Munia Sharma vs State of Rajasthan and Others

Veerender Singh Siradhana, J.—The petitioner after having successfully participated in the recruitment process for appointment to the post of Primary School Teacher, in response to the advertisement published by the Rajasthan Public Service Commission (for short ''Commission''), in the year 2004, was accorded appointment vide order dated 25th April, 2005. However, the services of the petitioner were terminated vide order dated 29th June, 2005, and therefore, instituted the instant writ proceedings praying for the following relief(s):--

"i) Writ of mandamus of any other writ direction in he following nature may kindly be issued.

ii) "The order dated 20.06.2005 (Annexure-1) may kindly be set aside and quashed with all consequential benefits and it may kindly be declared that the petitioner shall be deemed to be in service w.e.f. 25.04.2005, the date when she had initially joined her duties on the post of Primary School Teacher."

iii) That the respondent may be directed to pay salary to the petitioner for the post of Primary Teacher since 25.04.2005, the date on which she joined services on the post of Primary teacher Elementary Education.

iv) Any other order or direction which may be considered just and proper in the facts and circumstances of the case be passed in favour of the petitioner."

Shorn off unnecessary details, the indispensable material facts necessary for appreciation of the controversy raised herein needs to be first noticed. The petitioner participated in the recruitment process in response to the advertisement issued by the respondent-Commission in the year 2004. The result of the recruitment process involved herein, was declared on 2nd June, 2004. In response to the offer of appointment dated 12th April, 2005, the petitioner joined her duties on 25th April, 2005. However, the services of the petitioner were terminated vide order dated 29th June, 2005, without any reason or rhyme. During the pendency of the writ proceedings the State-respondents vide order dated 2nd February, 2006, appointed the petitioner afresh and the petitioner joined her duties, in compliance thereof, on 16th February, 2006.

In response to the notice of the writ application the State-respondents have filed their counter affidavit admitting the fact of cancellation of the appointment order of the petitioner, vide impugned order dated 29th June, 2005. However, in the additional plea the State-respondents have detailed out that vide order dated 2nd February, 2006, the petitioner has been accorded appointment as Teacher at Primary School Boriyapada, Panchayat Samiti, Pipalkhunt as per her merit number 19555, and she has joined her duties, and therefore, there is no grievance for redressal and nothing material survives for adjudication in the writ application, which has, in fact, become infructuous.

Ms. Purvi Mathur, learned counsel appearing on behalf of the petitioner, reiterating the pleaded facts and grounds of the writ application strenuously argued that the petitioner''s name found place in the merit order at serial number 19555, as would be evident from the offer of appointment dated 12th April, 2005 (Annexure-2). The offer of appointment was cancelled, terminating the services of the petitioner, vide impugned order dated 29th June, 2005, while retaining persons in service who were far below in the merit list than the petitioner. The petitioner addressed several representations, which evoked no response.

According to the learned counsel for the petitioner the action of the State-respondents in terminating the services of the petitioner is absolutely illegal, arbitrary and without any reason or rhyme. Moreover, the impugned order has been passed in flagrant violation of the principles of natural justice. Be that as it may, the respondents instead of withdrawing the impugned order dated 29th June, 2005, have passed an order dated 2nd February, 2006 according appointment to the petitioner afresh, which has resulted into huge loss to the petitioner including financial loss. The impugned order has also been assailed for being in violation of the mandate of Article 14, 16 and 21 of the Constitution of India. In order to buttress her submissions, the learned counsel for the petitioner, has placed reliance on the opinion of the Hon''ble Supreme Court in the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D. Ed.) and Others, (2013) 6 ABR 304 : (2013) 10 AD 89 : (2013) 139 FLR 541 : (2013) LabIC 4249 : (2013) 4 LLN 417 : (2013) 11 SCALE 268 : (2013) 10 SCC 324 : (2013) 4 SCT 716 .

