JUDGMENT Hon’ble Shishir Kumar, J.—The present writ petition has been filed for quashing the resolution/termination order dated 11.12.1995 (Annexure 1 to the writ petition) and order of approval dated 10.11.1996 (Annexure 5 to the writ petition) and appellate order dated 10.2.1998 (Annexure 7 to the writ petition) passed by the respondent Nos. 3, 2 and 1 respectively. Further a writ in the nature of mandamus commanding the respondents to treat the petitioner as holding the post of accountant and to provide him all consequential benefits in accordance with law. 2. The brief facts of the case are that the petitioner was appointed as an accountant in the Agrasen Inter College, Harduaganj, District Aligarh. In the year 1990, one Sri Rajpal Sharma, Head Clerk retired and the petitioner being senior most was entitled to be promoted on the post, which came into existence due to retirement of Sri Rajpal Sharma. When the Committee of Management do not promote the petitioner on the post of Head Clerk, the petitioner was compelled to file a writ petition before this Court and by order dated 2.4.1993 this Court had passed the following order : "The petitioner is claiming that he is entitled to be promoted on the post of Head Clerk. He has made a representation to the District Inspector of Schools to the same effect. The District Inspector of Schools may decide the petitioners representation in accordance with the rules expeditiously. The writ petition is accordingly disposed of." 3. The respondents after coming to know of the aforesaid order of the Honble Court, illegally promoted one Sri Nand Kishore, who was junior to the petitioner from back date. Then the petitioner filed another Writ Petition No. 28794 of 1993 challenging the appointment of Sri Nand Kishore on the post of Head Clerk. The writ petition is still pending and no counter affidavit has been filed. As promotion of Nand Kishore was wholly illegal and there was a hope that the petitioner will succeed in the writ petition, as such, the respondents started pressing the petitioner to withdraw the writ petition. It was on 14.6.1995, the petitioner fell ill and he made an application for grant of leave. On 19.6.1995, petitioner sent an application for granting leave from 15.6.1995 to 14.7.1995 by registered post. The same was returned back as the principal of the college refused to accept the registry sent by the petitioner. It was on 14.6.1995, the petitioner fell ill and he made an application for grant of leave. On 19.6.1995, petitioner sent an application for granting leave from 15.6.1995 to 14.7.1995 by registered post. The same was returned back as the principal of the college refused to accept the registry sent by the petitioner. Again a letter was sent to the Manager of the College alongwith the original application and the medical certificate dated 19.6.1995 and a copy of the same was handed over to the District Inspector of Schools. Respondent annoyed to the aforesaid act, so without any resolution the respondent No. 1 placed the petitioner under suspension on 18.6.1995. As the petitioner could not recover from his ill health on 16.11.1995, he made another application for extension of leave from 16.11.1995 to 30.12.1995 with a request that the medical certificate will be submitted when the petitioner will join. On 8.12.1995, the petitioner came to know through his son that a notice has been published in the Dainik Jagran dated 6.12.1995 to the effect that the petitioner should obtain a copy of the charge-sheet up to 9.12.1995. As stated above, petitioner was ill and was not in a position to obtain the copy of charge-sheet, as such, he sent his son on 9.12.1995 with an application to handover the said charge-sheet but the Principal of the said institution refused to accept the same. 4. Suddenly on 10.1.1996, the petitioner received an order dated 11.12.1995 sent under the postal certificate by which services of the petitioner have been terminated. The order dated 11.12.1995 has been passed without any opportunity of hearing to the petitioner and without conducting any enquiry, therefore, the resolution and order dated 11.12.1995 is bad in law as no charge-sheet was ever served upon the petitioner and no enquiry was conducted whatsoever. The order is in contravention of Regulations 36 and 37 framed under the U.P. Intermediate Education Act, 1921. The mandatory provision to this effect regarding seeking prior approval from the District Inspector of Schools was not obtained. 5. It has been submitted by the learned Counsel for the petitioner that the Committee of Management did not issue any show cause notice to the petitioner and was not afforded any opportunity of being heard before passing the order impugned. The mandatory provision to this effect regarding seeking prior approval from the District Inspector of Schools was not obtained. 5. It has been submitted by the learned Counsel for the petitioner that the Committee of Management did not issue any show cause notice to the petitioner and was not afforded any opportunity of being heard before passing the order impugned. The petitioner challenge the said order of termination by filing a Writ Petition No. 15171 of 1996 and this Court had passed the following order : "Sri Manoj Gupta and Sri V.K. Gupta appear for the respondents. They pray for allowed two weeks time to file counter affidavit. Petitioner may file rejoinder affidavit within two weeks thereafter. Writ petition shall be listed thereafter for admission/final disposal in the first week of August, 1996. In the meantime operation of resolution passed by the Managing Committee dated 10.12.1995 (Annexure-9 to the writ petition) shall remain stayed. District Inspector of Schools is also restrained from taking any action thereon." 