Ram Bahadur Pandey and Anot her v. St at e of Ut t arakhand and Anot her

Judgment

( p e r H o n ’ b l e Ju s t i ce Sr i M a n o j K u m a r Ti w a r i ) Appellant s were appoint ed as Assist ant Teacher in a recognized Prim ary School run by a Societ y, nam ely, “ Bhot ia Jan Jat i Seva Sam it i Gularbhoj ”. Their services were t erm inat ed vide order dat ed 25.06.2017 by t he Chairm an of Societ y. They challenged t he t erm inat ion order by filing Writ Pet it ion ( S/ S) No. 2054 of 2017 on t he ground t hat prior approval of t he Com pet ent Aut horit y, i.e. Dist rict Educat ion Officer, was not obt ained by t he Managem ent while t erm inat ing t heir services. The Writ Pet it ion was dism issed by learned Single Judge, vide j udgm ent dat ed 25.06.2017. Thus, feeling aggrieved, Writ Pet it ioners have filed t his int ra- Court appeal challenging t he j udgm ent passed by learned Single Judge. The reasons for dism issing t he Writ Pet it ion are indicat ed in paragraphs 8 t o 10 of t he im pugned j udgm ent , which are reproduced below: - “ 8. Perusal of t he im pugned orders would reveal t hat t he allegat ions against t he pet it ioners are t hat t hey have violat ed t he orders of t he Societ y and have supplied wrong inform at ion t o t he depart m ent . Aft er t he j udgm ent of t he Hon’ble Apex 1 t he appellant s Court dat ed 29.08.2014, t he pet it ioners were reinst at ed in service. As t he libert y was given t o t he m anagem ent t o t ake appropriat e disciplinary act ion against accordance wit h law for t he irregularit ies com m it t ed by t hem , t he Managem ent issued show cause not ices t o t he pet it ioners direct ing t hem t o hand over t he ent ire records of t he Schools as well as t o furnish t heir original t est im onials. But t he pet it ioners neit her handed over t he school record which was lying wit h t hem since long t im e nor furnished t heir original t est im onials t o t he depart m ent despit e several opport unit ies. I ndisput ably, pet it ioners have not handed over t heir original t est im onials t o t he Societ y, which draws an inference against t he pet it ioners t hat t heir t est im onials were forged and t herefore t hey have deliberat ely not handed over t he sam e t o t he depart m ent for verificat ion. As such, t he cont ent ion of learned counsel for t he pet it ioners t hat t here is violat ion of principle of nat ural 7 j ust ice in t he present case, is not t enable, as pr oper opport unit y was provided t o t he pet it ioners prior t o passing t he t erm inat ion orders.

9. I nsofar as t he cont ent ion raised by counsel for t he pet it ioners t hat t he im pugned t erm inat ion orders have been passed wit hout t heir being any approval from t he respondent no.6, it has com e in t he count er affidavit of respondent no.8 t hat in com pliance of t he resolut ion dat ed 20.06.2017 respondent no.8, vide let t er dat ed 07.05.2016, request ed t he Dist rict Educat ion Officer ( Elem ent ary Educat ion) Dist rict Udham Singh Nagar t o grant approval for t erm inat ing t he services of t he pet it ioners. As t he approval was not grant ed wit hin t he st ipulat ed period by t he com pet ent aut horit y, t herefore, as per t he provision cont ained in Basic Educat ion Act , 1972 as well as in t he Regulat ion of 2009 fram ed by t hat approval has been accept ed and accorded by t he com pet ent aut horit y, and t hus alm ost aft er one year t he t erm inat ion orders t he Com m it t ee of dat ed 25.06.2017 has been Managem ent . t he St at e Governm ent , it was presum ed issued by

10. I n view of t he for egoing discussion, writ pet it ion is devoid of m erit . Sam e is hereby dism issed. No order as t o cost s.”

