Juthika Barman vs State of Assam and Others

A.K. Patnaik, J.—In this writ Petitioner under Article 226 of the Constitution of India, the Petitioner has prayed for quashing the letter dated 23-12-92 of the Principal, Gauhati Commerce College, Guwahati (Respondent No. 4) releasing her from the post of Lecturer in Economics with effect from the forenoon of 1st January, 1993 and for directions on the Respondents No. 3 and 4 to take back the Petitioner in service with immediate effect and to appoint her in the post of Lecturer which fell vacant due to termination of the services of Dr. B.N. Nath as Lecturer of Economics after following the procedure of regular appointment of Lecturer.

The brief facts relevant for the purpose of this writ petition are that by an advertisement dated 3-6-89 published in the Assam Tribune, a true copy of which is annexed to the writ petition as Annexure-1, the Secretary of the Governing Body of the Gauhati Commerce College Guwahati invited applications inter-alia for the posts of two Lecturers in Economics against lien vacancies from persons with the required qualification of M.A, in Economics with Honours/Major in Economics in the first Degree and pursuant to the said advertisement the Petitioner along with 8 other candidates applied for the said posts. Thereafter the Petitioner was asked to appear before a Selection Committee on 22-7-89 and on the recommendation of the Selection Committee, the Governing Body of the Gauhati Commerce College (Respondent No. 3) appointed Petitioner as a Lecturer in the Department of Economics in the College against the lion vacancy of Dr. B.K. Nath. In the letter of appointment dated 8-11 -89 (Annexure-2) issued by the Respondent No. 4, it was expressly stipulated that the appointment of the Petitioner was subject to various terms and conditions and one such condition was that her appointment was terminable on the expiry of the lien period of Dr. B.K. Nath or on the date of which he comes back and re-joins his duties in the College, whichever is earlier. It was also stipulated as a condition that her appointment was subject to the final approval of the Director of Public Instruction, Assam. By Memo dated 13-6-90 (Annexure-B), the Inspector of Colleges, Assam conveyed the approval to the appointment of the Petitioner as Lecturer to Economics in the College w.e.f. 7-8-89, the date on which she joined as such Lecturer and it was expressly stipulated in the said approval order that on expiry of the leave period of Dr. B.K. Nath the Petitioner will be released from service. Pursuant to the appointment, the Petitioner joined and continued as a Lecturer in Economics in the College for the entire two years lien period of Dr, B.K. Nath who was working during the said period as Deputy Director of Public Instruction, Assam. But even after the expiry of the said lien period, the Petitioner continued as Lecturer in Economics in the College. On 19th Nov. 92, however, an advertisement was published by the Principal of the College inviting applications inter-alia for the post of the Lecturer in Economics in the College, but the Petitioner was not considered for the said post, nor was any one appointed, in the said post of Lecturer in Economics pursuant to the said advertisement Finally by the impugned letter dated 23-12-92 (Annexure-3). Respondent No. 4 in intimated the Petitioner that in terms, of the prior approval of the D.P.I. Assam for appointment against lien vacancy the Petitioner was formally released from the post of Lecturer in Economics w.e.f. the forenoon of 1.1.93. Thereafter the Petitioner submitted representation dated 29-12-92 (Annexure-6) to the Director of Public Instruction, Assam stating therein that her service was suddenly terminated from 1-1-93 alter 3 years and 5 months of continuous service and requested him to look into the matter and take appropriate action. Since the Petitioner did not get any relief from the Director of Public Instruction, Assam she filed this writ petition on 19.7.93 under Article 226 of the Constitution of India.

It appears from the order sheet that by order dated 20-7-93, Rule was issued and as interim measure it was directed by this Court that the post of Lecturer which was held by the Petitioner in the Gauhati Commerce College shall not be filled up until further orders, Thereafter two separate affidavit-in-opposition have been filed on behalf of the Director of Public Instruction (Respondent No. 2) and the Governing Body and the Principal Commerce College (Respondents No. 3 and 4).

