Full Judgment Text
$~22,23,24
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 1439/2013, W.P.(C) 2176/2013, W.P.(C) 2535/2013
th
% 30 August, 2013
1. W.P.(C) No.1439/2013
ARMY PUBLIC SCHOOL & ANR. ..... Petitioners
Through: Ms. Asha Jain Madan, Advocate.
versus
NARENDRA SINGH NAIN AND ANR. ..... Respondents
Through: Mr. M. A. Niyazi, Mr. Manish Kumar,
Advocates for respondent No.1.
Mr. Kushal Yadav, Advocate for Ms. Sonia Arora,
Advocate & Ms. Jahnavi Upadhyay, Advocate for
Mr. Dhamesh Relan, Advocate for respondent
No.2/Directorsyr of Education.
2. W.P.(C) No.2176 /2013
ARMY PUBLIC SCHOOL & ANR. ..... Petitioners
Through: Ms. Asha Jain Madan, Advocate.
versus
AYODHYA PRASAD SEMWAL AND ANR. ..... Respondents
Through: Mr. M. A. Niyazi, Mr. Manish Kumar,
Advocates for respondent No.1.
Mr. Kushal Yadav, Advocate for Ms. Sonia Arora,
Advocate for respondent No.2/Director of
Education.
W.P.(C) Nos.1439/2013, 2176/2013 & 2535/2013 Page 1 of 25
3. W.P.(C) No.2535/2013
ARMY PUBLIC SCHOOL & ANR. ..... Petitioners
Through: Ms. Asha Jain Madan, Advocate.
versus
SH. ANUSUYA PRASAD & ANR. ..... Respondents
Through: Mr. M. A. Niyazi, Mr. Manish Kumar,
Advocates for respondent No.1.
Mr. Kushal Yadav, Advocate for Ms. Sonia Arora,
Advocate for respondent No.2/Director of
Education.
CORAM:
HON’BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? Yes
VALMIKI J. MEHTA, J (ORAL)
W.P.(C) No.1439/2013 & C.M. No.12147/2013
1. By this writ petition, the petitioner-school impugns the order of the
Delhi School Tribunal (DST) dated 18.9.2012. By the impugned order two
appeals filed by the respondent No.1 herein were disposed of. First appeal
was filed impugning the termination of the probationary services by the
letter dated 21.3.2010. The second appeal had challenged the action of the
petitioner-school in passing the termination order dated 10.6.2010
terminating the contractual appointment of the respondent No.1 given in
W.P.(C) Nos.1439/2013, 2176/2013 & 2535/2013 Page 2 of 25
terms of letter of the petitioner-school dated 8.4.2010. DST by the
impugned order allowed the appeal which challenged the termination of
services of the respondent no.1 as a probationer and he was directed to be
reinstated with full back wages. Accordingly, the second appeal of the
respondent No.1 challenging the termination of contractual appointment by
the petitioner-school’s subsequent letter dated 10.6.2010 was held to be
infructuous.
2. The facts of the case are that respondent No.1 was firstly appointed as
Lower Division Clerk (LDC) on contractual basis by the petitioner-school
for a period of one year in terms of letter dated 3.12.2007. After the
contractual period came to an end, respondent No.1 was immediately re-
appointed as LDC, however on probation, in terms of the appointment letter
dated 30.5.2008. The period of probation was one year from 1.4.2008. As
per the appointment letter the respondent No.1 was to continue in probation
till the services were confirmed in writing by the Managing Committee of
the petitioner-school. The period of probation of the petitioner was
extended by the petitioner-school for one more year from 1.4.2009 (i.e till
31.3.2010) by the letter dated 31.3.2009. Respondent No.1’s services were
terminated by a letter dated 21.3.2010 observing that as per the performance
W.P.(C) Nos.1439/2013, 2176/2013 & 2535/2013 Page 3 of 25
reports and advisories given during the extended period of probation, the
respondent No.1’s services were to stand terminated w.e.f 29.3.2010.
Respondent No.1 was however immediately again appointed on 8.4.2010 as
a part-time Admission Clerk for one year w.e.f 3.4.2010. Respondent No.1
had however in the meanwhile challenged the order of the petitioner-school
terminating his services vide letter dated 21.3.2010 before DST, and
consequently when the notice of the appeal filed before the DST reached the
petitioner-school, it is contended by the respondent No.1 that immediately
thereafter on 10.6.2010, the petitioner-school terminated the contractual
appointment given by the letter dated 8.4.2010 by simply stating that the
petitioner school no longer requires the services of the respondent No.1.