2. The cont ent ion regarding prior approval, raised by appellant s is discussed in paragraph 9 of im pugned j udgm ent . Learned Single Judge cam e t o t he conclusion t hat , as t he Com m it t ee of Managem ent request ed for approval on 07.05.2016, and since approval was not grant ed by t he Com pet ent Aut horit y wit hin t he st ipulat ed t im e, t herefore, it shall be deem ed t hat approval was grant ed by t he Com pet ent Aut horit y. 2

3. Learned counsel for appellant s subm it s t hat earlier also, services of appellant s were t erm inat ed,

t hey unsuccessfully challenged t he t erm inat ion order in a Writ Pet it ion, and t heir Special Appeal was also dism issed, however, Hon’ble Apex Court , vide j udgm ent dat ed 29.08.2014 passed in Civil Appeal No.9130 of 2014, held t hat t erm inat ion orders were illegal as t hey were passed in violat ion of Rule 11 of U.P. Recognized Basic Schools ( Recruit m ent and Condit ions of Service of Teachers and ot her Condit ions) Rules 1975, and set aside t he j udgm ent rendered by t his Court , and direct ed t he Managem ent t o reinst at e t he appellant s in service wit hin t wo m ont hs. Hon’ble Apex Court however gave libert y t o t he Managem ent t o t ake appropriat e disciplinary act ion against t he appellant s in accordance wit h law. Relevant ext ract of t he said j udgm ent is reproduced below: - “ 11. Rule 11 of t he Rules is reproduced herein below:

11. Dism issal and rem oval of t eachers. - No order dism issing, rem oving or t erm inat ing t he services of a t eacher or ot her em ployee of a recognised school shall be passed save wit h t he prior approval in writ ing of t he Basic Shiksha Adhikari: Provided t hat in case of recognised schools est ablished and adm inist ered by m inorit y referred t o in clause ( 1) of Art icle 30 of t he Const it ut ion, such an order shall not require t he approval of t he Basic Shiksha Adhikari but shall be report ed t o him "

12. We have heard t he learned counsel appearing for t he part ies and have also gone t hrough t he relevant record.

13. I t is not in disput e t hat t he appellant s were working as Assist ant Teachers in recognized schools. I n view of t he recognized schools, according t o Rule 11 of t he Rules it was necessary t o obt ain prior writ t en approval of t he Basic Shiksha t he appellant s were working t hat 3 Adhikari before t erm inat ing t heir services. I t is an adm it t ed fact t hat no such prior approval had been obt ained before t erm inat ing services of t he appellant s and t herefore, t here was a clear violat ion of t he provisions of Rule 11 of t he Rules.

14. I t m ay be t rue t hat t here m ight be irregularit ies in appoint m ent of t he appellant s as Assist ant Teachers in t he t he schools duly past but as recognized under it was obligat ory on t he part of t he Managem ent t o follow t he t erm inat ing provisions of Rule 11 of services of t he appellant s by way of punishm ent .” t hey were working t he Rules, t he Rules while in our opinion,

4. Learned counsel for t he appellant s subm it s t hat in U.P. Recognized Basic Schools ( Recruit m ent and Condit ions of Service of Teachers and ot her Condit ions) Rules 1975, t here is no provision for deem ed approval of a proposal sent by t he Managem ent t erm inat ion/ dism issal of a Teacher.

5. Learned counsel for t he appellant s subm it s t hat t he learned Single Judge has observed paragraph 9 of t he im pugned j udgm ent t hat t here is a provision in t he Basic Educat ion Act , 1972, as well as in t he Regulat ions of 2009, fram ed by Ut t arakhand St at e, under Ut t arakhand School Educat ion Act , for deem ed approval of proposal sent by Managem ent . He subm it s t hat t his observat ion is fact ually incorrect , as neit her in t he Basic Educat ion Act , 1972, nor t he 2009 Regulat ions, fram ed under Ut t arakhand School Educat ion Act , t here is a provision for deem ed approval of a proposal sent by t he Managem ent .

6. We find subst ance in t he said subm ission. The provision of deem ed approval, t o a proposal for t erm inat ion/ dism issal of services of a Teacher, is not present in U.P. Recognized Basic Schools ( Recruit m ent and Condit ions of Service of Teachers and ot her 4 Condit ions) Rules 1975, nor in t he Basic Educat ion Act ,

1972. Such provision is also not t here in t he 2009 Regulat ions, fram ed under Ut t arakhand School Educat ion Act . I n fact , in Regulat ion 25 Chapt er 3 of t he said Regulat ions, is provided t hat order of punishm ent , against t eaching or non t eaching em ployee, can be passed only wit h t he prior approval of t he Dist rict Educat ion Officer.

