JUDGMENT Rakesh Tiwari, J.
1. These writ petitions are based on same facts and same questions of law are involved in all these writ petitions. Since in Writ Petition No. 7306 of 2003, detailed reply of the respondents covering the other two connected writ petitions has been filed by way of counter-affidavit, therefore, this writ petition is taken to be the leading case.
2. The admitted facts in the above noted writ petitions are that the Cantonment Board, Varanasi, runs one Junior High School, one Boys Primary School and one Girls Primary School. The total strength of the teachers in all the three schools is 18 as under :
(i) Junior High School Head Master 1 Assistant Teacher 3
(ii) Boys Primary School Head Master 1 Assistant Teacher 8
(iii) Girls Primary School Head Master 1 Assistant Teacher 4
3. Sri Uma Shanker Ram, Head Master and Sri G. K, Sharma, Assistant Teacher in Junior High School retired on 2.6.2001 and 31.5.2001 respectively. One of the vacancies of Head Masters was filled up by promotion of Ms. Vibha Srivastava. The resultant vacancies of two posts of Assistant Teachers in Junior High School were filled up by promotion of Sri Raj Bahadur Yadav and Sri Rajesh Singh Kushwaha. Due to above promotions two vacancies of Assistant Teachers were caused in the Boys Primary School while one vacancy of Assistant Teacher was already existing in the Boys Primary School.
4. It appears that due to disciplinary proceedings Sri M. Prasad and Sri H.N. Pathak, Assistant Teachers in Primary School were compulsorily retired from service on 17.7.2001. The above mentioned five vacancies were to be filled up by direct recruitment for which an advertisement was published in 'Dainik Jagran' dated 18.7.2001 by the Cantonment Board inviting applications for appointment of Assistant Teachers. Out of the three vacancies, two were reserved for general category candidates and one was reserved for backward candidate. Interview was fixed for 8.8.2001. One of the terms and conditions of the advertisement was mentioned that it is subject to Vacancies' laying down the terms and conditions of appointment of the Assistant Teachers.
5. Pursuant to the advertisement the petitioner being qualified applied for the post of Assistant Teacher in the school run by the Cantonment Board and was selected. Vide letter dated 19.8.2001 the petitioner was informed that he has been selected with certain terms and conditions enumerated in the letter. Condition Nos. 3 and 4 are relevant. They were as under :
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6. The contention of the petitioner is that he did not give his willingness and acceptance to the terms and conditions enumerated in the aforesaid letter of offer dated 19.8.2001 but the appointing authority appointed the petitioner on probation for a period of two years. The copy of the said letter shows that the petitioner was appointed as Assistant Teacher on probation of two years and that his services shall be governed by the Cantonment Funds Service Rules, 1937 (hereinafter referred to as the C.F.S. Rules) as amended from time to time. The petitioner joined his services and continued to work till his services were terminated by the Cantonment Executive Officer, Varanasi, under order dated 19.12.2002 with immediate effect, which states that in pursuance of Cantonment Board Resolution Nos. 19, 20 and 21 dated 18.12.2002 in consonance with condition No. 4 of office letter dated 9.8.2001 the temporary services of the petitioner as an Assistant Teacher, Cantonment Board Boys Primary School are terminated.
7. It appears that the two teachers who had been compulsorily retired filed appeal which were allowed and they were ordered to be reinstated. Consequently the Cantonment Board passed resolution for terminating the services of the petitioner with effect from 19.12.2002 (A/N) who was still working as probationer. The resolution Nos. 19, 20 and 21 referred to in the order of termination by the Executive Officer Cantonment Board are as under :
"19. The Board considered the Dte. D.E., Ministry of Defence, Central Command, Lucknow letter No. PC-9878/GKS/LC 6. dated 12.12.2002 order dated 11.12.2002 of the G.O.C.-in-Chief, Central Command Lucknow" on the appeal against the penalty of compulsory retirement of Shri G.K. Sharma. As per orders of the G.O.C.-in-Chief the appellate authority in the above case, the Board unanimously resolved that Sri G. K. Sharma be reinstated in service as Asstt. Teacher Junior High School, Cantonment Board, Varanasi, with immediate effect.