At the hearing of the writ petition Mr. H. Roy, learned Counsel for the Petitioner submitted that although as per the terns of the appointment stipulated in the letter dated 8-11-89 (Annexure-2) the Petitioner''s appointment as Lecturer in Economics in the College was terminable on the expiry of the lien period of Dr. B.K. Nath the Petitioner''s appointment was in fact not terminated on the expiry of the lien period of Dr. B.K. Nath on 29-5-91 and she was continued as Lecturer in the College beyond the lien period of Dr. B.K. Nath. The service of the Petitioner as Lecturer beyond the lien period of Dr. B.K. Nath could not be terminated without the prior approval of the Director of Public Instruction as provided in Rule 18 of the Assam Aided College Management Rules, 1976 (for short the 1976 rules), According to Mr. Roy, the impugned letter dated 23-12-92 (Annexure-3) releasing the Petitioner from the post of Lecturer in Economics w.e.f. 1-1 -93 is in breach or the said statutory Rule 18 of the 1976 Rules and is liable to be quashed, Mr. Roy further submitted that a reading of the circular dated 2-7-91 of the Director of Public Instruction, Assam (Annexure-5) would show that when a sanctioned post in the Department of non-Government College such as the Gauhati Commerce College falls vacant, due preference has to be given to those teachers who are already working against non-sanctioned post in the particular department. Mr. Roy Submitted that the aforesaid circular dated 2-7-91 of the Director of Public Instruction Assam has been interpreted in the affidavit-in-opposition filed on behalf of the Director of Higher Education, Assam (Respondent No. 2) to mean that when a (sic) falls vacant due to the non-joining of the Lecturer after the period of lien the candidate appointed in such post should be regularised against the post subject to approval of the D.P.I., Assam. Mr. Roy therefore submitted on the basis of the said circular dated 2-7-91 as interpreted in the affidavit-in-opposition filed on behalf of the Respondent No. 2 that as soon us the vacancy in the post of Lecturer in Economics arose on account of Dr. Nath not joining the post after expiry of the period of lien. the Governing Body of the College (Respondent. No. 3) should have considered the case of the Petitioner and appointed her to the said post of Lecturer in Economics. Since the Respondent No. 3 has not acted as per the said circular dated 2-7-91 this Court should direct the Respondent No. 3 and 4 to appoint the Petitioner in the said post of Lecturer, Economics which has fallen vacant on account of Dr. B.K. Nath not joining the said post after the expiry period of lien. Mr. Roy took me through the various provisions of the 1976 Rules and the Assam Aided College Employees Rules, 1960 (for short the 1960 Rules) to show that the Governing Body of the College had powers to appoint a Lecturer of the College and (sic) on the decision of the Supreme Court reported in State of Orissa and Others Vs. Shri Arun Kumar Patnaik and Others, and submitted that this is a case where initially the Petitioner was appointed for contract period, but her appointment was extended beyond the contract period as per the aforesaid rules.

Mr. B.K. Goswami, learned Counsel for the Respondents No. 3 and 4 resisted the aforesaid contention of Mr. Roy by submitting that in case the relief prayed for in the writ petition for re-instatement of the Petitioner in service as Lecturer of the Gauhati Commerce College is granted, the Court in effect would specifically enforce a contract of personal service and it has been held by the Supreme Court in Vaish Degree College v. Lakshmi Narain AIR 1976 SC 888 that such a contract for personal service cannot be enforced and the court normally would not give a declaration that the contract subsists and the employee, even after having been (removed from service, can be deemed to be in service against the will and consent of the employer. Mr. Goswami further submitted that in the said decision of the Supreme Court, three exceptions have been carved out to the aforesaid general principle that a contract for personal service cannot be enforced and the present case does not fall under any of the three exceptions. He further submitted that the Gauhati Commerce College is not a statutory body inasmuch as it has not been created by any statute. The 1976 rules are not statutory rules as they have not been made in consultation with the University as required under the proviso to Clause (g) of Section 21 of the Gauhati University Act 1947, He also submitted that in any case Rule 18 of the 1976 Rules had not been violated in the present case because the service of the Petitioner, as Lecturer in Econommics had been terminated in accordance with the order of approval of the D.P.I. as communicated by the memo dated 13-6-90 of the Inspector of Colleges, Assam wherein it has been stipulated that on expiry of leave period of Dr. Nath, the Petitioner will be released from service. He also contended that the Petitioners appointment as Lecturer was of an ad-hoc nature and as such ad-hoc lecturer the Petitioner had no right to the post. In support of this submission, he cited the decision of the Orissa High Court reported in 1984 Lab and IC 451.

