AI Structured Summary
Not yet generated for this judgment
Judgment
O R D E R
Hon’ble Mr. R.N. Singh, Member (J):
In the present Original Application, filed under Section 19 of the Administrative Tribunals Act, 1985 (hereinafter referred to as „the Act of 1985‟), the applicants, four in numbers, have challenged the orders dated 11.9.2020, 16.9.2020, 14.9.2020 and 17.9.2020 (Annexure A/1 Colly.) vide which their services have been terminated from the post of Guest Teacher.
The applicants have prayed for the following reliefs in the present OA:-
“i.Pass appropriate direction(s)/order(s) to quash and set aside Orders of Termination dated 11.09.2020, 16.09.2020, 14.09.2020 and 17.09.2029 issued by Respondent No.2-5.
ii.Pass appropriate order(s)/direction(s) to Respondents No.2-5 to pay salaries to the Applicants from the period between 08.05.2020 and 13.07.2020.
iii.Pass such other or further orders as this Hon‟ble Tribunal may deem fit and proper under the facts and circumstances of the present case and in the interest of justice.”
The details of the services of the applicants under the respondents are as under:-
| Applicants | Name of School | Date of Joining | Date of Joining in Current Session | Designation |
| Applicant No.1 | Chandra Shekhar Azad Sr. Secondary School (ID1925005) | 19.01.2019 | 16.07.2020 | TGT, Maths |
| Applicant No.2 | Government Boys Senior Secondary School, Begampur, MMT/STC (ID 1923013) | 17.11.2014 | 27.07.2020 | PGT, Chemistry |
| Applicant No.3 | Sarvodaya Co-ed Senior Secondary School, ZP Block, Pitampura (ID | 19.11.2014 | 28.07.2020 | TGT, Sanskrit |
| 1411007) | ||||
| Applicant No.4 | Government Boys Senior Secondary School, Tagore Garden (ID 1515139) | 26.02.2020 | 10.08.2020 | TGT, PET |
The orders/letters of engagement of the applicants under the respondents are dated 16.7.2020, 27.07.2020, 28.07.2020 and 10.08.2020 (Annexure A/6 Colly.). In the aforesaid orders/letters regarding engagement of the applicants, the conditions have been provided in paragraphs 1, 6 and 7 as under:-
“1.Your engagement is purely adhoc & stop gap arrangement till the post is filled up on regular basis. Your engagement shall not entitle you to any regular appointment.”
“6.During the course of engagement if it is found that your performance is not up to the mark by HOS concerned, your engagement will be dis-continued/cancelled.
7.Your service can be terminated if you remain absent without prior permission to HOS.”
While working as Guest Teacher, the applicant No.1 was issued a show cause notice on 4.9.2020 alleging therein that he remained absent without taking permission during the examination last year. Class answer books had been checked by some other subject teacher last year. His mobile phone always remained switched off and he failed to receive the new class attendance register. It is further provided therein that all these activities show his negligence of duty and so why disciplinary action should not be taken against him. The applicant was required to submit reply to it within three working days. In response to such show cause notice, the applicant has submitted his reply dated 6.9.2020 and in the said reply, he had denied the allegations and has asserted that allegations are baseless and he has performed his duties with true integrity and he will complete his duties in the future with true loyalty. He has also given detailed reply to all the allegations.
Similarly, a show cause notice was issued on 11.9.2020 to the applicant No.2 alleging therein that result of his class XB (Science Subject) in Board Examination of March 2020 was only 70% which was lower than the result of Directorate of Education. The applicant submitted his reply wherein he has explained that result of his class in Science subject in the Board Examination was 70% as against 71% of the overall of school‟s result. He has also mentioned in his reply about the result of the classes he taught during the academic years 2014-15 to 2019-20 to show that he has secured 100% result during 5 out of 8 academic years and also that during 2018-19, the result was 100%. He has also asserted therein in the reply that allegations in the show cause notice are absolutely baseless and frivolous.
A show cause notice was issued to applicant No.3 on 11.09.2020 alleging that only 27 students out of 43 attended his online classes. The applicant submitted his reply on 14.9.2020 and he explained therein that he was allotted class 8D on 27.07.2020 and at that time only 18 out of 43 students were attending online classes. However, due to my efforts as on 14.9.2020, the number of students increased to 29. He further asserted that four students were doing their work on hardcopies and six students were in the village(s). Only four students were not in his touch. He also submitted screenshot from the whatsApp communication in this regard. He also contended that he was awarded a certificate of achievement for securing 100% result of class X in the Sanskrit subject in the academic year 2018-19 (Annexure A/13).
