Judgment : M.L. Bhat 1. ORDER dated 6-7-1993 contained in Annexure-7 passed by the respondent No. 1 is prayed to be quashed through the medium of this writ petition. The petitioner is Principal of the institution in which respondent No. 3 was appointed on 25-4-1992 as a class IV employee. Petitioner's case is that the respondent No. 3 was appointed on probation in the pay scale of Rs. 750-12-870. The respondent No. 3 is said to have joined the service in pursuance of the appointment letter on 1-5-1992. The conduct, and working of respondent no. 3 was found unsatisfactory and he was given warning by the petitioner on 17-9-1992 to improve his work and conduct. On respondent No. 3's failure to improve his conduct, the petitioner terminated his services by giving him one month's notice on 23-3-1993. The respondent No. 3's termination from service was made effective from 30-4-1993. Respondent No. 3 is said to have not filed any appeal because the appellate authority which appointed the petitioner is respondent No. 2, therefore the order of his termination became final. 2. THE respondent No. 3 is said to have filed a representation/appeal directly before the respondent No. 1 which was sent for comments to the petitioner. THE appeal/representation was filed on 21-5-1993. Petitioner is said to have given his comments vide his letter dated 18-6-1993 to the representation/appeal filed by the respondent No. 3 before the respondent No. 1. Thereafter, the respondent No. 1 by the impugned order held that the termination of the respondent No. 3 was illegal and violative of section 16 (G) (2) and against the regulation 26 of 1975. This order is impugned in the writ petition and its validity is challenged by the petitioner. It is submitted by the petitioner that appeal/representation against termination of respondent No. 3's service was not maintainable. The impugned order is said to have been passed behind the back of the petitioner and is said to be without jurisdiction. Respondent No. 3's services were liable to be terminated at any time during the probation period. The order passed by the respondent No. 1 is, therefore, illegal and without jurisdiction. The explanation given by the petitioner has not been considered by the respondent No. 1. The legal provisions have also not been taken into consideration by the respondent No. 1 while passing the impugned order. The order passed by the respondent No. 1 is, therefore, illegal and without jurisdiction. The explanation given by the petitioner has not been considered by the respondent No. 1. The legal provisions have also not been taken into consideration by the respondent No. 1 while passing the impugned order. Respondent No. 3's conduct was never satisfactory and he was not fit to be retained in service. He would disrupt the peaceful atmosphere of the institution and was indulging in instigating the students to resort to indiscipline. Provisions of section 16 (G) (3) do not apply to the respondent No. 3. The said provisions are applicable to a permanent employee only. Therefore, the impugned order is without application of mind as it is based on a provision of law which is wholly inapplicable to the respondent No. 3. The impugned order is also saId to be violative of principles of natural justice. Respondent No. 3's contention before the respondent No. 1 that there was already an order in his favour passed by the respondent No. 2 was incorrect. If the said order would have been there, the question of filing the representation/appeal by the respondent No. 3 before the respondent No. 1 would not have arisen. 3. RESPONDENT No. 3 had appeared at the admission stage. He filed a counter affidavit also. It is stated that Santosh Kumar Memorial Inter College, Gangola Dataganj, District Budaun, the institution in question, is a duly recognised government aided institution and the service conditions of the petitioner and the employees are covered under U. P. Intermediate Education Act, 1921 and the regulations framed thereunder Provisions of U. P. High School and Intermediate Colleges (Payment of salaries of teachers and other employees) Act of 1971 also applies to the employees of the institution. It is, further, contended that a substantive vacancy had occurred in Class IV cadre due to one Brij Pal Singh's retirement. The vacancy was advertised and the respondent No. 3 was selected as he was found suitable candidate for the vacancy which was substantive. He was to remain on probation initially in terms of letter of appointment dated 25-4-1992. On 28-5-1992 respondent No. 1 is said to have approved the appointment of the respondent No 3. Copy of this is annexed as Annexure- 1 to the counter affidavit. The respondent No. 3 has denied allegations about his bad conduct and unsatisfactory work. He was to remain on probation initially in terms of letter of appointment dated 25-4-1992. On 28-5-1992 respondent No. 1 is said to have approved the appointment of the respondent No 3. Copy of this is annexed as Annexure- 1 to the counter affidavit. The respondent No. 3 has denied allegations about his bad conduct and unsatisfactory work. The written warning issued to the respondent No. 3 is said to have been issued on wrong facts. The respondent No. 3 has narratted some facts as to why he was incorrectly termed as man of bad conduct and why his work was treated as unsatisfactory. It