2014 (9) TMI 1174 - HC - Indian Laws

Removal of teacher from job - rejection to reinstatement to the job - after placing a teacher under suspension and subjecting her to departmental enquiry the management of the school recommends the Government to remove her from service. The educational authorities in the Government apart from rejecting the recommendation of the school management directed reinstatement of the teacher. The school management has persistently refused to reinstate the teacher in compliance with the direction of the competent authority. Primary contention of the learned counsel for the appellant is that Exts. P-11 P-17 and P-21 orders are permissive in nature granting privilege or liberty to the appellant to reappoint the 1st respondent - Held that - Ext. P-11 GO. (Rt.) No. 302/1997/H.Edn. dated 17-3-1997 is the first order issued by the Government extending the particular benefit as a matter of policy decision to a group of persons who have been displaced or retrenched from their previous employment thereby treating them as separate class. Rest of the orders such as Exts. P-17 and P-21 are consequential in nature - if any liberty is given or privilege is extended it is to the displaced employees including the 1st respondent but not to the colleges in which they earlier worked. Since Government made reemployment of the displaced teachers contingent on the existence of vacancies Government later issued Ext.P-14 order creating supernumerary posts. The consequential orders Exts. P-17 and P-2 do not differ much in the scope and ambit to conclude that they are in any way permissive in nature - Exts. P-11 P-17 and P-21 are peremptory and binding subject to their validity. Statutory Scheme - Held that - In the present instance Government have created supernumerary posts and it being a college covered by Direct Payment Agreement have agreed to pay the salary without putting any financial burden on the appellant college. It has asked nay directed in terms of Section 56(7) of the Act the appellant to reemploy its former employee who has been made a victim of a collateral damage caused by certain judicial proceedings in which he had essentially no say - It is fallacious to contend that always recourse shall be taken to regular recruitment from open market under all circumstances. There can be exceptions as has been demonstrated statutorily in Section 62(2)(b). The public employment after all is the sovereign prerogative of the State exercised through its Executive branch - among other provisions as per Section 56(7) of the Act Government can bind the appellant college with its directions and directives. As per Section 59 of the Act it can create posts and as per Section 62(2)(b) of the Act there can be exceptions to regular open recruitment. Inherent and Incidental Powers - Held that - It is hardly necessary to mention that if there is a statutory rule or an act on the matter the executive must abide by that act or rule and it cannot in exercise of the executive power under Article 162 of the Constitution ignore or act contrary to that rule or act. Is it a Police Power? - Held that - The action of the Government in issuing Exts. P-11 P-14 P-17 and P-21 is not ultra vires their administrative power under the Act are in terms of the residuary constitutional provision namely Article 162 of the Constitution - the action of the Government in issuing Exts. P-11 P-14 P-17 and P-21 is not ultra vires their administrative power under the Act are in terms of the residuary constitutional provision namely Article 162 of the Constitution. Determination of sustainability of collateral challenge to an executive measure of the State vis- -vis one of its instrumentalities - Held that - It is essential to note the jurisprudential divergence if any between the English Law and the Indian Law confining the discussion only to the aspect of collateral challenge though. Continental Contours of Administrative Law - Held that - The issue of collateral challenge is a procedural remedy against the orders which are manifestly void. Contextually it can be stated that an administrative order can be void on two counts audi alteram partem and ultra vires. Since Exts. P-11 P-14 P-17 and P-21 are not quasi- judicial in nature ever so thin the distinction has been we are not concerned with the aspect of principles of natural justice. Collateral Challenge - Held that - Constitution is a matter of limitation of powers while statutes are regulatory in nature. For a common man Court of law is the last resort and as such to preserve his rights and to negate the State s excessive interference if any in his affairs his resistance takes myriad forms; it can be active or passive. He can lay a direct challenge or collaterally question the acts of Government which in his view are not in consonance with the law of the land. On the other hand the Executive is not a motionless monolithic; it is in fact a fine tuned administrative machine. Every official is a cog in the machine required to function as per the role assigned to him or her. Any malfunctioning of a cog in the machine however small it is throws the whole machine out of gear and renders it malfunctioning - In the present sentence as has statutorily demonstrated above the appellant is under the all pervasive control of the State and its manager is an official in terms of Article 12 as well as Article 226 of the Constitution of India Ipso facto he cannot be allowed to ignore even void orders without laying a proper challenge against them and justify his inaction and disobedience to binding administrative directives in the name of collateral challenge by prejudging the purative voidness of the directive. Void Orders - Held that - Unless a Court of law either set aside or declares an administrative instruction direction or order as invalid and inoperative it will be presumed to be valid and operative. Denial of Pay & Allowance for the Interregnum - Held that - In this case it is the Government which is the paymaster. All along it has been directing the management to re-employ the 1st respondent but it is the appellant management that has proved recalcitrant. Under these circumstances directing payment of back wages puts an unjustifiable burden on the Government which has never been at fault. It cannot be made to pay for the mistakes of the appellant college. The fact further remains that the 1st respondent attained the age of superannuation and deemed to have been retired from service in April 2014 - As a matter of restitution Government is at liberty to recover the said amount of back wages being paid to the 1st respondent from the appellant either by way of direct recovery by taking recourse to the recovery mechanism such as Revenue Recovery Act or to exercise the power of set off from and out of the funds to be disbursed to the appellant college. Appeal disposed off.

