http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8

PETITIONER:

MANMOHAN SINGH JAITLA, ETC. ETC

Vs.

RESPONDENT:

THE COMMISSIONER. UNION TERRITORY CHANDIGARH AND ORS. ETC.

DATE OF JUDGMENT19/12/1984

BENCH:

DESAI, D.A.

BENCH:

DESAI, D.A.

KHALID, V. (J)

CITATION:

1985 AIR 364 1985 SCR (2) 479

1984 SCC Supl. 540 1984 SCALE (2)991

CITATOR INFO :

R 1986 SC1571 (57)

R 1989 SC 341 (14)

ACT:

Punjab Aided Schools (Security of Service) Act, 1969-S.

3-Holding of inquiry before dismissing an employee of an

aided school is mandatory-S. 3 is beneficial provision-On

appointment teacher asked to enter into agreement with

school management-Agreement in derogation of mandatory

provision-Managing Committee terminated service of teacher

without holding inquiry by invoking conditions of agreement-

Whether amounts to colourable exercise of power-Whether

order of termination of service bad and ab initio void.

Constitution of India Art 227-Scope of writ

jurisdiction-Expression 'Tribunal in Art. 227 comprehends

Deputy Commissioner and Commissioner which are statutory

quasi-judicial authorities under the Punjab Aided Schools

(Security of Service) Act 1969-Deputy Commissioner and

Commissioner are amenable to the writ jurisdiction.

Interpretation-Any agreement not in consonance with

the statutory provisions beneficial to a class in need of

protection cannot be given effect to it stands in

derogation of the mandatory provisions of the statute.

HEADNOTE:

Section 3 of the Punjab Aided Schools (Security of

Service) Act, 1969 ('1969 Act' for short) provides that no

employee shall be dismissed or removed or reduced in rank

except after an inquiry to be held in the manner prescribed

therein. Sub-sec. (2) provides that no order of dismissal or

removal or reduction in rank of an employee shall take

effect unless it has been confirmed by the Deputy

Commissioner who may refuse to do so. if in his opinion, the

provisions of sub-sec. (I) have not been complied with. Sub-

sec. (S) permits an aggrieved person to prefer an appeal

against any decision or order of the Deputy Commissioner

under the section to the Commissioner.

The appellant in the civil appeal was appointed as

Headmaster of an aided school which received 95 percent of

its expenses as grant from the Government. As required by

the conditions of his appointment, the appellant entered

into an agreement with the management of the school. The

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8

appellant's appointment was confirmed by the concerned

authority. The appellant was confirmed in his post as the

Headmaster. The appellant was

480

awarded a certificate of honour by the Chandigarh

administration in token of appreciation of the outstanding

performance of the appellant. After the term of the Managing

Committee which appointed the appellant expired and the new

Managing Committee took over, the services of the appellant

were terminated invoking the conditions of the agreement

entered into by the appellant. The appellant's appeal to the

Deputy Commissioner and the Commissioner were turned down.

The appellant's writ petition was dismissed by the High

Court in limine. The High Court observed that as the school

cannot be said to be 'other authority' under Art. 12 of the

Constitution, it was not amenable to the writ jurisdiction

of the High Court. Hence this appeal by Special Leave.

The petitioner in the writ petition was appointed as a

Drawing Teacher in 1976. As required by the conditions of

his appointment the petitioner entered into an agreement

with the management. In 1983 the petitioner's services were

terminated invoking the conditions of the agreement. The

petitioner approached the Deputy Commissioner and the

Commissioner without success. Thereupon he field the present

writ petition under Art. 32 of the Constitution.

Allowing both the appeal and the writ petition,

^

HELD: Any agreement not in consonance with the

statutory provisions beneficial to a class in need of

protection cannot be given effect to if it stands in

derogation of the mandatory provisions of the statute.

