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1999 Supreme(AP) 1150

Andhra Pradesh High Court
Judges : V.V.S.RAO
C.S.H.N.Murthy Hyderabad - Appellant
Versus
Government Of A.P. rep.by its Secretary to Government, Education (SE) Dept, Hyderabad - Respondent
Decided On : 12-17-99

Headnote:

Constitution of India - Article 311 - A. P. Education Act, 1982 - Section 80 - Section 79 - Section 83 - Section 99 - Industrial Disputes Act, 1947 - Section 2 - Section 25 - A. P. Private Educational Institutions Employees Rules, 1993 - Rule 7 - Rule 3 - Rule 5 – Appointment of Headmaster - Petitioner was appointed as Headmaster by 3rd respondent school - He was placed on probation - Appointment was for a period of one year - It can be extended further after end of academic year - As per appointment order petitioner is liable for termination if his work is not found to be upto expected level during period of probation - appointment order also says that petitioner shall also be in- charge of Principal of Junior College, which is expected to be commenced in academic year - Managing Committee served a communication informing petitioner that his services are terminated with effect - Petitioner challenged this by filing - At interlocutory stage, this Court suspended order of termination - Be that as it may, this court disposed of writ petition - As petitioner did not avail right of appeal he was given an opportunity to avail appeal before competent authority within two weeks and appellate authority was directed to dispose of appeal within two months –Held , Therefore on point, it is held that provisions are not attracted when a private educational institution terminates/discharges services of a teacher/headmaster during period of probation and, therefore, order of termination of petitioner without prior approval of competent authority cannot be held to be illegal - In view of this, order passed by Regional Joint director, respondent herein, is vitiated by illegality - Therefore as per law laid down by Supreme Court termination of a probationer during period of probation does not amount to retrenchment - An employee on probation cannot be equated with another employee who is appointed permanently and acquires a substantive right to be employed unless he is dismissed/ removed from service in accordance with law. As observed contemplates seeking prior approval in event of termination due to change of any other event also - In view of Judgments of Supreme Court Division bench Judgment of this Court in Vasavi engineering College case is to be read as not including termination of an employee during period of probation within phrase - Therefore, where a private educational institution terminates services of an employee during period of probation, there is no obligation to seek prior approval either - Non-compliance with provisions therefore, does not render order of termination or probation illegal - Writ Petition is dismissed

( 1 ) THE petitioner is a Post Graduate and a graduate in Education (B. Ed ). The petitioner was appointed as Headmaster by the 3rd respondent school on 2-6-1995. He was placed on probation. The appointment was for a period of one year from 3-6-1995. It can be extended further after the end of academic year. As per the appointment order the petitioner is liable for termination if his work is not found to be upto the expected level during the period of probation. The appointment order also says that the petitioner shall alsobe in- charge of Principal of the Junior College, which is expected to be commenced in the academic year.

( 2 ) ON 9-4-1996, the Managing Committee served a communication informing the petitioner that his services are terminated with effect from 30-4-1996. The petitioner challenged this by filing W. P. No. 9169 of 1996. At the interlocutory stage, this Court suspended the order of termination on 24-6- 1996. Be that as it may, on 20-9-1996, this court disposed of the writ petition. As the petitioner did not avail the right of appeal under Section 80 of A. P. Education Act, 1982 (the Act, for brevity), he was given an opportunity to avail the appeal before the competent authority within two weeks and the appellate authority was directed to dispose of the appeal within two months.

( 3 ) THE appellate authority by the proceedings dated 26-2-1997 allowed the appeal holding that the third respondent could not have terminated the services of the petitioner without following the provisions of Section 79 of the Act and the Rules issued by the first respondent in G. O. Ms. No. 467, education Department dated 3-11-1993 (sic. 1983 ). The second respondent thus directed the 3rd respondent to reinstate the petitioner immediately. The order was not implemented. Hence, the 2nd respondent issued further orders onl7-6-1997directing the 3rd respondent to comply with the orders of the appellate authority dated 26-2-1997by 30-6-1997. At this stage, the 3rd respondent filed an appeal before the first respondent against the orders of the second respondent. The first respondent rejected the same as time barred. At this stage, the second respondent again issued proceedings on 20-10-1997 directing the 3rd respondent to implement the orders of the appellate authority dated 26-2-1997 in- vain. The 3rd respondent again filed a representation before the first respondent requesting that the appeal filed by the 3rd respondent may be considered on merits. This was rejected by the first respondent on 9-12-1997 pointing out that even if an appeal by the Management were treated as having been presented on 11-4-1997 the same would be barred by time for preferring second appeal. Even after this, the 3rd respondent did not implement the order of the 2nd respondent and hence the petitioner filed w. P. No. 32657 of 1997 for a direction to the respondents to implement the proceedings dated 22-6-1997 passed by the 2nd respondent. On 26-12-1997, this Court passed an interim order directing the 3rd respondent to comply with the orders of the 2nd respondent. At this stage, the 3rd respondent filedw. P. No. 33738ofl997questioning the orders passed by the 1st respondent on 9-12-1997 by which the 1st respondent clarified the position with regard to the entertaining the second appealpreferredby the 3rd respondent. This Court disposed or the Writ Petition filed by the Management remanding the matter for fresh disposal to the 1st respondent. The management was directed to pay salary, to the petitioner from 26-12-1997 till first respondent passes final orders. In accordance with the orders of this Court, the petitioner was paid salary and allowances upto31-12-1998.

( 4 ) AFTER this Court remanded the matter to the 1st respondent, as mentioned above the 1st respondent heard the matter on 17-11-1998 by affording an opportunity to the petitioner as well as the 3rd respondent and by the impugned orders in G. O. Ms. No. 7 education (PS-I) Department, dated 2-1-1999



































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