20. The Board considered the Dte. D.E., Ministry of Defence, Central Command, Lucknow letter No. PC-9878/MP/LC 6, dated 12.12.2002 order dated 11.12.2002 of the G.O.C.-in-Chief, Central Command, Lucknow, on the appeal against the penalty of compulsory retirement of Shri M. Prasad. As per orders of the G.O.C.-in-Chief the appellate authority in the above case, the Board unanimously resolved that Shri M. Prasad be reinstated in service as Asstt. Teacher Primary School, Cantonment Board, Varanasi, with immediate effect.
21. The Board considered the Dte. D.E., Ministry of Defence, Central Command, Lucknow letter No. PC-9878/HNP/LC 6, dated 12.12.2002 order dated 11.12.2002 of the G.O.C.-in-Chief, Central Command, Lucknow, on the appeal against the penalty of compulsory retirement of Shri H.N. Pathak. As per orders of the G.O.C.-in-Chief the appellate authority in the above case, the Board unanimously resolved that Shri H.N. Pathak be reinstated in service as Asstt. Teacher Primary School, Cantonment Board, Varanasi with immediate effect."
8. In view of Resolution Nos. 19, 20 and 21, the Board further resolved :
"Consequent upon the reinstatement of the above three teachers as per the orders of appellate authority, Sri Raj Bahadur Yadav who was promoted to the post of Asstt. Teacher Junior High School filling vacancy arising upon the compulsory retirement of Sri G.K. Sharma, Asstt. Teacher Junior High School be reverted to his earlier post, i.e., Asstt. Teacher Primary School."
9. Earlier the resultant vacancies due to the promotion of Shri Raj Bahadur Yadav from Asstt. Teacher Primary School to Asstt. Teacher Junior High School and compulsory retirement of Shri H.N. Pathak and Shri M. Prasad, Asstt. Teachers Primary School have been filled up through direct recruitment working as Asstt. Teachers Primary Schools as below ;
Date of Appointment (1) Sri Abhijeet Kumar 11.7.2001 (2) Shri Surendra Kumar Tiwari 11.7.2001 (3) Shri Ajay Yadav 10.8.2001
10. The Board unanimously resolved to terminate the services of Shri Abhijeet Kumar, Shri Surendra Kumar Tiwari and Shri Ajay Yadav as above in consonance with condition No. 4 as mentioned in letter dated 9.7.2001 in case of employees at Sl. Nos. 1 and 2 and letter dated 9.8.2001 in case of employee at Sl. No. 3.
11. The contention of the petitioner is that a perusal of the impugned order dated 19.12.2002 and resolution Nos. 19, 20 and 21 demonstrates that the respondents have terminated the services of the petitioner treating him to be temporary/part-time Asstt. Teacher, whereas neither in the advertisement dated 18.7.2001 inviting applications for appointment of Assistant Teachers nor in the appointment letter there is any whisper about the fact that the appointment of the petitioner is on temporary basis. It is submitted that the reason given for termination of services of the petitioner that the appointment of the petitioner is liable to be terminated in view of condition No. 4 of office letter dated 9.8.2001 is incorrect, wrong and illegal for the reasons (1) condition No. 4 will not apply in view of the fact that the petitioner at no point of time has given his willingness to accept the conditions imposed vide letter dated 9.8.2001 and (2) the impugned order of termination does not disclose any reason for terminating the services of the petitioner.
12. It is admitted to the respondents that three vacancies of Assistant Teachers at the Primary School were filled up through direct recruitment pursuant to the advertisement dated 18.7.2001 on probation of two years.
13. Sri Brij Bhushan Pandey, aggrieved by the order approached this Court by way of filing Writ Petition No. 30648 of 2002 which is pending and the Court has declined to grant any interim order.
14. In the case of Sri H.N. Pathak he was also issued a show cause notice and was compulsorily retired. He also preferred an appeal under Section 14 of the C.F.S. Rules and by order dated 11.12.2002 the G.O.C.-in-Chief set aside the order dated 17.7.2001 who a direction to reinstate Sri H.N. Pathak. He also filed writ petition No. 38496 of 2001 which is said to be pending in this Court. The directions are not statutory and are mere executive instructions. It is internal administrative procedure which is not provided in rules.
15. It is worth mentioning that Sri Uma Shanker Ram, Head Master, Junior High School has already retired having completed the age of superannuation on 31.7.2002, and another teacher Km. Shilpi Ghosh who was appointed along with S/Sri Surendra Kumar Tiwari and Abhijeet Kumar (who have obtained stay orders respectively in Writ Petition Nos. 1239 of 2003 and 7313 of 2003) has already left the service inasmuch as she got employment elsewhere. Thus, three posts have become vacant.
