Civil Writ Petition No.17683 of 1995. -1- In the High Court of Punjab and Haryana at Chandigarh. Civil Writ Petition No. 17683 of 1995. Date of decision:10-3-2008 Rohtash Singh. ...Petitioner. Versus Mewat Model School and others. ...Respondents. ... Coram: Hon'ble Mr. Justice K. C. Puri. ... Present; Mr. R. L. Gupta Advocate for the petitioner. Mr.Balram Gupta, Senior Advocate with Mr. Parveen Gupta, Advocate for respondent Nos.1 to 3. Mr. R. K. Joshi, Advocate for respondent No.4. ... K. C. Puri, J. Judgment. The petitioner, in this Civil Writ Petition, filed under Articles 226/227 of the Constitution of India prays for the issuance of a writ in the nature of Mandamus for directing the respondents to absorb him as a Principal as also for issuance of a writ in the nature of Certiorari for declaring the impugned orders dated 8.5.1995 (Annexure Civil Writ Petition No.17683 of 1995. -2- P-10) and 13.3.1995 (Annexure P-8) as illegal and for quashing the same. The case of the petitioner as projected in the Civil Writ Petition is that Mewat Model School Society, Gurgaon (hereinafter called as the Society) invited applications for the post of Principal through various public notices/advertisements issued in various news papers. In pursuance thereof, the petitioner applied for the said post. He also appeared before the Highly Powered Interview Committee. The petitioner was selected as a Principal for the school run by the Society. Vide order dated 4.3.1985, Annexure P-1, the petitioner was offered the post of Principal and in pursuance thereof, the petitioner joined as a Principal on 8.4.1985. The petitioner was, later on, made regular as a Principal. It is further averred in the petition that the petitioner was posted as a Principal in the schools run by the Society and he served the Society continuously and without any break. His service record as a Principal with the Society was absolutely un-blemished and there was no complaint whatsoever against him from any corner. No adverse entry was ever recorded against him nor was conveyed to him. Navodaya Vidyalaya Samiti (hereinafter called as the Samiti) in the year 1987 advertised the posts of Principals for the schools run by the Samiti. Applications were invited from those who were already working in the recognised institutions. In pursuance of Civil Writ Petition No.17683 of 1995. -3- advertisement, he applied to the Samiti on 28.12.1987 through the Society.Vide order dated 4.7.1988, the petitioner was selected for the post of Principal. On his selection as a Principal in the Samiti, the petitioner applied to the Society, Gurgaon for relieving him to enable him to join the post of Principal. The Chairman of the Society, vide Annexure P-4, issued relieving order to enable the petitioner to join as a Principal in the Samiti. It is further averred by the petitioner that the office of Society insisted that he would not be issued the relieving orders, Annexure P-4, signed by the Chairman-cum-Deputy Commissioner until and unless he submitted an affidavit in the proforma supplied by the office of the Society and he submitted the requisite affidavit under compulsion and coercion. The pay scale of Principal in the Samiti was much higher than in Society. In pursuance of appointment letter, Annexure P-3, he submitted his joining report at the Regional Office of Samiti on 24.7.1988. The deputation period of three years expired on 23.7.1991. No intimation was received by him for extending the period of three years which expired on 23.7.1991 nor any letter was received by him repatriating him from Samiti to the Society. On 1.6.1991, he applied to the Regional Office of the Samiti for his absorption in the Samiti. Vide order dated 28.8.1992, he was asked by the Regional Office of the Samiti to give his consent for his absorption in the schools run by the Samiti. Accordingly, he submitted his consent. Civil Writ Petition No.17683 of 1995. -4- Instead of considering him for permanent absorption in the Samiti and without putting his case for absorption before the Competent Absorption Committee, the Samiti vide order dated 18.9.1992 repatriated him to his parent department i.e. Mewat Model Middle School Society, Gurgaon. It is further the case of the petitioner that he filed Civil Writ Petition No.13196 of 1992 against repatriation order dated 18.9.1992. The High Court was pleased to admit the writ petition on 22.1.1993 and stayed the operation of the impugned order. Vide order dated 8.9.1994, the High Court quashed the repatriation order and directed the respondents to consider his case for absorption as per rules and regulations. Vide order dated 11.8.1994, Annexure P-6, he was intimated that it was proposed to absorb him permanently in the Samiti on the post of Principal and he was asked to give his willingness for absorption and to tender his resignation with effect from the date when he completed his deputation period, from the post held by him in his parent department. He accordingly sent his willingness for permanent absorption in the Samiti by Express Telegram. On 19.8.1994, he sent his consent along with his resignation. After his recruitment as Principal in July, 1988 a number of Principals were recruited by the Samiti in the years 1989, 1990 and 1991 on the same terms and conditions on which he was appointed. The maximum period of deputation with the Samiti was three years and after the expiry of two Civil Writ Petition No.17683 of 1995. -5- years, each Principal recruited/appointed on deputation with the Samiti was entitled to absorption in the Samiti and all the Principals who have completed