K.N.Misra, J. - (1.) Opposite party No. 2, Sri Banshi was appointed as Jamadar in the institution, Higher Secondary School, Itari, district Sitapur by the Principal of the said institution with effect from 1st April, 1973 on regular basis. Opposite party No. 2 proceeded on three days leave on 19th May, 1977, but after expiry of leave period he did not report for duty and was not available. It has been averred in paragraph No. 3 of the writ petition that he was rather absconding due to his involvement in some case of the nature of moral turpitude. On 25th May, 1977 a notice was issued by the Principal to opposite party No. 2 pointing out that he is absent from duty. He was required to resume his duties latest by 31st May, 1977. This notice was sent by post to opposite party No. 2 at his address available in the record of the petitioner institution. A copy of this notice has been annexed as Annexure No. 1 to the writ petition. Opposite Party No. 2, however did not report for duty on 31st May, 1977 and, thus, another notice was issued by the Principal to him on 2nd June, 1977 requiring him to report for duty by 7th June, 1977 vide Annexure No. 2 Opposite Party No. 2 did not join duties in pursuance of the notice contained in Annexure No. 2 and again the Principal of the institution issued a notice to opposite party No. 2 to resume his duties by 11th June, 1977. It is averred that this notice was sent through peon of the institution, who reported that opposite party No. 2 refused to take the notice. It is also averred that as per the directions of the Principal the said notice was pasted on the door of the residential house of opposite party No 2. Opposite party No. 2 however, did not join failed and to attend to his duties. Thereupon an order was passed by the Principal on 8th July, 1977 terminating the services of opposite party No. 2 as he was absent from duties from 1st June, 1977. This order was passed by the Principal, who was the appointing authority of Class IV employees of the institution. It appears that the opposite party No. 2 made a representation to the District In sector of Schools on 19th September, 1977 challenging the order of the termination of his services by the Principal of the said institution. The District Inspector of Schools (for short the D.I.O.S.) vide order dated 5th December, 1977 (Annexure No 6) ordered that opposite party No. 2 Sri Banshi Lal be taken in employment in R.B.S.B Inter College, Kamlapur, district Sitapur as in the petitioner institution no post was lying vacant. It may be noticed that on the termination of the services of opposite party No. 2 the Principal had appointed one Sri Kallu, opposite party No. 3 in place of Sri Banshi who is working ever since 1977 on the post of Jamadar in the institution. Opposite party No. 2 has averred in the counter affidavit that when he went to joint in the institution R.B.L B. Inter College, Kamlapur, district Sitapur, he was told that there was no vacancy and he cannot be taken in employment. It appears that the D O.S., on being appraised of said fact, proceeded to consider the representation of opposite party No. 2 again and he allowed the representation vide order dated 1st March, 1978, contained in Annexure No. 7 to the writ petition. It was ordered that Sri Banshi be taken in employment from 1st March, 1978 or from such date on which he may join the institution and from that date he will be entitled to get his salary It was further ordered that Sri Banshi would be deemed to be on leave without pay from 1st June, 1977 to 5th December, 1977. It was further ordered that opposite party No. 3, who was appointed in place of Sri Banshi would cease to be an employee of the institution with effect from 1st March, 1978 or from such date on which Sri Banshi may join his duties. Aggrieved by this order, the petitioner has filed the present writ petition.
(2.) We have heard the learned counsel for the parties at some length and have perused the averments contained in the writ petition and in the counter and rejoinder affidavits. We have also gone through the impugned order passed by the D I.O.S.
(3.) Learned counsel for the petitioner Sri Mannan urged that opposite party No. 1, having once passed an order dated 5-12-1977 on the representation of opposite No. 2, had no jurisdiction to review the order and proceed to pass another order. He urged that the impugned order dated 1st March, 1978, contained in Annexure No. 7, is illegal and without jurisdiction and deserves to be quashed. He urged that since opposite party No. 2 was absconding, and, as such, the provisions of sub-clause (1) of Regulation No. 36 would not apply in the present case and the order dated 8th July, 1977 is removal of opposite party No. 2 from services was validly passed. In support of his contention he referred to sub-clause (2) of Regulation 36 which provides that clause (1) shall not apply where the person concerned has absconded, or where it is for other reasons impracticable to communicate with him. Learned counsel for opposite party No. 2 Sri R. K. Singh urged that no disciplinary proceedings were initiated against opposite party No. 2 as was required under Regulation 36 (1), contained in Chapter III of the U. P. Education Manual, and, as such, the order of termination of services of opposite party No. 2 is per se illegal and the same has been rightly quashed by the D I.O.S. He urged that opposite party No. 2 would not be treated to be absconding and he was not served with any notice. The entire procedure adopted by petitioner in removing him from services is per se illegal, and, as such, no interference is called for with the impugned order passed by the DIOS., who allowed the representation filed by opposite party No. He contended that the procedure prescribed under Regulations 31 to 37 was applicable to Class IV employees in the institution but it has been violated.;