The Writ Petitioners challenge the notification issued calling tender for running a school in the Heavy Alloy Penetrator Factory Unit at Trichy. The teachers, who were working in the previous school, were the petitioners.
2. According to the petitioners, the Heavy Alloy Penetrator Factory Unit was established in the year 1987. The 2nd respondent, which is the unit of Ministry of Defence, had entered into an agreement with the 3rd respondent, namely, Sri Ramakrishna Tapovanam, Tiruparaithurai, for running a Matriculation School in the year 1988. The 1st petitioner was appointed as a Principal in the School on 03.08.1988. The other petitioners were appointed thereafter. Pursuant to the agreement, the 3rd respondent opened the school in the name and style of ''HAPF Paramahamsa Matriculation School'' with the staff strength of 15 teachers and 2 non-teaching staff. The agreement was valid for 10 years.
3. The appointment of the teachers was made by the 3rd respondent with prior consultation with the 2nd respondent. The Scale of Pay of the teachers was decided on par with the Ordnance Factory Schools or the Tamil Nadu Government Schools which ever is lower. The staff members were covered by Employees Provident Fund Act and the teachers have signed an agreement as per the Code of Regulations for Matriculation Schools. The 4th respondent had periodically inspected the Matriculation School. At the time of filing of the Writ Petition, the student strength was 357 out of which, 223 were the children of the staff of the 2nd respondent and 127 were outsiders.
4. The petitioners have made representations to the President of India to regularise the school run by the 3rd respondent as one of Ordnance Factory Schools and to absorb them in the regular service under the Central Government and for the consequential benefits on par with the teachers of Ordnance Factory Schools and it was recommended by one of the members of Parliament also.
5. While the matter stood thus, on 04.06.2007, the 2nd respondent has issued a Public Notice in Newspapers calling upon tender from Charitable Institutions to run an English Medium School and the last date for submission of application was fixed as 06.07.2007. The notification issued by the 2nd respondent, according to the petitioners, was illegal and will cause civil consequences on their carreer and therefore, they have filed the present Writ Petition with a prayer to quash the notification calling for tender and to take over the Heavy Alloy Penetrator Factory Paramahamsa Matriculation School by Ordnance Factory Board itself and to absorb the present staff of the school with all facilities enjoyed by the Ordnance Factory Board Schools and for further orders.
6. One of the teachers had filed the Writ Petition in W.P.No.5879/2007 in which status-quo was ordered. Therefter, the present writ petitioners have filed the above writ petition in which also status-quo order was granted.
7. The respondents 1 and 2 have filed a counter stating that the school was run by the 3rd respondent under an agreement for a period of 10 years from 1988. The agreement was further renewed on 21.03.2001 which was valid upto 30.06.2008. The writ petitioners were all appointed by the 3rd respondent and they have no connection with the 1st and 2nd respondents. The 3rd respondent run the school on payment of normal licence fee and the agreement is terminable. The appointment of the petitioners is also co- terminable on the legal termination of the agreement. There is no privity of contract between the 1st and 2nd respondents and the writ petitioners. The petitioners were not engaged as per the rules of the 2nd respondent and they were under the control of the 3rd respondent and therefore, the relief sought for against them is not legally sustainable.
8. It is the further submission of the respondents 1 and 2 that out of the 14 petitioners, two of them have retired on 31.05.2012 and 4 petitioners have resigned from the school to join Government Service on 24.08.2010, 14.09.2010 and 25.09.2014 respectively. Only 8 petitioners are continuing with the strength of the interim order granted by this court. The petitioners knowing well that their appointment was purely contractual and terminable with the terms of the agreement between the 2nd and 3rd respondents, having taken up their appointments.
