Full Judgment Text
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CASE NO.:
Appeal (civil) 3232-3234 of 2000
PETITIONER:
Ramakrishna Vivekananda Mission
RESPONDENT:
State of West Bengal & Ors.
DATE OF JUDGMENT: 29/11/2004
BENCH:
Y.K. Sabharwal & D.M. Dharmadhikari
JUDGMENT:
J U D G M E N T
Y.K. Sabharwal, J.
The appellant Ramakrishna Vivekananda Mission (for short, ’the
Mission’) has challenged in these appeals a common judgment of the
Division Bench of the High Court whereby two appeals challenging the
order of a learned Single Judge and a Writ Petition No.18402(W) of 1997
filed by the Mission were dismissed.
The Mission is running a school known as Ramakrishna
Vivekananda Mission Vidya Bhawan. The school is affiliated to the West
Bengal Board of Secondary Education (for short, ’the Board’) and is
governed by the West Bengal Board of Secondary Education Act, 1963
(for short, ’the Act’). The two private respondents Swapan Panda and
Tapan Negoi were appointed as teachers in the school in the years 1977
and 1986 respectively. Both were approved teachers. The other
respondents in these appeals are State of West Bengal and the education
authorities under the Act.
The West Bengal Board of Secondary Education (Manner of Hearing
and Deciding Appeals by Appeal Committee) Regulations, 1964 (for short,
’the Regulations’) and Management of Recognized Non-Government
Institutions (Aided and Unaided) Rules, 1969 (for short, ’the Rules) have
been framed under the provisions of the Act.
According to the Mission, since the aforesaid two teachers refused
to do hostel duty, show cause notice dated 4th April, 1996 was issued to
them. The teachers, in reply to the said notice, took the stand that they
had become ’approved teachers’ and were no longer bound by the terms
and conditions of service requiring them to do hostel duty. In terms of
letters dated 18th May, 1996, services of these teachers were terminated.
For proper appreciation of the controversy, it is necessary to note
the proceedings under the Regulations that were initiated by the teachers
challenging the validity of termination and orders passed thereon besides
the proceedings in the High Court and the orders passed by the High Court
as also the provisions of the Act, Regulations and the Rules. The orders
passed in Writ Petition No.2041 of 1986 that was filed by the Mission
claiming certain rights under Articles 14, 26 and 30 of the Constitution of
India are also relevant for the present purpose.
The school run by the Mission is affiliated to the Board established
under the Act. ’Board’ means the West Bengal Board of Secondary
Education established under the Act [Section 2(a)]. Sections 18 to 26 are
in Chapter III of the Act which, inter alia, deals with constitution of various
committees. Section 18 provides that as soon as may be after the Board
is established, the Board shall constitute committees mentioned therein.
One of the Committees with which we are concerned is the Appeal
Committee. The constitution of the Appeal Committee has been provided
for in Section 22 of the Act. Sub-section (3) of Section 22 provides that it
shall be the duty of the Appeal Committee to hear and decide appeals filed
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by teachers and other employees against decisions of Managing
Committees of institutions adversely affecting them, in accordance with the
regulations made in this behalf. Section 27 provides for powers and duties
of the Board. Section 27(3) empowers the Board to make regulations in
respect of any matter for the proper exercise of its powers under the Act.
Section 45 is a rule making power of the State Government. Section 45(1)
provides that the State Government may, after previous publication, make
rules for carrying out the purposes of the Act.
In exercise of powers under Sub-section (3) of Section 27 read with
Sub-section (3) of Section 22 of the Act, the Board made the Regulations
providing for filing of appeal against the decision of the Managing
Committee. The expression ’Managing Committee’ is defined in Section
2(d) of the Act. The said section states that the ’Managing Committee’
used in reference to an institution includes the Governor or Governing
Body of such an institution. The ’institution’ means a secondary school or
an educational institution or part or department of such school or institution
imparting instructions in secondary education [(Section 2(c)]. Regulation 3
provides that a teacher who feels to have been affected adversely by any
decision of the Managing Committee of the institution he serves or has
served, may appeal direct to the Appeal Committee against such decision
in accordance with the provisions of the Regulations. Regulation 4
provides that the Managing Committee against whose decision an appeal
is intended to be preferred shall, on demand in writing furnish a copy of the
decision in question to the appellant within a week from the date of such
demand. The adversely affected teacher has been referred to as the
appellant in the Regulations. Regulation 4(2) stipulates that the appellant
shall submit to the Secretary to the Board, by registered post with
acknowledgement due, a memorandum of appeal within one month from
the date on which he receives a copy of the decision from the Managing
Committee. The Regulation further provides for the manner of processing
and hearing of the appeal and matters connected therewith.
