# Atma Ram Srivastava v. State of U.P. & others

- **Citation:** (1999) 1 ILRA 126
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1997-10-20
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/atma-ram-srivastava-v-state-of-u-p-others-39227
- **Pages:** 6

## Text

126 THE INDIAN LAW REPORTS [1999
petitioner. There was no bad intention on the part of the petitioner to
cause wrongful loss to the State Government and wrongful gain to
himself or any other person. The action does not commensurate with
the gravity of the alleged charges of misconduct or irregularity.

34. The impugned order suffers from arbitrariness inasmuch
as no prudent man would have arrived at the conclusion, which has
been arrived at by the State Government. Article 14 of the
Constitution of India is the sworn enemy of arbitrariness, hence the
impugned order is hit by Article 14 of the Constitution of India.

35. In view of what has been indicated herein above, the writ
petition succeeds and is allowed. The impugned order dated
31.5.1995 is hereby quashed. A writ in the nature of mandamus is
issued commanding the respondents to return the amount of the
pension which has been deducted from the pension of the petitioner
within three months from the date of receipt of a certified copy of
this order. A writ in the nature of mandamus is also issued
commanding the respondents to pay the petitioner his gratuity, if the
same has not yet been paid within the aforesaid period with interest
at the rate of 12% per annum from the date of retirement till the
payment of gratuity.

25,*,1
25,*,1$/ -85,6',&7,21
$/ -85,6',&7,21
&,9,/ 6,'(
&,9,/ 6,'(
'$7(' $//$+$%$'
'$7(' $//$+$%$'
%()25(
%()25(
7+( +21·%/( 68'+,5 1$5$,1 -
7+( +21·%/( 68'+,5 1$5$,1 -
&LYLO 0LVF :ULW 3HWLWLRQ 1R RI
'RRPHU 6LQJK
«3HWLWLRQHU
9HUVXV
83 6HFRQGDU\ (GXFDWLRQ 6HUYLFH
&RPPLVVLRQ $OODKDEDG DQG RWKHUV
«5HVSRQGHQWV
&RXQVHO IRU WKH SHWLWLRQHU
 6UL $VKRN .KDUH
&RXQVHO IRU WKH UHVSRQGHQWV
 6&
 6UL %. 6ULYDVWDYD
83 6HFRQGDU\ (GXFDWLRQ 6HUYLFH &RPPLVVLRQ $FW 1R RI
26HFWLRQ UHDGZLWK 83 ,QWHUPHGLDWH (GXDFDWLRQ $FW
1998
------
Atma Ram
Srivastava
 Vs.
State of U.P.
& others
------
S.H.A.Raza, J.
Bhagwan
Din, J.
1998
------
September, 25
1 All.] ALLAHABAD SERIES 127
6*D27HUPLQDWLRQ
GXULQJ
SUREDWLRQ
SHULRG2FDQGLGDWH
DSSRLQWHG WKURXJK &RPPLVVLRQ DV /7 *UDGH 7HDFKHU2&0 SDVVHG
WHUPLQDWLRQ RUGHU EHIRUH FRPSOHWLRQ RI SUREDWLRQ SHULRG RI RQH
\HDU
ZLWKRXW
SULRU
DSSURYDO
RI
WKH
DXWKRULW\
FRQFHUQ2KHOG
WHUPLQDWLRQ RUGHU LOOHJDO2GLUHFWLRQ LVVXHG WR WDNH ZRUN WLOO WKH
WHUPLQDWLRQ RUGHU LV DSSURYHG 3DUD
&DVH ODZ GLVFXVVHG
 $/-
 83/%(&
 83/%(&
 83/%(&

By The Court

1. The petitioner seeks writ of certiorari quashing the
resolution
dated 20.10.1997 passed by the Committee of
Management Sri Ganesh Inter College, Kasganj, Etah, resolving to
terminate the services of the petitioner and the letter of the Manager
dated 23.10.1997, whereby he was informed that his services have
been terminated and a writ of mandamus commanding the
Committee of Management to comply with the order of the District
Inspector of Schools, Etah, dated 28.10.1997, whereby he held that
the said resolution was inoperative without its approval by the
competent authority.

