Manmohan Singh Jaitla, Etc. Etc. v. the Commissioner. Union Territory Chandigarh and Ors. Etc. Etc.

Judgment

The Judgment of the Court was delivered by ff DESAI, J. Gum Nanak Khalsa High School ('School' for short) an aided school and hence governed by The Punjab Aided Schools (Security of Service) Act, 1969 ('1969 Act' for short) in its applica-. tion to the Union territory of Chandigarh dispensed with the service of the Headmaster of the School, appellant Shri Manmohan Singh Jaitla, and the drawing teacher Amir Singh claiming to exercise power under an agreement executed by each of them with the management of the school. Admittedly, the school receives 95% of its expenses as grant from the Government and for contribution 5 % of the expenses claims thoroughly arbitrary powers to b.e presently pointed out which appears to be anachronistic.

The action of the Managing Committee of the school in dispensing with the services of both the aforementioned persons is questioned in these two matters on more or less identical grounds and therefore they were heard together and are being disposed of by this judgment . ff In Re : C.A. No. 2137/84: Pursuant to an advertisement inviting application for the post of Headmaster of the School, appellant-Shri Manmohan Singh Jaitla applied for the same. He was interviewed on March 28, 1976 and on the iame day by the order of the same date, he was offered the post of Headmaster in the school in the prescribed scale with usual allowances sanctioned by the Education Department, Chandigarh Administration for grant-in-aid Schools. The order of appointment provided that the appointee will be on probation for a period of one year and that he will be required to enter into an agreement with the school. The appellant accepted the appointment order and joined service.

Ab required by the regulations of the Education Department of Chandigarh Administration, his appointment was subject to confirmation by the Director of Public Instruction. The confirmation was granted as per the order dated August 11, 1976. By the resolution of the Managing Committee of the School dated June2, 1977, the appellant was confirmed with effect from May 1, 1977 in his post as the Headmaster. In token of tb.e appreciation of the outstanding performance of the appellant as Headmaster in the field of ~cademic work/co·curricular activities and administration during the session 1980-81, he was awarded a certificate of honour by the Finance and Education Secretary, Union Territory of Chandigarh, on August IO, 1981. It appears that the term of the earlier Managing . Committee expired and a new Managing Committee took over with effect from March 24, 1982. On January 31, 1983, the Education Managing Committee of the school informed the appellant that his I M.S. JA.ITLA ,, UNION TIRRITORY (Desai.

J.) c.ervices were no longer required with effect from that very day i.e. January ?I, 1983 and in terms of Condition No. (iii} of the agreement entered into by him, he would cease to be in the employment of the school and was directed to hand over charge to Mrs. Gurcharan Kaur. The appellants application for relief to the Deputy Commissioner under sub·sec. (2) of Sec. 3 of the 1969 Act was turned down. After an unsuccessful appeal to the Commissio· ner, the appellant approached the High Court of Punjab and Haryana at Chandigarh under Art. 227 or the Constitution. The High Court rejected the writ petition in limine but by a speaking order observing that as the school cannot be said to be 'other authority' under Art. 12 of the Constitution, it was not amenable to the writ jurisdiction of the High Court. Hence this appeal by special leave In Re W. P. No. 11238/83:

Petitioner Amir Singh was appointed by the Managing Committee of the School on March 21, 1976 as a Drawing Teacher as per the appointment order No 1265 dated March21, 1976. This appoint· ment was made upon an application made by the petitioner and after he was interviewed by the concerned committee of the school. The appointment order spells out some of the conditions of appointment, one of them may be noticed. The appointee bad to enter into an agreement with the management with the management of the school. The petitioner was informed by a letter dated February 28, 1983 that as per the resolution adopted by the Managing Commtitee of the school, it was resolved to terminate the service of the petitioner as no longer required with effect from the fore-noon of March 4, 1983 in terms of first part of clause ( 6) of the agreement entered into between the petitioner and the Management. The petitioner approached the Deputy Commissioner and the Commissio· ner without success.

