Devi Prasad Singh, J. - (1.) PETITION under Article 226 of the Constitution of India has been preferred against the order of termination of service passed by the opposite party No. 2, who is the Manager of a Government aided private college. The validity of the impugned order passed by the Manager of an Institution has been questioned on various grounds by the petitioner's counsel. One important question of law involved is, as to whether a writ petition under Article 226 of the Constitution of India is maintainable against an order passed by the Manager or office bearer of a private institution receiving grant-in-aid more so when controversy involves disputed question of facts? The brief facts of the present case are as under :
(2.) LAL Bahadur Shastri Uchchattar Madhyamik Krishi Vidyalaya, Veerganj, Bahraich (in short hereinafter referred as institution) is an institution constituted under U. P. Intermediate Education Act and Regulations framed thereunder. The institution is managed by a society registered under the Societies' Registration Act. The society is governed by its own byelaws. The right and duties of the office bearers and members of the Committee of Management is also governed by the byelaws of the society. Admittedly, institution in question is receiving the grant-in-aid from the State Government. The salary to the teachers and staff is being paid from the grant-in-aid provided by the State Government in accordance to provisions contained in U. P. High School and Intermediate Colleges (Payment of Salary of Teachers and other Employees) Act, 1971 (in short hereinafter referred as Payment of Salary Act) and Rules namely U. P. High School and Intermediate Colleges (Payment of Salary of Teachers and other Employees) Rules, 1993 (in short hereinafter referred as Payment of Salary Rules). According to the petitioner, he was appointed as a clerk in the institution in question against a clear and permanent vacancy in substantive capacity by an order dated 23.12.1981. He was placed on probation for a period of one year. Copy of the appointment letter issued by the Manager of the institution in question has been filed as Annexure-1 to the writ petition. According to the petitioner's counsel the petitioner's services were dispensed with by an order dated 29.12.1982, passed by the opposite party No. 2, who is the Manager of the institution in question. Copy of order of termination of service has been filed as Annexure-2 to the writ petition. Though, the petitioner claims that he was appointed on substantive post but the order of termination as contained in Annexure-2 to the writ petition shows that petitioner was appointed for the period of one year by an order dated 23.12.1981. The Committee has not extended petitioner's services. The order of termination also shows that petitioner's appointment was made on the post of Library Clerk. According to reasons assigned in the impugned order of termination petitioner was appointed against the reserve vacancy of Scheduled Caste category and since he was appointed against the reserve vacancy through stop gap arrangement his services were terminated to facilitate regular appointment on the post in question. The impugned order of termination also provides that in case while proceeding with regular appointment no candidate from Scheduled Caste turns up, it could be filled up from the General Category for which petitioner may move a fresh application. When in the counter-affidavit the condition enumerated in the appointment letter contained in Annexure-1 was disputed petitioner had filed the copy of the alleged original appointment letter as Annexure-R-2 to the rejoinder-affidavit.
(3.) ON the other hand while defending the impugned order the opposite party Nos. 2 and 3 came forward with the case that appointment of the petitioner was purely a stop gap arrangement against reserve vacancy. The copy of appointment letter filed as Annexure-1 is not the correct one and is outcome of fraud. According to respondents the original appointment letter has been filed as Annexure-CA2 with the counter-affidavit dated 14.11.1983 which shows that one Ram Naresh Misra was appointed on the post of Head Clerk for the period of one year on probation and petitioner was appointed through stop gap arrangement against the reserve vacancy of Scheduled Caste on account of fact that persons belonging to Scheduled Caste category were not available. An appointment letter dated 21.10.1981 alleged to have been issued appointing Ram Naresh Misra as Head Clerk against regular vacancy on probation and the petitioner was appointed against a vacancy reserved for Scheduled Caste category as appears from Annexure-2 to the counter-affidavit. During the course of argument learned counsel for the petitioner Dr. L. P. Misra, invited attention of this Court towards the fact that advertisement filed by the respondents in their affidavits in two counter-affidavits dated 14.11.1983 and 27.7.1998 filed as Annexures-C9 and B1 are not identical and suffer from material difference. It has also been submitted that a true typed copy of the appointment letter filed with the writ petition as Annexure-1 is the correct one and its original appointment letter has been filed as Annexure-R2 to the rejoinder-affidavit. Annexure-R2 has been written in own hand writing by the then Principal Sri R. P. Srivastava. It has also been submitted by the petitioner's counsel that Annexure-1 is the true typed copy of Annexure-R2 and it cannot be disbelieved. Petitioner's counsel also submitted that the service book was prepared by the institution in question which amply establishes that petitioner was appointed against regular vacancy on probation. It has also been submitted that Sri Ram Naresh Misra had never joined the institution in question and Committee of Management had played fraud by submitting a fake appointment letter as Annexure-C2 to the counter-affidavit. It has been submitted that Sri R. N. Misra was never appointed in the institution while making submission relating to appointment letter filed in the counter-affidavit dated 14.11.1983 as Annexure-C3. It has been submitted that though the petitioner has signed over the duplicate copy of the appointment letter and acknowledged but the signature was made without going through its content. The management has also filed the copy of the original appointment letter-bearing petitioner's signature in its second counter-affidavit dated 27.7.1998 as Annexure-B3. Needless to say that Annexure-B3 contains the admitted signature of the petitioner. However, while assailing the impugned order it has been submitted by the petitioner's counsel that handwriting of the alleged appointment letter dated 23.11.1981 filed as Annexure-B3 to the counter-affidavit dated 27.7.1998 is same as of the photostat copy of the hand written appointment letter, i.e., Annexure-R2 to the rejoinder-affidavit.;