SUSHIL KUMAR DWIVEDI Vs. BASIC SHIKSHA ADHIKARI BANDA

JUDGEMENT

(1.) THE committee of management of Tilhar Junior High School Oran -district Banda passed a resolution dated 4 -3 -2002 terminating the services of the petitioner, a Headmaster in the Institution. The Basic Shiksha Adhikari, Banda by his order dated 9 -8 -2002 accorded approval to the termination of the services of the petitioner. The petitioner has prayed for quashing the order of the Basic Shiksha Adhikari dated 9 -8 -2002 as well as the resolution of the Committee of Management dated 4 -3 -2002. The ground for terminating the services of the petitioner are two -fold, namely, that he did not have the requisite three years' experience and was also below the minimum eligibility age of 25 years.

(2.) SRI Ashok Khare learned Senior Counsel for the petitioner submitted that even though at the time of appointment of the petitioner, he may not have possessed the three years' experience and may have also been below the age of 25 years but with the passage of time he had acquired the three years' experience as well as had attained the age of 25 years and as such the disqualification which was ascribed against him had ceased to exist not only at the time when the resolution for termination was passed by the committee of management and approval granted by the Basic Shiksha Adhikari but even at the time when the Institution which was unaided at the time of the petitioner's appointment came under grant -in -aid on 1 -12 -1990. It is also submitted that the committee of management had itself made the appointment of the petitioner and was, therefore, estopped from terminating his services on the ground of any infirmity in his appointment. The appointment of the petitioner at best suffered from an irregularity and, therefore, when the petitioner had acquired the required experience and had completed the age of 25 years, the services of the petitioner could not have been terminated. It is lastly submitted that opportunity of hearing as required was not given to the petitioner either by the Committee of Management or by the Basic Shiksha Adhikari and that the Basic Shiksha abdicated Adhikari his function by appointing a three member committee instead of himself taking the decision and as the such termination of the services of the petitioner is illegal.

(3.) THE questions involved in the case are questions of law. There is no dispute that the petitioner did not at the time of his appointment have the required experience nor there is any dispute about the fact that the petitioner was below the minimum age of eligibility i.e. he was below 25 years. The effect of not having these qualifications upon the appointment of the petitioner is the question which is primarily involved in the present case. The other questions relate to the jurisdiction of the Basic Shiksha Adhikari and breach of principles of natural justice. Counsel for the petitioner has placed reliance upon the decision of the apex Court in Whirlpool Tool Corporation v. Registrar of Trade Marks, Mumbai, AIR 1999 Supreme Court 22, in which it was held that the existence of alternative remedy does not affect the jurisdiction of the High Court. Looking to the nature of the questions is involved and as counter and rejoinder affidavits in this case have been exchanged, I do not propose to throw the petition out on the ground of alternative remedy.