Madhya Pradesh High Court
Padmini Sharma vs State Of M.P. Through Department ... on 6 December, 2022
Author: Vivek Rusia
-1-
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 6th OF DECEMBER, 2022
WRIT PETITION No. 19670 of 2020
BETWEEN:-
PADMINI SHARMA W/O SANJAY SHARMA OCCUPATION: TEACHER 8,
SADHANA NAGAR, AIRPORT ROAD, INDORE (MADHYA PRADESH)
.....PETITIONER
(BY SHRI BHAVDEEP SINGH, ADVOCATE)
AND
STATE OF M.P. THROUGH DEPARTMENT OF HIGHER EDUCATION
1. PRINCIPAL SECRETARY VALLABH BHAWAN,BHOPAL. BHOPAL
(MADHYA PRADESH)
2. DIRECTOR GENERAL OF NCC WEST BLOCK 4, R.K. PURAM (DELHI)
ADDITIONAL DIRECTOR GENERAL OF NCC M.P. AND
3.
CHHATTISGARH ARERA COLONY (MADHYA PRADESH)
THE PRINCIPAL PRAGHYA GIRLS SCHOOL BICHOLI MARDANA
4.
(MADHYA PRADESH)
PRAGYA GIRLS SCHOOL THE MANAGEMENT THROUGH THE
5. SECRETARY PRAGYA GIRLS SCHOOL SOCIETY BICHOLI MARDANA
(MADHYA PRADESH)
MRS. MANJU NAUTIYA OCCUPATION: EX PRINCIPAL PRAGYA GIRLS
6.
SCHOOL , BICHOLI MARDANA INDORE (MADHYA PRADESH)
COL. AJAY KUMAR COMMANDING OFFICER 1 MP GIRLS BN NCC
7.
CRP LINE (MADHYA PRADESH)
.....RESPONDENTS
(STATE BY SHRI SHANTANU CHOURASIA, PANEL LAWYER)
-2-
(RESPONDENTS NO.4 & 5 BY SHRI LOKENDRA JOSHI, ADVOCATE)
(RESPONDENT NO.7 BY MS. SURBHI BAHAL, ADVOCATE)
-----------------------------------------------------------------------------------------------------
This petition coming on for orders this day, the court passed the
following:
ORDER
The petitioner has filed the present petition under Article 226 of
the Constitution of India being aggrieved by the action of the
respondent, by which she has been terminated from the post of National
Cadet Corps Officer (NCC), without giving any opportunity of hearing.
02. The case of the petitioner is that she is possessing 'A' Certificate
of NCC after successfully completing the Pre Commission Course. On
the basis of said certificate, she was appointed as NCC Officer on
31.05.2017 in Pragya Girls School (respondent No.5). At that relevant
point of time, respondent No.5 / School established NCC Wing,
therefore, she was appointed as NCC Officer. The posting of NCC
Officer is mandatory under National Cadet Corps (Girls Division) Rules,
1949 framed under the National Cadet Corps Act, 1948, therefore, the
petitioner is claiming that she was appointed as permanent employee in
the establishment of respondent No.5/ School. After joining to the said
post, she has discharged the services sincerely and there was on
complain against her work. According to the petitioner, all of a sudden,
she has been restrained to enter into the school building on 06.05.2019.
She immediately made a complaint and sent a letter dated 06.05.2019 to
the Commanding Officer, 1 MP Girls BN NCC. The Ex-Principal /
respondent No.6 also wrote a letter in favour of the petitioner objecting
the unjust termination. The petitioner served a legal notice dated
27.11.2019 seeking her reinstatement with full backwages. Vide reply
dated 05.01.2020, the respondent No.7 denied the reinstatement, hence,
she filed the present writ petition before this Court.
03. Learned counsel for the petitioner submits that Rule 27 of the
Rules of 1949 authorizes the Ministry of Defense, Government of India
to discharge an officer, therefore, the Principal of respondent No.5 has
illegally discharged the petitioner without authority. Hence, the
impugned order is bad in law. In support of his contention, he has placed
reliance on Rule 26 of the Rules of 1949 and judgment delivered by the
Guwahati High Court in the case of Dal Pathak v/s The State of of
Assam & Six Others [W.P. (C) No.6424/2013] and prayed for
quashment of the impugned action.
05. Learned counsel for the respondent No.5 / School submits that
this petition is not maintainable as respondent No.5 is purely a Non-
Government Educational Institution. The petitioner was not appointed as
a permanent employee and after removal of the petitioner, NCC activity
has been discontinues, therefore, School is no more required any NCC
Officer. Rule 26 of the Rules of 1949 does not apply in the case of
present petition and the judgment relied by the petitioner is on different
fact and circumstance.
06. Heard learned counsel for the parties at length and perused the
record.
07. Vide offer letter dated 31.05.2017, the petitioner was offered an
appointment in the school as NCC Officer at fixed salary of Rs.15,000/-
per month but no period or term was prescribed in the aforesaid
appointment letter.
08. Rule 13 of the Rules of 1949 provides for qualification for
appointment of NCC Officer, according to which unless she is member
of the permanent teaching staff, no woman shall be eligible for
appointment in the Girls' Division apart from other qualification. Rule
18 of the Rules of 1949 provides for method of appointment. Rule 19
provides for maximum age I.e. 45 years before discharge from the
Corps. Rule 26 provides for discharge and Rule 27 provides for
Discharging Authority. If officer, who has not been removed or
continuing as officer is liable to be discharged then only, then only under
Rule 27, the Ministry of Defense, Government of India shall be
competent authority to discharge her.
09. Here the petitioner has been terminated from service, therefore,
there is no question of discharge under Rule 27. She is qualified to hold
the post of officer so long she is in permanent teaching staff of school /
college, therefore, discharge from the post of officer is co-terminus with
the removal or termination from the teaching staff. Even after
respondent No.5 has discontinues the NCC Wing from the School,
therefore, there is no question of continuing the petitioner on the post of
NCC Officer. The appointment was purely a temporary appointment at
the sweet will of the management, therefore, the petitioner has no
statutory right to claim reinstatement. Respondent No.5 is a private
education institution, hence, does not come under Article 12 of the
Constitution of India, hence, the no writ can be issued and the writ
petition is liable to be dismissed.
09. So far as the judgment passed in the case of Dal Pathak (supra)
is concerned, it is case of replacement of one NCC Officer with another
professor of the Department of Political Science to discharge the
function of the NCC Officer of the College, therefore, the Guwahati
High Court has held that under Rule 29 of the Rules of 1949, the
competent authority to discharge is the Government of India. However,
in the present case, facts are different as it is a case of termination not
discharge. No case for interference is made out in the matter.
In view of the above, Writ Petition stands dismissed.
(VIVEK RUSIA)
JUDGE
Ravi
Digitally signed by RAVI PRAKASH
Date: 2022.12.08 18:59:40 +05'30'
