Punjab-Haryana High Court
Ambala College Of Engineering And ... vs Ramesh Kumar And Others on 6 February, 2013
Bench: A.K.Sikri, Rakesh Kumar Jain
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Letters Patent Appeal No. 1084 of 2012 (O&M)
Date of Decision: 06.02.2013
Ambala College of Engineering and Applied Research Devsthali (near
Mithapur), Ambala and another
...Appellants
Versus
Ramesh Kumar and others ..Respondents.
CORAM: HON'BLE MR. JUSTICE A.K.SIKRI, CHIEF JUSTICE.
HON'BLE MR. JUSTICE RAKESH KUMAR JAIN.
1. Whether Reporters of local papers 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?
Present : Mr. Dinesh Kumar, Advocate, for the appellants.
Mr. R.K.Malik, Sr. Advocate with
Mr. Mohinder Singla, Advocate, for the respondents.
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A.K.SIKRI, CHIEF JUSTICE CM 550-LPA of 2013 Application is allowed. Affidavit of the appellant is taken on record.
CM 2865-LPA of 2013 Heard. For the reasons mentioned in the application, delay of 15 days in filing the appeal is condoned. C.M. stands disposed of. LPA No. 1084 of 2012 2 LPA No. 1084 of 2012 (O&M)
The respondents herein were initially appointed on contract basis at fixed salaries and are non-teaching staff of the appellant-college. Though there is a dispute as to whether they became permanent thereafter or not, which aspect will be dealt with at the appropriate stage, it would be stated at the outset that the grievance of the respondents was that they were not being paid the salaries as per the relevant Rules which are payable to them and protected by law, namely, the Haryana Affiliated Colleges (Security of Services) Act, 1979 (hereinafter referred to as the 'Act of 1979'). To claim these salaries instead of consolidated and fixed amount paid to them, the respondents approached the Educational Tribunal. The Educational Tribunal, however, dismissed their case on the technical ground stating that the appeal filed by them was not maintainable as there was no order passed by the appellant herein which was under challenge and, therefore, the appeal was pre-mature and the question of entitlement could not be decided at that stage. The Tribunal, however, gave liberty to the respondents to approach the Court again after the representation, which was submitted by them in this behalf, is decided.
2. Feeling aggrieved by this order of the Educational Tribunal passed on 27.08.2010, the respondents preferred writ petition in this Court. This writ petition has been allowed by the learned Single Judge vide impugned judgment dated 12.03.2012 holding that the respondents are entitled to the regular pay scales which are guaranteed by the provisions of the Act of 1979 and for arriving at this conclusion, the learned Single Judge has also referred to the judgments of this Court in Civil Writ Petitions No. 15325 and 15339 of 2001 which lay down that all employees in services of LPA No. 1084 of 2012 3 the Colleges affiliated under the University shall be paid the salaries as specified under the State Act and the Rules.
3. At this stage, it would be necessary to reproduce the relevant portion of the order passed by the Tribunal dismissing the claim of the respondents herein as not maintainable being pre-mature, which reads as under:-
"5. However, there is no dispute that they have been allowed to approach this Court by Hon'ble High Court while deciding CWP No. 4148 of 2008 but they are to file appeal as per provisions of the Act. Even if it is presumed that they can file appeal touching other matters also, even then this appeal is not maintainable because it is pre-mature. Appellants have failed to tell the order against which this appeal has been filed. If they have filed representation dated 13.02.2007 and same is not decided as yet, it does not mean that appeal is maintainable. As per notification dated 08.05.2005, appeal is to be filed against order passed by technical institution. If any order is not passed, then appeal is not maintainable. Suppose a party has filed a suit for declaration, but is not decided,, then it does not mean that plaintiff can file appeal to decree the suit. The Appellate Court can only see whether order passed by the concerned authority is legal or not. If that order is illegal, then same can be set-aside and law can be set into motion. It has no where directed in Act, 1979 that if representation is not decided, then District Judge can grant relief to a party mentioned therein. Before coming to this Court, appellants were supposed to get their representation decided from respondents either way. Thereafter, it was within the jurisdiction of this Court to see whether this order is valid or not. When there is no order, no opinion can be given by this Court. So, these arguments are of no avail.LPA No. 1084 of 2012 4
6. In view of my above discussion, it is clear that there is no order, of which this, Court can see legality. So, appeal is not maintainable as pre-mature and question of entitlement etc. can not be decided at this stage. Hence, appeal fails and same is hereby dismissed with costs. However, they may file appeal, if law permits, as and when their representation is decided."
4. The mere submission of learned counsel for the appellant is that when this order was challenged by the respondents herein by filing the aforesaid writ petition for judicial review, the Writ Court was supposed to go into the reasons for dismissing the claim of the respondents and to arrive at a conclusion that such reasons were proper or not. It was submitted that even if the Writ Court took the view that the appeal filed by the respondents before the Educational Tribunal was maintainable and could not be dismissed as pre-mature, the appropriate course of action was to remit the case back to the Tribunal to decide the same on-merits. This argument of the appellant appears to have adequate force. The order of the learned Single Judge would reflect that the learned Single Judge was conscious of this fact, however, the reasons for not remitting the case back to the Tribunal as given by the learned Single Judge is that there was hardly point for adjudication on fact. On the other hand, the entitlement of the respondents for same salary as payable to the employees in service of the colleges affiliated under the University was no longer res-integra and was decided by this Court by this Court in Civil Writ Petitions No. 15325 and 15339 of 2001. Quoting from that judgment, the writ petition is allowed.
5. However, it was pointed out by the learned counsel for the appellant before us is that the review application was preferred against that LPA No. 1084 of 2012 5 judgment and in review application, an order dated 30.09.2005 was passed which reads as under:-
"Vide notification dated 08.09.2005, issued by the Haryana Government, Technical Education Department, the District & Sessions Judges have been authorized to hear appeals of employees of aided/unaided technical institutions against decision of management within their jurisdiction.
In view of this, Mr. Hem Raj Mittal and Mr. R.K.Malik, learned counsel state that both Review Application as well as Civil Writ Petition have been rendered infructuous and the same may be dismissed as such. Ordered accordingly.
However, the petitioner will be at liberty to approach the District & Sessions Judge concerned within her jurisdiction nominated in terms of notification dated 8.9.2005 and file an appeal against her termination order, which will be disposed of in accordance with law."
6. It was also contended that in any case the respondents were not entitled to the same benefits as they were on contract basis and they were not the 'employee' as defined under Chapter-2 of Kurukshetra University Calendar, 2009 Vol.I, which contains the definition of an employee. Chapter
-2 of Kurukshetra University Calendar 2009 Vol.I, reads as under:-
"iv. 'Employee' means any person who is in the whole-time employment of an affiliated College for whom the Government grant is payable."
It was submitted that the appointments/engagements of the respondents were on contractual basis and therefore, the judgment passed in Civil Writ Petitions No. 15325 and 15339 of 2001 in any case had no effect. This aspect was also not considered. All these aspects need consideration. We, therefore, are of the opinion the matter needs to be referred back to the LPA No. 1084 of 2012 6 Educational Tribunal holding that the appeal preferred by the respondents was not pre-mature and was wrongly dismissed.
7. Thus, this appeal is disposed of with the following directions:-
i) The impugned order of the learned Single Judge is set-aside.
ii) The impugned order of the Educational Tribunal is also set-
aside.
iii) The matter is remitted back to the Educational Tribunal who shall decide the claim of the respondents' on-merits.
(A.K.SIKRI)
CHIEF JUSTICE
06.02.2013 (RAKESH KUMAR JAIN)
Vinod/ravinder' JUDGE