Punjab-Haryana High Court
Pratham Kumar Sharma Son Of Shri Ram ... vs State Of Haryana And Others on 28 August, 2012
Civil Writ Petition No.332 of 1994 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
C.W.P.No.332 of 1994
Date of decision: August 28, 2012
Pratham Kumar Sharma son of Shri Ram Sharma, Clerk,
S.D. Senior Secondary School, Jhajjar, District Rohtak.
............petitioner
Versus
State of Haryana and others
..............respondents
CORAM: HON'BLE MR. JUSTICE R.P.NAGRATH
Present: Mr. R.K.Malik, Senior Advocate with
Mr.Nikhil Sharma, Advocate, for the petitioner.
Mr. R.S.Kundu, Additional Advocate General,
Haryana for respondents No.1 to 3.
Mr. Yogesh Putney, Advocate,
for respondents No.4 and 5.
(i) Whether Reporters of local papers may be allowed
to see the judgment ?
(ii) To be referred to the reporter or not ?
(iii) Whether the Judgment should be reported in the Digest ?
R.P.NAGRATH,J.
Learned Counsel for the parties have been heard and the Civil Writ Petition No.332 of 1994 2 record perused.
2. There is no dispute that respondent No.4- School is a Government aided School, though the plea raised in both set of the written statements of the respondents is that grant-in-aid is upto the middle school level. That, however, is enough for attracting the provisions of the Haryana Aided Schools ( Security of Service ) Act, 1971 ( for short referred to as the " Act of 1971"). The question that a particular post should be sanctioned by the State Government for applicability of the provisions of the Act of 1971 was repelled by this Court in Ram Narain Tyagi V. State of Haryana and others 1985(2) Service Law Reporter 100. The expression 'employee' as defined in Section 2(d) of the Act was interpreted as including all the employees of the aided private school, who work on whole-time basis, irrespective of the fact whether the posts against which they are working are approved or sanctioned by the Department or not. No precedent contrary to the aforesaid principle was cited.
3. The controversy in this petition would centre round the issue as to whether the petitioner was an 'employee' of respondents No.4 and 5 for entitling him to the relief claimed. When respondents No.4 and 5 have challenged the genuineness of the alleged appointment letter relied upon by the petitioner as forged and fabricated, the remedy for the petitioner was to file a suit to prove its authenticity by adducing appropriate evidence. A photo copy of the appointment letter was placed on record by the petitioner's Counsel, perusal whereof would show that the attack to the genuineness of this letter is not unfounded. This is an undated letter mentioning Civil Writ Petition No.332 of 1994 3 therein that on the recommendation of the Selection Committee, the petitioner was appointed as a Clerk on regular basis with effect from April 22,1990.
4. According to the petitioner's own admission, he was drawing an amount of Rs.500/- per month towards his emolument throughout the period of two years, till he sent his first representation dated 26.6.1992 (Annexure P/2). So it is a clear case where the petitioner did not submit his joining report on the basis of the alleged appointment letter for more than two years, and this would by itself disentitle him to the relief claimed by way of writ petition, under Article 226 of the Constitution of India. Similarly, the genuineness of the letter dated 1.8.1992, allegedly issued by the Headmaster of the School and does not bear any dairy number of the office, has also been challenged. According to the respondents, the petitioner had access to the record of the School which he was maintaining in the performance of his duties as a Clerk, for which he was getting Rs.600/- per month as salary.
5. Learned petitioner's Counsel, however, contended that it was for the respondent-School to challenge the order of the District Education Officer by way of appeal to the Director under Section 3 (5) of the Act of 1971 for disputing the claim of the petitioner, in the absence whereof they were bound to comply with the directions contained in Annexure P/4 dated 25.8.1993 issued by the District Education Officer ordering respondents No.4 and 5 to permit the petitioner to mark his attendance from the date he was allegedly debarred and to send the compliance report. Apparently, this letter Civil Writ Petition No.332 of 1994 4 ( Annexure P/4) was sent by the District Education Officer, after a direction was issued by this Court in C.W.P. No.4267 of 1993, vide order dated 22.4.1993 directing the respondents to dispose of the statutory appeal appended as Annexure P/2 with that petition, within a period of three months from the date of receipt of copy of the order.
6. I find that the communication Annexure P/4 cannot be termed as a decision under Section 3(3) of the Act of 1971. The case of respondents No.4 and 5 is that a detailed reply dated 18.3.1993 (Annexure R/5), to the representation of the petitioner was sent to the District Education Officer, Rohtak. In the reply, it was stated that the appointment letter relied upon by the petitioner was false, fabricated and forged and further that the petitioner has misused the signatures, obtained by him from the officer concerned in other circumstances, and got this letter typed on the blank paper. It was further stated he had been drawing salary as part time Clerk ever since he joined the institution. He was responsible for preparing the bills of the School in which he had shown himself a part time Clerk and drawing salary as such through payee cheques. There is also an attendance register in the School in which he has marked his presence as part time Clerk.
7. The order of the District Education Officer Annexure P/4 dated 25.8.1993 does not deal with any such dispute. The order simply says that the School has debarred the petitioner from marking his presence with effect from 23.2.1992 which action is contrary to law. Sub Section 3 of Section 3 of the Act of 1971 mandates the grant of opportunity of hearing to the parties and Civil Writ Petition No.332 of 1994 5 District Education Officer may pass the order after making such further enquiry as he may think fit, for either refusing the application or setting aside the impugned order of removal. Respondents No.4 and 5, therefore, were not bound to comply with such direction issued by the District Education Officer, especially when the appointment letter relied upon by the petitioner was attacked as forged and fabricated. In view of the above, the petitioner cannot be granted the relief prayed for in the exercise of the writ jurisdiction.
8. The petition, therefore, is dismissed with liberty to the petitioner to avail of his remedy before the appropriate forum in accordance with law.
( R.P.NAGRATH )
August 28,2012 JUDGE