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CASE NO.: Appeal (civil)  4408 of 2007

PETITIONER: State of Punjab and Ors

RESPONDENT: Dev Raj & Ors

DATE OF JUDGMENT: 21/09/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.  4408               OF 2007 (Arising out of S.L.P. (C) NO.20376 OF 2005

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      Challenge in this appeal is to the order passed by a  Division Bench of the Punjab and Haryana High Court  dismissing the Letters Patent Appeal filed by the appellants.

3.      The background facts, in a nutshell, are as follows:

       On 7.9.1980 a resolution was passed by the Janta High  School, Rattewal, requesting the State Government to take  over the institution as it was under financial stress.  On  28.6.1983 the Government, on principle, decided to take over  the institution subject to the conditions that a gift deed along  with certificate of qualification of the staff working in the  school was to be supplied. Names of the respondent did not  appear in the list of the staff members.  Respondents were  appointed on different dates as teachers or laboratory  Assistants against unaided posts between the period  29.6.1983 to 21.1.1984.  State Government passed an order  on 22.1.1987 taking over the institution subject to the  condition that only those staff members who were working at  the time of taking over were to be continued.  On 22.1.1987  school was taken over and the stipulations regarding the  norms to be adopted were worked out.  As per clause (3) of the  agreement, the Government was not required to take under  the control all the members of the staff and the Government  was authorized to take those employees who fulfill the  prescribed qualification for the posts. On 22.5.1987 a  corrigendum was issued, essential portion of which reads as  under: "In the order No.6/5-83-SE(I) dated  22.01.1987, the following corrigendum is  hereby made in the 6th and 7th lines of  condition No.1 below para 1:-

Original entry entry to be  substituted    "at the time of

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taking over" "at the time it was  decided by the Govt. to  take over this school in  principle viz. 26.8.83"

Writ petition was filed by the respondents with a prayer  to absorb them in Government service w.e.f. 22.1.1987.  A  reply was filed clearly taking the stand that the names of the  respondents did not exist in the staff statement which was  prepared by the erstwhile management of the school at the  time principle decision was taken.  Subsequently, their names  were included.  As per the Government order, the school was  taken over with staff existing on 28.6.1983. Therefore, the  Government was not bound to absorb the respondents. The  learned Single Judge of the High Court granted the stay and  the stay order was continued.  Subsequently, by order dated  29.1.2003, the learned Single Judge it was held that though  the respondents were employed between 28.6.1983 to  26.1.1987, there was need for teachers and laboratory  Assistants and, therefore, they should be absorbed. The  appellants filed Letters Patent Appeal which, as noted above,  was dismissed on the ground that the respondents were  continuing since 1987.   

4.      Learned counsel for the appellants submitted that merely  because the respondents were working on the basis of the stay  order passed, that cannot be a ground for granting relief, more  particularly, in view of the agreement which stipulated that  the staff members working at the time of formal decision were  to be continued.

5.      Learned counsel for the respondents submitted that gift  deed was executed on 5.7.1984 and the decision was taken on  6.5.1984 which clearly stipulated that the staff members  working at the time of taking over were to be absorbed.  There  is no dispute that there was a corrigendum issued that those  staff with prescribed qualification who were members of the  staff when the policy decision was taken were to be  considered. Learned Single Judge of the High Court did not  consider this aspect.  Surprisingly, the Division Bench of the  High Court did not consider the merits and on the basis that  the respondents were working since 1987 dismissed the  Letters Patent Appeal.  The approach is clearly unsustainable.                                                        6.      The High Court ought to have examined terms of the  arrangement between the school management and the  Government. If the stipulation was that the position as stood  on the date when the policy decision was taken was the  determinative factor, High Court ought to have examined that  aspect in detail. It is a settled position in law that while  deciding the dispute finally the Court ought not to be  influenced by the fact that some interim arrangements had  been made. Such interim arrangements are always subject to  the outcome of the main dispute.  Since the Division Bench  has not decided the appeal on merits, we think it appropriate  to remit the matter to the High Court for fresh decision in law.   

7.      The appeal is allowed to the aforesaid extent.  No costs.