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2013 DIGILAW 487 (UTT)

Kailash Nath Harbola v. Additional Director

2013-07-25

SUDHANSHU DHULIA

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JUDGMENT : Sudhanshu Dhulia, J. 1. Heard Mr. Manoj Tiwari, Senior Advocate assisted by Mr. Alok Mahra, Advocate for the petitioner, Mr. K. P. Upadhyaya, Chief Standing Counsel for the State of Uttarakhand, Mr. Rajendra Dobhal, Senior Advocate for respondent no.7 and Mr. Pradeep Hairiya, Advocate for respondent no.6. 2. The petitioner was appointed as a Lecturer in a grant-in-aid private school known as “Adarsh Inter College”, Suraikhet (Bitholi), District Almora on 03.11.1979. In the year 1985 he remained absent from his duties for a considerable period. The reasons for remaining absent from duty are still unknown. A resolution was passed therefore on 23.12.1986 by the Committee of Management of the school that the petitioner be removed from service w.e.f. 10.11.1985. This resolution was sent to the Service Commission for approval, as required at the relevant time in the State of Uttar Pradesh, which was subsequently approved by the Commission after a period of 10 years i.e. on 28.6.1996. Thereafter the petitioner’s services were terminated by the Committee of Management on 31.07.1996 w.e.f. 10.11.1985. The Committee of Management earlier vide its resolution dated 23.12.1986 had came to the conclusion that there are serious charges against the petitioner and the petitioner is not prepared to face an enquiry and therefore his services were terminated. Against the order dated 23.12.1986 petitioner never approached any court for redressal of his grievance. He, however, filed a writ petition against the “approval” of his termination in the year 1996, i.e. ten years later before the High Court of Judicature at Allahabad and after the creation of new State of Uttarakhand, the writ petition stood transferred before this Court under Section 35 of the U.P. Reorganization Act and re-numbered as WPSS No.4089/2001. The learned Single Judge of this Court heard this writ petition no.4089/2001 (S/S) finally in the year 2006 and came to the conclusion that under Section 21 of the U.P. Secondary Education (Services Selection Boards) Act, 1982 (which was applicable to the petitioner) it was mandatory for the Committee of Management to take an approval from the Commission / Board before terminating the services of the petitioner. Section 21 reads as under:- “21. Restriction on dismissal etc. Section 21 reads as under:- “21. Restriction on dismissal etc. of teachers – The Management shall not, except with the prior approval of the Board dismiss any teacher or remove him from service, or serve on him any notice of removal from service, or reduce him in rank or reduce his emoluments or withhold his increment for any period (whether temporarily or permanently) and any such thing done without such prior approval shall be void.” 3. The learned Single of this Court, before whom the case was argued, hence came to the conclusion that since the approval was mandatory and there was no approval of the Board under Section 21 of the Act, before terminating the services of the petitioner, the writ petition was allowed on 19.7.2006. The relevant portion of order dated 19.7.2006 reads as under: “3. The dismissal order of the petitioner has been passed on 10.12.1992 w.e.f. 10.11.1985 which is without prior approval of the Commission / Board as required under Section 21 of U.P. Secondary Education (Services Selection Boards) Act, 1982 which prescribes restriction on dismissal of teachers. Section 21 is reproduced as under: 21. Restriction on dismissal etc. of teachers. – The Management shall not, except with the prior approval of the Board dismiss any teacher or remove him from service, or serve on him any notice of removal from service, or reduce him in rank or reduce his emoluments or withhold his increment for any period (whether temporarily or permanently) and any such thing done without such prior approval shall be void.” 4. This section specifically provides that the order passed dismissing a teacher from service without such prior approval shall be void. It is not in dispute that the Board’s approval was obtained on 15.07.1996 (Annexure-15 to the writ petition) but it was not prior approval. Therefore, in view of Section 21 of U.P. Secondary Education (Services Selection Boards) Act, 1982teh order of termination is void. Once the order is itself void by operation of law, no order is required to quash the same as it is non est.” 4. This decision of the learned Single Judge was challenged before the Division Bench of this Court in Special Appeal No.80/2006, which was disposed of on 16.11.2006 and the Division Bench remanded the matter for fresh hearing. The order of the division bench reads as under:- “8. This decision of the learned Single Judge was challenged before the Division Bench of this Court in Special Appeal No.80/2006, which was disposed of on 16.11.2006 and the Division Bench remanded the matter for fresh hearing. The order of the division bench reads as under:- “8. True, the impugned order is founded on the solitary ground of absence of prior approval under Section 21 of the Act and the other grounds by the petitioner in the writ petition have not been examined. 