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Managing Committee, ... v. Sheo Dutt Gupta And ...
Judgment Summary — Mathur, C.J.
Factual and Procedural Background
This appeal was filed by the Managing Committee of Sohan Lal Higher Secondary School, Rajendra Nagar, Lucknow, challenging an order of the Single Judge which had allowed the writ petition of Sheo Dutt Gupta, a teacher. The Single Judge quashed the impugned order dated 13-7-1968 (Annexure 1 to the writ petition / Annexure F to the counter-affidavit) by which the petitioner’s services were stated to be terminated from 14-8-1968.
Material facts: Sheo Dutt Gupta was appointed as an Assistant Teacher on one year’s probation by appointment letter dated 1-8-1967 and reported for duty on 16-8-1967. Condition No. 3 of his appointment permitted termination during probation by one month’s notice or one month’s pay in lieu. The Managing Committee resolved on 16-6-1968 to terminate his services and directed the Manager to seek the District Inspector of Schools’ approval. The Manager moved the District Inspector on 8-7-1968; the Inspector’s approval was dated 18-7-1968 (Annexure E). However, the Manager served a notice on the petitioner on 13-7-1968 stating termination from 14-8-1968 — one day prior to the scheduled expiry of the twelve-month probation period (which expired on the afternoon of 15-8-1968).
The central procedural posture: the Single Judge had quashed the termination notice; the Managing Committee appealed against that quashing. The court heard two specific legal questions arising from this factual matrix.
Legal Issues Presented
- Whether a notice of termination of the services of a probationer teacher can be validly served before obtaining the prior written approval of the District Inspector of Schools under Sec. 16-G(3)(a) of the Intermediate Education Act, 1921.
- Whether, in the facts and circumstances of the case, the service of a notice of termination (or the termination itself) carried out prior to the granting of the Inspector’s approval can be condoned.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Beulah Cutting v. The Chairman, Board of High School and Intermediate Education, Uttar Pradesh, Allahabad (1966 A.L.J 58) | Supports the view that Sec. 16-G(3)(a) of the Intermediate Education Act applies to a probationer being terminated for unsuitability and that a notice of termination served without prior approval of the Inspector is invalid. | The court cited this decision as part of a consistent line of authority establishing that notices of termination without prior Inspector approval do not effect termination of a teacher’s service. |
| Municipal Board, Bareilly v. B.K. Mehrotra (1968 A.L.J 1127) | Also cited for the proposition that Sec. 16-G(3)(a) governs termination of probationers and that prior approval is necessary for notices of termination. | The court relied on it as part of the consistent view, but specifically noted that a Division Bench had expressed that this decision required reconsideration; nonetheless the court reaffirmed the earlier view and discussed reasons for doing so. |
| Roman Prefacture v. Deputy Director of Education (1970 A.L.J 1402) | Cited to support the same principle concerning the applicability of Sec. 16-G(3)(a) to probationers and invalidity of notices served without approval. | Used as corroborative authority in the line of cases the court regarded as establishing the consistent view adopted by this Court. |
| Khalil Ahmad v. The Manager, Abdul Karim Khan Higher Secondary School, Amroha, District Moradabad (A.I.R. 1973 Alld. 287) | Cited as a later authority reinforcing the proposition that Sec. 16-G(3)(a) applies to the termination of services of probationers and that prior approval is necessary. | The court included this case among the precedents supporting the rule that a notice of termination served without Inspector’s prior approval is invalid and does not terminate service. |
Court's Reasoning and Analysis
The court’s analysis proceeds from statutory construction of the Intermediate Education Act, 1921 (the Act) and the Regulations made under it, focusing on Sec. 16-G (especially sub-sec. (3)(a) and clause (b) of sub-sec. (3)) and relevant Regulations in Chapters II and III.
- Primacy of the Act: The court began with the principle that where the Act and the Regulations conflict, the Act prevails; where there is no inconsistency, Regulations are fully operative.
