Punjab-Haryana High Court
Subhash Chander vs Haryana State And Others on 27 August, 2013
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.2824 of 2012 (O&M)
Date of decision: 27th August, 2013
Subhash Chander
Appellant
Versus
Haryana State and others
Respondents
CORAM: HON'BLE MR. JUSTICE RAKESH KUMAR GARG
Present: Ms. Alka Chatrath, Advocate for the appellant.
Mr. J.S. Toor, Addl. Advocate General, Haryana.
Mr. R.A. Sheoran, Advocate for respondent No.4.
RAKESH KUMAR GARG, J.
This is plaintiff's second appeal challenging the judgments and decrees of the Courts below whereby his suit for prohibitory injunction restraining the defendant-respondents to remove him from the post of Hindi Lecturer in the Guest Faculty of Government Senior Secondary School, Obra, Tehsil Loharu, District Bhiwani was dismissed.
As per the averments, teachers were appointed in Guest Faculty in the Government Schools of Haryana as per the orders of the Government of Haryana. In December 2005, the post of Hindi Teacher was lying vacant in Government Senior Secondary School, Obra, Tehsil Loharu, District Bhiwani. Defendant No.3 was posted as Singh Rattan Pal 2013.08.31 11:50 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.2824 of 2012 (O&M) 2 Principal of the said School at that time. Three persons, namely Subhash Chander (appellant), Suresh Kumar son of Inder Singh (defendant No.4) and Suresh Kumar son of Ram Singh had applied for the said post of Hindi Teacher. Interviews were held and on the basis of that, the appellant was appointed as Hindi Teacher on 23.12.2005 and since then he was working to the entire satisfaction of the defendants. Defendant No.3 threatened the plaintiff-appellant to remove him from service, and hence, the instant suit was filed. Thereafter, the appellant filed an amended plaint pleading that after filing of the present suit, it came to his notice that the order of removal has already been passed on 16.02.2006 and the same has been passed without giving any notice and any opportunity of hearing. It is the case of the plaintiff- appellant that in his certificate of MA examination, his marks were shown as 410 out of 800 though it was an apparent error in totaling of the marks, and the said mistake was corrected by the University on 07.02.2006 and as per the correct calculation, his marks were 414 out of 800. However, defendant No.3 in an illegal manner passed an order dated 16.02.2006 cancelling appointment of the appellant, without giving any notice or opportunity of hearing, on the ground that the marks obtained by defendant No.4 and that of the appellant were same, i.e. 410 out of 800, and since preference was to be given to the person elder in age, appointment has been given to defendant No.4 on the post of Hindi Teacher as Guest Faculty. Hence, the suit. Singh Rattan Pal 2013.08.31 11:50 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.2824 of 2012 (O&M) 3
Upon notice, defendants appeared and filed written statement raising various preliminary objections. On merits, it was alleged that plaintiff-appellant was appointed as a Lecturer of Hindi in the Guest Faculty, which was a casual adjustment. His appointment was legally cancelled as another candidate i.e. defendant No.4, who was having same marks was elder in age and thus, services of the plaintiff-appellant were dispensed with by the competent authority. It was further pleaded that on the last date of submission of the application, plaintiff-appellant had submitted the mark-sheet of MA (Hindi) examination bearing marks 410/800 whereas now he has claimed that he could not produce his improved mark-sheet at the time of submission of application and thus, the said mark-sheet cannot be taken into consideration after selection. It has been further submitted that the present suit has become infructuous and the same be dismissed as such.
Defendant No.4 filed separate written statement submitting that the order dated 23.12.2005 appointing the plaintiff-appellant was the result of collusion of the appellant with the then Principal. He had made several complaints against the appointment of the plaintiff- appellant, and thereafter, on appointment of defendant No.3 as Principal, his request was acceded and he was appointed as Guest Teacher on 17.02.2006 after removing the plaintiff-appellant vide order dated 16.02.2006. Thereafter, he remained posted as Guest Teacher in the said School till 13.06.2007 but after joining of regular teacher, his Singh Rattan Pal 2013.08.31 11:50 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.2824 of 2012 (O&M) 4 services were also terminated. On the basis of the aforesaid facts, prayer for dismissal of the suit was made.