Section 3 of the 1969 Act makes it obligatory to hold a

disciplinary inquiry before an employee of an aided school

can be either dismissed removed or reduced in rank. In order

to circumvent this mandatory provision, a resort to the

provisions of the agreement in the context of the fact that

an inquiry was commenced and given up clearly indicates the

true nature of the order as well as colourable exercise of

power. And this was done by the new Managing Committee which

appeared to be keen to dispense with the service of persons

appointed by the outgoing Managing Committee. This smacks of

malafide. For these reasons the order of termination of

service of the appellant is bad and ab initio void. [485E-G]

The High Court declined to grant any relief on the

ground that an aided school is not 'other authority' under

Act. 12 of the Constitution and is therefore not amenable to

the writ jurisdiction of the High Court. The High Court

clearly overlooked the point that Deputy Commissioner and

Commissioner are statutory authorities operating under the

969, Act. They are quasi-judicial authorities and that was

not disputed. Therefore, they will be comprehended in the

expression 'Tribunal' as used in Art. 227 of the

Constitution which confers power of superintendence over all

courts and tribunals by the High Court throughout the

territory in relation to which it exercises jurisdiction.

Obviously, therefore, the decision of the statutory quasi-

judicial authorities which can be appropriately described as

tribunal will be subject to judicial review namely a writ of

certiorari by the High Court under Art. 227 of the

Constitution. The decision questioned before the High Court

was of the Deputy Commissioner and the Commissioner

exercising power under Sec. 3 of the 1969 Act. And these

statutory

481

authorities are certainly amenable to the writ jurisdiction

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8

of the High Court. [485G-H; 486A-C]

After the decision of the Constitution Bench of this

Court in Ajay Hasia etc. v. Khalid Mujib Sehravardi and Ors.

etc. the aided school receiving 95% of expenses by way of

grant from the public exchequer and whose employees have

received the statutory protection under the 1969 Act and who

are subject to the relations made by the Education

Department of the Union Territory of Chandigarh as also the

appointment of Headmaster to be valid must be approved by

the Director of Public Instructions , would certainly be

amenable to the writ jurisdiction of the High Court. [486C-

D]

Ajay Hasia etc. v. Khalid Mujib Sehravardi and Ors.

etc., [1981] 2 SCR 79, referred to.

The Deputy Commissioner and the Commissioner in terms

held in both the cases that because of the terms of the

agreement entered into by each of the teachers with the

management of the school, it would not be open to them to go

behind the order and to find out the true nature of the

order. Now if the management of the school intends to

circumvent the mandatory provisions of Sec. 3 of the 1969

Act, it has merely to terminate the service by giving one

month's notice as provided in the agreement and the

provisions controlling the arbitrary powers of the

management to hire and fire can be rendered nugatory. The

Deputy Commissioner cannot take an easy recourse becoming

oblivious to his duties merely to pay lip sympathy to the

order made by the management and decline even to examine the

allegation of malafide as also the true nature and character

of the impugned order. [484B-D]

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2137 of

1984.

From the Judgment and Order dated 24.2.83 of the

Punjab and Haryana High Court in Civil Writ No.1086/83.

WITH

Writ Petition No. 11238 of 1983

Under Article 32 of the Constitution

K.G. Bhagat, Additional Solicitor General and Vimal

Dave for the appellant in CA. No. 2137/84.

K.G. Bhagat, Additional Solicitor General and Ms. Asha

Rani Jain for the petitioner in WP. N o. 11238/83.

Prithvi Raj and R.C. Pathak for the respondents.

The Judgment of the Court was delivered by

482

DESAI, J. Guru Nanak Khalsa High School ( ' School' for

short) an aided school and hence governed by The Punjab

Aided Schools (Security of Service) Act, 1969 ('1969 Act'

for short) in its application to the Union territory of

Chandigarh dispensed with the service of the Headmaster of

the School, appellant Shri Manmohan Singh Jaitla, and the

drawing teacher Amir Singh claiming to exercise power under

an agreement executed by each of them with the management of

the school. Admittedly, the school receives 95% of its

expenses as grant from the Government and for contribution

5% of the expenses claims thoroughly arbitrary powers to be

presently pointed out which appears to be anachronistic. The

action of the Managing Committee of the school in dispensing

with the services of both the aforementioned persons is

questioned in these two matters on more or less identical

grounds and therefore they were heard together and are being

disposed of by this judgment.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8

