Punjab-Haryana High Court
State Of Punjab And Others vs Dev Raj And Others on 25 August, 2011
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
LPA No. 294 of 2003 (O&M)
Date of Decision: August 25, 2011
State of Punjab and others
...Appellants
Versus
Dev Raj and others
...Respondents
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR
MR. JUSTICE GURDEV SINGH
Present: Mr. Suvir Sehgal, Additional Advocate General, Punjab,
for the appellants.
Ms. Alka Chatrath, Advocate,
for the respondents.
1. To be referred to the Reporters or not? Yes
2. Whether the judgment should be reported in
the Digest?
M.M. KUMAR, J.
1. The short issue raised in this appeal filed under Clause X of the Letters Patent by the State of Punjab and its officers is whether the terms and conditions of the gift deed, dated 5.7.1987, would govern the issue concerning the absorption of the writ petitioner-respondents in the government service after taking over the then Janta High School, Rattewal, or it would be the date of decision taken on 28.6.1983, would be decisive. In the instant appeal the judgment dated 29.1.2003 rendered by the learned Single Judge is subject matter of challenge. The writ petition has been allowed directing the appellants to absorb the writ petitioner- respondents in Government school, namely, Government High School, Rattewal, with effect from the date the school was actually LPA No. 294 of 2003 (O&M) 2 taken over. Further direction has been issued to grant them all consequential reliefs including salary, allowances, seniority etc.
2. Brief facts of the case are that the Janta High School, Rattewal, District Hoshiarpur, was being run by a Society registered under the Societies Registration Act, 1960. On 7.9.1980, the Managing Committee of the Janta High School passed a resolution requesting the State Government to take over the said School because it was facing financial crises. On 28.6.1983, the State Government in principle decided to take over the Janta High School, subject to the condition that a gift deed along with certificate of qualification of the staff working in the school was to be supplied. The names of the writ petitioner-respondents did not appear in the list of the staff members because according to the appellant-State they were appointed on dates later than the decision to take over was taken on 28.6.1983. They have been working as teachers or Laboratory Assistant as per the following details:
Sr. Name Appointed As Date of No. Appointment 1. Shri Dev Raj Maths Master 2.1.1984 2. Ms. Sunita Sharma Maths Mistress 2.1.1984 3. Shri Raghbir Singh Social Studies Master 3.1.1984 4. Shri Shailinder Kumar Lab Assistant 7.5.1984
3. On 22.1.1987, the appellant State passed an order regarding taking over of Janta High School, Rattewal. The District Education Officer, Hoshiarpur was asked to ensure that all the teachers and other allied staff to be taken over were trained and qualified and only that staff was to be absorbed which was working in the school at the time of taking over. It is also pertinent to LPA No. 294 of 2003 (O&M) 3 mention here that as per para (3) of the gift deed the appellant State was not obliged to absorb all the members of the staff. It was authorised to take those employees who fulfill the prescribed qualification for the posts. A perusal of paras (3) and (4) of the said order shows that as on 22.1.1987, no gift deed was executed. However, it was to be got registered within a month and the original registered deed was to be given to the Director of Public Instruction(s), Punjab, within two months for safe custody (P-5). On 22.5.1987 (R-2), the following corrigendum was issued by the Director of Public Instruction(s), Punjab:-
" In the order No. 6/5-83-SE(I) dated: 22.1.87, the following corrigendum is hereby made in the 6th and 7th lines of condition No. 1 below para 1:-
ORIGINAL ENTRY ENTRY TO BE
SUBSTITUTED
"at the time of taking "at the time it was
over" decided by the Govt. to
take over this school in
principle vis 28.6.83."
4. It is an admitted fact that the gift deed was executed on 5.7.1987. However, the appellant State refused to take over the services of the writ petitioner-respondents on the ground that on the date when the Government in principle decided to take over the Janta High School i.e. 28.6.1983, their names did not exist in the staff statement prepared by the erstwhile Management of the school. Feeling aggrieved, the writ petitioner-respondents filed CWP No. 3395 of 1987 with a prayer to absorb them in Government LPA No. 294 of 2003 (O&M) 4 service w.e.f. 22.1.1987. On 12.8.1987, stay was granted to them by the motion Bench on the strength of which they continued on the staff of the Government High School, Rattewal. On 29.1.2003, the learned Single Judge allowed the writ petition by observing as under in the concluding para:
" School was taken over on 22.1.1987. In between 28.6.1983 to 26.1.1987, if the school became in need of the services of the Maths Masters, Maths Mistresses and Lab Assistant etc., it could not be said that they should not have been appointed by the school. Since the condition was that the entire staff functioning in the school was to be taken over with the take over of the school provided they were fulfilling the necessary qualifications etc., the petitioners should also have been taken over. In this case, equity is in favour of the petitioners on the strength of the stay order granted to them. They have been continuing on Govt. High School, Rattewal for the last more than 15 years. Vide order dated August 12, 1987, the operation of the order deleting the names of the petitioners from the staff register was stayed. In this view of the matter, this writ petition is allowed and the respondents are directed to absorb the petitioners in Govt. School i.e. on the staff of Govt. High School, Rattewal with effect from the date this school was actually taken over. Respondents are further directed to grant them all consequential reliefs including salary, allowances, seniority etc. etc." LPA No. 294 of 2003 (O&M) 5
5. The State of Punjab challenged order dated 29.1.2003 rendered by the learned Sinlge Judge in the present appeal. On 10.3.2005, the Letters Patent Bench of this Court dismissed the appeal. The order passed by the Letters Patent Bench reads thus:
" As per Clause 3 of the Gift Deed Agreement Annexure P.1, the Govt. was not bound to take all the members of the school staff under their control and the Government was bound to take only those employees who fulfilled the prescribed qualification for the post. Admittedly, the respondents did have the prescribed qualification. It has, however, pointed out by the learned Additional Advocate General that these employees had been taken into service after the decision in principle of the State Government to take over the school had been taken. We find however that the respondents are continuously working under the stay order granted in these proceedings in the year 1987. In this view of the matter, we dismiss the appeal."
