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PETITIONER: U.P.SHIKSHA & EDUCATION BOARD

       Vs.

RESPONDENT: RAJENDER PRASAD GUPTA

DATE OF JUDGMENT:       26/02/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  1996 AIR 1336            1996 SCC  (3) 598  JT 1996 (3)   378        1996 SCALE  (2)908

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      Heard counsel on both sides.      This appeal  by special  leave arises from the judgment of the  High Court of Allahabad, Lucknow Bench made on March 9, 1994 in Special Appeal No.36(SB) of 1993.      The respondent was appointed as an untrained teacher in the  proceedings   dated  May  5,  1964.  He  was  given  an opportunity to  undergo training  on September 29, 1958, but he did  not avail  of the  opportunity. He was given another opportunity on  July 28, 1969, but he again did not avail of the same.  Since he  had not  availed of the opportunity, he was not  permitted to  continue in service. Consequently, he filed a  civil suit  which came  to be  transferred  to  the service Tribunal which dismissed the petition. Then he moved the High  Court. The  High Court  by its  impugned order has held  that  termination  without  following  the  prescribed procedure  is   illegal   and   consequently   it   directed reinstatement  of   the  respondent   in  the  service  with consequential benefits. Thus this appeal by special leave.      It is contended by Mr. Gupta, learned counsel appearing for the  appellant, that  the appointment  was on  temporary basis and  the candidate  being untrained  teacher,  he  was required to undergo training; and when he failed to avail of that opportunity,  as per  the policy  of the Government the appellant had  no option  except to discontinue the services of the  respondent. Consequently,  he  is  not  entitled  to remain in service from 1968.      It is stated by Mr. Garg, learned counsel appearing for the respondent,  that Government  had extended  the time for the training  but he  has not  been given  opportunity.  The letter of  appointment did  not indicate  that  his  service would come  to an  end in  accordance  with  the  procedure. Subsequent correspondence  indicates that appropriate action was to  be taken  against the  respondent if  he  would  not

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undergo training.  No such  action has  been  taken  as  per service  rules.   Since  no   action  has  been  taken,  the termination of  the respondent’s  service  following  proper procedure for  not undergoing training, is illegal. The High Court was,  therefore, right  in  giving  direction  to  the appellant   to   reinstate   the   respondent   in   service irrespective  of   the  fulfillment   of  the  condition  of training.      The respondent  is an  untrained teacher  appointed  by order dated  May 5,  1964 on  a monthly  pay of Rs.40/-. His service were  terminated without  any notice.  It is also an admitted fact  that opportunity  was given to him to undergo training but  he did  not avail  of that  opportunity on the ground that  he was bitten by dog. Under these circumstances and the  admitted position,  the question  is:  whether  the respondent can  continue in  service without  completing his training  and   whether  the   appellant’s  predecessor  was empowered to discontinue the services of the respondent?      It is  true  that  letters  have  been  issued  by  the Government to  give training  facilities on executing a bond but he did not avail of that opportunity and subsequently he was directed  to be  continued on fixed pay of the untrained teachers. That  situation  does  not  arise  nor  helps  the respondent for  the reason  that he  was  discontinued  from services since  the year  1969. He  was required  to undergo training as  prescribed by  the Government. Since he had not undergone training,  the letter  discontinuing the  services cannot be said to be illegal. The High Court, therefore, was wholly wrong  in its  finding that required procedure was to be  completed  for  discontinuance  of  untrained  teachers’ service before service came to an end. .      Mr. Garg also relied upon the decision of this Court in U.P. Basic  Shiksha Parishad  and Anr.  vs.  Hari  Deo  Mani Tripathi and  Ors. [SLR  Vol.87 (1993)  1-15]. In  that case though the respondents were untrained temporary teachers and after they obtained training certificates in 1976 this Court directed the  appellants to  fix seniority  from the date of obtaining training  certificates. The ratio of this case has no application to the facts of this case.      The appeal  is accordingly  allowed. The  writ petition stands dismissed. No order as to costs.