M. Wahajuddin, J. - (1.) THE present respondent, namely, Narendra Mahila Vidyalaya, through its Manager brought the suit against appellant Premwati Nautiyal and others with a prayer that the order No. Samanya (1) 2670/14 -207/8 -79 dated 8.5.1978 of the Director of Education, Uttar Pradesh, addressed to the Regional inspectress of Girls Schools Pauri Garhwal, regularising the appointment of the present appellant under Section 16 -GG of the U.P. Intermediate Education Act be declared illegal, invalid and inoperative and the present appellant be also restrained by means of a permanent injunction interfering with the teaching and working programme of the institution directly or indirectly in any manner and that suit was decreed by the District Judge, Tehri Garhwal. This appeal has been preferred by the defendant No. 1 against such judgment and decree. The facts and allegations giving rise to the suit may be briefly stated first. It would appear that as per order dated 28.10.1974 of the institution the present appellant started working as a teacher in the institution, to teach Home Science in plaintiff's College. The order was made by the Manager of the institution and is contained in the respondent's paper book at page 3. The order in question is in a form of letter addressed to the present appellant. It recites that the appellant is appointed as a teacher in Home Science by the Selection Committee on temporary, basis, but this temporary appointment will be valid only on approval by the Regional Inspectress of Girls Schools, Nainital, (hereinafter referred to as R.I.G.S.') and the salary will also be paid on that authority It would appear from the order dated 17.1.1975 of R.I.G.S., (Ext. 14) at page 4 of the respondent's paper book that the R.I.G.S. informed the institution that as M.A. is a requisite qualification for a teacher in Home Science and Smt. Nautiyal, present appellant, does not possess that qualification, it is not possible to approve her appointment. The appellant, however, continued to work in the institution. She later moved an application on 19.9.1975 (Ext. 5) that she had been selected for B.Ed. course and the session was to start from 9th October, 1975, so for such course and examination orders may be passed for her 'Sewa Kaal Se Mukt'. She thereafter moved another application to the Principal of the institution on 8.7.1976 (Ext. 6) conveying that she had taken leave from 1.10.74 to 7.7.1976 and she has done her B.Ed., so she be permitted to resume work (Karya Bhar Grehan Karne Ki) from 8.7.1976. It would further appear that actually the leave taken earlier was from 1.10.75 to 30.6.76, so simultaneously she moved another application that very date to extend her leave upto 7.7.1976 and it is Ext. 7. The order passed is again important and may arise for interpretation. It is Ext. A -3 at page 22 of the respondent's paper book. I may add that hereinafter whenever I refer to the pages of the paper book it would be relating to respondent's paper book, unless I expressly mention appellant's paper book. The order passed by the Manager referring to the aforesaid application of the appellant states that the appellant is permitted to work as Home Science Teacher upto 30th September, 1976, and in between the appellant will be bound by any instructions received from the Education Department, concerning filling of the vacancy. It would appear that on 8.8.1977 a notice was given by the Manager of the Society to the appellant referring to a letter dated, 13.7.1977 of R.I.G.S. that the appellant is not qualified for the post of Home Science teacher and the services of the appellant were terminated with effect from 8.9.1977. Another letter was addressed to the appellant by the Manager on 12.8.1977 (Ext. A -15) paper No. 27 of the paper book referring to the notice given earlier and stating that from 8.9.1977 the name of the appellant is removed from the roll of teachers and she would not be getting any pay from 9.9.1977. There is also a resolution of the Committee of Management of the institution (Ext. 11) to the effect that the services of Smt. Nautiyal, present appellant, from the post of Home Science teacher be terminated immediately and the Manager may give her one month's notice. It is paper No. 28 of the paper book. A resolution to that effect is paper No. 24. There is one more circumstance in this connection, namely, that a letter of R.I.G.S. dated 16.7.1977 was addressed to the Manager of the institution stating that Smt. Nautiyal is not qualified for the post and fresh application be invited and the R.I.G.S. be informed concerning the decision taken in the matter. Page 29 of the paper book (Ext. B -7) dated. 12.7.1977) would indicate that only the appellant appeared for the post and she was not found fit and none others appeared. This may be relevant to indicate that fresh applications for the post were entertained by the institution. There is another order dated, 17.8.1977 on this subject addressed by the R.I.G.S. to the Manager (Ext. A -5) on the record itself. Besides referring to certain other matters and also regarding payment of salary, it is stated in paragraph 4 that vide application dated 8.8.1977 Smt. Nautiyal has informed that she has been given a notice of termination of service, though direction given was that any action concerning termination of services may not be taken until a final decision is taken in her matter. There is a further order of the Director of Education dated 8.5.1978, which is the impugned order (Ex. 4), page 8 of the paper book. This letter is addressed by the Director of Education to the R.I.G.S. and referring to the letter's latter. It is conveyed that Smt. Nautiyal after obtaining full qualification has continued work from July 1976, and she is, therefore, entitled to the benefits of Section 16 -GG. This was communicated for further actions and copy of this order was also endorsed to the Manager of the institution. I have laid down the above facts at the very outset, as they may help in appreciation of the points involved in this appeal.
