Smt. Rajni Sharma v. Union Of India And Others. .

1. Petitioner, who was a teacher in Army School (hereinafter referred to as the school) situate at Clement Town Dehradun, which has been established and is managed by the Army Welfare Education Society (hereinafter referred to as to society), has filed this writ petition challenging the termination of her service. Respondenls have filed counter - affidavit and the petitioner has filed rejoinder affidavit in reply thereto. I have heard learned counsel for parties.

2. Society has been registered under societies Registration Act lis aims and objects, as contained in the bye-laws, a copy of which has been filed as annexure-1 to the rejoinder-affidavit, so far as they arc relevant for the present case, are as under:

“(a) To create or augment educational facilities at Military Stations to meet the needs of children of Army personnel.

(b) To develop co-educational Army Schools and Army Public Schools in such a manner as to impart high standard of education to the children of Army personnel without distinction of their status.

(c) To prepare the students for All India Secondary School and All India Senior School Certificate (10 + 2 stage) examinations of the Central Board of Secondary Education with a common syllabi enabling the chfldrcn admitted in mid session.

(d) To promote development of academic excellence discipline, personal character, high sense of values and national integration among the childcn of Army personnel.”

Chapter -2 of the bye-laws provides for organisations and functions of the society, according lo which the society has been registered “for the purposes of establishing and running Arfrny schools at stations recommended by command.Board of Governors of the society consists of army officials which is clear from the bye-law 6 of Chapter-2, which is reproduced below:

“Board of Governors

6. Board of Governors is the Governing Body which would lay down policy guide lines for the mangement and functioning of the schools.

Chairman Adjutant General Vice-Chairman Director General. Discipline and Ceremonials Welfare. Members Major Generals Administration, HQ Eastern, Western and Northern Commands and Brigadiers A HQ Southern & Central Commands. Deputy Quartermaster General Additional Director General, Ceremonials and Welfare. Additional Director General Military Training (Army Education) Judge Advocate General. Deputy Director General (Welfare) Member Secretary Secretary. Army Welfare Education Society (AWES)

Bye-laws 13 and 14, which deal with financial management being relevant are also reproduced below:

Financial Management

13. Corpus to the Schools will be provided as decided by the Board of Governors from the Welfare Funds of the Adjutant General's Branch, Army Head Quarters. Recurring expenditure and other expenses of Schools will be managed by the Board of Adminstration and the Managing Committee of re spective Schools.

Audit.

14. Additional Director General. Ceremonials and Welfare and Deputy Director General (Welfarcat the Army Headquarters will jointly operate the bank accounts of the Society. The accounts of the Society will be audited annually by a firm of Chartered Accountants, the Accounting year being from 1 April to 31) Mar of the following year (Financial Year).

Chapter-3 of the Bye-laws provides for Schools Managing Commiitec and selection of the staff. Such a Managing Committee, according to bye-law 31 is consist of:

Patron As nominated by Headquarters Commands concerned. Chairman As nominated by the Patron or GOC Div or Area or Sub area Commander or Station Commander. Members GSO 1 or AAG or Staff Officer CWE or GEOC Military Hospital or Medical Officer Two Parents of students in the School. Two teachers of the School Two educationists. Secretary Principal

Army Educational Corps Officers could be nominated as cducatonists-members of the School Manging Committee in cascof those Army Schools which were located in remote/field areas. The same set of AEC Officers may be appointed on more than one Army. Schools also. However ins provision, will nol be applicable to Army Schools located in cities' towns.”

It is thus apparent thai the Society has been registered with an object to run the schools for providing educational facilities at Miltary Stations to meet the needs of the children of the army personnel. The over all control of the Society and the school run by it vests in the Board of Governors and the Executive Committee, consisting of army officials. The school managing committee also consists of army officials. Thus the administrative control of the Schools vests in the governmental authorities. The Society and its Schools are financed by welfare funds of the Adjutent General's Branch Army Headquarters. The management of the School is also entitled to collect the fee and the donations, but this does not change the character of the Society or the School run by it. Both administrative and financial control of the Army over trie Society and the School in almost total. The society satisfies the test laid down by the Supreme Court ih’Ajay Hasia v. Khalid Mujib Sehravardi (AIR 19 of SCV) and Ramana Dayaram Shelty v. Internationalir Port Authority ((1979) 3 SCC 489 : AIR 1979 SC 1628). fordcicrminiirg astii whether it is a ‘State’ within the meaning of Article 2 of the Constitution of India. Applying those tests Supreme Court in All India Sainik Schools Employees Association v. Defence Minisler-cum-Chairman (1989 Supp (1) SCC 205 : AIR 1989 SC 88), has declared Sainik School as the “State”. In the instant case also those tests are satisfied. The Society and the Schools run by it arc “State” within the meaning of Article 12 of the Constitution, and thus amenable to writ jurisdiction of this Court.

