Punjab-Haryana High Court
Kulwinder Kaur vs State Of Punjab on 29 November, 2000
Author: K.C. Gupta
Bench: K.C. Gupta
JUDGMENT R.S. Mongia, J.
1. The petitioners, two in number, had applied for the post of Principal in the Khalsa Senior Secondary School, Sarhal Kazian, District Nawanshahar (a privately managed recognised aided School), in response to an advertisement which was issued in the Daily Tribune on October 5, 1997. The qualification for the post are mentioned in the rules, called "Punjab Privately managed Recognised School Employees (Security of Service) Rules, 1981 (hereinafter referred to as "the Rules"), framed under Punjab Privately Managed Recognised School Employees (Security of Service) Act, 1979. Rule 6 of 1981 rules provide qualifications and experience for the post of Principal which are as follows :-
"Degree of a recognised University with B.T. B.Ed. or Senior Basic Training with the following minimum teaching experience:-
(i) In the case of M.A. or M.Sc. with M.Ed, six years.
(ii) In the case of M.A. or M.Sc. with B.T. or B.Ed, seven years.
(iii) In the case of B.A. or B.Sc. with B.T. or B.Ed. eight years.
(iv) In the case of D.P.Ed. eight years from the date physical education was introduced compulsorily in the School; and
(v) In the case of B.A. or B.Sc. with M.Ed, seven years."
2. On ihe date fixed for the interview, total 10 candidates appeared before the Selection Commitlee, including the petitioners. However, the Selection Committee recommended the name of respondent No. 6, Sh. Ram Tirath Singh for the post. The Managing Committee approved the selection of respondent No. 6 and was issued an appointment letter. Me joined on November 13, 1997. As per the appointment letter, copy at Annexure P.9, one of the conditions was that "you should join for duty within 15 days of the receipt of this letter and your pay and allowances shall start from the date of your joining subject to the approval of the D.P.I.(S), through D.E.O., Nawanshahar." On December 30, 1997 (Annexure P-10), the District Education Officer (S) Nawanshahar, sent an order to the President of the Managing Committee of the School on the subject "regarding clearance of Sh. Ram Tirath Singh as Principal" wherein it was mentioned that the case was being sent back in original in view of the fact that the interviews were held on Saturday and the Managing Committee had not sent any invitation letter/call letter to the District Education Officer, till November 7, 1997, nor the meeting was held on a working day, which is against the rules. It was a holiday on November 8, i997. The interview which took place on November 8, 1997, is cancelled in view of the circular of the D.P.I. (Schools), dated September 10, 1993. In this view of the matter, the selection of Sh. Ram Tirath Singh was cancelled and it was ordered that the post be read vertised.
3. Respondent No. 6, Sh. Ram Tirath Singh, filed CWP No. 1597 of 1998, in this Court, challenging the order passed by the District Education Officer, dated December 30, 1997. This writ petition was disposed of on February 4, 1998 by a Division Bench of this Court by passing the following order :-
"Order Annexure P.6 by which the selection of the petitioner was cancelled, stands challenged in this petition. Concededly, for removal, dismissal and, reduction in rank, an adequate remedy is provided to a teacher under Punjab Privately Managed Recognised Schools Employees (Security of Service) Act, 1979. Learned counsel present the petitioner, however, contends that Annexure P.6 does not amount to removal and the petitioner shall not be able to knock the door of the authorities for claiming relief. This court is of the view that apprehension of petitioner is not correct as under Annexure P.6 even though worded to say that the appointment of petitioner has been cancelled, amounts to removal. That being so, the petitioner may avail the remedy available to him under the statute. Dismissed.
However, before we part with this order, we would like to mention that if petitioner actually seeks the remedy under the Act, the concerned authorities shall deal with the matter was expeditiously as possible and determine the controversy within 6 months from a date the respondents are served."
4. Petitioners then filed an appeal before the State School Tribunal, constituted under the 1979 Act. It may be observed here that pursuant to the order of the District Education Officer, dated December 30, 1997. Annexure P.10, the Managing Committee of the school on December 31, 1997, had cancelled the selection of the petitioner as Principal and had appointed one of the Lecturers as an Acting Principal. The School Tribunal, after hearing the appellant Sh. Ram Tirath Singh and the Management allowed the appeal vide order dated April 6, 1999, copy at Annexure P.12 and also set aside the resolution of the Managing Committee, dated December 31, 1997 cancelling the selection of respondent No. 6 and observed that since all the objections regarding the selection had been over-ruled, there should not be any impediment in the grant of the approval of the selection of respondent No. 6 Sh. Ram Tirath Singh by the D.E.O.'s office. The petitioners have challenged the aforesaid order of the Tribunal.
5. Notice of motion was issued. Reply has been filed by the respondents.
6. Learned Counsel for the petitioners raised the following points :-
(i) The Tribunal had no jurisdiction to entertain the so-called appeal of respondent No. 6. The Tribunal under section 4 of me 1979 Act has the power only to entertain an appeal against the order of DPI granting or not granting approval regarding any of the punishments. It has no jurisdiction to entertain an appeal against the order of DEO dated 30.12.1997.