A show cause notice was issued to the applicant No.4 on 11.9.2020 alleging therein that his work and conduct found to be unsatisfactory and not upto the mark. The applicant No.4 replied to the said show cause notice on 14.9.2020. He submitted in his reply dated 14.9.2020 that he undertook all the examination as well as administrative works with all sincerity and without any mistake. Moreover, no prior intimation was given to him regarding any incidence showing his misconduct as alleged in the said show cause notice. Moreover, he has denied the allegations and has stated that the same are vague, baseless and frivolous.
The services of the applicants were terminated vide the impugned orders and, therefore, they have approached this Tribunal by way of the present Original Application.
The applicants have filed Misc. Application, being MA No.1848/2020, under Rules 4(5)(A) and 4(5)(B) of the CAT (Procedure) Rules, 1987 praying therein to allow the applicants to join together in the Original Application.
Pursuant to notice from this Tribunal, the respondents have filed their reply and the applicants have filed their rejoinder.
During the pendency of the OA, Misc. Application No.1194/2021 has been filed on behalf of the applicants to bring on record certain documents on record. The learned counsel appearing for the applicants had sought liberty to place on record certain documents obtained by the applicants under Right to Information Act on 8.4.2021 and the same was allowed by this Tribunal vide Order dated 8.4.2021 with liberty to the learned counsel for the respondents to take instructions and/or to file documents, if any, relevant in the matter. The learned counsel for the respondents had also filed a compilation of judgments.
Heard learned counsels for the parties.
With the assistance of averments made in the OA, learned senior counsel appearing for the applicants submits that the applicants have been working as Guest Teacher under the respondents since 2010 and they are the members of the All India Guest Teacher Association (AIGTA) and have been actively espousing their cause for several years to persuade the Government to regularise the services of the Guest Teachers. In such view of the matter, the applicants have often been targeted by the respondents in spite of their unblemished service record. He also submits that the applicant No.1, who is the President of AIGTA was illegally removed from service in 2016. However, in view of the Order dated 16.2.2018 (Annexure A/2) of this Tribunal in TA No.14/2016, the applicant no.1 was reinstated in service. He further submits that on 20.3.2020, the Ministry of Labour and Employment, Govt. of India, issued a circular (Annexure A/3) to the Chief Secretaries advising all the employers of public and private establishments to extend their coordination by not terminating their employees, particularly casual and contractual workers from job or reduce their wages. He also submits that on 23.3.2020, Govt. of India issued an Office Memorandum (Annexure A/4) directing all the Ministries and Departments of Govt. of India to make the necessary payments to all the contractual, casual and outsourced staff during the lockdown period of COVID-19. Learned senior counsel argues that ignoring the policy decision of the Govt. of India vide the aforesaid circular dated 20.3.2020 and vide Office Memorandum dated 23.3.2020 and in spite of denial of the allegations by the applicants in their explanations given in their respective replies to the show cause notices, the respondents have passed the impugned orders, which are cryptic and without any reason at all and, therefore, the action of the respondents in passing the impugned orders is in violation of the principles of legitimate expectations of the applicants as well as the principles of natural justice as the issuance of show cause notices has been nothing but mere a formality and eye wash. He also argues that explanations of the applicants in their respective replies, clearly demolishes the allegations levelled against the applicants in the show cause notices issued to them. He further argues that the impugned orders are passed in clear cut defiance of the Order dated 16.2.2018 (Annexure A/2) of this Tribunal in TA No.14/2016 by which the applicant No.1 had approached this Tribunal earlier against the relieving order dated 18.4.2016. It is also argued that the respondents failed to follow the procedural guidelines, which require them to give Memos to the applicants regarding breaches of their engagement orders. The applicants were never given any Memos to improve their performances. He further adds that the applicants have not only been in need to continue under the respondents but were engaged after following the due process and their illegal termination has caused tremendous financial hardship and humiliation to them.