9. The 2nd respondent is a Defence Production Unit, under the control of the 1st respondent. They do not run any schools. The schools run within its campus are Kendra Vidhyalaya Schools run by the Ministry of Human Resources and the children of the employees of the 2nd respondent study in Kendra Vidyalaya Schools. Moreover within 2 kms. from the gate of the 2nd respondent unit, there is a Government High School and Elementary School run by the Government of Tamil Nadu. The request made by the 4th respondent/State Government in the year 2009-10 to take over the school and to absorb the petitioners as State Government Employees was negatived by the 4th respondent. The strength of the students between the years 2009-2016 is as follows:
Year Number of wards of employees 2009-10 02 2010-11 06 2011-12 03 2012-13 01 2013-14 03 2014-15 01 2015-16 01 For the purpose of educating one student, the petitioners have put in a financial constraint of Rs.40,00,000/- per annum. But for the interim order, the writ petitioners are entitled to continue in the school. The 1st and the 2nd respondents are forced to spend a sum of Rs.40,00,000/- p.a. for no cause, but on account of the orders of this Court.
10. The 1st respondent in Letter No.1247/PVT.SCHL/HAPP/A/W dated 06.12.2006 had given clear instructions that due to financial constraints, it is not possible to renew the contract to run the HAPF Paramahamsa Matriculation School beyond 30.06.2008. Further, in Letter No. 1247/PVT.SCHL/HAPP/A/W dated 23.03.2007, the 1st respondent had directed the 2nd respondent to transfer the school to any charitable institution which agrees to pay Licence Fee and Premium as per the Land Lease Policy or to close down the school w.e.f. 30.06.2008. Pursuant to the same, a notification dated 04.06.2007 impugned in the Writ Petition came to be issued.
11. The learned Counsel for petitioners would submit that the petitioners have put in more than 16 years of service. If they are thrown out from their posts, all on a sudden, they will be put to grave hardships and their families will be shattered. The children and their future carreer will be affected. The second respondent even today has not appointed the petitioners, the entire management and supervision was under its control. The appointments were made only after the approval of the second respondent. The payment is being made by the 2nd respondent. The administrator appointed by the 3rd respondent is also paid by the 2nd respondent only. The 3rd respondent may be considered as an agent, and in effect, the 2nd respondent in total control of the respondents and administration of the school. The 3rd respondent cannot take any independent decision and therefore, the petitioners shall be treated as employees of the 2nd respondent and they are entitled to regularisation. The learned Counsel appearing for the petitioners relied on the judgment of the Supreme Court in Unni Krishnan, J.P. and others etc. vs. State of Andhra Pradesh and others etc. reported in AIR 1993 (SC) 2178. According to the petitioner, the right to education, which is implict in the right to life and personal liberty guaranteed under
Article 21 must be construed in the light of the directive principles in Part IV of the Constitution. The State is under a constitutional mandate to provide educational institutions at all levels for the benefit of the citizens. The educational institutions must function to the best advantage of the citizens. Opportunity to acquire education cannot be confined to the richer section of the society. Therefore, according to the petitioners, the Government shall not close down the institution all of a sudeen without any reasons. Mere so, when it has civil consequence in the careers of the writ petitioners, the respondents have moral obligation to regularise their services.
12. The learned Additional Solicitor General appearing on behalf of the Counsel for Respondents 1 and 2 would submit that according to the 1st and 2nd respondents, they do not have any control over the writ petitioners and they cannot take any disciplinary action against them. The petitioners were very much aware of their nature of employment and they cannot claim regularisation as it amounts to back door entry as per the judgment of the Supreme Court in Uma Devi's case. Since they were not engaged as per the rules and regulations following the Regular Selection Procedure, they cannot claim regularisation under the 2nd respondent. It was also submitted that in W.P.No.29328/2003 in Tamil Nadu Police Housing Corporation, Chennai vs. C.Dhanasekaran and others, it was held that courts cannot encourage appointments which are made outside the constitutional scheme and it is improper for the courts to give any direction for regularisation of the persons who have not been appointed by following of procedure laid down under
Article 14 and
16 of the Constitution. They also relied on the judgment of the Hon'ble Supreme Court in Union of India and others vs. Tejram Parashramji Bombhate and others reported in AIR 1992 SC 570.
