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Judgment
D.V. Sehgal, J.—This judgment will dispose of civil writ petition Nos. 3628 of 1986 and 4288 of 1985, as common questions of law and fact are involved in them.
The facts giving rise to civil writ petition No. 3628 of 1986 are that Respondent No. 3 was appointed as a Clerk with the Petitioner with effect from 26.5.1983. At that time the management of the Petitioner-school was in the hands of the Director of Public Instructions (Schools), Chandigarh Administration, who bad been appointed Receiver of the school in the proceedings initiated u/s 145, Criminal Procedure Code, under orders of the Sub Divisional Magistrate, Chandigarh. These proceedings were ultimately dropped on 30.4.1985 and the management of the school was given back to its Managing Committee with effect from 1.5.1985. The appointment of Respondent No. 3 was on temporary basis was to last uptill the expiry of the tenure of the Receiver, which is evidenced by the order dated 16/18-5-1985, (Annexure P 1). However, the appointment of Respondent No. 3 was extended for 89 days from 1.5.1985 vide letter dated 28.5.1985 (Annexure P 2) Similar extensions were granted upto 31.5.1986 and vide order dated 31.3.1986, the District Education Officer, while granting the last approval of extension in the temporary service of Respondent No. 3, intimated that decision regarding regularisation of the services of Respondent No. 3 should be taken by 31.5.1986, as no more approval will be granted on purely temporary basis. The matter was taken up by the Managing Committee of the Petitioner-school in its meeting held on 30.5.1986 It was decided to terminate the services of Respondent No. 3 and to consider him afresh for reappointment after the opeuing of the school after summer vacations. An order dated 31.5.1986 (Annexure P. 4) terminating the services of Respondent No. 3 was duly issued to him. Respondent No. 3 invoking the provisions of Sub-section (4) of Section 3 of the Punjab Aided Schools (Security of Service) Act, 1969, as applicable to the Union Territory of Chandigarh (for short ''the Act''), made an application to the Deputy Commissioner, Chandigarh-Respondent No. 2, complaining that he had been removed from service without complying with the provisions of Sub-section (2) of Section 3 of the Act and without affording him reasonable opportunity of being heard as contemplated therein, Respondent No. 2 on hearing the counsel for Respondent No. 3 passed the order dated 5.6.1986 (Annexure P. 5), whereby he stayed the operation of the order (Annexure P. 4) and issued notice of the application to the Petitioner for 26.6.1986. The Petitioner has approached this Court through the present writ petition for quashing the impugned order (Annexure P. 5).
The petition has been opposed by Respondent No. 3 and written statement on his behalf has been filed. Respondent No. 3 has placed on record an office order dated 26-3-1983 (Annexure R3/1), and has contended that his initial appointment was on probation for a period of one year and that on completion of the probationary period, he was automatically confirmed on the post of Clerk with the Petitioner. Therefore, his services could not be terminated by order (Annexure P. 4). He could be removed from service only by taking recourse to the provisions of Sub-section (1) of Section 3 of the Act and since this was not done, he approached Respondent No. 2 by making an application under Sub-section (4) of Section 3, ibid, and that the order passed by Respondent No. 2 staying the operation of order (Annexure P. 4) is valid. Similar stand has been taken by Respondent No. 1. It has further been contended on his behalf that even if the Petitioner maintain that Respondent No. 3 was a temporary hand, it can agitate the matter before Respondent No. 2, who is required to lift veil of the order of simple termination to find out whether it is removal/dismissal from service or not.
The facts giving rise to civil writ petition No. 4288 of 1985 are that Respondent No. 3 was appointed as Chowkidar on 8-10-1983, on purely temporary basis for 89 days or till the tenure of the Receiver lasted. After the term of the Receiver ceased and the Managing Committee took over on 1-5-1985, Respondent No. 3 was in service with a further extension of 89 days, which expired on 27-7-1985 (Annexure P. 2). Consequently, vide order of the same date (Annexure P. 2), his services were terminated. Respondent No. 3 made an application to the Deputy Commissioner-Respondent No. 2, under Sub-section (4) of Section 3 of the Act, who passed order dated 20-8-1985 (Annexure P. 4) staying operation of the order (Annexure P. 2). The Petitioner has approached this Court for quashing the order (Annexure P4) passed by Respondent No. 2.
