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Allahabad High Court · body

2007 DIGILAW 2775 (ALL)

JKRAM PATHAK v. STATE OF U P

2007-11-16

ASHOK BHUSHAN

body2007
ASHOK BHUSHAN, J. ( 1 ) HEARD learned Counsel for the petitioner and Sri Gajendra Pratap, learned Counsel for the respondent No. 3. ( 2 ) COUNTER and rejoinder affidavits have been exchanged between the parties. With the consent of the learned Counsel for the parties, the writ petition is being disposed of at the admission stage itself. ( 3 ) BY this writ petition, the petitioner has prayed for quashing the order dated 17. 8. 2007, passed by the Manager of the Committee of Management by which the petitioners services as Part Time Teacher have been terminated. ( 4 ) THE petitioners case is that the petitioner No. 1 was appointed as Part Time Lecturer in Commerce on 1/2/1999, the petitioner No. 2 was appointed as Part Time Lecturer in Mathematics on 8/10/1999 and the petitioner No. 3 was appointed as Assistant Part Time Teacher, Science on 3/9/2003 under section 7-AA of U. P. Intermediate Education Act, 1921. The petitioners case is that the new Committee of Management came into power in May, 2007 and a decision was taken to terminate the services of all the Part Time Teachers by resolution dated 30. 5. 2007, which order was challenged by means of a writ petition being Civil Misc. Writ Petition No. 27735 of 2007 in which this Court granted an interim order dated 20. 6. 2007. Subsequently on the statements of Committee of Management to the effect that notice dated 30. 6. 2007 has been withdrawn, this Court vide order dated 23. 7. 2007 dismissed the writ petition as infructuous. Thereafter by the impugned order dated 17. 8. 2007, the services of the petitioners have been terminated by giving following two reasons. (1) According to Rule 3 (2) of the U. P. Secondary Education Services Commission Rules, 1983 no male teacher shall be eligible for appointment in Girls School. (2) In the subjects for teaching of which the petitioners were appointed, female teachers have now become available. ( 5 ) LEARNED Counsel for the petitioners challenging the aforesaid two grounds mentioned in the impugned order, contended that the provisions of Rules 1983 are not applicable with regard to appointment of a Part Time Teacher. With regard to second ground, it is contended that no selection has been made of any female teacher therefore, the second reason is also non-existent. With regard to second ground, it is contended that no selection has been made of any female teacher therefore, the second reason is also non-existent. Learned Counsel for the respondents refuting the submission of the learned Counsel for the petitioners, submitted that even though the 1983 Commission Rules are not applicable but there is prohibition for appointment of male teachers in girls institution. It has been further contended that appointment of the petitioners was not made in accordance with the relevant Government Orders regulating the service conditions of Part Time Teacher hence, the petitioners are not entitled for any protection. He further submits that earlier Government Order issued in 1986 regulated the service conditions and since the petitioners appointment was not made following the procedure prescribed under law, they cannot claim for any protection. It was further contended that those Part Time Teachers who have been appointed without following the procedure prescribed, the Management is fully competent to terminate their services. Certain allegations against the male teachers have also been made in the counter affidavit filed on behalf of Committee of Management. ( 6 ) I have considered the submissions and perused the record. ( 7 ) THE order terminating the services of the petitioners as Part Time Teacher gives only two reasons as noticed above. The first reason based on Rule 3 (2) of 1983 Rules which is not applicable in view of Section 7-AB of U. P. Intermediate Education Act, 1921. Learned Counsel for the respondents submits that even though Commission Rules are not applicable but there is prohibition on appointment of male teachers in girls institution. In support of the said submission, learned Counsel for the respondent-management has neither been able to refer to any regulations framed under U. P. Intermediate Education Act, 1921 nor any Government Order. A copy of the letter issued by the Director of Education dated 6. 9. 1981 has been brought on record as Annexure C. A. 2 to the counter affidavit. The said letter was issued with regard regularisation of male teachers working in girls institution on temporary basis for long period. A perusal of the said letter does not indicate that the appointment of male teacher is prohibited in girls institution. 9. 