IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Writ Petition (T) No. 10060 of 2008 Date of decision: 23.5.2011. Vivek Sharma …..Petitioner. Vs. State of H.P. & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the petitioner : Mr. V.S. Rathore, Advocate. For the Respondents : Ms. Ruma Kaushik, Addl. Advocate with Mr. J.S.Rana, Asstt. A.G. for respondents No. 1 to 3. Mr. D.P.Chauhan, counsel for respondents No. 4 & 5. Kuldip Singh, J (Oral). The petitioner has prayed mainly the following reliefs:- (i) That the order dated 3.7.2003 passed by respondent No. 4 (Annexure A-1) be quashed and set-aside and the applicant be reinstated as TGT (Science) in the same school aforesaid. (ii) That the respondent No. 4 and 5 be directed to release arrears of the salary to the applicant since 3.7.2003 whereby the applicant was terminated vide impugned order (Annexure A-1). 2. The brief facts of the case are that respondents No. 4 and 5 are running a private school in the name and style of Model Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… Public High School at Jassur. The respondents No. 4 and 5 are receiving 95% grant from the government of H.P. under 95% school aided scheme since 2001 when the aforesaid school was taken under the government grant-in-aid scheme by respondents No. 1 to 3. The respondent No. 4 is under obligation to follow the rules and conditions framed by the Department of Education and government of Himachal Pradesh in token of receiving 95% grant-in-aid. 3. The petitioner was appointed as TGT (Science) on 1.10.1998 in Model Public High School, Jassur by respondent No. 4. The petitioner continued as such till 3.7.2003 when his services were terminated vide Annexure A-1 dated 3.7.2003. 4. It has been stated that petitioner went on casual leave on 23.4.2003 and 24.4.2003 on account of illness. On 25.4.2003, the petitioner sent an application through registered letter dated 25.4.2003 to respondent No. 4 informing him regarding the illness of the petitioner and requested respondents No. 4 and 5 to extend his medical leave. The petitioner requested that he would submit his medical certificate after recovery. 5. The petitioner resumed his duties on 16.6.2003 in the school after getting medical fitness certificate from Block Medical Officer, Gangath and submitted his joining report alongwith application 16.6.2003. The respondents No. 4 and 5 refused to accept and entertain the joining of the petitioner. The respondent No. 4 in connivance with respondent No. 5 had written a letter to respondent No. 3 and sought advice for proceeding further in the matter. On 18.6.2003 the petitioner went to the office of respondents …3… No. 4 and 5 and requested them to accept his joining report. On 23.6.2003 the respondent No. 3 directed the petitioner to join his duties in the school of respondents No. 4 and 5 and also directed respondents No. 4 and 5 to accept the joining report of the petitioner as soon as possible. 6. On 1.7.2003, the Chief Medical Officer, Kangra at Dharamshala had informed respondent No. 4 about approval of medical certificate issued by the Medical Officer, Gangath and Primary Health Centre, Jassur issued in favour of the petitioner and the same were sent to respondents No. 4 and 5. On 3.7.2003, the respondents No. 4 and 5 vide letter dated 3.7.2003 issued by respondent No. 4 terminated the services of the petitioner, which has been assailed in the petition. 7. The respondents No. 1 to 3 have contested the petition by filing reply and have taken preliminary objection of jurisdiction. On merits, it has been stated that Annexure A-1 has been passed by respondent No. 5 on the recommendation of respondent No. 4, who had conducted inquiry qua the long absence of petitioner and found that petitioner was working in his own school namely Gurukul. The respondents No. 1 to 3 supported the action of respondents No. 4 and 5. It has been admitted that Public Model High School, Jassur is getting 95% grant-in-aid from the government since 2001. It has been stated that Management of Public Model High School, Jassur was advised by respondent No. 3 to accept the joining of the petitioner after taking undertaking to the effect that he would not proceed on long leave without permission of the management in …4… future, but the petitioner refused to give an undertaking and tried to join his duties in the school. 8. The respondents No. 4 and 5 have also contested the petition by filing separate reply in which they have taken preliminary objections of jurisdiction, the petitioner has not approached with clean hands and non-joinder of necessary parties. On merits, it has been stated that petitioner was an un-trained teacher. He passed his B.Ed in the year 1999. He was appointed as TGT (Science) after his passing B.Ed course. The petitioner had purchased land in village Khandel near Gangath Chaugan on 17.1.2003 for running his own private school namely Gurukul. The petitioner was running his own private school, Gurukul with his brother Vishal Sharma since March 2003. The petitioner went on casual leave for two days on 23.4.2003 and thereafter he did not turn up in the school but started sending procured medical certificates. The respondent No. 4 personally and through staff members enquired about the petitioner and they came to know that he was busy in his own private school. On 12.6.2003, registered notice was served upon the petitioner. On 17.6.2003 the petitioner reached the school for giving his joining. 