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Madhya Pradesh High Court · body

2007 DIGILAW 76 (MP)

Suresh Kumar Gupta v. State of M. P.

2007-01-18

S.K.GANGELE

body2007
ORDER 1. The petitioner has filed this petition challenging the order, Annexure P-l dated 4.6.2001. By the aforesaid order it has been held that the appointment of the petitioner was illegal hence his services be terminated forthwith. 2. Respondent No.3 is a Society, registered under the provisions of Societies Registration Act. It is running a Higher Secondary School at Dabra. There was a post fallen vacant hence Society - respondent No.3 submitted an application on 27.7.1990 to the Joint Director of Education, Gwalior Division, Gwalior for the purpose of appointment and filling of the post as per provisions of Madhya Pradesh Non-Government Educational Institutions (Teachers and Employees Recruitment and Services) Rules, 1979. The Joint Director of Education granted permission to respondent No.3, Institution for the purpose of filling of the post of Lecturer (Sanskrit), copy of the order has been filed as Annexure P-5 dated 14.9.1990. Consequently, the institution issued an advertisement in a local news paper with regard to selection and appointment on the post of Lecturer (Sanskrit), copy of the advertisement has been filed as Annexure P-6. In pursuance to the said advertisement the petitioner applied for the aforesaid post and a selection committee was constituted by the Divisional Superintendent, Education, copy of the order has been filed as Annexure P-7 dated 22.11.1990. The Committee after following proper procedure selected the petitioner on the post of Lecturer (Sanskrit). Consequently, an appointment order in favour of petitioner has been issued, copy of which has been filed as Annexure P-2 dated 3.12.1990. 3. It appears that there were complaints with regard to appointment of the petitioner, hence, the Government found the appointment of the petitioner not proper because the provisions of reservation were not followed, hence his appointment was declared illegal and an amount of Rs.31,592/- towards salary paid to the petitioner was ordered to be recovered from him. Copy of the order has been filed as Annexure P-9 dated 27.4.1993. Against the aforesaid order the petitioner submitted a representation and thereafter the appointment of the petitioner was approved and the order was cancelled vide order dated 28th July 1993 and his post as Lecturer has been accepted for the purpose of grant in aid. Copy of the order has been filed as Annexure P-10. Thereafter, the Principal, Government Boys Higher Secondary School, Dabra again conducted an enquiry and found the appointment of the petitioner as per law. Copy of the order has been filed as Annexure P-10. Thereafter, the Principal, Government Boys Higher Secondary School, Dabra again conducted an enquiry and found the appointment of the petitioner as per law. A complaint was also submitted to the Sub Divisional Officer, Dabra and the Chief Executive Officer, District Panchayat, Gwalior with regard to appointment of the petitioner as Lecturer and Sub Divisional Officer directed the Naib Tehsildar to conduct the enquiry and Naib Tehsildar submitted his report to the Sub Divisional Officer and on the basis of the report of the Naib Tehsildar the Sub Divisional Officer found that the appointment of the petitioner was not proper. The post of Lecturer (Sanskrit) was not sanctioned by the Government, hence he had no right to continue as lecturer (Sanskrit), copy of the report submitted by the Sub Divisional Officer has been filed as Annexure P-16. It appears that on the basis of the report of the Sub Divisional Officer the impugned order, Annexure P-l, has been passed by the Deputy Secretary, School Education Department and it is ordered that the appointment of the petitioner be terminated immediately because it was not as per law. 4. Initially, the respondent No.3 has filed the return on 22.10.2001. In the aforesaid return the respondent No.2 has supported the case of the petitioner and stated that the order passed by the Government, Annexure P-l was illegal. 