B. L. Mandawat and Ors. v. Union of India and Ors

In this application, I.A. No. 1of1991 filed in W.P. No. 16044 of 1984 (W.P. No. 1470 of 1981) by the petitioner therein Smt. Nirmal Bhalla, it is prayed that appropriate directions shall be issued by this Court to the D Respondents - (1) The Union of India, (2) The Chairman, Department of Atomic Energy, (3) The Chief Administrative Officer, Atomic Power Project, ( 4) The Principal, Atomic Energy Education Society, (5) The Chief Project Engineer, Rajasthan Atomic Power Project and ( 6) The Secretary, Atomic Energy Education society, to make them carry out the E assurance contained in letter No. 2/15(6)/81-PP Vol. II dated 27th July, 1984 of the Government of India, Department of Atomic Energy in the matter of absorbing her by Respondent-6 -the Atomic Energy Education Society (the AEE Society) protecting her existing designation, grade pay and allowances as a teacher in the Rajasthan Atomic Power Project School (the RAPP School). The material facts and circumstances which form the basis of petitioner's application \Varrant mention, at the outset. The petitioner \Vas a teacher in the RAPP School cversince thc,ryear 1972 and had been in the year 1983 duly selected and promoted as trained G Graduate Teacher. Her shvice record was unquestionable. The Central Government desired that the RAPP School which was run by the Depart­ ment of Atomic Energy should be transferred to Lhe AEE Society, so as to enable the latter lo run it independently of the Department of Atomic Energy, with its readiness to meet the whole expenditure to be incurred by H the AEE Society in running that school. B.L. MANDAWA"I'v. U.0.l. 579 The <lesired transfer of the RAPP School to the AEE Society came A to be questioned by one of the teachers of the RAPP School in Writ Petition (C) No. l470 of 1981 filed in this Court, apprehending retrench­ ment of existing RAPP School teachers by the AEE Society, in the event of the <lesired transfer taking place. The petitioner was a teacher who got impleaded in that writ petition and was treated as a writ petitioner in W.P. (C) No. 16044 of 1984. When the main writ petition along with the other writ petitions were heard by this Court and had to be decided, and opportunity was afforded by this Court to the Respondents, as <lesired by them, to have the matter amicably settled with the teachers and other employees of the RAPP School. Thereafter, letter No. 2/15(6)/81-PP Vol. JI dated 27th July, 1984 sent by the Joint Secretary to the Government of C India, to Respondents' Learned counsel, was placed for consideration of the Court. The material portion of the letter read: "WHEREAS the matter has been re-examined and reconsidered by the respondents No. 1 to 5 in the said writ petition, and WHEREAS the said respondents earnestly desire to help find a reasonable compromise of the said writ, I, S.K. Bhandarkar, Joint Secretary to the Government of India, in the Department of Atomic Energy on behalf of respondent No. . E 1 Union of India offer the following proposals for consideration of the petitioners for an amicable compromise. The other respon­ dents No. 2 to 5 are subordinate officers of respondent No.1. (1) In accordance with Government of India's decision which has been approved by their Ministry of Labour too, the Govern- F ment of India in the Department of Atomic Energy will close the Rajasthan Atomic Power Project Higher Secondary School (English Medium) on 31st of December, 1.984. (2) The petitioners and all other teachers will be paid at the time G of closure retrenchment compensation payable in law. (3) The Government of India in the Department of Atomic Energy will use their good offices with the Atomic Energy Education Society which is substantially financed by the Government, to help find appropriate employment to the H 580 SUPREME COURT REPORTS (1993] SUPP. 1 S.C.R. petitioners and other teachers of the RAPP Higher Secon­ dary School (English Medium) and protection of their exist­ ing designation, grade, pay and allowances. I understand that the Atomic Energy Education Society Respondent No. 6 which is an autonomous body, and to which a request was already made by the Department of Atomic Energy to open a School at the Rajasthan Atomic i:ower Project site too has made its proposals to the petitioners for an amicable com­ promise. I shall be grateful if the petitioners let the respondents know their reaction to the above proposals by 6th of August, 1984." This Court, acting on the assurance contained in the said letter made and order on 8th May, 1987 dismissing Writ Petition (C) No. 1470/81 and discharging the Rule Nisi which had been ordered therein. That