three years of service on deputation have been permanently absorbed in the Samiti and none has been repatriated to his parent department. Vide order dated 13.3.1995, Annexure P-8, he was repatriated to his parent department with a direction to report for duty to his parent department. Aggrieved by this discriminatory treatment of Samiti, he filed Civil Writ Petition No.4360 of 1995 in the High Court which was dismissed vide order dated 24.3.1995, Annexure P-9. He submitted his joining report in the Society which was rejected by the Society,vide order dated 8.8.1995, Annexure P-10, on the basis of affidavit submitted by him under coercion and compulsion. No opportunity of hearing was afforded to the petitioner either by the Society or the Samiti. The petitioner has termed the orders dated 8.5.1995, Annexure P-10 and 13.3.1995, Annexure P-8 as absolutely illegal, arbitrary, capricious, whimsical, un-reasonable, grossly discriminatory, suffering from non application of mind and principles of fair play, equity and justice and are tainted with mala fide intention, unwarranted and uncalled for. The respondents contested the claim of the petitioner. Respondent Nos.1 to 3 in their written statement pleaded that the petitioner was selected for the temporary post of Principal. The Civil Writ Petition No.17683 of 1995. -6- petitioner voluntarily furnished affidavit, Annexure P-5, that he was leaving the post of Principal, of his own accord with no claim to come back and that he will have no lien with the respondents. From Annexure P-2, it is clear that when the application of the petitioner was routed through the respondents, there was no such undertaking given by them that in the event of his selection, he would be allowed to have lien with them. From the No Objection certificate issued to the petitioner, Annexure R-1/2, it is clear that the petitioner was not to have any lien with the respondents in the event of his selection. Thus, there was no question of any compulsion or coercion. After the expiry of three years which expired on 23.7.1991, there was no question of any deputation in view of affidavit, Annexure P-5 and No Objection Certificate, Annexure R-1/2. The petitioner did not implead the answering respondents as party in Civil Writ Petition No.4360 of 1995 filed by him. They had filled up the post which was earlier occupied by the petitioner. As the petitioner had no lien with them, therefore, there was no question of allowing him to join back with them. The petitioner of his own accord resigned from the post of Principal with effect from 25.7.1991. The petitioner submitted his request for re-joining the post after a lapse of seven years. There was no question of affording any opportunity to the petitioner in the facts and circumstances of present case as he had been relieved on his own request. It is admitted that the other Principals appointed were continuing with them but that did not Civil Writ Petition No.17683 of 1995. -7- give any cause of action to the petitioner in view of the fact that the petitioner had left their service of his own free accord. They denied that the order, Annexure P-10, is illegal, arbitrary, capricious, whimsical, unreasonable, grossly discriminatory or suffers from non application of mind and violative of principles of fair play, equity, justice. Respondent No.4 also filed written statement repudiating the claim of the petitioner. It has been pleaded that the petition is barred by resjudicata and constructive resjudicata. Vide order dated 13.3.1995, the petitioner was repatriated to his parent department and the petitioner challenged the same in Civil Writ Petition No.4360 of 1995 and claimed permanent absorption with the answering respondent. All the pleas raised by the petitioner were rejected vide order dated 24.3.1995. The petitioner filed his affidavit, Annexure P-5 and he did not mention about the same in the earlier Civil Writ Petition. The plea of compulsion and coercion raised by the petitioner should not be taken into consideration as he himself gave affidavit, Annexure P-5. During his tenure as Principal, his behaviour was not found to be satisfactory. He also indulged in financial irregularities. As per records received from N.V.S.Regional Office, Jaipur, the petitioner was running Kauveri Academy, a Primary School, without the permission or approval of Samiti and had 173 students on its rolls. He was charging Rs.50/- to Rs.80/- per month per child in addition to admission fee from each child. Further, the petitioner was accused of Civil Writ Petition No.17683 of 1995. -8- moral turpitude and there were complaints against his character and conduct. The petitioner joined the Samiti on 25.7.1988 on deputation basis and the period of three years expired on 24.7.1991. At the time of relieving the petitioner, respondent Nos.1 to 3,vide Annexure R-1/1A admitted that the petitioner was on deputation with them and that he would be taken back on the expiry of period of deputation. Now, respondent Nos.1 to 3 cannot be permitted to take any other plea or stand. If there was any dispute between the petitioner and respondent Nos.1 to 3, then they should settle the same at their own level without incurring any liability on the answering respondent. After the completion of three years of service on deputation, his parent organisation was requested vide letter dated 31.7.1991 for extension of term of service of the petitioner on deputation for a further period of one year. The parent office of the petitioner sent a copy of letter dated 20.6.1992 to the Samiti addressed by them to the petitioner