- Scope of Sec. 16-G: Sub-sec. (1) makes conditions of service subject to Regulations. Sub-sec. (2) empowers formulation of Regulations on probation, confirmation, procedure for punishment and termination with notice. The court emphasized the significance of the phrase “termination of service with notice.”
- Meaning of sub-sec. (3)(a) and (b): Clause (a) of sub-sec. (3) bars discharge, removal, dismissal, reduction in rank or diminution in emoluments, or service with notice of termination, except with the Inspector's prior written approval. Clause (b) delineates two categories in which the Inspector may act: (i) where approval is sought for punishment (Inspector can vary punishment) and (ii) where approval is sought to serve notice of termination (Inspector can approve or disapprove the notice). The court read clauses (a) and (b) together and concluded that clause (a)’s words must be read as encompassing actions covered by clause (b), including termination with notice.
- Application to probationers: The court held that the expression in Sec. 16-G(3)(a) is general and applies to any case where notice must be given before termination — including probationers. The Regulations (especially Regulation 11) provide that confirmation is automatic at the end of the probation period unless termination or disciplinary action is taken before expiry. Regulation 25 governs termination during probation (requiring one month's notice or pay in lieu). Therefore, if termination during probation is to be effected, the notice and Inspector’s approval are required.
- Consistency of Regulations: The court examined Regulations 7–12 and 24–28 and found them consistent with the Act. Regulation 25 specifically applies to probationers whose services are terminated prior to expiry of probation; that regulation requires one month's notice. Regulation 11 makes confirmation automatic at probation expiry unless termination occurs earlier. Thus, a notice served before the expiry of probation is a “notice of termination” within the meaning of Sec. 16-G(3) and must be preceded by Inspector approval.
- Factual application: Because the Manager served a notice dated 13-7-1968 terminating services from 14-8-1968 (one day before the probation expired), Regulation 25 and Sec. 16-G(3) applied. The notice was served prior to the District Inspector’s approval (the approval letter being dated 18-7-1968), rendering the notice invalid and ineffective to terminate service.
- Practical observations: The court acknowledged the potential hardship enforcement of these provisions may cause managements and teachers (timing constraints given the Inspector has up to six weeks to decide). It suggested that the Board or appropriate authority may consider amending Regulations to avoid hardship and unnecessary litigation, or that managements should act sufficiently early (e.g., within nine months) if they contemplate not confirming a teacher.
Holding and Implications
Holding: The court affirmed the Single Judge’s decision. The appeal was dismissed. The core ruling may be stated as:
DISMISSED — the appeal is dismissed and the Single Judge’s order quashing the impugned termination notice is upheld.
Implications:
- Direct effect on the parties: The notice of termination dated 13-7-1968 (terminating service from 14-8-1968) — served prior to obtaining the District Inspector’s approval — was invalid and did not terminate the petitioner’s service. The Single Judge’s quashing of that termination order was correct and stands.
- Wider legal consequence: The court reaffirmed the position that Sec. 16-G(3)(a) of the Intermediate Education Act applies to probationers where termination is proposed with notice; prior written approval of the Inspector is requisite before a valid notice of termination can be served. The decision follows and consolidates a line of earlier authorities to that effect.
- Administrative and practical note: The court recognized possible hardships arising from the statutory timeline for Inspector decision-making and suggested consideration of regulatory amendment or earlier managerial action in order to prevent unfairness and litigation — but did not itself alter legal requirements.
- No new expansive precedent was announced; the court applied and reinforced existing principles and precedents concerning the operation of Sec. 16-G(3) and the relevant Regulations.
Disposition and Miscellaneous
The Special Appeal has no force and is dismissed. Costs were made easy. The court ordered a copy of the judgment to be sent to the Chief Secretary to Government, U.P., Lucknow, for information and necessary action.
Mathur, C.J:— This is an appeal by the Managing Committee of Sohan Lal Higher Secondary School, Rajendra Nagar, Lucknow, to challenge the order of the learned Single Judge allowing the writ petition of Sheo Dutt Gupta, a teacher of the school. The learned Single Judge has quashed the impngned order dated 13-7-1968. Annexure 1 to the writ petition and Annexure F to the counter-affidavit, whereby his services were terminated from 14-8-1968.