order D read: "Ha\ing considered the grievances of the petitioner in this Writ Petition, we are of the opinion that in view of the letter No. 2/15(6)/81-PP Vol. II dated 27th July, 1984 of the Govt. of India, Depariment of Atomic Energy this writ petition has become in- E fructuous. The grievances of the petitioner have been fully met by the assurance contained in the aforesaid letter. In that view of the matter, this application is dismissed. Rule Nisi discharged. There is no order as to costs. All interim orders are vacated." By the dismissal of the main W.P. (C) No. 1470/81, the order writ F petitions including W.P. (C) No. 16044 of 1984 of the petitioner, which were of the other teachers of the RAPP School who were allowed to be impleaded in the main writ petition, came to an end. Subsequent evasive attitudes of Respondents when had inevitably led G the petitioner and other teachers similarly treated by Respondents, to move this Court by filing a Contempt petition, that petition was dismissed by an order made by this Court on 10th August, 1987, by stating thus: "We direct the Respondent (s) to consider the case of the petitioner and the petitioners who have not yet been absorbed, H . they will see the possibility to absorb the petitioners in accordance ' ' B.L MANDA WAT v. U.O.I. 581 with law." A Again, on 25-4-1988, subsequent Contempt Petitions filed by the teachers against the Respondents having come up for orders before this court, they were disposed of because of the undertaking of Mr. G. Ramas­ wamy, the then Additional Solicitor General that Respondents 4 and 5 will absorb all the five petitioners on the footing of others. However, that B undertaking when was recalled by this Court by its Order dated 10th May, 1988, Respondents-authorities were asked to consider the cases of five petitioners including the petitioner for absorption. Thereafter, another order was made by this Court on 6th September, C 1988 which read: "Having considered the facts and the circumstances of the case we had requested the learned Additional Solicitor General lo looking into this matter and to see if any appropriate chance for reconsideration of the case of the petitioners could be arranged D for. He has assured the Court, having looked into the n1altt:r, though there was perhaps no legal infirmity in the process followed for selection of the petitioners by the respondents, as a matter of fair chance the respondents will give to the petitioners another reasonable opportunity at such date which will be intimated to the counsel for the petitioners so that the petitioners can appear for interview again according to the norms of the Selection Committee. The Selection Committee will consider the case of the petitioners objectively, dispassionately and sympathetically. This order will not be treated as a precedent as it is passed in the peculiar facts and circumstances of this case. The Civil MisceJlaneous petition is disposed of accordingly." Respondent-6 (the AEE Society) was in no mood to fulfil the as­ surance of the Respondents contained in the Jetter dated 27th July, 1984 G placed before this Court leading to the dismissal of the writ petition and subsequent orders made by this Court, becomes obvious from its Chief Administrative Officer's letter dated 4th August, 1989 which reads: "Reference is invited to this office circular No. AEES/A(l.46) 89/2573 dated 20.3.1989 wherein the Ex-teachers of the RAPP H 582 SUPREME COURT REPORTS [1993] SUPP. l S.C.R. Higher Secondary (E.M.) School, Ravat Bhata who were retrenched from service on the closure of the school, were re­ quested to exercise their option either to rel ain the retrenchment and other terminal benefits received at on their retrenchment from RAPP School, in which even their past service in RAPP School will not count for pension under AEEs, or (b) to refllnd ·the retrenchment and other terminal hcnefits received by them at the time of their retrenchment from RAPP administration with interest thereon. C .