No replication was filed.
From the pleadings of the parties, the following issues were framed by the trial Court:
"1. Whether the plaintiff is entitled to the relief of prohibitory injunction as prayed for? OPP
2. Whether the suit of the plaintiff is not maintainable in the present form? OPD
3. Whether the plaintiff has no locus-standi to file the present suit? OPD
4. Whether the plaintiff is estopped by his own act and conduct from filing the present suit? OPD
5. Whether the suit is bad for want of notice under Section 80 CPC? OPD
6. Relief."
The Additional Civil Judge (Senior Division), Bhiwani dismissed the suit of the plaintiff-appellant vide judgment and decree dated 14.12.2010. While dismissing the suit, the trial Court under issue No.1 held as under:
"After hearing the submissions made by learned counsel for the plaintiff, learned Government pleader for defendant No.1 to 3 and defendant No.4, it is held that that plaintiff has himself admitted that as per the government orders guest teachers were appointed in schools in Haryana as Guest Faculty. There is no dispute that the plaintiff was also appointed as Hindi Teacher in Singh Rattan Pal 2013.08.31 11:50 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.2824 of 2012 (O&M) 5 Guest Faculty. There is no dispute that on the date of submission of application the plaintiff and defendant No.4 were having equal marks in MA (Hindi) examination. There is also no dispute that Suresh, Defendant No.4 was older to the plaintiff. It is settled preposition of law that if two candidates are equal in merit, the candidate older in age will be given appointment. Although the plaintiff has claimed that he was illegally removed from the service as he has lateron submitted the amended MA (Hindi) examination certificate in which his four marks were increased. But in the considered opinion of this Court at the time of submission of application forms the plaintiff has submitted his MA (Hindi) examination certificate in which he was having equal marks to defendant No.4 and the clerical mistake regarding the marks came into picture lateron. There is no dispute that at the time of appointment defendant No.4 was older in age to the plaintiff. Therefore, in the considered opinion of this Court the letter dated 17.02.2006 vide which the plaintiff was removed from service can not be said as illegal as per the facts and circumstances at that time. Hence, the order dated 17.02.2006 can not be set aside being illegal, null and void and not binding on the rights of the parties. At this time there is no dispute that regular has already joined in the school and services of defendant No.4 have already come to an end and now there is no vacant seat of Guest Teacher, therefore, the present suit of the plaintiff has already become infructuous. Present issue is accordingly decided against the plaintiff and in favour of the defendants."Singh Rattan Pal 2013.08.31 11:50 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.2824 of 2012 (O&M) 6
Resultantly, issues No.2 and 3 were also decided against the plaintiff-appellant and in favour of the defendant-respondents. However, issues No.4 and 5 were decided against the defendants.
Not satisfied from the judgment and decree of the trial Court, the plaintiff-appellant filed an appeal before the first appellate Court, which was also dismissed vide judgment and decree dated 13.01.2012. The relevant part of the said judgment reads thus:
"11. Learned counsel for the appellant drew the attention of this Court towards Ex.P5 whereby the marks shown are 414. This certificate came into existence on 07.02.2006. One thing is clear from Ex.P5 that correction was carried out on 07.02.2006 and this shows that before this, no authority could take cognizance of this fact. In Ex.P6 also the marks shown are 410. Ex.P7 which is mark sheet of MA previous year shows that marks are
193. This is something which should have been taken care of by the University and the department had nothing to do with that. What was to be seen by the employer was the certificate which was attached with the application for the post and no fault in the same could be pointed out during the course of arguments by the learned counsel for the appellant. Even if Ex.P7 was also attached with the application form, the grand total as per Ex.P6 which was also attached with the application forms would have washed off Ex.P7. Moreover, this Court is not in a position to believe that Ex.P7 was attached with the application because there is no pleading in this regard. It is well settled law that the evidence has to be confined to the pleadings.