2. The material facts of the case are that under the appointment letter dated August 1, 1967, Annexure A to the counter-affidavit, the petitioner Sheo Dutt Gupta, was appointed as Assistant Teacher in the school on one year's probation from the date of joining. He was to report for duty to the Principal on 16-8-1967, which he did. Under condition No. 3, his services could during the probation period, be terminated by giving one month's notice or one month's pay in lieu thereof. In a meeting held on 16-6-1968 the Managing Committee resolved to terminate the services of the petitioner. At the same time, the Manager was directed to move the District Inspector of Schools for according approval to the proposed action, vide Annexure D to the counter-affidavit. It appears that the Manager moved the District Inspector of Schools on 8-7-1968 and the District Inspector of Schools accorded his approval under his letter dated 18-7-1968 (Annexure E). However, under letter dated 13-7-1968. Annexure 1 to the writ petition and Annexure F to the counter-affidavit, the Manager served a notice upon the petitioner informing him that his services were, being terminated from 14-8-1968. It may here be mentioned that the twelve months' period of probation was to expire in the afternoon of 15-8-1968 but under the impugned notice the Manager terminated the services of the petitioner on day prior, to the expiry, of the period of probation.
3. Two points for consideration are whether the notice of termination of the services of the probationer teacher can be served before the according of approval by the District Inspector of Schools and secondly whether in the facts and circumstances of the case the service or the notice of termination prior to the granting of the approval can be condoned.
4. The consistent view of this Court has been that the provisions of Sec. 16-G(3)(a) of the Intermediate Education Act, 1921, to be hereinafter referred to as the Act, also apply to a probationer whose services are being terminated on the ground of unsuitability and not by way of punishment and consequently notice of termination of service served without the approval of the District Inspector of Schools is invalid and did not terminate the services, of the teacher. See Beulah Cutting v. The Chairman, Board of High School and Intermediate Education, Uttar Pradesh. Allahabad 1966 A.L.J 58., Municipal Board, Bareilly v. B.K Mehrotra 1968 A.L.J 1127., Roman Prefacture v. Deputy Director of Education 1970 A.L.J 1402. and Khalil Ahmad v. The Manager, Abdul Karim Khan Higher Secondary School, Amroha, District Moradabad A.I.R 1973 Alld. 287.
5. However, because a Division Bench of this Court expressed the opinion that the decision in Municipal Board, Bareilly v. B.K Mehrotra requires reconsideration it will be proper to make detailed comments why we agree with the view expressed in the earlier decisions of this Court.
6. At the very outset it may be mentioned that if there exists any inconsistency between the provisions of the Act and the Regulations under the Act, to be hereinafter referred to as the Regulations, the provisions of the Act shall prevail and to the extent of the inconsistency the Regulations shall be invalid and unenforceable, but where, there exists no inconsistency the Regulations can be given effect to in full.
7. The provisions of the Act are general and details are contained in the Regulations. The first proviso to Sec. 16-F(1) empowers the Inspector to permit the institution to employ as a temporary measure any suitable person for a period not exceeding one year provided that he is satisfied that no candidate possessing the prescribed qualification, is available for appointment. Another instance of temporary appointment is in leave vacancy or a vacancy occuring for a part of the session which is governed the second proviso to Sec. 16-F(1). Other appointments are substantive though initially made on probation.
8. Sec. 16-G of the Act refers to the conditions of service of teachers including Principal and Head Master. Sub-sec. (1) thereof provides that every person employed in a recognised institution shall be governed by such conditions of service as may be prescribed by Regulations and any agreement between the management and such employee in so far as it is inconsistant with the provisions of the Act or with the Regulations shall be, void. The Regulations are framed by the Board of High School and Intermediate Education under Sec. 15 of the Act though for the transitory period the State Government was empowered to make Regulations within one year from tile commencement of the Amending Act of 1958.
