IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.13654 of 2000 Date of decision:01.02.2010 Sanjay Kumar ....Petitioner versus State of Haryana and others ...Respondents II. Civil Writ Petition No.12876 of 2000 Ramesh Kumar ....Petitioner versus Tika Ram Education Society and others ...Respondents III. Civil Writ Petition No.13115 of 2000 Amarjeet Singh ....Petitioner versus State of Haryana and others ...Respondents IV. Civil Writ Petition No.13116 of 2000 Satish Kumar ....Petitioner versus State of Haryana and others ...Respondents Civil Writ Petition No.13654 of 2000 - 2 - V. Civil Writ Petition No.13303 of 2000 Krishan Kumar and others ....Petitioners versus State of Haryana and others ...Respondents VI. Civil Writ Petition No.13340 of 2000 Rajesh Kumar ....Petitioner versus State of Haryana and others ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Dharam Vir Sharma, Senior Advocate with Ms. Shivani Sharma, Advocate, for the petitioner in Civil Writ Petition No.13654 of 2000. Mr. Rajbir Sehrawat, Advocate, for the petitioner in Civil Writ Petition No.12876 of 2000. Mr.R.K. Malik, Senior Advocate, with Mr. Surya Pratap Singh, Advocate, for the petitioner in Civil Writ Petition Nos.13115 and 13116 of 2000. Mr. Pawan Kumar Mutneja, Advocate. Mr. Ravi Dutt Sharma, Additional Advocate General, Haryana. None for the petitioners in Civil Writ Petition Nos.13303 and 13340 of 2000. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the reporters or not ? Yes 3. Whether the judgment should be reported in the digest ? Yes ---- K.Kannan, J. 1. The batch of writ petitions addresses the grievances of the teachers in the educational institution run by the 4th respondent Tika Ram Education Society, Sonepat. The reference to the respondents shall be Civil Writ Petition No.13654 of 2000 - 3 - the same as found in the array of parties in Civil Writ Petition No.13654 of 2000. 2. All the petitioners have complained against the orders of termination issued against them by the Administrator appointed by the Director of School Education, after the administration of the school was purported to have been taken over by the Government. The educational institution run by the 4th respondent was admittedly an aided school to which the provisions of the Haryana School Education Act of 1995 and the relevant rules are applicable. For some alleged mismanagement of the affairs of the Society which had also established some Colleges within the State of Haryana, a writ petition in Civil Writ Petition No.16820 of 1998 titled Tek Ram Versus State of Haryana and others had been filed before this Court. The writ petition referred to the fact that the Society which had established three Colleges and three Schools had been carrying out the affairs through a governing body which was not competent to function and the election to the office bearers of the Society appears to have been a subject of the writ petition. In that writ petition, it appears to have been contended that the governing body that had been appointed on 24.08.1994 had a tenure of office only for a term of 3 years and without going through a proper process of election, an Ad hoc Committee had been set up, which was taking administrative decisions that were harmful to the proper conduct of the affairs of the Society. This Court admitted the writ petition and passed an order restraining respondents 6, 8, 9 and 11 in that writ petition from acting as members of a governing body. They had made it clear that in case the Civil Writ Petition No.13654 of 2000 - 4 - State Government wished to appoint an Administrator pending disposal of the writ petition, it would be at liberty to do so. It appears that the decision had been taken by the Government in relation to the administration of affairs of the College run by the Society when a notification was issued by the Governor of Haryana taking over a management of three education institution namely, Tika Ram Girls College, Sonepat; CRA College, Sonepat; and Tika Ram College of Education, Sonepat with immediate effect. The Governor had been also pleased to appoint the Additional Deputy Commissioner, Sonepat, as Administrator of the Colleges under the provisions of Haryana Private Colleges (taking over of Management) Act of 1971. 3. Subsequently it appears, representations had been made for appointment of an Administrator also for the schools namely CRA Senior Secondary Schools (Boys); Tika Ram Girls Senior Secondary School and Tika Ram Primary School. The Deputy Commissioner, Sonepat, Shri Sudhir Rajpal, IAS, had sent a letter of communication to the Administrator appointed for the Colleges namely to Shri Prem Parshant, who was also incidentally the Financial Commissioner and Secretary to Government of Haryana, Education Department that since the members of the governing body had been restrained from acting as members of Tika Ram Education Society, they could not also administer the affairs of the three schools referred to above. The letter of communication pointed out that no Administrator of Schools had yet been appointed, although the members of the governing body had been restrained from acting as members of the Society. A situation arose that Civil Writ Petition No.13654 of 2000 - 5 - there was neither any Administrator looking after the schools nor any governing body legally entitled to function in view of the interim orders passed by this Court. 