Vivekananda Vidyapeeth and Another vs Saugat Banerjee and Another

I.M. Quddusi, J.—Heard learned Counsel appearing for the appellants as well as learned Counsel appearing for the respondents Nos. 1 and 2.

This writ appeal has been filed against the impugned judgment and order dated 30th July, 2007, passed by the learned Single Judge in W.P. (S) No. 153/2007 Saugat Banarjee v. Vivekanand Vidhyapeeth and Ors., allowing the writ petition in part and directing the respondents (appellants in the instant writ appeal) to complete the enquiry against the respondent No. 1 (writ petitioner) as per the directions given in paragraph 13 of the impugned judgment in which it was held that the enquiry was not initiated against the instant respondent No. 1 in accordance with the provisions of law and the writ appellants were directed to initiate the departmental enquiry from the stage of submission of written explanation in accordance with law.

Brief facts of the case are that the respondent No. 1 was appointed against the post of Tabla Teacher on 29.9.1997. It is not disputed that at the time of his appointment the respondent No. 1 was not qualified to hold the post of Tabla Teacher but he was not appointed against a regular post carrying regular pay scale rather was given the consolidated salary as his appointment was not a regular appointment and recommendation for regularization of his appointment was made subsequently. However, in the meantime a charge sheet was served upon the respondent No. 1 and he has given the reply.

Learned Single Judge has indicated that the procedure adopted by the writ appellant in directing the enquiry was not in accordance with the rules namely Madhya Pradesh Ashaskiya Sikshan Sanstha (Adhyapakon Tatha Anya Karmachariyon Ke Padachyut Karne/Sewa Se Hatane Sambandhi Prakriya) Niyam, 1983 (hereinafter referred to as "the Rules, 1983).

The plea taken before the learned Single Judge by the writ appellant was that subsequently the Rules, 1985 namely Ashaskiya Sanstha Anudan Niyam, 1985 (hereinafter referred to as "Rules, 1985") were applicable and therefore they did not follow the Rules, 1983.

We have perused the Rules 1985 as well as the Rules 1983.

In fact the Rules, 1985 are silent in respect of conduct of the enquiry and removal of Teachers. Therefore, it cannot be said that the Rules, 1983 were superseded in toto by the Rules, 1985. Thus, we are of the opinion that the Rules, 1983 would be applicable to the extent the Rules, 1985 are silent.

Learned Counsel for the writ appellants raised the contention that the respondent No. 1 was not a regular employee but he could not dispute that he was getting the remuneration of the fixed salary from the funds provided by the State Government under the grants-in-aid. It is also not disputed that the respondent No. 1 was appointed against the post of Tabla Teacher. The writ appellants have filed a document (at page 79 of the writ appeal), which shows that the selection committee met on 26.10.2004 for consideration of the regularization of the employees working in the Vivekananda Vidyapeeth, Kota, Raipur. The name of the respondent No. 1 namely Saugat Banerjee finds place at serial No. 3 against the post of Tabla Teacher. This recommendation is dated 26.10.2004. A remark has also been mentioned that acceptance for regularization has already been granted by the Government of Madhya Pradesh by the memorandum No. F- 10-7/97/4/25 dated 21.7.1999, addressed to the Collector, Raipur, as those employees including the respondent No. 1 were appointed earlier. Further, the Rules, 1983 which has been framed under the Madhya Pradesh Ashaskiya Sikshan Sanstha (Adhyapakon Tatha Anya Karmchariyon Ke Vetano Ka Sandaya) Adhiniyam, 1978 (hereinafter referred to as ''the Act, 1978'') provide the procedure to take disciplinary action against the Teachers. Further, the Teacher has been defined in the Act, 1978, according to which ''Teacher'' means, a teacher of an institution in respect of whose employment maintenance grant is paid by the State Government or the Ayog, as the case may be, to the institutions and includes any other teacher employed, with the prior approval of the authority specified by the State Government in this behalf, in fulfillment of the conditions of recognition/affiliation of an institution or of a new subject or a higher class or a new section in the existing class by the Madhya Pradesh Board of Secondary Education or any University or the Ayog, as the case may be, and shown on the pay roll of the institution against a post as being in the employment as such but does not include a teacher whose appointment is disapproved under Clause (c) of Section 6.

The respondent No. 1 is being paid from the pay roll of the institution against the post of Tabla Teacher from the maintenance grant fund paid by the State Government and his appointment has not been disapproved rather is pending consideration for regularization.

Hon''ble Supreme Court in Om Prakash Shukla v. Akhilesh Kumar Shukla and Ors. 1986 (1) SLR 699 held as under:

In this case the deficiencies in the drafting of the rules and the inadvertence on the part of the High Court in complying with them pose some difficulty in arriving at a just solution. There is no dispute that the 1947 Rules made appropriate provisions regarding the recruitment of candidates to the posts in the ministerial establishment in the Subordinate Courts in the former United Provinces and they continued to be in force till July 11, 1950. On July 11, 1950 the 1950 Rules were promulgated. They were applicable not merely to the ministerial establishments in Civil Courts but to the ministerial establishments in several other offices. They were promulgated in supersession of all existing rules and orders on the subject. They prescribed that recruitment to the ministerial staff in a subordinate office to which the said rules were applicable should be made on the basis of a competitive test and also provided for the mode of calculation of vacancies, the period during which competitive examinations should be held, the subjects for the test and the marks assigned to each of them and the method of selection of successful candidate. They also provided that appointments to higher posts in the ministerial staff of those offices should be made by promotion. Rules 9 to 12 of the 1947 Rules and Appendix II to it which dealt with above topics thus stood superseded. The other parts of the 1947 Rules which dealt with the nationality, domicile and residence of the candidates, their academic qualifications, character and physical fitness, the appointing authority, probation and confirmation, seniority, punishment, rate of pay, transfers and regulations of conditions of service remained intact since the 1950 Rules did not make any provision as regards these topics. Hence we do not agree with the argument urged on behalf of the appellant that the 1947 Rules stood superseded in their entirety by the 1950 Rules. Rules relying upon the opening words of the 1950 Rules which read thus:

In exercise of the powers conferred by Article 309 of the Constitution of India and in supersession of all existing rules and orders on the subject.

In supersession of all existing rules and orders on the subject" can only refer to those matters in the existing rules which correspond to the matters dealt with by the 1950 Rules. We have explained earlier the other subjects in the 1947 Rules which were not covered by the 1950 Rules. Hence the argument based on the assumption that the entire 1947 Rules had been repealed by implication and no amendment could be made to the 1947 Rules has to be rejected. The High Court was, therefore, right in observing that the whole of the 1947 Rules did not come to an end on the promulgation of the 1950 Rules. The problem, however, does not get solved thereby as we shall presently show.

In view of the above mentioned facts and circumstances, without interfering in the impugned order passed by the learned Single Judge, we disposed of the instant writ appeal with the observation that the respondents may follow the Rules, 1985 as amended upto date but if those Rules are silent on the conduct of the enquiry or conduct of the disciplinary proceedings etc., they shall follow the provisions of the Rules, 1983.

With the above observations this writ appeal is disposed of. No order as to costs.