- (1.) I. M. Quddusi, J. The petitioner was appointed as Head Master/rradhana Ad-hyapak of Nehru Junior High School, Khamauna, Varanasi which is a recognized and aided Junior High School vide order dated 8-5-1984. The appointment order was issued by the Manager of the Committee of Management of the Institution. Later on he was confirmed on the said post vide order dated 15-5-1985 passed by the Manager of the Committee of Management of the In stitution on completion of probation period of one year. Vide order dated 3-7-1995 the petitioner was placed under suspension by opposite party No. 2, who alleged himself to be the Manager of the Institution. In the said order of suspension it has been men tioned that on 28-6-1995 a letter was given to the petitioner which he refused to accept, which shows that the petitioner did not recognise the respondent No. 2 as a Manager which by itself is an act of indis cipline. It has been further mentioned in the suspension order that the petitioner tor tured the Clerk and the Assistant Teacher of the School and also embezzled fees. The petitioner was required to give reply within three days and in the event of unsatisfactory reply, his services would be terminated. The cleric was directed to obtain the signatures of Sri Kesh Pandey as Principal and issued TC. etc. to the students. The District Basic Education Officer, Varanasi vide his order dated 18-9-1995 informed the Deputy In spector of Schools (I) Varanasi that due to the pendency of the disciplinary proceed ings against the Head Master of the School, Sri Kesh Pandey was entrusted with the charge of Head Master and the Transfer certificates etc. issued by Sri Kesh Pandey should therefore be accepted.
(2.) THE petitioner by means of the present writ petition has challenged the above mentioned two orders dated 3-7-1995 and 18-9-1995. THE contention of the learned counsel for the petitioner is that the District Basic Education Officer having found the election of respondent No. 2, which was held on 14-2- 1988 as invalid and having cancelled his approval which was granted earlier to him and against which the respondent No. 2 filed a writ petition No. 24088 of 1989 in this Court and vide order dated 15-12- 1989 this Court stayed the operation of the aforesaid order of the Dis trict Basic Education Officer, Varanasi dated 15th November, 1989 till further or ders. But during the pendency of the writ petition the claim of respondent No. 2 to become Manager of the Institution after a period of three years automatically expired in the year 1991 and another election was held in which respondent No. 2 was again elected as Manager of the Committee of Management of the Institution in question. But in the year 1993 the Committee of Management decided to hold fresh elec tions on the ground that the respondent No. 2 did not want to continue any further as a result of which elections were held on 12- 12-1994 in which one Sri Rajendra Prasad Dubey was elected as the Manager. In pur suance of that election the District Basic Education Officer attested the signatures of Sri Rajendra Prasad Dubey as Manager. THE Registrar Firms, Societies and Chits Varanasi also recognised the office bearers of the Committee of Management vide his letter dated 6-4-1994. But on resignation of Rajendra Prasad Dubey on 31-7-1994 the Committee of Management elected one Sri Santosh Kumar Misra as the New Manager. However, ultimately the writ petition of respondent No. 2 was dismissed as infruc-tuous on 25-4-1995 and the interim order dated 15-12-1989 was also discharged. THEreafter respondent No. 2 filed another writ petition and, as such, the District Basic Education Officer, Varanasi vide his order dated 6-5-1995 informed the respondent No. 2 that since second writ petition is pend ing, it is not possible to accept any body as Manager. THE contention of the learned Counsel is that there was no question to accept a letter from the so-called Manager i. e. respondent No. 2 on 28-6-1995 when his writ petition was dismissed as infructuous on 25-4-1995 by this Court and the interim order was also discharged. According to the learned counsel for the petitioner, the suspension order passed by the respondent No. 2, who remained no more a Manager is illegal and void. In the counter-affidavit filed by respondent No. 2 Mahendra Pratap Singh a plea had been taken that the election of the Manager held on 14-2-1988 for three years in which the respondent No. 2 was elected as Manager and due to the interim order dated 15-12-1989 its term had not expired after the expiry of three years because the interim order was until further orders. It has been further pleaded in the counter-affidavit that no election of the Managing Committee including that of the Manager, in fact, has been held thereafter. It has further been contended by the learned counsel for the respondent No. 2 that the petitioner was suspended by order dated 27-8-1995 and not by order dated 3-7-1995 and no such order was passed by respondent No. 2 nor served on the petitioner. The alleged letter dated 3-7- 1995 annexed to the writ petition as Annexure "12" is forged and fictitious letter manipulated by the petitioner. A copy of the resolution of the Committee of the Management dated 27-8-1995 has been an nexed as Annexure C. A. "1" to the