M.P. Mehrotra, J. - (1.) This second appeal arises out of a suit whereby the plaintiff sought a declaration that the notice dated 1-11-1969 issued by the defendant No. 3 terminating his services was invalid and ineffective. A permanent injunction restraining the defendants Nos. 1 and 2 from interfering with the plaintiff's functioning as an Assistant Teacher in Nehru Inter College, Bindki, was also sought. The facts, in brief, are these.
(2.) The plaintiff claimed to have been appointed as an Assistant Teacher in the said college on 1-8-1968. The college is maintained and managed by the Municipal Board, Bindki. The plaintiff further claimed that he was confirmed in the said post on 1st February 1969. By the notice dated 1st November 1969, the defendant No. 3 Mahendra Bir Singh, who was the the Administrator of the superseded Municipal Board, terminated the services of the plaintiff on one month's notice. It was stated in the notice that on the expiry of one month from the date of the receipt of the said notices, the plaintiff's services were to stand determined. The notice was received by the plaintiff on 25th November, 1969. It was claimed that as the plaintiff was a confirmed employee in the post his service could not be terminated by giving one month's notice. He was entitled to a show cause notice and was entitled to be approved of the grounds on which his service was sought to be terminated. The defendant Municipal Board, Bindki, contested the suit on a variety of grounds. Inter alia, it was claimed that the appointment of the plaintiff was a temporary one or an ad hoc appointment in a such as much as there was no post against as which he might have been appointed. There was no provision for his post in the budget and in such circumstances the appointment could be terminated and was terminated by giving one month's notice. It was denied that he was confirmed on 1st February, 1969. The suit was said to be premature as before the suit could be filed in a civil court, the plaintiff was bound to exhaust departmental remedies which he had failed to do. The suit was also said to be not maintainable on the ground of the absence of a valid notice under section 326 of the Municipalities Act.
(3.) The trial court framed the necessary issues and dismissed the same. It held that "the plaintiff was not a permanent employee of the Board but his appointment was made subject to the creation of the post and approval of the appointment by the Board. He was purely temporary." It was also held that the claim of the plaintiff that he became confirmed with effect from 1st February, 1969, was not correct. The trial court relied on Rule 11 of the U.P. Municipal Boards Servants (Enquiry, Punishment and Termination of Services) Rules, 1960 and held that as the plaintiff was temporary servant, his Services were liable to be terminated at any time by a notice in writing by the competent authority. Rule 9 of the said Rules was held to be inapplicable. On appeal however, the lower appellate court set aside the judgment and decree of the trial court. The lower appellate court upheld the finding of the trial court that the plaintiff was not a confirmed employee of the Board. However, on two grounds, the trial court's judgment was set aside. Firstly, it was held that it had not been shown that the District Magistrate was the Administrator of the Municipal Board, Bindki. No notification was produced to show that the District Magistrate had been appointed to function as the Administrator of the Board. Therefore, the defendant was not competent to issue the notice dated 1st November, 1962. The second ground on which the appeal was allowed by the said court was that the trial court wrongly thought that Rule 11 of the aforesaid Rules was applicable to the plaintiff. The lower appellate court held that the plaintiff was not a temporary servant but was a probationer. Hence, he was governed by Rule 9 and not by Rule 11. It was held that the procedure prescribed by Rule 9 was not observed inasmuch as no show cause notice was issued to the plaintiff and his explanation was not called for in respect of the action proposed to be taken against him. Therefore, the notice dated 1st November, 1969 purporting to put an end to the plaintiff's service was illegal inasmuch as it was violative of the mandatory provisions contained in Rule 9 of the aforesaid Rules. The appeal was accordingly allowed.;