6. The State of Punjab then approached Hon'ble the Supreme Court in SLP (C) No. 20376 of 2005, relatable to Civil Appeal No. 4408 of 2007. On 21.9.2007, their Lordships' of Hon'ble the Supreme Court remit the matter back to this Court by making the following observations in para 6 of the order:-
"6. The High Court ought to have examined terms of the arrangement between the school management and the Government. If the stipulation was that the position as stood on the date when the policy decision was taken was the determinative factor, High Court ought to have LPA No. 294 of 2003 (O&M) 6 examined that aspect in detail. It is a settled position in law that while deciding the dispute finally the Court ought not to be influenced by the fact that some interim arrangements had been made. Such interim arrangements are always subject to the outcome of the main dispute. Since the Division Bench has not decided the appeal on merits, we think it appropriate to remit the matter to the High Court for fresh decision in law."
7. Mr. Suvir Sehgal, learned Additional Advocate General, Punjab, has argued that in addition to the terms and conditions of the gift deed, the other conditions laid down in letter dated 22.1.1987 (P-5), as amended on 22.5.1987 (R-2) by issuance of corrigendum, would be deemed to be applicable to the case of the writ petitioner-respondents. According to the learned counsel the necessary consequence of the application of the aforesaid amendment would be that the staff which was working at the time the Government decided to take over the school in principle could alone be absorbed. Mr. Sehgal has maintained that the date given is 28.6.1983 and, therefore, the writ petitioner-respondents are not entitled for absorption as they came in service in 1984. He has also submitted that the matter should be referred to arbitration as per clause 8 of the agreement/gift deed.
8. Ms. Alka Chatrath, learned counsel for the writ petitioner-respondents has argued that the date of execution of the gift deed is the relevant date for the purposes of deciding the terms and conditions of absorption. According to the learned counsel no further terms and conditions could be imposed. Therefore, clause 3 of the gift deed is required to be given full effect, which postulates LPA No. 294 of 2003 (O&M) 7 that only those employees who fulfill the prescribed qualifications for the post are to be absorbed. Referring to the date of appointment of the writ petitioner-respondents, learned counsel has submitted that Dev Raj, Sunita Sharma and Raghbir Singh had been working since 2.1.1984, 2.1.1984 and 3.1.1984 respectively whereas Shailinder Kumar joined the service with the school on 7.5.1984. Ms. Chatrath has also pointed out that there is no dispute with regard to the qualifications and there is no hurdle whatsoever to give full effect to the provisions of clause 3 of the gift deed, which in fact, is binding. With regard to the question of referring the present issue to the arbitration, learned counsel has submitted that it is not a case for reference to the Arbitrator because the writ petitioner-respondents have been absorbed and they are later on sought to be removed on the excuse that the date of decision for taking over the school should be regarded as the effective date rather than the date when the gift deed was executed.
9. Having heard learned counsel for the parties and perusing the paper book with their able assistance we are of the considered view that there is no merit in the instant appeal. The short issue as noticed by us in the opening para of the judgment is no longer res integra. A somewhat similar controversy came up for consideration before Hon'ble the Supreme Court in the case of State of Punjab and others v. Dev Dutt Kaushal and others, others, 1995 Supp (4) SCC 748.
