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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.9130 OF 2014 (Arising out of SLP(C) No.342 of 2011)

    Ram Bahadur Pandey & Anr.        ... Appellants.                       Versus

    The State of Uttrakhand & Ors.   ... Respondents

  J U D G M E N T

ANIL R. DAVE, J

1. Leave granted.

2. Looking at the facts of the case and in view of  the fact that pleadings are complete, the learned counsel  appearing for the parties have desired that the appeal be  finally heard today.  In the circumstances, the appeal is  finally heard.

3. Being aggrieved by the Judgment delivered by the  High Court of Uttrakhand at Nainital dated 29th July, 2009  in  Special  Appeal  No.130  of  2009,  the  appellants  have  approached this Court.

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4. The facts, which are not in dispute, are that  the  appellants  were  working  as  Assistant  Teachers  in  Tribal Primary Schools, managed by Bhotia Tribal Service  Society,  which  are  recognized  schools  by  the  State  of  Uttrakhand. Certain complaints had been received against  them  with  regard  to  their  work  and  therefore,  after  serving  show-cause  notices  upon  the  appellants,  their  services had been terminated by orders dated 25th June,  1998.

5. The appellants had challenged the validity of  the action taken against them by filing writ petitions in  the  Allahabad  High  Court,  which  had  been  subsequently  transferred to the High Court of Uttrakhand at Nainital,  upon bifurcation of the erstwhile State of Uttar Pradesh.  After hearing the concerned parties, the High Court had  disposed of the said writ petitions vide order dated 18th  

August,  2006,  whereby  the  Secretary,  Samaj  Kalyan,  Government of  Uttrakhand was  directed to  look into  the  matter and pass an appropriate order.  In pursuance of the  said  order,  the  Secretary,  Samaj  Kalyan,  Government  of  Uttrakhand,  had  considered  the  matter  with  regard  to  termination of services of the appellants and had come to  a conclusion that the Government had no role to play in  the matter as the appellants were employees of a Society,  which was a self-financed society.

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6. In pursuance of the aforestated order passed by  the Secretary, Samaj Kalyan, Government of Uttrakhand, the  appellants  had  again  approached  the  High  Court  of  Uttrakhand at Nainital by filing Writ Petition No.452 of  2009 (SS), wherein they had challenged the orders whereby  their services had been terminated.  The said petition had  been  dismissed  and  therefore,  the  appellants  had  filed  Special Appeal No.130 of 2009 in the High Court.  The said  appeal was partly allowed vide order dated 29th July, 2009,  whereby the matter had been remanded to the learned Single  Judge for considering whether the appellants were entitled  to salary for the period prior to termination of their  services.  The appellate Court, however, did not interfere  with  the  orders  of  termination  i.e.  the  orders  of  termination had been confirmed.   

7. In  the  afore-stated  circumstances,  the  appellants  have  approached  this  Court  by  filing  the  present appeal.  

8. The main ground which has been submitted by the  learned  counsel  appearing  for  the  appellants  for  challenging the validity of the impugned judgment is that  the termination of services of the appellants is bad in  law because it is in violation of Rule 11 of the Uttar  Pradesh  Recognized  Basic  Schools  (Recruitment  and  Conditions of Service of Teachers and other Conditions)  Rules, 1975 (hereinafter referred to as 'the Rules').

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9. It has been submitted that without taking prior  approval in  writing of  the Basic  Shiksha Adhikari,  the  services of the appellants were terminated, which is in  violation of the provisions of the Rule 11 of the Rules.  It has  been further  submitted that  the appellants  were  working  in  a  recognized  school  and  therefore,  the  provisions of the Rules were applicable to them and as  their services had been terminated without prior approval  of the Basic Shiksha Adhikari, the orders of termination  were  bad  in  law  and  therefore,  the  appellants  must  be  reinstated in service with back wages.

10. The  learned  counsel  appearing  for  the  respondent-institution has submitted that the appellants  had  not  been  given  appointment  after  following  the  procedure prescribed in Rule 9 of the Rules and at the  time  of  their  appointment,  applications  from  other  deserving  candidates  were  not  invited  and  therefore,  appointment of the appellants was not legal and therefore,  it was not necessary to follow the provisions of Rule 11  of  the  Rules.   He  has,  therefore,  submitted  that  the  orders terminating services of the appellants are just,  legal and proper.

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11. Rule 11 of the Rules is reproduced herein below:

“11. Dismissal and removal of teachers. -  No  order dismissing, removing or terminating the  services of a teacher or other employee of a  recognised school shall be passed save with the  prior approval in writing of the Basic Shiksha  Adhikari:

Provided that in case of recognised schools  established  and  administered  by  minority  referred to in clause (1) of Article 30 of the  Constitution, such an order shall not require  the approval of the Basic Shiksha Adhikari but  shall be reported to him”

12. We have heard the learned counsel appearing for  the parties and have also gone through the relevant record.

13. It is not in dispute that the appellants were  working as Assistant Teachers in recognized schools.  In  view  of  the  fact  that  the  appellants  were  working  in  recognized schools, according to Rule 11 of the Rules it  was necessary to obtain prior written approval of the Basic  Shiksha Adhikari before terminating their services.  It is  an  admitted  fact  that  no  such  prior  approval  had  been  obtained before terminating services of the appellants and  therefore, there was a clear violation of the provisions of  Rule 11 of the Rules.

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14. It  may  be  true  that  there  might  be  irregularities  in  appointment  of  the  appellants  as  Assistant Teachers in the past but as they were working in  the  schools  duly  recognized  under  the  Rules,  in  our  opinion, it was obligatory on the part of the Management to  follow  the  provisions  of  Rule  11  of  the  Rules  while  terminating  services  of  the  appellants  by  way  of  punishment.

15. In the circumstances, we set aside the impugned  judgment delivered by the High Court and direct that the  appellants be reinstated in service within two months from  today and in view of the fact that their appointments were  not in accordance with the Rules, they shall not be paid  back wages.  If the appellants had not been paid their  salary  for  the  period  prior  to  termination  of  their  services,  it  would  be  open  to  the  appellants  to  take  appropriate  action  for  recovery  of  salary  for  the  said  period.  It is not on record whether the appellants had not  been paid for the period prior to their termination and  therefore, we do not pass any order with regard to payment  of back wages.  We also clarify that it would be open to  the  management  to  take  appropriate  disciplinary  action  against  the  appellants  in  accordance  with  law  for  the  irregularities  committed  by  them,  if  they  think  it  appropriate.

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16. The  appeal  is  accordingly  disposed  of  as  allowed, but with no order as to costs.

...................J.     (ANIL R. DAVE)

...................J.     (UDAY UMESH LALIT)

New Delhi, August 29, 2014.