of Punjab and Ors Vs. Dev Raj & Ors  Insc 968 (21 September 2007)
Arijit Pasayat & Lokeshwar Singh Panta
APPEAL NO. 4408 OF 2007 (Arising out of S.L.P. (C) NO.20376 OF 2005 Dr. ARIJIT
Challenge in this appeal is to the order passed by a Division Bench of the Punjab and Haryana High Court dismissing
the Letters Patent Appeal filed by the appellants.
background facts, in a nutshell, are as follows:
7.9.1980 a resolution was passed by the Janta High School, Rattewal, requesting the State
Government to take over the institution as it was under financial stress. On
28.6.1983 the Government, on principle, decided to take over the institution
subject to the conditions that a gift deed along with certificate of
qualification of the staff working in the school was to be supplied. Names of
the respondent did not appear in the list of the staff members. Respondents
were appointed on different dates as teachers or laboratory Assistants against
unaided posts between the period 29.6.1983 to 21.1.1984. State Government
passed an order on 22.1.1987 taking over the institution subject to the
condition that only those staff members who were working at the time of taking
over were to be continued. On 22.1.1987 school was taken over and the
stipulations regarding the norms to be adopted were worked out. As per clause
(3) of the agreement, the Government was not required to take under the control
all the members of the staff and the Government was authorized to take those
employees who fulfill the prescribed qualification for the posts. On 22.5.1987
a corrigendum was issued, essential portion of which reads as under:
the order No.6/5-83-SE(I) dated 22.01.1987, the following corrigendum is hereby
made in the 6th and 7th lines of condition No.1 below para 1:- Original entry entry
to be substituted "at the time of taking over"
the time it was decided by the Govt. to take over this school in principle viz.
petition was filed by the respondents with a prayer to absorb them in
Government service w.e.f. 22.1.1987. A reply was filed clearly taking the stand
that the names of the respondents did not exist in the staff statement which
was prepared by the erstwhile management of the school at the time principle
decision was taken. Subsequently, their names were included. As per the
Government order, the school was taken over with staff existing on 28.6.1983.
Therefore, the Government was not bound to absorb the respondents. The learned
Single Judge of the High Court granted the stay and the stay order was
continued. Subsequently, by order dated 29.1.2003, the learned Single Judge it
was held that though the respondents were employed between 28.6.1983 to
26.1.1987, there was need for teachers and laboratory Assistants and,
therefore, they should be absorbed. The appellants filed Letters Patent Appeal
which, as noted above, was dismissed on the ground that the respondents were
continuing since 1987.
Learned counsel for the appellants submitted that merely because the
respondents were working on the basis of the stay order passed, that cannot be
a ground for granting relief, more particularly, in view of the agreement which
stipulated that the staff members working at the time of formal decision were
to be continued.
Learned counsel for the respondents submitted that gift deed was executed on
5.7.1984 and the decision was taken on 6.5.1984 which clearly stipulated that
the staff members working at the time of taking over were to be absorbed. There
is no dispute that there was a corrigendum issued that those staff with
prescribed qualification who were members of the staff when the policy decision
was taken were to be considered. Learned Single Judge of the High Court did not
consider this aspect. Surprisingly, the Division Bench of the High Court did
not consider the merits and on the basis that the respondents were working
since 1987 dismissed the Letters Patent Appeal. The approach is clearly
High Court ought to have examined terms of the arrangement between the school
management and the Government. If the stipulation was that the position as
stood on the date when the policy decision was taken was the determinative
factor, High Court ought to have examined that aspect in detail. It is a
settled position in law that while deciding the dispute finally the Court ought
not to be influenced by the fact that some interim arrangements had been made.
Such interim arrangements are always subject to the outcome of the main
dispute. Since the Division Bench has not decided the appeal on merits, we
think it appropriate to remit the matter to the High Court for fresh decision
appeal is allowed to the aforesaid extent. No costs.