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Judgment
Umesh Chandra Dhyani, J.—The petitioners, by way of present writ petition, under Article 226 of the Constitution of India, seek to issue a writ, order or direction in the nature of certiorari for quashing the order dated 06.09.2013 (Annexure-1 to the writ petition) as well as the consequential order dated 26.09.2013 (Annexure-2 to the writ petition), whereby respondent No. 4 instructed the Principal of the petitioner Institute to cancel the order of termination of services of respondents Nos. 7, 8, 9 and 10, who were terminated vide order dated 31.12.2012, and also to accept their joining. A civil misc. stay application No. 11796 of 2013 is also filed with the prayer to stay the effect and operation of the instructions issued vide order dated 06.09.2013, further followed by letter dated 26.09.2013, during the pendency of the present writ petition.
Separate agreements were entered into between Petitioner No. 2, Principal of National Inter College, Dhanori (hereinafter referred to as the ''petitioner Institute'') on the one hand and Respondents Nos. 7, 8, 9 and 10, on the other. Respondent Nos. 7, 8, 9 and 10 were engaged (as PTA teachers) in the petitioner Institute. It was agreed to between them that an honorarium of Rs. 7000/- per month would be paid to respondent Nos. 7, 8, 9 and 10. Certain other conditions were also stipulated in the said agreements, cancellation of engagement without notice being one of them. The petitioner Institute also took upon itself the power to remove respondent Nos. 7, 8, 9 and 10. Such agreements were executed on 20.12.2011. Respondent Nos. 7, 8, 9 and 10, along with the Principal of the petitioner Institute were signatories to me agreements, which were countersigned by the Manager of the petitioner Institute.
Out of 05 such PTA teachers, 04 are the respondents before this Court. Smt. Sayeeda Bano w/o Zunaid Ali (d/o Ata Hussain, Principal of the petitioner Institute) is not the respondent before this Court (although her engagement too was dispensed with by the Principal of the petitioner Institute).
The engagement of respondent Nos. 7, 8, 9 and 10 was dispensed with, vide letter dated 31.12.2012 of the petitioner Institute, which letter was addressed to Respondent No. 5. It was indicated therein that since Respondent Nos. 7, 8, 9 and 10 did not act according to the agreements, were careless in their teaching, did not perform their work according to the standards prescribed in the agreement, involved themselves in the financial irregularities, therefore, they were relieved as per the directions of the Chairman, PTA/Manager.
Respondent Nos. 7, 8, 9 and 10 thereafter moved a representation to Regional Additional Director (Secondary Education), Garhwal Region, Pauri for providing them honorarium for the duration they worked in the petitioner Institute as PTA teachers and for appointment of Administrator (Authorized Controller). Respondent No. 4 fixed 22.08.2013 for hearing on the representation of respondent Nos. 7, 8, 9 and 10. Notices were issued to the petitioners, as also to respondent Nos. 7, 8, 9 and 10, for appearing before respondent No. 4 on 22.08.2013. Respondent No. 4, vide order dated September 6, 2013 (copy Annexure-1 to the writ petition) allowed the representation of respondent Nos. 7, 8, 9 and 10 and set aside the order dated 31.12.2010, passed by the Principal of the petitioner Institute. Respondent Nos. 7, 8, 9 and 10 were directed to give their joining in the petitioner Institute. The order dated 06.09.2013 was re-inforced in the letter dated 26.09.2013 (copy Annexure-2 to the writ petition) sent by respondent No. 4 to respondent No. 5. The allegation of the petitioner Committee that they were not heard was denied. During the course of arguments, document was offered on behalf of Respondent Nos. 7, 9 and 10 to show that the petitioners appeared before respondent No. 4 on 23.08.2013. The said orders dated 06.09.2013 and 26.09.2013, passed by respondent No. 4, are under challenge before this Court and the petitioners seek stay of said orders (copies Annexure-1 and Annexure-2 to the writ petition).