In exercise of power under Section 45 of the Act, the State
Government has framed the Rules. Rule 28 sets out powers of the
Committee of an aided institution subject to the approval of the Director.
For the present purpose, Sub-Rule (8) of Rule 28 is relevant. It reads as
under :
"Both in aided and unaided Institutions the
Committee shall have the power, subject to the
prior approval of the Board, to remove or dismiss
permanent or temporary teachers and other
employees. For this purpose the Committee shall
first draw up formal proceedings and issue
charge-sheet to the teacher or the employee
concerned, and offer him reasonable facilities for
defending himself. The teacher or the employee
proposed to be proceeded against shall submit
his explanation, ordinarily, within a fortnight of the
receipt of the charge-sheet. The Committee shall
send to the Board all relevant papers including
the charge-sheet, explanations submitted by the
teacher or the employee concerned and the
reasons for which the Committee decides in
favour of taking disciplinary action. If the Board
considers that there are sufficient grounds for
taking disciplinary action the Committee shall
issue formal notice calling upon the teacher or the
employee concerned to show cause, ordinarily
within a fortnight, why he should not be dismissed
or removed from service. The Committee shall,
then, send again, to the Board all relevant papers
including the explanation submitted by the
teacher or the employee concerned and the
recommendations of the Committee for the action
proposed to be taken. So for as the Committee is
concerned, the decision of the Board shall be
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final:
Provided that the Board may delegate to any
Committee constituted under Section 24 of the
Act the powers and functions conferred on the
Board by this sub-rule."
Rule 33 provides for the power of the State Government to frame
further Rules for certain institutions. It reads as under :
"Power of the State Government to frame
further rules for certain Institutions : Nothing in
these rules shall affect the power of the State
Government to frame, on the application of any
Institution or class of Institutions, to which the
provisions of Article 26 or Article 30 of the
Constitution of India may apply, further or other
rules for the composition, powers, functions of the
Managing Committee or Committees of such
Institution or class of Institutions."
The Mission wanted the State Government to frame Rules under the
aforesaid Rule 33, hereinafter referred as ’Special Rules’. A writ petition
(being No.2041 of 1986) was filed by the Mission seeking directions
against the State Government requiring it to frame the Special Rules in
exercise of power under Rule 33. The claim of the Mission was that it
fulfilled all the requisites of being a religious denomination within the
meaning of Article 26 of the Constitution of India, its further case being that
the State Government having framed Special Rules in respect of several
institutions governed by Article 26 or 30 of the Constitution which had
identical religious beliefs, objects and functions as that of the appellant
Mission, the denial of framing Special Rules for the Mission was also
violative of Article 14 of the Constitution. The Mission wanted that the
Special Rules adopted by it in November 1986 for the management of the
school shall be approved. The grievance of the Mission was that the State
Government was illegally not sanctioning the Special Rules although it had
sanctioned the same in respect of the Ramakrishna Mission and
Ramakrishna Sharda Mission despite the fact that their objects were the
same as that of the appellant Mission. By orders dated 14th October, 1993
passed in Writ Petition No.2041 of 1986, a learned Single Judge of
Calcutta High Court came to the conclusion that the appellant Mission is
entitled to the approval of their rules as Special Rules for their school.
Accordingly, the State Government and Education Department were
directed to approve the Special Rules of the appellant Mission within one
month from the date of communication of the order. The order dated 1st
March, 1994 passed by the High Court records the statement made by the
counsel representing the State Government that the Government has no
objection for granting Special Rules for the management of the school of
the Mission excepting that the Mission may be persuaded to opt out of the
grant-in-aid scheme. Rejecting the said stand the High Court held in terms
of judgment and order dated 1st March, 1994 that the grant of Special
Rules cannot be linked with the grant-in-aid. The benefit of grant-in-aid
cannot be withdrawn by granting Special Rules. In no school where
Special Rules have been granted, grants-in-aid have been withdrawn or
denied. The order then records the statement of counsel for the State that
Special Rules in terms of the orders dated 14th October, 1993 have already
been approved and the file was also produced before the Court. Writ
Petition No.2041/1986 was disposed of in terms of judgment and order
dated 1st March, 1994 by issue of certain other directions as well which are
not relevant for the present purposes.
