Jasbir Kaur Gosal vs Guru Nanak Khalsa College and Others

K. Kannan, J.—The writ petition seeks for a mandamus to direct the respondents to release the petitioner''s salary for the academic session 1990-1991 and for the vacation period of the year 1991. The principal prayer in the writ petition, however, is to quash the termination order and for reinstatement which I would hold as not tenable at this length of time, for admittedly she has taken up employment elsewhere and her own appointment initially with the permission of the University was only to work as a temporary Lecturer. I will, therefore, take up the issue for consideration only as regards her claim to salary for the period which she claims she worked.

It is admitted case that she was appointed as Lecturer in Economics on temporary basis w.e.f. 12.08.1989 upto 31.03.1990. Her contention is that she continued beyond 31.03.1990 as well, for it would be evident from the letter of the Principal to the University that she had sought for extension of approval for temporary appointment from 01.08.1990 to 31.3.1991 till regular appointment was made whichever was earlier. While the petitioner would contend that she continued in employment till she was wrongly terminated from service that resulted in filing of writ petition in CWP No. 3535 of 1991 before this Court to direct the respondent to grant approval and regularize her services and to restrain the respondents from terminating the service of the petitioner till the grant of approval. The case had been decided on 06.03.1991 by the Court allowing for the Assistant Registrar, Colleges to consider the plea for regularization of the petitioner as Lecturer and that DPI should decide the matter within one month. The order stated "....it will be open to the college to keep the petitioner or not. The writ petition stands disposed of accordingly."

To a contention by the petitioner that she was working till 31.03.1991, the response by the College is that she worked only upto 15.03.1990 and her services were terminated by office order dated 12.03.1990. She did not continue in appointment subsequently and it was also not possible for the college to provide for regularization without sanction of the University since the University had directed fresh advertisement to be issued and there was a specific direction also from the University on 17.12.1990 that the petitioner must be relieved because the post was temporary and that further the University had directed the College to advertise the post afresh and fill it up on permanent basis, the petitioner had not been retained any longer.

Since issue of whether the petitioner was working upto March 1991 as asserted by the petitioner was purely an issue of fact when the college was denying the petitioner to such a status, this Court had earlier called upon the Principal to give an affidavit setting out the details of employment upon which a short affidavit of Dr. Sahib Singh has been filed on 16.09.2013. It is stated in the said affidavit that the petitioner was not paid salary upto 28.02.1990 and there were no records available for the payment upto March 15, 1990. The new session started in August, 1990 and there was no record to show that she worked but in one letter written by the then principal, it was mentioned that she had worked upto 22.12.1990.

I find that the affidavit is in some way evasive. In the written statement, it is stated that she had worked upto 31.03.1990 but she was paid salary upto 28.02.1990 only. The affidavit states a fact that new session started in August, 1990 and the principal''s letter showed that she had worked upto 22.12.1990. Evidently, she has not been paid salary from March 1990 to 22.12.1990 even as per the contentions of the college. It is made to appear as though that during the period of vacation, she was not entitled to any salary. I cannot understand as to how this was possible, for she had been appointed only after taking appropriate permission from the University. Her appointment on temporary basis might a bearing to the tenure but I have no reason to assume that such temporary appointment made with the sanction of the University will deny to the teacher salary during the vacation period. From the consideration of the documents, I have no doubt in my mind that the petitioner had established clearly through the documents that she was entitled to salary upto 22.12.1990 upto which time she was admittedly working as a Lecturer. It is to be seen how her status continued beyond that date.

The letter of the Principal to the University on 13.11.990 under Annexure P-3 is a plea for an extension of the temporary appointment to the petitioner from 01.08.1990 to 31.03.1991. This letter is a vindication of the petitioner''s contention that there had been no termination in between, for as otherwise the tenor of the letter by the college to the University would have been only to seek for fresh permission for appointment on temporary or regular basis. The letter seeking for extension from 01.08.1990 to 31.03.1991 ought to, therefore, mean that there had been no breakage of the petitioner any time after 01.08.1989 till the letter was written on 13.11.1990. Ex. P3 has elicited a response from the University through Annexure R2 which states that such a permission was not accorded and that the University was calling upon the college to advertise the post afresh on permanent basis. It is in that context that filing of the writ petition in CWP No. 3535 of 1991 assumes significance. In that writ petition, there is a prayer for regularization of services and for a restraint against the respondents from terminating her services. This again would mean that the petitioner was still continuing in service and if she had been already terminated, there ought to have been an order of termination or the prayer in the writ petition itself would have been for quashing the order of termination. A preventive injunctive relief sought by the petitioner would only show that on the date of filing of the petition, she continued in service. The nature of order passed by the High Court on 06.03.1991 will also show that she continued in service till 6th March, 1991, for the Court was allowing for a period of one month for the DPI to take a decision and it granted also a liberty to the college to keep the petitioner in service or not. There was surely, therefore, the period of one month before when the decision was to be taken and till that time, there was nothing to show that she had again served with an order of termination.

On her own showing she did not secure the permission and that was how the present writ petition has been filed. The petition itself recognizes the fact that the Assistant Registrar wrote to the Principal that it was not possible for the University to grant repeated approvals of temporary appointments. Though the plea in the writ petition is that she was entitled to regularization, I have stated at the outset that it was not feasible and exigent at this length of time to consider her plea, I will only find strength from the materials brought that she must be taken as working continuously from initial date of appointment on 12.08.1989 till 31.03.1991. Admittedly, she has not been paid salary after February, 1990. The salary from March, 1990 to 31.03.1991 shall be calculated and paid to the petitioner. The primary liability shall be on the management of the college and this liability shall be irrespective of whether the college secures grant from the Government or not or whether the continuance upto 31.03.1990 is regularized by the University or not. This follows the dictum of law laid down by the Supreme Court in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Others Vs. V.R. Rudani and Others, .

The amount shall be calculated and paid within six weeks from the date of receipt of copy of the order with interest @7.5% from the date of petition till the date of payment. The writ petition is allowed to the above extent.