Munshi Singh v. Dy. Director of Education, Meerut — 1985 DIGILAW 712 (ALL)

JUDGMENT A.N. Dikshita, J. - By means of this petition under Article 227 of the Constitution the petitioner Tripal Singh has prayed for a writ of certiorari to quash the order dated 2-9-1981 (Annexure V to the petition) passed by respondent no. 1, the Deputy Director of Education, Region I, Meerut. 2. Briefly stated the facts are that Chaudhary Charan Singh Uchchtar Madhyamik Vidyalaya, Goela, Muzaffarnagar, is a recognised institution as provided under the U.P. Intermediate Education Act, as amended up to date. The said institution is being managed in accordance with the provisions of a duly approved Scheme of Administration. The petitioner was appointed as an Assistant Clerk in the said School on 1-9-1977 and after the completion of one year's probationary period he was confirmed with effect from 1-9-1978. The petitioner discharged his duties without any interruption till 19-7-1980 where after the Principal of the institution did not permit him to sign the register against which a representation dated 22-7-1980 was preferred by the petitioner to the District Inspector of Schools, Muzaffarnagar. The Manager of the institution then started alleging that, the petitioner was appointed on an ad hoc has is and there was no approval for his appointment by the Committee of Management. An enquiry was initiated by the District Inspector of Schools. Muzaffarnagar, where after the order dated 22-9-1980 was passed by the District Inspector of Schools, Muzaffarnagar, to the effect that since the petitioner was working uninterruptedly with effect from 1-9-1977 and was confirmed with effect from 1-9-1978, the action of the Manager in not allowing him to sign the register or claiming his removal from service was illegal. The District Inspector of Schools further directed that the petitioner was entitled to hold the post and to the salary for the relevant period. An appeal against the aforesaid order of the District Inspector of Schools, Muzaffarnagar, was filed by the Manager of the institution Sri Harpal Singh on 21-10-1980 before the Deputy Director of Education, respondent no. 1. The respondent no. 1 decided the appeal vide his order dated 2-9-1981 after affording opportunities to the parties and quashed the order dated 22-9-1980 passed by the District Inspector of Schools holding that the petitioner had no right to hold the post of the clerk in the said institution. 3. The petitioner has challenged the aforesaid order of respondent no. 1 dated 2-9-1981 in this petition. 4. 3. The petitioner has challenged the aforesaid order of respondent no. 1 dated 2-9-1981 in this petition. 4. I have heard the learned counsel for the parties at length. Learned counsel for the petitioner raised a preliminary contention regarding the jurisdiction of respondent no. 1 in passing the impugned order. I,earned counsel submitted that as no appeal was provided under the Act against the order of the District Inspector of Schools the respondent no. 1 erred in law in allowing the appeal. I do not find any merit in this preliminary contention. The provisions of the U.P. Intermediate Education Act, 1921, as amended up to date envelope within their fold the services of a clerk in an institution. Admittedly the institution being an aided institution and getting the grant-in-aid was governed by the provisions of this Act. Vide notification dated 27-2-1978 an amendment was brought about providing that on a proposal for any punishment being made by the Management of an institution the District Inspector of Schools would have the power to approve or dis-approve the same as per Regulation 44-A (1) and that any party aggrieved by such an order of the District Inspector of Schools passed under Regulation 44-A (1) could prefer an appeal to the Deputy Director of Education of the Region. It is thus clear that an appeal lay to respondent no. 1 and the contention of the learned counsel for the petitioner to the contrary must be repelled. 5. Learned counsel for the petitioner then urged that the petitioner was validly appointed by the institution and was also confirmed after the expiry of the period of probation and as such after a lapse of more than two years the services of the petitioner could not be terminated except in accordance with law. There is no dispute between the parties that the petitioner continued to perform his duties up to 19-7-1980. No objection to the appointment of the petitioner during the period 1-9-1977 to 19-7-1980 was ever raised by the Management of the said Institution. It was after a lapse of more than 2 years that the Committee of Management of the said institution decided to dispense with the services of the petitioner on the ground that the appointment order in regard to the petitioner was not regular. Such a contention of the Committee of Management appears to be intriguing. It was after a lapse of more than 2 years that the Committee of Management of the said institution decided to dispense with the services of the petitioner on the ground that the appointment order in regard to the petitioner was not regular. Such a contention of the Committee of Management appears to be intriguing. The services of the petitioner could not be terminated absolutely on the whims of the Committee of Management without resorting to the provisions of the statute. It may be mentioned here that the returns which were being filed by the Manager of the institution before the authorities concerned mentioned that the petitioner was serving the institution as a clerk. No doubt in the Manager's return for the period 1979-80, when a dispute