Narbadeshwar Singh vs BSA and Others

Shashi Kant, J.—1. Heard learned counsel for the parties.

Both the appeals under Chapter VIII Rule 5 of High Court Rules, 1952, have been filed against the judgment and order dated 03.12.2002 passed by the learned Single Judge whereby Writ Petition No. 22715 of 1998 (Raj Bahadur Singh v. Basic Shiksha Adhikar, Gorakhpur and others) was allowed and another Writ Petition No. 27172 of 1998 (Narvadeshwar Singh v. District Basic Education Officer, Gorakhpur and other) was dismissed.

Though the appellant Narbadeshwar Singh is petitioner-appellant in Special Appeal No. 41 of 2003 and respondent No. 4-petitioner in Special Appeal No. 42 of 2003, but for the sake of convenience, hereinafter he would be referred to as "petitioner-appellant".

As both the above appeals have been preferred against common judgment and order, therefore with the consent of learned counsel for parties, they are heard and are being decided by this common judgment and order.

Brief facts giving rise to the aforesaid appeals are:

"5.1 One Sri Raj Bahadur Singh was appointed on 30.06.1982 as Assistant Clerk in Adarsh Krishak Laghu Madhyamik Vidyalaya, Doharia Bazar, Gorakhpur (hereinafter referred to as ''the institution''.). As he remained absent for more than three years from his duty, his services were terminated vide resolution dated 29.03.1994 passed by the Committee of Management of the institution, which was approved by Basic Shiksha Adhikari on 02.05.1994.

5.2 After termination of his service, the petitioner was appointed as Assistant Clerk in the institution. His appointment for the second time was also approved by Basic Shiksha Adhikari on 31.05.1994. In pursuance to the appointment letter dated 01.06.1994, he joined service on 05.06.1994, which was endorsed by the Manager of the Institution. The petitioner-appellant discharged his duties as Assistant Clerk in the institution as is reflected from the inspection report dated 26.07.1994 of Basic Shiksha Adhikari.

5.3 It is claimed that the respondents changed their attitude, when the institution came in grant-in-aid list on 01.04.1996 and started harassing the petitioner-appellant by issuing false and fabricated notices to the petitioner-appellant to show that he was not working in the institution and he was asked not to sign the attendance register. The above facts were also stated by him in his representation to the Basic Shiksha Adhikari from time to time, who vide his letter dated 02.07.1998, informed him that as the petitioner-appellant had not joined his service within a week pursuant to letter of his appointment dated 01.06.1994 as such his appointment was cancelled automatically.

5.4 The petitioner challenged the aforesaid order dated 02.07.1998 by way of Writ Petition No. 27172 of 1998, alleging that manager is uncle of Raj Bahadur Singh, therefore, Basic Shiksha Adhikari, Manager of the Committee of Management and Raj Bahadur Singh were in collusion to defeat the claim of petitioner-appellant as the institution has been taken in grant-in-aid, writ petition was dismissed. The respondent also filed a Writ Petition No. 22715 of 1998 which was allowed vide a common judgment and order dated 03.12.2002."

Learned counsel for the appellant submitted that:

"6.1 The learned Single Judge has misconstrued and misinterpreted the provisions of Uttar Pradesh Recognized Basic School Junior High School Recruitment and Conditions of Service of Ministerial Staff and Group D Employee Rules, 1984 (hereinafter referred as to the ''Rules, 1984), which vitiates impugned judgment and order.

6.2 The termination of Sri Raj Bahadur Singh took effect from 02.05.1994, finding to this is not sustainable in the eyes of law.

6.3 Learned Single Judge overlooked the fact that the notice of termination dated 21.03.1994 being a composite notice of seeking approval from the Basic Shiksha Adhikari for terminating the services and intimating the termination of service to the respondent. As such there is full compliance of Rule 21, in letter and spirit.

6.4 The notice of termination, with all the intent, having been acted upon by the respondents and the petitioner-appellant had been appointed as Assistant Clerk.

6.5 Even prior to the enforcement of 1984 Rules the relatives of the Manager of the Institution could not be appointed as Assistant Clerk in the institution. The learned Single Judge erred in law in holding, otherwise i.e. impugned judgment and order.

6.6 Learned Single Judge has also overlooked the inspection report of District Inspector of Schools confirming the work done by the petitioner-appellant in the institution in 1994, which vitiates the impugned judgment in the eyes of law.

6.7 Even assuming, without admitting that the approval for termination of service of Sri Raj Bahadur Singh was not taken before, terminating his services it being a mere irregularity in the view of the subsequent approval of the order of termination by the BSA, the learned Single Judge erred in law, which vitiates impugned judgment in the eyes of law."

Per contra, learned counsel for the respondents submitted that:

"7.1 The petitioner-appellant was appointed against a post which fell vacant due to illegal termination of one Sri Raj Bahadur Singh/respondent No. 4, who was working on the same post from the date of his initial appointment i.e. 30.06.1982, but owning to his prolonged illness, in spite of proper information, his services were illegally terminated on 29.03.1994 without taking any prior approval of Basic Education Officer in writing, which is mandatory under the rules; the services of respondent No. 4 is always satisfactory, but due to his ill health, he remained absent from service from 01.04.1993 upto 04.03.1996 regarding which he sent proper information and also moved leave applications. In spite of this, his service has been terminated in violation of rules and he was never informed in this regard.