(a) 6% from the date of receipt of those benefits till the date of refund of the amount to AEES either in lumpsum or in monthly instalments not exceeding thirty six and count the service rendered in RAPP School for pension under AEES." Non-fulfilment of the assurance contained in the letter dated 27th D July, 1984 on the footing of which this Court dismissed the main writ petition resulting in dismissal of other writ petitions including that of the writ petitioner (Smt. Nirmal Bhalla) is said to have led her to make several attempts in this Court and outside, to ensure fulfihnent of the a'8urance but in vain. With no alternative left, she is said to have made to present E application praying for issue of a direction to Respondents to fulfil the assurance of her absorption in service of the AEE Society Schools, which are run by the AEE Society. How, clumsily the petitioner is treated by the Respondents, immedi­ ately they got the writ petition dismissed by this Court on 8th May, 1987, F since becomes apparent from the notice dated 3rd August, .1987 issued to her, that notice is excerpted in ful~ thus: "GOVERNMENT OF lNDIA Rajasthan Atomic Power Station No. RAPS/09000/0M/87/S/900 NOTICE Plant Site, Anushakti-P.O. Dt. 3 Aug., 1987 B.L. MANDA WAT v. U.O.I. 583 Whereas implementation of the decision of Government of • A India, Department of Atomic Energy to close the Rajasthan Atomic Power Station Higher Secondary (English. Medium) School in 1981 had been kept in abeyance following the stay order passed by the Hon'ble Supreme Court on 14-5-1981; Whereas aforesaid stay and other interim orders were vacated B - by the Hon'ble Supreme Court's decision of 8-5-1987, in view of D.A.E.'s letter No. 2/15(6)/81-PP Vol.II of 27.7.1984; Whereas the Department of Atomic Energy had informed the Ministry of Labour and Employment, New Delhi, vide their letter C No. 2/10(24)/87-PP/1084 dated 25.5.1987 that the RAPS Higher Secondary (English Medium) School would be closed w.e.f. 25.7.1987. Whereas the Department of Atomic Energy had also submitted notice for permission of closure vide their letter No.2/10(24)/87-PP D dated July 3, 1987, and now that authority has held that the permission for closure is not required in the present case; Whereas pursuant to the above referred assurances contained in DA.E's Jetter No. 2/15(6)81-PP Vol. II dated 27.7.1984, the existing teaching and non-teaching staff were advised to made their E applications through RAPS by 25.7.1987 for employment in the Atomic Energy Education Society; And whereas, the RAPS Higher Secondary (English Medium) School is closed w.c.f. 3.8.1987; Now, therefore, Smt. Nirm<U Bhalla designation T.G.T is hereby given this notice that her services shall stand terminated w.e.f. 3$.1987. Three months' wages (as applicable) in lieu of notice ]'llJriod is hereby offered and paid to her. She may collect her compensation as per rules from Pay & Accounts Officer, Rajasthan G Atomic Power Station, during working hours any time after 6.8.1987 onwards. Sd/­ (G.V. Nadkarny) Chief Superintendent H Ends. Cheque no. 085475 dated 3.8.1987 for Rs. 6216.00 Smt. Nirmal Bhalla, T.G.T. (Through Principal, RAPS Hr. Secondary, E.fvl. School." The tone of the letter, as could be seen therefrom is, tbat the Supreme Court, when by its order dated 8th May, 1987 has dismissed the writ petition and vacated the stay granted by it earlier in view of the letter C dated 27th July, 1984, there is nothing in the way of terminating petitioner's services as a teacher of the RAPP School and it is now for her to have her fate determined by the AEE society to which she was advised to made an application. However, one redeeming feature of this letter is that it says that the advise given to her to make the application was in pursuance of assurance given in the letter placed before this Court of the RAPP School D teachers employment, by the AEE Society. In the counter-affidavit filed in opposition to the said application on behalf of Respondent-6, the Secretary, Atomic Energy Education Society, no doubt admits in para 5 thereof, that it is substantially funded by the E Department of Atomic Energy through its grants and that an order is passed by this Court dismissing the writ petition on 8th May, 1987. But it is claimed that this Court made the order dismissing the writ petition although opposed by the petitioner. It is then said, that the erstwhile RAPP School has since been run by an independent AEE Society, the continua- F tion of the services of the petitioner in the RAPP School run by the AEE Society, cannot arise. The stand so taken on behalf of Respondent-6, shows how Respondent-6 is trying to wriggle out of the situation arising from the letter of the Joint Secretary which was written at the instance of Rcspon­ dent-6, as well. Moreover, when the AEE Society got her interviewed by its Selection Committee along with other candidates ®o had applied for G appointment as teachers in the Schools of the Society, it is said that the petitioner's performance not beiog s·atisfactory, she could not be ap­ pointed. Thus the grounds put-forth in the counter-affidavit filed on behalf of Respondent-6, the AEE Society for refusal of absorption of the petitioner, are two - (i) That this Court since dismissed the writ petition . · 1 H on ments, such dismissal does not impose an obligation on the part of ·., B.L. MANDA WAT v. u.o.r. 585 '-'/l~spondent-6, the AEE Society, an autonomous society which is inde- A pendent from the Central Government to absorb the petitioner as a teacher in its RAPP School after the same was transferred to it by the Central Government (ii) That even if there was any obligation on the part of the AEE Society to absorb the petitioner in its school, it was unable to fulfil such obligation since her performance in the interview before the teachers' B Selection Committee of the AEE Society did not satisfy the requirement of minimum marks of 50 per cent set down for the purpose. Both the said grounds put-forth on behalf of Respondent-6, the AEE Society, to avoid absorption of the petitioner as a teacher in its schools, are untenable and warrant outright rejection, for the reason we propose to C statF:, nO\V. Ground (i), That this Court dismissed the writ petition on merits and the dismissal of the writ petition, therefore, did not ilbligate the AEE Society lo absorb the petitioner who was a teacher in the school handed- D over to it, to say the least, does not speak well of the AEE Society, to which i this Court had accorded a special status and treatment because of the · involvement in its management of country's scientists of repute. It shall not be forgotten, as has been done by the AEE Society now, that the Central Government could not transfer the RAPP School to the AEE Society because· of the writ petitions of the petitioner and others and such transfer could be effected only after the main writ petition was dismissed by this Court. We have come across some Education Societies which are known for carrying on business in appointments of teachers and admission of students to their schools, coming forward with untenable pleas for refusing to admit students or to appoint teachers, but we feel even now, that the AEE Society should not have given the impression to this Court by its pleas that it is attempting to wriggle out of an assurance given to this Court on the basis of which alone this Court dismissed the main wiit petition paving way for it to take-over the management of the school in which the petitioner was a teacher. When this Court had to decide in,the writ petition as to whether the Central Government could tra9sfe'r the RAPP School.to the AEE Society jeopardising the services of teachers and other employees of thy RAPP School, letter dated 27th July, 1984 written by the Joint Secretary to tb.e Government of India, has been brought to the notice of this Court. That letter stated inter alia, that the Government of H 586 SUPREME COURT REPORTS (1993] SUPP. 1 S.C.R. ·A India in the Depiptment of Atomic Energy will use their good offices with the Atomic Energy Education society which is wbstantially financed by the Government, 'to help find appropriate employment to the petitioners and other teachers of the RAPP Higher Secondary School (English Medium) and protection of their exi,ting designation, grade, pay and allowa.nces'. It B was stated in that letter itself that the AEE Society was also requested to open a school at the Rajasthan Atomic Project site and the letter was given, as this Court had given time to the parties to the writ petition to arrive at a settlement. · When this Court, on the basis of the said letter, dismissed the writ C petition in the presence of counsel for all parties including that of R.espon­ dent-6, statin~ inter alia that 'the grievances of the petitioner have been fully met by the assurance contained in the letter', Respondent-6, in our view, cannot be permitted, having regard to its own conduct in the proceed­ ings, to take up a plea that there was no obligation on its part to absorb D the petitioner in it' school either at Rajasthan Atomic Energy project site or if the school is not there at present, elsewhere, in one of its schools. This court, in all its subsequent orders to which we have adverted to earlier has, while sought to impress upon Respondent-6 and other respondent~, the need to fulfil their obligation of absorption of the petitioner and others similarly situated in the schools of the AEE Society, nowhere relieved it of E its obligation to absorb the teachers in terms of its assurance. Thus, first ground raised by Respondent-6 against absorption of the petitioner cannot, therefore, be sustained and calls to be rejected. Coming now to the second ground of refusal of absorption of the F petitioner as a teacher in the school of the AEE Society for not securing 50 per cent marks in the interview held by the Selection Committee of the AEE Society, we feel that the same cannot be allowed to be put-forward by Respondent-6 as a gr~und to refuse absorption as teacher in its schools, of the petitioner who had admittedly rendered creditable service as a teacher of the RAPP School for over 18 years. Adsorption of petitioner G and persons similarly situated as teachers of the AEE Society Schools by a Selection Committee as if they were recruiting them afresh, was not a condition of the assurance of absorption of teachers of the RAPP School contained in the letter dated 27th July, 1984 of the Joint Secretary to the Government of India placed before this Court. Subsequently, whenever this ( H Court, has made orders as to absorption of teachers of the RAPP School B.L MANDA WAT v. U.0.1. 