12. No other point was urged before this Court.Singh Rattan Pal 2013.08.31 11:50 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.2824 of 2012 (O&M) 7
13. In the facts and circumstances of the case, in view of the above discussion, there appears no infirmity in the judgment and decree passed by the learned trial Court either on factual or legal front. Consequently, the judgment and decree passed by the learned trial Court are affirmed and the appeal is dismissed. In the peculiar facts and circumstances of the case, both the parties are left to bear their own costs. Decree sheet be prepared."
Feeling aggrieved from the aforesaid judgments and decrees of the courts below, the plaintiff-appellant has filed the instant appeal framing following substantial questions of law for consideration of this Court:
"(i) Whether the rectification of the result relates back to the original date of declaration of the result?
(ii) Whether the appellant can be punished for the mistake/clerical error on the part of the University?
(iii) Whether the action of the respondent No.3 in terminating the services of plaintiff/appellant without giving any opportunity of hearing is legal and valid?
(iv) Whether the findings recorded by the both the Ld. Courts below are on the face of it perverse and not based upon any documentary proof and liable to be set aside?"
Noticing the contentions of learned counsel for the appellant, this Court passed the following order on 04.07.2012: Singh Rattan Pal 2013.08.31 11:50 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.2824 of 2012 (O&M) 8
"Learned counsel for the appellant, in order to support her argument that rectified detailed marks certificate should have been given due weight, has placed reliance on the Division Bench judgment delivered by this Court in case Thapar Institute of Engineering and Technology Patiala through its Registrar v. Anupama Arya, 1990 (1) SLR 765, wherein, in para No.5, it was observed as under :-
'The learned Single Judge has examined all the contentions raised by the parties in great detail. He referred to the Division Bench judgments in Lalit Taor v. Nagpur University, Nagpur and others, AIR 1986 Bombay 255; and Ku. Sadhana v.
Bikram University, Ujjain and others, AIR 1986 Madhya Pradesh 181. These authorities clearly lay down that as a result of revaluation, if there is any increase or decrease in the original marks, the same are binding on the students. The marks obtained as a result of revaluation is the final marks sheet. The learned Single Judge has rightly come to the conclusion that the marks obtained as a result of revaluation have to be taken into consideration for preparing the final merit list. We respectfully agree with the view taken by the learned Single Judge in this behalf.
Counsel for the appellant could not successfully challenge the correctness of the reasoning given by the learned Single Judge, which is fortified by two High Courts. No judgment to the contrary was cited at the Singh Rattan Pal 2013.08.31 11:50 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.2824 of 2012 (O&M) 9 hearing of the case. The counsel for the appellant repeatedly said that it will cause great inconvenience if the revaluated marks (which marks sheet has been received by the candidate after the last date of submission of applications) are taken into account. We are not impressed by this argument. The career of a student depends upon the percentage of marks received by him in examination. If there is any mistake in the original marks sheet and the same has been corrected as a result of revaluation, the same has to be given effect to. The valuable rights of a student cannot be sacrificed merely because some inconvenience is caused to the appellant- Institute.' Notice of motion for 27.8.2012."
Thereafter, on completing of service, the case was heard partly on 21.08.2013 and was adjourned for today on the request of learned counsel for the appellant.
Learned counsel for the appellant has vehemently argued that the order dated 16.02.2006 removing the appellant from service was illegal as admittedly the appellant was more meritorious than defendant-respondent No.4, which is evident from the revised mark- sheet (Ex.P5), and therefore, in view of the judgment of a Division Bench of this Court, as noticed in the order dated 04.07.2012, his valuable right to be appointed being more meritorious cannot be Singh Rattan Pal 2013.08.31 11:50 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.2824 of 2012 (O&M) 10 sacrificed merely because the re-evaluated marks were received after the last date of submission of application for appointment.
