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Judgment
Bansi Lal Bhat, J. - This Letters patent Appeal is directed against the judgment dated 15th December, 2004 passed by the writ Court in SWP
No. 1904/2000, by virtue whereof order dated 23.07.1999 regarding removal of respondents from service has been quashed. Aggrieved of the
findings recorded by the learned writ Court that the appointment of respondents was against the existing vacancies and Local Board of
Administration had approved the same, appellants have assailed the same through the medium of the instant letters patent appeal.
Before adverting to the grounds of appeal, it would be appropriate to refer to the factual matrix in a concise form. Respondents were initially
engaged as temporary daily labourers (for brevity TDL') which was followed by their engagement as permanent daily labourers (for brevity 'PDL').
They were brought on regular establishment after scrutiny by the Local Board of Administration. Their appointments, however, did not find favour
with the new Principal who initiated process for their removal. Respondents filed writ petition seeking writ of prohibition restraining the appellants
from terminating their services without following due course of law with further writ of certiorari for quashment of the proposal initiated for their
removal as also order dated 23rd July, 1999 passed in this regard. Appellants, in their reply before the writ Court admitted the factum of
engagement of respondents as regular employees, but contested the petition on the ground that the Principal who was not competent to make such
appointments had brought them on regular establishment in contravention of rules. It was further pleaded that the appointments had been made
beyond sanctioned strength and there was no need to man available posts. Appellants also disputed the competence of Local Board of
Administration in according approval to these appointments. Appointments were also assailed as being in excess of available strength.
Respondents filed rejoinder affidavit contending that Principal was duly authorised and competent to make such appointments in terms of Rule
7.01 which had been approved by the Local Board of Administration. Learned writ Court after considering rival contentions, allowed the writ
petition by holding that the appointment of respondents could not be said to be illegal or unauthorised. It also directed release of all consequential
benefits in favour of the respondents.
Heard learned counsel for the parties and perused the record of writ Court.
Since the factum of engagement of respondents as regular employees is not in controversy, it is only the competence of the Principal to make
such appointments and that of Local Board of Administration in according approval to these appointments which form bone of contention inter se
the parties. These issues, emerging from the pleadings of the parties, need to be determined in view of the Rule position. Rule 5.01, relevant for
determining the controversy, may profitably be quoted as under:-
5.01. Authorisation of Academic, Administrative Staff and General Employees in Sainik Schools will be as per the scale given in succeeding
Rules. Authorised strength of each school shall, however, be approved by the Honorary Secretary from time to time. All posts authorised on the
establishment need not necessarily be manned. They may be filled up depending on the actual requirement and the financial condition of the school,
with the prior approval of the Honorary Secretary. Any recruitment action by the school shall be initiated only after receipt of written approval of
the Honorary Secretary in this regard No new posts will be created without the prior approval of the Board of Governors.
A plain reading of this rule would lay bare that approval of service strength of each school shall fall within the domain of Honorary Secretary
who shall have regard to actual requirement and financial condition of the schools while approving strength of each school. Thus, the strength of
each school may wax or wane depending upon the actual requirement and financial health of the institution. If these considerations do not warrant
filling up of all posts authorised on the establishment, same would not be filled up. The school would initiate recruitment action only on the basis of
written approval of Honorary Secretary in that regard. New posts would only be created with the prior approval of Board of Governors. It
appears that in terms of communication dated 30.07.1998, Honorary Secretary communicated to the appellants that no permanent general
employee could be engaged against leave vacancy, however, one or two daily wagers could be appointed against such vacancies. The Honorary
Secretary again wrote a communication dated 25.01.1999 informing the appellants that the two vacancies of general employees filled up by the
appellants on permanent basis against leave vacancies were contrary to the rules. It further pointed out that as against 63 authorised vacancies 65
permanent general employees had been appointed, thus, the actual strength had been exceeded by two.
Respondents services were terminated in terms of impugned order dated 23.07.1999 which has been assailed as being an arbitrary exercise of
power. Learned writ Court has taken note of appendix of Rules and Regulations of the Sainik Schools Society laying down the ratio of sanctioned
strength of the schools for general employees. It came to the conclusion that the appointments made were within the strength sanction of the
school. It is not disputed that authorised strength of each school has to be approved by Honorary Secretary from time to time and the recruitment
action by schools has to be approved by the Honorary Secretary. It is, therefore, futile to contend that the appointments made were in excess of
the sanctioned strength of the school.
Ration 7.01 authorising principal to appoint general employees may profitably be quoted as under:-
7.01: All posts on the authorised establishment of the school except those of Headmaster and Registrar, shall be filled by the Principal by
promotion or by direct recruitment, with the approval of the Local Board of Administration. Where a post becomes available suddenly and has to
be filled up without prior approval, the details will be reported at the next meeting of the L.B.A for ex-post-facto approval explaining the urgency
involved and till such approval the appointment will be provisional and purely adhoc.
This rule empowers the Principal to fill up the vacancies on the authorised establishment of school except for the post of Headmaster and
Registrar. Such vacancies can be filled up by promotion or by direct recruitment with the approval of the Local Board of Administration. It is not in
controversy that in the case in hand, respondents were already engaged as PDLs and their appointment is covered by Rule 5.28. Respondents
cannot be said to have been brought on the establishment of appellants' school without undertaking selection process. Virtually their case is one of
regularisation of daily wagers. Undoubtedly, Principal was authorised to make appointments as their cases were placed before the Local Board of
Administration in May, 1999 with the recommendation of Appellant No. 1. The Local Board of Administration approved their appointments
against existing vacancies. The writ Court record brings it to fore that the Principal made appointments with the approval of Local Board of
Administration against existing vacancies. Undoubtedly, the sanctioned strength is not static or fixed one. The same is fluctuating and has to be
determined depending upon the actual requirement and financial condition of the school. The communications and appointment letters of
respondents clearly spelt out the total strength of permanent general employees. It is nowhere mentioned that the posts held by respondents were
in excess of the sanctioned strength. Thus, respondents cannot be said to have been appointed against the non-existing posts. Want of need to man
the vacancies has not been pleaded and in absence of such pleadings appellants cannot be heard to say that there was no need for such
appointments. The argument raised in this behalf is otherwise held bereft of substance as the Local Board of Administration has made the
appointments against the vacancies existing on date which postulates that there was need to make such appointments.
Viewed thus, the appointments of respondents cannot be said to be illegal or un-authorised.
All contentions raised in this appeal having been repelled, we find no infirmity in the writ Court judgment. The appeal is devoid of merit and the
same is dismissed along with connected MP(s).
Appellants are directed to implement the writ Court judgment and extend all benefits under the writ Court judgment to respondents.