Orissa High Court
Miss Snigdha Sardar vs Chief General Manager, South Eastern ... on 14 December, 1992
Equivalent citations: 1993(I)OLR393
Author: B.L. Hansaria
Bench: B.L. Hansaria
JUDGMENT B.L. Hansaria, C.J.
1. The Black Diamond Public School attracted the petitioner not only because of its name but perhaps because of its fame also to apply for a post of teacher in the school. She was interviewed and an appointment was offered vide Annexure-1 dated 17-7-1989 by the Chairman of the school stating, inter alia, that the petitioner would be on probation for a period of one year and would be confirmed in writing after satisfactory completion of the period which could be extended also. Another term was that her service could be terminated by giving one month's notice or one month's salary from either side. She came to be confirmed vide Annexure 2 dated 12-3-1991, an order of the Chairman of the school, which stated that the confirmation was with effect from 24-7-1990 and on the "same term and conditions mentioned in the appointment order".
2. The South Eastern Coal Fields Ltd , hereinafter recorded as the 'Coalfield', which was financing the school, however, decided to hand over the sama to OAV College Trust and Management Society. An agreement to that effect was signed on 12-9-1991 between the DAV Trust and Management Society on the one hand and the Coalfield on the other. One of the terms of this agreement was that the DAV College Managing Committee shall appoint the Principal, and other members of the staff will be selected by an ad hoc selection committee which will be appointed by the said Managing Committee. This finds place in Clause (ix) of the agreement (Annexure 9). Clause (x) states that the Coalfield shall certify that the school had been sponsored and is fully financed by it, but its management and administration shall be "handed over" to the DAV College Managing Committee. Subsequently, a joint meeting was held between the Coalfield and the DAV College Managing Trust on 30-7-1991 in which a decision was taken to advertise the posts of Principal and teachers as per the rules of the DAV College Trust and the employees of the Black Diamond School could avail of the opportunity and appear before the selection committee. A meeting of the Managing Committee of the Black Diamond Public School was held on 10-10-1991 in which a resolution was passed, as at Annexure C, stating that the existing Black Diamond Public School should be dissolved and various assets of the school should be handed over to the DAV Management Trust. The further decision was that the services of the existing teachers should be terminated by giving notices as per the terms and conditions of their appointment. Pursuant to this, Annexure 5 dated 12-10-1991 was issued to the petitioner stating that her services would stand terminated with effect from 11-11-1991. It is the validity of this termination order stating, inter alia, that pursuant to the agreement signed between the Coalfield and the DAV Trust and Management Society, the school was being "handed over" to the DAV College Trust and Management Society, which has been assailed in this petition under Article 226 of the Constitution.
3. Before we advert to the contentions advanced by Shri Sinha on behalf of the petitioner, it may be stated that she had applied for the post pursuant to the advertisement issued by the DAV Trust, but she obtained 49.1 marks out of the total of 120, and it is because of this that she was not given appointment. It has, therefore, been submitted by Shri Ray on behalf of the D.A.V. Trust that she is estopped from assailing her termination order. A passing reference is made to G. Sarana v. Lucknow University, AIR 1976 SC 2428, in which it has been opined that once a person had voluntarily appeared before a selection board for interview without raising any kind of objection against the constitution of the board knowing fully well the relevant facts and taken a chance of favourable recommendation in his favour, it is not open to him to turn round and question the constitution of the board when the decision went against him. Needless to say, this case has no application inasmuch as the petitioner is not in any way challenging the constitution of the selection board, but is asserting her right to continue in the school in which she had become a confirmed teacher.
4. Let us now see what right had come to be accrued in the petitioner because of her confirmation as a teacher in the Black Diamond Public School. The facts narrated above do not leave any room for doubt that the school itself had been "handed over'' to the DAV Trust and Management Society. This is clear from the agreement and the letter of termination. May we also say here that prior to the school being handed over or being taken over by the DAV College Managing Committee, which expression finds place in Annexure-A/2, in which a decision was taken to advertise the posts, the school was being managed by the Coalfield, as would appear from the second paragraph of this annexure.
