Smt. Simmy Agarwal vs Chief Education Officer
2023 Latest Caselaw 2950 UK

 IN THE HIGH COURT OF UTTARAKHAND
            AT NAINITAL

      WRIT PETITION (S/S) NO. 211 OF 2019

                        4TH October, 2023

Smt. Simmy Agarwal                                         ....Petitioner
                                        Versus

Chief Education Officer,
Nainital & others                                    ...Respondents


Present:
        Mr. Nikhil Singhal, Advocate for the petitioner.
        Mr. S.S. Chaudhary, Brief Holder for the State/respondent nos. 1 &
        2.
        Mr Ganesh Kandpal, Advocate for respondent no. 3 through video
        conferencing.


                              JUDGMENT

Hon'ble Manoj Kumar Tiwari, J.

Petitioner's husband was serving as Class-IV employee in a Government Aided Educational Institution, namely, M.P. Hindu Inter College, Ramnagar, who died during the course of employment on 22.03.2013. Petitioner applied for compassionate appointment. Since there was no vacancy in the college where petitioner's husband was working, therefore, the Chief Education Officer, Nainital directed the management of another Government Aided Inter College, namely, H.N. Inter College, Haldwani to appoint the petitioner on compassionate grounds. Thus, petitioner came to be appointed as Junior Assistant in H.N. Inter College, Haldwani vide order dated 21.07.2017. According to petitioner, she joined duties in H.N.

Inter College, Haldwani on 01.08.2017 and, thereafter, she performed her duties as Junior Assistant, however, by an order dated 18.07.2018, she was placed under suspension by the Manager based on frivolous charges and, thereafter, a charge sheet containing four charges was issued to her by the Manager of the concerned college. Ultimately, the Manager, H.N. Inter College, Haldwani passed an order on 26.11.2018, terminating services of the petitioner. Feeling aggrieved by the termination order, petitioner has filed this writ petition, seeking the following reliefs:

"(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 26-11-2018 passed by the respondent no.3, whereby the services of the petitioner has been terminated (contained as Annexure No.7 to this writ petition).

(ii) Issue a writ, order or direction in the nature of mandamus commanding and directing the respondents to reinstate the petitioner in her service with continuity of service along with all consequential applicable benefits.

(iii) Issue a writ, order or direction in the nature of mandamus commanding and directing the respondents to pay the complete salary/substance allowance to the petitioner w.e.f. July 2018 along with 18% interest from the date of its due till the date of its actual realization."

2. Learned counsel for the petitioner contends that the order of suspension and also the order terminating service of the petitioner have been passed without approval of the Competent Authority. Thus, according to him,

the order of termination dated 26.11.2018 is unsustainable in law. He has relied upon the letter dated 28.02.2019 issued by Chief Education Officer in support of his contention that approval of the Competent Authority was not obtained before passing the termination order.

3. Learned counsel for the petitioner has also drawn attention of this Court to the report dated 20.02.2019 submitted by Enquiry Committee constituted to look into charges levelled against the petitioner, which is on record as Annexure No.2 to supplementary affidavit. The said Enquiry Committee had returned a finding that suspension of petitioner is not tenable in the eyes of law. Learned counsel, thus, submits that the management of the concerned college passed the termination order even without waiting for the report of the Enquiry Committee constituted by Chief Education Officer.

4. Counter affidavit has been filed by Mr. Kunwar Singh Rawat, Chief Education Officer, Nainital. Paragraph nos. 7 to 14 of the said counter affidavit are extracted below:

"7. That the Respondent No. 3 has suspended the services of the petitioner vide letter no. 20 dated 18-07-2018 and send the said suspension order to the office of the answering Respondent on 19-07-2018 for seeking the necessary approval.

8. That in view of the said letter dated 19-

07-2018 of the Respondent No. 3, the office

of the answering Respondent has constituted the 02 members enquiry committee consisting of Block Education Officer Ramgarh, Nainital and Principal G.I.C Phoolchaur Haldwani, (Nainital) to enquire about the matter of suspension of the petitioner.

9. That the Respondent No. 3 has terminated the services of the petitioner vide order dated 26-11-2018 and the information in this regard has been sent to the office of the answering Respondent.

10. That the enquiry committee gave its report on 20-02-2019 and by enclosing the copy of the said enquiry report, the office of the answering Respondent vide its letter dated 28-02-2019 clearly informed to the Respondent No. 3 that in view of the enquiry report dated 20-02-2019 it is not possible to give approval of the suspension and termination orders passed against the petitioner. A copy of the said enquiry report dated 20-02-2019 has already been annexed as Annexure No. 1 to the supplementary affidavit filed by the petitioner.

11. That apart from this vide letter dated 01-09-2021 the office of answering Respondent has also informed to the Respondent No. 3 that on the basis of the enquiry report dated 20-02-2019 it is not possible to give the approval of the suspension and terminations orders passed against the petitioner.

12. That thereafter vide letter 29-12-2021 the office of answering Respondent issued necessary directions to the Authorized Controller of the said School regarding the matter of the petitioner but the said directions has not been complied yet.

13. That as per the provisions of Uttarakhand School Education Act 2006 and the Regulations of 2009 (as amendment) it is necessary to take the prior approval from the office of the answering Respondent before passing the suspension and termination orders by the Appointing Authority. The Respondent No. 3 has not taken any approval from the office of the answering Respondent before passing the suspension and termination orders against the petitioner.

