Uttarakhand High Court
Ram Bahadur Pandey And Another ... vs State Of Uttarakhand And Another on 6 May, 2025
Author: Manoj Kumar Tiwari
Bench: Manoj Kumar Tiwari
2025:UHC:3532-DB
HIGH COURT OF UTTARAKHAND AT NAINITAL
HON'BLE JUSTICE SRI MANOJ KUMAR TIWARI
AND
HON'BLE JUSTICE SRI ASHISH NAITHANI
Special Appeal No. 46 of 2020
Ram Bahadur Pandey and Another -Appellants
Versus
State of Uttarakhand and Another --Respondents
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Presence:-
Mr. Rajesh Joshi, Advocate for the appellant.
Mr. G.S. Negi, Additional C.S.C. for the State of Uttarakhand.
Mr. B.M. Pingal, Advocate for respondent no. 8.
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The Court made the following:
JUDGMENT:
(per Hon'ble Justice Sri Manoj Kumar Tiwari)
Appellants were appointed as Assistant
Teacher in a recognized Primary School run by a
Society, namely, "Bhotia Jan Jati Seva Samiti
Gularbhoj". Their services were terminated vide order
dated 25.06.2017 by the Chairman of Society. They
challenged the termination order by filing Writ Petition
(S/S) No. 2054 of 2017 on the ground that prior
approval of the Competent Authority, i.e. District
Education Officer, was not obtained by the Management
while terminating their services. The Writ Petition was
dismissed by learned Single Judge, vide judgment
dated 25.06.2017. Thus, feeling aggrieved, Writ
Petitioners have filed this intra-Court appeal challenging
the judgment passed by learned Single Judge. The
reasons for dismissing the Writ Petition are indicated in
paragraphs 8 to 10 of the impugned judgment, which
are reproduced below:-
"8. Perusal of the impugned orders would reveal that the
allegations against the petitioners are that they have violated
the orders of the Society and have supplied wrong information
to the department. After the judgment of the Hon'ble Apex
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Court dated 29.08.2014, the petitioners were reinstated in
service. As the liberty was given to the management to take
appropriate disciplinary action against the appellants in
accordance with law for the irregularities committed by them,
the Management issued show cause notices to the petitioners
directing them to hand over the entire records of the Schools as
well as to furnish their original testimonials. But the petitioners
neither handed over the school record which was lying with
them since long time nor furnished their original testimonials to
the department despite several opportunities. Indisputably,
petitioners have not handed over their original testimonials to
the Society, which draws an inference against the petitioners
that their testimonials were forged and therefore they have
deliberately not handed over the same to the department for
verification. As such, the contention of learned counsel for the
petitioners that there is violation of principle of natural 7 justice
in the present case, is not tenable, as proper opportunity was
provided to the petitioners prior to passing the termination
orders.
9. Insofar as the contention raised by counsel for the petitioners
that the impugned termination orders have been passed without
their being any approval from the respondent no.6, it has come
in the counter affidavit of respondent no.8 that in compliance of
the resolution dated 20.06.2017 respondent no.8, vide letter
dated 07.05.2016, requested the District Education Officer
(Elementary Education) District Udham Singh Nagar to grant
approval for terminating the services of the petitioners. As the
approval was not granted within the stipulated period by the
competent authority, therefore, as per the provision contained
in Basic Education Act, 1972 as well as in the Regulation of 2009
framed by the State Government, it was presumed that
approval has been accepted and accorded by the competent
authority, and thus almost after one year the termination orders
dated 25.06.2017 has been issued by the Committee of
Management.
10. In view of the foregoing discussion, writ petition is devoid of
merit. Same is hereby dismissed. No order as to costs."
2. The contention regarding prior approval,
raised by appellants is discussed in paragraph 9 of
impugned judgment. Learned Single Judge came to the
conclusion that, as the Committee of Management
requested for approval on 07.05.2016, and since
approval was not granted by the Competent Authority
within the stipulated time, therefore, it shall be deemed
that approval was granted by the Competent Authority.
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3. Learned counsel for appellants submits that
earlier also, services of appellants were terminated,
and they unsuccessfully challenged the termination
order in a Writ Petition, and their Special Appeal was
also dismissed, however, Hon'ble Apex Court, vide
judgment dated 29.08.2014 passed in Civil Appeal
No.9130 of 2014, held that termination orders were
illegal as they were passed in violation of Rule 11 of
U.P. Recognized Basic Schools (Recruitment and
Conditions of Service of Teachers and other Conditions)
Rules 1975, and set aside the judgment rendered by
this Court, and directed the Management to reinstate
the appellants in service within two months. Hon'ble
Apex Court however gave liberty to the Management to
take appropriate disciplinary action against the
appellants in accordance with law. Relevant extract of
the said judgment is reproduced below:-
"11. Rule 11 of the Rules is reproduced herein below:
11. Dismissal and removal of teachers. - No order
dismissing, removing or terminating the services of a
teacher or other employee of a recognised school
shall be passed save with the prior approval in
writing of the Basic Shiksha Adhikari:
Provided that in case of recognised schools
established and administered by minority
referred to in clause (1) of Article 30 of the
Constitution, such an order shall not require
the approval of the Basic Shiksha Adhikari but
shall be reported to him"
12. We have heard the learned counsel appearing for the
parties and have also gone through the relevant record.