Reverting now to the orders of termination of two teachers referred
to hereinbefore, two appeals (Appeal Nos.9 and 10 of 1996) were filed by
the teachers on 10th June, 1996 before the Appeal Committee of the Board
under the Regulations. Almost at the same time, the teachers also filed on
12th June, 1996 Writ Petition Nos.7932-7933 of 1996 before the High Court
challenging the orders of termination. The Mission also filed on 14th
August, 1996 Writ Petition Nos.1750-1751 of 1996 challenging the
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competence of the Appeal Committee to hear the appeals. Admittedly,
both the teachers withdrew their appeals (Appeal Nos.9 and 10) pending
before the Appeal Committee. The appeals were unconditionally
dismissed as withdrawn on 16th December, 1996. On 17th December,
1996, aforesaid two writ petitions filed by the teachers were also
unconditionally withdrawn.
After sometime, applications were filed by the teachers before the
Appeal Committee seeking restoration of the two appeals that had been
dismissed on 16th December, 1996. The Mission approached the High
Court by filing an application in Writ Petition Nos.1750-1751 of 1996
contending that the Appeal Committee had no power to entertain and hear
the appeals which had already been dismissed as withdrawn. A Division
Bench of the High Court, by order dated 11th February, 1997 disposed of
Writ Petition Nos.1750-1751 of 1996 holding that after the appeals had
been allowed to be withdrawn by the Appeal Committee of the Board, the
Appeal committee had become completely functus officio and had no
jurisdiction to proceed with the said appeals. In that view, it was held that
the writ petitions of the Mission had become infructuous because the
appeals were no longer subsisting and were not alive. As already noticed,
the challenge of the Mission in the said writ petitions was to the
competence of the Appeal Committee to hear the appeals. The Division
Bench did not adjudicate the question whether against the orders of
termination the Appeal Committee of the Board could entertain fresh
appeals under law and observed that if the situation arise, the parties
would be at liberty to take steps in the matter according to law. It was
observed that the Court was not called upon to decide the future course of
action the Appeal Committee of the Board may take in the facts and
circumstances of the case.
On 3rd April, 1997, two fresh Appeal Nos.3 and 4 of 1997 were filed
by the teachers challenging the orders of termination above referred. The
competence of the Appeal Committee to hear the fresh appeals filed by the
teachers was challenged by the Mission by filing Writ Petition Nos.804-805
of 1997. In the said writ petitions, the High Court directed the Appeal
Committee to proceed in two stages \026 (1) to decide on the maintainability
of the appeals; and (2) hear the appeals on merits but shall not pass any
final order without obtaining leave of the Court. The Appeal Committee
rejected the preliminary objection about the maintainability of the appeals.
Aforesaid, writ petitions were dismissed by the learned Single Judge on
25th February, 1998 upholding the order of the Appeal Committee which
had quashed the order of termination by orders passed on 17th September,
1997. It seems that during the course of hearing of the writ petitions, the
Board handed over to the court a sealed cover which contained the final
determination of the Appeal Committee. In so far as the Mission is
concerned, it seems that the communication about the order setting aside
the order of termination was sent to it only on 15th November, 1999. The
Mission filed two appeals against the order of learned Single Judge which
were dismissed by the impugned judgment.
The Mission had also filed another Writ (being Petition
No.18402/97), inter alia, praying for formal communication of the approval
of the Special Rules and to publish such approved Special Rules in the
Official Gazette. The said writ petition was disposed of along with the
aforenoted two appeals by the Division Bench by a common judgment.
The writ petition has also been dismissed.
The Division Bench mainly considered two questions, namely (1)
whether Special Rules in fact had been approved or could be approved in
terms of the provisions of the Act and the Rules and (2) whether the
publication of the Special Rules was mandatory and the effect of non-
publication.