14. That it is also worthwhile to mention here that pursuant to the directions of the State Government issued vide letter dated 06-04-2022, the office of the answering Respondent has decided the matter of the petitioner by passing a detailed and reasoned order on 25-04-2022 after hearing both the parties and by considering every aspect of the matter. A copy of the said order dated 25-04-2022 has already been annexed as Annexure No. 2 to the supplementary affidavit filed by the petitioner. Even after passing the order

and 3 has neither paid the Subsistence allowance nor given the charge of Junior Assistant to the petitioner yet."

5. Thus, it is not in dispute that services of the petitioner have been terminated without obtaining prior approval of the Competent Authority i.e. District Education Officer. As per Regulation 25 of Chapter-3 of the 2009 Regulations framed under Uttarakhand School Education Act 2006, an employee serving in a Government Aided School/College, cannot be dismissed or removed from service without obtaining prior approval of the District Education Officer. Regulation 25 of Chapter-3 of the Regulations is extracted below for ready reference:-

**25& deZpkfj;ksa dks izkI; n.M] ftlds fy, ftyk f'k{kk vf/kdkjh dh iwoZ Lohd`fr vko";d gksxh] fuEufyf[kr esa ls fdlh ,d :Ik esa gks ldrh gS %&

¼d½ inP;qfr ¼fo;qfDr½ A

¼[k½ in ls i`FkDdj.k ¼izeqfDr½A

¼x½ Js.kh esa voufrA

¼?k½ ifjyfC/k;ksa esa dehA

prqFkZ Js.kh deZpkfj;ksa dks mijksDr dksbZ n.M nsus gsrq iz/kkukpk;Z vFkok iz/kkuk/;kid l{ke~ gksxkA l{ke~ vf/kdkjh }kjk n.M fn;s tkus dh n"kk esa prqFkZ Js.kh deZpkfj;ksa }kjk izcU/k lfefr dks vihy dh tk ldsxhA ;g vihy n.M lwfpr fd;s tkus dh frfFk ls ,d ekg

ds vUnj izLrqr gks tkuh pkfg;s vkSj ml ij izcU/k lfefr }kjk fu.kZ; dj vihy dh izkfIr dh frfFk ls vf/kdre~ 6 lIrkg ds Hkhrj ns fn;k tk;sxkA leLr vko";d vfHkys[kksa ij fopkj djus ,oa deZpkjh dh] ;fn og izcU/k lfefr ds le{k~ Lo;a mifLFkr gksuk pkgs] lquokbZ ds Ik"pkr~ izcU/k lfefr vihy ij fu.kZ; nsxhA

prqFkZ Js.kh deZpkjh dks ;g Hkh vf/kdkj gksxk fd mldh vihy ij fd;s x;s izcU/k lfefr ds fu.kZ; ds fo#) og ftyk f'k{kk vf/kdkjh dks] fu.kZ; lwfpr fd;s tkus dh frfFk ls ,d ekg ds vUnj vH;kosnu dj ldsxkA

fdUrq izfrcU/k ;g gksxk fd ;fn izcU/k lfefr fu/kkZfjr N% lIrkg dh vof/k ds Hkhrj viuk fu.kZ; mijksDr vihy ij u ns rks lacaf/kr deZpkjh viuk vH;kosnu lh/ks ftyk f'k{kk vf/kdkjh dks mijksDr N% lIrkg dh vof/k chr tkus ij ns ldrk gSA

ftyk f'k{kk vf/kdkjh }kjk mijksDr vH;kosnu ij vH;kosnu dh izkfIr dh frfFk ls vf/kdre rhu ekg ds Hkhrj fu.kZ; ns fn;k tk;sxk vkSj ;g fu.kZ; vfUre gksxkA

vH;kosnu ds izLrqrhdj.k fopkj ,oa fu.kZ; ds lEcU/k esa vko";d ifjorZu ds lkFk bl v/;k; ds fofu;e 75 ls 86 ykxw gksaxsA**

6. Under the scheme of Uttaranchal School Education Act, 2006 and the Regulations framed thereunder, Teaching and Non-Teaching employee cannot be appointed in a Government Aided Institution without prior approval of the Competent Authority. Likewise, for terminating the service of an employee of a Government Aided School/College, prior approval of the Competent Authority is necessary. From the stand taken by Chief Education Officer, in his counter affidavit, it is revealed that the Competent Authority has not granted approval for putting the petitioner under suspension and also for terminating her from service.

7. Mr. Ganesh Kandpal, learned counsel appearing for Committee of Management relied upon a document enclosed as Annexure No.9 to the counter affidavit filed by Committee of Management for contending that the Chief Education Officer had permitted the

management to take necessary action against the petitioner. However, the said document reveals that the Chief Education Officer had directed the management to act as per provisions of Uttarakhand School Education Act and the Regulations framed thereunder and there is nothing in the said letter to indicate that approval, as contemplated in the Regulations, was granted for putting the petitioner under suspension.

8. Since prior approval of the Competent Authority is necessary for terminating service of a Teaching or Non-Teaching employee of a Government Aided Educational Institution, therefore, the order of termination passed by Committee of Management against the petitioner, which was not approved by the Competent Authority, cannot be sustained in the eyes of law.

9. Accordingly, the writ petition is allowed and the impugned order dated 26.11.2018 is quashed and set-aside. Respondent nos.2 & 3 are directed to permit petitioner to resume duties as Junior Assistant. Petitioner shall be entitled to all service benefits for the period she remained out of employment on account of the impugned order.

(Manoj Kumar Tiwari, J) 04.10.2023 Navin