5. Similarly, respondents No. 1 and 2 have also filed the return on 25.6.2004. In the aforesaid return they admitted the fact that the permission to fill up the post of Lecturer (Sanskrit) was given by the Joint Director and the selection committee was constituted for the aforesaid purpose by the Joint Director of Education. However, they further stated that the appointment of the petitioner was not as per the provisions of Madhya Pradesh Ashaskiya Shiksha (School Me Karyarat Adhyapakon Tatha Anya Karamcharion Ke Padonnati) Rules, 1988, hereinafter called 'The Rules of 1988'. Because the post of Lecturer had to be filled up by 100% promotion, subsequently, the respondents filed an additional return. In the aforesaid return the respondent No.3 has taken 'U' turn from earlier stand and stated that appointment of the petitioner was not as per law because the post of Lecturer (Sanskrit) was not sanctioned. It has further been submitted that there were no students to teach Sanskrit in the college. 6. In the aforesaid return the respondent No.3 has taken 'U' turn from earlier stand and stated that appointment of the petitioner was not as per law because the post of Lecturer (Sanskrit) was not sanctioned. It has further been submitted that there were no students to teach Sanskrit in the college. 6. Learned counsel for the petitioner has submitted that the impugned order, Annexure P-1 is arbitrary and illegal. The petitioner was appointed after following the procedure as Lecturer (Sanskrit) and without any notice the appointment of the petitioner has been cancelled. He has further contended that the Sub Divisional Officer had no power and authority to conduct any enquiry. In support of his contention learned senior counsel relied upon the judgment of the Hon'ble Supreme Court in the case of State of U.P. and another v. Chandrapal Singh and another [ (2003) 4 SCC 670 ] and Delhi Development Authority v. H.C. Khurana [ (1993) 3 SCC 196 ]. 7. Contrary to this the learned senior counsel appearing on behalf of respondent No.3 has submitted that appointment of the petitioner is void ab initio because no post of Lecturer (Sanskrit) was sanctioned as per law. The petitioner with the connivance of the authorities himself has got appointed. In support of his contention the learned senior counsel relied upon the following judgments: (1) Bherusingh v. State of M.P. [ 1987 JLJ 530 ]; (2) R. Vishwanatha Pillai v. State of Kerala [ (2004) 2 SCC 105 ]; (3) R.S. Garg v. State of U.P. and others [ (2006) 6 SCC 430 ] and (4) Smt. Raavinder Sharma and another v. State of Punjab and others [ AIR 1995 SC 277 ]. 8. Learned counsel for respondents No.1, 2 and 4 supported the arguments advanced by the learned senior counsel appearing for respondent No.3. 9. From the facts stated above, the undisputed facts of the case are that the society - respondent No.3 submitted a letter to the Joint Director, Education for appointment of Lecturer (Sanskrit) and he gave his permission for the appointment. The Joint Director also constituted a selection committee for the purpose of selection. Thereafter, the petitioner in pursuance to the advertisement issued by respondent No.3 applied for the post and he was selected by the Committee. The Joint Director also constituted a selection committee for the purpose of selection. Thereafter, the petitioner in pursuance to the advertisement issued by respondent No.3 applied for the post and he was selected by the Committee. Subsequently, the Government also approved the selection of the petitioner and also accepted the post of Lecturer (Sanskrit) for the purpose of grant in aid. Copy of order to this effect has been filed as Annexure P-l0 dated 28th July 1993. Some inquiries were conducted by the authorities with regard to appointment of the petitioner who found the appointment order as per law. However, the Sub-Divisional Officer did not find the appointment of the petitioner as per law and submitted his report to the Education Department and without giving any opportunity of hearing or issuing show cause notice the impugned order, Annexure P-l, terminating the services of the petitioner has been passed. 