counter-affidavit in which it appears that a resolu tion to suspend the petitioner was passed. However, no document has been annexed with the counter-affidavit to show that the resolution of the Managing Committee was implemented or communicated in any man ner to the petitioner. A copy of the order dated 8-2-1995 passed by the Assistant Registrar, Firms, Societies and Chits U. P. Varanasi has been filed as Annexure C. A "8" to the counter-affidavit in which the document produced by the respondent No. 2 Mahendra Pratap Singh was recognized on the basis that the interim order dated 5-12-1989 passed by this Court in writ peti tion No. 24088 of 1989 was effective on the date of the passing of the order. The matter for consideration before this Court is as to whether the respondent No. 2 was competent to pass suspension order and even if the resolution of the Managing Committee filed through the counter-affidavit may be treated as an order of suspension of the petitioner, whether could it be said to be legal order.
(3.) IT is not disputed that the petitioner is a confirmed Head Master of the Institu tion in question. IT is also not disputed that the respondent No. 2 was elected as Mana ger of the Managing Committee in an elec tion held on 14-2-1988 for a period of three years meaning thereby that the term of the Committee of Management was only three years which ended on 14-2-1991. But as the District Basic Education Officer declared the election as invalid, the writ petition was filed against the said order by respondent No. 2 claiming himself to be the Manager validly elected in which this Court passed an interim order on 15-12-1989 as under. "admit. Issue Notice. Till further orders, the operation of the order dated 15th November, 1989 passed by the District Basic Education Officer, Varanasi shall remain stayed. Sd. S. K. D. Sd. D. P. S. C. 15-12-89. " The effect of the aforesaid order was that the declaration of the District Basic Education Officer to the effect that the elec tion held on 14-2-1989 was invalid having been stayed the consequential order can celling the approval granted by him came into abeyance on 15-12-1989 and, as such, the respondent No. 2 continued to be the Manager of the Committee of Manage ment. But the question for consideration is, when the term of the Committee of Management so elected was only for three years under the statue, whether the respon dent No. 2 would continue to be the Manager of the Institution by virtue of the interim order passed by this Court even after the expiry of the term of the elected Committee of Management? The interim order dated 15-12-1989 never permitted the respondent No. 2 to continue as Manager beyond his term vis-a-vis the term of the Committee of Management. The District Basic Education Officer also declared the election invalid of a Committee of Manage ment the term of which would have expired after the expiry of three years. In my opinion, staying the order of the District Basic Education Officer until further orders by this Court does not amount to allow the respondent No. 2 to continue in office even after the expiry of the term of the Commit tee of Management for which the order of the District Basic Education Officer was no more in effect. The respondent No. 2 could not take advantage of the interim order dated 15-12-1989 after the expiry of the ini tial term of the Committee of Management which is three years i. e. after 14-12-1991. Thus, in my opinion, the interpretation put either by respondent No. 2, or by the Dis trict Government Counsel or by the Assis tant Registrar Societies, Firms and Chits, Varanasi was incorrect. There could not be two opinion in this regard. According to respondent No. 2 the order of suspension was passed in the year 1994 vide resolution dated 27-8-1994 by the Managing Commit tee elected on 14-2-1988 whose term ex pired on 14- 2-1991. This proposition also finds support from the order dismissing the writ petition No. 24088 of 1989 on 25-4-1995 holding that with the passage of time the writ petition had become infructuous for the relief sought for by the petitioner in that writ petition. That being so, the irresis tible conclusion would be that the respon dent No. 2 was not the Manager of the In stitution when he passed the impugned order of suspension. In the writ petition filed subsequently i. e. Civil Misc. Writ Peti tion No. 12881 of 1995 the only order passed by this Court on 16-5-1995 was directing the respondent No. 1 i. e. District Basic Educa tion Officer, Varanasi to decide the repre sentation of respondent No. 2, dated 23-2-1995. According to the resolution of the so-called Managing Committee, it has been inter alia, alleged therein that the Head Master has been charged with financial and administrative irregularities which were found prima facie true and, as such, he should be placed under suspension and he should be asked to furnish his written ex planation failing which the termination of his services may be considered. In my opinion, even the resolution is not in ac cordance with law as termination of a con firmed employee cannot be ordered on the ground that the delinquent did not submit his written explanation. Moreover, without serving a charge sheet upon him after fram ing charges how could the petitioner be asked to submit