6. Aggrieved by the aforesaid order dated 30.4.1996, the Committee of Management preferred a Special Appeal mainly on the ground that order dated 10.12.1995 has not yet been given effect to as it is only a resolution and will take effect only after the approval of the District Inspector of Schools. On the basis of the aforesaid statement made by the Committee of Management, the Special Appeal was disposed of finally and directed the District Inspector of Schools to pass an order upon the proposal submitted by the Committee of Management. In spite of the direction issued by this Court, the District Inspector of Schools instead of approving or disapproving the order has passed a detailed order without giving any reasons and without considering the representation of the petitioner, which was received in the office of the District Inspector of Schools on 5.11.1996. Against the order dated 10.11.1996, the petitioner filed a writ petition before this Court and while disposing of the writ petition the petitioner was directed to approach the appropriate authority. 7. Against the order dated 10.11.1996, the petitioner filed a writ petition before this Court and while disposing of the writ petition the petitioner was directed to approach the appropriate authority. 7. In pursuance of the order the petitioner filed an appeal before the respondent No. 1 on the ground that the petitioner did not submit his reply to the charges levelled against him before the Committee of Management or before the District Inspector of Schools and no notice and opportunity to that effect was given but in spite of the aforesaid fact, the appeal filed by the petitioner was rejected vide its order dated 10.2.1998. 8. The petitioner submits that it is apparent from the record that no notice and opportunity to that effect has been given to the petitioner by the alleged enquiry officer as submitted by the Committee of Management. From the publication, which is alleged to be published in the newspaper dated 5.12.1995 clearly states that charge-sheet may be taken by the petitioner on or before 9.12.1995, therefore, prior to this date no order can be passed. But from the perusal of the report of the enquiry officer dated 9.12.1995, it was recommended to terminate the services of the petitioner only on 9.12.1995. The Committee of Management on 2.12.1995 alleged to have issued a letter to this effect that there will be a meeting of Committee of Management and Item No. 3 will be taken into consideration regarding the services of the petitioner and by order dated 11.12.1995, the services of the petitioner were terminated. It clearly goes to show that the respondents were pre-determined to pass the order of termination against the petitioner. If the time was given up to 9.12.1995 the enquiry officer would have waited either for the next date for recommendation to terminate the services of the petitioner to the Committee of Management. The Committee of Management was also pre-determined and has alleged to have issued a letter dated 2.12.1996 to determine the question of services of the petitioner. There is nothing on record to show that this letter was ever received by the petitioner at any point of time and from the order impugned dated 11.12.1995 it clearly appears that a decision was taken on 10.12.1995 to terminate the service of the petitioner, therefore, it clearly appears that the Committee of Management was in haste in terminating the services of the petitioner. 9. Further it has been argued by Sri Rajiv Ratan Singh, learned Counsel for the petitioner that the respondent No. 1 has recorded a finding to this effect that in spite of the notice to the Committee of Management regarding submission of the relevant documents for initiating the disciplinary proceedings after suspension to this effect was commenced or not, no documents to that effect were filed by the Committee of Management. In spite of the aforesaid finding the appeal filed by the petitioner has been rejected holding therein that no proper procedure as provided under the Regulations 36 and 37 has been complied with. Regulations 36 and 37 are being reproduced below : "36. (1) The grounds on which it is proposed to take action shall be reduced in the form of a definite charge or charges which shall be communicated to the employee charged and which shall be so clear and precise as to give sufficient indication to the charged employee of the facts and circumstances against him. He shall be required within three weeks of the receipt of the charge-sheet to put in a written statement of his defence and to state whether he desired to be heard in person. If he or the inquiring authority so desires, an oral enquiry shall be held in respect of such of the allegations as are not admitted. At that enquiry such oral evidence will be heard as that inquiring authority considers necessary. The person charged shall be entitled to cross-examine the witnesses, to give evidence in person, and to have such witnesses called as he may wish; provided that the enquiring authority conducting the enquiry may, for sufficient reasons to be recorded in writing, refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and statement of the findings and the grounds thereof.The inquiring authority conducting the enquiry may also, separately from these proceedings, make his own recommendation regarding the punishment to be imposed on the employee. (2) Clause (1) shall not apply where the person concerned has absconded, or where it is for other reasons impracticable to communicate with him. (2) Clause (1) shall not apply where the person concerned has absconded, or where it is for other reasons impracticable to communicate with him. (1) All or any of the provisions of clause (1) may for sufficient reasons to be recorded in writing be waived where there is difficulty in observing exactly the requirements thereof and those requirements can in the opinion of the inquiring authority be waived without injustice to the person charged. 