13. The learned Counsel appearing for the 1st and 2nd respondents would also submit that the Writ Petition is liable to be dismissed for suppression of material facts. According to the respondents, the petitioners have also approached the Central Administrative Tribunal, Madras Bench in DY.No.3722/2007. The Central Administrative Tribunal, by its order dated 21.11.2008, ''has concurrently found that the petitioners have not shown any evidence that they possess qualification required for appointment to those posts as prescirbed for corresponding posts in Central Government Schools. The agreement period was already over and that the applicants are not employees under the 2nd respondent and therefore, they cannot maintain this application''. With the findings that the petitioners are not the employees under the 2nd respondent, the Original Application was dismissed in Diary Stage itself. Thus, according to the respondents 1 and 2, the petitioners have suppressed the material facts and came before this Court with unclean hands.
14. The learned Counsel for the 3rd respondent would submit that the advertisement calling for appointments to the posts of teachers by itself would show that it was made on contractual basis without following the selection procedure as per the rules and regulations. The teachers with open eyes have joined the school and like the other teachers, who have left the school to take appointment at the State Government on various occasions. Since these appointments are contractual in nature and co-terminable by the legal termination of the agreement with the 2nd respondent, the petitioners have no vested right to get regularised in the school and the petitioner cannot compel the 3rd respondent to run the school without any legal right.
15. Heard the parties.
16. From the submissions made above, the points that arises for consideration are as follows:
1. whether the writ petitioners are employees of the 2nd respondent?
2. Whether they are entitled to continue under the 2nd respondent by regularising their services and the relief sought for by the petitioners are sustainable?
17. The Writ Petitioners, admittedly, taken up employment with the 3rd respondent to work in a school run within the premises of the 2nd respondent school. The writ petitioners were not the party to the agreement between the 2nd and 3rd respondents. It is seen from the records that the appointment of the petitioners was not according to the regular selection method adopted in appointment of teachers in Government Schools. No prescription of qualification or experience were sought for in the advertisement given by the 3rd respondent for appointment of the petitioners as teachers and it appears that no selection process was involved in their appointments. Therefore, it can be seen that the appointment of the writ petitioners by the 3rd respondent is not in accordance with the rules and regulations governing the teachers recruitment. It is not pleaded by the petitioners that they were fully qualified to hold the post under the rules and regulations of the 2nd respondent or of the Central Government Schools. The 3rd respondent was running a Matriculation School. It is also admitted that the Matriculation Schools are self-finance schools and does not receive any aid from the 4th respondent State of Tamil Nadu. Therefore, their claim that they are governed by Private School Regulation Act is not sustainable. The Writ Petitioners have taken up the appointment on contractual basis on the basis of agreement between the 2nd and 3rd respondents knowing well that their appointments are contractual and terminable by efflux of time. Therefore, the argument that the writ petitioners are the employees of the 2nd respondent is not sustainable.
18. In so far as the absorbtion of the writ petitioners under the 2nd respondent is concerned, while the appointment of the writ petitioners was made by the 3rd respondent school run by the 2nd respondent, under an agreement, the petitioners have no privity of contract with the 2nd respondent. In other words, as found by the Central Administrative Tribunal, Madras Bench, that the writ petitioners were not employees of the 2nd respondent. The total administrative control over the writ petitioners was lying with the 3rd respondent. So far, the petitioners have come up with a prayer that the 1st respondent be directed to take over the Heavy Alloy Penetrator Factory Paramahamsa Matriculation School by the Ordnance Factory Board and absorb the present school with all facilities enjoyed by the Ordnance Factory Board Schools. As per the judgment of the Hon'ble Supreme Court, in Union of India and others vs. Tejram Parashramji Bombhate and others reported in AIR 1992 SC 570 as cited supra, the Supreme Court, while setting aside the direction to take over a school and appointing the staff by creating the posts on regular basis has observed as under :
''4....The Tribunal has further directed the Central Government to take steps to fill up the newly created posts in accordance with the recruitment rules to be framed for the purpose. These directions are indeed amazing. It has compelled the Government to sanction the Secondary School, create adequate number of posts and fill up the posts after framing the recruitment rules for the purpose. There is no law requiring the Central Government to sanction the Secondary School. The Central Government has taken a decision that it will not involve itself in sanctioning or running classes beyond the Primary School Level. It is a policy matter involving financial burden. No Court or the Tribunal could compel the Government to change its policy involving expenditure. The Tribunal, therefore, could not have, issued the directions as it did to compel the Central Government to assess the needs of the school and create the necessary posts without support of law.