9. The matter was referred to Dy. Director (Education) for clarification of the matter. Thereafter, petitioner never turned up in the school. The respondents No. 4 and 5 had sent registered notice dated 20.6.2003 to the petitioner to join the school on or before 27.6.2003 failing which action would be taken against him keeping in view the welfare of school and study of the students. The petitioner did not join. The Dy. Director respondent No. 3 had also directed the …5… petitioner to join the school immediately but petitioner did not follow the directions of respondent No. 3. Thereafter the services of the petitioner were terminated after conducting inquiry as the petitioner was not interested to serve the school. The petitioner is interested in his own school. 10. The petitioner has filed rejoinder to the reply of respondents No. 4 and 5. He has relied Grant-in-aid Rules Appendix III and has taken the stand that termination of services of the petitioner is wrong, illegal inasmuch as the procedure prescribed in Grant-in-aid Appendix III read with CCS (CCA) Rules, 1965 has not been followed by respondents No. 4 and 5 before terminating the services of the petitioner. 11. I have heard the learned counsel for the parties. Annexure A-1 dated 3.7.2003 vide which the services of the petitioner were terminated is as follows:- “Phone: 01893-20058 OFF. Public Model High School DHAMETA ROAD, JASOOR- 176201 Teh. Nurpur, Kangra (H.P.) Ref. No. 31 Regd. Dated: 3.7.2003. Shri Vivek Kumar Sharma TGT (Sc) s/o Shri ;Jiwan Lal, Vill. Lokunwa Bassa, P.O.Gangath. Sub: Termination of services. D/Vivek, I have given enough time and opportunity to explain in writing about your absence without permission. I have made inquiries and I am satisfied that you are working continuously in your school Gurukul, which you have started in your own purchased land and construction of building. You have even not adhered the advice of Dy. Director of Education Dharamshala. You have knowingly wasted the study …6… period of students for more than 2½ months and created problem to the school. It appears that you are not interested to continue your services and only putting us in trouble and wasting the study period of students. Keeping all the facts in view and interest of students and welfare of school, we are compelled to terminate our services from today the 3rd July, 2003. Sd/- President, Public Model High School, Jassur (H.P.) CC: The Dy. Director Education (H) for kind information.” 12. The Deputy Director (Education), Kangra at Dharamshala vide letter dated 23.6.2003 had directed the petitioner to join the school and advised the petitioner to give in writing to the management of the school regarding leave from 23.4.2003 to 13.6.2003 in the form of an undertaking that henceforth he would not take such a long leave. The respondents No. 1 to 5 in their replies have taken the stand that Annexure A-1 dated 3.7.2003 was issued by respondent No. 4 after conducting the inquiry and with the approval of respondent No. 3 Dy. Director. There is nothing on record except letter dated 23.6.2003 of the Dy. Director (Education) to show that an inquiry was conducted regarding the absence of the petitioner and his services were terminated after the approval of Dy. Director (Education), Kangra at Dharamshala. 13. Appendix III, Government Aided Private School Teachers (Discipline Punishment and Appeal) Rules of Himachal Pradesh Non-Government Institution (Grand-in-aid) Rules, 1977 provides procedure for imposing penalties, according to which, whenever the punishing authority is of the opinion that there are …7… grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against an employee, it may itself inquire into or appoint under this rule an authority to inquire into the truth thereof in accordance with provisions of CCS (CCA) Rules, 1965. The action on inquiry reports further provides that no order of dismissal, removal, reduction in rank or within a time scale of termination shall be passed without the prior approval of the Deputy Director of the concerned zone. The procedure shall be followed as contained in CCS (CCA) Rules 1965. 14. There is no denial of the fact that services of the petitioner were terminated vide Annexure A-1 dated 3.7.2003 on the ground that he willfully absented himself from the duty. The action taken by respondent No. 4 against the petitioner is on the basis of alleged misconduct of the petitioner for absenting himself from duty. It is the admitted case of the parties that Public Model High School, Jassur is 95% government aided school and, therefore, Himachal Pradesh Non-Government Institution (Grand-in-aid) Rules, 1977 alongwith Appendix III is applicable for terminating the services of the teachers employed by Public Model High Schoo, Jassur. There is nothing on record that Annexure A-1 dated 3.7.2003 has been passed by respondent No. 4 after following due procedure prescribed in CCS (CCA) Rules, 1965 and also after obtaining permission from the Deputy Director (Educatioin), Kangra at Dharamshala before terminating the services of the petitioner. In these circumstances, Annexure A-1 dated 3.7.2003 is not sustainable. …8… 15. In view of above, Annexure A-1 dated 3.7.2003 is quashed. The respondents No. 4 and 5 are directed to reinstate the petitioner in service within two weeks with all consequential benefits. It is made clear that respondents No. 4 and 5 shall be at liberty to proceed regarding the alleged absence of the petitioner in accordance with law. The petition stands disposed of. May 23, 2011. ( Kuldip Singh ), (Hem) Judge.