IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP. No. 17710 of 2009 Date of Decision: 18.11.2010. Smt. Raj Bala & others --Petitioners Versus State of Haryana & others --Respondents CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. Present:- Mr. R.K. Malik, Sr. Advocate with Mr. Vishal Malik, Advocate for the petitioners. Mr. R.D. Sharma, D.A.G., Haryana for respondents no.1 to 3. Mr. Mohnish Sharma, Advocate for respondent no.4. *** PERMOD KOHLI.J (ORAL) The petitioners are employees of Vidya Mandir Senior Secondary School, Sector 15-A, Faridabad. This school is being run by a registered society and is a recognized, Govt. aided school. Appointment of the petitioners are governed and regulated by the statutory rules namely the Haryana School Education Rules, 2003 framed under the Haryana School Education Act. Since the petitioners were appointed against the aided sanctioned posts, they are protected under the aforesaid statutory rules. Rule 51 (4) protects the petitioners from arbitrary termination by the Managing Committee of the school and reads as under:- “ 51(4) No teacher in position shall be removed by the managing committee without prior approval of the Department.” Services of the petitioners were terminated by the Managing Committee in the year 2006. The Managing Committee also requested the Director General of School Education to de-aid the school vide its letter CWP. No. 17710 of 2009 -2- dated 18.5.2006 (Annexure P-2). Aggrieved of their termination petitioners filed statutory appeal before the District Education Officer, Faridabad, who declared the termination of the petitioners illegal having been made in violation of the statutory rules without the approval of the Director General as required under Rule 51(4) and also that the Managing Committee has started another school in the same building. Petitioners were ordered to be reinstated vide order dated 10.5.2006 (Annexure P-4) passed by the D.E.O., Faridabad. The order of D.E.O was assailed by the Management in appeal before the Director General, School Education, Haryana. The appeal was, however, dismissed vide order dated 25.9.2007. A review petition preferred by the management also resulted in dismissal vide order dated 14.1.2008 passed by the Director General, School Education, Haryana (Annexure P-6). Still not satisfied with the orders of the authorities, the management challenged the aforesaid orders in various writ petitions being CWP Nos. 14333, 14699, 14707, 14734 of 2007 and a number of other writ petitions. All these writ petitions were dismissed vide order dated 17.11.2008 (Annexure P-7). However, while dismissing the writ petitions Hon'ble High Court left it open to the management to approach the competent authority constituted under the Haryana School Education Rules to secure the prior sanction and it was also left to the competent authority to consider the matter afresh. In view of the above observations the management approached the Commissioner and Director General, School Education, Haryana for grant of approval for the discharge/termination of the services of the petitioners. The Govt. vide order dated 19.3.2009 granted approval for termination of the services of the petitioners w.e.f. 31.3.2006. Petitioners CWP. No. 17710 of 2009 -3- preferred a review petition before the Commissioner-cum- Director General of School Education against the order dated 19.3.2009. This review petition came to be dismissed vide order dated 16.7.2009 (Annexure P-13). This writ petition has been filed seeking following reliefs:- “ (i) records of the case may be called for; (ii) filing of the certified copies of the Annexures may kindly be dispensed with; (iii) services of advance notices upon the respondents be dispensed with. (iv) A writ in the nature of certiorari be issued to quash the impugned orders P-11 & P-13 and petitioners be reinstated with all consequential benefits.” Even though the petitioners have challenged the validity of Annexures P-11 and P-13 as a whole, however, during the course of arguments, Mr. Malik, learned Sr. Advocate appearing for the petitioners has confined the relief to the extent termination of the petitioners has been approved vide the impugned orders retrospectively w.e.f. 31.3.2006. It has been argued by Mr. Malik that under Rule 51(4) a teacher working against an aided post could only be removed by the Managing Committee with prior approval of the department. It is, accordingly, contended that prior approval is a condition sine qua non for action of removal by the Managing Committee. The Managing Committee, however, without seeking prior approval dismissed/removed the