KAILASH NATH HARBOLA Vs. ADDITIONAL DIRECTOR
LAWS(UTN)-2013-7-102
HIGH COURT OF UTTARAKHAND
Decided on July 25,2013

Kailash Nath Harbola Appellant
VERSUS
ADDITIONAL DIRECTOR Respondents

JUDGEMENT

Sudhanshu Dhulia, J. - (1.) HEARD Mr. Manoj Tiwari, Senior Advocate assisted by Mr. Alok Mahra, Advocate for the petitioner, Mr. K.P. Upadhyaya, Chief Standing Counsel for the State of Uttarakhand, Mr. Rajendra Dobhal, Senior Advocate for respondent No. 7 and Mr. Pradeep Hairiya, Advocate for respondent No. 6.
(2.) THE petitioner was appointed as a Lecturer in a grant -in -aid private school known as "Adarsh Inter College", Suraikhet (Bitholi), District Almora on 03.11.1979. In the year 1985 he remained absent from his duties for a considerable period. The reasons for remaining absent from duty are still unknown. A resolution was passed therefore on 23.12.1986 by the Committee of Management of the school that the petitioner be removed from service w.e.f. 10.11.1985. This resolution was sent to the Service Commission for approval, as required at the relevant time in the State of Uttar Pradesh, which was subsequently approved by the Commission after a period of 10 years i.e." on 28.6.1996. Thereafter the petitioner's services were terminated by the Committee of Management on 31.07.1996 w.e.f. 10.11.1985. The Committee of Management earlier vide its resolution dated 23.12.1986 had came to the conclusion that there are serious charges against the petitioner and the petitioner is not prepared to face an enquiry and therefore his services were terminated. Against the order dated 23.12.1986 petitioner never approached any court for redressal of his grievance. He, however, filed a writ petition against the "approval" of his termination in the year 1996, i.e. ten years later before the High Court of Judicature at Allahabad and after the creation of new State of Uttarakhand, the writ petition stood transferred before this Court under Section 35 of the U.P. Reorganization Act and re -numbered as WPSS No. 4089/2001. The learned Single Judge of this Court heard this writ petition No. 4089/2001 (S/S) finally in the year 2006 and came to the conclusion that under Section 21 of the U.P. Secondary Education (Services Selection Boards) Act, 1982 (which was applicable to the petitioner) it was mandatory for the Committee of Management to take an approval from the Commission/Board before terminating the services of the petitioner. Section 21 reads as under: - "21. Restriction on dismissal etc. of teachers. - The Management shall not, except with the prior approval of the Board dismiss any teacher or remove him from service, or serve on him any notice of removal from service, or reduce him in rank or reduce his emoluments or withhold his increment for any period (whether temporarily or permanently) and any such thing done without such prior approval shall be void." The learned Single of this Court, before whom the case was argued, hence came to the conclusion that since the approval was mandatory and there was no approval of the Board under Section 21 of the Act, before terminating the services of the petitioner, the writ petition was allowed on 19.7.2006. The relevant portion of order dated 19.7.2006 reads as under: "3. The dismissal order of the petitioner has been passed on 10.12.1992 w.e.f. 10.11.1985 which is without prior approval of the Commission ' Board as required under Section 21 of U.P. Secondary Education (Services Selection Boards) Act, 1982 which prescribes restriction on dismissal of teachers. Section 21 is reproduced as under: 21. Restriction on dismissal etc. of teachers. - The Management shall not, except with the prior approval of the Board dismiss any teacher or remove him from service, or serve on him any notice of removal from service, or reduce him in rank or reduce his emoluments or withhold his increment for any period (whether temporarily or permanently) and any such thing done without such prior approval shall be void." THIS section specifically provides that the order passed dismissing a teacher from service without such prior approval shall be void. It is not in dispute that the Board's approval was obtained on 15.07.1996 (Annexure -15 to the writ petition) but it was not prior approval. Therefore, in view of Section 21 of U.P. Secondary Education (Services Selection Boards) Act, 1982teh order of termination is void. Once the order is itself void by operation of law, no order is required to quash the same as it is non est."
(3.) This decision of the learned Single Judge was challenged before the Division Bench of this Court in Special Appeal No. 80/2006, which was disposed of on 16.11.2006 and the Division Bench remanded the matter for fresh hearing. The order of the division bench reads as under: - "8. True, the impugned order is founded on the solitary ground of absence of prior approval under Section 21 of the Act and the other grounds by the petitioner in the writ petition have not been examined. 9. On due consideration of the rival submissions of the learned counsel for the parties and the grounds raised by the writ petitioner in the writ petition for challenging the impugned order of his termination, we are of the opinion that the matter deserves to be remanded for a fresh hearing of the writ petition on all the grounds raised by the petitioner in the writ petition. 10. For the foregoing reasons, the judgment dated 19.07.2006 is hereby set aside and the matter is remanded for fresh hearing of the writ petition.";


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