(ii) The Tribunal had also no jurisdiction to direct the DEO to grant the approval regarding the appointment of respondent No. 6. Under the Act, the approval has to be granted by the DPI.
(iii) Respondent No. 6 did not have the requisite qualifications and, therefore, could not have been selected and appointed. The teaching experience which could be counted is the one acquired after obtaining the qualifications which make the person eligible for the post of Master or Mistress.
So far as pointed No. (i) is concerned, learned Counsel for the petitioners drew our attention to Section 4 of the act, which is in the following terms :-
"4. Dismissal, removal etc. of employees -
(1) Subject to any rule that may be made in this be-
half, no employee shall be dismissed, removed or reduced either in rank or within a time scale nor shall his services be otherwise terminated except with the prior approval of the Director.
(2) Any employee who is dismissed, removed or reduced either in rank or within a time scale under sub-section (1) may, within three months from the date of communication to him of the order of such dismissal, removal or reduction, appeal against such order to the School Tribunal.
(3) The Managing Committee aggrieved with the order of the Director may also appeal to the School Tribunal within a period of three months from the date of communication of the order."
From the aforesaid provision, learned Counsel for the petitioners argued that there was no order of the DPI which could be made subject matter of challenge in appeal before the School Tribunal. The earlier order of the Division Bench dated February 4, 1998. quoted above, relegated respondent No. 6 to have his remedy under the statute i.e. under the 1979 Act. Respondent No. 6 could go to the DPI (Schools) under the Act and not before the Tribunal. Learned Counsel argued that no court or authority could confer jurisdiction on a Tribunal or authority to decide the matter which a particular statute did not vest in the authority or the Tribunal. Learned counsel cited authorities to support this contention. There can be no doubt that if a particular jurisdiction does noi vest in the Tribunal or in an authority, it cannot be vested by the counsel of the parties or by a Court. However, the question remains as to whether the Tribunal had the authority or not ? It is not disputed that as a sequel of the order of the D.E.O., dated December 30, 1997, the Managing Committee itself on December 31, 1997, Annexure P.I I, cancelled the selection and appointment of respondent No. 6. The very basis of the order of the Management of the School dated December 31, 1997, is the order of the DEO. Both the orders dated 30.12.1997, passed by the DEO (Annexure P. 10) and the order of the Managing Committee dated December 31, 1997 (Annexure P.11) have been set aside by the Tribunal. According to the learned Counsel for the petitioners, the DEO was not an authority to grant or not to grant the approval regarding the selection of respondent No. 6. If that is so, then the order by the Managing Committee, dated December 31, 1997 (Annexure P.11), which is solely based on the order of the DEO, dated December 30, 1997 is a nullity and could be declared as such by the Tribunal. In stricto sensa the order of the D.E.O. on the basis of which the Managing Committee passed the order on December 31, 1997 (Annexure P.11) was neither dismissal nor removal or reduction in rank by way of punishment. The Supreme Court in Shashi Gaur v. N.C.T. of Delhi and others, JT 2000(10) SC 481 : 2000(4) SCT 1044 (SC), while interpreting a similar provision as Section 4 of the Act held that where an order of the Management is not by way of punishment awarding the punishment of dismissal, removal or reduction in rank, the employee can approach the Tribunal straighway. The Apex Court observed as under :-
"7. This judgment and the interpretation put to the provisions of sub-sections (2) and (3) ot Section 8 undoubtedly, is of sufficient force. But. the question for our consideration would be that, would it be appropriate for us to give a narrow construction to sub-section (3) of Section 8, thereby taking the teachers whose services were terminated not by way of dismissal, removal or reduction in rank but otherwise, out of the purview of the Tribunal constituted under Section 11 of the Act. The statute has provided for a Tribunal to confer a remedy to the teachers who are often taken out of service by the caprices and whims of the management of the private institutions. The Governmental authorities having been given certain control over the action of such private management, if an appeal to the Tribunal is not provided to such an employee then he has to knock the doors of the Court under Article 226 of the Constitulion which is a discretionary one. The remedy provided by way of an appeal to the Tribunal is undoubtedly a more efficacious remedy to an employee whose services stand terminated after serving the institution for a number of years, as in the present case where the services are terminated after 14 years.
8. In this view of the matter, we are persuaded to take the view that under sub-section (3) of Section 8 of the act, an appeal is provided against an order not only of dismissal, removal or reduction in rank, which obviously is a major penalty in a disciplinary proceeding, but also against a termination otherwise except where the service itself comes to an end by efflux of time for which the employee was initially appointed. Therefore, we do not find any infirmity with the order of the High Court not entertaining the writ application in exercise of its discretion, though we do not agree with the conclusion that availability of an alternative remedy oust the jurisdiction of the Court under Article 226 of the Constitution."