37. Soon after the report of the proceedings and recommendation from the inquiring authority are received, the Committee of Management shall after notice to employee meet to consider the report of the proceedings and recommendation made and take decision on the case. The employee shall be allowed, if he so desires, to appear before the committee in person to state his case and answer any question that may be put to him by any member present at the meeting. The Committee shall then send a complete report together with all connected papers to the Inspector or Regional Inspectress, as the case may be, for approval of action proposed by it." 10. The reliance has been placed upon a Division Bench judgement of this Court in Ram Kumar Dixit v. Deputy Director of Education, Bareilly and others, 1980 UPLBEC,110. Reliance has been placed upon paras 5 and 6 of the said judgement. The same are being reproduced below : "5. Section 16-G of the U.P. Intermediate Education Act lays down that teachers employed in a recognised institution shall be governed by such conditions of service as may be prescribed by Regulation. Regulations 31 to 17 prescribed procedure for punishment, enquiry and suspension of a teacher. Regulation 35 lays down that no receipt of a complaint the Committee may in the case of teachers appoint the Headmaster or Principal or Manager as Enquiry Officer to hold enquiry into the charges. Regulation 36 lays down that a teacher shall be required to submit reply to the charges within three weeks of the receipt of the charge-sheet. An oral enquiry shall be held in respect of the allegations which are not admitted. The person charged shall be entitled to cross-examine witnesses to give evidence in person and to have such witnesses called as he may desire. On completion of the enquiry the enquiry officer shall submit his own recommendations which is required to be considered by the Committee of Management. The person charged shall be entitled to cross-examine witnesses to give evidence in person and to have such witnesses called as he may desire. On completion of the enquiry the enquiry officer shall submit his own recommendations which is required to be considered by the Committee of Management. Regulation 37 lays down that after the report of the enquiry officer, is received the Committee of Management shall consider the same after notice to the teacher. The teacher shall be allowed if he so desires to appear before the Committee of Management in person to state his case. Regulation 37 is mandatory in nature and the Committee of Management is required to comply with that provision before awarding any punishment to the teacher. 6. In the instant case the petitioner was served with the order of the Managing Committee dated 9.5.1972 placing him under suspension pending enquiry. A perusal of the resolution of the Committee of management shows that the Committee unanimously resolved that the petitioner was guilty of the charges. The resolution shows that the Committee of Management prejudged the charges against the petitioner even before obtaining petitioners explanation. Since the Committee of Management prejudged the issues against the petitioner even before obtaining petitioners explanation the subsequent proceedings are vitiated. Assuming that the committee of management did not prejudge the charges the entire proceedings are vitiated as the petitioner was denied opportunity of defence. The committee of management allowed three weeks time to the petitioner to submit his explanation. The petitioner sought 10 days extension of time by his letter dated 31.5.1972 on the ground of his illness and thereafter the petitioner submitted his explanation by post on 8.6.1972, which reach the office of the institution on 12.6.1972. Meanwhile the committee of management at its meeting held on 11.6.1972 passed the resolution dismissing the petitioner from service. No enquiry officer was appointed, no enquiry was held, no evidence was recorded and no report of the enquiry officer was considered by the committee of management after notice to the petitioner. Even if the petitioner had failed to submit his explanation in time it was incumbent on the committee of management to act in accordance with Regulation 37 by giving him notice and opportunity to appear the committee on the date the matter was finally considered by it. Even if the petitioner had failed to submit his explanation in time it was incumbent on the committee of management to act in accordance with Regulation 37 by giving him notice and opportunity to appear the committee on the date the matter was finally considered by it. The Committee of Management however did not issue any notice to the petitioner regarding its meeting dated 11.6.1972 and it did not afford him any opportunity to appear before it on that date to state his case before the member. The procedure adopted by the Committee of Management was in contravention of the statutory provision of Regulations 36 and 37 which rendered the decision of the Committee illegal." 