13. It is not in dispute that the appellants were working as
Assistant Teachers in recognized schools. In view of the
fact that the appellants were working in recognized
schools, according to Rule 11 of the Rules it was necessary
to obtain prior written approval of the Basic Shiksha
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Adhikari before terminating their services. It is an admitted
fact that no such prior approval had been obtained before
terminating services of the appellants and therefore, there
was a clear violation of the provisions of Rule 11 of the
Rules.
14. It may be true that there might be irregularities in
appointment of the appellants as Assistant Teachers in the
past but as they were working in the schools duly
recognized under the Rules, in our opinion, it was
obligatory on the part of the Management to follow the
provisions of Rule 11 of the Rules while terminating
services of the appellants by way of punishment."
4. Learned counsel for the appellants submits
that in U.P. Recognized Basic Schools (Recruitment and
Conditions of Service of Teachers and other Conditions)
Rules 1975, there is no provision for deemed approval
of a proposal sent by the Management for
termination/dismissal of a Teacher.
5. Learned counsel for the appellants submits
that the learned Single Judge has observed in
paragraph 9 of the impugned judgment that there is a
provision in the Basic Education Act, 1972, as well as in
the Regulations of 2009, framed by Uttarakhand State,
under Uttarakhand School Education Act, for deemed
approval of proposal sent by Management. He submits
that this observation is factually incorrect, as neither in
the Basic Education Act, 1972, nor in the 2009
Regulations, framed under Uttarakhand School
Education Act, there is a provision for deemed approval
of a proposal sent by the Management.
6. We find substance in the said submission.
The provision of deemed approval, to a proposal for
termination/dismissal of services of a Teacher, is not
present in U.P. Recognized Basic Schools (Recruitment
and Conditions of Service of Teachers and other
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Conditions) Rules 1975, nor in the Basic Education Act,
1972. Such provision is also not there in the 2009
Regulations, framed under Uttarakhand School
Education Act. In fact, in Regulation 25 Chapter 3 of
the said Regulations, it is provided that order of
punishment, against teaching or non teaching
employee, can be passed only with the prior approval
of the District Education Officer.
7. It would be worth mentioning that by Section
60 of Uttarakhand School Education Act, 2006, U.P.
Intermediate Education Act, 1921 and U.P. Basic
Education Act 1972, which were made applicable in
State of Uttarakhand by issuing a modification order as
per U.P. Reorganisation Act, 2000, were repealed.
Thus, Uttarakhand School Education Act, 2006 is now
applicable to (i) primary schools (ii) junior high schools
and (iii) intermediate colleges.
8. Section 39 of Uttarakhand School Education
Act, 2006 deals with condition of service of head of
institution, teachers and other employees. Sub-section
(3)(a) of Section 39 of said Act, ordains that a Teacher
shall not be dismissed, discharged, or removed from
service, or reduced in rank, without prior approval in
writing of District Education Officer.
9. The expression "in writing of District
Education Officer" rules out the possibility of deemed
approval, as approval has to be granted by a written
order. Sub-section (3)(a) of Section 39 of Uttarakhand
School Education Act, 2006, is reproduced below for
ready reference:-
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"Section39(3)(a)- No Principal, Headmaster or teacher may be
discharged or removed or dismissed from service or reduced in
rank, or subject to any discrimination emoluments, or served
with notice of termination of service except with the prior
approval in writing of the District Education Officer. The decision
of the District Education Officer shall be communicated within
the period to be prescribed by regulations."
10. The last sentence in the aforesaid provision
although provides that decision of District Education
Officer has to be communicated to the Management
within a period to be prescribed by Regulations,
however, learned counsel for the respondent rightly
concedes that Regulations are silent regarding the time
within which decision has to be communicated to the
Management.
11. In view of above discussion, we are of the
considered opinion that a proposal for termination sent
by the Management cannot be presumed to be
approved, unless there is a provision for deemed
approval in the Statute.
12. Even otherwise also, since the Statute
provides that written approval has to be obtained from
District Education Officer, then the view taken by the
learned Single Judge in paragraph 9 of impugned
judgment cannot be sustained.
13. Mr. B.M. Pingal, learned counsel appearing for
the Management/respondent no.8, contends that the
Bye-laws of the Society authorize the Committee of
Management to terminate the service of a Teacher
serving in the Institution, therefore, the Chairman of
the Society was well within his right to pass the
termination order.
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14. The said contention cannot be accepted. The
By-laws of the Society can not override the provisions
of Uttarakhand School Education Act, 2006, which is
applicable to every recognized educational institution,
including primary school. Service conditions of Teacher
of a recognized school are governed by statutory
provisions, therefore, in case of any conflict between
the Bye-laws and such statutory provisions, Bye-laws
have to give way to provision of the Statute.
15. In view of the aforesaid discussion, the
termination of service of the appellants by the
Management was interferable for non-compliance of
statutory provision. Learned Single Judge thus erred in
dismissing their Writ Petition. We, therefore, allow the
Special Appeal, and set-aside the termination order
dated 25.06.2017, as well as the impuged judgment
dated 15.10.2019 passed in Writ Petition (S/S)
No.2054 of 2017. Appellants shall be entitled for all
consequential benefits, including salary for the period
they remained out of employment.
_______________________________
MANOJ KUMAR TIWARI, J.
__________________________
ASHISH NAITHANI, J.
Dt: 6th May, 2025
Shiksha
SHIKSHA
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BINJOLA
postalCode=263001, st=UTTARAKHAND,
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cn=SHIKSHA BINJOLA
Date: 2025.05.13 19:44:10 +05'30'
