Vivekananda Vidyapeeth & Another vs Saugat Banerjee & Another on 15 June, 2010

Chattisgarh High Court
Vivekananda Vidyapeeth & Another vs Saugat Banerjee & Another on 15 June, 2010




                    W. A. No. 55 of 2008

         Vivekananda   Vidyapeeth & another


         Saugat Banerjee & another


!       Shri Jitendra Pali, Advocate for the appellants

^     Ms Deepali Pandey, Advocate for the respondent No.1.
      Shri M. P. S. Bhatia, Govt. Advocate for the respondent No.2

Honble Mr. I. M. Quddusi,Honble Mr. N. K. Agarwal, JJ.


:       Judgment

                      O R D E R (oral)

( Passed on this 15th day of June, 2010 )
Per I.M.Quddusi, J.

1. Heard learned counsel appearing for the appellants as

well as learned counsel appearing for the respondents No. 1

and 2.

2. This writ appeal has been filed against the impugned
judgment and order dated 30th July, 2007, passed by the
learned Single Judge in W.P. (S) No. 153/2007 (Saugat
Banarjee Vs. Vivekanand Vidhyapeeth & others), allowing the
writ petition in part and directing the respondents
(appellants in the instant writ appeal) to complete the
enquiry against the respondent No.1 (writ petitioner) as per
the directions given in paragraph 13 of the impugned
judgment in which it was held that the enquiry was not
initiated against the instant respondent No.1 in accordance
with the provisions of law and the writ appellants were
directed to initiate the departmental enquiry from the stage
of submission of written explanation in accordance with law.

3. Brief facts of the case are that the respondent No.1
was appointed against the post of Tabla Teacher on
29.9.1997. It is not disputed that at the time of his
appointment the respondent No.1 was not qualified to hold
the post of Tabla Teacher but he was not appointed against a
regular post carrying regular pay scale rather was given the
consolidated salary as his appointment was not a regular
appointment and recommendation for regularization of his
appointment was made subsequently. However, in the meantime
a charge sheet was served upon the respondent No.1 and he
has given the reply.

4. Learned Single Judge has indicated that the procedure
adopted by the writ appellant in directing the enquiry was
not in accordance with the rules namely Madhya Pradesh
Ashaskiya Sikshan Sanstha (Adhyapakon Tatha Anya
Karmachariyon Ke Padachyut Karne/Sewa Se Hatane Sambandhi
Prakriya ) Niyam, 1983 (hereinafter referred to
as “the Rules, 1983).

5. The plea taken before the learned Single Judge by the
writ appellant was that subsequently the Rules, 1985 namely
Ashaskiya Sanstha Anudan Niyam, 1985 (hereinafter referred
to as “Rules, 1985”) were applicable and therefore they did
not follow the Rules, 1983.

6. We have perused the Rules 1985 as well as the Rules

7. In fact the Rules, 1985 are silent in respect of
conduct of the enquiry and removal of Teachers. Therefore,
it cannot be said that the Rules, 1983 were superseded in
toto by the Rules, 1985. Thus, we are of the opinion that
the Rules, 1983 would be applicable to the extent the Rules,
1985 are silent.

8. Learned counsel for the writ appellants raised the
contention that the respondent No.1 was not a regular
employee but he could not dispute that he was getting the
remuneration of the fixed salary from the funds provided by
the State Government under the grants-in-aid. It is also
not disputed that the respondent No.1 was appointed against
the post of Tabla Teacher. The writ appellants have filed a
document (at page 79 of the writ appeal), which shows that
the selection committee met on 26.10.2004 for consideration
of the regularization of the employees working in the
Vivekananda Vidyapeeth, Kota, Raipur. The name of the
respondent No.1 namely Saugat Banerjee finds place at serial
No.3 against the post of Tabla Teacher. This recommendation
is dated 26.10.2004. A remark has also been mentioned that
acceptance for regularization has already been granted by
the Government of Madhya Pradesh by the memorandum No. F-
10-7/97/4/25 dated 21.7.1999, addressed to the Collector,
Raipur, as those employees including the respondent No.1
were appointed earlier. Further, the Rules, 1983 which has
been framed under the Madhya Pradesh Ashaskiya Sikshan
Sanstha (Adhyapakon Tatha Anya Karmchariyon Ke Vetano Ka
Sandaya) Adhiniyam, 1978 (hereinafter referred to as `the
Act, 1978′) provide the procedure to take disciplinary
action against the Teachers. Further, the Teacher has been
defined in the Act, 1978, according to which `Teacher’
means, a teacher of an institution in respect of whose
employment maintenance grant is paid by the State Government
or the Ayog, as the case may be, to the institutions and
includes any other teacher employed, with the prior approval
of the authority specified by the State Government in this
behalf, in fulfillment of the conditions of
recognition/affiliation of an institution or of a new
subject or a higher class or a new section in the existing
class by the Madhya Pradesh Board of Secondary Education or
any University or the Ayog, as the case may be, and shown on
the pay roll of the institution against a post as being in
the employment as such but does not include a teacher whose
appointment is disapproved under clause (c) of section 6.

