Hon'ble Manish Mathur,J.
Order on Application for Condonation of Delay As per office report, the special appeal has been filed with delay of 385 days as on 21.01.2021. The application for condonation of delay has been filed along with affidavit.
Considering the facts and circumstances as well as going through the grounds taken in the affidavit filed in support of application for condonation of delay, we feel it appropriate to condone the delay. Accordingly, the application for condonation of delay is allowed. The delay in filing of appeal is condoned.
Order on Memo of Special Appeal Heard learned Additional Chief Standing Counsel as well as Mr. Rakesh Kumar Modanwal, learned counsel for respondent no. 1.
The respondent no. 2 is Headmaster (now under suspension). Counsel for respondent no. 1 informs that the respondent no. 1 and 2 are one and the same, as such, no notice is required to be issued to respondent no. 2.
With the consent of parties' counsel, we proceed to decide this special appeal at the admission stage.
This intra Court appeal has been filed challenging the order dated 28.11.2019 passed in Writ Petition No. 1294 (SS) of 2007.
The learned Single Judge has come to conclusion that the District Basic Shiksha Adhikari had failed to discharge his duties in applying his mind as the termination from service of the respondent-petitioner has been approved by the District Basic Shiksha Adhikari without properly considering the relevant fact that the alleged resolution of the Committee of Management was not properly signed and it could not have been taken to be a resolution in the eyes of law. The learned Single Judge has held that the cryptic approval is on an invalid resolution and, as such, not sustainable in the eyes of law. The learned Single Judge has proceeded to quash the orders dated 01.02.2005 and 20.05.2004 i.e., the orders of dismissal by the Committee of Management and the approval by the District Basic Shiksha Adhikari.
Learned Additional Chief Standing Counsel appearing for the appellants submits that there is no requirement of resolution of the Committee of Management for grant of approval by the District Basic Shiksha Adhikari. It is submitted that the learned Single Judge has erred in law in coming to conclusion that the order of approval of District Basic Shiksha Adhikari suffers from any infirmity.
We have considered the submissions made by the parties' counsel and gone through the record.
The District Basic Shiksha Adhikari is required to apply his mind on the basis of records placed before him by the Committee of Management. The Committee of Management is empowered to dismiss a Teacher/Headmaster being the appointing authority. The Committee of Management has to take a decision in this regard in its meeting and on the basis of the resolution of that meeting has to pass the dismissal order.
In the present case, what appears from the perusal of the impugned order is that the resolution of the Committee of Management was not signed by the Members of the Committee of Management. The learned Single Judge had the occasion to peruse the records and has given his opinion in this regard.
These facts have not been controverted by the appellants. As such, it is very much clear that the records produced before the District Basic Shiksha Adhikari for grant of approval of the decision taken by the Committee of Management contained the resolution of the Committee of Management which was not signed by its Members, the Committee of Management had taken a decision to dismiss the respondent and had passed the resolution to this effect, as such, it is very much clear that the decision of dismissal of the respondent was based on the resolution of the Committee of Management which was not signed by its Members, therefore, it was neither proper nor sustainable in the eyes of law. The District Basic Shiksha Adhikari had granted approval considering the aforesaid documents, as such, the application of mind by the District Basic Shiksha Adhikari was not based on correct documents.
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In view of above, we do not find any error in the conclusion drawn by the learned Single Judge, however, we find that the learned Single Judge while partly allowing the writ petition and quashing the orders impugned therein has not granted liberty to the concerning competent authorities to take a fresh decision in accordance with law.
The order impugned dated 28.11.2019 as such is modified to the extent that the Committee of Management of the Institution concerned would be at liberty to pass a fresh resolution and take appropriate decision with regard to the dismissal from service of respondent no. 1 and in case any such resolution is passed, the relevant documents including the said resolution shall be placed before the appellant no. 2, District Basic Shiksha Adhikari, Pratapgarh who shall take a fresh decision in accordance with law, expeditiously.
The special appeal stands disposed of.
[Manish Mathur, J.] [Ritu Raj Awasthi, J.] Order Date :- 25.1.2021 Santosh/-