748 In that case a private college was taken over by the State Government pursuant to a deed of gift executed by the management stipulating that existing teachers on take over by the Government were to be treated as 'new entrants'. The Government LPA No. 294 of 2003 (O&M) 8 absorbed the staff of the college subject to the conditions specified in the gift deed. It is pertinent to mention that the age of superannuation of lecturer was 60 years under the conditions of service in the private college but it was 58 years in the Government colleges. The deed of gift did not protect the provision regarding age of superannuation under the private management. A dispute arose when the employees who were taken over were retired on attaining the age of 58 years instead of 60 years. They claimed that they are entitled to continue in service till attaining the age of 60 years. Hon'ble the Supreme Court rejected the said claim in para 7 by making the following observations:
"7. The first claim of the respondent is that he is entitled to continue in service till he attains the age of sixty years. It is not possible to agree. It is admitted on all hands that the age of retirement of the college lecturers under the government is fifty eight years. In view of the terms and conditions of the gift deed mentioned above, it is plain that the respondent's plea cannot be accepted. There is no clause or condition in the gift deed preserving or saving the age of retirement prescribed in the said private college. Actually on the take over of the college, the teachers/lecturers had no right as such to be absorbed or to be appointed under the government. Their appointment in government service was subject to fulfillment of certain conditions specified above. The gift deed repeatedly states that on such appointment, they shall be treated as "new entrants" and shall be placed at the bottom of the LPA No. 294 of 2003 (O&M) 9 seniority list, as on the date of the absorption, in the relevant grade/category. The gift deed further stated that in matters not specifically provided for therein, the government's rules, regulations and orders will apply. In such a situation, it is obvious that the claim for continuance till the attainment of sixty years is simply not acceptable." (emphasis added)
10. The aforesaid principle is more pronounced from a perusal of para 8 of the judgment rendered in the case of State of Punjab v. Tara Singh Shahi, Shahi, (1996) 8 SCC 448, 448 which reads thus:
" 8. What is the binding effect of the gift deed and to what extent it would regulate the conditions of service of the members of the staff was considered by this Court in State of Punjab v. Dev Dutt Kaushal, 1995 Supp (4) SCC 748, by a Bench of which one of us (Hon'ble B.P. Jeevan Reddy, J.) was a member. The petitioner in that case had claimed the benefit of retirement at the age of 60 years instead of 58 years on the basis of his being a lecturer in a private institution which was subsequently taken over by the Government under a gift deed containing terms and conditions similar and identical to those contained in the gift deed in the instant case. It was held by this Court that in view of the terms and conditions of the gift deed, it was not possible to accede to the request of the petitioner for being superannuated at the age of 60 years as it was specifically provided in the gift deed that in respect of matters which were not specifically provided for by the gift deed, the LPA No. 294 of 2003 (O&M) 10 government rules would apply under which the age of retirement was 58 years. Consequently, the claim of the petitioner was rejected."
11. Again the aforesaid view has been reiterated and affirmed by Hon'ble the Supreme Court in the case of State of Punjab v. Harnam Singh, Singh, (1997) 3 SCC 32.
32 It is also pertinent to notice that in all these cases State of Punjab was a party to gift deed. The terms/conditions of the gift deed are the same.
12. As a necessary corollary it could be safely concluded that the date of execution of the gift deed would be the relevant date for the purposes of deciding the terms and conditions of take over. There is no provision in the gift deed stipulating that the date of decision to take over, namely, 28.6.1983, would be the determinative for absorption of an employee. In the present case, it is an admitted position that the gift deed in question has been executed on 5.7.1987. All terms and conditions of take over could be considered to be finalized on the date of execution of gift deed, which are sacrosanct. According to clause 3 thereof, it has been specifically provided as under:
"3. The Govt. is not bound to take all the members of the School Staff under their own Control. Govt. is authorised to take those employees who fulfil the prescribed qualification for the post." (emphasis added)
13. There is no other clause in the gift deed which might postulate that the date of decision of take over is the effective date for absorption.
14. The two fold objections raised by the appellant-State for not taking over the services of the writ petitioner-respondents are LPA No. 294 of 2003 (O&M) 11 that on the date of alleged take over i.e. 22.1.1987, they were not appointed in the erstwhile Janta High School because the entries are fake and secondly in any case by a corrigendum dated 22.5.1987 the State Government modified the original entry in the order dated 22.1.1987, which substituted the expression "at the time of taking over" to "at the time it was decided by the Govt. to take over this school in principle vis 28.6.83". However, the fact remains that by that date no gift deed was executed between the parties and only the terms and conditions contained in the gift deed could have been acted upon in accordance with the principle laid down by Hon'ble the Supreme Court in the case of Dev Dutt Kaushal (supra).
(supra) It is further undisputed that 5.7.1987 is the date of execution of the gift deed and Dev Raj and Sunita Sharma, writ petitioner-respondent Nos. 1 and 2 were appointed on 2.1.1984, whereas Raghbir Singh and Shailinder Kumar were appointed on 3.1.1984 and 7.5.1984 respectively i.e. much before execution of the gift deed or issuance of order dated 22.1.1987 and 22.5.1987.
15. As a sequel to the above discussion, this appeal fails and the same is accordingly dismissed.
(M.M. KUMAR) JUDGE (GURDEV SINGH) SINGH) August 25, 25, 2011 JUDGE Pkapoor