Summary

Issues Involved:
1. Whether Exts. P-11, P-17, and P-21 orders are permissive in nature, granting privilege or liberty to the appellant to reappoint the 1st respondent?
2. Whether Exts. P-11 and P-14 and also the consequential orders in Exts. P-17 and P-21, are ultra vires of the powers of the Government authorities who issued them?
3. Whether a statutory authority or agency can ignore or refuse to honour the Government Orders on an assumed premise that they are void?
4. Whether a Government Order of perceived voidness or voidability can be assailed collaterally?
5. If Exts. P-11 and P-14 as well as Exts. P-17 and P-21, are held to be enforceable at the behest of the 1st respondent, whether the first respondent is entitled to pay and other service benefits for the interregnum period from the date of his ceasing to be an employee of the University till the date of his actual reemployment in his parent college, the appellant?

Issue-wise Detailed Analysis:

Issue 1: Permissive Nature of Orders
The court examined Ext. P-11, which allowed displaced employees to rejoin their parent departments if vacancies existed. It concluded that the orders were peremptory and binding, not merely permissive. The orders granted rights to the displaced employees, not privileges to the colleges.

Issue 2: Ultra Vires Nature of Orders
The appellant college argued that the orders were ultra vires as they conflicted with the M.G. University Act. The court analyzed Sections 59(1), 59(1A), 76, 77, 100, and 101 of the Act, concluding that the Government had the authority to issue such orders. The orders were within the administrative powers of the Government, and the creation of supernumerary posts was a valid exercise of power under Section 56(7) of the Act.

Issue 3: Ignoring Government Orders
The court held that a statutory authority or agency cannot ignore Government Orders on an assumed premise of voidness. The appellant college, being under the control of the Government, was bound to implement the orders unless they were legally challenged and set aside.

Issue 4: Collateral Challenge
The court discussed the concept of collateral challenge, emphasizing that an order presumed to be void must be challenged directly in appropriate legal proceedings. It cited various precedents, including State of Punjab v. Gurdev Singh and State of Rajasthan v. D.R. Laxmi, to support the view that an order remains effective until it is legally invalidated. The court concluded that the appellant could not collaterally challenge the Government Orders without a formal legal challenge.

Issue 5: Entitlement to Pay and Benefits
The court addressed the issue of pay and allowances for the interregnum period. It noted that the Government, as the paymaster, had directed the reemployment of the 1st respondent, but the appellant college's non-compliance caused the delay. The court directed the Government to pay the accumulated back wages from the date of the judgment in the O.P. (18-5-2010) until the 1st respondent's deemed retirement in April 2014. The Government was given the liberty to recover the amount from the appellant college through appropriate means.

Conclusion:
The court dismissed W.A. No. 1645/2010 filed by the appellant college and allowed W.A. No. 1866/2010 filed by the 1st respondent to the extent of granting back wages for the specified period. No costs were awarded.