JUDGMENT Sudhir Narain, J.
1. The petitioner seeks writ of certiorarf quashing the resolution dated 20.10.1997 passed by the Committee of Management, Sri Ganesh Inter College, Kasganj, Etah. resolving to terminate the services of the petitioner and the letter of the Manager dated 23.10.1997, whereby he was Informed that his services have been terminated and a writ of mandamus commanding the Committee of Management to comply with the order of the District Inspector of Schools. Etah, dated 28.10.1997, whereby he held that the said resolution was inoperative without its approval by the competent authority.
2. The facts in brief are that in Sri Ganesh Inter College, Kasganj, Etah (hereinafter referred to as the Institution), there existed a substantive vacancy of Assistant Teacher in L.T. grade for teaching Hindi subject. The Committee of Management sent the resolution pertaining to the said vacancy to the U. P. Secondary Education Services Commission, Allahabad (In short the Commission). The Commission Issued the advertisement in the year 1996, whereby applications were invited for various posts of Assistant Teacher in L.T. grade Including the post in question. The petitioner applied for the said post. He appeared before the Commission for interview. He was selected and was recommended by the Commission for appointment in the Institution. The Committee of Management issued appointment letter to the petitioner on 24.10.1996 appointing him as Assistant Teacher in L.T. grade for the period of one year on probation. The petitioner, in pursuance of the said letter, joined the institution on 25.10.1996. The Committee" of Management, before expiry of the period of one year, passed a resolution on 20.10.1997 dispensing with the services of the petitioner with immediate effect purporting to exercise the powers under Regulation 25 of Chapter-III of the Regulations framed under the U.P. Intermediate Education Act. The Manager of the Institution sent a letter to the petitioner on 25.10.1997 informing him that his services have been terminated. The petitioner submitted representation before the District Inspector of Schools, Etah on which he issued a direction to the Committee of Management for permitting the petitioner to join the Institution and permit him to discharge his duties as no order of termination could be passed without prior approval of District Inspector of Schools as provided under Section 16G (3) of the U. P. Intermediate Education Act. The petitioner was, however, not permitted to function by the Committee of Management and he has filed this petition for the reliefs mentioned above.
3. The controversy is as to whether the Committee of Management is entitled to terminate the services of a teacher appointed on probation without obtaining any prior approval of the Commission as provided under Section 21 of Uttar Pradesh Secondary Education Services Commission and Selection Board's Act. 1982. Sub-section (1) of Section 21 of the Act provides that no teacher specified in the Schedule shall be dismissed or removed from service or reduced in rank and neither his emoluments may be reduced nor he may be given a notice of removal from service by the Management unless prior approval of the Commission has been obtained. Subsection (3) provides that every order of dismissal, removal or reduction in rank or removal from service or reduction in emoluments of a teacher in contravention of the provisions of sub-section (1) or sub-section (2) shall be void. The contention of learned counsel for the respondent is that the Committee of Management passed order simpllcltor discharging the petitioner from service within the period of probation. He was appointed on probation for one year and the Committee of Management was entitled to consider his performance during the period of one year and it was for the Management to terminate the services or to extend the period of his probation.
4. Regulation 10 of Chapter III of the Regulations framed under the U. P. Intermediate Education Act. 1921 provides that a person placed on probation shall be confirmed if he fulfils the requirements of Regulation 9 and has worked with diligence and otherwise proved himself fit for the post for which he was recruited and his integrity is certified. Regulation II further lays down that unless before the expiry of the period of probation, the service of a Head Master, Principal or teacher is terminated or action is taken to dismiss, discharge or remove him or reduce him in rank or in the case of Head Master or Principal the period of probation is extended under Regulation 10 following, he shall be confirmed on the post and in the grade at the end of his probation. Regulation 25 provides that the service of a temporary employee other than a probationer or of probationer during the term of his probation, can be terminated at any time by giving him one month's notice or one month's pay in lieu thereof. This provision was considered by the Division Bench of this Court in Managing Committee. Sohan Lal Higher Secondary School. Rajendra Nagar, Lucknow v. Sheo Datt Gupta and another. 1974 ALJ 465,. and it was held that prior approval of the District Inspector of Schools was required under Section 16G (3J (a) of the U. P. Intermediate Education Act even in the case of a probationer inasmuch as the provisions of Section 16G (3) (a) does not make any distinction between a teacher appointed on probation or he is confirmed. It was observed ;
"To sum up. Section 16G (3) (a) of the Act having been worded generally will apply to every case of termination of service where prior to the termination some notice has to be given. It therefore, applies to a probationer also, and therefore, the services of a probationer cannot be terminated unless notice of termination is served after obtaining the approval of the Inspector."
