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CASE NO.: Appeal (civil)  2960 of 2008

PETITIONER: Correspondent, St. Michael’s T.T.I.

RESPONDENT: V.N. Karpaga Mary & Ors

DATE OF JUDGMENT: 24/04/2008

BENCH: S.B. Sinha & Lokeshwar Singh Panta

JUDGMENT: J U D G M E N T REPORTABLE

CIVIL APPEAL NO. 2960               OF 2008 (Arising out of SLP (C) No.19520 of 2006)

S.B. Sinha, J.

1.      Leave granted. 2.      Appellant is an aided institution.  It is aided by the State of Tamil  Nadu. Terms and conditions of its teachers are governed by Tamil Nadu  Recognised Private Schools (Regulation) Rules, 1974 framed under Tamil  Nadu Recognised Private Schools (Regulation) Act, 1973. 3.      Respondent was appointed in the said school on or about 11.7.1977.   He was a graduate in Master of Education as also in Master of Science.  He  was having the requisite qualification for recruitment to the said post. 4.      The State, however, issued a Government Order dated 16.9.1994  raising the qualification of a teacher, inter alia, stating : "XV Staff Requirements: Teaching Staff Qualifications etc.

(b)Subject Teacher A Post Graduate Degree in the  relevant subject and M.Ed.  Degree with teaching experience  preferably in recognized schools.   There shall be four subject  teachers to handle Tamil,  English, Mathematics, Science  and Social Science.  The  Headmaster shall handle one of  the five subjects."           On the plea that the respondent did not hold the requisite  qualifications in terms of the said GOMs dated 16.9.1994, his services were  terminated by the appellant by an order dated 6.1.1995 with effect from  22.12.1994.   5.      Respondent filed a writ petition before the High Court questioning the  said order of termination, inter alia, stating that the said purported G.O.Ms.  dated 16.9.1994 could not have been given a retrospective effect. 6.      A learned Single Judge of the said Court, by an order dated 5.9.2005  quashed the said order of termination opining that once the appointment was  made in a lawful manner and the teachers were found to have the requisite  qualifications as prescribed at the time of such appointment, a revision in  qualification so as to be applied retrospectively and affect the career of an

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appointee would not be permissible.   Appellant institution was held to be amenable to writ jurisdiction.  It  was also found that the State had not issued any direction to remove the  respondent from service.  On the said findings, it was directed : "Therefore, it is not open to the respondents to  adopt an erroneous interpretation and to deny  employment to the petitioner who has been serving  the school from 1977.  It is pertinent to note that in  W.P.M.P. No.9628 of 1995, the learned Single  Judge has issued interim orders on 21.4.1995 itself  that no appointment shall be made for a period of  two weeks if the third respondent had not  appointed any one in the place of the Petitioner.   There is nothing on record to show that the said  interim order had been vacated subsequently,  though the respondent, in their counter affidavit,  has stated that a qualified teacher had been  appointed on 23.12.1994."

7.      An intra court appeal was preferred thereagainst before the Division  Bench of the said Court.  The question which was raised before the said  Bench was limited to the question of payment of the back wages to the  respondent and as to whether the State is liable therefor or the appellant  institution.   The contention of the parties were noted by the Division Bench as  under : "According to the appellant, namely the Teacher’s  Training Institute, the teachers services were  terminated only because the Government  repeatedly wrote letters that the Government Order  has to be strictly adhered to and that it is only at  their instructions that the teacher was terminated.   The learned Special Government Pleader would  submit that while it is true that the Government  insisted on all Institutes to strictly comply with the  conditions stipulated in the Government Order, no  instructions had been specifically issued in this  case to terminate the services of the teacher, nor  had any instructions been issued to comply with  the Government Order retrospectively in respect of  any person who has already been in service.   According to them, since they are bearing the  expenditure arising out of the appointment of the  new teacher, they cannot be saddled with the  burden twice.  It is also the case of the  Government that it was never the Institute’s case  that any specific instructions were issued by the  Government to terminate the services of the  teacher; and that if the Institute had taken a  decision which is not supportable in law, then it is  the Institute which has to bear the financial burden  and not the State."

       While refraining itself from interfering with the order of the learned  Single Judge, the Division Bench observed : "However, it is open to the Institute to apply to the  Government, if so advised, for reimbursement of  the wages paid to the teacher in compliance of the  orders of the learned Single Judge and thereafter, it  is for the Government to take a decision in this  regard.  No costs.  Consequently, W.A.M.P.  No.4015 of 2005 is closed."

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8.      Appellant is, thus, before us.