16. The four Assistant Teachers, namely, Brij Bhushan Pandey, Abhijeet Kumar, Surendra Kumar Tiwari and Ajai Yadav who were selected after due procedure and selection and are working though kept on probation for a period of two years. Before completion of probationary period, as a result of reinstatement of some teachers, their services have been terminated.
17. The counsel for the respondents contends that it is in this background that the advertisement dated 18.7.2001, was published and further it was specifically mentioned in the advertisement as condition No. 1 that the vacancies are subject to change or subject to vacancies. In the appointment letter also it was specifically stated as condition No. 4 that the services of the petitioner could be terminated at any time and without any information and reason and these conditions were accepted by him as mentioned in his letter dated 9.8.2001, as well as in his joining report dated 22.8.2001.
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18. He further submits that the four teachers were aware of the facts when they joined service in pursuance of the advertisement and selection that they have been appointed due to resultant vacancies of four compulsorily retired teachers against whom disciplinary proceedings were taken. As a result of appeals of the four compulsorily retired teachers having been allowed by G.O.C.-in-Chief, the services of the newly recruited teachers will automatically be terminated. It is also submitted that the Cantonment Executive Officer was required to obtain permission of the Directorate, Central Command, Lucknow, before making four appointments but no such permission was at all obtained before appointing four teachers. The Director General, Defence Estates, Government of India, Ministry of Defence, R.K. Puram, New Delhi issued letter No. 9/5/C/DE/88-89, dated 3rd July, 1989 to all the Directors, D.E., intimating them that no post should be filled without prior approval. In the same way the Principal Director, Defence Estates, Central Command, Lucknow, sent letter No. 82562/Rulings/LC 6, dated 5th January, 1998 to all the Cantt. Executive Officers in the Central Command including Varanasi to the effect that prior clearance from the Directorate for filling up the vacancies should be obtained. The Principal Director again repeated the same circular through letter No. 17838/XVI/LC 6, dated 22nd October, 2001, to the effect that no vacant post whether direct recruit or promotion post will be filled up without prior approval of the Directorate, Central Command.
19. It is submitted that since :
(1) The petitioner was probationer and as such his services could have been terminated at any point of time during probation.
(2) The petitioner had accepted the conditions contained in the letter of appointment dated 9.8.2001. According to condition No. 4 read with Rule 8 of the C.F.S. Rules his services could be terminated at any point of time.
(3) Since the G.O.C.-in-Chief had allowed the appeal of some of the teachers (who are not connected with the dispute) it became necessary to terminate the services of the newly appointed teachers.
20. He submits that the action of terminating the services of the newly recruited teachers cannot be challenged in the changed circumstances particularly when they were only probationers and had no right to hold the post. Even if his work was not unsatisfactory, there is justification to accept the contention of the respondents that the services of the petitioner could not be continued.
21. The counsel for the petitioner submitted that neither the advertisement nor the appointment letter bears any such condition that the petitioner is being appointed in place of certain teacher against whom, disciplinary proceedings are pending. From the perusal of the notice inviting applications and from the conditions of the appointing letter it is evidently clear that the candidates who had applied for the post of Assistant Teachers were given to understand that the posts were substantive. There is no averment at all that the post was temporary and their services could be terminated in case the appeals of certain teachers are allowed. The petitioner was not appointed against the post of a particular teacher who had been compulsorily retired in pursuance of the resolution of the Cantonment Board hence the termination is not invalid.
22. Sri Dube has insisted on following conditions contained in the appointment letter :
(1) on his work being found unsatisfactory ;
(2) for any other reason without any prior notice and without giving any reason.
23. It is true that the petitioner is probationer and due to unforeseen event his services can be terminated. But there is other side also. Admittedly, the services of the petitioner are not unsatisfactory. He has not come from back door and is qualified. He came with legitimate expectation to service in employment of the Board. As stated above 3 posts are available for such employees. It is, therefore just and proper that the petitioner be absorbed against the posts which are available or which may become available in near future, say one year.
24. For the reasons stated above, the writ petition is disposed of with the above directions. The respondent Board is directed to reconsider the matter in the above light. No order as to costs. This judgment will also decide the connected Writ Petition Nos. 1239 of 2003. Abhijeet Kumar v. Cantt. Board and Anr. and 7313 of 2003, Surendra Kumar v. Cantt. Board and Anr..