11. In support of the aforesaid contention the learned Counsel for the petitioner submits that the Division Bench of this Court has held that Regulations 36 and 37 are mandatory and if the same has not been followed, the total proceeding is vitiated. The further reliance has been placed upon a judgement of this Court in Bhopal Singh Verma v. Deputy Director of Education and others, 1983 UPLBEC 597. In support of the aforesaid decision the learned Counsel for the petitioner submits that prior approval is necessary before imposition of punishment upon any employee even a clerk of the institution. If the same has not been taken the order is bad in law. 12. In view of the aforesaid facts and circumstances, the learned Counsel for the petitioner submits that order impugned is liable to be quashed. It has also been brought to the notice of the Court that the petitioner has already expired on 28.10.2003 and their heirs have already been substituted. 13. On the other hand, the learned Counsel on behalf of the Committee of Management has submitted that the charges levelled against the petitioner are very serious and if the copy of the charge-sheet was not given to the petitioner as alleged, he should have requested the same when the matter was pending before the District Inspector of Schools. Petitioner was aware regarding the proceeding and according to Rules if the same has been published in the newspaper it will be presumed to be deemed service. Petitioner was aware regarding the proceeding and according to Rules if the same has been published in the newspaper it will be presumed to be deemed service. Admittedly, the charge-sheet was not taken by the petitioner on the date mentioned in the publication, as such, the enquiry officer has no occasion except on the basis of the charge-sheet to recommend on the basis of preliminary enquiry dated 2.4.1995 to terminate the services of the petitioner. On the basis of recommendation a meeting of the Committee of Management was held on 10.12.1995 and on 11.12.1995 an order of termination was passed. The District Inspector of Schools has also considered the fact that in spite of service of the charge-sheet he has not submitted any cogent reply regarding the charges levelled against the petitioner and therefore by order dated 10.11.1996, he has approved the order of termination exercising the power under Section 15(2) of the U.P. Intermediate Education Act. Therefore, it cannot be said as submitted by the petitioner that petitioner has not been afforded an opportunity and there is any violation of any Regulation of the U.P. Intermediate Education Act. 14. I have heard learned Counsel for the petitioner and learned Counsel for the respondents and learned Standing Counsel and have perused the record. 15. From the record it appears that the petitioner was suspended and subsequently for the purposes of providing the charge-sheet, it was published in the newspaper dated 5.12.1995 directing the petitioner to obtain the charge-sheet by 9.12.1995. From the record, it is also clear that before the order of termination the charge-sheet was never served upon the petitioner. One thing is also very relevant that when there was a cut-off date mentioned in the publication the enquiry officer should have waited at least up to the next date i.e.10.12.1995 but it was only on 9.12.1995 he has recommended for termination of the services of the petitioner. It is also apparent from the record filed by the respondents that the Committee of Management by letter dated 2.12.1995 has decided to hold a meeting on 10.12.1995 regarding taking action against the petitioner and a decision was taken on the next date i.e. 11.12.1995 an order of termination was passed. Admittedly, order of termination has to be approved. Now in view of provision of the Act, the prior approval is necessary. Admittedly, order of termination has to be approved. Now in view of provision of the Act, the prior approval is necessary. If approval has not been taken the order cannot be given effect too and the person concerned will be treated to be in service. 16. The respondent No. 1 has also recorded a finding that the Committee of Management has not submitted any document to this effect. If the Committee of Management has not submitted any document before the respondent No. 1, then under what circumstances a finding can be recorded against the petitioner. A finding to this effect that the District Inspector of Schools Aligarh has given a copy of the charge-sheet to the petitioner on 17.9.1996 when the matter was being heard by the District Inspector of School, no documentary evidence has been submitted by the petitioner before the District Inspector of Schools. 