Learned counsel for the petitioners contended, among other things, that the engagement of respondent Nos. 7, 8, 9 and 10 was not against the substantive vacancies. Theirs'' was a case of engagement and not appointment. They were not appointed in the petitioner Institute in the eyes of law. Agreements dated 20.12.2011 do not create any right in favour of Respondent Nos. 7, 8, 9 and 10. No period was prescribed in the agreements and the engagement of Respondent Nos. 7, 8, 9 and 10 could be dispensed with by the petitioners at any point of time without giving them notices. It is also contended that a writ petition was filed by Respondent Nos. 7, 8, 9 and 10 against the petitioners for payment of honoraria and arrears thereto, but no interim relief was granted to them.
Respondent Nos. 7, 9 and 10, on the other hand, submitted that order dated 31-12-2012 was passed by the petitioner Institute only when Respondent Nos. 7, 8, 9 and 10 filed a writ petition before this Court for directing the petitioners to pay their honoraria. Rules regarding reservation were not followed by the petitioners. Their names were recommended by the petitioners to the Government in response to the Government Order dated 13.12.2011. Respondent Nos. 7, 9 and 10, therefore, submitted that the orders passed by respondent No. 4 on 06.09.2013 and 26.09.2013 were perfectly in accordance with law. Learned counsel for the respondent State, too, echoed the same view as is being expressed on behalf of Respondent Nos. 7, 9 and 10.
Every holder of a public office by virtue of which he acts on behalf of the State or public body is ultimately accountable to the people in whom the sovereignty vests. This is equally true of all actions even in the field of contract. Every action must be informed by reason and it follows that an act uninformed by reason is arbitrary. In a system governed by rule of law, discretion must be confined within clearly defined limits. It means the decisions should be made by the application of known principles and such decisions should be predictable and the citizen should know where he is. Discretion means sound discretion guided by law. It must be governed by rule, not humour: it must not be arbitrary, vague and fanciful.
Non application of mind to individual cases before issuing a general order of disengagement is itself eloquent of the arbitrariness writ large on the face of the letter. It terminates all the engagements by an omnibus order, even though these engagements were all individual. A common reason applicable to all of them justifying their disengagement in one stroke is shown, which is difficult to accept. A common reason is shown in respect of (disengagement of) all the PTA teachers. It is difficult to accept that they all were involved in financial irregularities. What irregularities were committed by them, were neither explained, nor show-cause notices were given to them to explain their handicaps. They were engaged by different orders but their services were dispensed with by a common order, without giving them any inkling of what is going to happen to them. It is difficult for this Court to accept the plea of the petitioners that they could have terminated or dispensed with the services of respondent Nos. 7, 8, 9 and 10 without even assigning any reason. It is also difficult for this Court to accept the plea of learned counsel for the petitioners that the petitioners could have dispensed with the ''services'' of respondent Nos. 7, 8, 9 and 10 at any point of time under the cloak that no appointment letter was given to them, theirs is not a ''service'' and the contract can be terminated without assigning any opportunity of hearing to them. The action taken by the petitioners smacks of abuse of the power. Order directing dispensing with the services of respondent Nos. 7, 8, 9 and 10 should, therefore perish on the ground of arbitrariness, which is an available ground for judicial review in such a situation.
The Constitution does not envisage or permit unfairness or unreasonableness in any sphere of activity contrary to the professed ideals in the preamble. "In our opinion, it would be alien to the constitutional scheme to accept the argument of exclusion of Article 14 in contractual mattes....... This is more so when the modern trend is also to examine the unreasonableness of a term in such contracts where the bargaining power is unequal so that these are not negotiated contract but standard form contracts between the unequals," observed Hon''ble Mr. Justice J.S. Verma in Kumari Shrilekha Vidyarthi and Others Vs. State of U.P. and Others, ''For the said reasons there should in principle be no such thing as un-reviewable administrative discretion, which should be just as much a contradiction in terms as unfettered discretion...... It remains axiomatic that all discretion is capable of abuse and that legal limit to every power are to be found somewhere.'' (Wade''s Administrative Law).