In the reply, Ms. Mazumdar, learned counsel appearing for the respondents, has taken preliminary objection qua the maintainability of the OA. She argues that the present OA is not maintainable as the MA 1848/2020 filed under Rules 4(5)(a) and 4(5)(b) of the CAT (Procedure) Rules, 1987 is not maintainable and also the OA being bad in view of misjoinder of parties. She argues that the applicants have distinct and independent cause of action which cannot be joined as the applicants do not have any common cause of action. She further clarifies that all the applicants are distinct and independent and have no nexus with each other. There are no common facts and common instance for seeking joining of parties. The applicants pertain to various zones of respondent no.1.
As the learned counsel for the respondents has raised the preliminary objection about maintainability of the Original Application filed jointly by all the four applicants and that the Misc. Application under Rule 4(5) of the Rules ibid is not maintainable, we have heard the arguments of learned counsels for the parties first on such preliminary objections itself.
Learned senior counsel for the applicants argues that all the applicants have admittedly been working as Guest Teacher under the respondents and are aggrieved by identical impugned orders vide which their services have been terminated and have prayed for identical relief(s) and, therefore, in view of the provisions of Rule 4(5)(a) of the Rules ibid, they may be permitted to join together in a single Original Application filed under Section 19 of the Act of 1985 ibid to agitate their grievances before this Tribunal. He further submits that as per the provisions of Order 1 Rule 1 of Civil Procedure Code 1908, the applicants may be permitted to join together in a single Original Application filed under Section 19 of the Act ibid. It is also argued that in view of the law laid down by the Hon‟ble Apex Court in Chief Conservator of Forests, Govt. of A.P. vs. Collector and others, reported in (2003) 3 SCC 472 as well as in Razia Begum vs. Sahebzadi Anwar Begum and others, reported in AIR 1958 SC 886, the single application filed jointly by the applicants under Section 19 of the Act of 1985 may be permitted. Learned senior counsel for the applicants also invites our attention to RTI Application (Annexure A/1 to MA 1194/2021) addressed to PIO, DDE West-B, Zone-17, Vikaspuri, Delhi and the reply dated 15.2.2021 (Annexure A/2 to MA 1194/2021) to the said RTI application and contends that Head of School can terminate the services of the Guest Teacher as per the rules and regulations of Directorate of Education, i.e., respondent No.1. In such circumstances, he submits that once the respondent nos.2 to 5 are required to regulate the services of the applicants in view of the policy decision, rules and regulations of the respondent No.1 and when such policy decision, rules and regulations have been violated by the respondents while passing the impugned orders in a similar and cryptic manner, the applicants have rightly filed the aforesaid OA jointly and have sought the permission to file as such under Rule 4(5)(a) of the Rules ibid.
Per contra, learned counsel for the respondents Ms. Esha Mazumdar, argues that the applicants have distinct and independent cause of action and the same cannot be joined as the applicants do not have any common cause of action. She has placed reliance upon the judgment of the Hon‟ble Supreme Court in the case of Om Prakash Srivastava vs. Union of India and others, reported in (2006) 6 SCC 207. She argues that each of the applicants are distinct and have no nexus with each other and, therefore, the application under Rule 4(5)(a) of the Rules ibid is not maintainable and, therefore, the aforesaid OA filed jointly also deserves to fail.
We have heard the learned counsel for the parties on the point of objection of the respondents on the maintainability of the OA in view of the same being filed jointly by all the applicants and their application under Rule 4(5) (a) of the Rules ibid. We have also perused the pleadings on record and have also gone through the judgments being referred to and relied upon by the learned counsels for the parties in this regard.
It is not in dispute that all the applicants have been working as Guest Teacher. The offers of appointment issued to them are identical. Conditions of their service are also identical. They have been issued show cause notices with the allegations therein for inefficiencies, insubordination and/or dereliction of duty and once they have submitted their responses to such show cause notices, they have been terminated vide impugned orders passed more or less in the same format. The applicants have also prayed for identical relief(s) as would be evident from the prayer(s) made in the OA. Rules 4(5)(a) and 4(5)(b) of the CAT (Procedure) Rules, 1987 read as under:-
“(4) Procedure for filing applications.-
----
(5)(a) Notwithstanding anything contained in sub-rule (1) to (3) the Tribunal may permit more than one person to join together and file a single application if it is satisfied, having regard to the cause and the nature of relief prayed for that they have a common interest in the matter.