9. Sub-sec. (2) of Sec. 16-G Inter alia provides for the making of the Regulations on matters relating to the period of probation, the conditions of confirmation, the procedure and conditions for punishment and termination of service with notice. The words ‘termination of service with notice’ are significant. Similar words have been used in Sub-sec. (3). Consequently, Sub-secs. (2) and (3) shall apply where there is termination of service with notice and not ??? of service without notice. Naturally, the Regulations duly framed shall have the effect of law so long as they are not inconsistent with the provisions of the Act.
10. clause (a) of Sub-sec. (3) of Sec. 16-G places a bar on certain action being taken against the Principal, Head Master or teacher. It is specifically provided “No Principal, Head Master or teacher may be discharged or removed or dismissed from service or reduced in rank or subjected to any distinction in emoluments, or served with notice of termination of service except with the prior approval in writing of the Inspector.”
11. Removal from service does not carry a stigma in the sense as dismissal therefrom. In conditions of service rules applicable to Government servants the word ‘discharge’ has not invariably been used along with removal or dismissal. Discharge is under those rules assumed to be not by way of punishment. However, in view of clause (b) of Sub-sec. (3) of Sec. 16-G this meaning cannot be assigned to the Word ‘discharge’. Clause (b) lays down two categories of cases in which the Inspector can pass an order. The first category is where the approval is sought for of an action being taken by way of punishment. Therein, the Inspector can approve or disapprove or reduce or enhance the punishment. The other category is where it is proposed to serve a notice for termination of service and in such a case the Inspector can either approve or disapprove of the notice. Both the clauses (a) and (b) of Sub-sec. (3) must be read together in finding out what is the real meaning of the words used in clause (a). Clause (b) can be regarded to cover all the cases contemplated by clause (a). In these circumstances, the expression “discharged or removed or dismissed from service or reduced in rank or subjected to any diminution in emoluments” must have reference to an action taken by way of punishment. The services of a probationer are invariably dispensed with in the ordinary course and not by way of punishment. Consequently, the word ‘discharge’ contemplated by clause (a) of Sub-sec. (3) is akin to removal or dismissal from service by way of punishment and not simple termination of service.
12. At this place it may also be mentioned that clause (a) of Sub-sec. (3) does not limit the scope of the notice of termination of service. It can apply to a probationer or to a permanent teacher of the institution. It can apply to one month's notice or to a very short notice to be given before the expiry of the period of probation. When clause (a) of Sub-sec. (3) of Sec. 16-G has been worded generally the courts of law shall not be justified to restrict the scope of the notice of termination of service.
13. We have been taken through the Regulations contained in Chapters II and III and on proper interpretation they cannot be said to be in any way inconsistent with the provisions of the Act. Regulation 16, Chapter II applies to probationers while Regulation 17 to appointments made in a temporary capacity.
14. Regulation 7 of Chapter III provides that a person selected for substantive appointment against it clear vacancy shall be placed on probation from the date of joining duty. The period of probation is one year vide Regulation 8. Where the teacher has worked with diligence and is otherwise fit for the post for which he was recruited and his integrity is certified he shall under Regulation 10 be confirmed. Regulation 11 of this Chapter clearly provides that a probationer shall be confirmed on the post and in the grade at the end of his probation unless before the expiry of the period of probation the services of a teacher has been terminated or action is taken to dismiss, discharge or remove him or reduce him in rank. Period of probation can be extended under Regulation 12 in case of only a Principal or Headmaster. Under Regulation 11, it is necessary that the services of the probationer be terminated before the expiry of the period of probation, otherwise he is automatically confirmed on the post. An exception to this rule is where action is taken to dismiss, discharge or remove or reduce him in rank, naturally by way of punishment. In the, case of a probationer such action is taken in exceptional cases and often all of a sudden when the irregularity comes to the notice. It can easily happen that such irregularity may come to the notice of the institution shortly before the expiry of the period of probation. In case such a teacher is not to stand confirmed but can be dealt with departmentally action can be taken and must be taken before the expiry of the period of probation. In case of a probationer it is not a single incident but the record of the total period which shall determine whether he be or be not confirmed. In such a case the management can take a decision much earlier at least six weeks before the expiry of the period of probation.
