IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.9241 of 1993 Date of decision: 20th April, 2011 Usha Rani Sehgal … Petitioner Versus Managing Committee of Hindi Putri Pathshala and others … Respondents CORAM: HON’BLE MR. JUSTICE RANJAN GOGOI, CHIEF JUSTICE HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. M.K.Tewari, Advocate for the petitioner. Mr. Satya Pal Jain, Senior Advocate with Mr. Dheeraj Jain, Advocate for respondents No.1 to 4. 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. Whether to be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? KANWALJIT SINGH AHLUWALIA, J. The petitioner was employed as a JBT teacher in Hindi Putri Pathshala Senior Secondary School, Khanna (hereinafter referred to as, ‘the School’). The School was receiving grant-in-aid from the Government to the extent of 95 percent. It is also an admitted case that subsequently, vide resolution (Annexure P-1) dated 9th January, 1984, management of the School was taken over by the respondent No.4-DAV College Managing Committee. As on today, the controversy also stands settled that the Punjab Privately Managed Recognised School Employees (Security of Service) Act, 1979 (hereinafter referred to as, ‘the Act’) governs the service conditions of the petitioner and provides necessary protection to the school employees and thus, writ petition is maintainable. Civil Writ Petition No.9241 of 1993 In the present writ petition, a two-fold grievance has been made, firstly, that there was no justification for the management of the School to deny selection grade of Rs.1640-2925 to the petitioner after completion of 18 years of service in terms of a Government notification dated 17th February, 1989 (Annexure P-22) and furthermore, respondents due to malafide reasons and without prescription of any norms have withheld the annual increments due to the petitioner year after year on the ground that she had not achieved hundred percent results in each subject of the first class taught by her. To adjudicate upon the grievances raised, it is essential to take note of the facts as they emerge from the pleadings of the parties. It is averred by the petitioner that she was appointed as a JBT teacher by the local Managing Committee of Hindi Putri Pathshala, Khanna in the year 1974. The School was receiving grant-in-aid from the State Government to the extent of 95 percent. The petitioner was initially appointed by the local Managing Committee of the School and her appointment was approved by the Education Department. Later on, the management of the School with effect from 9th January, 1984 was taken over by respondent No.4-DAV College Managing Committee. A resolution (Annexure P-1) to this effect was passed. The work and conduct of the petitioner from 1974 to 1983 remained good and there was no adverse report against her. According to the petitioner, after 1983 the management adopted a revengeful attitude and acted against the petitioner with vengeance. To justify this assertion, it is stated that in the year 1983 a complaint was made against the school management that it was over- charging the students and was collecting unauthorized/unapproved funds illegally. It is pleaded that the Education Department had assigned an enquiry to the Circle Education Officer, who examined various persons from the locality, parents of the wards and the staff members. The petitioner was 2 Civil Writ Petition No.9241 of 1993 one of the staff members who were called up by the Enquiry Officer and was subjected to many questions. It is a case of the petitioner that she had not furnished answers to the questions as were prompted by the management. Since the petitioner had not followed the dictate of the management to give tailor-made answers, this has caused annoyance to the management. Petitioner was in-charge of Class-I and the management picked up an excuse that the petitioner had not achieved hundred percent results in individual subjects and thus, it denied increments to the petitioner with effect from 1984. According to the petitioner, she had achieved 80-90 percent overall results and the management applied the yardstick of pass percentage in each subject taught to the students to deny increments. It is further stated that the subjects, in which the result is stated to be lower than its expectation, examinations were locally conducted and most part of them was oral. It has been further averred that the petitioner has been requesting the management to assign her Class-5, where the examination is conducted by the Education Board, to show her worth, and, to belie the assessment of the management that the petitioner is not a good teacher. It is stated that the result of Class-5 would have afforded an opportunity to the petitioner to prove her credentials, as the Education Board is an independent entity. To substantiate allegations of malafide, another reason stated in the writ petition is that husband of the petitioner appeared as a witness for one Kamlesh, Clerk of the School in contempt proceedings against respondent No.3-Principal of the School, who has been impleaded as a respondent by name. According to the petitioner this further infuriated the school Principal and the management, and therefore, the petitioner has been denied annual increments for the last nine years. The various orders passed, whereby the increments due to the petitioner were stopped, were challenged and qua each order separate appeal was instituted before the 3 Civil Writ Petition No.9241 of 1993 Director Public Instructions, Punjab, Chandigarh as per provisions of the Act. The Director Public Instructions had issued a notice to the management, which led it to approach this Court by filing a writ petition viz. CWP No.8218 of 1987 titled as ‘Hindi Putri Pathshala v. State of Punjab and others’ against the petitioner. In the said writ petition, a stand was taken that the Director Public Instructions had no power to entertain the appeals filed by the petitioner on the ground that the management enjoyed protection of Article 30 of the Constitution of India being a minority institution. During the course of arguments, it has been submitted that since the legal position stands resolved in favour of the petitioner, recently the above said writ petition was withdrawn. It will be pertinent to mention here that a Division Bench of this Court