9. The respondent No.1 is being paid from the pay roll of
the institution against the post of Tabla Teacher from the
maintenance grant fund paid by the State Government and his
appointment has not been disapproved rather is pending
consideration for regularization.

10. Hon’ble Supreme Court in Om Prakash Shukla Vs. Akhilesh
Kumar Shukla and others 1986(1) SLR 699 held as under :

“17. In this case the deficiencies in the drafting
of the rules and the inadvertence on the part of
the High Court in complying with them pose some
difficulty in arriving at a just solution. There
is no dispute that the 1947 Rules made appropriate
provisions regarding the recruitment of candidates
to the posts in the ministerial establishment in
the Subordinate Courts in the former United
Provinces and they continued to be in force till
July 11, 1950. On July 11 1950 the 1950 Rules were
promulgated. They were applicable not merely to
the ministerial establishments in Civil Courts but
to the ministerial establishments in several other
offices. They were promulgated in supersession of
all existing rules and orders on the subject. They
prescribed that recruitment to the ministerial
staff in a subordinate office to which the said
rules were applicable should be made on the basis
of a competitive test and also provided for the
mode of calculation of vacancies, the period
during which competitive examinations should be
held, the subjects for the test and the marks
assigned to each of them and the method of
selection of successful candidate. They also
provided that appointments to higher posts in the
ministerial staff of those offices should be made
by promotion. Rules 9 to 12 of the 1947 Rules and
Appendix II to it which dealt with above topics
thus stood superseded. The other parts of the 1947
Rules which dealt with the nationality, domicile
and residence of the candidates, their academic
qualifications, character and physical fitness,
the appointing authority, probation and
confirmation, seniority, punishment, rate of pay,
transfers and regulations of conditions of service
remained intact since the 1950 Rules did not make
any provision as regards these topics. Hence we do
not agree with the argument urged on behalf of the
appellant that the 1947 Rules stood superseded in
their entirety by the 1950 Rules. Rules relying
upon the opening words of the 1950 Rules which
read thus:

“In exercise of the powers conferred by
Article 309 of the Constitution of India and in
supersession of all existing rules and orders on
the subject..”

18. “In supersession of all existing rules and
orders on the subject” can only refer to those
matters in the existing rules which correspond to
the matters dealt with by the 1950 Rules. We have
explained earlier the other subjects in the 1947
Rules which were not covered by the 1950 Rules.
Hence the argument based on the assumption that
the entire 1947 Rules had been repealed by
implication and no amendment could be made to the
1947 Rules has to be rejected. The High Court was,
therefore, right in observing that the whole of
the 1947 Rules did not come to an end on the
promulgation of the 1950 Rules. The problem,
however, does not get solved thereby as we shall
presently show.”

11. In view of the above mentioned facts and circumstances,

without interfering in the impugned order passed by the

learned Single Judge, we disposed of the instant writ appeal

with the observation that the respondents may follow the

Rules, 1985 as amended upto date but if those Rules are

silent on the conduct of the enquiry or conduct of the

disciplinary proceedings etc., they shall follow the

provisions of the Rules, 1983.

12. With the above observations this writ appeal is
disposed of. No order as to costs.

               J U D G E                     J U D G E

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