- (1.) R. B. Mehrotra, J. Both the above writ petitions are connected with each other. Writ Petition No. 14321 of 1985 is pending for admission hearing and even after giving sufficient notice to respondent No 2 and 3 no counter affidavit has been filed by them. No counter affidavit has been filed even on behalf of District Inspector of Schools. Since 1987, time has been given repea tedly to respondents but no counter affidavit has been filed. Finally on 17-9-1991, one month's time was given to respondent No. 2 and 3 lot filing counter affidavit. For the disposal of Writ No. 14321/85 it is essential to dispose of Writ Petition No. 11602 of 1984. Under the above circumstances both writ petitions, with the consent of learned counsel for parties and as per rules of High Court, are being disposed of together and writ petition No. 14321 of 1985 is being disposed of finally at the stage of admission. Writ Petition No. 11062 of 1984 has been filed by Committee of Management of Maharaja Agrasen Inter College. In the said writ petition, learned counsel for the peti tioner Sri S. N. Shukla submitted that said writ petition has become infructuous and be dismissed accordingly. In the said petition, order dated 29-8-1984 of District inspector of Schools filed as Annexure 14 has been challenged. By the said order, District Inspector of Schools exercising his powers under Sec tion 5 (1) of U. P. High School and intermediate Colleges (Payment of Salary of Teachers and the Employees) Act, 1971 (Act No. 24/71) has directed single operation of account of College on the ground that Sri Kailash Chandra Srivastava, Physics Demonstrator, has wrongly been restrained from taking over the charge. It is contention of the learned counsel for the petitioner that since Kailash Chandra Srivastava, has already retired and said writ petition has become infructuous on this very ground, hence he does not want to press it.
(2.) ABOUT Writ Petition No. 14321 of 1985 filed by Shri Kailash Chandra Srivastava in which Managing Committee and Principal of the College have been made as respondent No. 2 and 3, Shri S. N. Shukia submitted that he has received no instructions on behalf of respondent No. 2 and 3 for opposing the petition and he has not filed any Vakalatnama in the said petition, therefore, he is not in a position to oppose the same. On behalf of District Inspector of Schools no counter affidavit has been filed. From the order sheet of above petition, it is clear that respondents were given time on several occasions for filing counter Affidavit and respondents have sufficient notice even then the Writ Petition was not at all opposed. In the above circum stances, there is no reason for not believing the facts narrated in Writ Peti tion. For decision of the Writ Petition the following are essential notable facts : Petitioner Sri K. C. Srivastava was appointed on a post in Physics Department of Maharaja Agrasen Intermediate College, Doeria in 1964. In 1978-79 he was given selection Grade. In 1981 the petitioner became ill and on 18-9-1981 he gave an application for leave to the Principal of the College on the basis of illness but the Principal of the College neither gave reply to the petitioner about the aforesaid application nor informed him that his application has been rejected. Since illness of the petitioner continued accordingly on 26-9-1981 he gave another application for leave on the ground of illness. The Committee of Management of the College also did not give any information to the petitioner about the said application. The petitioner could not be present in the College on account of illness. On 5-1-1982 the Principal of the College informed the petitioner through a letter that on 23-12-1981 he was absent and on 1-1-1982 he came to the College after prolong absence from 4-10-1981 to 30-12-1981. He signed on the Attendance Register without permission of the Management. Whereas on 23-12-1981 also he made a signature when on that date he was marked as absent in the Attendance Register and he sent another application for leave for the period of 4-1-1982 to 18-1-1982. On the aforesaid basis the Principal of the College informed the petitioner that perhaps the petitioner was not in a position to continue his services in the College. Hence the management of the College wants to know about the aforesaid circumstances, so that arrangement for teaching in the College may be made, in place of the petitioner. That letter is filed as Annexure 1 in the petition. In reply to the aforesaid letter the petitioner informed the Principal of the College on 9-1-1982 that on account of illness he was unable to dis charge his duties from 29-9-1981 and despite complete inability the Principal of the College pressed him to resume duty vide his letter, dated 19-10-1981 The petitioner also informed through the said letter that even during illness he worked in the College in order to comply the order of the Principal of the College but his health did not permit him due to which he was compelled to take leave again and required the management to consider his case sympa thetically because of his illness. On 18-1-1982 the petitioner again gave an application to the Principal of the College for grant of leave on the ground of illness. On the basis of that application the petitioner was granted leave and in the leave vacancy Vinod Kumar Misra was temporarily appointed as Assistant Teacher in C. T. Grade in Physics Department. This fact is clear from the letter, dated 11-11-1982 of the Joint Secretary which is marked as Exhibit 4 in the writ petition. Thereafter the District Inspector of Schools vide his letter, dated 2-9-1982 approved the appointment of Vinod Kumar Misra made against leave vacancy. Contention of the petitioner is that the College is treating him on leave and on that basis Sri Vinod Kumar Misra was appointed against leave vacancy in his absence. The peti tioner stated that due to prolonged illness and family feud he lost his mental balance and due to the aforesaid reasons the petitioner could not work in the College for 3 years. Thereafter on 17-2-1984 the petitioner being fit requested the Manager/principal of the College to permit him to resume his duty. The Principal of the College did not permit the petitioner to resume duty. With the result the petitioner approached the District Inspector of Schools in that connection. The District Inspector of Schools vide his letter, dated 21-1-1984 intimated the Principal of the College that the petitioner be permitted to resume duty. In compliance of that order the petitioner moved an applica tion to the Manager/principal on 4 4-1984 and