informing him that he had resigned from the post of Principal in his parent organisation of his own and was relieved from his parent organisation on 23.7.1991. It was also stated that since the petitioner was not sent on deputation, the question of extension of deputation period did not arise at all. The petitioner was repatriated to his parent department vide order dated 18.9.1992. The petitioner cannot be allowed to serve with the Samiti as he had already been repatriated and the writ petition filed by him was dismissed. The matter cannot be allowed to be re-opened or Civil Writ Petition No.17683 of 1995. -9- re-agitated. I have heard arguments of counsel for the parties and have gone through the record of the case. So far as, the facts of the case are concerned, that are not in much dispute. Petitioner was selected as a Principal. The petitioner was offered the post of Principle by the Society. The petitioner joined as Principal in the said school in the year 1987. The Samitii advertised the posts of Principals. On 28.12.1987, petitioner applied to the Samiti for the post of Principal and his application was forwarded by the Society. The petitioner was selected as Principal by the Samiti on 4.7.1988. The petitioner was relieved by the Society on 23.7.1988 and the petitioner joined the Samiti on 24.7.1988. The deputation period of three years expired on 23.7.1991. The petitioner on 1.6.1991 applied to the Regional Office of the Samiti to absorb him as a Principal in the Samiti. The petitioner was asked to submit his consent for absorption in the Samiti and the petitioner submitted his consent for absorption in the Samiti. The Samiti did not accept the request for absorption of the petitioner and vide order dated 18.9.1992 repatriated the petitioner to Mewat Model School, Gurgaon. The petitioner filed CWP No.13196 of 1992 against the order of repatriation dated 18.9.1992 and the operation of order dated 18.9.1992 was stayed. The repatriation order was quashed and the Samiti was directed to consider the case of petitioner for absorption as per rule. Vide letter dated 11.8.1994, the Civil Writ Petition No.17683 of 1995. -10- Samiti intimated the petitioner that there is a proposal to absorb him permanently on the post of Principal and sought his willingness and to tender the resignation with effect from the date he completed his deputation period. The petitioner vide letter dated 19.8.1994 sent his consent for absorption. The Samiti instead of absorbing the petitioner, has repatriated him vide order dated 13.3.1995. The petitioner challenged the said order of repatriation through Civil Writ Petition No.4360 of 1995 and the Division Bench of High Court, vide order dated 24.03.1995 dismissed the petition with liberty to the petitioner challenge that action of his not taking back by parent department. The petitioner approached the Society to allow him to join but the Vice Chairman of Mewat Model School, vide order dated 8.5.1995 (Annexure P10), declined the request on the ground that no lien with M.M.S.S., Gurgaon, was kept. The relieving certificate issued by D.C.- cum-Chairman, M.M.S.S.Gurgaon will have no binding effect on the Society and thereafter the petitioner had preferred the present writ petition with a prayer to quash the impugned order Annexure P10 dated 8.5.1995 and Annexure P8 dated 13.3.1995 and for directing the respondent to absorb him as a Principal. There are two sets of Departments, one is the Samiti and other is the Society. The petitioner was previously working with the Society and joined Samiti thereafter. Now the question arises whether the petitioner is entitled Civil Writ Petition No.17683 of 1995. -11- for absorption and if yes in which institution i.e. whether in Society or in Samiti. First of all, I will take the case of Society, whether the Society is bound to take the petitioner back. In this regard the affidavit Annexure P5 is relevant. Petitioner, in this affidavit, has categorically stated that he is leaving the post of Principal of Mewat Model School, Ferozepur, Zirka on his own accord. In case he is not permanently absorbed in the Navodaya Vidyalaya Samiti, Delhi, he shall not claim any right to come back to the relieving authority. There shall be no lien of his post with Mewat Model School Society, Gurgaon, after his being relieved from the post of Principal under M.M.S.S., Gurgaon. The relieving certificate signed by the Deputy Commissioner-cum- Chairman, M.M.S.S., Gurgaon, will have no binding effect on the Society to maintain his lien after relieving him from the present post of Principal. In case of his reversion from the Navodaya Vidyalaya Samiti, Delhi, he shall not claim restoration of post held by him. The relieving certificate is signed by the Deputy Commissioner-cum- Chairman of M.M.S.S., Gurgaon at his request to help him. Annexure P4 is the relieving order. From the bare perusal of the said relieving order, it is revealed that the lien of the petitioner shall be kept for a period of three years on the post held by him in this institution. In case of reversion from Samiti before or after the expiry of deputation period, the petitioner will be taken back on the same post held by him Civil Writ Petition No.17683 of 1995. -12- presently. The petitioner has submitted that affidavit dated 23.7.1988 be not considered as the same was obtained by the Society under pressure. The said argument can not be accepted. It is not the case of the petitioner that said affidavit is the result of any forgery. The execution of said affidavit dated 23.7.1988 has been admitted. The petitioner has categorically stated in the affidavit that relieving order Annexure P4 has been issued by D.C.