Mr. Parikshit Singh, learned Deputy Government Counsel, for the State-respondents, reiterated the pleaded stands in the reply/counter affidavit, to the writ application and agreed that the petitioner has already been accorded appointment vide order dated 2nd February, 2006, and has also joined her duties, and therefore, nothing material survives for adjudication in the writ application, and the same deserves to be dismissed.

I have heard the learned counsel for the parties and with their assistance perused the materials available on record.

Indisputably, the petitioner was accorded appointment vide order dated 12th April, 2005, being successful in the recruitment process of which result was declared on 2nd June, 2004. She joined her duties on 25th April, 2005. However, services of the petitioner were terminated on 29th June, 2005, cancelling the appointment order dated 12th April, 2005.

The averments made in the writ application have been admitted with an additional plea to the effect that she has been accorded appointment afresh vide order dated 2nd February, 2006, and therefore, the writ application has become infructuous. The petitioner has no grievance for redressal in view of the order dated 2nd February, 2006.

The respondents have not detailed out any reason, worth the name, for cancellation of the appointment order dated 12th April, 2005 vide order dated 29th June, 2005. Further, the petitioner has been accorded appointment afresh vide order dated 2nd February, 2006, as per her merit number 19555. She joined her duties in compliance thereof on 16th February, 2006.

The specific statement made by the petitioner under paragraph 7 of the writ application to the effect that persons who were below the petitioner in merit order, in the Examination of 2004, in the Open General Competition Category, were retained and this fact has not been disputed in the counter affidavit. Thus, it is evident that there was no reason for terminating the services of the petitioner vide impugned order dated 29th June, 2005.

In the peculiar facts and circumstances of the case as well as in view of the materials available on record, termination of employment of the petitioner was per se illegal. Nothing is discernible from the impugned order dated 29th June, 2005, as to why the offer of appointment dated 12th April, 2005, wherein name of the petitioner appeared at serial number 5, was cancelled.

In the case of Deepali Gundu Surwase (supra), the Hon''ble Supreme Court, after a survey of several earlier precedents, under paragraph 33 culled out the propositions, which reads thus:--

"33. The propositions which can be culled out from the aforementioned judgments are:

i) In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.

ii) The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.

iii) Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.

iv) The cases in which the Labour Court/Industrial Tribunal exercises power Under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and/or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages.

v) The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer''s obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.

vi) In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-�-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited (supra).

vii) The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal (supra) that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman."

In the instant case at hand, the fact that the petitioner was offered appointment, according to her merit number 19555, on 12th April, 2005, is not in dispute. The services of the petitioner were terminated on 29th June, 2005, without any reason or rhyme. The representations addressed to the State-respondents evoked no response, and therefore, the petitioner instituted the instant writ proceedings. During the pendency of the writ application the petitioner has been accorded appointment on 2nd February, 2006, according to her merit position i.e. 19555.

The fact that the persons lower in merit list, were retained, while terminating the employment of the petitioner, is not in dispute. The entire claim of the petitioner has been admitted in the counter affidavit with an additional plea to the effect that since the petitioner has been accorded appointment vide order dated 2nd February, 2006; the petitioner has no grievance for redressal, and therefore, the writ application has been become infructuous. The facts and materials available on record confirms the fact that the termination of the services of the petitioner, vide order dated 29th June, 2005, was illegal, arbitrary and in flagrant violation of the principles of natural justice.

In the result, the writ application succeeds and is hereby allowed. The impugned order dated 29th June, 2005 (Annexure-1), is hereby quashed and set aside. The petitioner would be deemed to be in service with effect from 25th April, 2005, the date when she joined her duties as Primary School Teacher, in view of the order of appointment dated 12th April, 2005, with all consequential benefits, including salary.

The respondents are directed to release the due salary for the entire period with effect from 25th April, 2005, within a period of three months from the date of receipt of a certified copy of this order, failing which the amount shall carry on an interest @ 12 per cent per annum.

In view of the final adjudication on the writ application, the stay application stands closed.

However, in the facts and circumstances of the case, there shall be no order as to costs.