his written explanation. In the writ petition as well as in the counter-af fidavit it has not been stated as to whether a charge sheet had been served upon the petitioner or not. However, in paragraph 5 of the counter- affidavit, it has been, inter alia, stated, that the Basic Education Of ficer by letter dated 10-10-1995 authorised the Manager to take necessary action against the petitioner and now the Manage ment was going to start termination proceeding against the petitioner. This also does not indicate as to whether termination proceedings were going to be started on the basis of some enquiry report and whether a charge sheet had been issued or not. Ac cording to the counter-affidavit the petitioner was placed under suspension on 27-8-94. Sufficient period has elapsed but still it appears that the petitioner has not been issued or served with a charge sheet and hence no question of further proceed ings being taken against the petitioner arises. Moreover, the petitioner was placed under suspension by a resolution of the Managing Committee, whose term had al ready expired in the year 1991 and it was But in the year 1993 the Committee of Management decided to hold fresh elec tions on the ground that the respondent No. 2 did not want to continue any further as a result of which elections were held on 12-12-1994 in which one Sri Rajendra Prasad Dubey was elected as the Manager. In pur suance of that election the District Basic Education Officer attested the signatures of Sri Rajendra Prasad Dubey as Manager. The Registrar Firms, Societies and Chits Varanasi also recognised the office bearers of the Committee of Management vide his letter dated 6-4-1994. But on resignation of Rajendra Prasad Dubey on 31-7-1994 the Committee of Management elected one Sri Santosh Kumar Misra as the New Manager. However, ultimately the writ petition of respondent No. 2 was dismissed as infruc-tuous on 25-4-1995 and the interim order dated 15-12-1989 was also discharged. Thereafter respondent No. 2 filed another writ petition and, as such, the District Basic Education Officer, Varanasi vide his order dated 6-5-1995 informed the respondent No. 2 that since second writ petition is pend ing, it is not possible to accept any body as Manager. The contention of the learned Counsel is that there was no question to accept a letter from the so-called Manager i. e. respondent No. 2 on 28-6-1995 when his writ petition was dismissed as infructuous on 25-4-1995 by this Court and the interim order was also discharged. According to the learned counsel for the petitioner, the suspension order passed by the respondent No. 2, who remained no more a Manager is illegal and void. 3. In the counter-affidavit filed by respondent No. 2 Mahendra Pratap Singh a plea had been taken that the election of the Manager held on 14-2-1988 for three years in which the respondent No. 2 was elected as Manager and due to the interim order dated 15-12-1989 its term had not expired after the expiry of three years because the interim order was until further orders. It has been further pleaded in the counter-affidavit that no election of the Managing Committee including that of the Manager, in fact, has been held thereafter. It has further been contended by the learned counsel for the respondent No. 2 that the petitioner was suspended by order dated 27-8-1995 and not by order dated 3-7-1995 and no such order was passed by respondent No. 2 nor served on the petitioner. The alleged letter dated 3-7- 1995 annexed to the writ petition as Annexure "12" is forged and fictitious letter manipulated by the petitioner. A copy of the resolution of the Committee of the Management dated 27-8-1995 has been an nexed as Annexure C. A. "1" to the counter-affidavit in which it appears that a resolu tion to suspend the petitioner was passed. However, no document has been annexed with the counter-affidavit to show that the resolution of the Managing Committee was implemented or communicated in any man ner to the petitioner. A copy of the order dated 8-2-1995 passed by the Assistant Registrar, Firms, Societies and Chits U. P. Varanasi has been filed as Annexure C. A "8" to the counter-affidavit in which the document produced by the respondent No. 2 Mahendra Pratap Singh was recognized on the basis that the interim order dated 5-12-1989 passed by this Court in writ peti tion No. 24088 of 1989 was effective on the date of the passing of the order. 4. The matter for consideration before this Court is as to whether the respondent No. 2 was competent to pass suspension order and even if the resolution of the Managing Committee filed through the counter-affidavit may be treated as an order of suspension of the petitioner, whether could it be said to be legal order. 