9.      Mr. Romy Chacko, learned counsel appearing on behalf of the  appellant, would submit that the petitioner institution being not a State  within the meaning of Article 12 of the Constitution of India, the writ  petition was not maintainable.  It was furthermore contended that in any  event, as the order of termination of the respondent was not mala fide, the  High Court should have held that she was not entitled to back wages and no  legal right vested in her in obtaining the relief of reinstatement.  Reliance in  this behalf has been placed on Pearlite Liners (P) Ltd. v. Manorama Sirsi  [(2004) 3 SCC 172]. 10.     Mr. L.N. Rao, learned senior counsel appearing on behalf of the  respondent, on the other hand, would urge that the appellant herein having  not questioned the jurisdiction of the learned Single Judge to interfere with  the matter, the contention that the writ petition was not maintainable should  not be allowed to be raised before this Court for the first time.  It was  furthermore urged that keeping in view the respective contentions made  before the Division Bench, it is evident that the question of the respondent’s  having any alternate employment did not and could not arise.  Strong  reliance in this behalf has been placed on Jasbir Singh v. Punjab & Sind  Bank & Ors. [(2007) 1 SCC 566]; Gangadhar Pillai v. Siemens Ltd. [(2007  (1) SC 533]; and Vice Chancellor, Banaras Hindu University & Ors. v.  Shrikant [(2006) 11 SCC 42]. 11.     It is neither in doubt nor in dispute that the appellant possessed the  requisite qualification at the time of his entry in the service.  The educational  qualification for a teacher was sought to be raised by the State much later,  namely, in the year 1994.  Respondent, indisputably, was appointed on a  permanent basis.  She was a regular teacher.  If she was a regular teacher,  the question of termination of her services relying on or on the basis of the  purported GOMs dated 16.9.1994 did not arise as the same had not been  given retrospective effect.  The State never said that in terms of the said  GOMs, the services of the employees who had validly been appointed,  should be terminated.  12.     The contention of the appellant that there was some apprehension that  recognition, as granted by the State to the said institution, may be withdrawn  should have been taken up by it with the State at the first instance.  It having  failed to do so, in our opinion, no legal infirmity can be found in the  judgment.   13.     Reliance placed by the learned counsel on Pearlite Liners (P) Ltd. v.  Manorama Sirsi [(2004) 3 SCC 142] is not apposite.  The courts exercise  different jurisdictions while entertaining applications filed under different  statutes.  While entertaining a suit, the court’s jurisdiction would be  governed by the Specific Relief Act, 1963.  Although principles laid down  therein may be found to be applicable, the said provisions by themselves  need not be strictly applied by the High Court while exercising its  jurisdiction under Article 226 of the Constitution of India.   The question that the appellant was amenable to writ jurisdiction is  not in dispute.  If it was amenable to writ jurisdiction, the High Court was  not only entitled to set aside an order of termination of service on an  interpretation that neither the GOMs had any retrospective application nor,  in any event, had any application to the case of appointment of the  respondent but also to grant back wages.  On the said premise, the High  Court had the jurisdiction to set aside the order of termination.  Once the  order of termination was set aside, the logical corollary therefor should  ordinarily ensue, subject of course to denial of the benefit either in totality or  in part. It was in the aforementioned situation, the question of grant of back  wages would arise.   14.     In Jasbir Singh v. Punjab & Sind Bank & Ors. [(2007) 1 SCC 566],  this Court directed reinstatement in service with back wages, continuity of  service and other consequential benefits.  {See also Gangadhar Pillai v.  Siemens Ltd. [(2007) 1 SCC 533]}.  In General Manager, Haryana Roadways v. Rudhan Singh [(2005) 5

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SCC 591], this Court stated : "8. There is no rule of thumb that in every case  where the Industrial Tribunal gives a finding that  the termination of service was in violation of  Section 25-F of the Act, entire back wages should  be awarded.  A host of factors like the manner and  method of selection and appointment i.e. whether  after proper advertisement of the vacancy or  inviting applications from the employment  exchange, nature of appointment, namely, whether  ad hoc, short term, daily wage, temporary or  permanent in character, any special qualification  required for the job and the like should be weighed  and balanced in taking a decision regarding award  of back wages.  One of the important factors,  which has to be taken into consideration is the  length of service, which the workman had rendered  with the employer.  If the workman has rendered a  considerable period of service and his service are  wrongfully terminated, he may be awarded full or  partial back wages keeping in view the fact that at  his age and the qualification possessed by him he  may not be in a position to get another  employment.  However, where the total length of  service rendered by a workman is very small, the  award of back wages for the complete period i.e.  from the date of termination till the date of the  award, which our experience shows is often quite  large, would be wholly inappropriate.  Another  important factor, which requires to be taken into  consideration, is the nature of employment.  A  regular service of permanent character cannot be  compared to short or intermittent daily-wage  employment though it may be for 240 days in a  calendar year."

15.     The said decision as also the decision in Pearlite Liners (P) Ltd. v.  Manorama Sirsi [(2004) 3 SCC 172] have been rendered in a different fact  situation, namely, the jurisdiction of the Labour Court under Section 11-A of  the Industrial Disputes Act.  The question as to what would be the relevant  factors for the industrial court to grant the said relief need not be the same  for the writ court.  For grant of back wages, this Court has laid down several  principles therefor. 16.     However, in the facts and circumstances of this case, we are of the  opinion that the interest of justice will be subserved if the quantum of back  wages is confined to Rs.75% for the total period the respondent remained  out of service.   17.     Appeal is allowed to the aforementioned extent.  This order is being  passed keeping in view the fact that the respondent has already been  reinstated in service.  In the facts and circumstances of the case, there shall  be no order as to costs.