- (1.) ASHOK Bhushan, J. We have heard Sri ASHOK Khare, Senior Advocate assisted by Sri P. N. Ojha, learned Counsels appearing for the appellant and Sri A. P. Sahi and Sri R. S. Singh, the learned Counsels appearing for the respondent Committee of Management.
(2.) THE Special Appeal has been filed by the appellant challenging the judgment dated 5-12-2002 passed by the learned single Judge in Civil Misc. Writ Petition No. 37030 of 2002, Sushil Kumar Dwivedi v. Basic Shiksha Adhikari, Banda and others, dismissing the writ petition filed by the appellant. Facts giving rise to this Special Appeal briefly stated are: Tilhar Junior High School, Oran District Banda is a recognised Junior High School. A post of Head Master in the institution fell vacant for which an advertisement was issued by the Management dated 2-10- 1994. The appellant applied in pursuance of the said advertisement and was selected for appointment as Head Master and appointment order dated 25-11-1994 was issued in favour of the appellant in pursuance of which he claims to have joined on 1-12- 1994. The appellant also claims that the appointment of the appellant was approved by the District Basic Education Officer, vide his order dated 10-3-1995. The institution was not receiving grant in aid and was brought on the grant in aid with effect from 1-12-1998. After the institution being taken on grant in aid it appears that the appellant was not paid his salary and he filed a Writ Petition No. 44443 of 1999 in this Court which was disposed of by this Court vide its order dated 4-10- 1999 directing the District Basic Education Officer to decide the representation of the petitioner. The order of single operation was passed thereafter. The appellant claimed that he was paid salary till August, 2001. The committee of management passed resolution on 4-3-2002 for terminating the services of the appellant, copy of which was sent to Basic Shiksha Adhikari for approval. The Basic Shiksha Adhikari issued notice to the appellant dated 15-4-2002. A three member Enquiry Committee was appointed by the District Basic Education Officer, the notice of which was also given to the appellant but he did not appear and sought for adjournment on several dates. The Basic Shiksha Adhikari on 19-8-2002 granted approval to the resolution of the committee of management terminating the services of the appellant. The Civil Misc. Writ Petition No. 37030 of 2002 was filed by the appellant challenging the order of the Basic Shiksha Adhikari dated 19-8-2002 as well as the resolution of the Committee of Management dated 4-3-2002 which was dismissed by the Court on 5-12-2002 against which the present Special Appeal has been filed. The learned Counsel appearing for the appellant has raised following submission in support of this appeal: " (1) The orders impugned in the writ petition were liable to be set aside on the ground of violation of principles of natural justice since no enquiry was held in accordance with the procedure prescribed and no hearing was given to the appellant either by the management or by the Basic Shiksha Adhikari. (2) That although the appellant at the time of his initial appointment did not possess three years teaching experience and was also below 25 years of age but by passage of time he had acquired the said qualifications and it is not open to the committee of management to terminate the services of the appellant at this stage. The non-fulfilment of the aforesaid qualifications at best were only irregularities and by passage of time they stood cured. (3) Assuming that the appointment of the appellant was void even then action for cancellation of such appointment could have taken place only within reasonable period and not after lapse of eight years.
(3.) LEARNED Counsel for the appellant in support of the aforesaid submissions have also placed reliance on various decisions of the apex Court and this Court which will be referred while considering the respective submissions. The Counsel appearing for the committee of management contended that the appointment of the appellant was contrary to statutory rules. The appellant had not even attained the minimum age required for appointment at the time when he was appointed and further he lacked minimum qualification, hence the appointment was void and no illegality has been committed by the committee of management in terminating the services of the appellant. It has further been contended that opportunity was given to the appellant both by the committee of management and the Basic Shiksha Adhikari but the same was not availed of by the appellant. The three member enquiry committee appointed by the Basic Shiksha Adhikari was only for the purposes of assisting the Basic Shiksha Adhikari in taking decision on the resolution of the committee of management. The Basic Shiksha Adhikari has not abdicated his jurisdiction in favour of the committee of management.;