had already arisen between the parties, the name of the petitioner was not mentioned there but this fact cannot be over-looked that the preparation of returns was the authorship of the Manager of the institution. It appears that initially either the Committee of Management nor the Manager had any objection to the continuance of the petitioner as a clerk but suddenly on his becoming persona non grate action was taken for terminating his services. In any case the Committee of Management had acquiesced in the appointment of the petitioner to the post of clerk and as such it is now stopped from taking refuge in the plea that the appointment of the petitioner was not regular as no approval was accorded to it. The District Inspector of Schools had taken a very correct and realistic view that the petitioner's services could not be terminated in the manner resorted to by the institution. The District Inspector of Schools also found that the Committee of Management, respondent no. 2, had fabricated registers so as to eliminate the signatures of the petitioner from the registers after 24-1-1980 though prior to that period his signatures were found on the registers. Contrary to such a reasonable view as taken by the District Inspector of Schools, the respondent no. 1 illegally held that as the initial appointment was not properly made the petitioner had no right to hold the post. On the facts of this case it is clearly established that by its conduct the Committee of Management, respondent no. Contrary to such a reasonable view as taken by the District Inspector of Schools, the respondent no. 1 illegally held that as the initial appointment was not properly made the petitioner had no right to hold the post. On the facts of this case it is clearly established that by its conduct the Committee of Management, respondent no. 2, acquiesced in the appointment of the petitioner as a clerk and it was the result of such acquiescence that the petitioner was confirmed after his one year's probationary period and continued without any interruption till 19-7-1980. The conclusion of respondent no. 1 that as the petitioners appointment was not validly made hence his appointment was liable to be terminated is also equally fallacious. In the case of Ajab Singh v. Goohar Krishi Intermediate College, Special Appeal No. 310 of 1975 decided an 28-4-1976.a similar controversy arose and a Division Bench of this Court held that by its conduct the Committee of Management must be deemed to have authorised the Manager to issue the letter of appointment. The relevant observations of the Bench are : - "In fact a letter of appointment was issued by the Manager but it is said that no resolution was specifically passed by the Committee of Management. In our opinion if the Committee of Management was bound to appoint the appellant and the appellant was in fact appointed, work taken from him for a number of months and his salary paid, the Committee of Management cannot take shelter behind is own default in passing the requisite resolution and challenge the appointment as invalid. By its conduct the Committee of Management must be deemed to have authorised the Manager to issue the 6. It is clear in the instant case that the petitioner was duly appointed to the post of a clerk with effect from 1-9-1977, that he worked as such without interruption till 19-7-1980 and that he was paid his salary till a dispute arose between the parties. In these circumstances Ajab Singh's case (Supra) fully applies to the facts of his case and the termination of the petitioner's services, if any, must be held to be illegal. Incidentally it may also be mentioned that there is no order of termination on record. If an appointment was not regularly made it would have been appropriate for respondent no. In these circumstances Ajab Singh's case (Supra) fully applies to the facts of his case and the termination of the petitioner's services, if any, must be held to be illegal. Incidentally it may also be mentioned that there is no order of termination on record. If an appointment was not regularly made it would have been appropriate for respondent no. 2 to pass an order terminating the services of the petitioner. Instead of proceeding according to law respondent no. 2 chose a more circuitous way in not permitting the petitioner to sign the attendance register. Such an act would be reprehensible as being not according to law. The petitioner was compelled to approach the District Inspector of Schools who after enquiry came to the conclusion that the act of the Management was grossly illegal. 7. Learned counsel for the respondent no. 2 tried to make out a case that the petitioner himself had abandoned the services. Such a submission appears to be devoid of any merit. The District Inspector of Schools before whom also such a submission was raised adequately met it and repelled the submission. As a matter of fact this plea appears to be an afterthought. 8. From the above discussion it is absolutely clear that respondent no. 1 did not consider the salient provisions of the statute and was guided by extraneous Consideration while allowing the appeal and his order suffers from manifest errors of law liable to be quashed. 9. In the result the petition succeeds and is hereby allowed with costs. The order dated 2-9-1981 (Annexure V to the petition) passed by respondent no. 1 is quashed. The petitioner would be deemed to have been working on the post of clerk with effect from 1-9-1977 and would be entitled to all the benefits accruing to him. Respondent no. 2 is directed to pay all the arrears of salary due to the petitioner within a month from today.