Dismissed

Manoranjan Prasad Sinha v. Managing Committee Of Vivekanand Vidhya Mandir Through Its Secretary

Jharkhand HC1 Dec 2017A.C.(S.B.)/9/2016

Case brief

AI extract

What is this about?

The High Court dismissed the appeal challenging a Tribunal order that directed a private school to pay salary and allowances to a teacher who worked without an appointment letter. The Court held no service contract existed as no appointment letter was issued.

What did the court decide?

The appeal against the Tribunal's order directing payment of salary and allowances was dismissed.

Manoranjan Prasad Sinha Vs Managing… — Pension and Retirement Benefits | Jharkhand HC (2017)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI A.C.(S.B.) Case No. 9 of 2016 With

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I.A. No. 5002 of 2017

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Manoranjan Prasad Sinha

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Appellant

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Versus

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Managing Committee of Vivekanand Vidhya Mandir through its Secretary, P.S. Jagarnathpur, Ranchi

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… … Respondent

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CORAM : HON’BLE MR. JUSTICE H.C.MISHRA

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For the Appellant : : Mr. Manoranjan Pd. Sinha (In Person) For the Respondent : : M/s. Bhola Nath Ojha

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C.A.V. on 24.11.2017

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Pronounced on 01.12.2017

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H.C. Mishra, J. : Heard the appellant, Manoranjan Prasad Sinha, in person and the learned counsel for the respondent Managing Committee of Vivekanand Vidhya Mandir.

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The appellant had filed this appeal initially challenging the order dated 25.11.2016, passed by the Jharkhand Education Tribunal (hereinafter referred to as the 'Tribunal') in Review Case No. 02 of 2016 (JET) whereby, the said review petition, which was directed against the order dated 07.04.2016 passed by the Tribunal in Case No. 12 of 2010 (JET), has been dismissed by the Tribunal. The appellant initially had neither brought on record, nor challenged the order dated 07.04.2016 passed by the Tribunal in Case No. 12 of 2010 and accordingly, pursuant to the order dated 16.06.2017 passed by this Court, the Interlocutory Application has been filed bringing the said order on record and challenging the same as well.

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According to the case of the appellant, an advertisement for the post of P.G. Teachers in different subjects including Chemistry, was published in the year 1992 for recruitment in Vivekanand Vidhya Mandir, Ranchi, (herein after referred to as the 'School'). The appellant applied for the post of P.G. Teacher in Chemistry, and according to his claim, he was selected for the said post. The appellant was informed by the Principal of

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the school through his letter dated 10.08.1992 about his selection and asking him to appear before the School Managing Committee on 12.08.1992 for fixation of pay and class arrangements. It is the case of the appellant that he appeared before the Managing Committee on 12.08.1992 and on the direction of the Managing Committee of the school, he joined his duties on 17.08.1992 on regular basis. However, no appointment letter was issued to the appellant. According to the appellant's case, as in spite of several demands by him the appointment letter was not given to him, he stopped going to school from 28.08.1992. As such, the appellant worked in the school from 17.8.1992 to 27.8.1992 only, in the first span. 4. It is further case of the appellant that the Principal and Secretary and other members of the Managing Committee of the school approached the appellant consistently requesting him to rejoin the school on the basis of his previous selection and as such, pursuant to the negotiations and oral agreement between the School Managing Committee and the appellant, he rejoined the school on regular basis on 23.06.1996 on the same post and started working in the school. The appellant was given his salary for the months of September and October 1993 and for the period 17.08.1992 to 27.08.1992, on 07.12.1993 by an account payee cheque. He was paid his salary for the month of November and December 1993 and January, February 1994, and the payments were made with 15% D.A only, even though the applicable rate of D.A. was 71%. According to the appellant's case his appointment letter was made ready on 25.09.1993, but it was never served on him due to ill motive and dictatorial attitude of the respondent against the appellant and when the repeated demands were made by the appellant for his appointment letter and the payment of D.A. at the prescribed rate, he was called in the chamber of the Principal in the afternoon of 28.02.1994 and he was asked not to resume his duties from 01.03.1994, as his service was no longer required by the school.

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The appellant demanded termination letter, which was also not given to the appellant. The appellant demanded his arrears of salary and D.A. since November 1993 to February 1994 about which he was told that the same would be given to him. The appellant also claimed the salary for the notice period, P.F. amount and gratuity amount, which were refused to the appellant. The appellant accordingly, filed the petition before the Tribunal claiming that the oral termination of the appellant be set aside and the respondent be directed to reinstate him with back salary with D.A, P.F., and all benefits.

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It may be stated that the impugned order shows that before approaching the Tribunal, the appellant had approached the Labour Court for the redressal of his grievances, and order was also passed by the Labour Court on 20.01.1997 allowing his petition. The said order was challenged by the respondent in the High Court, challenging the jurisdiction of the Labour Court, and the order of the Labour Court was set aside by this Court by the Hon'ble Single Judge. The appellant preferred L.P.A. against the same which was also dismissed by this Court, giving liberty to the appellant to approach the Tribunal for redressal of his grievances. The appellant approached the Tribunal, but his petition was dismissed being barred by limitation. The appellant again approached this Court, and it appears from the impugned order that the petition of the appellant was allowed by this Court directing the Tribunal to decide all the issues on merits. Thereafter, the matter was adjudicated by the Tribunal by the order dated 07.04.2016 passed in Case No. 12 of 2010 (JET).