(b)Such permission may also be granted to an Association representing the persons desirous of joining in a single application provided, however, that the application shall disclose the class/grade/categories or persons on whose behalf it has been filed [provided that at least one affected person joins such an application].”
In view of the provisions of the Rules ibid, as noted hereinabove, we are of the considered view that once the applicants are similarly placed and their reliefs are similar or identical, the application under Rule 4(5)(a) of the Rules ibid deserves to be allowed. Accordingly, the same is allowed. We may further note that as the provisions of CPC is not strictly applicable in this Tribunal, more so when the Tribunal is having its own Rule of Practice and Procedures, we are of the considered view that we are no more required to deal with the provisions of CPC, referred to by the learned senior counsel for the applicants and/or the judgments referred to and relied upon by the learned counsels for the parties.
We may further note that as noted hereinabove, the respondents have replied to an application filed by the applicants under Right to Information Act that the services of the applicants can be terminated by the respondent nos.2 to 5 as per the rules and regulations of the respondent No.1 and also the fact that the engagement of the applicants as Guest Teacher was done in view of the policy/guidelines framed and issued by the respondent No.1. We do not find that there is mis-joinder of respondents in the present case. Accordingly, the objection raised on behalf of the respondents in this regard also is rejected.
On merits of the claim of the applicants in the present OA, learned senior counsel for the applicants argues that the impugned orders have been passed ignoring the circular dated 20.3.2020 (Annexure A/3) and also the policy decision of the Ministry of Finance, Govt. of India dated 23.3.2020 (Annexure A/4) as well as without assigning any valid reasons therefor. He further argues that this Tribunal in Order/Judgment dated 16.3.2017 in TA 15/2016, titled Shoeb vs. Govt. of NCT of Delhi and others, has quashed the order of termination of the applicant therein and directed the respondents to re-engage the applicant as Guest Teacher immediately keeping in view the fact that no show cause notice was issued before passing the impugned order of termination. In the present case, though for the sake of formality and eyewash, the respondents have issued the show cause notices, however, denial of the applicants in their respective replies and their explanation to demolish the allegations levelled against them in such show cause notices have not been considered by the respondents at all, as the impugned orders are passed without assigning any reasons therefor and, hence, the impugned orders are passed in utter violation of principles of natural justice and accordingly, the same deserve to be set aside. The Order/Judgment of this Tribunal dated 16.3.2017 passed in the case of Shoeb (supra) has been further relied upon by this Tribunal in TA 14/2016 decided vide Order/Judgment dated 16.2.2018 (Annexure A/2) (a case filed by the applicant No.1 himself earlier). It is also argued that the applicants were not accorded reasonable time to respond to the show cause notice and a few of them were terminated on the same day when the reply was given by them and, therefore, the impugned orders have been passed without observing due process of law in issuing the show cause notice and eventually the orders of termination of the applicants are passed and thus the same has been done also in violation of principles of natural justice. It is further submitted by the learned senior counsel that the respondents have failed to follow the procedural guidelines which require them to give Memo(s) to the applicants regarding breaches of conditions, as provided in their orders of engagement. Learned senior counsel for the applicants has referred to and relied upon the following judgments:-
Madhukar Tulsiram Tayade vs. Chairman, Board of Directors, Vidarbha Kshetriya Gramin Bank and others, 2011(4) Mh.L.J. 430;
Union of India and others vs. Jayakumar Parida in Civil Appal No.11643/1995 decided by the Hon‟ble Supreme Court on 27.11.1995;
Mamun Shaikh vs. State of West Bengal and others, 2019 SCC OnLine Cal 1293;
Kumari Shrilekha Vidyarthi and others vs. State of U.P. and others in Writ Petition 706/1990 decided by the Hon‟ble Supreme Court on 20.9.1990; and
Lalita Kumari vs. Delhi Social Welfare Board and others in Writ Petition (Civil) No.944/2020 decided by the Hon‟ble Delhi High Court on 25.2.2021.
Per contra, learned counsel for the respondents with the assistance of the counter reply, filed on behalf of the respondents submits that three conditions have already been provided in the orders of engagement of the applicants as Guest Teachers. The same are as under:-
In the event of a rgular appointment being made against the post held by the Guest Teacher.
If such Guest Teacher‟s performance is found to be not up to the mark by the Head of School (HOS) concerned.