5. The present, is not the first occasion where such actions of handing/taking over have been examined by Courts. For our purpose, it would be enough if we refer to a case of this State itself which went to the Supreme Court the same being State of Orissa v. N. N. Swamy, AIR 1977 SC 1237. That decision relates to taking over of a private college by the Government because of which Arts. 16 and 311 got attracted, which would not be so in the present case because the DAV College Trust or, for that matter, the Coalfield may not be 'State' within the meaning of Art. 12 of the Constitution. But we are not referring to that case for giving protection of Arts. 16 and 311 of the Constitution to the petitioner, but to point out what was stated therein when an educational institution is handed over/taken over. For that purpose, the following observations finding place in paragraph 17 are pertinent :
"When a fairly well-recognised institution, as in this case, run for more than a century, is completely taken over by the Government for management, it is not merely taking over the land and buildings, tables and chairs. It has to tackle, at the same time, a human problem, that is to say, the fate of the teachers and the staff serving that institution. The institution with which we are concerned, was taken over, by consent, as a going educational concern and it goes without saying that it must be administered on sound lines having regard to quality, efficiency and progess in all respects. It is understandable that the employees had to join the new service under the Government, for the first time, and so could be, in that sense, fresh entrants..."
(Emphasis ours) In that case what had come up for consideration was whether the teahching experience acquired by the respondent in the private institution as Reader would get completely effaced for the purpose of consideration for promotion on the plea of absence of teaching experience in Government service. The Court opined that the teaching experience could not get effaced.
6. The aforesaid decision came to be cited with approval by a Bench of Madhya Pradesh High Court in Kuljit Kaur v. Union of India, 1930 LIC 1136. In that case, though there was some dispute as to whether the Indo-Tibbetan Private Police School had been taken over by the Kendriya Vidyalaya Sanghathan, the Court ultimately found that it was a case of take-over. Being of this view, the termination of the services of some confirmed employees was held to be violative of Arts. 16 and 21 of the Constitution. In coming to this conclusion, reliance was placed on "Affiliation Bye-laws" also, the type of which is of course not present in the case at hand. Some other cases of take-over were also referred to by the Bench in which the rights of confirmed employees were upheld.
7. Shri Sinha has brought to our notice a Bench decision of this Court also in Gangadhar v. State of Orissa, 1938 LIC 141, in which a school run by the Aeronautics Education Society was taken over by the Government following which services of all the teachers were terminated for facilitating the take-over, subsequent to which all the teachers were absorbed except the petitioner. The Court, on the facts of that case, directed the Government to absorb the petitioner also retrospectively from the date of take-over.
8. Shri Mohanty appearing for the erstwhile Managing Committee of the Black Diamond Public School contends that as it was dissolved, the service of the petitioner had to be terminated, which was permissible because of the terms and conditions on which she had been appointed, one of which was that her services could be terminated by giving one month's notice which condition was complied with in the present case. The question for determination is whether this term can be invoked in case of a confirmed teacher, as was the petitioner, by the time Annexure-5 was issued. It is in this context that the Constitution Bench decision in Delhi Transport Corporation v. D.T.C. Mazdoor Congress, AIR 1991 SC 101, becomes relevant, which approved the two Judge decision rendered in Central Inland Water Transport Corporation Ltd. v. Brojo Nath, AIR 1986 SC 1571. In both these decisions termination of service of confirmed employees by giving the required notice was not approved. Indeed, such a term of employment was regarded as "Henry VIII Clause", as it speaks of hiring and firing. Learned counsel for the opposite parties contends that those eases had dealt with a body which was regarded as 'State' within the meaning of Art. 12 of the Constitution, because of which Art. 14 got attracted, and so, what has been opined that there would not apply to the case at hand inasmuch as the D.A.V. College Trust and Management Society is not a 'State', neither was the erstwhile Managing Committee of the Black Diamond Public School.
