Parties Name v. State of Haryana & Ors.

Mr. R.S. Kundu, Addl. A.G., Haryana; Mr. Kamal Sharma, Advocate; JASBIR SINGH, J. (oral) JUDGMENT This judgment will dispose of five Letters Patent Appeals bearing Nos. 467, 468, 549, 1346 and 1347, all of 2010, impugning common judgment, passed by a learned Single Judge, on February 1, 2010. For facility of reference, facts are being taken from LPA No. 467 of 2010. So far as private respondents in LPAs No. 467 and 468 of 2010 are concerned, vide the impugned judgment, they were ordered to be LETTERS PARENT APPEAL NO. 467 OF 2010 -2- reinstated with continuity in service and seniority along with payment of 50% of the back wages. The State of Haryana has filed LPAs No. 1346 and 1347 of 2010 to assail the judgment on account of direction given in favour of the respondents, as mentioned above. In LPA No. 549 of 2010, appellants' request for re-instatement in service was declined and their writ petition was dismissed. It is apparent from the records that the appellant is a Society running six educational institutions. As per record, respondent No. 4 was appointed as S.S. Master on February 16, 1998. His service was terminated vide order dated September 9, 2000, by observing as under: “Whereas the strength of the students of the school at the time of his first appointment was 1365. However, with the passage of time, the strength of students has depleted year after year but the management somehow managed to keep him in employment inspite of severe financial crises and kept on paying the salary to him. Whereas the strength of the students has now further reduced to an all time low of only 857 as a result of which the work-load is being assigned to Shri Satish Kumar at all in the light of norms fixed by the competent authority, there cannot be any justification to keep him anymore in the employment of the school. Keeping him in employment without any work would therefore, obviously tantamount to burdening the state Government, management and students with extra financial liability to meet out the salary of the surplus staff. Hence, on the basis of facts enumerated above and LETTERS PARENT APPEAL NO. 467 OF 2010 -3- personal hearing granted to him in the staff meeting on

5.9.2000, I have come to the conclusion that there is no option left with the management other than to declare him surplus in the interest of the School, I, A.K. Yadav, IAS, Additional Deputy Commissioner – cum- Administrator, Tika Ram Education Society, Sonepat therefore, in exercise of the powers vested in me emanating from the Director Secondary Education memo No. 5/51-2000S-1(2) dated 14.6.2000 declare Sh. Satish Kumar aforementioned and his services surplus in the light of totality of facts as mentioned above. Accordingly, his services are hereby terminated with immediate effect in the interest of school being no more required. A Bank draft of Rs. 58,031/- toward outstanding salary for the duration from 1.5.2000 to