If such Guest Teacher remains absent without prior permission of the HOS. She has also placed reliance upon the Order/Judgment dated 26.11.2014 of this Tribunal in OA 2671/2014 (Sonalika Mishra & others vs. Govt. of NCT of Delhi & others). She invites our attention of para 39 of the said Order/Judgment of this Tribunal, which reads as under:-
“39.In view of the aforementioned, it is held:
i)The applicants are not entitled to their regularization on the basis of the length of service rendered by them as Guest Teachers and their services can be brought to an end any time as well as they can always be substituted by the regularly appointed teachers,
ii) The Guest Teachers may not be substituted / replaced by another set of Guest Teachers, unless their services are found unsatisfactory.
iii) Such Guest Teachers whose services are found unsatisfactory can always be discontinued and their services can be even substituted by another Guest Teacher.
iv) Since in terms of the impugned Public Notice dated 28.7.2014 as well as circular dated 8.5.2014 (ibid) the candidates for appointment as Guest Teachers are exempted from CTET/TET, the Guest Teachers, who worked during previous academic sessions, may not be substituted by another set of Guest Teachers on the ground that they have not passed the CTET/TET. Nevertheless, the respondents can always take a decision to not appoint such individual, who have not passed CTET/TET, as Guest Teachers. In such situation, such Guest Teachers, who have not passed CTET/ETE, can always be substituted by the freshers, who have passed CTET/TET.
v)The impugned Public Notice dated 28.7.2014 is in order and is not interfered with, except to the extent that instead of giving preference marks to Guest Teacher, the respondents would give preference to Guest Teachers, who worked during previous academic sessions, over the freshers in the matter of their continuance/reengagement.
vi) Only such of the applicants /Guest Teacher who will make representation to the respondents for their continuance /engagement as Guest Teacher mentioning the details of their previous service as Guest Teacher and the schools wherein they worked in such capacity within two weeks from the date of receipt of a copy of this Order, would be entitled to consideration for their continuance/ reengagement as Guest Teacher in preference to juniors and freshers.”
She has also placed reliance on the Order/Judgment of this Tribunal dated 16.2.2018 in TA No.14/2016. She further submits that the Order/Judgment of this Tribunal dated 16.3.2017 in the case of Shoeb (supra) is not of any help to the applicants in as much as the said TA was allowed particularly keeping in view that no show cause notice was issued to the applicant therein, whereas in the present case before passing the impugned orders of termination, the applicants have admittedly been issued show cause notices and they have been accorded opportunities to give their explanation. She further submits that the same has been the position in the Order/Judgment dated 16.2.2018. This Tribunal in the said Order/Judgement dated 16.2.2018 has recorded in para 4.4 that the contention of the applicant that his performance has been unblemished is far from truth. Ms. Mazumdar, learned counsel for the respondents, has further placed reliance upon the following judgments:-
Judgment dated 06.10.2020 in Writ Petition (S) No.1832/2020, titled Chandrasekhar vs. The State of Jharkhand & others, decided by the Hon‟ble High Court of Jharkhand, Ranchi;
Judgment dated 13.02.2018 in Writ Petition (Civil) No.12186/2016, titled Ravinder Kaushik vs. Union of India & others, decided by the Hon‟ble High Court of Delhi;
Judgment dated 06.02.2019 in Civil Appeal No.1052/2019, titled Shivnarayan vs. Maniklal & others, decided by the Hon‟ble Supreme Court; and
Secretary, State of Karnataka and others vs. Umadevi and others, reported in (2006) 4 SCC 1.
