Allahabad High Court
Dileep Kumar Pandey vs Union Of India And Others on 12 January, 2010
Author: Bala Krishna Narayana
Bench: Bala Krishna Narayana
Court No. - 40 Case :- WRIT - A No. - 29790 of 2007 Petitioner :- Dileep Kumar Pandey Respondent :- Union Of India And Others Petitioner Counsel :- S. Shekhar Singh,V.K. Singh Respondent Counsel :- A.S.G.I.,A.K. Dubey,H.N. Pandey Hon'ble Bala Krishna Narayana,J.
Heard Shri V.K.Singh learned Senior Advocate assisted by Shri Subhranshu Shekhar for petitioner, Shri Ashish Kumar Dubey for Respondents no 3 and 4 and Shri Ajit Pandey for Respondent no 2.
This writ petition has been filed by the petitioner Shri Dilip Kumar Pandey for issuance of a writ of certiorari quashing the order dated 28.06.2007 passed by respondent no 4 (annexure 4 to the writ petition) whereby respondent No 4 changed the nature of the petitioner's appointment from regular to contractual, for issuance of a writ of mandamus restraining respondents no 3 and 4 from changing the nature of the duties of the petitioner from those mentioned in the order dated 1.7.2005 to those mentioned in the order dated 28.6.07 and to treat the petitioner as a confirmed PGT (PET) in Air Force School Bamrauli, Allahabad, and to pay him salary as was being paid to him on the basis of his appointment letter dated 1.7.2005.
During the pendency of the writ petition the petitioner sought amendment of the writ petition for incorporating the reliefs for quashing the letters dated 9.8.07 and 22.8.08 issued by Executive Director, Air Force School, Bamrauli, Allahabad ( Annexure 6 & 8 to the writ petition ) which were issued after the filing of the writ petition and for issuing a writ of mandamus commanding the respondents to make the payment of difference in salary of contractual appointment and regular appointment after adjusting the amount already paid to the petitioner while he was working on contractual basis which was allowed and the amendment sought were incorporated in the body of the writ petition.
Briefly stated the facts giving rise to the present writ petition are as follows:
The Indian Air Force Educational and Cultural Society(hereinafter referred to as "society") is a society registered under the Educational Societies Act,1860, established by Air Headquarters at Directorate of Education and Administration which manages all the Air Force Schools set up at various units all over India . The Society is registered , recognized and affiliated to the Central Board of Secondary Education. For the effective management and administration of Air Force Schools established in various units, the society has framed Bye Laws / Education Code Air Force School,2005, The Air Force Schools are financed by Central Government through Indian Air Force and the object of the society is to impart education to the children of the officers and employees of Indian Air Force. Thus the Air Force Schools comes within the meaning of the word 'State' Under Article 12 of the Constitution of India. The Air Force School, Bamrauli, Allahabad is a school established by the aforesaid society and hence the said school comes under the definition 'State' under Article 12 of the Constitution of India and amenable to the writ jurisdiction.
The Air Force school at Bamrauli, Allahabad issued an advertisement inviting applications for making appointment on the vacant post of 'Trained Graduate Teacher' "TGT" Physical Education Teacher (PET) in the school in May/June 2005. The petitioner who possessed requisite qualification for the post of TGT(PET) being a B.P.Ed from Barkat Ullah University , Bhopal, Madhya Pradesh, applied for appointment to the said post. After scrutiny of the requisite papers by the selection committee, the petitioner was called for interview and upon being selected the petitioner was appointed to the post of TGT(PET) pursuant to the recommendation of the selection committee. The petitioner was given appointment letter on 1.7.05 copy whereof has been filed as annexure 1 to the writ petition by which petitioner was informed that he has been selected to be appointed on the post of TGT/PET in the pay scale of 5500- 7200/. The terms and conditions subject to which the petitioner was appointed were mentioned in the appointment letter itself. Pursuant to the appointment letter dated 1.7.05 the petitioner assumed charge on the post of PGT in Air Force School, Bamrauli, Allahabad on 4.7.05. During the period of his working from 4.7.05 to 14.7.06 his performance and conduct was appreciated by his superiors and other officers and nothing adverse was found against the petitioner. In the normal course the period of petitioner's probation should have come to an end after completion of one year . However, without any remark or without recording any reason the period of probation of the petitioner was extended for a period of six months vide order dated 14.7.06 and again on 8.1.2007 for a further period of six months. When the period of probation was coming to end the petitioner was served with an order dated 28.6.07 informing him that the School authorities were keen to employ a person as TGT (PET) who was well versed in Yoga, TAI-KWON-DO , Karate and other Martial Arts and as a result whereof the services of the petitioner were rendered surplus and option was given to the petitioner either to accept contractual appointment on fixed pay of 7200/ till his continuance in service or to remain employed under the existing arrangement under which his services were liable to be terminated on 3.7.07. A copy of the said order which is impugned in this writ petition has been filed as annexure 4 to the writ petition.