1981 has been brought on record as Annexure C. A. 2 to the counter affidavit. The said letter was issued with regard regularisation of male teachers working in girls institution on temporary basis for long period. A perusal of the said letter does not indicate that the appointment of male teacher is prohibited in girls institution. Coming to the second reason given in the impugned order to the effect that the subjects for which the petitioners were appointed for teaching, the female teachers are now available, is also non-existent. No regular selection has been made by any competent authority for the subjects in which the petitioners are teaching the students. Much emphasis has been led by learned Counsel for the respondent-management that procedure for appointment of the petitioners as Part Time Teachers, was not followed hence, the management is free to terminate their services. It is relevant to note that the order impugned does not terminate the services of the petitioners on the ground that procedure was not followed. The reasons for termination have been expressly mentioned in the impugned order and it is not open for the respondent-management to add any other reason which is not mentioned on the order terminating the services. Thus, the submission of learned Counsel for the management that the procedure was not followed in the appointment of the petitioners hence they were terminated, cannot be accepted. Learned Counsel for the respondents further contended that by virtue of para 10 of the government Order dated 10. 8. 2001, management can terminate services of Part. Time Teacher without there being any reason. Paragraphs 8, 9 and 10 of the Government Order dated 10. 8. 2001 are relevant, which are being quoted herein below:- ( 8 ) PARAGRAPH 8 of the aforesaid Government Order provides for disciplinary action against Part Time Teacher, paragraph 9 provides for termination of employment of Part Time Teacher, paragraph 10 deals with resignation/termination of Part Time Teacher. The present is not a case for invoking paragraphs 8 or 9. Although in the counter affidavit, it has been mentioned that there were allegations against the male Part Time Teachers but since learned Counsel for the respondents clarified that there was no specific allegation against the petitioners. In view of the above the said submission does not require any further scrutiny. Although in the counter affidavit, it has been mentioned that there were allegations against the male Part Time Teachers but since learned Counsel for the respondents clarified that there was no specific allegation against the petitioners. In view of the above the said submission does not require any further scrutiny. Paragraph 10 of the aforesaid Government Order provides that the post of Part Time Teachers can be terminated. Clause 10 Kha of the Government Order dated 10. 8. 2001 provides that in case Madhyamik Shiksha Parishad has withdrawn the recognition of the institution or any subject or any section has been closed or for any other reason, the post of part time teacher is to be abolished, the Committee of Management by giving one months notice or by giving one months pay in lieu thereof can terminate their services. Learned Counsel for the respondents submits that the words used in clause Kha give ample power to the Committee of Management to terminate the services of a part time teacher as and when it desires. Clause 10 Kha, if read in the manner as contended by learned Counsel for the respondents shall clothe the management arbitrary power to terminate a part time teacher even if there is no valid reason. The words any other reason mentioned in clause 10 Kha has to be read "ejusdem generis" with other reasons as mentioned in clause. Even if termination of a Part Time Teacher has to be on a valid reason. In case the submission is accepted that any reason management can terminate the services of a Part Time Teacher, such clause will be clothing the Management with arbitrary power which could be exercised on whims or caprice of the management. The Apex Court in the case of The Government Branch Press and another v. D. B. Bellinppa, AIR 1979 SC 429 . held that accepting the submission that services have been terminated without any reason shall be nothing but accepting that the power has been exercised by the employer arbitrarily. The Apex Court in the case of The Government Branch Press and another v. D. B. Bellinppa, AIR 1979 SC 429 . held that accepting the submission that services have been terminated without any reason shall be nothing but accepting that the power has been exercised by the employer arbitrarily. Following was observed in paragraph 26:- "but it will be hazardous for us to base out decision on any such speculation, when the appellant, himself instead of taking any such plea, has, with obdurate persistency stuck to the position that the respondents service has been terminated without any reason which comes perilously near to admitting that the power reserved to the employer under the conditions of the employment, has been exercised arbitrarily. " ( 9 ) THUS, the submission of learned Counsel for the petitioner that the management even without reason can terminate the services of Part Time Teacher, cannot be accepted. In view of the above, the order impugned cannot sustain and is hereby set aside. ( 10 ) WITH regard to the petitioner No. 3. learned Counsel for the Management has submitted that the petitioner No. 3 has accepted notice amount without any protest and since he has accepted the amount without any protest, he is not entitled for any protection. Learned Counsel for the petitioner has not been able to show any material that the said amount was accepted under protest. The notice amount having been accepted by the petitioner No. 3 without any protest, he is not entitled for any protection and so far as writ petition with regard to the petitioner No. 3 is concerned, it is dismissed. ( 11 ) THE writ petition is partly allowed. Petition Partly Allowed. .