We have gone through the judgments referred to and relied upon by the learned counsels for the parties. In Writ Petition (Civil) No.944/2020 in the matter of Lalita Kumari vs. Delhi Social Welfare Board and others decided on 25.2.2021, the Hon‟ble High Court of Delhi has relied on the law laid down by the Hon‟ble Apex Court in the case of Dipti Prakash Banerjee v. Satvendra Nath Bose National Centre for Basic Sciences, reported in (1999) 3 SCC 60 and has ruled that „if findings were arrived at in inquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, a simple order of termination is to be treated as founded on the allegations and would be bad‟. Further the Division Bench of the Hon‟ble High Court of Bombay in Madhukar Tulsiram Tayade vs. Chairman, Board of Directors, Vidarbha Kshetriya Gramin Bank and others (supra), has ruled in para 6 thereof that an order without reason will be bad and it has been noted therein in the said paragraph that “It is well settled that the reasons must be reflected in the order of the Appellate Authority itself and the same cannot be demonstrated by filing an affidavit before the Court. In view of the decision of the Full Bench (supra) based on the decision of the Apex Court the expression “consider” includes within its sweep the application of mind, personal hearing and recording of reasons. It is, therefore, obligatory on the part of appellate authority to apply its mind and to pass an appropriate speaking order after affording personal hearing to the delinquent.” On account of order being without disclosing any reason has been held by their Lordships as a result of non-application of mind and to be violative of principles of natural justice. In the case of Union of India and others vs. Jayakumar Parida (supra), the Hon‟ble Apex Court found that appointment of the respondent therein was terminated on 25.2.1991 and the respondent therein filed OA 81/1991 before the Cuttack Bench of this Tribunal and this Tribunal vide Order/Judgment dated 24.8.1994 set aside the order of termination on the ground that the same did not contain any reason nor any opportunity was given to the respondent therein and, therefore, it was held to be in violation of principles of natural justice. The Hon‟ble High Court of Calcutta in Mamun Shaikh vs. State of West Bengal and others (supra), in para 13 has ruled as under:-
“13.The learned Government Pleader could not satisfy me how the resolution of the authority referred to in the order impugned was communicated to the petitioner, if at all, and what was the reason for the said termination of the petitioner apart from the said resolution. The impugned order communicating the said resolution was laconic to the point of being cryptic, and therefore on the face of the records, while depriving the petitioner of his livelihood, the respondent authorities did not comply with the basic principles of natural justice by supplying the reasons for doing so, however briefly -this failure to pass a speaking order renders the decision-making process behind the said order opaque and otherwise than in the manner prescribed by law and/or due process.”
Further the Hon‟ble Apex Court in Kumari Shrilekha Vidyarthi and others vs. State of U.P. and others (supra), in para 31 has ruled as under:-
“31.……..The extent of permissible judicial review was indicated by saying that 'actions are amenable to judicial review only to the extent that the State must act validly for a discernible reason, not whimsically for any ulterior purpose'. It is sufficient to quote from the judgment of Mukharji, J. (as the learned Chief Justice then was) the following extract (at p. 1648 of AIR): ...Where there is arbitrariness in State action, Article 14 springs in and judicial review strikes such an action down. Every action of the executive authority must be subject to rule of law and must be informed by reason. So, whatever be the activity of the public authority, it should meet the test of Article 14.... (Emphasis supplied) This decision clearly shows that no doubt was entertained about the applicability of Article 14 of the Constitution to an action of the State or its instrumentality, even where the action was taken under the terms of a contract of tenancy which alone applied by virtue of the exemption granted under the Rent Act excluding the applicability of the provisions thereof.”
In paragraphs 35, 39 and 48, their Lordships have ruled as under:-
“35.It is now too well settled that every State action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 of the Constitution and basic to the rule of law, the system which governs us. Arbitrariness is the very negation of the rule of law. Satisfaction of this basic test in every State action is sine qua non to its validity and in this respect, the State cannot claim comparison with a private individual even in the field of contract. This distinction between the State and a private individual in the field of contract has to be borne in the mind.”
“39.No doubt, it is for the person alleging arbitrariness who has to prove it. This can be done by showing in the first instance that the impugned State action is uninformed by reason inasmuch as there is no discernible principle on which it is based or it is contrary to the prescribed mode of exercise of the power or is unreasonable. If this is shown, then the burden is shifted to the State to repeal the attack by disclosing the material and reasons which led to the action being taken in order to show that it was an informed decision which was reasonable. If after a prima facie case of arbitrariness is made out, the State is unable to show that the decision is an informed action which is reasonable, the State action must perish as arbitrary.”