5. Secondly, the respondents are not paid by the Central Government. They are not holding any appointment under the Central Government. There is no relationship of master and servant between the Central Government and the respondents. The respondents are employed in the Secondary School by local arrangement made by the officers of the Ordnance Factory. It is not proved that how the Central Government is accountable to such arrangement made by the local officers.
6. Thirdly, S.14 of the Administrative Tribunals Act, 1985 confers no jurisdiction, power and authority on the Tribunal to deal with the service matters of the employees like the respondents.
7. In any view of the matter, the respondents cannot calim the pay- scale admissible to the Government school teachers much less regularisation of their services by the Central Government. The directions issued by the Tribunal, therefore, cannot be sustained. They are apparently unjustified and without authority of law.'' The Courts cannot direct the Government to create posts and compel them to change its policy involving expenditure. The writ petitioners, having no privity of contract with the 2nd respondent and the appointments were not issued by the 2nd respondent, they cannot be construed as employees of the 2nd respondent and they have no legal right to compel the 1st and 2nd respondents to take over the Matriculation School run in the premises of the 2nd respondent. The argument of the learned Counsel for the respondents 1 and 2 that the direction to asbsorb the writ petitioners as teachers could amount to back door entry as held in Uma Devi's case, has much force. Therefore, the prayer that the writ petitioners shall be absorbed in the school and the 2nd respondent cnanot be entertained.
19. The argument placed by the learned Counsel for the writ petitioners that the school shall be construed as a private school and therefore, they were covered by the Tamil Nadu Private School Regulation Act, 1978 is not also correct. As per the pleadings as well as the documents, it is a clear case that the 3rd respondent was running a Matriculation School.
20. In so far as the self-finance institutions are concerned, administration of the schools cannot be interfered with, unless it is found arbitrary, unfair, non-transparent and exploitative and it was financed and administered as self-finance institution, it only remains to see whether the closure of the school is bonafide or not. The letters of the Ministry of Defence dated 06.12.2006 and 23.03.2007 clearly spell out the financial constraints and the decision to close down the school or to transfer to some other charitable institutions. After taking such a decision in the year 2006, only the notification dated 04.06.2007 impugned in the writ petition came to be issued. Therefore, the 2nd respondent himself is not in a position to continue running of the school in view of the financial constraints, courts cannot compel the management to incur expenditure.
21. Therefore, to sum up, the writ petitioners cannot be treated as the employees of the 2nd respondent and the closure of the school was also based on the decision taken by the 1st respondent involving financial implication. This Court cannot compel the 2nd respondent to create posts and absorb the writ petitioners as teachers or to take over the school as one of the Ordnance Factory Schools. Moreover, the facts and circumstances of the present case show that out of 14 writ petitioners, 2 of them have retired from service and 4 of them have taken up employment in Government Schools and remaining 8 teachers are continuing with the strength of the interim order granted by this Court. The students structure from 2009 onwards is in single digit and the present strength is stated to be only one student. For only one student, the 2nd respondent cannot compel to take over the school and to absorb the writ petitioners as Central Government Employees. From the discussions made above, the prayer made by the petitioners to direct the 1st and 2nd respondents to take over the school and to absorb the writ petitioners as Central Government Employees is not legally sustainable in view of the fascts and circumstances of this case. Therefore, in the facts and circumstances of the case also, such a direction cannot be issued.
22. In the result, the prayer of the Writ Petitioners in the above Writ Petition to take over the school and absorb them as regular employees without any privity of contract with the 2nd respondent is devoid of merit and the writ petitioners do not have any legal right to sustain the relief sought for by them in the above writ petition. Hence, the Writ Petition is dismissed. No order as to costs. Consequently, connected Miscellaneous Petitions are closed.
To
1. The Secretary, Government of India, Ministry of Defence, New Delhi.
2. The Senior General Manager, Heavy Alloy Penetrator Project, Government of India, Heavy Alloy Penetrator Project, Ministry of Defence, Trichy-25.
3. The Director of School Education, College Road, Chennai..