Sanny Devi vs State of H.P. and Others

Deepak Gupta, J.—This petition is directed against the action of Respondent No. 5 whereby the services of the Petitioner as cook in Government Primary School, Chaura, Block Karsog, District Mandi have been terminated and the Respondent No. 6 has been retained in her place.

The undisputed facts of the case are that the Petitioner was employed as a cook under the Mid Day Scheme in Government Primary School, Chaura, Block Karsog on 2.9.2004. The Respondent No. 6, Krishna was appointed as Helper in the same school on 20.1.2007, i.e. three years later.

On 29.4.2010 the Deputy Director, Primary Education issued a letter stating that if the number of students in a school falls below 25 then only one cook/helper will be kept in the school and the services of the senior most cook shall be retained and the services of the junior most cook would be dispensed with. Basically the Department introduced the principle of ''last come first go'' for terminating the services of the cooks.

Sh. Narender Sharma, learned Counsel for the Petitioner submits that in view of the letter dated 29.4.2010, the School Management Committee could not go into the merits of the candidates and had to act strictly in accordance with the principle of ''last come first go'' and the person who had last joined the school must be asked to go first.

Sh. Javed Khan, learned Counsel for the Respondent No. 6 submits that the principle of ''first come last go'' cannot be applied since the Petitioner has been removed on account of the fact that she is indulging in the illegal activity of casteism and she remained absent from the school from time to time and, therefore, such action has been taken against her.

This submission of Sh. Javed Khan cannot be accepted for various reasons. Did the Respondent No. 5-Parent Teacher Association wake up to the alleged illegal activities of the Petitioner only after the instructions were issued that there would be only one cook/helper in the school? Why was the Parent Teacher Association silent for six years if the Petitioner had been indulging in such illegal activities.

Another aspect of the matter is that Sh. Nanak Chand, President of the Parent Teacher Association is none else but the husband of the Respondent No. 6. He had no business to take part in any proceedings where there was a conflict between his wife, i.e., Respondent No. 6 and the Petitioner. The entire action of the Respondent No. 5 under the Presidentship of Sh. Nanak Chand is illegal because of the bias of Nanak Chand in favour of his wife. No reliance can be placed on such action.

According to the Respondent No. 5 when it visited the school in the month of June, 2010, it came to know about the incompetence and illegal activities of the Petitioner. No notice was given to the Petitioner and without any notice being given to her, her services were terminated and it was decided by the Parent Teacher Association that the Respondent No. 6 who is the wife of the President of the Association be retained as a cook in the school. This action smacks of malafides.

The principle of ''last come first go'' is a well established principle of service jurisprudence which has found statutory recognition in certain acts like the Industrial Disputes Act. In case this principle is not applied then there is danger of arbitrariness. One cannot loose sight of the fact that the Petitioner has been working in the school as cook for the last six years. The Government in its wisdom has taken a decision that principle of ''last come first go'' has to be followed. It cannot be said that this principle is arbitrary. It applies across the board in all schools where there is reduction in the number of cooks. Therefore, I see no reason why the Petitioner who had put in longer service should be asked to go first.

In view of the above discussion, I am of the considered opinion that the principle of ''last come first go'' is applicable in this case and in case, the services of any employee had to be removed because of some alleged illegal activities, no such action can be taken without giving any notice to such an employee and without following the principle of natural justice. Therefore, the petition is allowed subject to payment of Rs. 3000/- as costs. Costs are to be paid by the Respondents No. 5 and 6 jointly. It is, therefore, directed that the Petitioner be retained in service and the services of the Respondent No. 6 be dispensed with by applying the principle of ''last come first go''.

The petition is disposed of in the aforesaid terms with costs as aforesaid.