3. On the basis of the admitted facts: in the form of various appointment
letters and the termination letters which have been issued by the petitioner-
school as detailed above; the provision of Rule 105 of the Delhi School
Education Act & Rules, 1973; the judgment delivered by me in the case of
Hamdard Public School Vs. Directorate of Education and Anr. in W.P.(C)
No.8652/2011 decided on 25.7.2013 interpreting Rule 105; and, the
judgment of the Supreme Court in the case of Management Committee of
Montfort Senior Secondary School Vs. Sh. Vijay Kumar and Ors., (2005)
W.P.(C) Nos.1439/2013, 2176/2013 & 2535/2013 Page 4 of 25
7 SCC 472 read with Division Bench judgment of this Court in the case of
Social Jurist, a Civil Rights Group Vs. GNCT & Ors. 147 (2008) DLT 729,
the issues which arise, and on which counsel for the parties have been heard,
are first as to whether the respondent No.1 at all can be said to only be a
contractual employee in terms of the first contractual appointment letter
dated 3.12.2007 or whether the employment of respondent No.1 since
inception in the peculiar facts of this case would have a statutory favour in
view of the provisions of the Delhi School Education Act and Rules, 1973,
and secondly as to whether the actions of the petitioner-school amount to
over-reach the provision of Rule 105 and is, therefore, against the ratio not
only of the categorical language of Rule 105 but also the ratio of the
judgment passed by me in the case of Hamdard Public School Vs.
Directorate of Education and Anr. (supra). The following issues are,
therefore, crystallized for decision by this Court:
(i) Should the respondent No.1’s services in the facts of this case
be not taken as having statutory protection in terms of the Delhi School
Education Act and Rules, 1973 since the original date of the contractual
appointment in terms of letter dated 3.12.2007. Related with this issue
would be whether the respondent No.1 is estopped from challenging the
W.P.(C) Nos.1439/2013, 2176/2013 & 2535/2013 Page 5 of 25
nature of appointment as contractual inasmuch as respondent No.1 thereafter
accepted services first as a probationer and thereafter again on contractual
basis.
(ii) Whether all the appointment letters, whether giving contractual
appointment or as appointment on probation, have to be read in their
substance and not in form whereby actually the respondent No.1 should be
treated as on probation either from 28.11.2007 or in any case from 1.4.2008
and since there is no mention of termination on account of unsatisfactory
services in the termination letter dated 10.6.2010, and none exist as stated in
the letter dated 21.3.2010, therefore, respondent No.1 would have
confirmation of employment on account of language of Rule 105 and the
judgment in the case of Hamdard Public School Vs. Directorate of
Education and Anr. (supra).
4. So far as the first issue is concerned, as to whether the respondent
No.1’s services originally w.e.f 28.11.2007 are contractual in nature or
statutory in character, it would be necessary at this stage to refer to the
relevant para 10 of the Supreme Court judgment in the case of Management
Committee of Montfort Senior Secondary School Vs. Sh. Vijay Kumar and
Ors. (supra), but, before I do so I must hasten to add that the observations
W.P.(C) Nos.1439/2013, 2176/2013 & 2535/2013 Page 6 of 25
which are being made by me in this judgment as regards the first issue is
because of the facts of this case whereby I am not treating the first
appointment as contractual in nature in spite of the letter dated 3.12.2007 so
specifying because I hold this letter, and also subsequent
probationary/contractual appointment letters, to be a sham and given only
for denying regular employment to respondent No.1 as LDC. The repeated
appointments and terminations, have persuaded me to hold that the
petitioner’s-school’s actions are a fraud upon the requirement to normally
not to appoint an employee on contract basis. Accordingly, in a case where
on account of genuine exigencies a contractual appointment is required (like
when a regular employee suddenly leaves etc.) then such employment will
be treated as adhoc/temporary/contractual and not a statutory one having
protection of the Act & Rules. With this preface let us reproduce para 10 of
Montfort Senior Secondary School’s case (supra) and which reads as
under:-
“10. In St. Xaviers' case (supra) the following observation was
made, which was noted in Frank Anthony's case (supra):
"A regulation which is designed to prevent mal-administration of
an educational institution cannot be said to offend clause (1) of
Article 30 . At the same time it has to be ensured that under the
power of making regulation nothing is done as would detract
from the character of the institution as a minority educational
W.P.(C) Nos.1439/2013, 2176/2013 & 2535/2013 Page 7 of 25
institution or which would impinge upon the rights of the
minorities to establish and administer educational institutions of
their choice. The right conferred by Article 30 is intended to be
real and effective and not a mere pious and abstract sentiment; it
is a promise of reality and not a teasing illusion. Such a right
cannot be allowed to be whittled down by any measure
masquerading as a regulation. As observed by this Court in the
case of Rev. Sidhajbjai Sabhai (supra), regulations which may
lawfully be imposed either by legislative or executive action as a
condition of receiving grant or of recognition must be directed to
making the institution while retaining its character as minority
institution as an educational institution. Such regulation must
satisfy a dual test the test of reasonableness, and the test that it
is regulative of the educational character of the institution and is
conclusive to making the institution an effective vehicle of
education for the minority or other persons who resort to it."