In Re: C.A. No. 2137/84:

Pursuant to an advertisement inviting application for

the post of Headmaster of the School, appellant- Shri

Manmohan Singh Jaitla applied for the same. He was

interviewed on March 28, 1976 and on the same day by the

order of the same date, he was offered the post of

Headmaster in the school in the prescribed scale with usual

allowances sanctioned by the Education Department, Chandi-

garh Administration for grant-in-aid Schools. The order of

appointment provided that the appointee will be on probation

for a period of one year and that he will be required to

enter into an agreement with the school. The appellant

accepted the appointment order and joined service. As

required by the regulations of the Education Department of

Chandigarh Administration, his appointment was subject to

confirmation by the Director of Public Instruction. The

confirmation was granted as per the order dated August 11,

1976. By the resolution of the Managing Committee of the

School dated June 2, 1977, the appellant was confirmed with

effect from May 1, 1977 in post as the Headmaster. In token

of the appreciation of the outstanding performance of the

appellant as Headmaster in the field of academic work/co-

curricular activities and administration during the session

1980-81, he was awarded a certificate of honour by the

Finance and Education Secretary, Union Territory of

Chandigarh, on August 10, 1981. It appears that the term of

the earlier Managing Committee expired and a new Managing

Committee took over with effect from March 24,1982. On

January 31,1983, the Education Managing Committee of' the

school informed the appellant that his

483

services were no longer required with effect from that very

day i.e. January 1983 and in terms of Condition No. (iii) of

the agreement entered into by him, he would cease to be in

the employment of the school and was directed to hand over

charge to Mrs. Gurcharan Kaur. The appellants application

for relief to the Deputy Commissioner under sub-sec. (2) of

Sec. 3 of the 1969 Act was turned down. After an

unsuccessful appeal to the Commissioner, the appellant

approached the High Court of Punjab and Haryana at

Chandigarh under Art. 227 of the Constitution. The High

Court rejected the writ petition in limine but by a speaking

order observing that as the school] cannot be said to be

'other authority' under Art. 12 of the Constitution, it was

not amenable to the writ , jurisdiction of the High Court.

Hence this appeal by special leave.

In Re W. P. No. 11238/83:

Petitioner Amir Singh was appointed by the Managing

Committee of the School on March 21, 1976 as a Drawing

Teacher as per the appointment order No.1265 dated March 21,

1976. This appointment was made upon an application made by

the petitioner and after he was interviewed by the concerned

committee of the school. The appointment order spells out

some of the conditions of appointment, one of them may be

noticed. The appointee had to enter into an agreement with

the management of the school. The petitioner was informed by

a letter dated February 28, 1983 that as per the resolution

adopted by the Managing Committee of the school, it was

resolved to terminate the service of the petitioner as no

longer required with effect from the fore-noon of March 4,

1983 in terms of first part of clause (6) of the agreement

entered into between the petitioner and the Management. The

petitioner approached the Deputy Commissioner and the

Commissioner without success. Thereupon he filed present

petition under Art. 32 of the Constitution.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8

It is not in dispute that the school is governed by

the 1969 Act. It is an aided school receiving aid from the

State Government to the tune of 95% of its expenses. Sec. 3

of the 1969 Act provides that no employee shall be dismissed

or removed or reduced in rank except after an inquiry to be

held in the manner prescribed therein. Sub-sec. (2) provides

that no order of dismissal or removal or reduction in rank

of an employee shall take effect unless it has been

confirmed by the Deputy Commissioner who may refuse to do

so, if in his opinion, the provisions of sub-sec. (1) have

not been complied with. Sub-sec. (5) permits an aggrieved

person to prefer an appeal

484

against any decision or order of the Deputy Commissioner

under the section within a period of thirty days to the

Commissioner. Sub-sec. (6) provides that the order of the

Commissioner shall be Final and binding between the parties.