7.2 So far as the appointment of appellant is concerned, after issuance of the appointment letter dated 31.05.1994, he never turned to join his services, in spite of the letters dated 01.06.1994, 12.08.1994, 20.06.1994, 20.06.1996 and 13.02.1996 sent by the Committee of the Management because of which the Committee of Management published a notification in the daily news paper, known as ''Swatandra Chetna'' in its publication dated 12.06.1996 but when the respondent/Raj Bahadur Singh did not join, a resolution has been passed to cancel the appointment vide order dated 31.05.1994 and sent for its approval.

7.3 The appellant who did not join his service in pursuant to the appointment letter dated 31.05.1994, has become highly interested on the same post to work after the institution came on grant-in-aid list i.e. on 01.04.1996 but when he did not succeed in dosing so, he made a representation on 16.04.1996 on the false and fabricated ground;

7.4 The order passed by the Basic Education Officer on 02.07.1998 has been misinterpreted because the claim of the appellant has been rejected on the ground that in pursuant to the appointment letter dated 31.05.1994, he never turned up to join the service in spite of the letter dated 24.08.1994 as well as many reminders, his appointment stands automatically cancelled. In the above factual backdrop, writ petition No. 27172 of 1998 filed by him was rightly dismissed on the ground of lack of merits.

7.5 While Writ petition No. 22715 of 1998 filed by Sri Raj Bahadur Singh was rightly allowed in accordance with law vide judgment and order impugned in this appeal because the order dated 02.07.1998 passed by the Basic Education Officer was completely illegal."

The relevant portion of impugned judgment reads thus:

"The entire controversy things on the question as to whether the services of Sri Raj Bahadur Singh were validly terminated by the management and if the termination order was valid only then a vacancy will occur on which Narvadeshwar Singh could be appointed.

From the records it is clear that the management had passed a resolution on 29.03.1994 for terminating the services of Raj Bahadur Singh. This was approved by Basic Shiksha Adhikari on 2.5.1994. Thereafter the management had not passed any order for terminating the services of Raj Bahadur Singh. Rule 21 of the U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Condition of Service of Ministerial Staff and Group D Employees) Rules, 1984 (in brief Rules, 1984) is extracted below:

"21. Termination of Service-No clerk of Group ''D'' employee of a recognized school may be discharged or removed or dismissed form service or reduced in rank or subjected to any diminution in emoluments or served with notice of termination of service except with the prior approval in writing of the District Basic Education Officer.

Provided that, in the case of schools established and administered by minority referred to in Clause (i) of the Article 30 of the Constitution, such an order shall not require the approval of District Basic Education Officer but shall be reported to him.

From the perusal of this rule it is clear that services of clerk could not be terminated except with prior approval in writing of Basic Shiksha Adhikari. In this case the approval was granted by Basic Shiksha Adhikari on 2.5.1994 approving the termination of service or Raj Bahadur Singh, but thereafter no order was passed by the committee of management to terminate the services of Raj Bahadur Singh which was mandatory and in absence of any order of termination after obtaining approval, it cannot be presumed that Ram Bahadur Singh stood terminated from service. Further the management should have taken prior approval and thereafter only it could terminate the service, which admittedly was not done. Sri H.N. Singh has vehemently urged that the conduct of the management should be seen that it had advertised the vacancy and appointed Narvadeshwar Singh. In my opinion, the committee of management was under the impression that once it had terminated the services of the petitioner by resolution dated 29.03.1994 and after it was approved by Basic Shiksha Adhikari on 2.5.1994, Ram Bahadur Singh stood terminated from service and, therefore, the committee proceeded to fill the vacancy. But Rule 21 quoted above, lays down a different procedure. It provides that after prior approval has been granted by Basic Shiksha Adhikari the management has to terminate the services. Since admittedly no order having been passed after 2.5.1994 terminating the services of Raj Bahadur Singh, he continued in service and his services were not validly terminated by the management. Subsequently the management permitted Sri Raj Bahadur Singh to join his duties in 1996. Since the service of Raj Bahadur Singh was advertisement and appointed of Narvadeshwar Singh and approval granted thereto was totally illegal.

On the basis of paragraph 4 of the writ petition filed by Narvadeshwar Singh it has been alleged that the Raj Bahadur Singh is nephew of manager Rama Kant. Therefore, the appointment of Raj Bahadur Singh as clerk could not be made in view of Rule 12 of Rules, 1984. Raj Bahadur Singh was appointed as clerk in the institution in 1982 which Rules, 1984 were not in force. Prior to 1984 there was no provision, which prohibited that relations of the management could not be appointed in the institution as clerk. Therefore, since the petitioner was appointed in 1982 the bar imposed by Rules, 1984 would not apply and on that basis it cannot be said that the initial appointment of Raj Bahadur Singh illegal because Rules 1984 are not retrospective but are prospective.