(2.) THE respective parties in support of their stand in the suit took various pleas in the plaint and the written statement. The trial court framed as many as 7 issues in the suit, which I may lay down here, as from them the pleas that arose for consideration before the trial court will become abundantly clear: - - (1) Whether the appointment of defendant No. 1 made by the plaintiff in the year 1974 was purely temporary? If so, its effect? (2) Whether the defendant No. 1 was appointed on ad hoc basis as alleged by her and whether her services were subsequently validly regularised by defendant No. 2? (3) Whether defendant No. 2 had a right to regularise the services of defendant No. 1. If so, its effect? (4) Whether the civil court has no jurisdiction to entertain and try the suit as alleged by defendant No. 2 on account of the bar of Section 16G(4) of U.P. Intermediate Education Act? (5) Whether the services of defendant No. 1 were validly terminated by the plaintiff on 8.9.1977? If so, its effect? (6) Whether the resumption of duty by defendant No. 1 after return from leave amounts to a new appointment as alleged by her? (7) To what relief, if any, is the plaintiff entitled? The trial court on issue No. 1 held that appointment of the appellant was temporary and the matter whether her salary was paid cut of the funds of Maharaja Nerendra Shah Trust or from the maintenance fund of the College is immaterial. Issues Nos. 2, 3 and 6 were all disposed of together and the trial court after considering the matter thread bare held that the Director of Education has no right to regularise the services of defendant No. 1, the present appellant, and, as such, the order of the Director of Education is not binding on the Management of the College or the court and the resumption of duty by defendant No. 1 on return from leave did not amount to new appointment. On issue No. 5 it held that the services of defendant No. 1 were validly terminated. On issue No. 4 it found that the civil court has jurisdiction to proceed with the matter and on issue No. 7 it found that the plaintiff is entitled to the reliefs.
(3.) ALL these findings are assailed in the grounds of appeal and a number of arguments have been advanced. For a proper approach to the matter, the first point that may arise for consideration is what was the nature of the appellant's appointment and what is or has been her status in this regard. The provisions of Intermediate Education Act would be relevant in that connection. Section 16 -E(2) lays down the procedure for selection of a candidate for appointment as a teacher in the institution. Sub -clause (3) provides that no person shall be so appointed as teacher, unless he possesses the minimum qualifications prescribed by the regulations. Of course, there is a further provision for exemption granted by the Board, but in this case no exemption is claimed by any side. The appointment of the appellant was made on October 28, 1947. A perusal of the Intermediate Education Act, 1921, and the regulations framed under that Act would show that as per provisions then enforced the approval of the Inspector of Schools had to be obtained concerning the appointment under Section 16 -F. The approval was also sought, but the R.I.G.S. declined to give approval for this appointment, because the teacher was not possessed of the requisite qualification. I have already referred to that order of 16th January 1975, of the R.I.G.S. The Division Bench Case of A.K. Pathshala v. M.D. Agnihotri, 1971 A.L.J. 983, is an authority for the proposition that Section 16 -F(1) of the U.P. Intermediate Education Act, 1921, is mandatory and an appointment of a Principal of the institution and, consequently, in the like manner appointment of a teacher of the institution without prior approval of the concerned authority no appointment at all in the present case of R.I.G.S., is in the eye of law no appointment at all. It will be found to have been discussed in paragraph 11 of the pronouncement.;