# Sri Ram Pathak and others v. State of U.P. and others

- **Citation:** (2008) 1 ILRA 157
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-11-16
- **Case number:** Civil Misc. Writ Petition No. 51653 of 2007
- **Bench:** Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-ram-pathak-and-others-v-state-of-u-p-and-others-41258
- **Pages:** 5

## Headnote

U.P. Intermediate Education Act 1921Section
7AA-termination-part
time
teacher-earlier petition dismissed as
infructous
upon
the
statement
of
management- impugned order revokedfurther termination on two countsFirstly under Rule 3(2) of commission
Rules 1983 No male teacher could be
appointed
in
girls
school,
Secondly
female
teacher
available
in
the
concerned subject-both reasons lost its
existence-management
can
not
be
allowed to take plea of such reason not
disclosed in termination order-heldimpugned order cannot sustain.

Held: Para 9

Thus, the submission of learned Counsel
for
the
Respondent
that
the
management even without reason can
terminate the services of Part Time
Teacher, cannot be accepted. In view of
the above, the order impugned cannot
sustain and hereby set aside.
Case law discussed:
A.I.R. 1979 SC. 429
158 INDIAN LAW REPORTS ALLAHABAD SERIES [2008

## Text

1 All] Sri Ram Pathak and others V. State of U.P. and others
157
11. According to us, fraud and
equity can not run simultaneously. If it is
a question of genuine fraud there is no
scope of showing any equitable justice
towards any insured but when at an
occasion the authority made an effort for
mediation it is to be understood that the
insurance company was also not in a
position to come to a definite finding
about any falsity. Therefore, it can be
safely presumed that the question of any
falsity does not arise otherwise the
Ombudsman could not have poised down
to a position of making effort of
mediation to render equitable justice.

12. Therefore, in totality we do not
find that any such case has been made out
on behalf of the Insurance Company to
repudiate the agreement ignoring payment
of the meagre amount of Rs.1.0 lakh
(Rupees one lakh only) to the petitioner.
Hence, we hereby quash the order of the
Ombudsman dated 30.6.2005 as well as
the orders dated 18.1.2005 and 27.5.2004
passed by the authorities of the L.I.C.,
being impugned in the present writ
petition. As a result whereof we hold and
say that the petitioner is entitled for the
said sum which will be released by the
Insurance Company in favour of the
petitioner as early as possible but not
beyond the period of one month from the
date of communication of this order
alongwith interest @ 12% per annum at a
simple rate from the date of first refusal
till the date of actual payment finding that
the same is reasonable. Accordingly, the
writ petition is allowed.

13. However, no order is passed as
to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.11.2007

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Writ Petition No. 51653 of 2007

Sri Ram Pathak and others ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri P.K. Rai
Sri S.P. Rai

Counsel for the Respondents:
Sri Gajendra Pratap
S.C.

U.P. Intermediate Education Act 1921Section
7AA-termination-part
time
teacher-earlier petition dismissed as
infructous
upon
the
statement
of
management- impugned order revokedfurther termination on two countsFirstly under Rule 3(2) of commission
Rules 1983 No male teacher could be
appointed
in
girls
school,
Secondly
female
teacher
available
in
the
concerned subject-both reasons lost its
existence-management
can
not
be
allowed to take plea of such reason not
disclosed in termination order-heldimpugned order cannot sustain.

Held: Para 9

Thus, the submission of learned Counsel
for
the
Respondent
that
the
management even without reason can
terminate the services of Part Time
Teacher, cannot be accepted. In view of
the above, the order impugned cannot
sustain and hereby set aside.
Case law discussed:
A.I.R. 1979 SC. 429
158 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
(Delivered by Hon'ble Ashok Bhushan, J.)

1. Heard learned counsel for the
petitioner and Sri Gajendra Pratap,
learned Counsel for the respondent No.3.

2. Counter and rejoinder affidavits
have been exchanged between the parties.
With the consent of the learned Counsel
for the parties, the writ petition is being
disposed of at the admission stage itself.

3. By this writ petition, the
petitioner has prayed for quashing the
order dated 17.8.2007, passed by the
Manager
of
the
Committee
of
Management by which the petitioners
services as Part Time Teacher have been
terminated.