However, the management in its counter affidavit has clearly stated Narvadeshwar Singh has filed a forged joining certificate though he never joined the service as clerk. Therefore, Narvadeshwar Singh has got no claim nor can he claim the post of clerk in absence of any joining by him in pursuance of the appointment letter. Even if he had joined it would not make his appointment legal, as there was not vacancy.

For the aforesaid reasons Writ Petition No. 27715 of 1998 succeeds and is allowed. The order dated 2.7.1998 passed by Basic Shiksha Adhikari, Gorakhpur, Annexure-13 to the writ petition, is quashed. The respondents are directed to treat Raj Bahadur Singh in service as Clerk in Adarsh Krishak Laghu Madhyamik Vidyalaya, Doharia Bazar, Gorakhpur and pay his salary including arrears of salary. However, it is made clear that Raj Bahadur Singh shall not be paid the salary for the period during which he remained on leave from 1.4.1993 to 30.6.1996.

Writ Petition No. 27172 of 1998 is dismissed.

The parties shall bear their own costs."

Having heard learned counsel for the parties and after perusal of the record as well as impugned order, it appears that though management of the institution has passed the resolution dated 29.03.1994 for termination of services of respondent No. 4/Sri Raj Bahadur Singh and sent that to the Basic Shiksha Adhikari for approval, which was approved on 02.05.1994. Subsequent to that, no order has been passed for termination of services of respondent No. 4 since 02.05.1994, which was necessary as per Rule 21 of Rules, 1984.

As order of termination of services brought serious civil consequences to the effected person, therefore provision of Rule 21 is desired to be complied strictly in its letters and spirit. In aforesaid view of the matter, we found no substance in the arguments raised on behalf of petitioner-appellant to the effect that the notice of termination dated 21.03.1994 being a composite notice of seeking approval from the Basic Shiksha Adhikari for terminating the services and intimating the termination of service to the respondent. As such there is no compliance of mandatory provision of Rule 21 for obtaining pre-approval of Basic Shiksha Adhikari before terminating services of respondent No. 4.

In Competent Authority v. Bangalore Jute Factory and others, , 2005 (9) SCALE 493, the Apex Court has held as under:

"It is settled law that where a stature requires a particular act to be done in a particular manner, the act has to be done in that manner alone. Every word of the statute has to be given its due meaning."

The aforesaid aspect has also been considered by the Davison Bench of this Court in Special Appeal No. 986 of 2006, U.P. Upbhokta Sahakari Sangh Ltd. and another v. Vijay Shanker Rai, decided on 04.09.2006, wherein the Court has held as under:

" ......We do not find any force in the submission for the reason that is a well settled legal position when stature provides any thing to be done in particular manner, the same shall be done in that manner alone and not otherwise ...."

We also find no substance in the submissions advanced by the learned counsel for the appellant-petitioner to the effect that the respondent No. 4 Raj Bahadur Singh is nephew of Manager of the institution and according to Rule 12 of the Rules, 1984 he could not be appointed as assistant clerk in the college because Rule 12 of Rules, 1984 has come into existence by means of Rules 1984. A plain reading of Rule 12 clarified that this rule is prospective and could not be applied and enforced retrospectively i.e. before enforcement of the above Rule. Though learned counsel for the petitioner-appellant has argued that there was also provision prohibiting appointment of relatives of management of the institution prior to Rules, 1984 and as such appointment of respondent No. 4 Raj Bahadur Singh is bad in the eyes of law but he could not show any rule or provision, which prohibits appointment of relative of management in the institution prior to Rules, 1984. As such we find no force in the above submissions made by learned counsel for the petitioner-appellant.

learned Single Judge has taken into consideration Rule 21 of the Rule, 1984 to reach to the conclusion that Committee of Management of the institution has passed resolution dated 29.03.1994 to terminate the services of respondent No. 4 and that the said resolution was approved by Basic Shiksha Adhikari on 02.05.1994 but subsequent to that, no resolution for termination of services of the respondent No. 4 Raj Bahadur Singh has been passed by the management of the institution. In these circumstances, learned Single Judge has rightly drawn conclusion that services of respondent No. 4 Raj Bahadur Singh was not validly terminated. In the result, there was no vacancy for appointment of any Assistant Clerk, in these circumstances, the appointment of the petitioner appellant on the post of Assistant Clerk vide letter dated 01.06.1994 was not valid, and above referred order passed by the Basic Shiksha Adhikari dated 02.05.1994, stating that petitioner-appellant has not joined his service within a week in pursuance of his appointment letter dated 01.06.1994 as such his appointment was cancelled automatically is just and proper. In the above factual background, learned Single Judge has dismissed the writ petition No. 27172 of 1998 by the judgment impugned.

In the above factual backdrop, we are also of the view that the services of Raj Bahadur Singh has not been terminated properly and validly, after getting prior approval of Basic Shiksha Adhikari as required under Rule 21 of Rules, 1984.

In view of the above, we find no illegality or infirmity in the order impugned passed by the Writ Court.

For all the reasons stated above, both the appeals lack merits and are accordingly dismissed.

No order as to costs.