The aforesaid questions have been decided against the Mission in
as much as the High Court in the impugned judgment has held that
publication of the Special Rules in the Gazette was mandatory and since
the publication was not done, the order dated 1st March, 1994 would be
without jurisdiction and thus not binding on the teachers. Further, on the
question of the non-maintainability of second set of appeals, the High
Court has merely noticed that liberty was granted to the teachers to file
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fresh appeals and, therefore, those appeals would be maintainable.
Insofar as the prayers made in Writ Petition No. 18402 of 1997 seeking
formal approval of the rules which, in other words, means publication of the
said rules at that stage, since the publication was held mandatory by the
High Court, no specific orders have been passed except stating that writ
petition deserves to be dismissed.
On behalf of the appellants, Mr. Dipankar Gupta, senior advocate
submits that the Division Bench committed serious illegalities both, on
facts and law since no liberty has been granted to the teachers to file fresh
appeals and the factum of the approval of Special Rules, as noticed in the
order dated 1st March, 1994, could not be disputed by the State
Government and that order was erroneously held to be without jurisdiction.
Learned counsel further submits that in any case, on the Division Bench
coming to the conclusion that the publication was mandatory, orders
sought for in Writ Petition No.18402/97 ought to have been passed and
publication should have been directed to be made at that stage.
Before we examine aforesaid contentions, it may be noted that an
additional ground was also taken by the appellant by filing an application
challenging the validity of Rule 28(8) but Mr. Dipankar Gupta did not press
the said challenge as the validity of the Rules was not challenged before
the High Court. In this view, we need not examine the validity of the said
Rule. We may also note that so long as Special Rules under Rule 33 are
not legally made or come into force, 1969 Rules will prevail and continue to
apply which, in other words, means Rule 28(8) would continue to apply.
Regarding the publication of the Rules, neither can it be seriously disputed
nor it has been so disputed that the requirement of Section 45 of the Act is
mandatory. Section 45 requires the State Government to make rules for
carrying out the purposes of the Act after previous publication. In this
background, the points to be examined are :
1. Is the appellant entitled to claim rights under Article 26 of the
Constitution of India and on that basis seek framing of Special Rules
under Rule 33;
2. What is the effect of non-publication of the Special Rules referred to
in the order dated 1st March, 1994 passed by the High Court in Writ
Petition No.2041/86;
3. Whether an order for publication of the Rules ought to have been
made in Writ Petition No.18402/97;
4. Whether the second set of appeals (Nos.3 and 4 of 1997) filed by
the teachers were maintainable, if not, its effect
Point No.1 :
The claim of the Mission for framing of Special Rules based on
Articles 14 and 30 of the Constitution has not been pressed before us.
Learned counsel for the appellant has only relied upon Article 26 of the
Constitution. The Division Bench in the impugned judgment, after quoting
a passage from the decision in Bramchari Sidheswar Shai & Ors. v.
State of W.B. & Ors. [(1995) 4 SCC 646], has observed that ’This Bench,
thus, will have to proceed on the basis as to whether special rules
allegedly framed by the petitioner itself could have been approved’. The
passage from Bramchari Sidheswar Shai’s case, quoted in the
impugned judgment is as under :
"We think that the learned Judges of the High
Court should not have decided on the general
question whether educational institutions
established and maintained by religious
denomination including those established and
maintained by Ramakrishna Mission for general
education get the protection of Article 26(a) of the
Constitution when that question in a general form,
was not really at issue before them. Therefore,
the views expressed on the question shall,
according to us, ought to be treated as non set
and the question is left open to be decided in
proper case, where such question really arises
and all the parties who might be concerned with it
are afforded adequate opportunity to have their
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say in the matter."
