N.Jayaseelan v. State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 09.06.2009CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NO.29926 of 2006N.Jayaseelan.. Petitioner Vs.1.State of Tamil Nadu represented by Secretary to Government, Department of Tamil Development and Culture, Fort St. George, Madras-9.2.The Commissioner (in charge), Art and Culture Department, Madras-600 028.3.The Principal, Government College of Architecture and Sculpture, Mamallapuram, Chengai Anna District. Pin.:603 104... RespondentsThis writ petition has been preferred under Article 226 ofthe Constitution of India praying for the issue of a writ ofcertiorarified mandamus to call for the records relating to (1)Letter No.5043/A1/96 dated 4.11.1996 of the second respondent and(2)Pro.Na.Ka.No.2214/A2/96 dated 5.11.1996 of the third respondentherein, to quash the same and to issue directions to therespondents herein to reinstate the applicant into service withall service benefits, pay etc.For Petitioner: Mr.M.RaviFor Respondents: Mr.P.Gurunathan, GA for RR1 and 2- - - - ORDERThe petitioner filed O.A.No.6603 of 1996, seeking tochallenge the letter, dated 4.11.1996 of the second respondent andcommunicated by the letter of the third respondent, dated5.11.1996 and for reinstating the petitioner with consequentialbenefits. Pending the O.A., the Tribunal granted an interim stayof termination on the ground that the petitioner has been workingfor long a period and there was recommendation for regularizinghis service. The said order came to be extended until furtherorders. https://hcservices.ecourts.gov.in/hcservices/

2.On notice from the Tribunal, the first respondent has fileda detailed reply affidavit, dated 28.7.97. On the abolition of theTribunal, the matter stood transferred to this court and wasrenumbered as W.P.No.29926 of 2006. 3.The petitioner was appointed as an Instructor on an annualcontract basis by the Director of Technical Education, Chennai,dated 18.10.90. As per the terms and conditions of the agreement,his service was terminated at the end of the academic year and hewas re-appointed for the next academic year. The first respondentissued G.O.Ms.No.526, Education, dated 28.5.93 and took up apolicy decision to consider the regularization of teachers, whowere employed on contract basis. Therefore, such of thoseteachers, whose services were liable to be terminated on 31.5.93,were directed to be continued. Insofar as the reason fortermination of the petitioner is concerned, the same has beenexplained in paragraphs 11, 12 and 15 of the reply affidavit,which are as follows:"11. ... The third respondent had clearly statedthat the Memorandum No.2214/A2/96 dated 24.10.96, thatthe applicant had been instigating the students toenter into strike directly and indirectly. Theapplicant was not available in the class rooms on manyoccasions. Further the applicant has been spreadingwrong information among the students about a diplomacourse conducted in the college. In addition to that,the applicant was asked to explain as to whether hehad involved himself in undertaking any private job ofconstruction of temples and earn money, thereby. Aboveall, the applicant has a major role on themishappenings on 18.10.96 at the opening celebrationof Sculpture Sales Section by the Honourable Minister.The applicant has been instigating the students andcreated trouble to the peaceful smooth function of thecelebration. The allegations levelled against theapplicant are very clear. 12. ... it is submitted that the reply submittedby the applicant to the show cause notice issued on24.10.96 is neither satisfactory nor acceptable.Further, subsequent to the issue of show cause noticei.e., on 28.10.96 only due to the instigation of theapplicant, students of his class has approached thePrincipal and demanded him for the witndrawal of thememorandum issued to the teacher. The Principal in-turn answered the students that the students shouldnot involve themselves in the administrativeactivities which are carried out in the interest ofthe smooth running of the college. This evidentlyshows that he has been rootcause. The third respondenthere has enquired the students regarding the untowardactivities that took place on 28.10.96 with thestudents as well as the staff members. The applicanthas instigated the students for breaking the things inthe college such as electrical lights, cement jolly, https://hcservices.ecourts.gov.in/hcservices/ chairs, benches, typewriter machine etc. The totalcost of the damage works out to a lakh of rupees. Theagitation of the students and the instant of thedamages to the property led to the indefinite closureof the college and the students were asked to vacatethe campus and hostel. Therefore the statement of theapplicant are far from facts.....15. ... The orders terminating the services ofthe applicant has been issued based on the documentaryevidence and the oral enquiries among the students andthe staff members, there is no violation of principlesof natural justice, equity, fairplay and goodconscience. The statement of the applicant is totallyincorrect. "4.If a person enters into a contract, whether he can bedenied a protection under Article 311 of the Constitution came upfor consideration in several judgments of the Supreme Court. TheSupreme Court in Roshan Lal Tandon v. Union of India reported in(1968) 1 SCR 185 held that the nature of the right possessed by aGovernment servant and his status after his appointment to thepost under the Government was considered in the said judgment. Itis relevant to extract para 6 of the said judgment, which is asfollows:"6. We pass on to consider the next contention ofthe petitioner that there was a contractual right asregards the condition of service applicable to thepetitioner at the time he entered Grade ‘D’ and thecondition of service could not be altered to hisdisadvantage afterwards by the notification issued bythe Railway Board. It was said that the order of theRailway Board dated January 25, 1958, Annexure ‘B’,laid down that promotion to Grade ‘C’ from Grade ‘D’was to be based on seniority-cum-suitability and thiscondition of service was contractual and could not bealtered thereafter to the prejudice of the petitioner.In our opinion, there is no warrant for this argument.It is true that the origin of Government service iscontractual. There is an offer and acceptance in everycase. But once appointed to his post or office theGovernment servant acquires a status and his rightsand obligations are no longer determined by consent ofboth parties, but by statute or statutory rules whichmay be framed and altered unilaterally by theGovernment. In other words, the legal position of aGovernment servant is more one of status than ofcontract. The hallmark of status is the attachment toa legal relationship of rights and duties imposed bythe public law and not by mere agreement of theparties. The emolument of the Government servant andhis