9. For the case at hand, we need not labour on the question as to whether these two entities are 'State' inasmuch as a clause like the one at hand was also regarded as violative of audi alteram partem, which is a very important component of natural justice. This is what finds place in paragraph 106 of Brojo Nath's case and the same is the view expressed in Delhi Transport Corporation's case, as stated in paragraph 199. Not only this, both these decisions have held that such a clause is violative of Section 23 of the Contract Act, which applies to the contracts between two individuals also. Paragraph 203 of Delhi Transport Corporation's case mentions about Section 23 of the Contract Act, and in Brojo Nath, this aspect has been dealt with in paragraphs 93 and 94.
10. The further question is if natural justice is violated, can relief be granted even against entities which are not 'State? That this can be done as per Basanti Mohanty v. State of Orissa 72 (1991) CLT 127,which dealt with the case of a teacher who had been appointed; by a school, administered by a linguistic minority (which was unaided also), and or her service being terminated without applying principles of natural Justice, an order of reinstatement was passed. On Hon'ble. Supreme Court being approached, the Special Leave Petition came to be dismissed, it cannot therefore be held that the only obligation which the erstwhile Managing Committee had, according to Shri Mohanty, was to comply with Art. 287(25) of the Orissa Education Act, which requires a notice of one month to be given. Let it be stated here that in Basanti Mohanty's case, due note was taken of that provision, despite which it was held that if termination be in violation of the principles of natural justice, order of reinstatement could be passed,
11. In view of all the above, we hold that true terminations order in the present case is not sustainable. The question is as to what relief we can grant on the face of dissolution of the Managing Committee, whose employee the petitioner was as would appear from Annexure-1. As that Managing Committee has been dissolved, it is apparent that no writ of mandamus can be issued to it. It is in this connection that the statement made in Annexure- 2 assumes importance, which records the proceeding of the meeting held between the members of the Coalfield on the one hand and the D.A.V. College on the other on 30-9-1991, stating that the school will be taken over by the D.A.V. College Trust and Managing Society, "which is being managed by SECL Ib Valley area at present". (The acronym SECL stands for South Eastern Coalfields Ltd., which we have described as Coalfield in our judgment). It thus appears that the Managing Committee which stood dissolved and about which Annexure C speaks was a facade the real face behind the veil being of the Coalfield as not only the sponsoring and financing body of which mention has been made in the agreement (Annexure-B), but also one managing the school. Of course, for this reason we would not go to the extent of saying that the petitioner was an employee of the Coalfield, as is the case of Shri Sinha; but we read a continuity in the take-over action by the D. A. V. College Trust and Management Society and we hold that the petitioner's service could not have been terminated and she continues to be a teacher of the Black Diamond Public School which at present is being managed by the DAV College Trust and Management Society. Lest there should be any doubt about the continuity of the school, Jet it be said that this is clear from Annexure A, which is the first correspondence between the Coalfield and the D.A.V. Management Society, in which "it has been stated that the Coalfield was running one English medium school, namely, Black Diamond School with 300 students upto 10th Standard totally assisted by the Coalfield end had an expansion programme to make the school 10+2, because of which there would be no problem in opening of the esteemed D.A.V. Higher Secondary School/High School in the same building. We have mentioned about this aspect because Shri Ray submits that the earlier school was just a Primary School whose teachers were being paid at the rate of 600/- per month, whereas the D.A.V. Management Society is running a Higher Secondary School with emoluments much higher.
12. Keeping in view the facts and circumstances of the case, we are of the opinion that the appropriate order to be passed is a direction to the D.A.V. Management Society to absorb the petitioner as a teacher in the school in which she had acquired a confirmed status and which at present is being run by it, and we order accordingly. We may put on record that Shri Ray has very fairly not contested the question of maintainability of the writ petition in so far as this Management Society is concerned. Let necessary orders be passed in this regard by this Management Society within a period of one month from today. The petitioner shall, however, be treated as a fresh entrant (ala N. N. Swamy's case), but from the date other teachers of the Black Diamond Public School had come to be appointed by this Society following their selection. Despite this, the petitioner shall not get any arrear salary, as we would not regard the present as a case of wilful wrong having been done to the petitioner, tout for other purposes she shall be deemed to have been duly appointed from the aforesaid date.
13. The petition is allowed accordingly.
B.N. Dash, J.
14. I agree.