- (1.) The petitioner was Headmaster of Lt. Gen. Bikram Singh Khalsa High School, Mehndipur (Balachaur), District Hoshiarpur. He joined the school as Headmaster on 20.9.1977. The school received 95 % grantin-aid from the Punjab Government. He applied for leave from 3.5.1990 to 3.11.1990 and from 4.11.1990 to 7.8.1991. The leave was sanctioned by the management of the school. The petitioner applied for further leave from 8.8.1991 to 7.8.1992 from the management. It is said that during this period, he remained on ex-India leave. This private aided school was taken over by the State Government under a Gift Deed with effect from 19.8.1991. The terms of the take over are recited in the memo. dated 28.8.1991 issued by the Director of Public Instructions (Schools) Punjab (for short "DPI (S), Punjab"). One of the salient terms of the take over was that all teachers and allied staff of the private aided school who were duly qualified to hold the respective posts would be taken over and absorbed as Government servants but only such as were "working at the time of taking over". The crucial date, therefore, was 19.8.1991. On 19.8.1991, it is past dispute that the petitioner was not present on the working strength of the school and was living in United States of America. It is not disputed that in the list enclosed with the conditions of take over, the petitioner's name found mention at Serial No.1. This list of 14 employees of the school was only an offer of appointments on purely temporary basis for six months subject to final approval of the recruiting agency, the State Government.
(2.) The present writ petition was brought under Articles 226/227 of the Constitution of India in 1994 praying for a direction to the respondents to permit the petitioner to join duty as Headmaster and grant him all consequential reliefs, namely, arrears of salary, benefit of pay fixation and benefit of seniority etc. together with interest on arrears and salary at the rate of 18 % p.a.
(3.) On notice having been issued, the respondent-State appeared and filed its written statement dated 27.3.1995. The stand of the State is that the petitioner was not working on 19.8.1991 and in terms of paragraph 2 of the take over document, only such staff would be absorbed who were working at the time of the taking over. Since the petitioner was on leave during the period and up to 7.8.1992 and living abroad, he did not fulfill the requisite pre-conditions of the terms of the take over. The list attached with the take over charter (P2) did not create any vested or accrued right of being absorbed in Government service as it was more in nature of a provisional offer subject to verification that he was working at the time of taking over. No effort was made by the petitioner to get his leave sanctioned from the Government even though as Headmaster of the private aided school, he well knew and would be assumed to know that the process of take over of the school was underway and in process. Therefore, his willful absence would deprive him of any right to be one of the opted personnel of the school. It is further stated that the plea taken by the petitioner that his lien was transferred from Government High School, Mehndipur to Government High School Kukar Suha (Hoshiarpur) by (P5) is of no consequence as the question of lien can arise only if the Government department had passed a posting order and the petitioner had joined that post. No right would arise in the petitioner's favour to stake a claim on the principle of lien. The State has pointed out that the averments in the writ petition in para 7 where it is said that when the management had sanctioned leave from 8.8.1991 to 7.8.1992 without pay, his case for approval of leave was sent to the office of DPI(S),Punjab by the school is incorrect. It was also incorrect that his leave had already been sanctioned by the department. There was no truth in the statement. Had the department sanctioned the leave, there would have been no impediment in paving the way of his entry into Government service on take over of the school by the Government.;