Regarding the circular dated 2-7-91 of the D.P.L. Assam, according to Mr. Goswami, the said circular nowhere says that a Lecturer working in non-sanctioned posts Would be automatically regularised and absorbed when a sanctioned post becomes vacant and it only states that due preference shall be given to a teacher working in a non-sanctioned post subject to satisfactory performance report and possession of required norms at the time of appointment. He very fairly submitted that since the Petitioner has put in service as Lecturer in Economics in the College for more than 3 (three) years, due weightage shall certainly be given to her experience and service as Lecturer in the College at the time of considering the various candidates for appointment to the post of Lecturer in Economics which has failed vacant on account of Dr. Nath not resuming his duties after the period of lien

In reply Mr. Roy, learned Counsel for the Petitioner submitted that in this writ petition directions have been sought against the Governing body of the Colleges and since the said Governing body is constituted under Rules 2 and 3 of the 1976 rules which have been held to be statutory in nature by this Court in the decisions reported in and Dr. Mohini Kumar Saikia Vs. The President, S.D.O. (Civil) Governing Body D.R. College, Golaghat and Another, the Governing body of the College is a statutory body and a direction can be issued to the Governing body if it has committed to breach of the statutory provision contained in Rule 18 of the 1976 Rules while terminating the Petitioner from service under the impugned letter dated 23-12-92 (Annexure-3). In this context Mr. Roy brought to my notice the resolution of the special body meeting of the College held on 18-12-92 wherein it was resolved to terminate the service of the Petitioner w.e.f. 31-12-92 and submitted that the said resolution of the Governing body was required to be approved under Rule 18 of the 1976 Rules before the service of the Petitioner was terminated. Mr. Roy relied upon the decision of the Supreme Court in Manmohan Singh Jaitla Vs. Commissioner, Union Territory of Chandigarh and Others, wherein it was held that termination of service of an employee in defiance of statutory provision by taking recourse to clauses of an agreement was liable to be quashed under Article 226 of Constitution.

In view of the aforesaid submission of the learned Counsel for the parties, the main question to be decided in this writ petition is whether the Respondent No. 3 Governing body. Guwahati Commerce College is a statutory body and has committed breach of the statutory obligation in Rule 18 of the 1976 Rules requiring prior approval of the Director of Public Instruction before termination of service of a teacher of an aided College. In view of the decision of this Court reported in Dr. Mohini Kumar Saikia Vs. The President, S.D.O. (Civil) Governing Body D.R. College, Golaghat and Another, the 1976 rules are statutory rules made under the proviso to Clause (g) of Section 21 of the Gauhati University Act 1947 and in the absence of specific averments in the affidavits filed on behalf of the Respondents No. 3 and 4 to the effect that the University has not been consulted before the rules were made, I am not in a position to entertain the contention of Mr. Goswami, learned Counsel for the Respondent No. 3 and 4 that the 1976 rules are not statutory in the nature. It is also difficult to accept the submission of Mr. Goswami that the Governing body of the College is not it statutory authority and has not been created under any statutory provision. Rule 2 of the 1976 rules states that every aided College shall be governed by a Governing body the Constitution of which has to be approved by the Director of Public Instruction and Rule 3 of the 1976 rules describes the composition of the Governing body, Rule 4 of the 1976 rules provides that the Governing body shall be deemed to have been constituted with effect from the date the President and other members are nominated by the Government and Rule 8 of the said rules confers power on the Director of Public Instruction to dissolve and reconstitute a Governing body at any time. Rule 9 further stipulates that subject to Rule 8, the term of a Governing body will ordinarily expire after the period of 3 years from the date the President and other nominated members are appointed by the Government. The aforesaid provisions of the 1976 rules thus make it clear beyond doubt that the Governing body of an aided college such as the Respondent No. 3 is created, dissolved and reconstituted under the 1976 rules and is thus a statutory body, The contention of Mr. Roy, learned Counsel for the Petitioner, that the Respondent No. 3 is a statutory body is therefore accepted.