is stated that neither any charge sheet was given nor any enquiry officer was appointed as provided under the regulations. The order of termination was based on certain charges which were not enquired into and the respondent No. 3 was denied opportunity of being heard and the said order was contrary to the statutory rules. It was necessary for the petitioner to initiate disciplinary proceedings against the respondent No. 3 and without doing so he could not have terminated his services. The respondent No. 3 is said to have filed an appeal before the management. No decision was given on the appeal but he was directed to resume work before the Manager. The respondent . No. 3 is said to have resumed his duties and performed his duty till 7-5-1993. After 7-5-1993 he was not permitted to work in the institution. The allegations that the respondent No. 3 is notorious and law breaking person are denied by the respondent No. 3. 4. SINCE the action of the petitioner was without jurisdiction, therefore, the respondent No. 3 filed representation before the respondent No. 1. The service of the respondent No. 3 were terminated without the approval of the respondent No. 1. It is stated that, petitioner was bound to obtain the approval of the respondent No. 1 before issuing the impugned order. The impugned order is said to be valid and the respondent No. 1 had the jurisdiction to set aside the termination order which was passed in contravention of the provisions of law. Before passing the impugned order, the respondent No. 1 had given full opportunity to the petitioner and the petitioner had submitted explanation also in reply to the respondent No. 3's representation. Petitioner has filed rejoinder affidavit also. Before passing the impugned order, the respondent No. 1 had given full opportunity to the petitioner and the petitioner had submitted explanation also in reply to the respondent No. 3's representation. Petitioner has filed rejoinder affidavit also. It is stated that respondent No. 3 was appointed by the petitioner and the approval of the respondent No. 1 was obtained for the purpose of payment of salary. Factual paras in the counter affidavit in which respondent No. 3 has narratted facts about his conduct and work are denied in the rejoinder affidavit. The assertions made in the writ petition are reiterated. The termination of the respondent No. 3's services is ordered because after assessing his work and conduct he was not found suitable for the post and termination order is not by way of punishment, therefore, no disciplinary proceedings were required to be initiated against the respondent No. 3. Services of the respondent No. 3 were terminated because he was a probationer and the termination is in accordance with the Chapter III of the Regulations. It is submitted that prior approval for terminating the service of Class IV employees is not necessary. Prior approval is necessary in case of teachers only. The respondent No. 3 could not file any representation/appeal before the respondent No. 1. He could file the appeal before the respondent No. 2. No appeal was filed by the respondent No. 3 before, the respondent No. 2 and it is denied that Manager of the institution had asked the respondent No. 3 to resume the work and the respondent No. 3 had worked till 7-5-1993. 5. LEARNED counsel for the parties submitted that they have exchanged their counter and rejoinder affidavits, therefore, this case be decided finally at admission stage. The prayer of the learned counsel was granted on 18-8-1993 and the arguments in the writ petition were heard on 30-8-1993. In accordance with the rules the court and the request of the learned counsel for the parties, this writ petition is being decided finally at this stage. 6. The prayer of the learned counsel was granted on 18-8-1993 and the arguments in the writ petition were heard on 30-8-1993. In accordance with the rules the court and the request of the learned counsel for the parties, this writ petition is being decided finally at this stage. 6. LEARNED counsel for the petitioner has argued that order of respondent No. 1 impugned in this writ petition is without jurisdiction because appointing authority of the respondent No. 3 is Principal and respondent No. 3 could be terminated from the service by the Principal of the institution and there was no need to obtain prior approval of the respondent No. 1. it is contended that under Regulation 24 service of the respondent No. 3 could be terminated and the action of the petitioner is valid. The Regulation 24 provides that service of an employee appointed as a temporary measure for a definite period or in a leave vacancy or in a vacancy occurring for a part of the session can be terminated on the expiry of the period for which he was appointed or when the vacancy comes to an end and no prior notice is necessary for such termination. It is further submitted that Regulation 26 is not, applicable to the respondent No. 3. The said regulation applies to permanent employees. Under Regulation 31 if punishment of dismissal, removal or discharge or reduction in rank or diminution in emoluments is awarded to an employee prior approval of the Inspector is necessary. The regulation was amended in 1975 by a notification No. 7/562/5-8 dated 10-3-1975. Therefore, for removal or discharge of an employee approval of DIOS is condition precedent and till the approval is received an employee cannot be removed from the service. 