17. As no proper disciplinary proceeding, as provided under the Regulation has taken place, therefore, there was no occasion for the petitioner to submit any documentary evidence before the Appellate Authority. The Appellate Authority was bound to see in the appeal filed by the petitioner that whether the services of the petitioner were terminated after following the proper procedure as provided under the Rules or not. Whether proper opportunity has been provided to the petitioner during the course of enquiry. The Appellate Authority as well as the District Inspector of Schools have failed to take into consideration that the date fixed in the publication to obtain the charge-sheet was 9.12.1995 and on the same day the enquiry officer without waiting even for one day has recommended to terminate the services of the petitioner. It is also not the case of the respondents that before the Committee of Management, the petitioner was afforded any opportunity or notice, therefore, in my view, the orders passed by the respondents is not sustainable in law. 18. Further the Division Bench of this Court has held that Regulation 37 is mandatory in nature and the Committee of Management is required to comply with that provision before awarding any punishment to a teacher and to its employees. Regulation 36 laid down that a teacher or employee shall be required to submit reply to the charges within three weeks of the receipt of the charge-sheet and an oral enquiry shall be held in respect of allegation, which are not admitted. Regulation 36 laid down that a teacher or employee shall be required to submit reply to the charges within three weeks of the receipt of the charge-sheet and an oral enquiry shall be held in respect of allegation, which are not admitted. The person charged shall be entitled to cross-examine the witness to give evidence in person and to have called such witnesses as he may desire. On completion of enquiry, the enquiry officer shall submit his own recommendation, which is required to be considered by the Committee of Management. Regulation 37 laid down that after the report of the enquiry officer is received the Committee of Management shall consider the same after notice to the teacher/employee. In Ram Kumar Dixit (supra), the Division Bench has held that Regulation 37 is mandatory in nature and it has to be complied with in its true spirit. 19. In the present case, from the record it is clear that no enquiry was held, no evidence was recorded and no report of enquiry officer was considered by the Committee of Management after notice to the petitioner. Even if petitioner has failed to submit his explanation in time it was incumbent on the Committee of Management to act in accordance with Regulation 37 by giving him notice and opportunity to appear before the Committee on the day the matter was finally considered. The Committee of Management, however, did not issue any notice to the petitioner or there is nothing on record to show that notice was ever served upon the petitioner, therefore, a clear inference can be drawn that the Committee of Management has taken a decision without affording an opportunity to the petitioner. The procedure adopted by the Committee of Management was in contravention of the statutory provision of Regulations 36 and 37, which rendered the decisions of the Committee of Management as illegal. 20. Further it has also to be noted from the record and as submitted by the Counsel for the respondent that the punishment to the petitioner has been recommended by the enquiry officer only on the basis of the preliminary enquiry report dated 2.4.1995 and that was the basis of punishment awarded by the Committee of Management. 20. Further it has also to be noted from the record and as submitted by the Counsel for the respondent that the punishment to the petitioner has been recommended by the enquiry officer only on the basis of the preliminary enquiry report dated 2.4.1995 and that was the basis of punishment awarded by the Committee of Management. The Apex Court in AIR 1960 SC 992 , Amlendu Ghosh v. District Traffic Superintendent, N.E. Railway; AIR 1964 SC 1854 , Champak Lal Shah v. Union of India; AIR 1971 SC 823 , Government of India v. Tarak Nath; AIR 1971 SC 2148, Narayan Dattatraya Ramteerathakhar v. State of Maharashtra, has held that preliminary enquiry cannot be a basis of punishment against a charged employee. From the record it is clear that the enquiry officer has recommended punishment of termination against the petitioner only on the basis of preliminary enquiry. In view of the aforesaid fact also the decision rendered by the Committee of Management only on the basis of the report of the preliminary enquiry can safely be held to be illegal. 21. Further it is also to be noted that in such type of cases where the mandatory provision has not been complied with, the matter can safely be remanded back to the competent authority to take a fresh decision according to law but as the petitioner has already died on 28.10.2003, therefore, in facts and circumstances of the present case it will not be appropriate in the interest of justice to re-open the matter again. But as the mandatory provision of Regulations 36 and 37 has not been complied with, therefore, in my view, the decision rendered by the Committee of Management can safely be held to be invalid. 22. In view of the aforesaid fact, the writ petition is allowed and the orders dated 11.12.1995 (Annexure 1 to the writ petition) and order of approval dated 10.11.1996 (Annexure 5 to the writ petition) and appellate order dated 10.2.1998 (Annexure 7 to the writ petition) passed by the respondent Nos. 3, 2 and 1 respectively, are hereby quashed and the petitioner will be treated to be in service till the date when he attend the age of superannuation and will be entitled for the benefits for which he is entitled according to law. 23. No order as to costs. ————