B.S. Brar vs State and another

H.R. Sodhi, J.—The petitioner is a school teacher who joined the District Board School in the district of Ferozepur on 11th March, 1957. Local bodies schools were later provincialised with the result that the services of the petitioner came under the State Government with effect from 1st October, 1957. The conditions of service of such teachers who were serving in the provincialised schools are governed by the Panjab Education Service (Provincialized Cadre) Class III Rules, 1961 (hereinafter called the Rules) framed by the Punjab Government under Article 3 9 of the Constitutor.

The case of the petitioner is that he was posted against a permanent vacancy and having completed three years'' service on 17th March, 1960, was under the Rules deemed to have been confirmed since the Rules specifically lay down that the period of probation could in no case exceed three years. Rule 6 which is relevant for the purposes of the present writ petition is reproduced hereunder for facility of reference:

(1) Members of the Service, officiating or to be promoted against permanent posts, shall be on probation, in the first instance, for one year.

(2) Officiating service shall be reckoned as period spent on probation, but no member who has officiated in any appointment for one year shall be entitled to be confirmed unless he is appointed against a permanent vacancy.

(3) On the completion of the period of probation the authority competent to make appointments may confirm the member in his appointment or if his work or conduct during the period of probation has been in his opinion unsatisfactory he may dispense with his services or may extend his period of probation by such period as he may deem fit or revert him to his former post if he was promoted from some lower post:

Provided that the total period of probation including extensions, if any, shall not exceed three years." Service, according to the Rules, consists of members officiating or to be promoted against permanent posts and officiating service is also to be reckoned as period spent on probation though it is only that teacher who has officiated in any appointment for one year against a permanent vacancy who can be treated to be on probation. According to Rule 6, referred to above, an employee who has been on probation for three years is deemed to be confirmed The service, thus, falls into two categories, namely, those deemed to be confirmed and those deemed to be probationers As held by a Division Bench of this Court in Dharam Singh v. The State of Punjab (1965) 67 P.L.R. 312, "there is no rule nor even a hint in any rule that any member of the Service was to be considered or deemed a temporary employee" since no such category is mentioned anywhere in the Rales. The petitioner had admittedly put in more than five years'' service and allowed five annual increments earned by him during this period.

On 18th September, 1962, the Director, Public Instruction, Punjab, respondent 2, passed an order terminating the services of the petitioner without assigning, any reason. A copy of the communication addressed to the petitioner is Annexure ''A'' and all that was stated therein was that his services were no longer required and would be dispensed with after one month from receipt of the said letter. It appears that there were some complaint? against the petitioner and as stated in the return of the respondents, an informal inquiry was conducted against him by the District Inspector of Schools, Ferozepur, but there is no reference in the impugned order that it was by way of punishment that the services were being terminated. The Deputy Director, Public Instruction, Punjab, who has filed an affidavit in reply to the writ petition, states in para 5 thereof that the petitioner was appointed on the condition that his services were liable to be terminated on one month''s notice or on payment of one month''s pay in lieu of notice on either side. In other words, the petitioner was a temporary employee whose services were terminable on one month''s notice.

I asked the State counsel to produce the relevant executive file to show the original order of his appointment or absorption in the provincialised cadre and he obtained an adjournment on July 81, 1970, to produce the file on 4th August, 1970. When the case came up for hearing again, he expressed his inability saying that the file was not traceable. In the absence of any proof made available by the State whereby it could be shown that the petitioner was really appointed as a temporary employee, we have to look to the statutory rules which, as already stated, envisage only two classes of employees. In Dharam Singh''s case, an argument was raised that he was a temporary employee but the same was repelled by a Division Bench of this Court which observed that it was difficult to appreciate the suggestion that he was neither a probationer nor confirmed in the service and instead a temporary employee which category was not known to the Rules, Similar suggestion is advanced before me in the instant case. No facts have been pointed out which could support such a suggestion and the conduct of the State in not producing the necessary file goes to indicate that the stand taken by it is not honest and that an attempt is being made to defend an indefensible, illegal and without jurisdiction action. The petitioner continued making representations against the termination of his services to the Chief Minister, Minister for Education and Education Secretary, right from 1963-64 up to 1966. It may be mentioned that the petitioner is a Commissioned Officer in the Territorial Army and was sent on active service during Indo Pakistan operations for some time. On his return he again asked for reinstatement but, as admitted by respondent 2 in his reply, all the representations were filed without being even acknowledged probably because the department believed that the services of the petitioner were lawfully terminated and that the representations were without any meaning. The respondents could not be unaware of the Division Bench judgment of this Court in Dharam Singh''s rase (supra) which was given on 26th November, 1964, but in spite of it they did not consider the representations of the petitioner and stuck to their illegal action. The petitioner having put in three years'' service was deemed to have been confirmed and could not be removed from service except after holding a proper inquiry and giving an opportunity to the petitioner to be heard as visualized in Article 311 of the Constitution. The violation of the said constitutional guarantee was deliberate on the part of the respondents and they were so indifferent that notwithstanding the judgment of this Court in Dharam Singh''s case (supra) did not pay any heed to the just c aim of the petitioner so as to reconsider the question of his retention in service.

The only argument that was advanced by the learned State counsel against quashing of the impugned order was that the petitioner was guilty of laches and not entitled to interference by this Court in the exercise of its extraordinary jurisdiction under Articles Z26 and 227 of the Constitution, It is true that there has been quite an inordinate delay of almost five years. The services of the petitioner were terminated in the year 1962 and the writ petition was filed in the year 1967. The petitioner has stated in the petition that he was making representations and copies of a few of them, last being of the year 1966, have been filled as annexures. The respondents in their return do not deny having received these representations nor is there any averment that a reply was given thereto and all that is stated is that they were filed by the Government. Delay howsoever long, is not an absolute bar to the grant of relief under Articles 226 and 227 of the Constitution, and it depends on the facts and circumstances of each case whether a citizen should be denied his legal and constitutional rights on the ground of laches alone when an authority admittedly mikes a patently erroneous and without jurisdiction order, as we have in the instant case, and is not prepared to listen to the protests of the aggrieved party no matter that the erase of the latter is just and supported by a judgment of this Court. It is, in my opinion, a fit case where the petitioner should not be denied the protection guaranteed to him by Article 311 of the Constitution solely on the ground of delay in approaching this Court He has given an explanation and the State in its return did not take up any objection that the petitioner was guilty of laches. It was only in toe course of agreements that the learned State counsel raised this plea. I am unable to understand the conduct of the respondents in not even sending a reply to the petitioner informing him whether his representations had been rejected or were under consideration The conduct of the parties against whom any writ is to issue is quite relevant in determining whether a petition should be thrown out because of delay. In the peculiar circumstances of the case, I do not therefore propose to refuse relief to the petitioner.

For the foregoing reasons, the impugned order of termination of services of the petitioner (Annexure ''A'') is quashed and he shall be deemed to have been in service since the date of termination of his services unless he is removed therefrom in accordance with law There is no order as to costs.