5. It is not disputed that the petitioner is a confirmed Head Master of the Institu tion in question. It is also not disputed that the respondent No. 2 was elected as Mana ger of the Managing Committee in an elec tion held on 14-2-1988 for a period of three years meaning thereby that the term of the Committee of Management was only three years which ended on 14-2-1991. But as the District Basic Education Officer declared the election as invalid, the writ petition was filed against the said order by respondent No. 2 claiming himself to be the Manager validly elected in which this Court passed an interim order on 15-12-1989 as under: "admit. Issue Notice. Till further orders, the operation of the order dated 15th November, 1989 passed by the District Basic Education Officer, Varanasi shall remain stayed. Sd. S. K. D. Sd. D. P. S. C. 15-12-89. " The effect of the aforesaid order was that the declaration of the District Basic Education Officer to the effect that the elec tion held on 14-2-1989 was invalid having been stayed the consequential order can celling the approval granted by him came into abeyance on 15-12-1989 and, as such, the respondent No. 2 continued to be the Manager of the Committee of Manage ment. But the question for consideration is, when the term of the Committee of Management so elected was only for three years under the statue, whether the respon dent No. 2 would continue to be the Manager of the Institution by virtue of the interim order passed by this Court even after the expiry of the term of the elected Committee of Management? The interim order dated 15-12-1989 never permitted the respondent No. 2 to continue as Manager beyond his term vis-a-vis the term of the Committee of Management. The District Basic Education Officer also declared the election invalid of a Committee of Manage ment the term of which would have expired after the expiry of three years. In my opinion, staying the order of the District Basic Education Officer until further orders by this Court does not amount to allow the respondent No. 2 to continue in office even after the expiry of the term of the Commit tee of Management for which the order of the District Basic Education Officer was no more in effect. The respondent No. 2 could not take advantage of the interim order dated 15-12-1989 after the expiry of the ini tial term of the Committee of Management which is three years i. e. after 14-12-1991. Thus, in my opinion, the interpretation put either by respondent No. 2, or by the Dis trict Government Counsel or by the Assis tant Registrar Societies, Firms and Chits, Varanasi was incorrect. There could not be two opinion in this regard. According to respondent No. 2 the order of suspension was passed in the year 1994 vide resolution dated 27-8-1994 by the Managing Commit tee elected on 14-2-1988 whose term ex pired on 14- 2-1991. This proposition also Finds support from the order dismissing the writ petition No. 24088 of 1989 on 25-4-1995 holding that with the passage of time the writ petition had become infructuous for the relief sought for by the petitioner in that writ petition. That being so, the irresis tible conclusion would be that the respon dent No. 2 was not the Manager of the In stitution when he passed the impugned order of suspension. In the writ petition filed subsequently i. e. Civil Misc. Writ Peti tion No. 12881 of 1995 the only order passed by this Court on 16-5-1995 was directing the respondent No. 1 i. e. District Basic Educa tion Officer, Varanasi to decide the repre sentation of respondent No. 2, dated 23-2-1995. 6. According to the resolution of the so-called Managing Committee, it has been inter alia, alleged therein that the Head Master has been charged with financial and administrative irregularities which were found prima facie true and, as such, he should be placed under suspension and he should be asked to furnish his written ex planation failing which the termination of his services may be considered. In my opinion, even the resolution is not in ac cordance with law as termination of a con firmed employee cannot be ordered on the ground that the delinquent did not submit his written explanation. Moreover, without serving a charge sheet upon him after fram ing charges how could the petitioner be asked to submit his written explanation. In the writ petition as well as in the counter-af fidavit it has not been stated as to whether a charge sheet had been served upon the petitioner or not. However, in paragraph 5 of the counter- affidavit, it has been, inter alia, stated, that the Basic Education Of ficer by letter dated 10-10-1995 authorised the Manager to take necessary action against the petitioner and now the Manage ment was going to start termination proceeding against the petitioner. This also does not indicate as to whether termination proceedings were going to be started on the basis of some enquiry report and whether a charge sheet had been issued or not. Ac cording to the counter-affidavit the petitioner was placed under suspension on 27-8-94. Sufficient period has elapsed but still it appears that the petitioner has not been issued or served with a charge sheet and hence no question of further proceed ings being taken against the petitioner arises. Moreover, the petitioner was placed under suspension by a resolution of the Managing Committee, whose term had al ready expired in the year 1991 and it was alleged to have been working in the garb of an interim order which had become infruc- tuous on the expiry of the term of that Com mittee of Management i. e. on 14-2-1991. In view of all this the suspension of the petitioner was illegal and the so-called resolution of the Managing Committee was ineffective and the consequential order passed by the District Basic Education Of ficer, Varanasi contained in Annexure No. "15" dated 18-9-1995 is liable to be quashed.;