Since the order dated 28.6.07 had the effect of unilaterally changing the terms and conditions of the petitioner's service from regular employment to contractual employment, the instant writ petition was filed by the petitioner before this Court. During the pendency of this writ petition with effect from August 2007, the respondents started paying salary at the rate of 7200/ per month to the petitioner treating him as a contractual employee.
Aggrieved from the aforesaid action of the respondents the petitioner filed an application before the Executive Director Air Force School, Bamrauli, respondent no.3 on 31.7.07 which was decided by him by order dated 9.8.07 holding that there was no anamoly in the payment of salary to the petitioner. By another order passed on 22.8.2008 respondent no.4 refused to regularise his service after completion of probation period , hence the petitioner got the writ petition amended for incorporating the relief of quashing the orders dated 9.8.07 and 22.8.2008.
In the counter affidavit filed on behalf of the respondent nos. 1, 2 and 3 the stand taken by them is that the petitioner was appointed as a TGT(PET) in the school with effect from 4.7.05, on a probation of one year and his performance during the probation period was not found to be satisfactory he was given option to work on contractual basis. Since the institution is not funded either by State or Central Government the same is not an instrumentality of the 'State' within the meaning of Article 12 of the Constitution of India and hence writ petition against the school is not maintainable.
In the counter affidavit it has also been stated that the finance of the school is arranged from the fee collected from the students as Examination fee, computer fee and admission fee and in addition to this, contribution is also made by the Air Force personnel through their welfare funds.
I have heard learned counsel for the parties and have perused the impugned orders as well as the writ petition and the accompanying annexures, counter affidavit , supplementary counter affidavit and the Rejoinder affidavit.
A preliminary objection has been raised on behalf of the respondents that the writ petition is not maintainable against the School on the ground that the School is not the instrumentality of the State or 'state' within the meaning of Article 12 of the Constitution of India.
An identical objection with regard to the Air Force School Bamrauli was considered by this Court in the case of Anoop Kumar Pandey Vs Union of India reported in 2003 Vol 1, U.P.L.B.E.C. page 186, this Court ,in paragraph 8 of the said judgement held as here in under:
" A preliminary objection was raised by the learned Counsel for the respondents that the Air Force School, which is governed by by the bye-laws of the society registered under the Societies Registration Act, is not amenable to writ jurisdiction. in Smt. Rajni Sharma V Union of India and others, (1995)3 UPLBEC 1664, this Court had occasion to consider whether the Society and the and the Schools are 'State' within the meaning of terms under Article 12 of the Constitution of India. It was held that the Army School run by Army Welfare Education Society is being run with an object to run the Schools for providing education fac9ilities at Military stations to meet the needs of the children of the army personnel. The over all control of the Society and the School run by it vests in the Board of Governors and the Executive Committee, consisting of army officials. The School managing Committee also consists of arm officials. Thus the administrative control of the School vests in the Governmental authorities. The Society and it School are financed by Welfare funds and the Management of the School is also entitled to collect the fee and donations , but this does not change the character of the Society of the School run by it. Relying upon Ajai Hasia Vs Khalik Mujib Seharavardi , AIR 1981 SC 497, Ramana Dayaram ShettyV International Air Port Authority AIR 1979 SC 1628, and All India Sainik Schools Employees Association V Defence Minister- cum-Chairman, AIR 1989SC 88, it was held that the Society and the Schools run by it are 'State' within the meaning of Article 12 of the Constitution , and thus amenable to writ jurisdiction of this Court. Similar view was taken in respect of Air Force School, Bamrauli, Allahabad . The School in question in present case in Civil Misc. Writ Petition No.16509 of 2001, Niraj Kumar Tripathi V School Management Committee, ,( decided on 18.5.2001) The preliminary objection is as such overruled. "
The issue whether the Air Force School Bamrauli is amenable to writ jurisdiction of this Court was also considered by a Division Bench of this Court in the case of Sanjay Kumar Sharma Vs Central Board of Secondary Education ,Allahabad and others reported in 2006,ADJ page 322 and the Division Bench held that the aforesaid school is 'State' within the meaning of Article 12 of the Constitution of India and hence amenable to writ jurisdiction of this Court.
Learned counsel for respondents in support of his contention that the Air Force School, Bamrauli, which is governed by the bye laws of the society registered under the Societies Registration Act, is not a 'State' within the meaning of Article 12 of the Constitution of India and hence no writ petition lies against the school, relied upon the following reports:
1. Special Appeal No.172 of 2004, Army School Kunraghat Vs Shilpi Paul decided on 16th August 2004,
2. Girish Kumar Mishra Vs District Inspector of Schools Shahjahanpur and another,1999(1)ESC page 47 Allahaba.
3. Anand Kumar Gupta (Dr) Vs Rajghat Education Centre Varanasi and others 2003 Vol 2,UPLBEC 336.
However after going through aforesaid citations I find that the aforesaid cases are clearly distinguishable on facts and have no application to the present case. The preliminary objection raised on behalf of the respondents has no merit and stands over ruled.