It has been further argued that the clerical mistake was rectified by the University on 07.02.2006, much before passing of impugned order dated 16.02.2006 cancelling his appointment and further appointing defendant-respondent No.4 in his place, and since no notice was given to explain his position the said order has been passed in violation of the principles of natural justice ignoring the settled proposition of law that no person can be condemned unheard, and thus, his removal from service was illegal and he was entitled to the relief claimed. It has been further argued that the courts below have seriously fallen into error while observing that the plaintiff-appellant as well as defendant-respondent No.4 have obtained equal marks. Moreover, the mistake was pointed out to the respondents prior to the removal of appellant, and therefore, the plaintiff-appellant could not have been removed for this reason and the order of removal dated 16.02.2006 was illegal, null and void.
It is further case of the appellant that had his services not been terminated, he would have joined/adjusted in the other Schools as per the Government instructions against a regular post, as has been done in the case of defendant No.4 and thus, the action of the respondents has resulted into miscarriage of justice to him and therefore, substantial questions of law, as raised, arise in this appeal and the impugned judgments and decrees are liable to be set aside. Singh Rattan Pal 2013.08.31 11:50 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.2824 of 2012 (O&M) 11
On the other hand, learned counsel for the respondent- State as well as respondent No.4 have vehemently argued that the issue, as raised before this Court, as to "whether the appellant was more meritorious than the other candidates or not", was not an issue before the Civil Court. Moreover, from a perusal of the pleadings of the plaintiff-appellant and the issues framed, it may be noticed that no such relief of setting aside the order dated 16.02.2006 and further the order of appointment of defendant-respondent No.4 has been raised by the appellant, and the only relief claimed in the suit was to restrain the defendant-respondents from removing him from the post of Hindi Lecturer as a Guest Faculty.
It is further case of the defendant-respondents that the instant suit has been filed on 21.02.2006; whereas the plaintiff- appellant stood removed from service vide order dated 16.02.2006 and thus, the prayer made in the suit had already become infructuous and therefore, the same was rightly dismissed by the courts below.
I have heard learned counsel for the parties and perused the impugned judgments and decrees of both the courts below.
At the outset, certain admitted facts may be noticed. The appellant was appointed after interview on 23.12.2005 as Guest Faculty Hindi Teacher and his services were terminated vide order dated 16.02.2006 noticing that the plaintiff-appellant as well as defendant-respondent No.4 had equal marks i.e. 410 out of 800 in MA, but defendant No.4 being elder in age was entitled to be appointed as Singh Rattan Pal 2013.08.31 11:50 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.2824 of 2012 (O&M) 12 per rules. It may further be noticed that along with his application for appointment, the appellant had submitted the mark-sheet showing his marks as 410 out of 800 in MA examination. Again it is not disputed that on 07.02.2006 mark-sheet of the appellant was revised by the University Authorities showing his marks as 414 out of 800; whereas the selection procedure had already been completed on 23.12.2005.
Grievance of the appellant is that the said correction of revised marks has not been given cognizance by the respondent Authorities at the time of passing the order of his removal from service dated 16.02.2006. However, there is nothing on record to suggest that the said mark-sheet revised on 07.02.2006 was ever presented before the respondent Authorities prior to passing of the order dated 16.02.2006 and in the absence of such evidence, it cannot be held that the respondent Authorities have wrongly ignored the fact that the appellant was more meritorious than respondent No.4.
Leaving aside the aforesaid observations of this Court, it may further be noticed that the appellant has not claimed any declaration to challenge the order dated 16.02.2006 removing him from service and further seeking quashing of the order appointing respondent No.4 in his place.
