JUDGMENT Aloke Chakrabarti, J.
1. Challenging the order dated 30.11.1987 whereby the service of the petitioner was terminated the present writ petition has been filed.
2. The petitioner claiming himself to be appointed as a demonstrator was initially suspended by order dated 10.8.1987. The said order was challenged in a writ petition which was disposed of without interference and with a direction that if the petitioner makes a representation, the same shall be decided. The petitioner complains that although the petitioner made representation before the District Inspector of Schools in terms of the aforesaid order, but his service was terminated by order dated 30.11.1987 by the Principal of the Institution concerned. Even after the District Inspector of Schools was approached by the petitioner, his application was rejected by order dated 29.12.1987.
3. The respondents filed counter-affidavit contending that the petitioner was appointed as Class IVth employee and there was no post of demonstrator and the petitioner was also dealt with as a Class IVth employee. It is stated that after completion of due enquiry and giving all opportunities, ultimately his service was terminated by the impugned order and the matter was duly dealt with by the concerned District Inspector of Schools and has been approved.
4. The petitioner filed rejoinder-affidavit. Pending writ petition, the original petitioner expired and his heirs filed substitution application as in respect of money claim in view of the death of the petitioner the heirs are having substantial interest to proceed with the writ petition.
5. At the time of hearing, the parties agreed to final disposal of the writ petition at this stage as the affidavits have been exchanged.
6. Learned counsel for the petitioner contended that the documents disclosed along with counter-affidavit indicate that the forged documents have been filed and the petitioner was actually not given any opportunity to defend his case. In respect of such contention, the learned counsel for the petitioner referred to Annexure Nos. 9 and 10 to the counter-affidavit and contended that the report dated 14.11.1987 prepared by the enquiry officer records that the petitioner was granted opportunity to defend on 15.11.1987 which is impossible and this shows that the petitioner was not actually given any opportunity. In respect of this contention the learned counsel for the respondents contended that the petitioner is trying to take advantage of a typographical mistake and the said mistake is apparent from Annexure No. 8 to the counter-affidavit which indicates that the petitioner sought for the documents on 12.11.1987 showing that he was given opportunity on 12,11.1987 and not on 15.11.1987 which is a typographical mistake and contrary to the specific record bearing the actual date being Annexure No. 8 to the counter-affidavit. This contention of the respondents is prima facie acceptable. Moreover, it appears that even the petitioner did not take-up such point either in the writ petition or in the rejoinder-affidavit particularly when such a contention is a contention on facts and are required to be pleaded and cannot be urged for the first time at the time of hearing. In the aforesaid circumstances, the said contention of the petitioner is not acceptable.
7. Second contention of the petitioner is that by virtue of provision of Regulation 31, the respondents are required to obtain prior approval before termination of the petitioner. Admittedly that having not been done, the petitioner is entitled to quashing of the order of termination. Reference has been made to provision of Section 16G (3) of the U. P. Intermediate Act, 1921 and Regulation 31 of the Regulations framed under the said Act. With reference to aforesaid provisions of law, the contention has been made that the order of termination without approval of District Inspector of Schools is illegal. Such contention raised before the District Inspector of Schools had been rejected in the Impugned order.
8. While considering the aforesaid contention. I find that sub-section (3) of Section 16G of U. P. Intermediate Education Act, 1921 clearly provides for approval of Inspector in case of discharge, removal, dismissal from service reduction in rank diminution fn emoluments and termination of service but this provision only makes reference of Principal. Headmaster and Teachers and no categorical reference of Class IVth employees has been made therein. But, subsection (1) of Section 16G provides that the condition of service of every person employed in a recognised institution shall be governed by Regulations. Therefore, Statute permits framing of Regulations providing conditions of service of every person employed and therefore this includes Class IVth employees also. Regulation 31 of Chapter III of the Regulations so framed under the U. P. Intermediate Education Act, 1921 provides for prior approval in case of certain punishments including termination. Regulation 100 of the said Regulations though does not categorically make Regulation 31 applicable in case of Class IVth employees but it also does not categorically exclude Regulation 31 from Its applicability to Class IVth employees. Therefore, the only provisions of Regulation 31 indicates its scope of applicability. It is true that first paragraph of Regulation 31 while providing for prior approval in case of some punishments, does not refer to Class IVth employees specially but the said first paragraph providing for prior approval referes to all employees and there is no reason to presume exclusion of Class IVth employees from the applicability of the said Regulation. The subsequent paragraphs in Regulation 31 clearly refer to Class IVth employees.
9. In view of the above discussion. I am of the opinion that the provision of Regulation 31 read with Section 16G (1) of the Act makes it clear that in case of Class IVth employees prior approval of Inspector or Regional Inspector is required.
10. Learned counsel for the petitioners has referred to the case of Awdhesh Singh v. District Inspector of Schools, 1996 (2) UPLBEC 766, in support of his contention. Learned counsel for the respondents contended that the petitioner in the said case was holding a Class IIIrd post on promotion and as such, the law decided therein is not attracted in the present case of the petitioner holding a Class IVth post.
11. A perusal of Regulations 36 and 37 of the said Regulations indicates that they provide for procedure in respect of disciplinary proceeding. Proviso to Regulation 37 only excludes Class IVth employees to the extent the said Regulation 37 requires sending of the report and the recommendation to the District Inspector of Schools for approval making it clear that the said entire proceedings relating to Class IVth employees are to be performed by the appointing authority. This has been done as in respect of Class IVth employees the appointing authority is the Principal whereas in respect of teachers the appointing authority is Committee of Management and Regulation 37 provides for sending of report and recommendation of the Enquiry Officer to the Committee of Management which was to consider the same and take a decision and then to send the entire record to the Inspector for his approval. Therefore, proviso to Regulation 37 was required making it clear that for Class IVth employees, sending of papers to the Inspector was to be made by the Principal, being the appointing authority and in this case papers were not to be sent by the Committee of Management which is not the appointing authority.
12. In view of the aforesaid law and when the respondents in their counter-affidavit have admitted that no approval was obtained as not required as the petitioner was a Class IVth employee, the writ petition succeeds and the impugned order could not be made effective in the absence of prior approval of the Inspector.
13. The writ petition thus is allowed. The termination order dated 30.11.1987 at Annexure No. 2 to the writ petition is hereby quashed.