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2013 DIGILAW 529 (ALL)

Principal, Bappa Sri Narain Vocational Degree College, Lucknow v. State of U. P. and Others

2013-02-12

UMA NATH SINGH, VINAY KUMAR MATHUR

body2013
Vinay Kumar Mathur, J.;— We have heard learned counsel for the parties and perused the pleadings of the Special Appeal. This Special Appeal arises out of judgment and order dated 18.12.2012 passed by learned Single Judge in Writ Petition No. 2173 of 1997 (SS), whereby while allowing the writ petition the termination order of respondent no. 4 has been quashed. The brief facts leading to filing of this Special Leave Petition are that respondent no.4 was appointed technician in Class-IV on probation for one year on 17.4.1993 after approval of Regional Higher Education Officer. Though the work and conduct of the respondent were found to be satisfactory but he was asked to and thus worked under a care-taker and his period of probation was extended from 17.9.1994. It is further contended that on 25.7.1994, the respondent could not come to the college due to unavoidable circumstances and submitted an application for leave. Later an explanation was called for and the matter was dropped with warning. On 8.4.1995 his probation period was extended by one more year i.e. upto 17.4.1995. The respondent remained absent from 02.11.1995 to 11.11.1995 which was treated to be unauthorized. Thus his explanation was again called to which he is said to have given a satisfactory reply. However, vide order dated 19.3.1996 the services of the respondent were terminated with immediate effect. The respondent thus submitted representation on 22.3.1996 to D.I.O.S. placing all the facts. It has also been contended that the termination order was passed without taking the approval of D.I.O.S. in writing. Under statute 24.03 of chapter (XXIII) of first statute of University of Lucknow it has been provided that every decision of the appointing authority against any employee has to be communicated to the D.I.O.S. and shall not come in force till his approval in writing was granted. It has also been contended that D.I.O.S. disapproved the order of termination by means of an order dated 3.4.1997, therefore, the respondent is entitled for reinstatement. The case of the appellant herein is that the services of the respondent could have been terminated without permission of the D.I.O.S. as he was under probation period. Further in view of Government Order dated 12.2.1988, it is further submitted that the work and conduct of the respondent were not found to be satisfactory, therefore, he was placed under the supervision of a care-taker. Further in view of Government Order dated 12.2.1988, it is further submitted that the work and conduct of the respondent were not found to be satisfactory, therefore, he was placed under the supervision of a care-taker. He was issued warning and was found absent unauthorizedly and the termination order has been passed in accordance with law. Learned counsel for appellant, Miss. Sujata Srivastava, submitted that the impugned judgment has been passed in wrong premises placing reliance upon the judgments which may have no bearing on the adjudication of the impugned dispute. It is also the submission of learned counsel that the respondent was appointed in terms of government order issued by the Directorate of Higher Education, U.P. dated 12.2.1988 after taking approval from Higher Education Officer, therefore, the District Inspector of Schools was not competent to approve or disapprove the termination order in respect of the said respondent. The said circular in question is being reproduced as follow:- @ Hindi @ Learned counsel also submitted that respondent no. 4 was given regular appointment on one year's probation period, but despite his services having not been found to be satisfactory, on humanitarian ground, the probation was extended further on one occasion along with some warning. Learned counsel further submitted that looking to the past conduct of the respondent, if he is allowed to work in the college, it may breed indiscipline. On the other hand, learned counsel for private respondent no. 4, Dr. L.P. Misra has argued that the government order dated 12.2.1988 was to apply only in the case of appointment whereas the termination of employee of the government aided college would be governed by the provision of Statute 24.03, Chapter (XXIII) of the first statute (47 amendments) of University of Lucknow, issued in March 1993. The said provision of the statute is reproduced as under: " 24.03. The said provision of the statute is reproduced as under: " 24.03. Every decision of the appointing authority referred to in statute 24.02 shall, before it is communicated to the employee, be reported to the District Inspector of Schools and shall not take effect unless it has been approved by him in writing: Provided that nothing in this clause shall apply to any termination of service of the expiry of the period for which the employee was appointed: Provided further that nothing in the clause shall apply to an order of suspension pending enquiry, but any such order may be stayed, revoked or modified by the District Inspector of Schools." It is also a submission of Dr. L.P. Misra that after issuance of letter vide Annexure No. 11, the appellant-college extended the probation of the respondent. It is also a submission of learned counsel for respondent that against the order of disapproval of the termination of the respondent, in terms of provision of 24.03 of the first statute of the University of Lucknow, the college, if aggrieved, should have taken up the matter in appeal before the Regional Higher Education Officer concerned under statute 24.04 of the first statute as aforesaid, which on reproduced reads as: " 24.04. Every decision of the appointing authority referred to in statute 24.02 shall, before it is communicated to the employee, be reported to the District Inspector of Schools and shall not take effect unless it has been approved by him in writing: Provided that nothing in this clause shall apply to any termination of service of the expiry of the period for which the employee was appointed: Provided further that nothing in the clause shall apply to an order of suspension pending enquiry, but any such order may be stayed, revoked or modified by the District Inspector of Schools." On due consideration of rival submissions, we are of the view that it is not a fit case that would warrant our interference with the impugned order. Respondent no. 4 was appointed on regular basis on one year probation, but his probation period was extended vide Annexure No. 11, dated 8.4.1995. Thereafter his services were dispensed with vide Annexure No. 14, dated 19.3.1996. Respondent no. 4 was appointed on regular basis on one year probation, but his probation period was extended vide Annexure No. 11, dated 8.4.1995. Thereafter his services were dispensed with vide Annexure No. 14, dated 19.3.1996. Extension of probation after finding the services of employee not satisfactory and dispensing with his services later on completion of extended probation would prima facie give the impression that the order is stigmatic. Therefore, appellant was required to give opportunity of hearing to respondent no.4 before passing of the impugned order of termination. Secondly, as the appointment was made after following the procedure, therefore, the termination of services was to be made only with the approval of District Inspector of Schools vide provision 24.03 of the first statute as aforesaid. The District Inspector of Schools, thus, after considering the material before him rightly rejected the proposal of termination and thereafter if the college was, in any manner, aggrieved, it could have preferred appeal before the Regional Higher Education Officer. The order was not challenged but when respondent no. 4 was not given reinstatement, he filed the writ petition which has been allowed vide the impugned order. In view of the above discussion, we can see no ground to interfere with the impugned judgment. The Special Appeal is hereby dismissed. _____________