It is an admitted fact that the petitioner Institute is a Government aided Institution. A plea is taken by the petitioner Institute that instructions issued by Respondent No. 4, contained in Annexure Nos. 1 and 2, were issued ex parte, against which the Management made a representation to the authority concerned. It is contended that the instructions were issued by the authority concerned without hearing the version of the Management, whereby it was directed to cancel the order of termination of services of private Respondent Nos. 7, 8, 9 and 10 and accept their joining. The said contention of learned counsel for the petitioners falls to the ground in the wake of letter No. 13823-30 dated 01.08.2013, issued on behalf of the Regional Addl. Director (Secondary Education), Garhwal Region, Pauri. The persons concerned, including the Management and Principal of the petitioner Institute, were informed to appear before Regional Addl. Director (Secondary Education) on 22.08.2013, at 11:00 a.m. Attendance-sheet dated 23.08.2013 indicates that the Principal and Manager of the petitioner Institute were present before Respondent No. 4 on the given date. Thus, it cannot be said that no opportunity of hearing was given to the petitioner Institute by respondent No. 4 before issuing instructions, which were contained in Annexure Nos. 1 and 2.
Learned counsel for the petitioners next contended that respondent Nos. 7, 8, 9 and 10 were inducted as PTA teachers by way of backdoor entry. It may be pointed out that even if they were inducted by way of backdoor entry, the fact remains that they were so appointed by the petitioner Institute, and none else. Even assuming that the petitioner Institute committed a mistake in inducting respondent Nos. 7, 8, 9 and 10 as PTA teachers and they wanted to rectify their own mistake by showing them ''exit door'', the fact remains that even the ''exit door'' could be shown to them by way of due process of law, and not otherwise. Before passing the order terminating the ''services'' of Respondent Nos. 7, 8, 9 and 10, no cause was shown to them in respect of allegations levelled against them. It has been pointed in one of the foregoing paragraphs of this judgment that the ''services'' of Respondent Nos. 7, 8, 9 and 10 were terminated by an omnibus order levelling allegations of financial irregularities committed by them. In addition to that, allegations were also levelled for not performing their duties as per the conditions contained in the agreement deed and also carelessness on their part in performance of their teaching work. The details of such allegations were not disclosed while issuing letter dated 31.12.2012.
Respondent Nos. 7, 8, 9 and 10 moved an application to the Respondent No. 4 for appointment of Administrator (Authorized Controller) and payment of their honoraria along with arrears. Respondent No. 4 took cognizance of the same and issued notice to the petitioner Institute for affording them an opportunity of hearing. 22.08.2013 was fixed for the same. Learned counsel for the petitioners contended that it was beyond the domain of Respondent Nos. 7, 8, 9 and 10 to have moved application for appointment of Administrator to the Respondent No. 4. This Court agrees with such contention of learned counsel for the petitioners that it did not behave well for Respondent Nos. 7, 8, 9 and 10 to have moved such a representation to Respondent No. 4. Respondent Nos. 7, 8, 9 and 10 were wrongly shown as suspended PTA teachers when letter dated 01.08.2013 was issued by Respondent No. 4. Be that as it may, the same appears to have prejudiced the mind of the petitioner Institute, which resulted into passing of arbitrary termination order dated 31.12.2012.
Although an arrangement was made for payment of honorarium to PTA teachers from the fund of the State, yet even if it be conceded for the sake of arguments that they were being paid from the resources of petitioner Institute, the fact remains that their services could not have been dispensed with on the whims, caprices and fancy of the Management. Even if respondent Nos. 7, 8, 9 and 10 had no legal and enforceable right to hold the posts on which they were engaged as PTA teachers, their services could not have been dispensed with in the manner they were dispensed with by the petitioner Institute. Prima facie, this Court finds no illegality in the instructions issued by respondent No. 4 on 06.09.2013 and 26.09.2013. This Court is, therefore, unable to stay the operation of such instructions issued by respondent No. 4. CLMA No. 11796 of 2013, accordingly, stands dismissed.