9. On due consideration of the rival submissions of the learned counsel for the parties and the grounds raised by the writ petitioner in the writ petition for challenging the impugned order of his termination, we are of the opinion that the matter deserves to be remanded for a fresh hearing of the writ petition on all the grounds raised by the petitioner in the writ petition. 10. For the foregoing reasons, the judgment dated 19.07.2006 is hereby set aside and the matter is remanded for fresh hearing of the writ petition.” 5. The learned Single Judge before whom the matter came up again allowed the writ petition vide order dated 25.07.2008 though while doing so the learned Judge gave liberty to the Committee of Management to proceed afresh against the petitioner in accordance with law. The learned Judge while disposing of the matter yet again observed as follows:- “4. It is settled law that once a writ petition deserves to be allowed on one ground, other grounds unnecessary to be dealt with. Since the Division Bench has also agreed that there was no approval of termination order under Section 21 of the U.P. Secondary Education (Service Selection Boards) Act, 1982, therefore, the writ petition is allowed. The order dated 10.12.1992 (Annexure No. XII to the writ petition) is quashed. However, it is made clear that it is open for the Committee of Management to proceed in accordance with law afresh.” 6. The petitioner was hence given joining on 22.12.2008. The Committee of Management kept on writing to the District Inspector of Schools, but no reply was given by the District Inspector of Schools. Meanwhile, the term of the Committee of Management came to an end and the Institute was placed under the charge of an Authorized Controller. The petitioner was hence given joining on 22.12.2008. The Committee of Management kept on writing to the District Inspector of Schools, but no reply was given by the District Inspector of Schools. Meanwhile, the term of the Committee of Management came to an end and the Institute was placed under the charge of an Authorized Controller. The Authorised Controller on the liberty granted earlier in the order of learned Single Judge dated 25.07.2008 initiated a fresh proceeding against the petitioner and passed the order dated 15.4.2009, which is impugned in the present writ petition whereby the services of the petitioner have been terminated. The ground for termination of the petitioner from service is that the Authorized Controller has received an opinion through a letter from the then Advocate General that his services can be terminated. The Senior Advocate Mr. Manoj Tiwari states that the then Advocate General was also a counsel for the appellant in Special Appeal filed by the Committee of Management, and thereafter this opinion could not be given. The petitioner has challenged this order dated 15.4.2009 before this Court. 7. It is true that the termination order is not a happily worded order infact it does not assign any reasons for passing the order except a reference to the letter of the Advocate General. During the intervening period when petitioner’s services were terminated in the year 1986 and 1996 when he actually challenged his termination after the approval in 1996, respondent no.7 was appointed as a Lecturer (Mathematics) on the same post – an aspect which was never placed before the Hon’ble Single Judge and as such is not reflected in the two orders. The fact of the matter is still whether this Court can interfere with the said order, particularly, on the basis of the fact that after the services of the petitioner were effectively terminated in the year 1986 and respondent no.7 was thereafter appointed vide order dated 4.5.1986 and respondent no.7 is effectively working for the last 27 years or so on the same post and is presently continuing on the post of Lecturer (Mathematics). In fact his services were regularized on 10.8.1996. Admittedly there is only one post of Lecturer (Mathematic) in the said school. 8. In fact his services were regularized on 10.8.1996. Admittedly there is only one post of Lecturer (Mathematic) in the said school. 8. Moreover, it must also be stated that earlier the Division Bench while disposing of the special appeal of the Management Committee had remanded the matter to the learned Single Judge with the observation that all aspects of the matter must be considered afresh. This was not done. 9. The matter regarding the inordinate delay made by the petitioner in approaching the Court has also not been dealt with so far. The services of the petitioner were effectively terminated as far back in the year 1986 and he approached the Court only in the year 1996 only after the approval was granted by the Commission. It cannot be the case of the petitioner that he was just waiting for the approval of the Commission so that he could file the writ petition against that order. The cause of action was available to the petitioner even in the year 1986 as effectively his services have been terminated in the year 1986 itself and infact in the year 1986 another person (i.e. respondent no. 7) was appointed in his place and the petitioner continued to sleep over the matter for 10 years. Any relief granted to the petitioner on the grounds urged by him would not be proper. It is a clear view of this Court based on the conduct of the petitioner and particularly inordinate delay in filing the writ petition and the intervening circumstances when respondent no.7 has been working on that post for the last 27 years, on balance, no relief could be granted to the petitioner. 10. The writ petition is hereby dismissed. No order as to costs.