The petition has been opposed by Respondent Nos. 1 and 3, who have filed their separate written statements. Respondent No. 3 has contended that he has been in continuous service of the Petitioner-school since 8-10-1983 without any break upto 27-7-1985. The order (Annexure P2) tantamounts to his removal from service as it is the result of biased and vindictive attitude of the Managing Committee of the Petitioner since he has not been afforded reasonable opportunity as contemplated by Sub-section (I) of Section 3 of the Act. He approached Respondent No. 2 by making an application before him u/s 3(4) of the Act, ibid. It is contended that the impugned order (Annexure P. 2) is valid. Respondent No 1 has also defended the order (Annexure P. 4) on grounds which shall be noticed hereafter.
A common ground that has been taken in both the writ petitions by the Petitioner is that the Petitioner-school has been established by Sri Guru Singh Sabha Gurdwara Sector 19-D, Chandigarh, and is a society registered under the Societies Registration Act 1860. Under the bye laws of Sri Guru Singh Sabha, a Managing Committee duly constituted is administering the Petitioner-school. It is elected after every two years, out of the members of the Sabha, who are Keshadari Sikhs and have absolute faith in ten Sikh Guru and Guru Granth Sahib. Sikhs are a minority in India as also in the Union Territory of Chandigarh. No doubt the Petitioner is in receipt of grant-in-aid to the extent of 95 per cent of its expenditure on salary of its teaching staff from the Union Territory Administration of Chandigarh, but this grant does not in any manner take away the minority character of the Petitioner school. The Petitioner being an educational institution, established and administered by religious minority is, therefore, protected by Article 30(1) of the Constitution. Respondent No 2, therefore, could not interfere in its administration and suspend operation of the order of termination of services of its employees. It is further submitted that the provisions of Sub-section (4) of Section 3 of the Act, are inapplicable to the Petitioner as the Deputy Commissioner-Respondent No. 2, is an out-side agency and cannot interfere with the administration of the Petitioner.
This submission of the Petitioner is countered by the Respondents. They have contended that the very fact that the Petitioner is receiving grant-in-aid to the extent of 95 per cent of the salary of its teaching staff renders its administration so far as the service conditions of its employees are concerned, to be regulated by the provisions of the Act. It is further submitted that both in this Court as also in the Supreme Court, in the case of some other employee earlier, the Petitioner admitted that the provisions of the Act are applicable to it. It, therefore, is estopped from now contending that it is a minority educational institution and is not governed by some of the provisions of the Act.
I have heard the learned Counsel for the parties on this point at some length. The assertion of the Petitioner that it has been established and is being administered by religious minority in the Union Territory of Chandigarh, has not been disputed by the Respondents. Sikhs are a religious minority in the Union Territory of Chandigarh and since the Act in its operation is applicable to the Union Territory of Chandigarh, the Petitioner-school is an educational institution established and administered by a religious minority and is, therefore, entitled to the protection of Article 30(1) of the Constitution.
It would be apt to reproduce here, the provisions of Section 3 of the Act, which are to the following effect:-
Procedure of punishing employees of aided schools.-(1) No employee shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges and where it is proposed, after such inquiry, to impose on him any such penalty, untill he has been given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such inquiry.
(2) No order of dismissal or removal or reduction in rank of an employee shall take effect unless it has been confirmed by the Deputy Commissioner who may refuse to do so, if in his opinion, the provisions of Sub-section (1) have been complied with.
(3) Nothing in Sub-section (1) or Sub-section (2) shall apply to an employee who is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge.
(4) An employee against whom an order of the nature specified in Sub-section (1) is passed without complying with the provisions of Sub-section (1) or Sub-section (2) may, within a period of thirty days of the date of communication of the order make an application to the Deputy Commissioner challenging such an order on the ground that he is an employee to whom the provisions of Sub-section (1) and Sub-section (2) apply and the Deputy Commissioner may, after giving the parties an opportunity of being heard and after making such further inquiry as he may think fit make an order refusing the application or setting aside the impugned order.