15. Regulations 13 and 14 lays down the procedure where a teacher is being confirmed. It has no reference to a case where the teacher is not being confirmed on the post. In any case, the use of the words “at least six weeks before the date on which the confirmation of a teacher is due” does not prohibit the Headmaster or the Principal, nor the Management, from judging earlier the quality of the work of the teacher and deciding whether he deserves being confirmed on the post. Where the work of the teacher has been consistently poor, steps for termination of the service can be taken well in time allowing six weeks to the Inspector to give his decision in the matter.
16. Regulations 24 to 28 cover the termination of service. Regulation 24 of a temporary employee and Regulation 25 applies not only to a teacher but also to a probationer where his services are being terminated during the term of his probation. The earlier part of the Regulation excludes a probationer. Regulation 25 is thus applicable where the services of a probationer are being terminated not on the expiry of the period of probation, but at some earlier stage and in such cases one months' notice or one month's pay in lieu thereof has to be given.
17. To put it differently, where the services of a probationer are being terminated on the expiry of the period of probation one month's notice is not necessary. In view of Regulation 11, Chapter III, the confirmation being automatic it shall be necessary for the Management to give some kind of intimation of the termination of services of the probation on the expiry of the period of probation. Intimation so given is a notice of termination of service as contemplated by the Act. Consequently where the services of the probationer are being terminated on the expiry of the period of probation, notice of termination has to be served upon him though notice given may be given a day or two before the expiry of the period of probation. Regulations 26 and 28 apply to the termination of the service of a permanent employee which can be done in a special circumstances detailed therein.
18. Regulation 31 confirms the view that we have expressed as to the interpretation of Sub-sec. (3) of Sec. 16-G of the Act.
19. To sum up, Sec. 16-G(3)(a) of the Act having been worded generally will apply to every case of termination of service where prior to the termination some notice has to be given. It, therefore, applies to a probationer also, and therefore the services of a probationer cannot be terminated unless notice of termination is served after obtaining the approval of the Inspector.
20. In the instant case, the services of the petitioner were being terminated one day prior to the expiry of the period of probation and, therefore, Regulation 25 was applicable and one month's notice of termination of service was necessary. Such a case will without any doubt fall within the restrictions imposed by Sec. 16-G(3) of the Act.
21. Before parting with the case we must observe that the strict enforcement of Regulation 11, Chapter III, and also of the provisions of Sec. 16-G(3) of the Act can cause a great hardship to the teachers themselves. Considering that the Inspector has been allowed a period of six weeks for giving his decision it shall be necessary for the management to take an early decision whether it is contemplated not to confirm a teacher. Naturally, therefore, the Management shall take a decision after watching the work of the teacher for a period not exceeding nine months. Supposing that a teacher was not keeping good health for a major part of this period or for reasons beyond his control was not in a position to show his ablities, the Management will be compelled to take action on the basis of the past record without watching his work for another two months. To avoid hardship to the teachers and also unnecessary litigation which comes up before the courts of law the Board or the appropriate authority may consider the desirability of suitably amending the Regulations so that where action for not confirming a teacher has been taken before the expiry of the period of probation there may be no difficulty in terminating the services. There is yet another lacuna in the Regulation. Where the Inspector disapproves of the termination of the services of a probationer, the Management has a right of appeal but it may not be possible to obtain the decision of the appellate authority before the expiry of the period of probation.
22. In such a case whatever may be the decision of the appellate authority the teacher shall stand confirmed. To avoid such a possibility the Management may consider taking steps for the termination of the service at least six months before the expiry of the period of probation. This will cause a greater hardship to the teacher for whose benefit the Regulations have been framed.
23. The learned Single Judge has taken a correct view. The special Appeal has no force and it is hereby dismissed. Costs easy.
24. A copy of this judgment shall be sent to the Chief Secretary to Government, U.P, Lucknow, for his information and necessary action.
25. Appeal dismissed.
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