The aforesaid passage occurs in para 65 of the decision in
Bramchari Sidheswar Shai’s case. The observations in para 65 were
made while considering the question that if Ramakrishna Mission as
religions denomination or a section thereof establishes and maintains
educational institutions, can such institutions be regarded as institutions
established and maintained for charitable purpose within the meaning of
Article 26(a) of the Constitution of India. By the aforesaid observation, this
Court held that the High Court should not have decided the general
question whether educational institutions established and maintained by
religious denominations including Ramakrishna Mission for general
education would get the protection of Article 26(a) when that question in
general was not really at issue before the High Court. It was in this
connection that this Court held that the views expressed on the question
ought to be treated as non est and left the question open to be decided in
a proper case. It may also be noticed that in paras 57 and 58, it was held
that no good reason was shown for not accepting the view that
Ramakrishna Mission or Ramakrishna Math is ’a religious denomination’
and that the persons belonging to or owing their allegiance to Ramakrishna
Mission or Ramakrishna Math belong to a religious denomination within
the Hindu Religion or a section thereof as would entitle them to claim the
fundamental rights conferred on either of them under Article 26 of the
Constitution of India. Point No.2 in that case was as under :
"Do persons belonging to or owing allegiance to
Ramakrishna Mission belong to a religious
denomination or any section thereof as would
entitled them to claim the fundamental rights
conferred on either of them under Article 26 of the
Constitution of India?"
The said question was answered in the affirmative as noticed in para
58 of the report.
In any case, the question now stands settled by a decision rendered
by a 11 Judge Bench in T.M.A. Pai Foundation & Ors. v. State of
Karnataka & Ors. [(2002) 8 SCC 481] para 26 whereof reads thus :
"The right to establish and maintain educational
institutions may also be sourced to Article 26(a),
which grants, in positive terms, the right to every
religious denomination or any section thereof to
establish and maintain institutions for religious
and charitable purposes, subject to public order,
morality and health. Education is a recognized
head of charity. Therefore, religious
denominations or sections thereof, which do not
fall within the special categories carved out in
Article 29(1) and 30(1), have the right to establish
and maintain religious and educational
institutions. This would allow members belonging
to any religious denomination, including the
majority religious community, to set up an
educational institution. Given this, the phrase
"private educational institution" as used in this
judgment would include not only those
educational institutions set up by secular persons
or bodies, but also educational institutions set up
by religious denominations; the word "private" is
used in contradistinction to government
institutions."
The point whether the appellant is entitled to rights under Article 26
has, in fact, not been seriously disputed either by learned counsel
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appearing for the State Government or the private respondents.
Having regard to the aforesaid, the first point is answered in favour
of the appellant.
Point Nos. 2 and 3 :
The background leading to the passing of the Order dated 1st March,
1994 has already been noticed hereinbefore. It cannot be seriously
disputed that the special rules framed under Rule 33 require prior
publication as postulated by Section 45 of the Act. It further cannot be
disputed that before such publication the procedure prescribed under
Section 24 of the West Bengal General Clauses Act, 1899 had to be
complied with. Section 24 of the West Bengal General Clauses Act reads
as under :
"24. Provisions applicable to making of rules
or by-laws after previous publication.\027 Where
by any Bengal Act or West Bengal Act, a power to
make rules or by-laws is expressed to be given
subject to the condition of the rules or by-laws
being made after previous publication, then the
following provisions shall apply namely:-
(1) the authority having power to make the rules
or by laws shall, before making them, publish
a draft of the proposed rules or by-laws for
the information of persons likely to be
affected thereby;
(2) the publication shall be made in such manner
as that authority deems to be sufficient, or, if
the condition with respect to previous
publication so requires, in such manner as
the Government concerned prescribes;
(3) there shall be published with the draft a
notice specifying a date on or after which the
draft will be taken into consideration;
(4) the authority having power to make the rules
or by-laws, and, where the rules or by laws
are to be made with the sanction, approval or
concurrence of another authority, that
authority also, shall consider any objection or
suggestion which may be received by the
authority having power to make the rules or
by-laws from any person with respect to the
draft before the date so specified;
(5) the publication in the Official Gazette of a
rule, or by-law purporting to have been made
in exercise of a power to make rules or by
laws after previous publication shall be
conclusive proof that the rule or by-law has
been duly made."
The Special Rules have the effect of encroaching upon the rights of
the teaching and non-teaching staff in the school. On publication of the
draft rules, those affected by the Special Rules are granted opportunity to
file objections and suggestions to those rules. Section 24 postulates fixing
of date for consideration of draft Rules by the State Government. The
objections or suggestions that may be received are required to be
considered before taking a decision to publish the rules in official gazette
as the said publication is conclusive proof of the rules having been duly
made.