But it is difficult to accept the further contention of Mr. Roy that in terminating the Petitioner as Lecturer in Economics of the College, the Respondent No. 3 committed breach of the statutory provision contained in Rule 18 of the 1976 Rules which required that no final decision regarding termination of teaching staff shall be taken without prior approval of the Director of Public Instruction. In the present case, by the Memo dated 13-6-90, the Inspector of Colleges, Assam, office of the Director of Public Instruction (Higher Education) while granting approval to the appointment of the Petitioner expressly stipulated that on the expiry of the leave period of Dr. B.K. Nath the Petitioner will be released from service. In the present case, admittedly the leave period of Dr. B.K. Nath has expired and release of the Petitioner at any lime after the expiry of the aforesaid leave period of Shri B.K. Nath would obviously be in accordance with the approval of the Director of Public Instruction. Mr. Roy forcefully contended that since the service of the Petitioner was not terminated soon after the expiry of the leave period of Shri B.K. Nath but was continued for more than a year, when the Governing body took the decision in its meeting held on 18-12-92 to terminate the service of the Petitioner w.e.f. 31st Dec. 90, fresh prior approval of the Director of Public Instruction was required before such termination. It is difficult to accept the submission of Mr. Roy, As per the order of approval of the Director of Public Instruction contained in the Memo dated 13-6-90 (Annexure-B and B-1) the Governing body was required to release the Petitioner from service on the expiry of leave period of Shri B.K. Nath and this would mean that the service of the Petitioner was liable to be terminated at any time after the expiry of the leave period of Shri B.K. Nath. In the present case admittedly the leave period of Shri B.K. Nath had expired and in the affidavit-in-opposition of the Respondent No. 3 and 4 it has been explained us to why the college authorities. had to wait till after the Higher Secondary Examination and release her from service w.e.f. 1st Jan. 93. In the facts and circumstances therefore I am of the opinion that since the service of the Petitioner had been terminated in accordance with the order of the office of the Director of Public Instruction to the effect mat she would be released from her service on the expiry of the leave period of Dr. B.K. Nath it is difficult to hold that the Respondent No. 3, had committed a breach of Rule 18 of the 1976 Rules and accordingly I am not inclined to quash the impugned letter date 23-12-92 (Annexure-3) releasing the Petitioner from the post of Lecturer in Economics w.e.f. forenoon of 1st Jan 93.

The decision of the Supreme Court reported in State of Orissa and Others Vs. Shri Arun Kumar Patnaik and Others, Cited by Mr. Roy, learned Counsel for the Petitioner, does not help the Petitioner inasmuch as in the said decision although initially Krishnamurthy was appointed by an order! dated 11th Dec ''58 on contract basis for a period of 3 years, subsequently the'' Government of Orissa after consulting the Public Service Commission and after obtaining its concurrence passed an order dated 14th March 62 regularising the service of Shri Krishnamurthy and absorbing him in the regular cadre of art Assistant Engineer retrospectively from 19th Jan 59 and on these facts the Supreme Court held that such retrospective regularisation of Shri Krishnamurthy''s appointment as Assistant Engineer cannot be held to be invalid. In the present case as Mr. Roy has himself conceded, the power of, appointment of Lecturer was that of the Governing body of the College both under the 1960 Rules and the 1976 Rules and in exercise the said power the Governing body had appointed the Petitioner as Lecturer in Economics in the lien vacancy of Dr. B.K. Nath and the appointment was made expressly terminable on the expiry of the lien period of Dr. Nath, Even though admittedly the. lien period of Dr. Nath expired no resolution of the Governing body was passed appointing the Petitioner afresh as Lectured in Economics on fresh terms and conditions or on ad-hoc basis regularising service of the Petitioner after the contract period expired and in the circumstances therefore, the continuance of the Petitioner was not by virtue of any fresh appointment made by the Governing body and hence no fresh prior approval of the Director of Public Instruction was required for termination of the service of the Petitioner Thus the decision of the Supreme Court in State of Orissa and Others Vs. Shri Arun Kumar Patnaik and Others, would have no application to the facts; of the present case, What will apply to the present case is the principle laid down in the case of Director, Institute of Management Development, U.P. Vs. Smt. Pushpa Srivastava, that where contractual appointment comes to an end by efflux of time, the appointee will have no right to the post and can be terminated from service even where the appointee is continued in service after the contractual period.

