is concerned it does not constitute any appointment as such either on temporary or ad hoc basis. It simply constitutes a make shift arrangement by way of indulgence allowing the appellant, who had proceeded on leave and wanted to resume on expiry of such leave, to just continue as before proceeding on such leave and that only for a specified period and not beyond that. Once I came to such conclusion the only letter of appointment is that of 1974 and any appointment made in 1974 would not be covered under the provisions of Section 16-GG of the U.P. Intermediate Education Act and that provision does not apply to such teachers and no regularisation of appointment of the appellant could be made under Section 16-GG of the Act. The Director of Education has, thus clearly acted in violation of Section 16-G of U.P. Intermediate Education Act and the order passed by him regularising the services of the appellant under that provision is without jurisdiction and bad in law. 10. It was urged that in any case for termination of appellant's services as teacher in the institution, a sanction of the Educational Authorities concerned would be requisite. Reliance in that connection is placed upon 116-G(3) of the U.P. Intermediate Education Act. 10. It was urged that in any case for termination of appellant's services as teacher in the institution, a sanction of the Educational Authorities concerned would be requisite. Reliance in that connection is placed upon 116-G(3) of the U.P. Intermediate Education Act. So far as that aspect is concerned the Division Bench of A.K. Pathshala (supra) is a direct authority laying down that where the very appointment is bad for want of approval, provisions for sanction under, Section 16-G(3) of the Act would not apply to such case. In fact, in that case also the order of termination of service was made without obtaining the approval of the R.I.G.S., the concerned authority, but it was held that where the appointment itself is bad for a breach of mandatory provision and does not exist in the eyes of law, section 16-G(3) of the Act will not be attracted. I, therefore, hold that no approval was required for discontinuing the services of the appellant. Actually the appellant was continuing by indulgence and the institution could well ask her for not to continue and no approval was requisite. 11. It was, further, urged that under Section 16-G(4) of the U.P. Intermediate Education Act the order passed or decision given by the Competent Authority under sub-section (3) cannot be questioned in any Court and the parties concerned are bound to execute that order. As observed earlier, the very sub-section (3) does not apply to this case, so sub-section (4) would be equally inapplicable and there is no bar to the present suit. I may further observe that if an act of any Authority is not in conformity and not covered within the provisions of any Act or Statute involved, it would be without jurisdiction and there will be no bar to resort to a civil suit. The arguments to the contrary have no force. When the order of the Director of Education is without jurisdiction, it cannot be binding upon the institution and Society, when both are governed by the Intermediate Education Act, 1921, and that Act contain a complete Scheme of Education. How can the institution or the Society be forced to retain the services of any teacher against its own wish and decision, when the very alleged appointment of the teacher does not exist in the eyes of law. How can the institution or the Society be forced to retain the services of any teacher against its own wish and decision, when the very alleged appointment of the teacher does not exist in the eyes of law. I may also observe that in such situation question of any regularisation too does not arise. Reliance was placed upon the case of Baleshwar Pandey v. Deputy Director of Education, Gorakhpur 1980 U.P. L.B.E.C. 288. This ruling is not helpful at all. In fact, it was held that an order of the Inspector of Schools reverting the teacher was appealable, if such teacher was confirmed on promoted post, and in that it was further held that as the order of the decision involved was by the Competent Authority under sub-section (3) of section 16-G, Sub-section (4) of that Section stood as a bar to any suit. I have already held that Sub-section (3) is not applicable in this case and is not attracted and taking such view, sub-section (4) would also not stand as a bar. 12. Once the Court comes to a conclusion that the letter of appointment of 1974 on disapproval of the R.I.G.S. is no appointment order in the eye of law and the Court is further of the opinion that in 1976 there is no fresh appointment of the appellant, any of the arguments urged by the learned counsel for the appellant will have no force and any amount of orders passed later by any education authority will also be of no consequence. Such authorities are to function within the limits and scope of the functions assigned to them and powers conferred upon them by the Intermediate Education Act, 1921, and cannot over-ride such provisions or Act beyond their jurisdiction. 13. It was further urged that in the suit the order of R.I.G.S., by which she directed that the teacher should continue until final decision is taken by the concerned authority, is not assailed and so no decree could be granted. This argument again has no force. Actually, it is the order of the Director of Education regularising the services of the appellant, which is the main thing, and the plaintiff is well justified in seeking redress against that final order and it is not necessary to challenge each and every order in that connection. This argument again has no force. Actually, it is the order of the Director of Education regularising the services of the appellant, which is the main thing, and the plaintiff is well justified in seeking redress against that final order and it is not necessary to challenge each and every order in that connection. I may, further, add that the communication of the order of the Director of Education may have been made by the R.I.G.S. but that would hardly material, because actually it is the order of the Director of Education which was to be challenged and has been challenged. 14. I am, therefore, of the view that suit for the declaration and an injunction has been rightly decreed and this appeal has no force. I may, however, add that in circumstances of the case it will not be desirable to award any costs to the respondent, the appellant will otherwise suffer and I may not add to her hardship. 15. The appeal is dismissed. The parties will bear their own costs.