Balwinder Kaur and Another vs State of Punjab and Others

V.K. Bali, J.—Balwinder Kaur, S.S. Mistress in J.S.F.H Khalsa High School, Nawanshedar and Bhupinderpal Singh Clerk employed in the same School, through present petition filed by them under Article 226 of the Constitution of India, seek issuance of writ in the nature of certiorari so as to quash order dated February 16, 1999, Annexure P-13 vide which approval granted to their appointment has been cancelled.

Brief facts of the case giving rise to present petition reveal that two vacancies of S.S. Masters/Mistresses became available in the respondent school on March 18, 1994 and applications were invited for the said two posts vide advertisement published in the Tribune date 18.3.1984 and daily Ajit dated 15.3.1994. The Selection Sub-committee, after interview, recommended the names of Shri Parmodh Chander and Smt. Balwinder Kaur, petitioner No. 1, for appointment against the said posts of S.S. Masters/Mistresses on 1.4.1994. The said recommendations were approved in the meeting of the Managing Committee vide resolution No. 65. In view of the approval of petitioner No. 1 against the post of S.S. Mistress in the respondent School, she was issued appointment letter dated 12.4.1994 on regular basis. On 22.5.1995 the Circle Education Officer granted approval to the appointment of petitioner No. 1. Petitioner No. 1 was confirmed as S.S. Mistress on completion of one year probationary period successfully vide resolution No. 81 dated 7.6.1995. Similarly, post of Clerk was lying vacant in the respondent school and applications were invited for the same vide advertisement published in the Tribune dated 5.12.1993 and daily Ajit dated 3.12.1993. The Selection Committee recommended the name of petitioner No. 2 for the post of Clerk on 23.12.1993. The said recommendation was approved vide resolution No. 62 in the meeting of the Managing Committee held on 23.12.1993. In view of the approval of petitioner No. 2 for appointment to the post of Clerk, he was also issued appointment letter dated 23.12.1993. The Circle Education Officer, Jalandhar granted approval to the appointment of petitioner No. 2 as clerk vide letter dated 10.3.1995. Petitioner No. 2 was confirmed as Clerk on completion of one year probationary period successfully vide resolution No. 76 dated 24.3.1995. In March, 1994, however, a suit for mandatory injunction seeking direction to handover the charge of the post of Manager to one Shri Kewal Singh Bengal was filed. The said suit, however, came to be dismissed wherein it was held that Shri Raghbir Singh. Chhina, through whom the suit was filed, was without an authority and he was not authorised to file the suit and was, thus, not entitled to seek decree for mandatory injunction. A copy of the judgment of the Civil Court has been annexed as Annexure P-12. An appeal against the judgment aforesaid was carried before the District Judge which is stated to be pending. Despite the fact that appointment of petitioners as such was not challenged in the suit aforesaid, Circle Education Officer, Jalandhar, vide orders dated 16.2.1999 cancelled the approval granted to the appointment of the petitioners against permanent post of S.S. Mistress and Clerk without any show cause notice and without giving them an opportunity of hearing. It is the case of the petitioners that respondent No. 3 has issued the impugned orders on the directions of the Director, Public Instructions.

Pursuant to notice issued by this Court, respondents have entered defence and opposed the cause of the petitioners by filing written statement. All that has been urged before us during the course of arguments is based upon the averments made in the written statement to the effect that at the time of recruitment of the petitioners, a civil suit was pending in the Court of Additional Civil Judge, Nawanshehar between the two factions of the Managing Committee of the respondent school. The petitioners submitted an affidavit to thcdcpartment that they would be fully responsible for the grant given against these posts if there appointment is declared void by any Court. Shri Ajit Singh, the then Manager of the respondents School gave an undertaking on 24.12.1993 in the Court that "any appointment made by him and its confirmation from 24.12.1993 till the disposal of the suit shall be subject to its decision on merits." As such approval of the petitioners which was granted by respondent No. 3 vide memos dated 22.5.1995 and 18.3.1995 was with the condition that the decision of the Civil Court would be binding on them which was pending in Civil Court between two factions of Managing Committee of JSFH Khalsa High School, Nawanshehar at that time. Civil Suit No. 99 of 1994 was decided on 11.3.1998 by the Additional Civil Judge, Nawanshehar and in para 14 of the judgment, it was held that the meeting dated 28.2.1993 was illegal in which Shri Ajit Singh was elected as Manager. It is then leaded that in view of the decision of the Civil Court, referred to above, appointments made during the tenure of Shri Ajit Singh also became invalid and for that precise reason approval to the appointments of petitioners was cancelled as per the terms and conditions laid down in their approval letters as well as undertakings given by Shri Ajit Singh, Manager in the Court.

When the matter came up for hearing on April 7, 1999, following order was passed:--

"Arguments at some length have been heard. However, this matter is adjourned to 21.4.1999 enabling the parties to apprise this Court as to whether the findings recorded in judgment, Annexure P-12 would be binding upon the petitioners who were not party to the said suit as also that ultimately the said suit was dismissed, may be, some findings were recorded against the defendants of that ease"

Mr. Gurminder Singh, learned DAG, Punjab, after having studied law on the issue, referred to above, in his all fairness and upright stand that he always takes in the Court, concedes that the findings recorded by the learned Additional Civil Judge, Nawanshehar in judgment, Annexure P-12, shall not be binding upon the petitioners. We are also of the view that inasmuch as petitioners were not even party-defendants in the said suit and in any case, ultimately the said suit came to be dismissed, against which no appeal could be competent on behalf of the defendants in the said suit, any finding recorded in the said suit would not operate as res-judicata even against the defendants of the said suit, least the petitioners, who were never party-defendants therein. We are, thus, of the clear view that approval earlier granted to the appointment of the petitioners on the post of S.S. Mistress and Clerk could not be annulled on the only ground pleaded in the written statement and which has been referred to above.

In view of What has been said above, we allow this petition and quash orders, Annexure P-13, dated 16.2.1999. In case the respondents are still of the view that petitioners could not be approved for appointment to the respective posts, as referred to above, for lack of some qualifications or otherwise their entitlement under the rules, they may issue notice to the petitioners on that count and pass appropriate orders in accordance with law after hearing them. No orders as to costs.