7. HOWEVER, learned counsel for the! petitioner has submitted that respondent No. 3's termination of service was termination simpliciter. It was ordered during the period of probation and it was not as a measure of punishment. The termination would not, therefore, cast any stigma on the respondent No. 3. Such a termination is neither dismissal nor removal from the service. Therefore, the respondent No. 3 was not entitled to be heard before termination of his service was ordered. He had placed reliance on Janta Vidyalaya Society, Deoria v. The Deputy Director of Education, VII Region, Gorakhpur, 1983 UP LB EC 622. Such a termination is neither dismissal nor removal from the service. Therefore, the respondent No. 3 was not entitled to be heard before termination of his service was ordered. He had placed reliance on Janta Vidyalaya Society, Deoria v. The Deputy Director of Education, VII Region, Gorakhpur, 1983 UP LB EC 622. Termination of the respondent No. 3 could be ordered by the appointing authority which in the present case is the petitioner. Prior approval of the respondent No. 1 was not necessary. Respondent No. 1 could not hear the appeal/representation of the respondent No. 3 nor could respondent No. 1 set aside the order of termination and allow respondent No. 3 to continue on the post. 8. IN was next contended that section 16 (G) (3) has no application in case of the respondent No. 3 because he was a Class IV employee. According to the learned counsel for the petitioner section 16 (G) (2) is applicable only in case of teachers and the said provision does not apply to Class IV employees. It is submitted by the learned counsel for the petitioner that since respondent No. 1 has invoked provisions of section 16 (G) (3) or the U. P. Intermediate Education Act of 1921, therefore, the impugned order is bad. It is submitted that respondent No. 1 is not vested with the power to consider the appeal against the termination simpliciter of Class IV employees, therefore, impugned order is without jurisdiction. It is contended by the learned counsel for the respondent No. 3 that by virtue of the amendment in Section 16 (G) in 1975 provisions of Section 16 (G)(3) of the Act is applicable to the probationer also. He has also relied on some authorities. 9. IN Bhopal Singh Verma v. Deputy Director of Education and others, 1983 UP LB EC 597. This Court discussed the scope and ambit of Section 16 (G) (3) as amended by U. P. Act of XXVI of 1975 and Regulation 31 and held that prior approval of DrOS is necessary before imposition of punishment upon any employee including the clerk of an institution. 10. This Court discussed the scope and ambit of Section 16 (G) (3) as amended by U. P. Act of XXVI of 1975 and Regulation 31 and held that prior approval of DrOS is necessary before imposition of punishment upon any employee including the clerk of an institution. 10. IT was contended by the learned counsel for the respondent that respondent No. 3's services are terminated and stigma is cast to him, therefore, it was necessary for the petitioner to hold an enquiry against the alleged misconduct on which the termination of the respondent No. 3 is grounded. Said order of termination is liable to be set aside even if it is passed against a probationer. Reliance is placed on the authority of Supreme Court, Indra Pal Gupta v. The Managing Committee, Model Inter College, Thora, 1984 UP LB EC 471. Learned counsel for the respondent No. 3 has also relied on notes of cases contained in, A.S.M.P. Association, Gangdundwara v. Deputy Director of Education, Agra, 1977 (3) ALR 31. The authority says that prior approval of DIOS is necessary where service of a Principal or a teacher on probation is terminated. 11. LEARNED counsel for the petitioner has referred to an authority Ranendra Chandra Banerjee v. The Union of India, AIR 1963 SC 1552 . It is true that if the termination of service is in accordance with the rules governing conditions of service that would not amount dismissal or removal and civil servant is not entitled to the protection of Article 311 (2) of the Constitution but in the present case it is pointed that termination of respondent No. 3 was in violation of statute and without enquiry and the same was by way of punishment, therefore, this authority will not apply to the facts of this case. 12. HE has referred to Hari Singh Mann v. State of Punjab, AIR 1974 (SC) 2263 . It was held that words 'unfit to be appointed' are not stigma. The Supreme Court was considering case of a probationer under Punjab Police Service Rules. Under the said rules a probationer is to be appointed after completion of probation if he is found fit for appointment. In the present case there are different charges and allegations against the respondent No. 3 which have not been enquired into, therefore, the Punjab authority also will not be of any. help to the petitioner. Under the said rules a probationer is to be appointed after completion of probation if he is found fit for appointment. In the present case there are different charges and allegations against the respondent No. 3 which have not been enquired into, therefore, the Punjab authority also will not be of any. help to the petitioner. On examination of the impugned order it