10. The State Government has framed Rules with regard to appointments of the teachers in private schools named as Madhya Pradesh Ashaskiya Sikshan Sanstha (Adhyapakon Tatha Anya Karmachariyon Ki Bharati) Niyam, 1979, hereinafter called as, 'the Rules of 1979). As per the aforesaid Rules it is the duty of the institution to make a reference with regard to filling up any vacancy of a post of teacher to the Divisional Superintendent of Education alongwith a requisition and the concerned authority shall accord approval and after that also constitute a selection committee. For the purpose of lecturer minimum qualification has also been prescribed which is Post Graduate Degree in the concerned subject. It is clear from the facts that the petitioner has passed the Post Graduate Degree in the concerned subject and the institution submitted the application and the Divisional Superintendent of Education granted permission for appointment and also constituted a selection committee. In these circumstances, it cannot be said that the appointment of the petitioner was void ab initio as pointed out by the learned senior counsel for respondent No.3. Further submitted of the learned counsel for the respondents that the post was to be filled up by 100% promotion also cannot be accepted because learned counsel relied upon the Rules which is named as the Promotion Rules, 1988. Further submitted of the learned counsel for the respondents that the post was to be filled up by 100% promotion also cannot be accepted because learned counsel relied upon the Rules which is named as the Promotion Rules, 1988. However, the Government framed the Rules with regard to appointment of teachers and employees as stated earlier namely, Rules of 1979 and as per the aforesaid Rules the appointment can be made by direct appointment and promotion. Apart from this, the Government has also framed Rules with regard to disciplinary action against the employees and teachers of the aided institutions. These Rules have been named as the Madhya Pradesh Ashaskiya Shikshan Sanstha (Adhyapakon Tatha Anya Karmchariyon Ke Padachyut Karne/Sewa Se Hatane Sambandhi Prakriya) Niyam, 1983, hereinafter called as Niyam 1983. The procedure of termination of services of teachers and other employees have been prescribed in the aforesaid rules, which is as under: "3. Show cause notice -- No order imposing any of the penalties specified in sub-clause (iii) or clause (a) of section 6 of the Act on a teacher or other employee shall be made unless he has been informed in writing of the grounds on which it is proposed to take action and he has been given reasonable opportunity of defending himself." It is clear from the aforesaid rule that the respondents have not followed the mandatory procedure as prescribed in the rules and the Sub-Divisional Officer had no power and authority to conduct the inquiry as per the provisions of the aforesaid statutory rules but he conducted the inquiry and on the basis of his report the order of termination has been passed. Hence, the proceedings conducted by the Sub-Divisional Officer are against the law and the order impugned which has been passed on the basis of the report of the Sub-Divisional Officer without giving any opportunity of hearing to the petitioner is void ab initio. 11. Hence, the proceedings conducted by the Sub-Divisional Officer are against the law and the order impugned which has been passed on the basis of the report of the Sub-Divisional Officer without giving any opportunity of hearing to the petitioner is void ab initio. 11. Hon'ble Supreme Court in State of U.P. and another v. Chandrapal Singh and another reported in [ (2003) 4 SCC 670 ], has held as under with regard to initiation of departmental proceedings by an authority which is not empowered by law: "In terms of Article 311 of the Constitution, no person who is a member of the civil service of the Union or all-India service or civil service of a State or holds a civil post under the Union or a State, shall be dismissed or removed by an authority subordinate to that by which he was appointed. Admittedly, in this case, the Director of Agriculture actually appointed the respondent 1. But looking to the terms and contents of Article 311 (1), it does not follow that even initiation or conduct of inquiry proceedings should be by that authority itself, which is empowered to dismiss or remove an official under the said article, unless there is an express rule governing the official requiring it to be so." The Hon'ble Supreme Court in Aligarh Muslim University and others v. Mansoor Al Khan [ (2000) 7 SCC 529 ], has specifically held that the Rules of Natural Justice can only be dispensed with when from the undisputed facts of the case it can be held that the order impugned was legal. Hence, in the present case it cannot be held that the procedure prescribed as per the Rules for Termination can be waived. 12. Consequently, the petition of the petitioner is allowed. The impugned order. Annexure P-I is hereby quashed. It is further directed that the petitioner would also be entitled to the consequential benefits. No order as to costs.