4. It appears that acting on the said letter, the Director, Secondary Education, Haryana, Chandigarh, issued a letter of communication on 14.06.2000 to the Deputy Commissioner, Sonepat appointing him as an Administrator on informing him, “I have been directed to convey to you the Government’s approval appointing Additional Deputy Commissioner, Sonepat, as Administrator on CRZ, Senior Secondary School (Boys), Sonepat. Tika Ram Girls Senior Secondary School, Sonepat, and Tika Ram Primary School, Sonepat, till the disposal of pending Civll Writ Petition No. 16820 of 1998, so that the education of the schools do not suffer in the absence of any management.” The Administrator so appointed began dismissing the various teachers for various reasons, some on the grounds of alleged irregularity of appointments and some on the grounds that they had become surplus. Before a decision taken by him, comments had been taken from the principal. In all the letters issued by him terminating the services of the teachers, the Administrator purported to exercise the powers vested in him and emanating from the Director, Secondary Education through his memo dated 14.06.2000 referred to above. 5. The learned counsel appearing for the petitioner in Civil Writ Petition No.13654 of 2000 pointed out that the petitioner had been appointed as a Library Restorer on 17.04.1998 in a non-sanctioned post and subsequently when a post of a Clerk fell vacant on 04.06.1998 which Civil Writ Petition No.13654 of 2000 - 6 - was a sanctioned post to which a grant-in-aid from the Government was also provided, he had been appointed to that post. The appointment of the petitioner had been cancelled and the termination order was effected on the ground that he had been appointed to a non-sanctioned post initially and subsequently to a sanctioned post but the strength of the students had fallen and he had become a surplus. A ground not taken in the order was introduced by the management in the pleadings that no permission had been taken from the Government in the manner contemplated by section 8(2) of the Haryana School Education Act of 1995 and hence the appointment was invalid. The grievance of the petitioner is that even if the cancellation of the appointment were to be bad for not taking the approval of the Director in the manner contemplated by the Act of 1995, the petitioner could have been only reverted to the post as Library Restorer which was a non-sanctioned post and the management’s decision could not be annulled wholly. The cancellation of appointment to the post as a Clerk ought not to have resulted in unseating him even for the post to which he was appointed as a Library Restorer. 6. As regards the contention of the petitioner in Civil Writ Petition No.13115 of 2000, the learned counsel appearing for the petitioner would contend that he was appointed against a sanctioned post on 16.02.1998, but his services were terminated on 19.09.1998 on the grounds of the strength of the students had been depleted from time to time and that the workload had considerably come down and consequently the petitioner had become surplus. The services were, Civil Writ Petition No.13654 of 2000 - 7 - therefore, terminated with immediate effect. The appointment and removal of the petitioner in CWP 13116 of 2000 were more or less on the same set of facts as CWP 13115 of 2000 and hence they are not repeated here. 7. As regards the petitioner in Civil Writ Petition No.12876 of 2000, the contention was that he had been appointed to a non-aided post as a Lecturer in College and later, he had been appointed as a hostel Warden in the first place in the year, 1991, yet again in a non-sanctioned post and subsequently, he had been appointed as a maths master, again on a un-sanctioned post on 22.02.1994. The termination of appointment was also on the basis that he had become a surplus but the challenge to the cancellation of appointment by the Administrator was on the basis that the Administrator could have been appointed only in a situation where under the relevant provisions of the Haryana School Education Act, 1995, there were grounds made for taking over of management of the school and in this case, the order appointing an Administrator was made only as regards the College and there had been no specific orders of taking over of schools or appointment of an Administrator. The alleged approval of the Government for appointing the Administrator was not anywhere available and the learned counsel would contend that there had been even a direction by this Court to produce the File No.5/51-2000 S1(2) showing that the particular proceedings of the Government approving the appointment of an Administrator to the school. The contention of the learned counsel appearing for the petitioner was that the Deputy Commissioner himself could not have Civil Writ Petition No.13654 of 2000 - 8 - appointed an Administrator nor could the Director of School Education appoint an Administrator unless there had been a decision notifying the taking over of the school and a proper appointment of a personal Administrator for the school. 8. Even before allowing the counsel to advert to the merits of the respective orders passed terminating the services of the various teachers, I had called upon the learned counsel appearing on behalf of the Government to produce the requisite proof of taking over of the schools and the appointment of an Administrator by a competent authority. The Director of School Education, Shri Anil Kumar, IAS, has stated that the File No.5/51-2000 S1(2) was not traceable. 10. The contention of the counsel for the petitioner had been that the order appointing an Administrator had been issued by the Government through a notification in the name of the Governor only as regards Colleges and there was no order appointing the Administrator under the same notification. I am of the view that the fact the file is not available is not relevant at all nor is the contention that there was no appointment of the Administrator correct. The procedure for appointment of an Administrator for Colleges is different from the procedure delineated under the 1995 Act. The Haryana School Education Act of 1995 sets out through Section 10 the circumstance when the taking over of the management school could be done. Section 10(2) is reproduced as under :- “Whenever the management of any school is taken over under sub-section (1), every person incharge of management of such school immediately before its management is taken over, shall deliver possession of the Civil Writ Petition No.13654 of 2000 - 9 - school property to the Director or any office authorized by him in this behalf.” 