had noticed in its order dated 17th July, 2009 that during the pendency of the writ petition, the petitioner has retired from service. In the writ petition, it has been further averred that under the rules/guidelines, there is no norm that a teacher should achieve hundred percent results in each subject. Therefore, it is stated that the action of the management to stop the increments due to the petitioner from 1983-84 to 1991-92 is bad in the eyes of law and there was no justification for the management to stop the increments continuously for the last nine years. It has been further pleaded that the standard of achievement of hundred percent results in each subject was not applied to the other teachers, which also proves that the management had acted differently due to malafide reasons only qua the petitioner. In reply to the show-cause-notice (Annexure P-4) dated 26th July, 1987, the petitioner had sought circulation of the norms which prescribed achievement of hundred percent results. It was stated in the reply that the section of students which was assigned to the petitioner had 18 fail students of last year out of the total strength of 56 students, whereas, 4 Civil Writ Petition No.9241 of 1993 in other sections there was no fail student and intentionally the petitioner was assigned a section which had laggards. To demonstrate the malafide on the part of management, reliance has been placed upon a letter (Annexure P-5) dated 2nd September, 1987 issued by the Principal wherein it has been stated that the management decided to stop one increment due to the petitioner on 10th December, 1986 without cumulative effect. It is further stated that vide letter (Annexure P-7) dated 28th March, 1988, the Principal had communicated to the petitioner that the Clerk has been instructed to prepare the salary along with increments due in the month of December 1986 which was stopped for one year and the petitioner would also get the increment from the month of December 1987. It is stated that it is further evident from the specific stand of the Principal in (Annexure P-8) that the petitioner will be allowed to cross the efficiency bar as her increment was stopped without cumulative effect, which was due on 10th December, 1986. The Administrator overruled the Principal by giving the following note: “No, I do not agree. I have seen her results for the last so many years, which are below the mark. She was also verbally heard and found adament. She did not confess her fault or promise to improve. Her increment due on 10.12.86 is stopped with cumulative effect and she is not allowed to cross efficiency bar in view of her inefficiency. Sd/- Administrator Hindi Putri Pathshala Sr.Sec. School, Khanna” It is a case of the petitioner that Administrator of the School has unilaterally modified stoppage of the increment without cumulative effect to one with cumulative effect, only to deprive the petitioner to clear the efficiency bar. It is stated that vide communication (Annexure P-9) on 19th October, 1988 to bring the previous communications in conformity with the 5 Civil Writ Petition No.9241 of 1993 note given by the Administrator, the Principal had stated that the earlier orders were a result of mistake. To cut the long story short, it will be necessary to give one illustration out of many, where the performance of the petitioner has been noticed by the management. In communication (Annexure P-17) dated 20th January, 1992, the management has stated as under: “The annual result of your class, i.e. I-A, for the year 1990-91, has been as follows: i) Arithmetic 75% ii) Hindi Oral 85.41% iii) Hindi Dic (P) 85.41% iv) Hindi Dic (T) 91.66% v) Hindi Reading 56.25% vi) Eng. Reading 87.50% vii) Eng. (W) 87.50% viii) Sc. 93.75% ix) S. Studies 89.58% x) Tables 89.1% xi) Phy. Edu. 100% xii) S.U.P.W. 100% G. Result 81.25% 2. That as per requirements, the result of Ist Class should have been 100%. Thus, the result of your Class has been far below from the required standard.” In another order (Annexure P-18) passed on 17th March, 1992, the management has noticed performance of the petitioner as under: “… … … Her general result was 81.25% of her class I-B during 1990-91, which is much below the mark, although the strength of her class was 30… … …” When the petitioner confronted the management and stated that she had achieved results more than 81.25 percent, the management admitted its mistake in corrigendum (Annexure P-19) dated 4th April, 1992, wherein the Principal stated as under: “In continuation of my letter No.193 dated 2.4.92, it is further added that the word Class I-B was substituted with the word Class I-A, consequently the strength of your class will also be changed from 30 to 48. It is again cleared with 6 Civil Writ Petition No.9241 of 1993 regret that the word Class I-B in line No.15 and the strength of your class showing 30 in line No.16, in the order of the Manager dated 17.3.92, both be substituted with the words class I-A in place of I-B and 48 in place of 30 respectively. Sorry for the inconvenience.” The order (Annexure P-18) dated 17th March, 1992 whereby increment was stopped has been assailed on the ground that after issuance of the corrigendum, percentage of the result has changed, yet stoppage of the increment was maintained. In the written statement filed on behalf of respondents No.1 to 4, i.e. the management and the Principal of the School, most of the facts have gone unchallenged. However, it will be apposite here to reproduce the following portion of the written statement to show evasiveness of the management: “8. … … … Although the result of the Primary Class should be 90-100% yet no explanation was called for from the petitioner because her result was upto 80 per cent. It is noble gesture on the part of the answering respondent that she rectified the wrong entries, once or twice, whenever pointed out because – “to err is human”. As the petitioner was not coming to the expectations of the Managing Committee, she was given ample opportunity to improve her way of teaching. The annual examinations were also conducted by the teachers who are supposed to be competent and able to maintain secrecy. All the papers/tests are taken in the absence of the teacher concerned. Rest is the concocted story by the petitioner.” In the replication filed, the petitioner has stated that