5. In Om Prakash v. U. P. Secondary Education Services Commission Allenganj. Allahabad and others, (1990) 2 UPLBEC 983. the similar controversy as raised in the present writ petition was involved. It was contended before the Court that Section 21 of Act V of 1982 does not provide for approval in respect of a teacher appointed on probation. The Court held that Section 32 of 1982 Act preserves the protection given to the teachers under the provisions of Section 16G (3} of Act No. II of 1921 and the Regulations framed thereunder in the matters of dismissal, removal, termination or reduction in rank provided the provisions are not inconsistent with the provisions of the Act. The provisions of Section 21 of 1982 Act are silent with respect to the discharge of a probationer. The provisions of Section 16G (3) (a) would not be inconsistent so far as the discharge of a probationer is concerned. The Division Bench held that the word 'removal' used in Section 21 and Section 32 of 1982 Act was used in comprehensive sense to include the discharge of a probationer from service. It was held that protection of Section 21 of the Act is available to the probationer who is being discharged from service.
6. Learned counsel for the respondents contended that if a probationer is discharged from service, the order is not passed by way of punishment and the termination does not cast a stigma on the petitioner. He has placed reliance on Janta Vidyalaya Society, Deoria and another v. Deputy Director o/ Education, VII Region. Gorakhpur and others. 1983 UPLBEC 622. wherein the Committee of Management having passed resolution terminating the services of a teacher asked the District Inspector of Schools for sanction whereupon the District Inspector of Schools accorded sanction to the proposal of the Committee of Management for termination of the service. The teacher filed appeal against the order of the District Inspector of Schools which was allowed by the Deputy Director of Education. The High Court quashed that order holding that the District Inspector of Schools was not required to assign any reason before grant of the approval.
7. In P. C. Bagla (Post Graduate College. Hathras) U. P. v. Vice Chancellor, Agra. University. 1980 UPLBBC 119. It was held that a probationer is not entitled to any opportunity of hearing prior to termination of the service as he has no right to hold the post. None of these cases hold that the prior approval of the authority concerned was not required even in the case of the probationer before serving the notice of termination of service. The consideration for grant of the approval by the authority concerned is different in case of probationer where the order of termination is passed on the basis of the assessment of the work of the teacher during the period of probation and also examining his integrity. It is for the Committee of Management to assess his work, competency, Integrity and other relevant factors before terminating his service. The order of termination is not passed by way of punishment. In a case where the order is passed by way of punishment, different considerations may arise, namely, the nature of charges levelled against the teacher, the evidence to prove such charges and whether the proper procedure was followed as provided under the Act and the Rules framed therein before imposing punishment on him but in either of the case, approval of the authority concerned is required.
8. As the petitioner was appointed on the recommendation of the Commission, it was necessary for the Committee of Management to have obtained prior approval of the order of termination of the service of the petitioner. The Committee of Management has already taken a decision to terminate the service of the petitioner within the period of probation. It can submit the necessary papers before the Commission under Section 21 of Act No. V of 1982. In case the Committee of Management submits the necessary papers with a request to accord the approval of the termination of the service of the petitioner, the Commission or such authority, who is empowered to accord the approval, will pass an order expedttiously possibly within a period of three months from the date of submission of a certified copy of this order before such authority.
9. The writ petition is accordingly allowed and the petitioner be permitted to function till the order of termination is served after obtaining the approval of the authority concerned under Section 21 of Act No. V of 1982 Act.
10. The parties shall, however, bear their own costs.