sat appoint promotion contact
BEFORE THE HON'BLE TN STATE ADMINISTRATIVE TRIBUNAL AT CHENNAI
O. A. NO :______ of 2004
Applicant
Versus
Respondents
Application Under Section 19 of the T.N. Administrative Tribunals Act, 1985
Chennai
Applicant
______
Through, Advocate
Respectfully Sheweth :
1. Particulars of the Applicant:
As given in the Memo of Parties.
2. Particulars of the Respondents:
As given in the Memo of Parties.
3. Impugned Order:
That the applicant is aggrieved by the impugned order issued by the respondents where by they have replaced the services of the applicant as contract teacher by transferring another teacher on promotion vide Annexure A-__, which is against the decision laid down by the Hon'ble Apex court and this Hon'ble court in catena of cases that the contract teachers can be replaced only by regularly appointed new hands through the Commission against the same vacancy.
4. Jurisdiction:
That the applicant declares that the subject matter of the order against which he wants redressal is within the jurisdiction of this Hon'ble Tribunal.
5. Limitation:
That the applicant further declares that the application is within the limitation prescribed in section 21 of the Administrative Tribunals Act, 1985.
6. Facts of the Case:
(6.1) That the applicant submits that he was initially engaged as a contract teacher against the sanctioned vacant post at Govt. Sr. Sec. School __ wef __ (A-1). The said contract was valid upto ________ and renewable on the termination of the said contract.
(6.2) That it is submitted that the post against which the applicant was initially engaged is still vacant as no regular hand on fresh appointment through commission has joined as yet. The applicant was working in the winter/summer __ closing school. It is also submitted that the applicant is also not being paid salary for the vacations/holidays/fictional breaks.
(6.3) That it is also submitted that the appointment of the applicant against the said post was through a proper procedure and the applicant fulfilled all the conditions and minimum requisite qualification for the said post in accordance with the R&P Rules. The qualification of the applicant is _____, which is the minimum requisite qualification for the said post.
(6.4) That the Full Bench of this Hon'ble Tribunal has adjudicated upon the matter on ______ as regards replacement of the contract teachers in the OA No. ______ titled as Vijay Shetty Vs State of TN and others and has held as under:-
"In view of it we hold that the petitioners are entitled to continue till the time they are replaced by regularly appointed persons in accordance with R&P Rules."
(6.5) That the Hon'ble Apex Court in Raj Bala Vs State of Tamil Nadu has also held as under:-
"After hearing learned counsel for the parties, we allow the writ petition and direct the respondents to continue the petitioners in service until persons regularly selected by the Punjab Public Service Commission are appointed to the posts presently held by the petitioners and join these posts. These petitioners who have been appointed to posts in leave vacancies will continue in these posts until the employees who have proceeded on leave return and join these posts.
We dispose of this writ petition by ordering that subject to one clarification that State of Punjab would not be permitted to terminate the services of any of the petitioners by transferring a regular recruit from another institution to any institution where any of the petitioners may be serving. Termination would be had only when direct recruits through the Public Service Commission are recruited to such posts."
(6.6) That _____
Grounds
(6.7) That feeling aggrieved by such an arbitrary, malafide, discriminatory and illegal actions of the respondents, the applicant seeks the indulgence of this Hon'ble Tribunal on the following grounds amongst others, which may be taken at the time of arguments, each one of which is without prejudice to and independent of others :-
(a) That the impugned order of the respondent whereby they have terminated the services of the applicant by transferring a teacher on promotion against the applicant wef __ and not permitting the applicant to continue till the regular hand comes on fresh appointment through the HP State Public Service Commission is arbitrary, malafide, illegal, ultra vires, against the Articles 14 and 16 of the Constitution of India, dehors the rules and regulations and against the natural justice.
(b) That the applicant was appointed against the permanent sanctioned post which is still vacant. The applicant was discharging his duties to the entire satisfaction of his superiors, students and public men.
(c) That the applicant was made to sign a contract on the dotted lines. The applicant who is highly qualified man and facing grave financial problem had no option but to sign the one-sided contract in obedience to the command given to him in the appointment letter/Contract, with the underlying threat of loosing the job in case he had not signed on the dotted lines. Thus the respondent exerted undue influence on the applicant to sign the contract on the dotted line and is thus violative of the law. The applicant was not in a position to bargain against the respondent state which is far mightier than an unemployed applicant and in a position to dictate its unconscionable terms on the applicant. But the applicant bonafidely believed that no undue advantage will be taken of signing the one-sided contract and he will be allowed to continue and regularized in due course of time. Moreover, the format prescribed by the respondents is not sustainable in the eyes of law and is against the well settled principles of law.