(5) Any person aggrieved by any decision or order made by the Deputy Commissioner under this section may, within a period of thirty days from the date of communication to such person of the decision or order, prefer an appeal to the Commissioner who may, after giving the parties an opportunity of being heard, and after making such further inquiry, if any, modifying or reversing the decision or order appealed against.
(6) The order passed by the Commissioner under Sub-section (5) and subject only to such an order the order passed by the Deputy Commissioner under Sub-section (2) or Sub-section (4) shall be final and binding on the parties.
Almost an analogous provision of Section 4 of the Punjab Affiliated Colleges (Security of Service) Act, 1974, have been examined by me in civil writ petition No. 48 of 1986 decided today. Following the law laid down by the final court in Frank Anthony Public School Employees'' Association Vs. Union of India (UOI) and Others, and a Division Bench judgment of this Court in Managing Committee of the Kanya Maha Vidyalaya, Jullundhar v. The State of Punjab and Ors. (1987) 91 P. L. R. 47. I have held that an order of dismissal or removal from service passed by the management of an educational institution established and administered by a linguistic or religious minority cannot be made subject to the approval or confirmation of an Officer or the State Government. Consistent with the view so taken by me, I hold that the provisions of Sub-sections-(2)(4)(5) and (6) are not applicable to a minority institution like the Petitioner.
It has however, been contended on behalf of the Respondents that in Manmohan Singh Jaitla Vs. Commissioner, Union Territory of Chandigarh and Others, , it has been held that the Petitioner is governed by the provisions of the Act and since it is an aided school receiving grant-in aid from the Government to the tune of 95 percent of the salary of its teachers, it has to abide by the provisions of the Act and to regulate the services of its employees accordingly. It is necessary to note here the observations of the Supreme Court made therein: -
It is not in dispute that the school is governed by the 1969 Act. It is an aided school receiving aid from the State Government to the tune of 95% of its expences. Section 3 of the 1969 Act provides that no employee shall be dismissed or removed or reduced in rank except after an inquiry to be held in the manner prescribed therein. Sub-section (2) provides that no order of dismissal or removal or reduction in rant of an employee shall take effect unless it has been confirmed by the Deputy Commissioner who may refuse to do so, if in his opinion, the provisions of Sub-section (1) have not been complied with. Sub-section (5) permits an aggrieved person to prefer an appeal against any decision or order of the Deputy Commissioner under the section within a period of thirty days to Commissioner. Sub-sec (6) provides that the order of the Commissioner shall be final and binding between the parties .
On a perusal of the judgment, I find that the question whether or not the Petitioner is an educational institution, established and administered by a [religious minority was neither raised before it nor considered by the final court therein. It has been pointed out on behalf of the Respondents that a specific ground has been taken by the Petitioner in its pleadings before the Supreme Court that it is a minority institution and is protected by Article 30 (1) of the Constitution. It has been further pointed out that the Petitioner had sought a review of the judgment in Manmohan Singh Jaital''s case (supra) and in the review petition again it was contended by it that it is protected by Article 30 (1) of the Constitution. That may or may not be so. It is however, evident that this question was neither examined nor adjudicated upon and decided by the final Court. The learned Counsel for the Respondents has further invited my intention to an order dated May 13, 1983, of a Divison Bench of this Court in Mir Singh Drawing Teacher v. Deputy Commissioner, Union Territory, Chandigarh C. W. P. No. 2001 of 1983. C. W P. No. 200 of 1983, where a teacher whose services had been dispensed with by the Petitioner, had approached this Court with a prayer for quashing the order of his removal. The writ petition was dismissed in limine vide order dated May 13, 1983 (Annexure R. 3), with the following observations:-
This writ petition is primarily directed against the order, dated 19,4.1983, of the Deputy Commissioner, Chandigarh, passed under the Punjab Aided Schools (Security of Service) Act, 1969. Preliminary objection on behalf of the Respondents is strenuously pressed that against the aforesaid order, an appeal lies to the Home Secretary u/s 3(5) of the aforesaid Act. This legal position could not be denied on behalf of the Petitioner. Herein, we see no reason whatsoever why the Petitioner having an adequate statutory remedy should be allowed to rush to the High Court. Consequently, we relegate him first to his remedy by way of appeal and dismiss this writ petition in limine.