Thereupon he filed present petition nnder Art. 32 of the Constitution. It is not in dispute that the school is governed by the 1969 Act. It is an aided school receiving aid from the State Government to the tune of 95% of its expenses. Sec. 3 of the 1969 Act provides that no employee shall be dismissed or removed or reduced in rank except after an inquiry to be held in the manner prescribed therein. Sub-sec. (2) provides that no order of dismissal or removal or reduction in rank of an employee shall take effect unless it has been confirmed by the Deputy Commissioner who may refuse to do so, if in bis opinion, the provisions of sub-sec. (I) have not been complied with. Sub-sec. (SJ permits an aggrieved person to prefer an appeal stJPllDlll COUl.T REPORTS against any decision or mder of the Deputy Commissioner under the section within a period of thirty days to the Commissioner. Subsec. (6) provides that the order of the Commissioner shall be final and binding between the parties.

The Deputy Commissioner and the Commissioner in terms held in both the cases that because of the terms of the ag1 eement entered into by each of the teachers with the management of the school; it would not be open to them to go behind the order and to find out the true nature of the order. It was also submitted on behalf of the respondent that under the relevant regulations of the Education Department of the Chandigarh Administration every employee of an aided school has to enter into an agreement with the management of the school. Now if the management of the school intends to circumvent the mandatory provisions of Sec. 3 of the 1969 Act, it has merely to terminate the service by giving one month's notice as provided in the agreement and the provisions controlling the arbitrary powers of the management to' hire and fire can be rendered nngatory.

The Deputy Commissioner cannot take an easy recourse becoming oblivious to his duties merely to pay lip sympathy to the order made by the management and decline even to examine ihe allegation of malafide as also the true nature and character of the impugned order. In the garb of enforcing a term of the agreement what was sought to be done in this case was to impose the penalty of removal. And there is sufficient material on record to show that the action was malafide. Turning to the case of Manmohan Singh Jaitla, the Headmaster, the facts hereinabove narrated would affirmatively show that he was fully qualified ·and that he was appointed after interview and selection. He was confirmed. He received a certificate of merit from the Chandigarh Administration.

The moment the Managing Committee changed exposing the inter-se squabbles amongst persons trying to usurp control of the management of the school, almost wholly financed by the public exchequer, to wreck vengeance ai;ainst those who were appointed by the outgoing management which may 'have been defeated at the hustings, the agreement was invoked and the services terminated. Throwing out persons appointed by outgoing management is only one side of the coin. The moment the vacancy occurs, nepotism or corruption will have field day. Since the new managenie'nt took, over quietly within a few months, service of the Headmaster was terminated on the ground that his service was. no longer required. We repeatedly asked Mr. Prithvi Raj, M.S. JAITLA v. UNION TE!Ul.l'fORY (Desai, J.) learned counsel for the respondent-school management as to how it would run a school without a Headmaster.

We naggingly persisted with the question as to why it became necessary, obviously in the middle of the term or session on January 31, 1983, to dispense with the service of a Head Master and a Drawing teacher on the ground that they were no longer required. We waited for the answer in vain. Obviously, there could be none and that provides proof, if any was needed, to expose the chink in the cupboard revealing the malafides of the newly elected Managing Committee. We cannot efface the feeling that ignoring the meritorious service for a period of seven years the service of the appellant was dispensed with for a reason wholly untenable but only because he was appointed by the outgoing Managing Committee ignoring that his appointment was confirmed by the competent authority of the Chandigarh Adminstration. Coupled with this is the fact that a charge-sheet was served on the appellant on April 9, 1979 •nd a disciplinary enquiry was commenced by the school management.

But the same was withdrawn and the power to terminate the service under the agreement was invoked and exercised. This gives a clear indication as to the punitive character of the order namely punishment for a possible misconduct and also colourable exercise of power by resorting to the agreement. Any agreement, not in consonance with the statutory provisions beneficial to a class in need of protection cannot be given effect to if it stands in derogation of the mandatory provision• of the statute. Sec. 3 makes it obligatory to hold a disciplinary enquiry before an employee of an aided school can be either dismissed, removed or reduced in rank. In order to circumvent this mandatory provision, a resort to the provisions of the agreement in the context of the fact that an enquiry was commenced and given up clearly indicates the true nature of the order as well as colourable exercise of power.

And this was done by the new Managing Committee which appeared to be keen to dispense with the service of persons appointed by the outgoing Managing Committee This smacks of malafide. For all these reasons the order of termination of service of the appellant H bad and ab initio void. The High Court declined to grant any relief on the ground 0 that an aided school is not 'other authority' under Art. 12 of the Constitution and is therefcre not amenable to the writ jurisdiction of the High Court. The High Court clearly overlooked the point that Depnty Commissioner and Commissioner are statutory anthorities operating under the 1969 Act. They are quasi-judicial authorities and that was not disputed. Therefore, they will be comprehenit SUPRl!M.B COURT REPORTS [HISS] 2 s.c.1.. ded in the expression 'Tnbunal' as used in Art. 227 of the Constitution which confers power of superintendance over all courts and tribunals by the High Court throughout the territory in relation to which it exercises jurisdiction.