2. The facts in brief are that in Sri Ganesh Inter College,
Kasganj, Etah (hereinafter referred to as the Institution) there existed
a substantive vacancy of Assistant Teacher in L.T. Grade for
teaching Hindi subject. The Committee of Management sent the
resolution pertaining to the said vacancy to the U.P. Secondary
Education
Services
Commission,
Allahabad
(In
short
the
Commission). The Commission issued the advertisement in the year
1996, whereby applications were invited for various posts of
Assistant Teacher in L.T. grade including the post in question. The
petitioner applied for the said post. He appeared before the
Commission for interview. He was selected and was recommended
by the Commission for appointment in the Institution. The
Committee of Management issued appointment letter to the
petitioner on 24.10.1996 appointing him as Assistant Teacher in L.T.
grade for the period of one year on probation. The petitioner, in
pursuance of the said letter, joined the institution on 25.10.1996. The
Committee of Management, before expiry of the period of one year,
passed a resolution on 20.10.1997 dispensing with the services of the
1998
------
D.Singh
 Vs.
U.P.S.E.S.C.
Alld.& others
------
Sudhir
 Narain, J.
128 THE INDIAN LAW REPORTS [1999
petitioner with immediate effect purporting to exercise the powers
under Regulation 25 of Chapter-III of the Regulations framed under
the U.P. Intermediate Education Act. The Manager of the Institution
sent a letter to the petitioner on 25.10.1997 informing him that his
services
have
been
terminated.
The
petitioner
submitted
representation before the District Inspector of Schools, Etah on
which he issued a direction to the Committee of Management for
permitting the petitioner to join the Institution and permit him to
discharge his duties as no order of termination could be passed
without prior approval of the District Inspector of Schools as
provided under Section 16-G(3) of the U.P. Intermediate Education
Act. The petitioner was , however, not permitted to function by the
Committee of Management and he has filed this petition for the
reliefs mentioned above.

3. The controversy is as to whether the Committee of
Management is entitled to terminate the services of a teacher
appointed on probation without obtaining any prior approval of the
Commission as provided under Section 21 of Uttar Pradesh
Secondary Education Services Commission and Selection Board's
Act 1982. Sub-section (1) of Section 21 of the Act provides that no
teacher specified in the Schedule shall be dismissed or removed from
service or reduced in rank and neither his emoluments may be
reduced nor he may be given a notice of removal from service by the
Management unless prior approval of the Commission has been
obtained. Sub-section (3) provides that every order of dismissal,
removal or reduction in rank or removal from service or reduction in
emoluments of a teacher in contravention of the provisions of subsection (1) or sub-section (2) shall be void. The contention of learned
counsel for the respondent is that the Committee of Management
passed order simplicitor discharging the petitioner from service
within the period of probation. He was appointed on probation for
one year and the Committee of Management was entitled to consider
his performance during the period of one year and it was for the
Management to terminate the services or to extend the period of his
probation.

4. Regulation 10 of Chapter III of the Regulations framed
under the U.P. Intermediate Education Act 1921 provides that a
person placed on probation shall be confirmed if he fulfils the
requirements of Regulation 9 and has worked with diligence and
otherwise proved himself fit for the post for which he was recruited
and his integrity is certified. Regulation 11 further lays down that
1998
------
D.Singh
 Vs.
U.P.S.E.S.C.
Alld.& others
------
Sudhir
 Narain, J.
1 All.] ALLAHABAD SERIES 129
unless before the expiry of the period of probation, the service of a
Head Master, Principal or teacher is terminated or action is taken to
dismiss, discharge or remove him or reduce him in rank or in the
case of Head Master or Principal the period of probation is extended
under Regulation 10 following, he shall be confirmed on the post and
in the grade at the end of his probation. Regulation 25 provides that
the service of a temporary employee other than a probationer or of
probationer during the term of his probation, can be terminated at
any time by giving him one month's notice or one month's pay in
lieu thereof. This provision was considered by the Division Bench of
this Court in Managing Committee Sohan Lal Higher Secondary
School, Rajendra Nagar, Lucknow Vs. Sheo Datt Gupta and another,
1974 A.L.J. 465 and it was held that prior approval of the District
Inspector of Schools was required under Section 16-G(3)(a) of the
U.P. Intermediate Education Act even in the case of a probationer, in
as much as the provisions of Section 16-G(3)(a) does not make any
distinction between a teacher appointed on probation or he is
confirmed. It was observed:

"To sum up, Sec. 16-G(3)(a) of the Act having been worded
generally will apply to every case of termination of service
where prior to the termination some notice has to be given. It,
therefore, applies to a probationer also, and therefore the
services of a probationer cannot be terminated unless notice of
termination is served after obtaining the approval of the
Inspector."

5. In Om Prakash Vs. U.P. Secondary Education Services
Commission Allenganj, Allahabad and others, (1990) 2 U.P.
L.B.E.C. 983, the similar controversy as raised in the present writ
petition was involved. It was contended before the Court that Section
21 of Act 5 of 1982 does not provide for approval in respect of a
teacher appointed on probation. The Court held that Section 32 of
1982 Act preserves the protection given to the teachers under the
provisions of Section 16-G(3) of Act No. 2 of 1921 and the
Regulations framed thereunder in the matters of dismissal, removal,
termination or reduction in rank provided the provisions are not
inconsistent with the provisions of the Act. The provisions of Section
21 of 1982 Act are silent with respect to the discharge of a
probationer. The provisions of Section 16-G(3)(a) would not be
inconsistent so far as the discharge of a probationer is concerned.
The Division Bench held that the word 'removal' used in Section 21
and Section 32 of 1982 Act was used in comprehensive sense to
1998
------
D.Singh
 Vs.
U.P.S.E.S.C.
Alld.& others
------
Sudhir
 Narain, J.
130 THE INDIAN LAW REPORTS [1999
include the discharge of a probationer from service. It was held that
protection of Section 21 of the Act is available to the probationer
who is being discharged from service.