3. School in question is recognised by the Central Board of Secondary Education. The school while imparting education discharges a public duty. Society and the school which is run by it arc “autlioritieV” within the meaning of the terms under Article 226 of the Constitution. In this connection reference may be made to the decision of Supreme Court in Shri Anadi Mukta Sadguru v. V.R Rudani((1989) 2 SCC 691 : AIR 1989 SC 1607). For this reason also the Society and the School run by it arc amenable to writ it jurisdiction of this Court.

4. Petitioner was appointed as a teacher in the School on probation for a period of one year by the appointment letter dated 1-8-1987. a copy of which has been filed as annexure-1 to the writ petition para 3 of the appointment letter provided that services of the petitioner “will be coverned by the Rules and Regulations enforced at present and as modified from lime lo lime.” She was confirmed in 1989. By letter dated May 30. 1992 her services have been terminated w.e.f I st Juno. 1992. Reason for termination as contained in the Idler dated 30-5-1992 is the decision of Managing Committee of the School to abolish nursery and K.G sections of the School with effect from 1-6-1992. Learned counsel for the petitioner has challenged this order out wo grounds; viz (i) the petitioner is primary teacher and is not teacher of K.G and nursery sections of the School and as such, on ihe abolition of those classes, her services could not have been terminated; and (ii) she has been removed from service without giving reasonable oppoprtunity of being heard.

5. Letter of appointment dated I-8-1987 mentions that petitioner has been appointed as a teacher in the Army School. There is no mention in this letter about, the petitioner being primary or K.G/nursery teacher. However, in the writ petition, petitioner has categorically slated that she was appointed and joined as primary teacher in 1987 and has been teaching classes I and II. It is further staled that at the request of the management. as interim arrangement, she was also taking nursery classes from lime lo time. She has also filed a certi ficale issued by the Principal of the School, in which it has been mentioned that the petitioner is primary teacher in the school since 1987 upto the date of certificate (9-5-1990). In the counter affidavit filed on behalf of ihe respondents it has been denied thai the petitioner was appointed as primary teacher. It has, however, been admitted thai she was leacherof Classes I and II in 1989-90 and 1990-91. The certificate issued by the Principal of Ihe School, certifying ihe petitioner us primary leacher. has been disputed on the ground that it was issued by the Principal in personal capacity after his retirement. This statement is factually incorrect, because from perusal of the para 8 of the rejoinder affidavit it is apparant that Principal who has given the certificate, has reliired on September 30. 1990. where as the certificate was given on May 9.1990 when he was working as Principal of ihe School.

6. In paragraphs 13 and 19 of the counter affidavit ii has been stated that services of the teachers of K.G/nursery sections of ihe Scchool, are not governed by the Rules and Regulations of the Soceity and these Rules and Regulations apply only to the teachers who teach Classes I onwards. In the appointment letter of the petitioner it has specifically been slated that her conditions of service will be governed by the Rules and Regulations of the Society. As these Rules and Regulations are applicable to the teachers of Class I and above, the petitioner is liable to be treated as a primary teacher on the basis of averments made by the respondents themselves in thcircountef affidavit. The statement in para 13 of the ccounter affidavit, lo the effect lhat by inadvertancc in the appointment letter of the petitioner it was writlen that her service will be governed by Rules and Regulations of Society, is not worth replying. When relationship of master and servant is created by the contract terms and conditions govern Ihe service and they cannoi be discarded on mere plea that those conditions were inserted due lo inadvertancc, specially when the teacher has continued for several years. If that condition was inserted in the appointment letter due to inadvertancc, it should have been corrected immediately after the petitioner joined the service in the school. In any case it is not open to the respondents to say so now after ihe. termination of her service.

7. From the following undisputed facts it is established that the petitioner was a prirnary_teacher:

(a) Serviceof the primary teachers is governed by Rules and Regulations of the Society. Appointment Idler of ihe petitioner specifically provided that her services will be governed by Rules and Regulations of I he Society.

(b) Certificate issued by the Principal dated May 9.1990 certifying lhat the peitioncr is primary teacher in the School since August 1987.

(c) admission of the respondents in the counter affidavit lhat she was in the past teaching Classes I and II in the School.

8. On abolition of nursery/K.G sections of the School |hc services of the petitioner could not have been terminated, because she was priniary teacher.

9. That apart, the petitioner wjis entitled to opportunity of being heard before termination of her services. Para 116(b) of the Bye-laws of the Society lays down that before termination of services of the confirmed employees he or she shall be given show cause notice explaining the reason why his or her services' were proposed to be terminated. Giving of show cause notice proposing to terminate services contemplates opportunity of hearing to the concerned leacher. It is not disputed thai such an opportunity was not given. That apart in case respondents wanted to Page: 855(real the petitioner as teacher of K.G/nursery, it was incumbent on them to give her an opportunity to prove that she is not such a teacher. Such an opportunity was not given to her. Order of termination of service passed by the respondents is, therefore, illegal, unfair, unreasonable and arbitrary. It. as such, cannot be sustained.