Sri V.K.Singh learned senior counsel appearing for petitioner submitted that the service conditions of the petitioner having not been altered on the ground that his service during the probation period was unsatisfactory, the respondents can not be authorized to defend or justify the impugned orders on the said ground. He further submitted that when the statutory functionary makes an order based on certain grounds its validity should be judged on the ground mentioned in the impugned order and the same can not be supplemented by fresh reason in the shape of affidavit or otherwise. In support of Mohinder Singh Vs Chief Election Commissioner AIR 1978, Supreme Court page 851 He further submitted that the action of the respondents was not supported by any authority of law and being arbitrary in the extreme the impugned orders so passed are liable to be set aside. He further submitted that there is not even a whisper of any allegation in any of the impugned orders that the respondents found the performance of the petitioner during his probation period to be unsatisfactory. On the other hand there is a letter of appreciation issued by the Principal which indicates that performance of petitioner were good and there was no complaint against his functioning.
Sri Dubey learned counsel appearing on behalf of respondents vehemently urged by placing reliance upon the several orders and recommendations of the authorities stating that the petitioner was found fully unsuitable for the post against which he was appointed during probation period and despite being given two opportunities he failed to improve his conduct , as a result whereof decision was taken to convert his appointment from regular to contractual one and the impugned orders are basically founded upon his unsatisfactory performance during the probation period.
He further stated that the impugned orders do not suffer from any illegality or infirmity calling for interference by this Court.
Keeping in view the submissions made by learned counsel for the parties the following two issues arise for consideration:
1. Whether on the basis of admitted facts that the petitioner was appointed after due selection on the post of TGT (PET), the respondents could legally convert his services from regular to contractual and unilaterally change the terms and conditions of his service by the impugned orders ?
2. Whether the orders impugned can be justified by the respondents by supplementing fresh reasons?
As far as the first issue is concerned, learned counsel for the respondents have failed to show any provision under the 'Code' or in the appointment letter of the petitioner empowering the respondents to change the nature of the petitioner's appointment from regular to contractual for the reason of his performance during the probation period being unsatisfactory. After carefully going through the terms and conditions subject to which the petitioner was appointed which are contained in his appointment letter as well as the relevant provisions of the Education Code I find that the submissions made by learned counsel for petitioner are well founded and have force. Under Clause 3 Chapter 4 of the Education Code, the appointing authority has been given power to terminate the services of an employee in case his services are not found satisfactory during the probation /extended probation . The aforesaid Clause3 of the Educational Code does not confer any power on the appointing authority to convert the nature of an appointment from regular to contractual on the ground of unsatisfactory performance during the probation period.
After going through the impugned order dated 28.6.07 I find that the reason given in the said order for giving an option to the petitioner to work on contractual basis that the Management Committee of the school decided to have a more qualified person, in my opinion is wholly unsustainable. In case the institution wanted a more qualified teacher a new post could have been created and filled up after due selection and such a decision could not have been made basis for passing the impugned order.
The order dated 28.6.07 passed by respondent no.4 is absolutely illegal and arbitrary order which is liable to be set aside as the respondents failed to show that they had any authority to legally convert the petitioner's services from regular to contractual.
In view of the aforesaid discussions I further hold that the orders dated 9.8.2007 passed by the Executive Director (annexure 6 to the writ petition) by which Executive Director Air Force School Bamrauli, affirmed the action of the respondent no.4 as well as the order dated 22.8.2008 passed by respondent no.4 refusing to confirm the petitioner's appointment in view of the order dated 28.6.07 are also liable to be set aside.
Issue no.1 is accordingly decided.
As far as second issue is concerned, the same is no longer res-integra and stands concluded by the Apex Court decision in the Case of Mohinder Singh Gill (Supra) relevant paragraph 8 of the aforesaid judgement reads as under:
" 8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise . Otherwise, an order bad in the beginning may, by the time it comes to court on acount of a challenge, get validated by additional grounds later brought out. We may here draw attention to the obseration of Bose J, in Gordhandas Bhanji(AiR 1952 SC 16) ( at p 18) Public orders publicly made , in exercise of a statutory authority cannot be construed in the light of explanation subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. "
There is nothing in the impugned orders which may indicate that the same were passed on the ground of unsatisfactory service of the petitioner during his probation period and since the impugned orders were not passed on the ground that petitioner's performance during the probation period was unsatisfactory the respondents can not be permitted to justify their action on the aforesaid ground .
In view of the law laid down by the Apex Court in the case of Mohinder Singh Gill (Supra),the second issue is also decided against the respondents and in favour of the petitioner.
For the aforesaid reasons I am of the opinion that the orders passed by the respondents are liable to be set aside.
The writ petition is accordingly allowed and the orders dated 28.6.2007 (Annexure no. 4 to the writ petition), 22.8.08 ((Annexure no. 8 to the writ petition) and 9.8.07 (Annexure no.8 and 6 to the writ petition) are hereby quashed.
The petitioner shall be reinstated in service with full benefits. However, it will be open to the respondents to consider the petitioner's claim of confirmation in accordance with law.
Cps Dt.13.01.2010.
Order Date :- 12.1.2010 cps