The Deputy Commissioner and the Commissioner in terms

held in both the cases that because of the terms of the

agreement entered into by each of the teachers with the

management of the school, it would not be open to them to go

behind the order and to find out the true nature of the

order. It was also submitted on behalf of the respondent

that under the relevant regulations of the Education

Department of the Chandigarh Administration every employee

of an aided school has to enter into an agreement with the

management of the school. Now if the management of the

school intends to circumvent the mandatory provisions of

Sec. 3 of the 1969 Act, it has merely to terminate the

service by giving one month's notice as provided in the

agreement and the provisions controlling the arbitrary

powers of the management to hire and fire can be rendered

nugatory. The Deputy Commissioner cannot take an easy

recourse becoming oblivious to his duties merely to pay lip

sympathy to the order made by the management and decline

even to examine the allegation of malafide as also the true

nature and character of the impugned order. In the garb of

enforcing a term of the agreement what was sought to be done

in this case was to impose the penalty of removal. And there

is sufficient material on record to show that the action was

malafide.

Turning to the case of Manmohan Singh Jaitla, the

Headmaster, the facts herein above narrated would

affirmatively show that he was fully qualified and that he

was appointed after interview and selection. He was

confirmed. He received a certificate of merit from the

Chandigarh Administration. The moment the Managing Committee

changed exposing the inter-se squabbles amongst persons

trying to usurp control of the management of the school,

almost wholly financed by the public exchequer, to wreck

vengeance against those who were appointed by the outgoing

management which may have been defeated at the hustings, the

agreement was invoked and the services terminated. Throwing

out persons appointed by out going management is only one

side of the coin. The moment the vacancy occurs, nepotism or

corruption will have field day. Since the new management

took, over quietly within a few months, service of the

Headmaster was terminated on the ground that his service was

no longer required. We repeatedly asked Mr. Prithvi Raj,

485

learned counsel for the respondent-school management as to

how it would run a school without a Headmaster. We naggingly

persisted with the question as to why it became necessary,

obviously in the middle of the term or session on January

31, 1983, to dispense with the service of a Head Master and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8

a Drawing teacher on the ground that they were no longer

required. We waited for the answer in vain. Obviously, there

could be none and that provides proof, if any was needed, to

expose the chink in the cupboard revealing the malafides of

the newly elected Managing Committee. We cannot efface the

feeling that ignoring the meritorious service for a period

of seven years the service of the appellant was dispensed

with for a reason wholly untenable but only because he was

appointed by the outgoing Managing Committee ignoring that

his appointment was confirmed by the competent authority of

the Chandigarh Administration. Coupled with this is the fact

that a charge-sheet was served on the appellant on April 9,

1979 and a disciplinary enquiry was commenced by the school

management. But the same was withdrawn and the power to

terminate the service under the agreement was invoked and

exercised. This gives a clear indication as to the punitive

character of the order namely punishment for a possible

misconduct and also colourable exercise of power by

resorting to the agreement. Any agreement, not in consonance

with the statutory provisions beneficial to a class in need

of protection cannot be given effect to if it stands in

derogation of the mandatory provisions of the statute. Sec.

3 makes it obligatory to hold a disciplinary enquiry before

an employee of an aided school can be either dismissed,

removed or reduced in rank. In order to circumvent this

mandatory provision, a resort to the provisions of the

agreement in the context of the fact that an enquiry was

commenced and given up clearly indicates the true nature of

the order as well as colourable exercise of power. And this

was done by the new Managing Committee which appeared to be

keen to dispense with the service of persons appointed by

the outgoing Managing Committee . This smacks of malafide.

For all these reasons the order of termination of service of

the appellant is bad and ab initio void.

The High Court declined to grant any relief on the

ground that an aided school is not 'other authority' under

Art. 12 of the Constitution and is therefore not amenable to

the writ jurisdiction of the High Court. The High Court

clearly overlooked the point that Deputy Commissioner and

Commissioner are statutory authorities operating under the

1969 Act. They are quasi-judicial authorities and that was

not disputed. Therefore, they will be comprehen-

486

ded in the expression 'Tribunal' as used in Art. 227 of the

which confers power of superintendance over all courts and

tribunals by the High Court throughout the territory in

relation to which it exercises jurisdiction. Obviously,

therefore, the decision of the statutory quasi-judicial

authorities which can be appropriately described as tribunal

will be subject to judicial review namely a writ of

certiorari by the High Court under Art. 227 of the

Constitution. The decision questioned before the High Court

was of the Deputy Commissioner and the Commissioner

exercising powers under Sec. 3 of the 1969 Act. And these

statutory authorities are certainly amenable to the writ

jurisdiction of the High Court.