It is submitted on behalf of the Respondents that the Petitioner has been taking shelter of the provisions of the Act whereever it suited it and has now come forward to contend that the impugned provisions of the Act, are not applicable to it. This contention in my view also has no force for the reasons that no amount of consent or acquiscence can make provisions of statute applicable to a subject, when the application of it qua the subject is ultra vires the fundamental right enshrined in Part-III of the Constitution.
It has then been submitted by the Respondents that since the Petitioner is receiving 95 per cent grant-in-aid from the Government of the Union Territory of Chandigarh, to meet with the salary of its teaching staff, it is a ''State'' as contemplated by Article 12 of the Constitution. Therefore, it cannot seek protection of Article 30(1). I have already considered a similar submission in civil writ petition No. 48 of 1986 and have repelled the same. Educational institutions established and administered by linguistic or religious minority which are protected by Article 30(1) of the Constitution, cannot be made to surrender the fundamental right of this protection on the mere ground that they receive grant-in-aid from the Government. I, therefore, reject this submission.
The learned Counsel for the Respondents has then submitted that the orders passed by the Petitioner terminating the services of Respondent No. 3 in both the petitions are in fact orders of removal from service. Since even according to the view taken by me in S. M. D. R. S. D. College Society Pathankot and Ors. v. Director of Public Instructions (Colleges) Punjab C. W. P. No. 48 of 1986 (C. W. P. No. 48 of 1986), an employee cannot be dismissed or removed by a minority institution except after an inquiry in which he has been informed of the charges against him and giving reasonable opportunity of being heard and as such the provisions of Sub-section (1) of Section 3 of the Act, ibid are applicable to it, the order of removal passed by it without complying with the requirements of the aforesaid is illegal. Therefore, the Deputy Commissioner would go into the question whether it is an order of simple termination or an order by way of removal or dismissal and whether or not the provisions of Sub-section (1) of Section 3, were required to be complied with. There is fallacy in this argument. The Deputy Commissioner qua the Petitioner shall have no jurisdiction to entertain an application or to adjudicate whether or not an order of termination of an employee passed by it is in violation of Section 3(1) of the Act. Respondent No. 3 may avail of appropriate remedy available under law but no such power can be exercised by the Deputy Commissioner-Respondent No. 2.
The learned Counsel for Respondent No. 3 in civil writ petition No. 3628 of 1986, submitted that he was appointed on probation for a period of one year intially as is clear from the order (Annexure R.1) This plea has been countered by the Petitioner and it has been submitted that his appointment was purely on temporary basis. The post of Clerk was advertised for regular appointment and Respondent No. 3 working on temporary basis applied for regular appointment but no selection was made by the Petitioner. He further submitted that repeated extensions of short duration in temporary appointment of Respondent No. 3 were accepted by him from time to time as mentioned in the writ petition. He, therefore, cannot turn round and contend that he is a confirmed employee. He further submitted that expiry of the period of probation does not amount to automatic confirmation of an employee. In support of these submissions, he placed reliance on Shri Kedar Nath Bahl v. The Stale of Punjab 1972 S. L. R. 320; The Patel Memorial Management Society (Registered) Rajpura v. The Director of Public Instruction 1980 (2) S. L. R. 569 and Kartar Singh, Lecturer v. Director, Public Instruction, Punjab, Chandigarh 1980 (2) S. L. R. 843. It is, however, not for me while deciding the present writ petition to go into the question whether or not the order of termination of the Petitioner is by way way of punishment as the said order has not been challenged before me by Respondent No. 3 by filing a counter writ petition. He may, if he so choose seek an appropriate remedy under law.
In the context of the above discussion, I allow both the writ petitions without any order as to costs and hold that the orders impugned therein passed by Respondent No 2, are without jurisdiction for the reasons that the provisions of Sub-section (4) of Section 3 of the Act, ibid, are not applicable to the Petitioner which is an educational institution established by a religious minority in the Union Territory of Chandigarh.