8.9.2000 and three months salary from 9.9.2000 onwards in lieu of requisite notice period is enclosed herewith.” Perusal of the extract from the order, reproduced above, indicates that service of respondent No. 4 was terminated on account of reduction in the strength of the students. In the order itself, it is mentioned that respondent No. 4 was working against a sanctioned post. Respondent No. 4 filed Civil Writ Petition No. 13116 of 2000 to impugn his termination. The said writ petition was allowed vide the impugned judgment by observing as under: “12. As regards the claim of the petitioner in Civil Writ Petition No. 13115 of 2000, the claim of the petitioner is that he had been appointed on 16.02.1998 to a sanctioned post. The LETTERS PARENT APPEAL NO. 467 OF 2010 -4- petitioner's contention is that he had been terminated from service by order of the Administrator dated 09.09.2000 on the ground that the strength of the school had dwindled. The contention of the petitioner is that if the strength of the school had fallen and then therefore it was not possible to retain the appointment of the petitioner, the administration ought to have only considered for a redeployment of the petitioner in some other aided institution where a vacancy existed. In my view, the termination of service of a teacher to a sanctioned post whose manner of appointment itself is not challenged, but if a decision to terminate is taken for loss of the strength of the school, the Administrator representing the school management ought to recommend to the Director only for redeployment of the petitioner in some other aided institution. The termination without undertaking such an exercise is unjust and I direct that the redeployment of the petitioner in some other institution or in the same institution if the present situation so makes possible the reappointment of the teacher. On such redeployment, which shall be undertaken within a period of 8 weeks from the date of receipt of copy of the order. The petitioner shall be entitled to continuity of service and seniority and would also be entitled to 50% of the salary and benefit which would have been paid to him but for the order of removal from service.” In the order, it is noted that before ordering termination of the petitioner, no attempt was made by the appellant to know as to whether any LETTERS PARENT APPEAL NO. 467 OF 2010 -5- other post is available to adjust him. Without making that exercise, termination was ordered. It is not in dispute that the appellant- Society is running six educational institutions. Nothing has been brought on record to show that at the relevant time, no post lying vacant with the appellant to adjust the petitioners. Rather it is apparent from para No. 13 of the judgment under challenge that during pendency of the writ petition, two Teachers, namely, K.K. Rathi and Bal Krishan had retired. No effort was made to adjust the petitioners against one of those posts. The learned Single Judge by noting those facts has observed as under: “13. As regards the claim of the petitioner in Civil Writ Petition No. 13116 of 2000, the petitioner had been appointed on a sanctioned post on 12.05.1998, but he was terminated from service on 09.9.2000 on the same grounds as mentioned for the petitioner in Civil Writ Petition No. 13115 of 2000. The petitioner points out that after his termination, two teachers K.K.Rathi and Balkrishan had since retired and the petitioner ought to have been readjusted to those posts and could not have been terminated from service without considering the scope for redeployment of the petitioner to a sanctioned post. The petitioner has also filed C.M. No. 12654 of 2004 referring to the above facts and to the fact that the representation had been made to the DEO, Sonepat on 15.07.2004, but there has been no response from the respondent. The District Education Officer has filed counter to the allegations raised, contending that the Selection Committee had recommended the names of Surinder Singh Dahiya and Vikram Singh for the posts that fell LETTERS PARENT APPEAL NO. 467 OF 2010 -6- vacant but the management had appointed the petitioners in Civil Writ Petition Nos. 13115 and 13116 of 2000 and as per the information available from the management of the School, the petitioner in Civil Writ Petition No. 13116 of 2000 was not even a candidate who appeared for the selection to the post when it was advertised and filled up. To a claim of the petitioner that he ought to have been readjusted when there fell vacancies, in my view, it would be not a defence to suggest that when the vacancies fell, fresh advertisement had been issued and that the petitioner had not applied for the fresh appointment. A person that was removed from service on the ground of his having become surplus ought to have been considered on a priority basis and if only he was unavailable for reappointment or when he was declining to accept such appointment, the management could have again gone for fresh advertisement and recruited fresh candidates. The petitioners' claim for consideration for redeployment is perfectly justified and the petitioners would be entitled to a consideration on the similar lines for redeployment as directed by me as regards the petitioner in Civil Writ Petition No. 13115 of 2000.” We are of the view that the finding given is perfectly justified. Not only as above, in Civil Writ Petition, filed by the petitioner, instances were given in para No. 15 re: adjustment of other employees against the posts by the Administrator. So far as appellant in LPA No. 549 of 2010 is concerned, LETTERS PARENT APPEAL NO. 467 OF 2010 -7- admittedly he was working against a non-sanctioned post. By noting that the institution is in a financial crisis and the entire burden would be on the Institute, which probably cannot bear the same, termination was upheld by observing as under: “Civil Writ Petition Nos. 13303 and 13340 of 2000 refer to dismissal of the respective petitioners on the ground that their appointments had been on non-sanctioned posts and their salaries had been paid only by the management. The dismissal of the petitioners are also principally on the ground of financial stringency and the posts liable to be regarded as surplus. The petitions would require to be dismissed for the same grounds as enumerated in CWP 13654 and 12876 of 2000 and accordingly dismissed.” State of Haryana has filed Letters Patent Appeal No. 1346 and 1347 of 2010 to assail the judgment giving directions to the Institute – appellant in this appeal. At the time of arguments, counsel for the State has failed to show any ground to interfere in the orders passed. It has been brought to our notice that this Institute is in financial crisis. Respondent No. 4 is out of service and during this period, he might have been doing something to earn his livelihood. He is a qualified teacher and it is not expected that he was sitting idle. He might be doing some job to the contrary, nothing has been shown at the time of arguments. Taking note of the above said facts, we reduce the component of back wages from 50% to 10% in both the cases, i.e., Letters Patent Appeals No. 467 & 468 2010. It is further clarified that directions given in LETTERS PARENT APPEAL NO. 467 OF 2010 -8- judgment under challenge to the Administrator shall be deemed to have been given to the appellant -Society. Letters patent appeals stand disposed of. ( JASBIR SINGH ) JUDGE (AUGUSTINE GEORGE MASIH) JUDGE November 17, 2010. DKC