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Chunilal Ishwarlal Patel Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 144 of 1981
Judge
Reported in1985(1)BomCR91
ActsConstitution of India - Article 22
AppellantChunilal Ishwarlal Patel
RespondentUnion of India (Uoi) and ors.
Appellant AdvocateI.J. Naik, Adv.
Respondent AdvocateJ. Dias, Adv.
Excerpt:
.....to be bad and order of reinstatement passed in appeal - respondent entered into arrangement with director of education whereby petitioner be compensated in lieu of reinstatement - letter approving such scheme challenged in present petition - appellate court found such communication bad - petitioner not heard and prior approval as contemplated under rule 74 (ii) absent - impugned communication liable to be quashed - petition partly allowed as relief of implementation of reinstatement order not permissible under this appeal. - - the termination of service was held bad and the respondent no. 5 were held to be bad. naik the learned counsel for the petitioner, contended that once the communication dated 21-6-1974 is found to be bad it would be within the jurisdiction of this court to..........in the case of oommen david v. state of maharashtra, : 1984(1)bomcr153 . that was also a case of a school teacher. certain directions were issued by the education department in favour of the school teacher. the concerned school did not obey those directions and the teacher approached the high court for certain reliefs. the division bench came to the conclusion that the education department should be directed to see that the direction is implemented by the school authorities. mr. dias contended that such directions is not permissible as, according to him, it would amount to granting indirectly a relief to the teacher which he is not entitled to. he argues that the provisions of the schools code are executive directions and that those would not be enforceable in a court of law. we do not.....
Judgment:

B.C. Gadgil, J.

1. The petitioner who was the head master in a school by name, Sarvajanik Vidyalaya (which is run by the respondent No. 5) has filed this petition challenging certain orders regarding the termination of his services.

2. Certain facts are not in dispute at this stage. The petitioner was appointed as head-master on probation on 14-11-1969. The services of a temporary servant can be terminated by giving one month's notice. On 15-9-1971 the respondent No. 5 (through its President) terminated the services of the petitioner by the end of 14-10-1971 by giving one month's notice. However, before the expiry of this period of one month the President terminated the services of the petitioner with effect from 4-10-1971. The petitioner preferred an appeal against this termination on the ground that it is illegal and not in consonance with the provisions of the Grant-in-aid Code. On 29-7-1972 that appeal was allowed. The termination of service was held bad and the respondent No. 5 was directed to reinstate the petitioner. However, the respondent No. 5 did not reinstate the petitioner though the petitioner as also the Director of Education wrote a number of letters to the respondent No. 5 in that respect. As this order emanating from the appeal being allowed was disobeyed, it appears that the Government grants of the respondent No. 5 were stopped. But, that had no effect on the respondent No. 5 and the statement continued; meaning thereby that the petitioner was not reinstated even though his appeal was allowed. In June, 1974 the respondent No. 5 wrote a letter to the Director of Education making certain proposals and sought approval of the Director. On 21-6-1974 the Director wrote a letter (Exhibit 'T' to the petition) to the respondent No. 5. It would be convenient to reproduce that letter:---

'With reference to your letter dated 18th June, 1974, I am directed to inform you that your proposal to terminate the services of Shri C.I. Patel by considering him permanent from 14th November, 1971 and paying him compensation of 6 months salary is approved.

You may, therefore, pay him from 1st upto 14th November, 1971 and thereafter for 6 months period as laid down in Rule 74(ii) of the GIA Code and terminate his services in accordance with the said rule'.

It is this letter or order that is being challenged by the petitioner in this petition.

3. The petition was initially heard by the Acting Judicial Commissioner on 16-10-1982. It was summarily dismissed. Against this decision the petitioner filed Letters Patent Appeal No. 1 of 1983. Shri Chunilal Ishwarlal Patel v. The Union of India. That appeal was allowed on 22-9-1983. The judgment has been : 1984(1)BomCR115 . The Division Bench found that the dismissal of the writ petition was not correct. The judgment of the Division Bench is a detailed one. It has taken into account the various prayers that were made in the petition. In fact, there were two prayers i.e. (i) quashing the order dated 21-6-1974 and (ii) writ or direction to the Director of Education to compel the management of the school to reinstate the appellant. The Division Bench came to the conclusion that the relief No. (1) can be appropriately and validly claimed. However, it was found that the relief No. (2) is not permissible. After recording these findings the Division Bench allowed the appeal. Consequently, the petition is being heard on merits.

4. The question as regards the correctness and legality of the communication dated 21-6-1974 has been considered in the judgment in Letters Patent Appeal No. 1 of 1983. There was a detailed discussion about it and it can very well be seen that the Appellate Court has found that the said order or communication is bad. Apart from that, we, after scrutinising the legal position, would also come to the same conclusion. The Director of Education has on 29-7-1972 allowed the petitioner's appeal. Thus, the termination of the services by the respondent No. 5 were held to be bad. The communication dated 21-6-1974 permitting the respondent No. 5 to terminate the services of the petitioner on the basis that he is a permanent teacher has a result of doing away with the earlier decision. It is doubtful as to whether the Director of Education has jurisdiction to set aside the earlier decision. Apart from that, this communication dated 21-6-1974 which is highly prejudicial to the petitioner has been issued without the petitioner being heard in the matter. The third lacuna in the order is that under Rule 74(ii) a prior approval for the termination of the services of a permanent teacher is necessary and what is done by the communication dated 21-6-1974 is to approve the termination in 1974, but to be given effect from 1971. This is not permissible and highly objectionable. In view of this legal position it would be necessary to quash the impugned communication dated 21-6-1974.

5. Mr. Naik the learned Counsel for the petitioner, contended that once the communication dated 21-6-1974 is found to be bad it would be within the jurisdiction of this Court to issue directions or orders for implementing the earlier order dated 29-7-1972. In substance he contends that the Director of Education should be compelled to enforce his own order about the reinstatement of the petitioner. He drew our attention to the decision of this Court in the case of Oommen David v. State of Maharashtra, : 1984(1)BomCR153 . That was also a case of a school teacher. Certain directions were issued by the Education Department in favour of the school teacher. The concerned school did not obey those directions and the teacher approached the High Court for certain reliefs. The Division Bench came to the conclusion that the Education Department should be directed to see that the direction is implemented by the school authorities. Mr. Dias contended that such directions is not permissible as, according to him, it would amount to granting indirectly a relief to the teacher which he is not entitled to. He argues that the provisions of the Schools Code are executive directions and that those would not be enforceable in a Court of law. We do not intend to consider this controversy afresh particularly when the decision in the Letters Patent Appeal No. 1 of 1983 has clearly held that such type of relief is not permissible. In para 14 of the judgment the Division Bench has observed as follows. : 1984(1)BomCR115

'In view of this clear settled position in law, we do not see how the prayer to direct the Director of Education to compel the management of the school to reinstate the appellant could have been granted. In our opinion, neither in Kamla Prasad Shukla's case nor in Elsa Barreto's case it has been laid down that such a direction could be properly given under Article 226 of the Constitution.'

In view of this pronouncement in this very litigation it will not be possible for the petitioner to claim the relief about the implementation of the order of reinstatement.

6. The result is that the petition partly succeeds. Rule is made absolute to the limited extent of quashing the order or communication dated 21-6-1974, exhibit 'T' to the petition. No order as to costs.


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