-cum-Chairman of M.M.S.S. without any authority. The petitioner was holding the post of Principal and as such he knows the consequence of execution of affidavit. So, his plea that affidavit Annexure P5 has been given under pressure cannot be accepted. In view of the contents of the affidavit, the petitioner is not entitled to absorption in the Society. So, his claim for absorption in the Society stands declined. The second question is whether the petitioner is liable to be absorbed in the Samiti. Learned counsel for Samiti has forcefully submitted that in view of judgment of Division Bench of High Court in CWP No.4360 of 1995 dated 24.3.1995, the petitioner is not entitled to absorbed in the Samiti. It is further submitted that the petitioner was running a parallel school named as Kaveri Academy Primary School, without the permission or approval of the Samiti, having 173 students and he was charging fee from Rs.50/- to Rs.80/- per month, per child and on that count he has committed various financial irregularities and Civil Writ Petition No.17683 of 1995. -13- as such he is not entitled to be absorbed in with the Society. I have carefully considered the said submission and have gone through the record of the case. So far as the argument advanced by learned counsel for Samiti to the effect that he was running a Kaveri Academy Primary School and he has committed financial irregularities and on that account, the petitioner is not entitled to absorption, there is no document on the file to prove the fact that any notice was given to the petitioner that he has committed financial irregularities or was running a Kaveri Academy Primary School. Moreover, the Samiti could take action against the petitioner. No charge-sheet to that effect has, however, been served upon the petitioner as there is no document in this regard on the file. So, in these circumstances, the said contention raised by learned counsel for the petitioner, is meritless. The other contention raised by learned counsel for Samiti is to the effect that Division Bench of High Court has dismissed the Writ Petition, challenging order dated 13.3.1995, repatriating the petitioner and on that count the present petition is not maintainable. In order to appreciate the said contention, the order passed in Civil Writ petition No.4360 of 1995 decided on 24.3.1995 is reproduced as under:- “Counsel for the petitioner at this stage argued that his parent department may not take him back as his lien was Civil Writ Petition No.17683 of 1995. -14- kept in that department for three years only and the petitioner has worked in the borrowing department for more than three years. Prima facie we do not think that parent department would take such a position but if the parent department takes such an action then the petitioner shall be at liberty to file a fresh writ petition against that action.” From the bare reading of the judgment passed by Division Bench, it is clear that so far as Samiti is concerned, the Division Bench has categorically stated that the petitioner has got no absolute right to be absorbed in the borrowing department i.e. Samiti. So, the door for entrance in the service of borrowing department i.e. Samiti has been shut down by the Division Bench. I, while sitting singly, has no other alternative but to accept the said finding. Otherwise also ,it is common law that the borrowing department cannot be forced to absorb the em`` ployee on deputation with it. However, the learned counsel for the petitioner has submitted that neither the parent department nor the borrowing department is allowing the petitioner to join the service without any reasonable explanation. It is further submitted that apprehension was raised before the Division Bench in Civil Writ petition No.4360 of 1995 that the parent department may not allow the petitioner to join the service. The Hon'ble Division Bench has given the petitioner liberty to Civil Writ Petition No.17683 of 1995. -15- file a fresh writ petition and as such the present writ petition is maintainable against the parent department as well as borrowing department. I have carefully considered the said submission but do not find any force in the same. Liberty to file fresh writ petition was given to the petitioner to challenge the action of the parent department and not the borrowing department. So far as the borrowing department is concerned, it has been categorically stated by the Division Bench that the petitioner is not entitled to absorption in the borrowing department as no legal right has accrued in his favour. So, the petitioner has the right to challenge the action of parent department for not allowing him to join the parent department. However, as discussed above, the petitioner has himself given the affidavit to the Society that he will not claim any right of absorption in case he is repatriated. So, no direction can be issued to the parent department to allow the petitioner to join it. By filing the affidavit, Annexure P-5 dated 23.7.1988. discussed above ,the petitioner has himself shut the door for his entry with the Society as a Principal. According to Annexure P-2, the retirement of the petitioner was in the 1998, on that count also, the petitioner is not entitled to absorption with the Society or the Samiti. In view of above discussion, the writ petition is without merit and the same stands dismissed. Civil Writ Petition No.17683 of 1995. -16- File be consigned to the Record Room after due compliance. March 10 ,2008. ( K. C. Puri ) Jaggi Judge.