petitioners from service in contravention to Rule 51(4) and thus the D.E.O, Faridabad rightly set aside the order of Managing Committee which was affirmed in appeal vide order dated 25.9.2007. Both these orders have been duly affirmed by the High Court by dismissing the writ petition. The dismissal of the petitioners having been set aside by the competent statutory authorities, it CWP. No. 17710 of 2009 -4- was not open to the competent authority to grant a retrospective approval for the removal of the petitioners from the post of teacher. Even though, liberty was granted by this court while disposing of the writ petition, however, it was not open for the competent authority to grant approval retrospectively. Such an action is totally illegal and is in gross contravention to the statutory rule 51(4). In view of the above, the impugned orders Annexures P-11 & P-13 are partially set aside to the extent retrospective approval for removal of the petitioners has been granted. The petitioners shall be deemed to have been removed from service from the date of grant of approval by the competent authority i.e. 19.3.2009. The petitioners have claimed consequential relief. In the present case the only consequential relief which the petitioners may be entitled to is salary up to the date of passing of the impugned order dated 19.3.2009. Mr. Mohnish Sharma, learned counsel appearing for respondent no.4 has vehemently opposed the claim of the petitioners for emoluments up to the date of passing of the impugned order. His contention is that the High Court having granted liberty to the competent authority to re-examine the case the competent authority was entitled to grant approval retrospectively. This contention is not only contrary to law but is not sustainable on facts as well. Rule 51(4) permits removal only with prior approval of competent authority. Approval was granted for removal of the petitioners only on 19.3.2006. Thus, the removal of the petitioners became operative and can be said to be legal and valid only when the approval was CWP. No. 17710 of 2009 -5- granted on 19.3.2006 particularly when the competent authority had set aside the removal of the petitioners earlier and the order has been upheld by the High Court in writ petition. A similar issue came up for consideration before the Hon'ble Apex Court in a case reported as 2002 (2) SLR 274 titled as Shoran Lal Sharma Vs. Deputy Director of Education, Meerut and others. In this case also the termination was made by the Managing Committee by its resolution dated 7.11.1977, however, the approval was granted by the competent authority on 24.4.1980. It was held by the Hon'ble Supreme Court that the employee is deemed to continue in service till the date of grant of approval and is entitled to all the pecuniary benefits, available to him under law. The relevant extract of the judgement reads as under:- “ 4. So far as the second contention is concerned, it is no doubt true as indicated in Sub-Section (7) of Section 16-G of the Act that an order of suspension unless approved in writing by the Inspector would not remain in force for more than 60 days from the date of suspension, but this contention does not appear to have been raised before the High Court in the impugned judgement and further it depends upon the fact whether the order of suspension had, in fact, been approved by the Inspector within the specified period or not. But it goes without saying that the order of termination would be effective in the eyes of law, the same being approved by the competent educational authority, and in the case in hand, the approval has been accorded on 24.4.1980 necessarily therefore the appellant must be deemed to be continuing in service till 24.4.1980 and as such would be entitled to all the pecuniary benefits that would be available to him under law till 24.4.1980. The appropriate educational authority may consider the CWP. No. 17710 of 2009 -6- relevant facts and decide the quantum of benefit, which the appellant would be entitled to on the basis that he was suspended on 16.7.1977 and his services validly stood terminated on 24.4.1980, the same being approved by the educational authority.” Applying the aforesaid ratio, the petitioners are deemed to be validly terminated w.e.f. 19.3.2009. They are deemed to be in service till then. Petitioners are thus, entitled to emoluments/salary at the admissible rates from the date of initial termination i.e till the date of grant of approval i.e. 19.3.2009. The claim of the petitioners be determined and paid within a period of three months. (PERMOD KOHLI) JUDGE 18.11.2010. lucky Whether to be Reported? Yes.