4. The petitioners case is that the
petitioner No.1 was appointed as Part
Time Lecturer in Commerce on 1.2.1999,
the petitioner No.2 was appointed as Part
Time
Lecturer
in
Mathematics
on
8.10.1999 and the petitioner No.3 was
appointed as Assistant Part Time Teacher,
Science on 3.9.2003 under section 7AA of
U.P. Intermediate Education Act, 1921.
The petitioners' case is that the new
Committee of Management came into
power in May, 2007 and a decision was
taken to terminate the services of all the
Part Time Teachers by resolution dated
30.5.2007, which order was challenged by
means of a writ petition being Civil Misc.
writ petition No. 27735 of 2007 in which
this Court granted an interim order dated
20.6.2007.
Subsequently
on
the
statements of Committee of Management
to the effect that notice dated 30.6.2007
has been withdrawn, this Court vide order
dated 23.7.2007 dismissed the writ
petition as infructuous. Thereafter by the
impugned order dated 17.8.2007, the
services of the petitioners have been
terminated by giving following two
reasons.

1) According to Rule 3(2) of the U.P.
Secondary
Education
Services
Commission Rules, 1983, no male
teacher
shall
be
eligible
for
appointment in Girls School.
2) In the subjects for teaching of which
the
petitioners
were
appointed,
female teachers have now become
available.

5.

Learned
counsel
for
the
petitioners challenging the aforesaid two
grounds mentioned in the impugned
order, contended that the provisions of
Rules 1983 are not applicable with regard
to appointment of a Part Time Teacher.
With regard to second ground, it is
contended that no selection has been
made of any female teacher therefore, the
second reason is also non-existent.
Learned Counsel for the respondents
refuting the submission of the learned
counsel for the petitioners, submitted that
even though the 1983 Commission Rules
are not applicable but there is prohibition
for appointment of male teachers in girls
institution. It has been further contended
that appointment of the petitioners was
not made in accordance with the relevant
Government Orders regulating the service
conditions of Part Time Teacher hence,
the petitioners are not entitled for any
protection. He further submits that earlier
Government
Order
issued
in
1986
regulated the service conditions and since
the petitioners appointment was not made
following the procedure prescribed under
law, they cannot claim for any protection.
It was further contended that those Part
Time Teachers who have been appointed
without
following
the
procedure
1 All] Sri Ram Pathak and others V. State of U.P. and others
159
prescribed, the Management is fully
competent to terminate their services.
Certain allegations against the male
teachers have also been made in the
counter affidavit filed on behalf of
Committee of Management.

6. I have considered the submissions
and perused the record.

7. The order terminating the services
of the petitioners as Part Time Teacher
gives only two reasons as noticed above.
The first reason based on Rule 3(2) of
1983 Rules which is not applicable in
view
of
Section
7-AB
of
U.P.
Intermediate
Education
Act,
1921.
Learned counsel for the respondents
submits that even though Commission
Rules are not applicable but there is
prohibition on appointment of male
teachers in girls institution. In support of
the said submission, learned Counsel for
the respondent management has neither
been able to refer to any regulations
framed under U.P. Intermediate Education
Act, 1921 nor any Government Order. A
copy of the letter issued by the Director of
Education dated 6.9.1981 has been
brought on record as Annexure C.A. 2 to
the counter affidavit. The said letter was
issued with regard regularisation of male
teachers working in girls institution on
temporary basis for long period. A perusal
of the said letter does not indicate that the
appointment of male teacher is prohibited
in girls institution. Coming to the second
reason given in the impugned order to the
effect that the subjects for which the
petitioners were appointed for teaching,
the female teachers are now available, is
also non-existent. No regular selection has
been made by any competent authority for
the subjects in which the petitioners are
teaching the students. Much emphasis has
been led by learned counsel for the
respondent management that procedure
for appointment of the petitioners as Part
Time Teachers, was not followed hence,
the management is free to terminate their
services. It is relevant to note that the
order impugned does not terminate the
services of the petitioners on the ground
that procedure was not followed. The
reasons
for
termination
have
been
expressly mentioned in the impugned
order and it is not open for the respondent
management to add any other reason
which is not mentioned in the order
terminating
the
services.
Thus,
the
submission of learned Counsel for the
management that the procedure was not
followed in the appointment of the
petitioners hence they were terminated,
cannot be accepted. Learned Counsel for
the respondents further contended that by
virtue of para 10 of the Government
Order dated 10.8.2001, management can
terminate services of Part Time Teacher
without
there
being
any
reason.
Paragraphs 8,9 and 10 of the Government
Order dated 10.8.2001 are relevant, which
are being quoted herein below:

"-vuq'kklfud dk;Zokgh%& izcU/k lfefr fuEufyf[kr dkj.kksa
ls fdlh Hkh va'kdkfyd v/;kid ds fo:) vuq'kkfld
dk;Zokgh dj ldrh gS&

d& fo|ky; ds fu;eksa dk mYya?ku djuk rFkk vkKk u
ekuukA
[k& lkSais x;s nkf;Roksa ds fuokZg esa ykijokgh djukA
x&
fo|ky; ds vfHkys[k u"V djuk vFkok {kfr igq¡pkukA
?k&
fo|ky; dh lEifRr vFkok /ku dk nq:i;ksx djukA
p& fo|ky; esa vL=&'kL= ykuk vFkok mudk iz;ksx
djuk vFkok /kedh nsukA
N&
ijh{kk dk;Z fu;ekuqlkj u djuk vFkok fdlh
vuqfpr lk/ku gsrq izksRlkgu vFkok mlesa layXu gksukA
Tk& fo|ky; dh xksiuh; i=koyh oLrq vFkok vfHkys[k dh
xksiuh;rk Hkax djukA
>& d{kk dk;Z vFkok x`gdk;Z esa ykijokgh djukA
160 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
9& lsok lekfIr%& ;fn izca/kra= dks ;g lek/kku gks tk;s fd
dksb Hkh va'kdkfyd v/;kid /kkjk&8 esa of.kZr fdlh uSfrd
v/kerk ds vijk/k esa fdlh l{ke U;k;ky; }kjk nks"kh fl)
dj fn;k x;k gks] rks og bu va'kdkfyd v/;kidksa dh
lsok,a lekIr dj ldrk gSA
d& fdlh Hkh va'kdkfyd v/;kid dh lsok,sa lekIr
djus ds iwoZ izcU/kra= }kjk vkjksih ds fo:) yxk;s x;s
vkjksiksa dh tkap] tkap vf/kdkjh ls djk;h tk;sxhA
[k& tkap vf/kdkjh dk rkRi;Z izcU/kra= }kjk fu;qDr
va'kdkfyd iz/kkukpk;Z ;k fdlh ofj"B va'kdkfyd v/;kid
ls gksxkA
x& tkap vf/kdkjh dh tkap vk[;k ,oa laLrqfr ij
izcU/kra= fu.kZ; ds iwoZ izcU/kra= }kjk lEcfU/kr va'kdkfyd
v/;kid dks lquokbZ dk volj fn;k tk;sxk vkSj blds
mijkUr gh fu.kZ; fy;k tk;sxkA
?k& ;fn izcU/kr= ds fu.kZ; ls lacaf/kr va'kdkfyd
v/;kid fo{kqC/k gks] rks og bl fu.kZ; ds fo:) lacaf/kr
ftyk fo|ky; fujh{kd dks vihy izcU/kra= ds fu.kZ; izkfIr
ds nks ekg ds Hkhrj izLrqr dj ldrk gSA ftyk fo|ky;
fujh{kd dk fu.kZ; vfUre gksxkA
p& ftyk fo|ky; fujh{kd }kjk fy;s x;s fu.kZ; dk
ikyu izcU/kra= djsxkA
izcU/kra= }kjk ftyk fo|ky; fujh{kd }kjk fy;s x;s
fu.kZ; dk ikyu ugha fd;k tkrk gS rks izcU/kra= ds fo:)
m0iz0 ek/;fed f'k{kk vf/kfu;e 1921 ls lqlaxr izkfo/kkuksa
ds rgr dk;Zokgh dh tk ldsxhA
10& R;kxi=@in lekfIr%&d& ;fn dksbZ va'kdkfyd
v/;kid fdlh dkj.ko'k fo|ky; ls vyx gks uk pkgrk gS
rks og ,d ekg dh iwoZ lwpuk vFkok mlds cnys esa ,d
ekg dh ifjyfC/k;ksa dks tek djds R;kx i= ns ldrk gSA
[k& ek/;fed f'k{kk ifj"kn }kjk fo|ky; ;k mlls
fdlh fo"k; dh ekU;rk dks lekIr djus] fdlh vuqHkkx dks
lekIr djus vFkok fdlh vU; dkj.ko'k] fdlh va'kdkfyd
v/;kid dk in lekIr fd;k tk ldrk gS] rks izcU/kra=
}kjk lEcfU/kr va'kdkfyd v/;kid dks ,d ekg iwoZ lwpuk
;k mlds cnys esa ,d ekg dh ifjyfC/k;ka nsdj lsok,a
lekIr dh tk ldsxhA
'kklukns'k fuxZr gksus dh frfFk ls mDr lsok 'krsZa
izHkkoh gksaxhA