(d) That it is submitted hat there is a vast difference in the bargaining power of the applicant as compared to the respondents. The applicant being an un-employed and desperate youth could not have been subjected to such unconscionable conditions of terminating his services at the whims. Unconscionable conditions confounded in dotted line agreement/contracts cannot be enforced against the weaker party, ie the applicant. This proposition of the law has been settled by the Hon'ble Apex Court and this Hon'ble Court in catena of cases. Such a practice is reminiscent of an archaic practice of "Hire and Fire", which is highly reprehensible and condemnable and has been deprecated by the Hon'ble Supreme Court and this Hon'ble Court.
(e) That it is also a settled law that beginning of service in the government is contractual but thereafter the appointee acquires status and his rights are no longer determined by the contract of the parties. Moreover, offering a job on contract is an indigenous device adopted by the respondents to out reach the law laid down in this regard and to deprive the incumbents from claiming regularization and other benefits which would accrue to him with the efflux of time. Moreover, the Personal Hand Book vide chapter 16.35 specifically provides that all other appointments made dehors R & P Rules will be treated as abhor appointments.
(f) That the applicant is also entitled for the salary for the winter/summer vacations and holidays at par with the regular hands on the same and similar post.
(g) That the impugned order has been issued without assigning any reasons and is non-speaking order. Thus, it is clearly indicative of the arbitrariness of the respondent's action. The impugned order is null and void.
(h) That the respondents are estopped due to their own act, deed and conduct. The principle of the Promissory Estopple applies against the respondents.
(i) That the impugned order is against the well settled principles of the law as laid down by the Hon'ble Supreme Court and this Hon'ble Tribunal in catena of cases.
7. Reliefs Sought:
That the applicant, therefore, prays that your Lordship be pleased to issue an appropriate writ, orders or directions to grant the following reliefs in favour of the applicant in the interest of justice:-
(a) Quash the impugned action of the respondents whereby they have terminated the services of the applicant by transferring a teacher on promotion against the post of the applicant wef __ and not permitting the applicant to continue in service till the regular hand joins on fresh appointment through TN State Public Service Commission, being arbitrary, malafide and illegal;
(b) Direct the respondents not to give notional/fictional breaks to the applicant for the period(s) of summer/winter vacations and other holidays and the applicant may be held to be entitled to arrears for the period of winter/summer vacations and holidays;
(c) Direct the respondents to re-engage the applicant at the same place against the same post with immediate effect with all the consequential benefits and protect the seniority etc of the applicant;
(d) Direct the respondents to produce all the relevant documents along with their reply for perusal by this Hon'ble Tribunal;
(e) Allow the cost of this O.A.;
(f) Pass such other order or directions as deemed fit and proper in favour of the applicant.
AND FOR THIS ACT OF KINDNESS, THE HUMBLE APPLICANT AS IN DUTY BOUND, SHALL EVER PRAY.
8. Interim Orders, If Prayed:
It is prayed that during the pendency of OA the impugned order/action of the respondents be stayed and the respondents may be ordered to re-engage the applicant at the same place against same post and pay the salary for the vacation period to the applicant.
9. Details of Remedies Exhausted:
That the applicant submits that since the matter being of an urgent nature, there is no other alternative speedy and efficacious remedy available to him except to approach this Hon'ble Tribunal.
10. Matter not Pending With any other Courts etc.
That the applicant further declares that the matter regarding which this application has been made, is not pending before any court of law or any other Authority or any other bench of this Hon'ble tribunal.
11. Particulars of Court Fees:
Court fees worth Rs 50/- is attached herewith.
12. Details of Index:
An index containing the details of the documents to be relied upon is enclosed herewith.
Chennai
Applicant
______
Through, Advocate
BEFORE THE HON'BLE TN STATE ADMINISTRATIVE TRIBUNAL AT CHENNAI
O. A. No.______ of 2004
Applicant
Versus
Respondents
Affidavit
I,______, do hereby solemnly, affirm and declare as under :-
1. That the accompanying O.A. has been prepared under my instructions.
2. That the contents of paras 1 to 12 of the accompanying application are correct and true to the best of my knowledge.
3. That I further solemnly affirm and declare that this affidavit of mine is correct and true to the best of my knowledge and no part of it is false and nothing material has been concealed therein.
Affirmed at Chennai this ______.