“48.In our view, bringing the State activity in contractual matters also within the purview of judicial review is inevitable and is a logical corollary to the stage already reached in the decisions of this Court so far. Having fortunately reached this point, we should not now turn back or take a turn in a different direction or merely stop there. In our opinion, two recent decisions in M/s. Dwarkadas Marfatia and Sons MANU/SC/0330/1989: [1989]2SCR751 (supra) and Mahabir Auto Stores MANU/SC/0191/1990 : [1990]1SCR818 (supra) also lead in the same direction without saying so in clear terms. This appears to be also the trend of the recent English decisions. It is in consonance with our commitment to openness which implies scrutiny of every State action to provide an effective check against arbitrariness and abuse of power. We would much rather be wrong in saying so rather than be wrong in not saying so. Non-arbitrariness, being a necessary concomitant of the rule of law, it is imperative that all actions of every public functionary, in whatever sphere, must be guided by reason and not humour, whim, caprice or personal predilections of the persons entrusted with the task on behalf of the State and exercise of all power must be for public good instead of being an abuse of the power.”
We have also gone through the judgments referred to and relied upon by Ms. Mazumdar, learned counsel for the respondents. In the case of Chandrasekhar vs. The State of Jharkhand & Ors. (supra), their Lordships have dealt with a case in which admittedly issuance of notice to the petitioner therein was not a statutory rule requiring one month‟s notice for terminating the services of the petitioner and in the facts and circumstances, the Hon‟ble High Court of Jharkhand at Ranchi has found no merit in the writ petition. However, in the case in hand, the facts are different and, therefore, the said judgment of the Hon‟ble High Court is of no help to the respondents. In the case of Ravinder Kaushik (supra), the Hon‟ble High Court of Delhi has considered as to whether the protection available to a Government servant under Article 311 of the Constitution of India could be available to a contractual employee also. However, in the present case, regular inquiry in view of provisions of Article 311 of the Constitution of India has not been claimed by the applicant and, therefore, the said judgment also is not found to be helpful to the respondents. More so, the Hon‟ble High Court in para 15 of the said judgment has found no merit in the writ petition in view of the facts and circumstances of that case. In Secretary, State of Karnataka and others vs. Umadevi and others (supra), as would be evident from para 6 thereof that their Lordships were considering two sets of appeals reflecting the cleavage of opinion in the High Court of Karnataka based on the difference in approach in two sets of decisions of the Hon‟ble Supreme Court leading to a reference of these appeals to the Constitution Bench for decision. In this case, right of continuation of the daily wager(s)/contractual employee(s) were the issues. Their right for regularisation has been the issue. No where it has been ruled therein in the said judgment that the administrative orders are required to be passed without disclosing any reason.
From the aforesaid facts, it is evident that the applicants had been working as Guest Teachers, engaged and appointed in view of the needs of the respondents and in accordance with the respondents‟ policy. Certain allegations have been levelled against the applicants in the respective show cause notices issued to them. The applicants have submitted their replies and in their respective replies, they have not only denied the allegations but they have also given detailed explanations. However, in the impugned orders no reason has been given by the respondents. Therefore, in view of the law laid down by the Hon‟ble High Courts and Hon‟ble Supreme Court in the cases referred to and relied upon by the learned senior counsel appearing for the applicant and as noted hereinabove as well as the law laid down by the Hon‟ble Apex Court in the case of S.N. Mukherjee vs. Union of India, 1990 SCC (4)594, five JJ), that the administrative authority exercising quasi-judicial function is required to record its reasons for its decision, we find merit in the OA.
In view of the aforesaid facts and circumstances, we are of the considered view that the impugned orders are bad in eyes of law and accordingly, the same are not sustainable in the eyes of law.
In view of the aforesaid, OA is partly allowed in terms of the following orders:-
The impugned orders are quashed;
The respondents are directed to re-engage the applicants as Guest Teachers in preference to their juniors and freshers;
The intervening period, i.e., from the date of termination of service till their re-engagement, the applicants shall be entitled for counting their services as Guest Teachers for the purpose of seniority, if any. However, we leave it open to the competent authorities under the respondents to consider the cases of the applicants for grant of back wages for such period in the light of the facts and circumstances of the case and also the circular dated 20.3.2020 (Annexure A/3) and Office Memorandum dated 23.3.2020 (Annexure A/4) and to pass necessary orders in this regard; and
The respondents are directed to complete the aforesaid exercise as expeditiously as possible and in any case within four weeks of receipt of a copy of this Order.
The respondents shall be at liberty to proceed/take action against the applicant if so required, after following due process of law.
However, in the facts and circumstances, there shall be no order as to costs.
Pending MAs also stand disposed of accordingly.