No doubt, after filing the amended plaint, para No.6(A) was added in the following terms:
"That after filing the suit, it came to the notice that order of removal has already been passed on 16.2.2006. That the order of cancellation vide letter dated 16.2.06 Singh Rattan Pal 2013.08.31 11:50 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.2824 of 2012 (O&M) 13 issued by the defendant No.3 is absolutely wrong, incorrect, illegal, null and void, without hearing and without jurisdiction. As such, the same is liable to be ignored. Consequently, the appointment of Suresh Kumar son of Sh.Inder Singh vide the plaintiff is also wrong."
But, no such declaration has been claimed in the prayer clause. In fact, on the basis of the submission that the order dated 16.02.2006 cancelling his appointment and appointing defendant No.4 is illegal, a prayer has been made to restrain the defendant- respondents from removing the plaintiff-appellant from the post of Hindi Teacher in the Guest Faculty of the School. The aforesaid situation is further clear from the issues framed by the trial Court, as noticed in the foregoing paragraphs of this judgment. No such issue, seeking declaration that the order dated 16.02.2006 is illegal and liable to be set aside, has been framed. Even after framing of the aforesaid issue, at no stage of the suit or appeal before the first appellate Court any such grievance of non-framing of the proper issues was raised.
Admittedly, the appellant could have challenged the order of framing issues by filing a revision petition before this Court at an appropriate time, if feeling aggrieved. However, no such challenge has ever been made to the non-framing of necessary issues, and therefore, to argue at this stage that there is ample evidence on record and that the order dated 16.02.2006 was bad in law, and that this Court may grant such a relief, cannot be accepted as it is well settled that no Singh Rattan Pal 2013.08.31 11:50 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.2824 of 2012 (O&M) 14 amount of evidence can be looked into which is beyond the pleadings and issues raised on behalf of the parties.
It could further not be disputed before this Court that in view of passing of the order dated 16.02.2006, whereby the appellant stood removed from the post of Hindi Teacher as Guest Faculty, the prayer of the appellant seeking relief of prohibitory injunction had become infructuous and keeping in view the fact that no other relief was claimed, the judgments and decrees of the courts below cannot be challenged.
The argument raised on behalf of the appellant that had he not been removed from service vide order dated 16.02.2006, he could have been adjusted/appointed as a regular Teacher; is without any foundational facts. No such facts to claim such a relief have been pleaded and proved on record.
Faced with this situation, learned counsel for the appellant has argued that even if no specific issue has been framed, the Court can still adjudicate the same in view of the overwhelming evidence which has come on record, and has contended that none of the parties can be allowed to say that the Court cannot decide the matter because it was not raised in the pleadings. To support this contention, learned counsel for the appellant has relied upon a judgment of this Court in 'Kirpal Singh v. Sardha Ram' 2003(2) RCR (Rent) 324. However, with due respect to the aforesaid judgment, it may be noticed that aforesaid judgment of this Court has not appreciated the facts of the judgment Singh Rattan Pal 2013.08.31 11:50 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.2824 of 2012 (O&M) 15 rendered in 'Mohinder Kaur and another v. Piara Singh and others' AIR 1981 P&H 130, as extracted in para No.7 of the judgment in Kirpal Singh's case (supra). The judgment in Mohinder Kaur's case (supra) is entirely on a different question of law and does not deal with the controversy, as raised in the case in hand, or even in Kirpal Singh's case (supra). Moreover, this Court is of the view that the observations made in Kirpal Singh's case (supra) were entirely on different facts and pleadings in a case filed under the provisions of Haryana Urban (Control of Rent and Eviction) Act, 1973 and the provisions of CPC are not applicable in a strict sense in the proceedings before the Rent Controller.
Thus, the substantial questions of law, as raised, do not arise in this appeal.
No other argument has been raised.
Dismissed.
(RAKESH KUMAR GARG) JUDGE August 27, 2013 rps Singh Rattan Pal 2013.08.31 11:50 I attest to the accuracy and integrity of this document High Court, Chandigarh