B K SHARMA Vs. COMMISSIONER, PATIALA DIVISION, PATIALA

JUDGEMENT

(1.) Mrs. B.K. Sharma, A Hindi Teacher, who came to be so employed with respondent No. 4, the management of Henderson Memorial Girls High School, Kharar, way back in 1955 strongly objects the way and manner in which she has been shown the exit door and consequently relieved just a lew years before she was to superannuate. In wake of facts and circumstances, the reference whereof shall be made, she seeks a writ in the nature of certiorari so as to quash the order dated March 10,1986, passed by the Commissioner, Patiala Division, Patiala, respondent No. 1 herein.

(2.) In 1986 when the present petition came to be filed the petitioner had since already worked for a period of 30 years as Hindi Teacher with the management of Handerson Memorial Girls High School, Kharar (herein after to be referred to as respondent No. 4). Respondent No. 4 concededly is getting 90% aid from the State of Punjab, and, therefore, the provisions of the Act known as the Punjab Privately Managed Recognized School Employees (Security of Service) Act, 1969 substituted later by the Act of 1974 and Rules of 1981 were applicable to the Institution. Petitioner proceeded on earned leave from November 26, 1975 to November 25, 1980. One Mrs. Kulvinder Kaur respondent No. 2 herein came to be employed on the post of Hindi Teacher with effect from 1st of March, 1978. In the appointment letter, it was stated that the same was subject to the approval of the Punjab Government. In as much as respondent No. 2 was appointed against the post of Hindi Teacher earlier held by the petitioner, the Education Department did not approve her appointment as the petitioner herein had only gone on leave and had not left the job. An objection was, thus, raised by the education department to that effect. Respondent No. 4 addressed a letter on 25th of February, 1978 informing respondent No. 2 that she had been appointed on temporary post against leave vacancy of the petitioner. She was also informed that condition No. 3 in the earlier appointment letter issued to her stood modified in view of the changed circumstances. The letter was duly received by respondent No. 2 and she did not raise any objection at that stage with regard to modified terms and conditions of her appointment letter. The District Education Officer in view of the modified letter of appointment of respondent No. 2 vide letter dated 11th of September, 1978 conveyed approval of appointment of respondent No, 2 from 1978 to 1980. Various letters written on that behalf have been placed on record and they all go to show that respondent No. 2 was appointed against a leave vacancy. When the petitioner was still on leave and respondent No. 2 was getting extension against the leave vacancy, respondent No. 4 sought confirmation of the proposed termination of the petitioner under Section 6(2) of the Punjab Aided School (Security of Service) Act of 1974. Under Rule 18(3) the powers of confirm the punishment vested with the Director of Public Instructions (Schools) Punjab. The The Deputy Commissioner, who exercised the said powers under the repealed Act i.e. Act of 1969, transferred the case to the D.P.I, who vide orders dated October 18,1981 did not approve the confirmation of the proposed Punishment of termination of service of the petitioner. Accordingly, respondent No. 4 was directed to observe the procedure as provided under the. Act and Rules made thereunder. A copy of the order aforesaid has been annexed with the petition as Annexurc P-5. Petitioner, in pursuance of the orders dated October 18, 1981, referred to above, submitted joining report in the school but she was not allowed to resume her duties. When repeated representations of the petitioner evoked no interest with respondent No. 4, D.P.I, gave show cause notice dated March 1, 1984 to respondent No. 4 and directed the Institution to allow the petitioner to resume duties, in default whereof, petitioner would be made payment after deducting proportionate amount from the grant of the school. When the orders aforesaid came before the Managing Committee of the school, it was decided to allow the petitioner to resume her duties w.e.f. March 31, 1984 by extending her leave and the services of her substitute i.e. respondent No. 2 were decided to be dispensed with. To that effect, thus, the Committee passed a resolution March 10, 1984 which was to be implemented w.e.f. March 31, 1984. Respondent No. 2, having learnt the resolution, referred to above, which was obviously to adversely affect her, filed a civil suit on March 24, 1984 in the civil Courts at Kharar. She sought a declaration from the Court that she was permanent employee against regular government aided post. By way of consequential relief, she also sought a decree for permanent injunction restraining respondent No. 4 from terminating her services without holding proper enquiry under the Act of 1969 and the Rules framed thereunder of the year 1981. During the currency of the suit, she also sought to maintain an application for grant of temporary injunction as envisaged under the provisions of Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure. She, however, failed in her attempt to get an ad-interim injunction and notice in the application was issued to respondent No, 4. This application came up for final disposal on March 31,1984 when the same was dismissed. Having failed in her attempt to obtain an ad-interim injunction from Civil Court, respondent No. 2 chose to prefer an appeal under Section 4 of the 1979 Act before the Commissioner, Patiala Division, Patiala, who exercised the powers of Tribunal to hear the appeals as per provisions of 1979 Act. During the pendency of the appeal, she obtained a stay. It is the case of the petitioner that she was able to secure the stay by withholding material facts and, in particular, that she was appointed against an leave vacancy. She also did not disclose the fact that she was unable to obtain an ad-interim injunction from the Civil Court in a suit instituted by her earlier in point of time. However, after obtaining stay from the Tribunal, she withdrew the suit on November 5, 1984. When her appeal came up for hearing, the same was dismissed on the ground that it was not maintainable being premature. After her appeal was dismissed, petitioner submitted her joining report on May 28,1985 and she was allowed to join her duties by respondent No. 4. Consequently, respondent No. 2 was relieved vide orders dated May 28, 1985. Once again, being aggrieved respondent No. 2 filed yet another appeal before the Tribunal but this time with a different result. The same was allowed on March 10, 1986 vide impugned orders, Annexure P-10. It is basically against this order that the present writ has been filed.

(3.) Before the contentions raised by Mr. Gopal Mahajan, learned counsel for the petitioner, are noticed, it may be mentioned here that the appeal preferred by respondent No. 2 was basically allowed on the ground that the order passed by respondent No. 4, Annexure P-2, modifying the appointment letter of respondent No. 2 was illegal. It may be recalled that appointment letter of respondent No. 2 was modified for the reason that the D.P.1. had not granted approval to the initial appointment letter of respondent No. 2 whereby she was given permanent appointment despite the fact that she was appointed against leave vacancy which had arisen, for the time being only, due to leave of the petitioner.