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2024 Supreme(Online)(MAD) 30951
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 19.02.2024 CORAM THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI W.P.(MD).No.1163 of 2024 Madhuranjani ... Petitioner Vs.
1.The Director, Teacher Recruitment Board, Puratchi Thalaivar Dr.M.G.R. Centenary Building, 3rd and 4th Floors, DPI Campus, College Road, Chennai.
2.The Director, School Education Department, Puratchi Thalaivar Dr.M.G.R. Centenary Building, 3rd and 4th Floors, DPI Campus, College Road, Chennai. ... Respondents Prayer : Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Mandamus, directing the respondents to adopt the procedure of G.O.Ms.No.181 School Education (C2) Department dated 15.11.2011 and permit the petitioner to participate in the forthcoming recruitment process without insisting to undergo competitive examination contemplated under G.O.Ms.No.149 School Education (C2) Department dated 20.07.2018, by considering petitioner-s representation dated 20.11.2023. For Petitioner : Mr.T.Lenin Kumar For R~1 : Mr.VR.Shanmuganathan, Standing Counsel For R~2 : Mr.M.Sarangan, Additional Government Pleader
Government policy decisions are not to be disturbed unless found to be grossly arbitrary or irrational.
Headnote:
Government Policy - Teacher Recruitment - Qualifying Examination - Dismissal of Writ Petition
Fact of the Case:
The petitioner sought direction to adopt a previous procedure for recruitment without a new competitive examination introduced by a government order. The petitioner had passed the Teacher Eligibility Test (TET) but did not meet the new criteria introduced by a subsequent government order.
Finding of the Court:
The Court held that the government's policy decision to introduce a new qualifying examination for TET qualified candidates was not to be interfered with unless found to be grossly arbitrary or irrational. The Court dismissed the writ petition, stating that it could not usurp the jurisdiction of decision makers in the garb of judicial review.
Issues: The main issue was the petitioner's challenge to the introduction of a new qualifying examination for TET qualified candidates and the request to participate in the recruitment process without undergoing the new examination.
Ratio Decidendi: The Court emphasized that policy decisions of the State are not to be disturbed unless found to be grossly arbitrary or irrational. It upheld the government's policy of introducing a qualifying examination for the recruitment of teachers to select more meritorious candidates.
Final Decision: The Court dismissed the writ petition, stating that the government's policy could not be interfered with. No costs were awarded.
JUDGMENT
This appeal is preferred by the Contractor against BSNL being unsatisfied with the order passed by the Court below under Section 34 of the Arbitration and Conciliation Act, 1996, confirming the award passed by the Sole Arbitrator appointed as per the terms of the contract entered between the appellant and the respondent BSNL in respect of constructing Telephone Exchange building at Pudukkottai, for the first respondent.
2. The case of the appellant:-
2.1. The appellant herein, who is a building contractor, entered into a construction agreement with the second respondent herein for constructing a Telephone Exchange Building at Pudukkottai. The time stipulated for completion of the construction was 9 months and the construction was supposed to commence from 17.01.1999. Due to unavoidable hindrances in execution, there was a delay in completion of work and instead of 16.10.1999, the construction got completed only on 29.03.2000. The delay in completing the work is alleged to be, (i) the ground floor flooring has been affected due to non-supply of power cable duct; and (ii) the ground floor flooring has been affected due to non-supply of MDF cable duct.
2.2. Stating that due to the above unavoidable hindrances, execution of construction got delayed, hence, the respondent BSNL is liable to pay cost escalation and other incidental expenses. However, the Department has levied penalty on the Contractor for the delayed execution by invoking Clause 2 of the Agreement, which provides for levy of compensation as penalty for extension of time under certain conditions.
2.3. Referring the dispute to the Arbitrator as per the terms of contract, the appellant made 6 claims. They are:- against the levy of compensation as penalty without following the procedure and without causing any notice under Section 55 of the Indian Contract Act, 1872, which is manifestly violation of law. The delay in completing the work is attributable to the respondent, who has failed to supply power cable duct and MDF cable duct to the ground floor. Towards the Watch and Ward staff, the Contractor incurred expenses of Rs.82,500/-. The extension of time beyond the stipulated date was caused due to non-supply of material by the Department and therefore, the expenditure incurred for engaging Watch and Ward staff for the extended period, the Department is bound to pay. The final bill ought to be settled within 60 days of the completion of the work. While the actual date of completion was 29.03.2000, the payment was made belatedly and for the delayed period, they entitled for interest. Similarly, EMD / SD deposited in the form of bank guarantee not been released even after completion of the work. Therefore, for the delayed payment, the Department is liable to pay Rs. 50,000/-. That apart, for mental harassment and cost of arbitration compensation was sought before the Arbitrator.
3. The Arbitrator, after considering the submissions, passed the award on
29.04.2004. The terms of the award is as below:-
''Claim No.1 : Whether penalty under Clause 2 levied by SF [C] is arbitrable or not claim 19856/- amended by claimant to Rs.2,00,000/-
I have examined the clause 2 of Agreement and procedure followed by SE (C) is deciding levy under clause 2. Due notice was given. Respondent cited various case in defence of SE [C] judgment who is quasi judicial authority.
As per Supreme Court decision AIR 1989 SC 952 Vishwanath Sood vs. Union of India and another, the provision of clause 2 of the Agreement and due procedure followed by SE (C), the claim under clause is not arbitrable.
Claim No.2 : Expenditure due to watch and ward = Rs.67,000/-
Amendment by claimant = Rs.82500/-
No proof or evidence submitted by claimant during progress of work, nothing claimed. As per Full Bench of M.P. Tribunal, reported in 2001 (1) Arb LR 443 held at Page 444, ''that simply on the basis of calculation made by the petitioner on Schedule A, this claim of overhead cannot be allowed.''
Claim awarded – Nil.
Claim No.