9. Section 10(1) requires the satisfaction that the Managing Committee had indulged in financial irregularity or financial management or neglect. Section 10(3) states that the Government could management the school through an Administrator authorized by the Director. I have already culled out Section 10 of the Act which empowers the Director to appoint an Administrator for certain grounds. Indeed if it is shown that the Director had appointed the Administrator in a situation where the Managing Committee had been restrained by the order of the High Court, then such appointment was only to ensure that the administration of the school was continued in public interest and the students were not put to any serious hardship. There is nothing wrong about the validity of the appointment of the Administrator and the orders passed by the Administrator cannot be assailed on the said ground. 11. The point that would require consideration in each of the petitions is whether the removal of the respective petitioners was justified. As regards the petitioner in Civil Writ Petition No.13654 of 2000, the appointment had been made in a non-sanctioned post as a Library Restorer on 17.04.1998. Subsequently, on 04.06.1998 when a post of a Clerk fell vacant in a non-sanctioned post that had grant-in-aid of the Government on 04.06.1998, the management of the Society is purported to have appointed the petitioner. It is pointed out by the learned counsel appearing for the respondent that no appointment could have been made without the approval from the Director to a sanctioned post as set out through Section 8(2) of the Haryana School Education Civil Writ Petition No.13654 of 2000 - 10 - Act, 1995. Learned counsel appearing for the petitioner would contend that even if the appointment as a Clerk were to be found as invalid, he must have been reverted only as a Library Restorer in a non-sanctioned post and the management must be directed to restore the petitioner to the services and be directed to restore to the petitioner all the benefits. The learned counsel appearing for the respondent would contend that the term of office of the governing body had expired on 24.08.1997 and before the end of the completion of the term, an Ad hoc Committee was incharge and consequently, the appointment made even by the so-called Management Committee was not valid since there was no validly constituted Committee authorized to make any appointment. While want of sanction from the Director for a sanctioned post could be vitiated for statutory violation, even if not so stated in the order of removal, the respondent shall not be permitted to urge that the appointment of the petitioner had not been done lawfully by virtue of the defect in the constitution of the committee without founding the said ground in the order of removal itself. The removal of the petitioner was not done on such a ground but only on the ground of financial stringency of the institution. The administrator was entitled to examine the financial viability of the institution to consider whether or not to continue the petitioner in the non-sanctioned post, since the burden was wholly on the institution. If decision had been taken after serving a notice on the petitioner and after considering the financial condition and the fall in strength in the school, such a decision is valid. The claim of the petitioner therefore to quash the order of dismissal cannot therefore be Civil Writ Petition No.13654 of 2000 - 11 - granted. However, for any period from the date of his appointment on 17.04.1998 to 13.09.2000 when he had been terminated from services, the petitioner would be at best entitled to the salary for which he was appointed on the principle of quasi-contract for value of the services hand and received by the education institution. If such salary has not been paid, the petitioner shall entitled to the said monetary benefit and the same shall be calculated and paid within a period of 8 weeks with interest at 6% per annum. 12. As regards the claim of the petitioner in Civil Writ Petition No.13115 of 2000, the claim of the petitioner is that he had been appointment on 16.02.1998 to a sanctioned post. The petitioner’s contention is that he had been terminated from service by order of the Administrator dated 09.09.2000 on the ground that the strength of the school had dwindled. The contention of the petitioner is that if the strength of the school had fallen and then therefore it was not possible to retain the appointment of the petitioner, the administration ought to have only considered for a redeployment of the petitioner in some other aided institution where a vacancy existed. In my view, the termination of service of a teacher to a sanctioned post whose manner of appointment itself is not challenged, but if a decision to terminate is taken for loss of the strength of the school, the Administrator representing the school management ought to recommend to the Director only for redeployment of the petitioner in some other aided institution. The termination without undertaking such an exercise is unjust and I direct that the redeployment of the teacher in some other institution or in the same institution if the Civil Writ Petition No.13654 of 2000 - 12 - present situation so makes possible the reappointment of the teacher. On such redeployment, which shall be undertaken within a period of 8 weeks from the date of receipt of copy of the order. The petitioner shall be entitled to continuity of service and seniority and would also be entitled to 50% of the salary and benefit which would have been paid to him but for the order of removal from service. 