Punjab and Haryana High Court: In a petition seeking to set aside findings in the impugned judgment passed by the District Judge-cum-Educational Tribunal reinstating the respondent as Professor in Management Development Institute (petitioner – ‘MDI’) with full back wages, Tribhuvan Dahiya, J. found the Tribunal’s findings erroneous and set aside the impugned order while holding that the respondent Professor was not entitled to any lien on the post of Professor after he held the post of Director at MDI.
Factual Matrix
MDI is a registered Society under the Societies Registration Act, 1860, wherein, the said respondent was offered appointment as Professor of Marketing vide letter dated 1-03-2000 and joined accordingly. He was appointed on a full-time basis with a pay scale of 18400-500-22400, subject to probation of 2 years, and after confirmation, his tenure was supposed to continue till the age of superannuation (initially 60 years and later raised to 65 years). The said appointment letter stipulated that his service was to be governed by MDI Staff Regulations, 1986 (‘MDI Regulations’) and other rules in force from time to time.
The respondent claimed that he successfully discharged duties as Professor, and that his performance was appreciated by the Board of Governors of MDI. Meanwhile, MDI implemented its HR Policy and Service Rules, 2009 (‘2009 Rules’) w.e.f. 1-01-2010. On 7-06-2011, MDI advertised the post of its Director inviting applications from eligible candidates, and the said respondent applied for the same. Based on recommendations of a Search Committee, the Board of Governors of MDI offered the post of Director to him vide letter dated 17-01-2012 and the said offer for appointment as Director was for 5-years, effective from the date of taking over the charge, and was terminable on 3-months’ notice from either side. The respondent accepted the offer and joined as Director on 17-01-2012. It was claimed that apart from performing the duties as Director, he continued teaching as a Professor of Marketing. For the same reason, the Information Brochure released by MDI in 2013, 2014 and 2015 depicted the respondent as Professor of Marketing, in addition to holding the position of Director. Even for n communications to the All India Council for Technical Education (‘AICTE’), he was shown to be Professor.
On 28-10-2014, the respondent was conveyed the Board of Governors’ decision to terminate his service/cease his appointment as Director w.e.f. the said date. When he claimed to be still working as Professor at MDI, despite termination as Director, a communication dated 15-12-2014 was sent to him informing that he ceased to be the Director on 28-10-2014 and he was not holding any lien on the post of Professor as per the records. This was followed by remission of Rs 1,00,50,040 to his Bank account towards terminal benefits and other dues on 16-12-2014.
The said respondent challenged his termination explored various remedies before High Courts (Delhi and Punjab & Haryana) and Supreme Court, and ultimately approached the Educational Tribunal, Gurugram challenging order dated 28-10-2014 and letter dated 15-12-2014 which terminated his service and informed of no lien against the post of Professor. He further sought reinstatement as Director and Professor in MDI along with back wages.
Tribunal’s Decision
The Tribunal partly accepted the appeal declaring the respondent’s dismissal from the post of Professor as illegal, null and void, and set aside the order dated 15-12-2014. While deciding the applicability of 2009 Rules as against the legality of removal of respondent as MDI Director, the Tribunal concluded that his removal was not stigmatic but in consonance with the contract of service as well as 2009 Rules. Regarding respondent having a lien on the post of Professor at MDI, the said Tribunal held that even after joining as Director, the respondent was having a lien on the post of Professor of Marketing, and that his removal was in violation of 2009 Rules. It was further clarified that there was no delay on part of the respondent in filing the appeal while pursuing lawful remedies available to him and he was entitled to full back wages. He was further held entitled to reinstatement as Professor in MDI. Therefore, MDI challenged the decision sticking to decision regarding entitlement to lien and full back wages to the respondent.
Court’s Analysis
The Court pointed out that during arguments, the respondent raised no objection against MDI not being considered as a State instrumentality under Article 12 of the Constitution of India for the instant matter. While considering the Tribunal’s findings, the Court viewed the two issues as inter-connected and sought to decide them together. The Court commented that “despite relying upon an office memorandum issued by the Government of India, do not refer to particulars of the memorandum, viz., its number, date, etc., nor give any reasoning as to how such a memorandum giving right of lien to government servants will have applicability to the case of second respondent, who admittedly was in employment of the private unaided Institute and his service conditions were not governed by statutory rules.”
The Court pin-pointed that the respondent did not contend that the lien was acquired under the contract of service with MDI but reliance was placed on 2009 Rules on behalf of the respondent to justify applicability to MDI’s employees. The Court regarded such an argument ‘too far-fetched to be accepted’ since the MDI was not an authority under Article 12 of Constitution and hinted towards the Delhi High Court’s decision which held the Single Judge’s findings beyond jurisdiction. The Court stated the well settled principle that “even if an institution is discharging a public function of imparting education, which is subject to judicial review, its relations with the employees governed by ordinary contract of service do not become amenable to writ jurisdiction.” The Court cited Supreme Court’s decision in St. Mary’s Education Society v. Rajendra Prasad Bhargava, (2023) 4 SCC 498, T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 regarding nature of employment.
Coming back to MDI, the Court noted that it was a registered unaided private society, not a statutory body, and could not be termed a local or public authority, and that even if it discharges public function of imparting education, the institute’s relationship with employes is not in realm of public law. In the instant case, it was an ordinary contract of service, and there was no statutory protection to the terms of contract entered into between MDI and the respondent. Thus, he could not be termed as a government employee or akin to one, nor was entitled to lien on the post of Professor on such basis.
The Court further clarified that the stipulation in 2009 Rules that MDI will follow Rules of Government of India being applicable to Indian Institutes of Management (IIMs) could not be read to mean that every rule governing service conditions of central government employees and the instructions so attached will ipso facto apply to employees of MDI as well. The Court expressed that “It will be against the inherent character of the Institute, which is a private unaided educational society, and also the fundamentals governing its relationship with the employees which is contractual as per the TMA Pai Foundation case (supra).” The Court pointed towards the trite law that a contract of service cannot be specifically enforced, and cautioned that “reading an employee’s right to maintain a lien into an ordinary contract of service will entitle him/her to hold the post permanently till transfer of lien, and enforce the right as well by joining the post/seek appointment against it which is impermissible.”
The Court clarified that the right to lien is provided to employees of government/statutory bodies as per applicable rules, and the same was not a fundamental right to be read in every employment. It further said that in the instant case, respondent’s service conditions were not governed or regulated by any statutory rules, nor did his terms of appointment provided for any lien on the post of Professor. The Court expressed through the settled law that “a right cannot be assumed, it has to flow from a statute, rule, regulation or a contract” which was not the case here. The respondent did not even seek extraordinary leave of absence from the post of Professor while joining as the MDI Director.
On Tribunal’s decision, the Court clarified that “Once it has been held that he was not holding the post of Professor while working as Director, and it is not on record that he ever asked for or was granted any kind of leave as Professor to join as Director in the Institute, it cannot be said that he was maintaining a lien on the post of Professor. There cannot be any presumption that the lien was being maintained by the respondent.”
Therefore, the Court allowed the instant petition, set aside the findings of the Tribunal and held that the respondent did not have any lien on the post of Professor of Marketing in MDI, and thus, could not be reinstated in service or given back wages/salary.
[Management Development Institute v. District Judge-cum-Educational Tribunal, Gurugram, 2023 SCC OnLine P&H 3539, decided on 12-12-2023]
Advocates who appeared in this case :
For Petitioner: Advocate Siddharth Batra, Advocate Abhinav Sood
For Respondent: Senior Advocate Vivek Kohli, Advocate Neetika Bajaj, Advocate Jasmeet Bhatia
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