8. Paragraph 8 of the aforesaid
Government
Order
provides
for
disciplinary action against Part Time
Teacher,
paragraph
9
provides
for
termination of employment of Part Time
Teacher,
paragraph
10
deals
with
resignation/ termination of Part Time
Teacher. The present is not a case for
invoking paragraphs 8 or 9. Although in
the
counter
affidavit,
it
has
been
mentioned that there were allegations
against the male Part Time Teachers but
since learned Counsel for the respondents
clarified that there was no specific
allegation against the petitioners. In view
of the above the said submission does not
require any further scrutiny. Paragraph 10
of the aforesaid Government Order
provides that the post of Part Time
Teachers can be terminated. Clause 10
Kha of the Government Order dated
10.8.2001
provides
that
in
case
Madhyamik
Shiksha
Parishad
has
withdrawn
the
recognition
of
the
institution or any subject or any section
has been closed or for any other reason,
the post of part time teacher is to be
abolished, the Committee of Management
by giving one month's notice or by giving
one month's pay in lieu thereof can
terminate their services. Learned Counsel
for the respondents submits that the words
"fdlh vU; dkj.ko'k" used in clause Kha give
ample power to the Committee of
Management to terminate the services of a
part time teacher as and when it desires.
Clause 10 Kha, if read in the manner as
contended by learned Counsel for the
respondents shall clothe the management
arbitrary power to to terminate a part time
teacher even if there is no valid reason.
The words any other reason mentioned in
clause 10 Kha has to be read "ejusdem
generis" with other reasons as mentioned
in clause. Even if termination of a Part
Time Teacher has to be on a valid reason.
In case the submission is accepted that
any reason management can terminate the
services of a Part Time Teacher, such
clause will be clothing the Management
with arbitrary power which could be
exercised on whims or caprice of the
1 All] Sri Ram Pathak and others V. State of U.P. and others
161
management. The apex Court in the case
of The Govt. Branch Press and another
Vs. D.B. Belliappa, reported in AIR 1979
SUPREME
COURT
429
held
that
accepting the submission that services
have been terminated without any reason
shall be nothing but accepting that the
power has been exercised by the employer
arbitrarily. Following was observed in
paragraph 26:

" .......But it will be hazardous for us
to base out decision on any such
speculation, when the appellant, himself
instead of taking any such plea, has, with
obdurate persistency stuck to the position
that the respondent's service has been
terminated without any reason which
comes perilously near to admitting that
the power reserved to the employer under
the conditions of the employment, has
been exercised arbitrarily."

9. Thus, the submission of learned
Counsel for the Respondent that the
management even without reason can
terminate the services of Part Time
Teacher, cannot be accepted. In view of
the above, the order impugned cannot
sustain and hereby set aside.

10. With regard to the petitioner
No.3,
learned
Counsel
for
the
Management has submitted that the
petitioner no. 3 has accepted notice
amount without any protest and since he
has accepted the amount without any
protest, he is not entitled for any
protection. Learned counsel for the
petitioner has not been able to show any
material that the said amount was
accepted under protest. The notice amount
having been accepted by the petitioner
No. 3 without any protest, he is not
entitled for any protection and so far as
writ petition with regard to the petitioner
no. 3 is concerned, it is dismissed.
11. The writ petition is partly
allowed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.10.2007

BEFORE
THE HON'BLE (MRS.) SAROJ BALA, J.

Criminal Misc. Application No. 12908 of
1988

Smt. Shashi Mathur

...Applicant
Versus
Chief Judicial Magistrate, Bareilly and
another

...Respondents

Counsel for the Applicant:
Sri Dilip Kumar
Sri Rajiv Gupta

Counsel for the Respondents:
Sri Navin Sinha
A.G.A.

Uttar
Pradesh
Urban
Planning
&
Development Act, 1973, Section-26 (2)-
complaint
by
development
authority
Bareilly-for
contravention
of
use
of
residential
building-while
the
said
building
was
already
used
in
contravention
prior
to
the
commencement of Act-No offence made
out-proceeding quashed.

Held: Para 13

The
facts
set
out
in the Criminal
complaint
are
that
a
portion
of
residential premises of applicant was
found in use for commercial purpose at
the time of visit of the Junior Engineer of
Bareilly
Development
Authority
on
2.8.1984. The demised premises having
been let out to United India Insurance
Company prior to the notification of