terms of service are governed by statute orstatutory rules which may be unilaterally altered bythe Government without the consent of the employee. It https://hcservices.ecourts.gov.in/hcservices/ is true that Article 311 imposes constitutionalrestrictions upon the power of removal granted to thePresident and the Governor under Article 310. But itis obvious that the relationship between theGovernment and its servant is not like an ordinarycontract of service between a master and servant. Thelegal relationship is something entirely different,something in the nature of status. It is much morethan a purely contractual relationship voluntarilyentered into between the parties. The duties of statusare fixed by the law and in the enforcement of theseduties society has an interest. In the language ofjurisprudence status is a condition of membership of agroup of which powers and duties are exclusivelydetermined by law and not by agreement between theparties concerned. The matter is clearly stated bySalmond and Williams on Contracts as follows:“So we may find both contractual and status-obligations produced by the same transaction. The onetransaction may result in the creation not only ofobligations defined by the parties and so pertainingto the sphere of contract but also and concurrently ofobligations defined by the law itself, and sopertaining to the sphere of status. A contract ofservice between employer and employee, while for themost part pertaining exclusively to the sphere ofcontract, pertains also to that of status so far asthe law itself has seen fit to attach to this relationcompulsory incidents, such as liability to paycompensation for accidents. The extent to which thelaw is content to leave matters within the domain ofcontract to be determined by the exercise of theautonomous authority of the parties themselves, orthinks fit to bring the matter within the sphere ofstatus by authoritatively determining for itself thecontents of the relationship, is a matter depending onconsiderations of public policy. In such contracts asthose of service the tendency in modern times is towithdraw the matter more and more from the domain ofcontract into that of status.”(Salmond and Williams on Contracts, 2nd Edn.p. 12)."5.The contention that the relationship between the Governmentservant and the Government is contractual in nature was notaccepted by the Supreme Court in its judgment in Dinesh ChandraSangma v. State of Assam reported in (1977) 4 SCC 441. It isrelevant to refer to the following passages found in paras 11 and12 of the said judgment and they are as follows:11. Mr Niren De submits that Article 310(2)supports his submission that the relationship betweenthe government servant and the Government iscontractual. Sub-article (2) of Article 310 providesthat https://hcservices.ecourts.gov.in/hcservices/ “notwithstanding that a person holding a civil postunder the Union or a State holds office during thepleasure of the President or, as the case may be, ofthe Governor of the State, any contract under which aperson, not being a member of a defence service or ofan all-India service or of a civil service of theUnion or a State, is appointed under this Constitutionto hold such a post may, if the President or theGovernor, as the case may be, deems it necessary inorder to secure the services of a person havingspecial qualifications, provide for the payment to himof compensation, if before the expiration of an agreedperiod that post is abolished or he is, for reasonsnot connected with any misconduct on his part,required to vacate that post.”The above is a special provision which deals with aspecial situation where a contract is entered intobetween the Government and a person appointed underthe Constitution to hold a civil post. But simplybecause there may be, in a given case, a contractualemployment, as envisaged under Article 310(2) of theConstitution, the relationship of all other governmentservants, as a class, and the Government, cannot besaid to be contractual. It is well-settled that exceptin the case of a person who has been appointed under awritten contract, employment under the Government is amatter of status and not of contract even though itmay be said to have started, initially, by a contractin the sense that the offer of appointment is acceptedby the employee.12. ... It goes without saying that in manyemployments, whether of private limited companies orpublic companies, contracts of employment are executedcontaining a term for termination of employment bynotice. Such cases of contractual employment aredifferent from those of Government employees whoseemployment is a matter of status and not of ordinarycontract. The conditions of service of a Governmentservant are regulated by statute or statutory rulesmade under Article 309 of the Constitution."6.These two said judgments were referred to by the Supremecourt in a subsequent judgment in Union Public Service CommissionVs. Girish Jaintilal Vaghela and others reported in 2006 2 SCC482. In paragraph 19 , it has been observed as follows:"19. It, therefore, follows that employment underthe Government is a matter of status and not acontract even though the acquisition of such a statusmay be preceded by a contract, namely, an offer ofappointment is accepted by the employee. The rightsand obligations are not determined by the contract ofthe two parties but by statutory rules which are https://hcservices.ecourts.gov.in/hcservices/ framed by the Government in exercise of powerconferred by Article 309 of the Constitution and theservice rules can be unilaterally altered by therule-making authority, namely, the Government."7.In the present case, admittedly there was a policy by theState to regularize the teacher on contract basis and thepetitioner but for his termination would have been considered forgranting such benefit. In the present case, as admitted in thereply affidavit, the termination is for a misconduct and thepetitioner was not heard before the impugned order came to bepassed. Though the so-called contract clause was invoked inpassing the impugned order of termination, the contents of thereply affidavit, clearly discloses that it was done for thealleged misconduct and for which, no enquiry was held. 8.Therefore, in the light of the above, the impugned orderdeserves to be set aside. Accordingly, the writ petition standsallowed. However, there will be no order as to costs. But, it isopen to the respondents to initiate fresh action if necessaryafter complying with the principles of natural justice. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarvvkTo1.The Secretary to Government, State of Tamil Nadu Department of Tamil Development and Culture, Fort St. George, Madras-9.2.The Commissioner (in charge), Art and Culture Department, Madras-600 028.3.The Principal, Government College of Architecture and Sculpture, Mamallapuram, Chengai Anna District., Pin.:603 104.RSN(CO)km/11.6.W.P.NO.29926 OF 2006