JUDGMENT S. P. Srivastava, J.
1. Heard the learned counsel for the appellant.
2. Sri H. R. Misra, the learned standing counsel representing the respondents Nos. 1 and 2 as well as Dr. Padia, learned senior advocate, representing the petitioner-respondent No. 3 have also been heard.
3. Perused the record.
4. The dispute in this case relates to the appointment and the entitlement of respondent No. 3 to hold the post of an Assistant Teacher in an educational institution known as Nehru Jai Jawan Jai Kisan Junior High School, Galand, Ghaziabad, which institution imparts education up to the standard of class-VIII and receives the grant-in-aid from the State. At present, an Authorised Controller has been appointed for that institution vesting him with the jurisdiction exercisable by the Committee of Management.
5. This appeal has been filed by the Committee of Management through the authorised controller, feeling aggrieved by the order of the learned single Judge holding that the respondents which included the Regional Deputy Director of Education and Basic Shiksha Adhikari, Ghaziabad, were not entitled to be heard in opposition to the writ petition as they had in utter disregard of the impugned order dated 22.2.2002 passed by this Court had not carried into effect the said order.
6. It may be noticed that feeling aggrieved by the interim order dated 22.2.2002, a special appeal had been filed, which was registered as Special Appeal No. 343 of 2002 and was finally disposed of vide the order dated 21.3.2002, directing that the writ petition be listed on 16.4.2002, indicating the expectation that the writ petition shall be disposed of as early as possible. The appellant was given a liberty to move an application for vacating the interim order. Pursuant to the aforesaid order passed by the Division Bench disposing of the special appeal, an application seeking vacation of the interim order was filed on 16.4.2002. The learned single Judge vide the order dated 25.3.2003 had directed the respondents to inform the Court by the next date fixed as to whether the interim order dated 22.2.2002 with regard to the payment of current salary of the petitioner had been complied with or not, providing further that the interim order dated 22.2.2002 shall continue to remain operative until further orders of this Court. The learned counsel for appellant has urged that in spite of the order passed by the Division Bench for the expeditious hearing of the writ petition and even fixing a date for its disposal, nothing was done and the writ petition continues to remain pending undecided.
7. The grievance raised by the learned counsel for the appellant is that on the one hand, the writ petition is kept pending and on the other hand, the appellant is being insisted to comply with the interim order granted in favour of the petitioner ignoring altogether the fact that the petitioner had obtained the interim order by practicing fraud and on the basis of misrepresentation of facts. It is urged that in the present case, the fraud and misrepresentation is writ large, yet the learned single Judge has passed the impugned order without disposing of the application seeking vacation of the interim order.
8. A perusal of the writ petition giving rise to the special appeal indicates that the main grievance of the petitioner is that absolutely no inquiry, whatsoever, was held, by the College Management/ Authorised Controller, which was the competent authority under the relevant rules and even the Basic Shiksha Adhikari concerned, before passing the impugned order which visited the petitioner with evil consequences. It is further urged that the services of the petitioner could not be terminated after a long period of 22 years and payment of her salary could not be dented after such a long period of regular working without affording a reasonable opportunity of being heard to her.
9. Learned counsel for the petitioner-respondent has further urged that the District Basic Shiksha Adhikari had no Jurisdiction to pass the impugned order, as it was only the Managing Committee, which could terminate the services of a person who is an employee of the institution.
10. The record indicates that the authorised controller had passed an order on 24.10.2001 wherein it was held that the petitioner had obtained a B.Ed. Degree from a non-existent University and further that she had secured an appointment on the post in question at a time when she was studying in the same college. The Basic Shiksha Adhikari was of the further view that being the wife of the then Manager, she could not be selected by a Selection Committee of which the manager was a member. It was contrary to the statutory provisions. On the aforesaid findings, holding that the B.Ed. Degree claimed to have been obtained by the petitioner was a fictitious document, her entitlement for getting salary was negatived. On 31.10.2001, the Authorised Controller consequentally passed an order terminating the services of the petitioner.
11. The learned counsel for the appellant as well as the learned standing counsel representing, the Regional Director of Education, Meerut, as well as Basic Shiksha Adhikari, Ghaziabad, respondent Nos. 1 and 2, respectively have stated that they will have no objection to the quashing of the aforesaid two orders dated 24.10.2001 and 31.10.2001, as the petitioner had not been afforded any opportunity of hearing before passing of the said orders. He, however, further stated that they may be given liberty to proceed against the petitioner after holding the regular inquiry, as contemplated under the rules into the matter of fraud and misrepresentation and ineligibility of the petitioner to get an appointment as an Assistant Teacher in the institution. Learned counsel for the petitioner has urged that taking advantage of her own fraud and misrepresentation, the petitioner is trying to get the salary, etc. which will cause financial loss to the State Exchequer.
12. Learned counsel for the petitioner states that the petitioner is ready to face the full-fledged inquiry into the aforesaid aspects before the termination of her service.
13. It has been urged by the learned counsel for the respondent-petitioner that the impugned order passed by the learned single Judge cannot fall within the ambit of the expression "judgment" as envisaged under Chapter VIII Rule 5 of the Rules of the Court and in this view of the matter, the present special appeal cannot be held to be maintainable.
14. As pointed out by the Apex Court in its decision in the case of Shanti Kumar R. Canji v. Home Insurance, Co. of New York, AIR 1974 SC 1719. in finding out whether the order is a judgment, it has to be found out that the order affects the merits of the action between the parties by determining some right or liability. The nature of the order will have to be examined in order to ascertain whether there has been a determination of any right or liability.
15. The impugned order contains the traits, trappings and qualities and characteristics of a final order. Although the expression 'judgment' has not been defined either in the Letters Patent or under the Rules of the Court but whatever tests may be applied, the order impugned in the present case clearly shows that the order has in it the traits and trappings of finality and taking into consideration its ultimate effect, has to be taken to be in the nature of a final order so as to fall within the definition of the 'judgment'
16. In view of what has been indicated hereinabove, the objection in regard to the maintainability of the special appeal is clearly devoid of merit and is not at all sustainable.
17. Taking into consideration the facts and circumstances as brought on record, we are clearly of the opinion that it will be appropriate that the impugned orders, which are claimed to have been passed without affording any reasonable opportunity of hearing to the petitioner deserve to be quashed with the liberty to the present appellant as well as the present respondent Nos. 1 and 2 to hold an inquiry into the aforesaid matter of fraud and misrepresentation of facts and other aspects going to the root of the matter after proceeding in accordance with law ensuring that the entire exercise is completed within three months from today.
18. This special appeal as well as the writ petition shall stand disposed of accordingly.
19. It is, however, provided that the salary and other allowances to which the petitioner is entitled on the basis of the earlier approval of her appointment by the Basic Shiksha Adhikari dated 6.2.1993 shall be paid to her henceforth subject to her furnishing adequate security for the amount to the satisfaction of the Basic Shiksha Adhikari, Ghaziabad. The security may include the amount lying with the State to the credit of the petitioner like Provident Fund, etc.
20. The petitioner-respondent shall co-operate in the inquiry.
21. Ordered accordingly.