IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.188 of 2004 Decided on : January 4, 2010 Hari Dutt Sharma …Petitioner. Versus State of H.P. and another …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 For the Petitioner : Mr. Dushyant Dadwal, Advocate. For the Respondents : Mr. Ramesh Thakur, Assistant Advocate General. Surjit Singh, J (Oral) Petitioner has challenged the vires of Annexure P-11, which is in the nature of Notification dated 28th February, 2004, whereby earlier Notifications dated 22nd March, 2002 and 1st August, 2003, constituting the Himachal Sanskrit Academy, have been rescinded and also Annexure P-12, dated 15th March, 2004, whereby petitioner’s services as Secretary of the Academy have been terminated. 2. Facts, relevant for the disposal of the Writ Petition, may be stated. Petitioner retired as a servant of the Government of Himachal Pradesh, on attaining the age of superannuation (58 years), on 30th June, 2001. He is Ph.D in Sanskrit and before his retirement he was serving in the Education Department of the Government of Himachal Pradesh. Whether reporters of the local papers may be allowed to see the judgment? …2… 3. The Government thought of setting up a Sanskrit Academy, for promotion and development of Sanskrit language in the State of Himachal Pradesh, with the financial assistance from the Central Government. It issued a Notification dated 22nd March, 2002, constituting Himachal Sanskrit Academy. A few members were added to the Academy vide Notification dated 1st August, 2003. Before constitution of the Academy, the present petitioner, who is a Sanskrit scholar, was appointed as Secretary of the Sanskrit Academy. The order of his appointment is Annexure P-4, dated 4th January, 2002. This order was issued by the Chief Minister of Himachal Pradesh, in accordance with the Constitution of the Academy, which is Annexure P-3. Thereafter, Recruitment and Promotion Rules for the post of Secretary of the Academy were framed and the petitioner was reappointed as Secretary by the Governor, vide Notification dated 22nd May, 2002, Annexure P-5. On 28th February, 2004, Notification Annexure P-11 was issued, rescinding the aforesaid two Notifications of Constitution of Academy. On 15th March, 2004, Notification, copy Annexure P-12 was issued, terminating the services of the petitioner as Secretary of the Academy. 4. Petitioner has challenged both the Notifications, i.e. Notification dated 28th February, 2004 (Annexure P-11), rescinding the notification constituting the Academy and …3… Notification dated 15th March, 2004 (Annexure-12), terminating his services. 5. Respondents have taken the stand that the petitioner had not been doing any substantial work, while holding the post of Secretary of the Academy and was an unnecessary burden on the State exchequer. Also, it is stated that for providing infrastructure of the Academy ten bighas land was required to be purchased at Kandaghat, but there were no funds with the Academy for purchase of such land and, therefore, it was decided to dissolve the Academy itself. 6. In the rejoinder, petitioner stated that there were enough funds with the Government and that budgetary provisions were made by the State Legislative Assembly every year and grants were also released by the Central Government for running the Academy. 7. We have heard the learned counsel for the parties and gone through the record. 8. Constitution of the Academy, Annexure P-3, per clause-18, provides for the dissolution of the Society, in accordance with Section 14 (sic, it should be Section 13) of the Societies Registration Act, 1860. As per Section 13, a Society, registered under the Act, can be dissolved if 3/5th of its members determine that it should be dissolved. 9. In the present case, the Academy is registered as a Society, under Societies Registration Act, 1860, vide …4… Certificate dated 5th January, 2002. Copy of the Registration Certificate has been shown to us and the same is ordered to be taken on record. Now, in accordance with the Constitution of the Society, it could have been dissolved only if 3/5th members of it resolved to dissolve it and not otherwise. Therefore, we have no doubt, in our mind, that Notification Annexure P-11, dated 28th February, 2004, dissolving the Academy, is ultra vires of the Constitution of the Society. The Government did not have the power and the competence to issue this kind of Notification, dissolving the Academy. The right course was to have convened a meeting of the members of the Academy and moved a motion for its dissolution and if the motion were approved by 3/5th of the members then the order of dissolution could have been issued. 10. Order of termination of services of the petitioner, Annexure P-12, is based on the aforesaid ultra vires Notification Annexure P-11 and, therefore, it automatically goes with the striking down of Notification Annexure P-11. Another reason for striking down Annexure P-12 is that even though in the reply it is stated that the petitioner had not been doing any fruitful work for the Academy and, therefore, his services were terminated, no opportunity of hearing was afforded to him, before passing the impugned order. The order is, thus, violative of principles of natural justice. …5… 11. In view of the abovestated position, we allow the Writ Petition and quash both the Notifications, i.e. Annexure P-11, dissolving the Academy and Annexure P-12, terminating the services of the petitioner as Secretary of the Academy. 12. Petitioner was appointed as Secretary of the Academy for a period of five years or till he attained the age of 65 years, whichever was earlier. His appointment took place on 4th January, 2002. He completed the tenure of five years before attaining the age of 65 years. His tenure of five years came to an end on 3rd January, 2007. Therefore, we direct that he be paid salary of the post of Secretary, in accordance with the terms of his appointment, upto 3rd January, 2007, within three months from today. In case the arrears are not paid within three months, in terms of this order, interest shall be paid at the rate of 9 per cent per annum, from the date of this order to the date of payment of arrears. Writ Petition stands disposed of. Pending application(s), if any, also stand disposed of. ( Surjit Singh ), J January 4, 2010(sd) ( Surinder Singh ), J