- (1.) In both the writ petitions, the common point for consideration, is the tenability of the order of the Government terminating the services of Teachers, who were working in privately managed schools that were subsequently taken over by the Government under the respective gift deeds. In CWP No.7768 of 1989, the gift deed stipulated a clause as follows: 3. The Govt. is not bound to take all the members of the school staff under their own control. Govt. will have the liberty to take only those employees who are trained and qualified and the right of administration. In CWP No.7769 of 1989, a clause in the gift deed again provided expressions as follows, which were slightly different by substituting the words authorized to take instead of liberty to take: 3. The Govt. is not bound to take all the members of the School staff under their own Control. Govt. is authorized to take those employees who fulfill the prescribed qualifications for the post.
(2.) The clause such as what is extracted and applicable to CWP No.7769 of 1989 was the subject of consideration in the writ petition, heard and disposed of by a Division Bench of this Court in CWP No.4610 of 1996 adverting to the same clause and the effect of the same and by referring to certain other documents, which were placed before this Court, the Bench answered that if the agreement entered into between management of the schools and the Government for take over of the private educational institutions and the terms and conditions of the take over were to be given full effect, the Government was bound to get the suitability of the staff of the erstwhile private school adjudged with a view to absorb them in Government service subject to their fulfilling the conditions of eligibility. The Bench said ''the condition incorporated in the gift deed and the order of take over issued in this case show that absorption of Teachers and other members of staff was only subject to the fulfilling the conditions of eligibility and suitability. Therefore, the additional condition imposed by 2nd respondent while laying down norms for staff of the taken over school cannot be enforced by the respondents qua the petitioners and they cannot be deprived of the right to be considered for absorption in Government service.'' Elsewhere in the same judgment, the Bench had also noted ''A careful reading of what has been extracted above shows that the Government's emphasis has been on the absorption of those teachers who possessed the prescribed qualifications and neither the gift deed nor any other document emanating from Government provided that those who were employed against the unsanctioned posts will not be absorbed. Therefore, we do not find any rational reason or justification to approve the stand taken by the respondents that the petitioners are not entitled to be absorbed in Government services.''
(3.) The Division Bench ruling is, therefore, the law for two aspects; (i) if there is a condition in gift deed that the government shall have authority to take over the teachers if, they fulfill the requisite qualifications then, no additional condition be imposed; (ii) the fact that a teacher was working against an unsanctioned post will also required to be absorbed.;