appears that respondent No. 3's services are terminated for his alleged misconduct and on some allegations, therefore, termination of respondent No. 3's service is not termination simpliciter. The respondent No. 3's termination from the service is by way of punishment. Therefore, it was necessary for the petitioner to initiate an enquiry against the respondent No. 3 in which respondent No. 3 was required to be associated. He was also entitled to be heard. The grounds on which the impugned order is based were necessarily to be given to him so as to enable him to explain his conduct. However, that was not done. An order of termination was passed in which reference of the bad conduct about the respondent No. 3 was given and certain charges were levelled against him so the order of termination issued by the petitioner against the respondent No. 3 cannot be termed as termination simpliciter but is an order of termination of service by way of punishment. Respondent No. 3 could be removed from the service on the basis of the said order only if there was a prior approval of respondent No. 1. That prior approval was not obtained, therefore, he could not be removed from service. The reference made in respect of the Section 16 (G) (3) of the U. P. Intermediate Education Act is not therefore, misplaced because by virtue of the amendment effected in 1975 the provisions contained in the said Section do apply to the employees of the institution in the same manner in which they are applicable to the Principals and teachers of the institution. The impugned order is not, therefore, bad because it refers to Section 16 (G) (3) of the U. P. Intermediate Education Act of 1921. 13. RESPONDENT No. 1 had the jurisdiction to approve or disapprove the termination order passed by the petitioner in respect of respondent No. 3. Admittedly, he had not approved the order of termination of service of respondent No. 3. 13. RESPONDENT No. 1 had the jurisdiction to approve or disapprove the termination order passed by the petitioner in respect of respondent No. 3. Admittedly, he had not approved the order of termination of service of respondent No. 3. If the matter is brought before the respondent No. 1 by the respondent No. 3 about the illegality committed by the petitioner in not obtaining the prior approval of the respondent No. 1, the respondent No. 1 could definitely pass an order on the representation of the respondent No. 3 disapproving the termination of service of respondent No. 3. Approval of respondent No 1 in the master of termination of service of an employee of an institution under Section 16 (G) (3) is a condition precedent. This condition was not complied with, therefore, termination order passed by the petitioner against the respondent No. 3 was liable to be set aside by the respondent No. 1 who had the jurisdiction to grant approval which would include that he could disapprove the termination of service of the respondent No. 3. Therefore, on this ground impugned order does not suffer any infirmity. It was within the jurisdiction of the respondent No. 1 to set aside the order of termination issued by the petitioner against the respondent No. 3 as it aid not conform to the statutory provisions of law and was passed in violation of the mandatory provisions of law. Even Regulation 31 was not complied with, therefore, the order of the termination was liable to be set aside by the respondent No. 1 who was approving authority of the termination order. The termination of the respondent No. 3's service was by way of punishment, therefore, it was necessary for the petitioner to comply with Regulation 31 and obtain prior approval of the DIOS before embarking to terminate the service of the respondent No. 3. 14. THE impugned order is not violative of natural justice. It is the case of the petitioner that representation made by the respondent No. 3 before the respondent No. 1 was sent to the petitioner for his comments and petitioner has given his comments on the said representation. That would mean that on the representation of the respondent No. 3, petitioner was given the opportunity to explain his position and requirement of affording the opportunity of being heard was substantially complied with by the respondent No. 1. That would mean that on the representation of the respondent No. 3, petitioner was given the opportunity to explain his position and requirement of affording the opportunity of being heard was substantially complied with by the respondent No. 1. THE impugned order seems to have been passed by the respondent No. 1 after he had received the explanation of the petitioner in reply to the representation of the respondent No. 3. THE respondent No. 1 has not passed the order at the back of the petitioner. Petitioner's version has been considered and thereafter the impugned order has been passed. THE submission of the learned counsel for the petitioner with regard to the ground of violation of principles of natural justice is misplaced. On consideration of the facts and law as discussed above, I am of the opinion that the impugned order does not suffer from any infirmity nor is tainted with any constitutional and statutory vice. The impugned order is perfectly valid. 15. FOR the foregoing reasons, I see no merit in the writ petition which is dismissed. There will be no order as to costs. Petition dismissed.