In the instant case, effect of the Special Rules is to deprive of the
teachers of valuable rights under Rule 28(8). Under the said Rule, the
decision of the Board on the disciplinary matters is final whereas under the
Special Rules, it would be the decision of the Committee which would be
final. It is true, as already noticed, that the High Court was informed that
the Rules had been approved as recorded in the order dated 1st March,
1994 in Writ Petition No.2041 of 1986. The said order cannot, however,
adversely affect the teachers here, particularly, when the private
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respondents (teachers) were not parties in those proceedings and also
when the law was not followed insofar as the previous publication was
concerned. We are unable to accept the contention that there was
sufficient and enough publication of the Special Rules. There has to be
strict compliance of the provision regarding previous publication as it vitally
affects the teaching and non-teaching staff which has a valuable right to
object to the Special Rules when its draft is published. The teaching class
can put forth its view point and give suggestions to the State Government
on publication of the draft Rules. Admittedly, nothing of the kind was done.
It cannot be held that valid Special Rules came to be made only because
of orders dated 1st March, 1994. In the absence of Special Rules, 1969
Rules would continue to apply and prevail.
Having reached the aforesaid conclusion but, at the same time,
bearing in mind the proceedings and orders passed in Writ Petition
No.2041 of 1986 as referred to earlier, the learned Division Bench
committed serious illegality in not allowing prayer made in Writ Petition
No.18402 of 1987 by directing publication of the Special Rules in terms of
Section 45 of the Act and Section 24 of the General Clauses Act. The
Special Rules were approved by the Stated Government as noticed in the
order dated 1st March, 1994. These Rules ought to have been treated as
the draft Rules under Rule 33 and directions for its previous publication by
following the procedure under Section 24 ought to have been made. It is,
however, for the State Government to consider the objections and
suggestions, if any, that may be filed on the publication of the draft Rules
and to consider the same in accordance with law and thereafter to notify
the Special Rules in the Official Gazette in case the Government comes
into conclusion that the said Rules deserve to be made under Rule 33.
In view of the aforesaid, we direct the State Government to treat the
Rules mentioned in orders dated 1st March, 1994 as draft rules and
proceed to follow the procedure contemplated by Section 24 of the
General Clauses Act. The draft Rules shall be published within a period of
two months specifying in the notice the date of not later than one month
from the date of the notice when the draft will be taken up for
consideration. The procedure prescribed under Section 24 shall be
completed within a period of four months and if the rules are to be notified,
the decision shall be taken within four months. The decision on objections
or suggestions that may be received on publication of the draft Special
Rules shall be taken, one way or the other within the said period of four
months.
Point No.4
The regulations under which an appeal could be filed have already
been noticed hereinbefore as also the facts about filing of first set of
appeals, unconditional withdrawal thereof, the dismissal of application for
revival of those appeals, the filing of second set of appeals and the
connected matters. The High Court fell into error in coming to the
conclusion that any liberty had been granted to the teachers to file second
set of appeals. The order of the High Court dated 11th February, 1997
which had attained finality shows that no such liberty was granted. In fact,
the said order postulates that in case second set of appeals were filed,
their maintainability would be decided in accordance with law. Under the
regulations, there is no provision for filing of second set of appeals when
earlier appeals are unconditionally withdrawn. The irresistible conclusion,
therefore, is that Appeal Nos.3 and 4 were not maintainable. The effect of
it would be that the order of termination of the services of the teachers
would remain unchallenged. The teachers did not file any writ petition
challenging the order of termination, since they had succeeded before the
Board in second set of appeals (Appeal Nos.3 & 4).
In view of the above, peculiar situation has arisen. On one hand the
Special Rules have not come into force on account of non-publication
thereof and, thus, the appellant was required to follow the procedure under
Rule 28(8). Admittedly, that was not followed. On the other hand, the
orders of termination have attained finality as second set of appeals under
the Regulations were not maintainable. Having regard to this peculiar
position, we are of the view that the power under Article 142 deserves to
be exercised for doing complete justice to the parties. In this view, even in
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absence of any substantive proceedings by the teachers, we hold that the
orders of their termination are not valid. Both teachers would be entitled to
be reinstated into service but without payment of arrears of salary and on
their giving undertaking to the appellant to do hostel duties as had been
agreed at the time of induction into service. Point No.4 is decided
accordingly.
For the foregoing reasons, we set aside the impugned judgment and
dispose of the appeals in terms of the aforesaid directions.