the fact that husband of the petitioner had appeared against the Principal in the contempt proceedings has not been denied. On 20th January, 2011, a Division Bench of this Court, to which one of us (Ranjan Gogoi, Acting Chief Justice) was a party, had directed the management to decide the entitlement of the writ petitioner to the selection 7 Civil Writ Petition No.9241 of 1993 grade and the annual increments, and thereafter, place the decision before the Court, as it was averred in para 35 of the written statement that the time bound selection grade has not been refused and the matter has been referred to the management and the grant of selection grade has been kept in abeyance. In compliance thereof, the management passed an order (Annexure R-3) dated 11th February, 2011, wherein it is stated that on 23rd July, 1979 a warning was issued to the petitioner to improve her work and on 20th March, 1985 she was censured by the Head of the institution for leveling false allegations. On 26th October, 1984, increment of the petitioner for one year was stopped due to the poor performance of her work. Again on 10th December, 1986 one increment was stopped with cumulative effect and she was not allowed to cross the efficiency bar. Subsequently, the increments due to the petitioner were stopped on 10th December, 1987; 11th December, 1988 and 11th December, 1989 with cumulative effect. Again the increment due on 2nd January, 1992 to the petitioner was stopped with cumulative effect by the Managing Committee. Therefore, the management had decided not to permit the petitioner to cross efficiency bar due on 11th December, 1992 and hence, she was denied the selection grade, which was due to her on completion of 18 years of service. Another increment, which was due to the petitioner on 2nd January, 1993, was also denied with cumulative effect. The increment due to her in the years 1997 and 2003 were also not granted with cumulative effect. We have heard counsel for the parties. After going through the record and taking note of the rival submissions, we are of the view that three issues arise for consideration of the Court. (1) As to whether non- achievement of hundred percent results in each subject entitles the management to stop the increments due to the petitioner; (2) As to whether denying the increments continuously during the course of employment is justifiable on the facts and law of the case; and (3) As to whether imputation 8 Civil Writ Petition No.9241 of 1993 that the management was acting due to malafide reasons is proved from the facts of the case or not. Admittedly, on the record of the case and the paper book no communication is available wherefrom it can be inferred that the teachers were acquainted with the norms set out by the management that they should achieve hundred percent result. It is expected that before the academic session commences, a teacher must be informed what the management of the School expects from him/her. According to the management, the petitioner had achieved 80 percent result. If the communications of the management are taken into consideration where it realized its mistake and made the necessary correction, the result achieved by the petitioner is bound to improve. To prescribe hundred percent pass percentage in each subject is too onerous. If the unachieveable standards are made to achieve, one is bound to falter. Therefore, according to us, prescription of hundred percent results in each subject taught by the petitioner cannot be upheld on the test of reasonableness. Furthermore, no guidelines have been issued by the Education Department that a teacher should achieve hundred percent results in each subject. Year after year increments due to the petitioner were stopped, as she was not able to achieve hundred percent results. Even if we assume the contentions of the management then the petitioner had become a deadwood. Therefore, the best course which the management could have adopted was to dispense with the services of the petitioner. This would have necessitated holding of a full-fledged departmental enquiry. Such a course was not undertaken by the management and instead it continued to stop increments year after year to frustrate the employee. We cannot appreciate this conduct of the management as a sound practice. The petitioner had filed appeals against each order whereby the increments were stopped. The decision of the appeals was forestalled by filing a writ petition, which was subsequently withdrawn recently. During 9 Civil Writ Petition No.9241 of 1993 that interregnum, the petitioner had retired from service. This writ petition was filed in the year 1993. Therefore, at this stage, we see no reason to relegate the petitioner to the remedy of appeal. The petitioner has spared no words to level allegations of malafide. The respondent management and the Principal have denied the same. From the conduct of the management even though at first instance, some truth can be found in the allegations of malafide, we will refrain ourselves to examine veracity of these allegations, as we have already held that denial of increments on the sole ground of non-achieving of hundred percent results in each subject cannot be sustained on the touchstone of reasonableness. Therefore, we will not venture to adjudicate upon the grounds of malafide projected in the present writ petition. As a result of our discussion and the observations made above, we accept the present writ petition and set aside all the orders whereby the petitioner was denied benefit of increments with or without cumulative effect. Once the orders of stoppage of increments are set aside, we see no hurdle for the petitioner to cross the efficiency bar and as a consequence thereof, the petitioner is also entitled to the time bound selection grade on completion of 18 years of service. The petitioner is also held entitled to all consequential reliefs, which shall accrue to her after grant of increments, crossing of efficiency bar and grant of selection grade. The respondents shall calculate the arrears and terminal benefits, which are due to the petitioner and disburse the same within a period of six months from the date of receipt of a certified copy of this order. We propose no orders as to costs. [RANJAN GOGOI] CHIEF JUSTICE [KANWALJIT SINGH AHLUWALIA] JUDGE April 20, 2011 rps 10