The effect of the decision in Frank Anthony's case (supra) is that the
statutory rights and privileges of Chapter IV have been extended to
the employees covered by Chapter V and, therefore, the contractual
rights have to be judged in the background of statutory rights. In
view of what has been stated in Frank Anthony's case (supra) the
very nature of employment has undergone a transformation and
services of the employees in minorities un-aided schools governed
under Chapter V are no longer contractual in nature but they are
statutory. The qualifications, leaves, salaries, age of retirement,
pension, dismissal, removal, reduction in rank, suspension and other
conditions of service are to be governed exclusively under the
statutory regime provided in Chapter IV. The Tribunal constituted
under Section 11 is the forum provided for enforcing some of these
rights.....”
5. A reference to aforesaid para shows that the Supreme Court in
Management Committee of Montfort Senior Secondary School Vs. Sh.
Vijay Kumar and Ors. (supra) has laid down the ratio that the very nature of
W.P.(C) Nos.1439/2013, 2176/2013 & 2535/2013 Page 8 of 25
employment of the employees of a school are that they are no longer
contractual in nature but statutory. This observation was made by the
Supreme Court in spite of the fact that the minority schools had entitlement
under the provisions of Section 15 and Rule 130 of the Delhi School
Education Act and Rules, 1973 to have a contract of services for its
employees. It be noted that so far as the non-minority schools are concerned
there is no provision in the Delhi School Education Act and Rules, 1973 to
have a contractual appointment. Therefore, once if minority schools’
employees cannot have contractual employment and they have to be treated
as statutory employees, then a fortiorily non-minority schools whose
employees cannot be engaged in employment on contractual basis, such
employees in non-minority school would surely have statutory protection of
their services. In Management Committee of Montfort Senior Secondary
School Vs. Sh. Vijay Kumar and Ors. (supra) the Hon’ble Supreme Court
has made it clear in the aforesaid paragraph 10 that the qualifications,
leaves, salaries, age of retirement etc, removal and other conditions of
services are to be governed “ exclusively” under the statutory regime
provided under the Delhi School Education Act and Rules, 1973. Once that
is so, then, as per Rules 118 to 120 of the Delhi School Education Rules,
W.P.(C) Nos.1439/2013, 2176/2013 & 2535/2013 Page 9 of 25
1973 the services of an employee can only be terminated on account of
misconduct and that too after following the requirement of holding of a
detailed enquiry and passing of the order by the Disciplinary Authority.
Therefore, in view of the categorical ratio of the judgment of the Supreme
Court in the case of Management Committee of Montfort Senior
Secondary School Vs. Sh. Vijay Kumar and Ors. (supra) and in view of the
facts of this case the respondent No. 1’s services from the inception cannot
be taken as only contractual in nature and would be statutory in nature.
Once the services are statutory in nature, and admittedly the respondent No.
1 has not been removed by following the provisions of conducting an
enquiry and passing of an order by the Disciplinary Authority as required
under the Rules 118 to 120 of the Delhi School Education Rules, 1973, the
respondent No. 1’s services cannot be said to have been legally terminated.
Respondent No. 1, therefore, continues to be in services.
6. To distinguish the applicability of the Supreme Court in the case of
Management Committee of Montfort Senior Secondary School vs. Sh.
Vijay Kumar and Ors. (supra), learned counsel for the petitioner has urged
the following two arguments:
(i) Respondent No.1 is estopped from questioning his first appointment
W.P.(C) Nos.1439/2013, 2176/2013 & 2535/2013 Page 10 of 25
as contractual, thereafter appointment on probation and his termination
during the probation period and thereafter again a fresh contractual
appointment and finally his termination as per the last contract dated
8.4.2010. It is argued that respondent No.1 having acted upon the aforesaid
sequence of events comprised in different appointments cannot now contend
that the ratio of the judgment in Management Committee of Montfort
Senior Secondary School vs. Sh. Vijay Kumar and Ors. (supra) should
come to his aid.
(ii) It is argued that the judgment in Management Committee of Montfort
Senior Secondary School vs. Sh. Vijay Kumar and Ors. (supra) was
intended only to apply to minority schools and ratio of the said judgment
cannot be read to apply to non-minority schools.
7. So far as the second arguments urged on behalf of the petitioner-
school to distinguish the applicability of the ratio in the case of
Management Committee of Montfort Senior Secondary School vs. Sh.