587 in the AEE Society's schools, it has sought, as already pointed out, to A impress upon the Respondents of the need to fulfil the assurance given by them to this Court. The tenor of the orders makes it obvious that they were never intended to enable Respondent-6 (the AEE Society) to put-forward a plea, that the assurance was not possible of compliance on account of teachers of the RAPP School not being given 50 per cent marks by the B Selection Committee. We have, however, gone through the proceedings of the Selection Committee which bad interviewed the petitioner along with others who were seeking absorption as teachers in the schools of the AEE Society. The sheet of bio-data of candidates called for interview on 31.10.1988 (RAPP Candidates) no doubi mentions percentage of marks given to them but marks given to all candidates fall short of 50 per cent, C the marks required for selection. It is difficult to comprehend how 5 Selection Committee members could give the common percentage of marks for each candidate. Criteria, if any, which formed the basis on which marks bad come to be allocated by the members of the Selection Commit- tee is not indicated in the mark-sheet. Further, the requirement of mini- D mum marks for selection as teachers bas been relaxed by the Management of the AEE Society in case of two candidates, showing thereby that the requirement of minimum marks was not a rigid rule of selection. While the earlier selection was given up by the AEE Society as quite unsatisfactory, the selection resorted to for the second time, is in no way better. The impression created on our minds by the selection process, thought of by E the AEE Society, is to somehow wriggle out of the assurance contained in the letter dated 27th July, 1984 produced for getting the writ petition dismissed and not to carry out that assurance, on which this Court acted in dismissing the writ petition. Thus, we have the least hesitation in concluding that the second ground put-forth on behalf of Respondent-6, the AEE Society, as a ground for refusal of absorption of the petitioner in one of its schools, is wholly unsustainable and warrants rejection. If we have regard to the facts and circumstances of the case and the ,G orders made by this Court from time to time in the writ petitions as well as contempt petitioners, there could be no justification for us to entertain the pleas put-forth as excuses by the AEE Society to wriggle out of the assurance contained in the letter dated 27th July, 1984. Further, we are satisfied, in the facts and circumstances of the case that the least we should H •• 588 SUPREME COURT REPORTS (1993) SUPP. 1 S.C.R. A do is, to direct the Respondents to carry out the assurance contained in the letter dated 27th July, 1984 on the basis of which they got the writ petition dismissed, inasmuch, such direction could make the Respondents realise, that this Court will not hesitate to do what is necessary to meet the ends of justice. B Hence, we allow this application, direct Respondent-6, the AEE Society, to absorb the petitioner as a Trained Graduate Teacher in its school at Rajasthan Atomic Energy Project site and if there is no school there, in any other of its schools by protecting her designation, grade, pay and allowances retrospectively from the date of her termination as a C Trained Graduate Teacher of the RAPP School, if unavoidable, by creating a supernumerary post for the purpose. The Central Government, as said in the letter containing the assurance, shall meet the expenditure needed for absorption of the petitioner in a school of the AEE Society with retrospective effect. Respondent-6 must, in absorbing the petitioner in its school pay her all the benefits of the post to which she would have been D entitled as if her services as a teacher were not terminated. The Respon­ dents are given as a last chance, two months' time form today, to comply with these directions. However, in the facts and circumstances of the case, we make no order as to costs on this application. U.R. Petition allowed.