7. Apart from the above, we had put it to the petitioner's counsel that there cannot be any per-se bar to this Court to entertain a writ petition against the order of the D.E.O. and the order of the Management dated December 30, 1997 (annexure P.10) and December 31, 1997 (Annexure P. 11) respectively. We put it to the counsel to point out as to what was wrong with the selection of the respondent. The submission was that the Selection Committee was not properly constituted inasmuch as D.6.O. was not present and as the meeting had been held on a holiday i.e. Saturday, which is, as per the circular dated September 10, 1993 (Annexure P.8) is not permissible. Suffice it to say that the D.E.O. was duly called for participating in the selection as a Member of the Selection Committee, but he did not come and informed the Management that he would not be able to come. The Committee was fully jusjified to go ahead with the selection process. As far as the circular dated September 10, 1993 is concerned, it may be observed that the D.P.I, only prohibited the holding of the meeting of the Managing Committee and not ofthe Sub-Committees or the Selection Committees on Saturdays, Sundays or holidays. The meeting was not of the Managing Committee, but of the Selection Committee, to which the circulardated September 10, 1993 did not apply. Without going into the validity of such a circular, suffice it to say that otherwise also it cannot be held to be mandatory. It is only directory in nature. Aparl from the above, the petitioners having taken part in the interview cannot be allowed to raise this point.
8. The other objection, which has been raised by the learned Counsel for the petitioners in point No. (iii), which will be dealt with hereinafter.
9. So far as point No. (ii) is concerned, since the D.E.O. had cancelled the select ion and appointment of respondent No. 6, it was perhaps, under the circumstances, that the Tribunal directed the D.E.O. to grant the requisite approval to the appointment of respondent No. 6. Be that as it may, since there is otherwise no impediment found by the Tribunal in the grant of approval, the matter can be referred by the authorities to the competent authority which is to grant approval to the selection and appointment of respondent No. 6. However, since all the objections by the management have been over-ruled by the Tribunal, which judgment we are upholding, we do not see any impediment in the grant of approval by the competent authority to the appointment of respondent No. 6.
10. So far as point No. (iii) is concerned, learned Counsel for the petitioners submitted that the 1981 rules were framed on the pattern of the Delhi Aided Schools regarding the grant-in-aid and since in the Delhi Schools the minimum teaching experience required for the post of Principal is after the acquisition of the qualifications mentioned above the teaching experience acquired by respondent No. 6 prior to obtaining one of the qualifications mentioned in the qualifications (reproduced above) could not have been counted. It may be observed here that respondent No. 6 obtained qualifications of M.A. M.Ed, in the year 1995. A similar point, as raised by the learned Counsel for the petitioners, was raised in CWP No. 10859 of 1994, decided on April 20, 1995 (Kamla Joshi etc. v. Stale of Punjab etc.) where the very rules which are in question in the present case were interpreted. It was observed that these rules nowhere mentioned that the experience of teaching should be on the post of Master or Mistress. (It may be observed here that for the post of Master/Mistress the qualifications, which are men-tioned for the post of Principal minus the experience are the minimum educational qualifications). Learned counsel for the petitioners argued that respondent No. 6 need not have worked as a Master or Mistress, but the qualifications which are required for the post of Principal envisage experience after one had become eligible for the post of Master/Mistress. In other words, the experience has to be counted after obtaining the minimum academic qualifications for the post of Master or Mistress. The Division Bench noticed a Single Bench judgment in Smt. Jagminder Kaur v. Stale of Punjab 1995(1) All Instant Judgments 224 : 1995(2) SCT 797 (P&H), wherein it was observed as under :-
"In my considered view, the expression "minimum teaching experience" used in column 11 of appendix to the rules of 1981 cannot be read as minimum teaching experience as mistress for the purpose of recruitment on the post of Headmistress. Ordinarily, this court cannot by the process of interpretation add or subtract from the language of the statute and in my opinion, there are no compelling reasons for this court to re-write the rule so as to read the requirement of teaching experience on the post of Mistress as a condition for the purpose of appointment as Head Mistress."
11. The State of Punjab took the matter to the Apex Court. The Apex Court dismissed the SLP on September 13, 1996 by passing the following order:-
"According to the petitioner-State when teaching experience of 7 years has been prescribed it includes the experience as masters only. There is no specific mention in the Rules that the teaching experience must be as master. As was open to the petitioner-State to clarify the relevant rules by amending the same instead of relying on some administrative instructions. According, these SLPs are dismissed."
12. It was held in Anil Kumar Gupta and others v. Municipal Corporation of Delhi and others, 2000(1) SLR 303 : 2000(1) SCT 731 (SC) that the Courts cannot add anything to the statute which the legislature never intended to. If the argument of the learned Counsel for the petitioners is to be accepted, then it would mean that we would be adding the words (underling by us) to the Rules. The Rule would then read minimum teaching experience after obtaining minimum qualifications for being eligible for the post of Master/Mistress. The is impermisisble.
13. To be fair to the learned Counsel for the respondent No. 6, we may observe that he had also raised the point that the petitioners have no locus standi as they were not parties before the Tribunal. We do not find any merit in the same. The petitioners were the candidates for the post of Principal and after the order of the Tribunal they are the affected persons.
For the foregoing reasons, we do not find any merit in this writ petition, which is hereby dismissed.
14. Petition dismissed.