GURU NANAK KHALSA HIGH SCHOOL, SECTORS 30-B, CHANDIGARH Vs. THE CHANDIGARH ADMINISTRATION THROUGH THE SECRETARY FINANCE-CUM-EDUCATION, CHANDIGARH AND OTHERS

JUDGEMENT

(1.) This judgment will dispose of civil writ petition Nos. 3628 of 1986 and 4288 of 1985, as common questions of law and fact are involved in them.

(2.) The facts giving rise to civil writ petition No. 3628 of 1986 are that Respondent No. 3 was appointed as a Clerk with the Petitioner with effect from 26.5.1983. At that time the management of the Petitioner -school was in the hands of the Director of Public Instructions (Schools), Chandigarh Administration, who bad been appointed Receiver of the school in the proceedings initiated under Sec. 145, Criminal Procedure Code, under orders of the Sub Divisional Magistrate, Chandigarh. These proceedings were ultimately dropped on 30.4.1985 and the management of the school was given back to its Managing Committee with effect from 1.5.1985. The appointment of Respondent No. 3 was on temporary basis was to last uptill the expiry of the tenure of the Receiver, which is evidenced by the order dated 16/18 -5 -1985, (Annexure P 1). However, the appointment of Respondent No. 3 was extended for 89 days from 1.5.1985 vide letter dated 28.5.1985 (Annexure P 2) Similar extensions were granted upto 31.5.1986 and vide order dated 31.3.1986, the District Education Officer, while granting the last approval of extension in the temporary service of Respondent No. 3, intimated that decision regarding regularisation of the services of Respondent No. 3 should be taken by 31.5.1986, as no more approval will be granted on purely temporary basis. The matter was taken up by the Managing Committee of the Petitioner -school in its meeting held on 30.5.1986 It was decided to terminate the services of Respondent No. 3 and to consider him afresh for reappointment after the opening of the school after summer vacations. An order dated 31.5.1986 (Annexure P. 4) terminating the services of Respondent No. 3 was duly issued to him. Respondent No. 3 invoking the provisions of Sub -section (4) of Sec. 3 of the Punjab Aided Schools (Security of Service) Act, 1969, as applicable to the Union Territory of Chandigarh (for short 'the Act'), made an application to the Deputy Commissioner, Chandigarh -Respondent No. 2, complaining that he had been removed from service without complying with the provisions of Sub -section (2) of Sec. 3 of the Act and without affording him reasonable opportunity of being heard as contemplated therein, Respondent No. 2 on hearing the counsel for Respondent No. 3 passed the order dated 5.6.1986 (Annexure P. 5), whereby he stayed the operation of the order (Annexure P. 4) and issued notice of the application to the Petitioner for 26.6.1986. The Petitioner has approached this Court through the present writ petition for quashing the impugned order (Annexure P. 5).

(3.) The petition has been opposed by Respondent No. 3 and written statement on his behalf has been filed. Respondent No. 3 has placed on record an office order dated 26 -3 -1983 (Annexure R3/1), and has contended that his initial appointment was on probation for a period of one year and that on completion of the probationary period, he was automatically confirmed on the post of Clerk with the Petitioner. Therefore, his services could not be terminated by order (Annexure P. 4). He could be removed from service only by taking recourse to the provisions of Sub -section (1) of Sec. 3 of the Act and since this was not done, he approached Respondent No. 2 by making an application under Sub -section (4) of Sec. 3, ibid, and that the order passed by Respondent No. 2 staying the operation of order (Annexure P. 4) is valid. Similar stand has been taken by Respondent No. 1. It has further been contended on his behalf that even if the Petitioner maintain that Respondent No. 3 was a temporary hand, it can agitate the matter before Respondent No. 2, who is required to lift veil of the order of simple termination to find out whether it is removal/dismissal from service or not.