Om Prakash - (1.) BY the order dated 1st September, 1973, (Annexure to the writ petition) the petitioner was appointed as Assiststan Teacher in J. T. C. grade till 30th June 1974 Admittedly, he continued in service after that date till the date of termination without there being any fresh appointment letter. The petitioner admittedly, remained absent on 19th September, 1975, from the school. There upon a charge-sheet dated 24th November, 1975, (Annexure '5' to the writ petition) was caused to be served upon the petitioner by the Management stating : (1) that the petitioner remained absent from the School without any permission on 19th September, 1975. (2) that he refused to accept the suspension order dated 20th September, 1975, and again left the institution on that date without permission, (3) that he misrepresented to the higher authorities in the statement dated 29th September, 1975 that application for leave for one day, i.e. 19th September 1975, had been sent by him on the same day by post, which in fact was not received in the institution; and (4 that he irresponsibly manipulated the attendance register showing some students, who were absent between 15 to 24, as having remained present.
(2.) THE petitioner furnished his reply dated 11th December, 1975 (Annexure '6' to the writ petition) to such charge-sheet. Having considered the reply and having observed that despite opportunity having been given, the petitioner failed to appear before the inquiring authority and produce any material in support of his defence, the respondents terminated the services of the petitioner by order dated 25th May, 1976 (Annexure '7' to the writ petition). THEre after, the petitioner had made representations to the respondent no. 4 that his services could not have been terminated, without prior approval from the Educational Authorities, which too were rejected by the respondent no. 4 with the observations that at the relevant time there was no rule for seeking prior approval. THE petitioner, therefore, seeks quashing of the termination order (Annexure '7' to the writ petition) and the orders dated 21-3-1978 and 22-9-1979 (Annexures '10' and '15' to the writ petition) passed by the respondent no. 4. The petitioner has challenged the termination order mainly on the grounds : (i) that he was a primary teacher and was, therefore, governed by the U. P. Recognised Basic School (Recruitment and Condition of service of Teachers and other Conditions) Rules, 1975 (for short 'the Rules, 1975') rule 11 of which states that no primary teacher can be removed from service by Management, without taking prior. approval of the District Basic Shiksha Adhikari, and since no approval was obtained from the respondent no. 4 the termination order is liable to be quashed; (ii) that the respondent no. 1 is an aided institution and hence it cannot arbitrarily terminate the services of the petitioner indisregard to the directions issued by the Education Department time to time; and (iii) that as he continued in service after 30th June, 1974, without any appointment letter, he would be deemed to have been confirmed in the service and, therefore, his services cannot be terminated arbitrarily. In the counter-affidavit filed on behalf of the Management, it is stated that the petitioner was appointed by the letter dated 1st September, 1973, (Annexure '1' to the writ petition) purely on temporary basis as a teacher of junior High School to teach classes VI to VIII and, therefore, the Rules of 1975, which are applicable to primary school teachers, are not applicable to the petitioner, who was appointed as an Assistant Teacher in junior high school. It is contended that the petitioner being a teacher in junior high school is governed by U. P. Basic Education Act. 1972 (briefly, 'the Act, 1972') where under Rules were framed for the first time in the year 1978. It is averred that prior to 1978 there were no Rules governing the service of the petitioner and there was pure and simple relationship of master and servant between the petitioner and the Management till then and, therefore, the petitioner's services were at the pleasure of the Management and could have been terminated at any time. It is denied that the petitioner was ever confirmed in service and that the respondent is amenable to writ jurisdiction.
(3.) ON these pleadings the questions for consideration are : (a) whether by the letter dated 1st September, 1973 (Annexure '1' to the writ petition) the petitioner was appointed as a primary teacher or as a teacher of junior high school to teach classes VI to VIII; (b) whether there were any statutory rules governing the services of the teachers in the aided school prior to 1978, if so, whether the respondent can be subjected to writ jurisdiction ; and (c) whether the petitioner was ever confirmed in service ? To answer the first question a bare perusal of the pleadings is sufficient. In paragraph 7 of the counter-affidavit it is stated that the institution, respondent no. 1, in which the petitioner was appointed by the letter dated 1st September, 1973, is a junior high school and it has a primary section as well. However, it is categorically averred in the counter-affidavit that the petitioner was engaged as a junior high school teacher to take up classes VI to VIII. In paragraph 7 of the supplementary-rejoinder-affidavit the petitioner states : . .the president of the school used to get the signature of the petitioner on attendance register and also on the salary bill payable to the junior high school teachers but was paying the salary to the petitioner only of the scale payable to the primary school teachers." From this averment it is manifest that the petitioner has signed the attendance register and the pay bills relating the junior high school teachers and, therefore, the contention of the respondent that the petitioner was appointed as a junior high school teacher has to be accepted.;