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While adjudicating the case on merits, the Tribunal has taken into consideration the pleadings of both the parties and has found that the appellant joined the school on 17.8.1992 without any appointment letter. According to the Tribunal, the Bye-laws of C.B.S.E., to which the school is affiliated, did not provide for any appointment of teacher on honorarium basis. Under the Bye-laws it was mandatory to issue appointment letter for the service contract in the form given in Annexure-3

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in the Bye-laws of the C.B.S.E. The Tribunal found that for the period from 17.8.1992 to 27.8.1992 and from 23.6.1993 till February 1994, during which the appellant had worked in the school, he was entitled to his salary in the regular pay scale of PG Teacher with D.A. at the prescribed rate. 8. The Tribunal has taken into consideration a letter written by the appellant addressed to the Secretary of the Managing Committee on 19.9.1993, wherein the appellant had stated that due to some personal reasons he could not join the school from 28.8.1992 without giving any information. The Tribunal found that after the appellant had stopped working in the school w.e.f. 28.8.1992, he had joined Delhi Public School, Ranchi, where he worked from 10.9.1992 to 16.6.1993. The appellant again joined the respondent school on 23.6.1993, which according to the appellant, he had joined pursuant to the negotiations and oral agreement between the School Managing Committee and the appellant, whereas according to the respondent's case, the Management never accepted that the appellant would be appointed on regular basis on previous selection basis. The respondent had only allowed the appellant to work on honorarium basis, since he pleaded that he was not able to earn his livelihood. Admittedly, the appellant had rejoined the school from 23.6.1993, after a lapse of more than ten months from his previous span of working, without following the procedure prescribed under the Bye-laws for filling up the vacancies, i.e., after inviting applications, interview etc. However, since it was found that the appellant had actually worked till February 1994, for this period also, the Tribunal passed the directions for making the payment of salary in the prescribed pay-scale and with admissible D.A. By the impugned order dated 07.04.2016 the Tribunal disposed of Case No. 12 of 2010 in the following terms:-

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"1) As the petitioner joined Vivekanand Vidya Mandir School on 17.08.1992 after completion of established procedure of appointment, he was entitled to an appointment letter in the pay scale of Rs.1640-60-2600 EB-75-2900 and has to be paid as such for the period he

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worked i.e. 17.08.1992 to 27.08.1992. The payment already made for the said period be deducted while working out the arrear payment, if any.

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2) Though the second time appointment/ joining of the petitioner in the Vivekanand Vidya Mandir is bad in law, but he has worked from 23.06.93 to 28.02.1994 with the respondent and as such has to be paid in the pay scale of Rs.1640-60-2600-EB-75-2900 plus admissible Dearness Allowance. While working out the arrear payment, if any, for the said period, the payment already made will be deducted.

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3) Dearness Allowance from July 1993 to February 1994 will be paid @ 71% in place of 15%, the difference of payment of Dearness Allowance be worked out and paid to the petitioner.

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4) As the second time appointment/joining of the petitioner is not in consonance with the established procedure of appointment and is bad in law, the petitioner is not entitled to any other relief except the payment of salary as stated above, for the period he worked.

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5) The respondent is directed to pay the arrear payments mentioned at Sl. No. 1), 2) & 3) above with 6% per annum interest from the due date.

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6) The respondent is also directed to pay per of Rs.5,000/- (five thousand) to the petitioner for not issuing the appointment letter to him when he joined on 17.08.1992 as mandated under the CBSE by-laws. 7) Parties will bear their cost."

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Aggrieved by the said order the appellant filed the Review Petition before the Tribunal, being Review Case No. 02 of 2016, which was also dismissed by the Tribunal by order dated 25.11.2016.

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The appellant in person, has submitted that the impugned orders passed by the Tribunal are absolutely illegal and cannot be sustained in the eyes of law. It is submitted by the appellant that in the year 1992 pursuant to the advertisement the appellant was duly selected for the post of P.G. Teacher and he was asked to join the post, but the appointment letter was not given to him. Even the prescribed pay-scale was not given to him and the D.A. that was paid was much below the prescribed rate. Since due payments were not being paid to the appellant and even the appointment letter was not being given to the