The decision of the Supreme Court in the case of Manmohan Singh Jaitla Vs. Commissioner, Union Territory of Chandigarh and Others, relied on by Mr. Roy was distinguish able from the facts of the present case. In the case of Singh the Managing Committee of the College sought to terminate the service of a teacher appointed by the outgoing management in defiance of a Statutory provision contained in Section 3 of the Punjab Aided School (Security of Service) Act by taking recourse to a clause in the agreement between the teacher and the management and on the facts of the case the Supreme Court found that the new Managing Committee had acted with malafides in dispensing with the service of the teacher appointed by the outgoing Managing Committee in clear defiance of Section 3 of the said Act which made it obligatory for the Managing Committee to hold a disciplinary inquiry before an employee of an Aided School could be either dismissed or removed from service for misconduct. In the present case, there was no breach of the statutory provision in Rule 18 of the 1976 rules inasmuch as the Petitioner''s service was to be released on the expiry of the leave period of Shri B.K. Nath as per the order of the Director of Public Instruction in the memo dated 13-6-90 and in my opinion, by the resolution dated 18-12-92, the Governing body merely terminated the service of the Petitioner in accordance with the said order of the office of the Director of Public Instruction.

The next question that falls for determination is whether the Petitioner is entitled to be considered and appointed on regular basis in the vacancy of Lecturer Economics in the Gauhati Commerce College. No statutory provision as such has been brought to my notice by Mr. Roy, learned Counsel for the Petitioner, under which the Petitioner is entitled as of right to be considered and appointed on regular basis in the said vacancy of Lecturer, Economics in the College. Mr. Roy has only relied on the circular dated 2-7-91 but a plain reading of the said circular would show that it has been suggested therein by the D.P.I. Assam that when a sanctioned post becomes vacant in the department, due preference should be given to those teachers who are already working against the non-sanctioned post in a particular department. From the language used in the said circular it is difficult to hold that the Governing body of the College was bound to regularise the service of the Petitioner in the post of Lecturer, Economics which has fallen vacant on account of Shri B.K. Nath not resuming his duties after the period of lien. The reliance placed by Mr. Roy on the affidavit-in-opposition filed on behalf of the Respondent No. 2 cannot be of any help to him in view of the said plain language in the circular dated 2-7-91. On the contrary, in the said affidavit-in-opposition filed on behalf of the Respondent No. 2 it has been staled in paragraph-1 that it is the Governing body of the Special Body of a College which is the sole appointing authority and it is for them to consider the appointment subject to the approval of the D.P.I., Assam and that the Petitioner''s case deserves a sympathetic and favourable consideration. Considering the fact that the Petitioner was duly selected by a Selection Committee in its meeting held on 22-7-89 for appointment as Lecturer in the College and considering the fact that for a period of more than 3 years from 7-8-89 to 31.12.92 the Petitioner had been working as such Lecturer and during this period she had mined down some offers of employment from other institutions, I am of the opinion that the Petitioner''s ease for appointment to the said regular post of Lecturer. Economics deserves due consideration by the Respondent No. 3. It appears from the averments in paragraph 7 of the affidavit-in-opposition of Respondents No. 3 and 4 that pursuant to the advertisement dated 19-11-92, the Petitioner has already applied to the said post, but un interview of all the candidates who had applied could not be held due to various reasons and in the meanwhile by interim order dated 20-7-93, this Court directed that the post shall not be filled up until further orders. Mr. Goswami has assured this Court at the time of hearing that the Petitioner''s case shall be duty considered along with other candidates and her experience as Lecturer in the College for more than 3 years shall be taken into consideration. In view of this assurance, I have no doubt in my mind that the Petitioner''s case will be fairly and duly considered by the Respondent No. 3.

In the result therefore, I am not inclined to quash the impugned letter dated 23-12-92 issued by the Respondent No. 4 releasing the Petitioner from the post of Lecturer, Economics of the Gauhati Commerce College w.e.f. 1-1-93, but I hope and trust that the Respondent No. 3 shall consider the case of the Petitioner along with other applicants in the light of observations made, in paragraph 12 of this judgment and fill up the post with the approval of the D.P.I., Assam within a period of 3 months from today. The interim order dated 20-7-93 is vacated and the petition is accordingly disposed of.