6. Learned counsel for the respondents contended that if a
probationer is discharged from service, the order is not passed by
way of punishment and the termination does not cast a stigma on the
petitioner. He has placed reliance on Janta Vidyalaya Society Deoria
and another Vs. Deputy Director of Education, VII Region,
Gorakhpur and others, 1983 U.P. L.B.E.C. 622, wherein the
Committee of Management having passed resolution terminating the
services of a teacher asked the District Inspector of Schools for
sanction whereupon the District Inspector of Schools accorded
sanction to the proposal of the Committee of Management for
termination of the service. The teacher filed appeal against the order
of the District Inspector of Schools which was allowed by the
Deputy Director of Education. The High Court quashed that order
holding that the District Inspector of Schools was not required to
assign any reason before grant of the approval.

7. In P.C. Bagla (Post Graduate College Hathras) U.P. Vs.
Vice Chancellor, Agra University, 1980 U.P. L.B.E.C. 119, it was
held that a probationer is not entitled to any opportunity of hearing
prior to termination of the service as he has no right to hold the post.
None of these cases hold that the prior approval of the authority
concerned was not required even in the case of the probationer
before serving the notice of termination of service. The consideration
for grant of the approval by the authority concerned is different in
case of probationer where the order of termination is passed on the
basis of the assessment of the work of the teacher during the period
of probation and also examining his integrity. It is for the Committee
of Management to assess his work, competency, integrity and other
relevant factors before terminating his service. The order of
termination is not passed by way of punishment. In a case where the
order is passed by way of punishment, different considerations may
arise, namely, the nature of charges levelled against the teacher, the
evidence to prove such charges and whether the proper procedure
was followed as provided under the Act and the Rules framed therein
before imposing punishment on him but in either of the case,
approval of the authority concerned is required.

8. As the petitioner was appointed on the recommendation of
the Commission, it was necessary for the Committee of Management
1998
------
D.Singh
 Vs.
U.P.S.E.S.C.
Alld.& others
------
Sudhir
 Narain, J.
1 All.] ALLAHABAD SERIES 131
to have obtained prior approval of the order of termination of the
service of the petitioner. The Committee of Management has already
taken a decision to terminate the service of the petitioner within the
period of probation. It can submit the necessary papers before the
Commission under Section 21 of Act No. 5 of 1982. In case the
Committee of Management submits the necessary papers with a
request to accord the approval of the termination of the service of the
petitioner, the Commission or such authority, who is empowered to
accord the approval, will pass an order expeditiously possibly within
a period of three months from the date of submission of a certified
copy of this order before such authority.

9. The writ petition is accordingly allowed and the petitioner
be permitted to function till the order of termination is served after
obtaining the approval of the authority concerned under Section 21
of Act No. 5 of 1982 Act.

The parties shall, however, bear their own costs.

25,*,1$/ -85,6',&7,21
25,*,1$/ -85,6',&7,21
&5,0,1$/ 6,'(
&5,0,1$/ 6,'(
'$7(' $//$+$%$'
'$7(' $//$+$%$'
%()25(
%()25(
7+( +21·%/( 6 . 3+$8-'$5 -
7+( +21·%/( 6 . 3+$8-'$5 -
&ULPLQDO 0LVF $SSOLFDWLRQ 1R RI
6PW 5DKPDW -DKDQ
«$SSOLFDQW
9HUVXV
6WDWH RI 83
«2SS 3DUW\
&RXQVHO IRU WKH DSSOLFDQW
 6UL 9. &KDWXUYHGL
&RXQVHO IRU WKH 2SS 3DUW\
 $* $
6HFWLRQ &U3&2$SSOLFDWLRQ IRU WDNLQJ WKH DSSOLFDQW LQ -XGLFLDO
FXVWRG\ ZKLOH VKH ZDV DFWXDOO\ O\LQJ LQ WKH +RVSLWDO ZRXOG DPRXQW
WR VXUUHQGHU ZRXOG QR GRXEW PHDQV DSSHDULQJ SK\VLFDOO\ EXW
ZKHUH D SHUVRQ LV XQDEOH WR DSSHDU EHIRUH WKH &RXUW IRU PHGLFDO
UHDVRQV DQG GHVLUHV WKDW KHU VXUUHQGHU EH DFFHSWHG DQG VKH PD\ EH
WDNHQ LQ -XGLFLDO FXVWRG\
1998
------
September,15