Mrs. Anita Mandola vs Director of Women Welfare and Others

Sudhanshu Dhulia, J.—The petitioner is presently working as an Assistant Teacher. This Writ Petition by the petitioner has been filed by the petitioner effectively against the order dated 23.10.1999 terminating her services and subsequent order dated 12.1.2000 whereby her representation against the termination of her services was also rejected.

The petitioner was initially appointed as an untrained Assistant Teacher on 5.8.1996 by the Deputy Chief Probationary Officer, Garhwal Division, Pauri. The appointment order of the petitioner clearly states that her appointment is purely on adhoc basis and will come to an end once the duly selected candidate is appointed on that post. The case of the petitioner is that her services were not terminated vide order dated 23.10.1999 because the duly selected candidate had joined that post but on the ground that the Deputy Chief Probationary Officer i.e. respondent No. 2 had no power to appoint the petitioner. This order was initially challenged by the petitioner before the High Court of Judicature at Allahabad being Writ Petition No. 48106 of 1999. The aforesaid Writ Petition was disposed of with the direction to the petitioner that she may file a representation within 15 days and the same should be disposed of in accordance with law. The representation of the petitioner was subsequently dismissed by a speaking order dated 12.1.2000, which has now been challenged by the petitioner through the present Writ Petition. The Writ Petition though had been filed before the High Court of Judicature at Allahabad being Writ Petition No. 9970 of 2000, but after the creation of new State of Uttarakhand it has been transferred to this Court u/s 35 of the U.P. Reorganisation Act, 2000 and has been renumbered as Writ Petition (S/S) No. 5113 of 2001.

Heard learned Counsel for the petitioner as well as learned Standing Counsel for the State of Uttarakhand at length.

The only reason assigned in the order dated 23.10.1999 as well as in the counter affidavit, which is there on behalf of the respondents for terminating the services of the petitioner is that the petitioner was appointed vide order dated 5.8.1996 and on that day the appointing authority for the post of untrained Assistant Teacher was not the Deputy Chief Probationary Officer who had actually appointed the petitioner but the appointing authority was the Director/Head of Department, Women Welfare, Lucknow and, therefore, the order was ab initio bad, as it was totally without jurisdiction. Learned Counsel for the petitioner, on the other hand, contends that only a few days prior to the said appointment order dated 5.8.1996 the appointing authority was changed and it was now the Director, Women Welfare, Lucknow. Be that as it may, learned counsel for the petitioner contends that this order (whereby the appointing authority was changed) was probably not in the knowledge of the Deputy Chief Probationary Officer. However, the fact of the matter is that the petitioner was appointed at the relevant time by an authority which had no jurisdiction to appoint the petitioner. Yet the reality of the matter is that the petitioner has continued to work as an untrained Assistant Teacher, as the impugned orders were stayed by an ad interim order of the High Court of Judicature at Allahabad, which reads as follows:

Connect with writ petition No. 52591 of 1999.

For the reasons given in the order dated 15.12.99 passed by this Court in the aforesaid writ petition, the petitioner is also entitled for an interim order in the same terms.

Until further orders of this Court, the effect and operation of the orders dated 12.1.2000 (filed as Annexure-5) and the order dated 23.10.99 (Annexure-2) in so far as it relates to the petitioner shall remain stayed.

Learned Counsel for the petitioner contends that on the strength of the aforesaid interim order the petitioner is continuing in service. It is true that the authority who actually appointed the petitioner was not the appointing authority at the relevant time, yet the fact of the matter is that the petitioner had not obtained this appointment by any fraud or misrepresentation. It is not expected from the petitioner to have known who actually was his appointing authority. The petitioner is an untrained teacher in a "Shishushala" i.e. a nursery. It is also not a case of malice or fraud. Although this Court is not inclined to interfere with the order dated 12.1.2000 and the decision is left to the wisdom of the authorities concerned who may if they deem it proper validate the order dated 5.8.1996. In case it cannot be done, the respondents may make fresh appointment on the post after adopting due process where the candidature of the petitioner, if the law permits, may also be considered. The entire procedure shall be completed within three month from the date of production of a certified copy of this order to the authorities concerned.

With the aforesaid observations, the Writ Petition is disposed of. No order as to costs.