10. The question still remains whether this ourt under Article 226 of the constitution can direct reinstatement of the petitioner. The Society which runs the school is ‘State’ within the meaning of Article 12 of the Constitution and is discharging public duties. It is, as such amenable to writ jurisdiction of this Court. However, the conditions of service of the petitioner are not governed by any statutory rules and Regulations. They are governed by Rules and Regulations of the Society, which are contained in its Bye-laws. These Bye-laws do not have statutory force. They, as such, arc not enforceable under Article 226 of Constitution of India. Here is a case where conditions of service are governed by non-statutory contract. Such a contract cannot be enforced under Article 226 of the Constitution.

11. In the case of Executive Committee of Vaish Degree College v. Lakshmi Narain, (1976) 2 SCC 58 : AIR 1976 SC 888, it was laid down that a contract of service cannot be enforced except in the case of Government servant, workman within the meaning of Industrial Disputes Act and employees whose services are governed by statutory Rules and Regulation. Same principle was reiterated by the Supreme Court, in J. Tcwari v. Jwaki Devi Vidya Mandir. 1981 UPLBEC 34 (SC) and Dipak Kumar Biswas v. Director of Public Instruction. 1987 UPLBEC 801. Petitioner's case docs not fall in any of the three categories where contract of service can be enforced. Under the circumstances although termination of her service was illegal, but it is not possible for this Court to direct her reinstatement, because specific performance of contract other service is not permissible under Article 226 of the Constitution.

12. Learned counsel for petitioner has, however, contended that this court can direct reinstatement of the services of petitioner. In support of his conten tions he has placed reliance of Shri Anadi Mukta Sadguru v. V.R Rundani, (1989) 2 SCC 691 : AIR 1989 SC 1607. All India Sainik School Employees Association v. De fence Ministar, 1989 Supp (1) SCC 205 : AIR 1989 SC 88 Shri Shankerji Singh v. School of Engineering & Rural Technology. 1994 (2) UPLBEC, 1003; Narendra Pal Gahlaut v. State of U.P 1994 (I) UPLBEC, 51 and Lalji Srivastava v. Allahabad District Co-operative Bank, 1994 (I) UPLBEC 297. In Shri Anadi Mukla Sadguru v. V.R Rundani (supra) there was no prayer forrc-instatement in service and enforcement of contract of service of the concerned employees. This is clear from para 5 of the judgment. What teachers were claiming was the terminal benefits to which they were entitled under law. This case is not authority for the proposition that contract of service can be enforced by Hrgh Court under Article 226 of the Constitution, even though such a contract is non-statutory contract and the case does not fall in any one of the three exceptions laid down by the Supreme Court in the case of Vaish Degree College (supra). The case of All India Suinik School Employees Association (supra) is also of no assistance to the petitioner. It is true that Sainik School Society was held to be ‘state’ and therefore. Article 14 of the Constitution was applicable to it. But this case also was not a case where relief for reinstatement was sought. There, what was claimed was implementation of the recommendation of the 4th Pay Commission and extension of all the benefits given to Kandriya Vidyalaya. The case of Shri Shanker ji Singh v. School of Engineering and Technology (supra) has been decided by a learned Single Judge of this court. Prima facie it appears from para 33 of the judgment of this case that relief of reinstatement in service was not sought for. That apart, operation of this judgment has been stayed by a Division Bench of this Court in Special Appeal No. 2()9 of 1994.

13. The case of Narendra Pal Gahlaut v. State U.P (supra) is altogether different. There, service of) workman was terminated in violation of Certified Standing Orders without giving opportunity of hearing. The Standing Orders have statutory fprce and termination of service in violation thereof was declared bad by learned Single Judge under Article 226 of the Constitution. That is not the position in the instant case. The case of Lalji Srivastava v. Allahabad Distt. Co-operative Bank (supra) is also of no help to the petitioner. There, the employee of the Co-operalive Society was retired in violation of statutory Regulation.

14. Although this Court cannot direct reinstatement of the petitioner in service, but she is entitled to damages for wrongful termination other service. For such a relief Civil Court is appropriate forum. But to relegate the petitioner to the Civil Court after lapse of two years, after termination of her service, for restarting the litigation afresh, will be asking for almost impossible, because such a litigation may not be economically possible for her. In view of the facts and circumstances of the case it will meet the ends of justice if she isawarded certain amount as damages by Page: 856this Court in this petition itself. Supreme Court in the case of Vaish Degree College (supra) awarded damages of Rs. 21,000/- to the concerned teacher. In the case of J. Tewari (supra) petitiioncr was awarded damages equivalent to pay of three yeafs hy the Supreme Court. In Dipak Kumar Biswas (supra) also damages equivalient to three years pay were awarded to the teacher. In view of the facts and circumstances of the case it will be appropriate to award a sum equivalent to two years' salary as damages to the petitioner. The Writ petition is accordingly disposed of. The impugned order of termination of service is declared as illegal, but relief of reinstatement is refused. Instead the respondents no. 2 to 4 are directed to pay to the petitioner, the sum equivalent to two years' salary, within three months from the date of presentation of certified copy of this order before them.

15. accordingly.