made a request that he should be permitted to resume duty but in spite of the order of the District Inspector of Schools the Management and the Principal of the College did not permit the petitioner to resume duty. The College was closed in May and June on account of Summer Vacation and it was re- opened on July 9, 1984 and then teaching work started in the College. The petitioner again went to the College for discharging his duty but he was not allowed to do so. Thereafter on 15-7-1984 the petitioner was informed by the Manager of the College that in the meeting of the Committee of Management, dated 30-6-1984 after due discussions it has been decided that being absent for about 2 1/2 years without information he has himself abandoned the service. In view of this situation no question of allowing the petitioner to resume duty arises. Alongwith the aforesaid letter a resolution of the Committee of Management, dated 30-6-1984 was also enclosed. The Committee of Management took a decision on the application of the petitioner, dated 17-2-1984 that being absent from 23-10-1981 to 17- 2-1984 from the College the Petitioner has himself abandon ed his service. In the aforesaid situation he made a representation to the District Inspector of Schools on 16-10-1984 and made him aware of all the facts. The District Inspector of Schools vide his letter, dated 11-7-1984 informed the Manager of the College that direction given in his letter dated 31-3-1984 is not being complied upon by the Management of the College so far, by not allowing the petitioner to resume his duty whereas the petitioner is a permanent teacher. Accordingly the District Inspector of Schools again directed that if the petitioner was not permitted to resume duty within a [week the then he shall be compelled to take action under Payment of Salaries Act. Being aggrieved by the aforesaid order the Management filed Writ Petition No. 10091 of 1984 in the said writ petition whereas application of the Committee of Management for grant of interim relief was rejected by this Court vide Judgment, dated 12-9-1981 and the Writ Petition itself was dis missed on 12-9-1988 having become infructuous. In reply to show cause notice the Committee of Management informed the District Inspector of Schools that against show cause notice given in connection with the absence of untraceable teacher Sri Kailash Chandra Srivastava the Management has filed a writ petition in the High Court. Therefore till further order of the High Court no action should be taken in connection with show cause notice. The District Inspector of Schools was not satisfied with the answers of the Committee of Management and vide order dated, 29-7-1984 he passed order of single operation of account in the College on the ground that the manage ment of the College was illegally obstructing Sri Kailash Chandra Srivastava from taking over the charge. The Committee of Management has challenged the said order of the District Inspector of Schools in Writ Petition No. 11602/ 1984 and on 6-9-1984 this Court has stayed the operation of the order of District Inspector of Schools. Writ Petition No. 11602 of 1984 has been admitted by Division Bench of this Court and it is pending in this Court in the same position since 1984. The learned Counsel for the Committee of Management has today prayed for dismissal of the aforesaid Writ Petition having become infructuous as has already been mentioned earlier in the judgement. In the aforesaid Writ Petition an application was filed on behalf of District Inspector of Schools and it was mentioned therein that counter affidavit which has been filed by the District Inspector of Schools in Writ Petition No. 10091 of 1984, the same counter affidavit be accepted as filed on behalf, in this petition, of District Inspector of Schools. The counter affidavit is not available in the file but the learned counsel for the Committee of Management in his fairnes, has shown me copy of that counter affidavit in which it has been mentioned that counter affidavit in the Writ Petition No. 10091 of 1984 be read with Writ Petition No. 11602 of 1984. In tho counter affidavit filed on behalf of the District Inspector of Schools in Writ Petition No. 10091 of 1984 this allegations of the Committee of Management has been refused that Sri Kailash Chandra Srivastava was absent from college without any applica tion for leave and the fact that Sri Kailash Chandra Srivastava did not come to college to resume duty has also been rebutted. The District Inspec tor of Schools has mentioned in his counter affidavit that Sri Kailash Chandra Srivastava had given application for leave on which the Committee of Manage ment did not give any information to Sri Kailash Chandra Srivastava. But from the 'entire circumstances it is clear that in the absence of Sri Kailash Chandra Srivastava the post was being treated only as a leave vacancy. In that position the vacancy created on account of illness of Sri Kailash Chandra Srivastava was only a leave vacancy.
(3.) FROM the appraisal of the entire facts it is clear that in no situation the Management of the College has taken any action till today about terminat ing the services of Sri Kailash Chandra Srivastava. The resolution, dated 30-6-1984 passed by the Committee of Management of the College was com pletely illegal and violate clear provisions of Section 21 of U. P. Secondary Education Service Commission and Selection Board Act No. 1982 (Act No. 5/82 ). In the aforesaid Section it has been provided that services of any teacher of Secondary School cannot be terminated without prior approval of Service Commission or Selection Board. The order of the Committee of Management of the College terminating the services of the petitioner was completely illegal and in violation of Section 21 of Act No. 5/82. Accordingly that resolution was void and services of the petitioner not effected by the said resolution. It is clear from the entire facts mentioned in the Writ Petition that despite repeated letters of the District Inspector of Schools the Committee of the Management of the College illegally obstructed the petitioner from working from 17-7-1984. From the entire situation it is clear that in any situation the Committee of the Management of the College has not taken any action about termination of the services of the petitioner and resolution of the Committee of the Management o f the College that the petitioner has himself abandoned his services is completely illegal and incorrect and was in clear violation of Section 21 of Act No. 5/82 and said resolution did not effect services of the petitioner in any manner.;