13. As regards the claim of the petitioner in Civil Writ Petition No.13116 of 2000, the petitioner had been appointed on a sanctioned post on 12.05.1998, but he was terminated from service on 09.09.2000 on the same grounds as mentioned for the petitioner in Civil Writ Petition No.13115 of 2000. The petitioner points out that after his termination, two teachers K.K.Rathi and Balkrishan had since retired and the petitioner ought to have been readjusted to those posts and could not have been terminated from service without considering the scope for redeployment of the petitioner to a sanctioned post. The petitioner has also filed C.M. No.12654 of 2004 referring to the above facts and to the fact that the representation had been made to the DEO, Sonepat on 15.07.2004, but there has been no response from the respondent. The District Education Officer has filed counter to the allegations raised, contending that the Selection Committee had recommended the names of Surinder Singh Dahiya and Vikram Singh for the posts that fell vacant but the management had appointed the petitioners in Civil Writ Petition Nos.13115 and 13116 of 2000 and as per the information available from the management of the School, the petitioner in Civil Writ Petition No.13116 of 2000 was not even a candidate who appeared for the Civil Writ Petition No.13654 of 2000 - 13 - selection to the post when it was advertised and filled up. To a claim of the petitioner that he ought to have been readjusted when there fell vacancies, in my view, it would be not a defence to suggest that when the vacancies fell, fresh advertisement had been issued and that the petitioner had not applied for the fresh appointment. A person that was removed from service on the ground of his having become surplus ought to have been considered on a priority basis and if only he was unavailable for reappointment or when he was declining to accept such appointment, the management could have again gone for fresh advertisement and recruited fresh candidates. The petitioners’ claim for consideration for redeployment is perfectly justified and the petitioners would be entitled to a consideration on the similar lines for redeployment as directed by me as regards the petitioner in Civil Writ Petition No.13115 of 2000. 14. As regards the claim of the petitioner in Civil Writ Petition No.12876 of 2000, the contention of the petitioner is that he had been a Lecturer in the School. Since the decision of the Managing Committee to promote him as a Lecturer in History in the higher secondary school with immediate effect from 02.07.1994, a letter was also issued to that effect on 11.07.1994. Ultimately when an order was passed on 09.09.2000, it was done on the basis that the petitioner had been appointed as a hostel warden on 09.11.1991 in an unsanctioned and non- existing post and that he was absorbed as a maths teacher against an unsanctioned post on 22.02.1994 in the place of Kuldip Singh, who had been promoted as a Lecturer before the petitioner was finally promoted Civil Writ Petition No.13654 of 2000 - 14 - as Lecturer in the department of History. The order of termination recited that the petitioner had been appointed to an unsanctioned post for which no financial aid was received from the Government. Ultimately termination came to be effected on the ground that there had been a fall in the students strength and therefore, there was no justification to keep him anymore in the employment of the school. 15. If the petitioner had been in engagement of the school only to a non-sanctioned post and when he contended that the students strength had fallen and therefore, he had become surplus. The decision of the school to terminate the services itself cannot be questioned. The consideration that applied for the petitioner in Civil Writ Petition 13654 of 2000 alone would apply and the consideration in Civil Writ Petition No.13115 and 13116 of 2000 cannot be applied to the petitioner since the appointment purported to have been in a non-sanctioned post for which only the management took responsibility for payment of salary without any financial aid from the Government. The Administrator who had opined that the strength of the school had fallen and in the course of his management decided that the petitioner’s paper to be declared as surplus and terminated, it should be taken only as one flowing from the normal course of administrative decisions that cannot be assailed except when it is without authority or for mala fide reasons. The decision cannot be said to be arbitrary since it is supported by a justification that can be seen to be valid especially when the Administrator himself came to be appointed only to prevent further mismanagement and on an account of financial stringency that the administration was facing. The Civil Writ Petition No.13654 of 2000 -15 - termination of services of the petitioner in Civil Writ Petition No.12876 of 2000 cannot therefore be faulted. 16. Civil Writ Petition Nos.13303 and 13340 of 2000 refer to dismissal of the respective petitioners on the ground that their appointments had been on non-sanctioned posts and the their salaries had been paid only by the management. The dismissal of the petitioners are also principally on the ground of financial stringency and the posts liable to regarded as surplus. The petitions would require to be dismissed for the same grounds as enumerated in CWP 13654 and CWP 12876 of 2000 and accordingly dismissed. 17. The order of removal of teachers in Civil Writ Petition Nos.13654, 12876,13303 and 13340 of 2000 are sustained and the same are dismissed. The petitioners in Civil Writ Petition No.13115 of 2000 and Civil Writ Petition No.13116 of 2000 shall be entitled to be considered for redeployment in any other aided recognized educational institution or the same institution, with continuity of service and seniority along with 50% of back wages. The consideration for redeployment shall be undertaken by the Administrator and sanction obtained from the Director within a period of 8 weeks from the date of receipt of copy of the order. The writ petitions are disposed of on the above terms. No costs. (K.KANNAN) JUDGE 01.02.2010 sanjeev