7. I t would be wort h m ent ioning t hat by Sect ion 60 of Ut t arakhand School Educat ion Act , 2006, U.P. I nt erm ediat e Educat ion Act , 1921 and U.P. Basic Educat ion Act 1972, which were m ade applicable in St at e of Ut t arakhand by issuing a m odificat ion order as per U.P. Reorganisat ion Act , 2000, were repealed. Thus, Ut t arakhand School Educat ion Act , 2006 is now applicable t o ( i) prim ary schools ( ii) j unior high schools and ( iii) int erm ediat e colleges.

8. Sect ion 39 of Ut t arakhand School Educat ion Act , 2006 deals wit h condit ion of service of head of inst it ut ion, t eachers and ot her em ployees. Sub- sect ion ( 3) ( a) of Sect ion 39 of said Act , ordains t hat a Teacher shall not be dism issed, discharged, or rem oved from service, or reduced in rank, wit hout prior approval in writ ing of Dist rict Educat ion Officer.

9. The expression “ in writ ing of Dist rict Educat ion Officer ” rules out t he possibilit y of deem ed approval, as approval has t o be grant ed by a writ t en order. Sub- sect ion ( 3) ( a) of Sect ion 39 of Ut t arakhand School Educat ion Act , 2006, is reproduced below for ready reference: - 5 “ Se ct i o n 3 9 ( 3 ) ( a ) - No Principal, Headm ast er or t eacher m ay be discharged or rem oved or dism issed from service or reduced in rank, or subj ect t o any discrim inat ion em olum ent s, or served wit h not ice of t erm inat ion of service except wit h t he prior approval in writ ing of t he Dist rict Educat ion Officer. The decision of t he Dist rict Educat ion Officer shall be com m unicat ed wit hin t he period t o be prescribed by regulat ions.”

10. The last sent ence in t he aforesaid provision alt hough provides t hat decision of Dist rict Educat ion Officer has t o be com m unicat ed t o t he Managem ent wit hin a period t o be prescribed by Regulat ions, however, learned counsel for t he respondent right ly concedes t hat Regulat ions are silent regarding t he t im e wit hin which decision has t o be com m unicat ed t o t he Managem ent .

11. I n view of above discussion, we are of t he considered opinion t hat a proposal for t erm inat ion sent t he Managem ent cannot be presum ed t o be approved, unless t here is a provision for deem ed approval in t he St at ut e.

12. Even ot herwise also, since t he St at ut e provides t hat writ t en approval has t o be obt ained from Dist rict Educat ion Officer, t hen t he view t aken by t he learned Single Judge in paragraph 9 of im pugned j udgm ent cannot be sust ained.

13. Mr. B.M. Pingal, learned counsel appearing for t he Managem ent / respondent no.8, cont ends t hat t he Bye- laws of t he Societ y aut horize t he Com m it t ee of Managem ent t o t erm inat e t he service of a Teacher serving in t he I nst it ut ion, t herefore, t he Chairm an of t he Societ y was well wit hin his right t o pass t he t erm inat ion order. 6

14. The said cont ent ion cannot be accept ed. The By- laws of t he Societ y can not override t he provisions of Ut t arakhand School Educat ion Act , 2006, which is applicable t o every recognized educat ional inst it ut ion, including prim ary school. Service condit ions of Teacher of a recognized school are governed by st at ut ory provisions, t herefore, in case of any conflict bet ween t he Bye- laws and such st at ut ory provisions, Bye- laws have t o give way t o provision of t he St at ut e.

15. I n view of t he aforesaid discussion, t he t erm inat ion of service of t he appellant s by t he Managem ent was int erferable for non- com pliance of st at ut ory provision. Learned Single Judge t hus erred in dism issing t heir Writ Pet it ion. We, t herefore, allow t he Special Appeal, and set- aside t he t erm inat ion order dat ed 25.06.2017, as well as t he im puged j udgm ent dat ed 15.10.2019 passed in Writ Pet it ion ( S/ S) No.2054 of 2017. Appellant s shall be ent it led for all consequent ial benefit s, including salary for t he period t hey rem ained out of em ploym ent . _______________________________ M A N OJ K UM A R TI W A RI , J. __________________________ A SH I SH N A I TH A N I , J. Dt : 6 t h May, 2025 Shiksha SHIKSHA BINJOLA DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=3410ef86ae41ec9fbabcd5dba6b3a2c24b 5aa08b09c12f21822fbd40bf639b1c, postalCode=263001, st=UTTARAKHAND, serialNumber=FD80A2D028949381C52796A542D 7FF0A9BED00E67B5283D205F18FE29BDF5DD9, cn=SHIKSHA BINJOLA 7