The matter can be viewed from a slightly different

angle as well. After the decision of the Constitution Bench

of this Court in Ajay Hasia etc.v. Khalid Mujib Sehrvardi &

Ors. etc-(l) the aided school receiving 95%- of expenses by

way of grant from the public exchequer and whose employees

have received the statutory protection under the 1969 Act

and who is subject to the regulations made the Education

Department of the Union Territory of Chandigarh as also the

appointment of Head Master to be valid must be approved by

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8

the Director of public Instructions, would certainly be

amenable to the writ jurisdiction of the High Court. The

High Court unfortunately, did not even refer to the decision

of the Constitution Bench in Ajay Hasia's case rendered on

November 13, 1980 while disposing of the writ petition in

1983. In Ajay Hasia's case, Bhagwati, J. speaking for the

Constitution Bench inter alia observed that 'the financial

assistance of the State is so much as to meet almost entire

expenditure of the corporation, it would afford some

indication of the corporation being impregnated with

governmental character.' Add to this the existence of deep

and pervasive State control may afford an indication that

the Corporation is a State agency or instrumentality

Substituting the words 'public trust' in place of the

'corporation' and the reasons will mutatis mutandis apply to

the school. Therefore, also the High Court was in error in

holding that the third-respondent school was not amenable to

the writ jurisdiction of the High Court.

It would thus appear that the order of termination of

service is unsustainable for more than one reason and

therefore, the order of termination of service No. 58/83/20

dated January 31,1983 is quashed and set aside and the

appellant Manmohan Singh Jaitla is reinstated in service as

the Headmaster of the school with continuity

(1)[1981] 2 S.C.R. 79.

487

in service and full backwages. If under the orders of this

Court A dated March 2, 1983, May 2, 1983 and subsequent

orders, the appellant-Headmaster is paid his monthly salary,

credit shall be taken for the same.

Amir Singh, the Drawing Teacher has met with the same

fate. He was appointed pursuant to his application for a

vacant post of a Drawing Teacher. Right from the inception,

he was a confirmed hand in the sense that he was not put on

probation. Suddenly, after the new Managing Committee got

into saddle, his service was terminated with effect from

March 4, 1983 on the ground that it was no longer required.

No attempt was made before us to sustain the order on this

untenable ground. Therefore, the only distinguishable

feature of this case with the case of the Headmaster

Manmohan singh Jaitla is that no charge-sheet was served

upon the petitioner teacher. Save and except this

difference, all the reasons which weighed with us in

quashing the order of termination of service of Headmaster-

Mr Jaitla would mutatis mutandis apply to the case of this

Drawing Teacher. To restate these reasons would merely add

to the length of this judgment. As a corollary, the rule

will have to be made absolute after quashing and setting

aside the order of termination of service dated February 28,

1983 and directing reinstatment of Drawing Teacher Amir

Singh in service with continuity in service with full

backwages.

Accordingly, C. A. No. 2137/84 is allowed and the

order terminating the service of Headmaster Manmohan Singh

Jaitla is quashed and set aside as also the decisions of the

Deputy Commissioner and the Commissioner and the Judgment of

the High Court are quashed and set aside. The appellant

Headmaster Shri Manmohan Singh Jaitla is reinstated in

service with continuity in service and full backwages

subject to the fact that if backwages have been paid under

the orders of this Court, credit may be given for the same.

Rule is made absolute in the writ petition filed by

Drawing Teacher Amir Singh and the order terminating his

service dated February 28, 1913 is quashed and set aside as

also the orders of the Deputy Commissioner and Commissioner

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8

and he is reinstated in service with continuity in service

with back-wages.

The respondent-School management shall pay the costs

to both the employees separately quantified in each case at

Rs 1, 500.

H.S.K. Petition and appeal allowed.

488