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appellant, the appellant left the job after working for ten days, but taking into consideration his ability and manner of teaching, he was again approached by the Principal and the Members of the Managing Committee and he joined the post on the assurance given by the Managing Committee, on 23.06.1993. It is also an admitted fact that at the time of his rejoining there was no advertisement and no process for selection was followed, and only on the basis of his previous selection, he was asked to join the school on 23.06.1993, and ultimately he was forced to leave the school w.e.f. 01.03.1994 orally. The appellant submitted that this action of the respondent is absolutely illegal, arbitrary and whimsical, and cannot be sustained in the eyes of law and in view of the fact that the appellant was duly selected, the appellant ought to have been given the appointment letter, appointing him on the regular basis. It is submitted by the appellant that accordingly, the Tribunal ought to have directed for reinstatement of the appellant on the post of P.G. Teacher in Chemistry in the School with all consequential benefits. During arguments the appellant has also tried to impress that during the visit of the C.B.S.E. team, the appellant was adjudged as the best teacher and it was only due to the efficient upkeep of the laboratory by this appellant, that the affiliation was granted to the school. According to the appellant, once the affiliation was granted to the school, he was removed from the school under the oral directions of the Principal. 11. The appellant has also submitted that while passing the impugned order, the Tribunal has gone beyond the pleadings of the parties which the Tribunal could not. In this connection the appellant has placed reliance upon the decision of the Apex Court in Bachhaj Nahar Vs. Nilima Mandal & Anr, reported in (2008) 17 SCC 491 . The appellant has also placed reliance upon the decisions of the Hon'ble Supreme Court in New Delhi Municipal Council Vs. State of Punjab and Ors., reported in (1997) 7 SCC 339 and in Central Inland Water Transport Corporation Ltd. & Anr. Vs. Brojo Nath & Anr. , reported in

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AIR 1986 SC 1571 , in support of his contention about the arbitrariness and illegality of the action of the respondent. 12. Learned counsel for the respondent has opposed the prayer and has submitted that the appellant was never a regular employee of the school in question, rather he was allowed to join the school for the first time only on the test basis for some period, but he worked only for ten days and he left the school on his own. Thereafter, he was allowed to work on honorarium basis on 23.6.1993 and he worked till 28.2.1994. No appointment letter was ever issued to the appellant and as such, no right was created in his favour, and accordingly, there is no illegality in the impugned order passed by the Tribunal giving the direction for payment of salary to the appellant in the required pay scale with D.A for the period actually he worked. Learned counsel submits that there is no illegality in the impugned order passed by the Tribunal. 13. Having heard the appellant in person and learned counsel for the respondent, and upon going through the record, I find that no appointment letter was ever issued in favour of the appellant. Indeed, the respondent is a school under the private managing committee, though affiliated to C.B.S.C. In my considered view, both the decisions cited by the appellant are not at all applicable to the case of the appellant, in as much as, the decision of the Apex Court in New Delhi Municipal Council's case (supra), relates to the levy of property tax by the Municipal Council, which has nothing to do with service conditions. The decision relied upon by the appellant in Central Inland Water Transport Corporation Ltd. case (supra) , relates to the terms of the service contract of the regularly appointed employees in a Government company. In my considered view, the respondent being a school under the private managing committee, and the appellant was never given any appointment letter, there was no enforceable service contract between the appellant and the respondent, and no right was created in favour of the appellant, even though the appellant had worked in the school only for ten days in the

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year 1992, i.e., from 17.08.1992 to 27.08.1992 and after working in another school for about nine months, he rejoined the respondent school again without any appointment letter on 23.06.1993. The appellant cannot claim any parity with the service conditions of a regularly appointed employees under the State, or in a Government company. The respondent is not the 'State' within the meaning of Art. 12 of the Constitution of India. 14. According to the appellant, he was allowed to join the school on 17.8.1992 after due selection, but according to the respondent, he was allowed to join the school only on test basis. Admittedly, the appellant had worked only for ten days and thereafter, he had left the school and had joined another school. Even when the appellant was allowed to re-join on 23.6.1993, no procedure for selection was undergone. Though the appellant claims that he was approached by the Principal and the Members of the Managing Committee to join the school and on their assurance, he had joined the school, but according to the respondent's claim, he was allowed to join the school on honorarium basis, since he pleaded that he was not able to earn his livelihood. I find that since no appointment letter was ever given to the appellant, there was no service contract between the parties, and no vested right was created in favour of the appellant for appointment on regular basis, in the respondent school running under the private Management Committee. Even if it is accepted that the appellant was selected for the post after due advertisements etc., in absence of any legally enforceable service contract between the parties, the plea of the appellant that he is entitled to be reinstated on the post with all consequential benefits, cannot be accepted. I find no illegality in the impugned order passed by the Tribunal, whereby the Tribunal has directed to make the payment with interest, of due salary to the appellant with applicable DA for the period the appellant had actually worked. In my considered view, the appellant was entitled only for that much, and no further.

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For the foregoing reasons, I do not find any illegality in the impugned order dated 7.4.2016 passed by the Tribunal in case No. 12 of 2010. Consequently, I do not find any illegality even in the order dated 25.11.2016 passed by the Tribunal in Review Case No. 2 of 2016, dismissing the said review case. 16. There is no merit in this appeal and the same is accordingly, dismissed. Consequently the I.A also stands dismissed. In the facts of this case, there shall however, be no order as to costs.

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(H.C. Mishra, J.)

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Jharkhand High Court, Ranchi. Dated the 1^st of December, 2017 D.S./N.A.F.R.

Manoranjan Prasad Sinha v. Managing Committee Of Vivekanand Vidhya Mandir Through Its Secretary

Case brief

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Manoranjan Prasad Sinha v. Managing Committee Of Vivekanand Vidhya Mandir Through Its Secretary

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