Obviously, therefore, the decision of the statutory quasi-judicial authorities which can be appropriately described as tribunal will be subject to judicial review namely a writ of certiorari by the High Court under A rt. 227 of the Constitution. The decision questioned before the High Court was of the Deputy Commissioner and the Commissioner exercising powers under Sec. 3 of the 1969 Act. And these statutory authorities are certainly amenable to the writ jurisdiction of the High Court. The matter can be viewed from a slightly different angle as well. After the decision of the Constitution Bench of this Court in Ajay Hasia etc. v. Khalid Mu;ib Sehravardi &, Ors. etc.<1) the aided school receiving 95% of expenses by way of grant from the public exchequer and whose employees have received the statutory protection under the 1969 Act and who is subject to the regulations made by the Education Department of the Union Territory of Chandigarh as also the appointment of Head Master to be valid must be appro- . ved by the Director of public Instructions, would cerlainly be amenable to the writ jurisdiction of the High Court.

The High Court unfortunately, did not even refer to the decision of the Constitution Bench in Ajay Basia's case rendered on November 13, 1980 while disposing of tho writ petition in 1983. In Ajay Basia's case, Bhag. wati, J. speaking for the Constitutiou Bench inter alia observed that 'the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character.' Add to this 'the existence of deep and pervasive State control may afford an indication that the Corporation is a St~te agency or instrumentality.' Substituting' the words 'public trust' in place of the 'corporation' and the reasons will mutatis mutandis apply to the school. Therefore, also the High Court was in error in holding that the third-respondent school was not amenable to the writ jurisdiction of the High Court.

It would thus appear that the order of termination of service is unsustainable for more than one reason and therefore, the order of termination of service No. 58/83/20 dated January ·31, 1983 is quashed and set aside and the appellant Manmohan Singh Jaitla is reinstated in service as the Headmaster of the school witl) continuity (1) [19s1) l s.c.R. 79. M.S. JAITLA v. UNION TERRITORY (Desai, J.) in service and full back wages. If under the orders of this Court dated March 2, 1983, May 2, 1983 and subsequent orders, the appellant-Headmaster is paid his monthly salary, credit shall be 11>.ten for the same. Amir Singh, the Drawinr Teacher has met with the same fate. He was appointed pursuant to his application for a vacant post of a Drawing Teacher. Right from the iuception, be was a confirmed hand in the sense that he was not put on probation.

Suddenly, after the new Managing Committee got into saddle, his service wa• terminated with effect from March 4, 1983 on the ground that It was no longer required. No attempt was made before us to sustain the order on th's uutenablo ground. Therefore, the only distinguishable feature of this case with the ca.se of the Headmaster Manmohen Singh Jaitla is that no charge-sheet was served upon the petitioner- Drawing Teacher. Save and except this difference, all the reasons which weighed with us in qu•shing the order of termination of service of Headmaster-Mr. Jaitla would mutatis mutandis apply to the case of this Drawing Te".cher. I\> restate these reasons would merely ndd to the· length of this judgment. As a corollary, the rule will have to be made absolute aftec quashing and setting aside the order of termination of service dated February 28, 1983 and directing reinstatment of Drawing Teacher Amir Singh in service with continuity in service with full backwages . Accordingly, C. A. No. 2137 /84 is allowed and the order terminating the service of Headmaster Manmohan Singh Jaitla is quashed and set aside as also the decisions of the Deputy Commissioner and the Commissioner and the Judgment of the High Court are quashed and set aside.

The appellant Headmaster Shri Manmohan Singh Jaitla is reinstated in service with continuity in service and full backwages subject to the fact that if backwages have been paid under the orders of this Court, credit may be given for the same. Rule is made absolute in the writ petition filed by Drawing Teache1 Amir Singh and the order terminating his service dated 8 February 28, 1913 is quashed and set aside as also the orders of the Deputy Commissioner and Commissioner and he is reinstated in service with continuity in service with back-wages. The respondent-School management shall pay the costs to both the employees separately quantified in each case at Rs I, 500. H.S.K. Petition and appeal allowed.