Vijay Kumar and Ors. (supra), I have already dealt with this aspect above
by holding, and the same is reiterated herein, that, if for minority schools,
there cannot be contractual appointments, and which in fact was so
envisaged under the relevant provisions of the Delhi School Education Act
W.P.(C) Nos.1439/2013, 2176/2013 & 2535/2013 Page 11 of 25
and Rules, 1973, then, surely and indubitably, so far as non-minority schools
are concerned, and who do not have provisions even in terms of Delhi
School Education Act and Rules, 1973 for making contractual appointments,
the ratio of Management Committee of Montfort Senior Secondary School
vs. Sh. Vijay Kumar and Ors. (supra) would squarely apply and the
employees of the non-minority schools will be treated not as contractual
employees of the schools but statutory employees having statutory
protection in terms of the relevant provisions of the Delhi School Education
Act and Rules, 1973.
8. So far as the first argument of estoppel is concerned, that argument is
attractive only at the first blush, however, this argument overlooks the
elementary principle that there is no estoppel against law. Of course, there
may be estoppel against law where the provisions of law are only for private
individual interest and not meant to be in public interest, however,
considering that statutory protection is given to the employees of a school
and which results in stability to the education system, the same therefore
cannot be held to be as not in public interest, more so after amending of the
Constitution by introduction of Article 21A by which right to education has
been made as a fundamental right for children from the ages of 6 to 14
W.P.(C) Nos.1439/2013, 2176/2013 & 2535/2013 Page 12 of 25
years. Also one cannot ignore the fact that right to education otherwise also
is an important part of Directive Principles of State Policy vide Article 41
and Article 45 of the Constitution, and thus subject of education itself has
been treated by the Supreme Court as a public function and consequently,
writ petitions lie against even private educational institutions. Reference
need in this regard be only made to the Constitution Bench judgment of the
Supreme Court in the case of Unni Krishnan J.P. & Ors. etc. etc. Vs. State
of A.P. & Ors. etc. etc. 1993(1) SCC 645 and which clearly holds that the
subject of education is a public function, and hence writ petitions are
maintainable even against private educational institutions.
9. That takes us to the second issue to be decided as to whether
respondent no.1 should be taken to have successfully completed the
probation period and more so because the termination orders dated
10.6.2010 and 21.3.2010 fall foul of the mandate of Rule 105 which requires
that termination can only be for unsatisfactory services of a probationer.
Therefore, at this stage, it would be necessary to reproduce the second
termination of services letter dated 10.6.2010, and which reads as under:-
“Tele: 261535589 Army Public School
Shankar Vihar
Delhi Cantt-10
1105/APS SV
W.P.(C) Nos.1439/2013, 2176/2013 & 2535/2013 Page 13 of 25
10 Jun 2010
Mr. Narendra Singh Nain
Admission Clerk
TERIMINATION OF CONTRACTUAL APPOINTMENT
Dear Mr. Nain,
1. Please refer to your appointment letter dt 08 Apr 2010 for
the post of a part time admission clerk on contractual basis.
2. The school managing committee has decided to terminate
your services in the school wef 11 Jun 2010 as the school no
longer requires your services.
Yours faithfully,
(S Suresh Kumar)
Brig
Chairman
APS Shankar Vihar”
10(i) A reading of the termination letter shows that nowhere in the
same it is mentioned that the termination of services are on account of
unsatisfactory nature of services of the respondent no.1. I have already held
that the services of the respondent no.1 were statutory in nature and
character from inception and not contractual, however, even if the
respondent no.1 is treated as on probation w.e.f 1.4.2008 and also further so
far as the extended period of probation for one year w.e.f 1.4.2009, even
then, the first termination letter dated 21.3.2010 terminating the
probationary services on the ground of alleged performance reports and
advisories given to the respondent no.1, is illegal because it flies in the face
W.P.(C) Nos.1439/2013, 2176/2013 & 2535/2013 Page 14 of 25
of the fact of the requirement of non-satisfactory services which is
mandatory for terminating the services of the probationer and which factor is
missing in the present case. This I say so because when counsel for the
petitioner was asked as to what are the performance reports and advisories
given to the respondent no.1, and which is so written in the termination letter
dated 21.3.2010, and which query was put because the respondent no.1 has
disputed the existence of the alleged performance reports and advisories as
stated in the letter of the petitioner-school dated 21.3.2010, learned counsel
for the petitioner could not point out any of the alleged performance reports
and advisories given to the respondent no.1 showing that his services during
the period of probation and the extended period of probation were not found
to be satisfactory. In the impugned order of the DST also, this aspect has
been mentioned in para 22.
Thus both the termination of services letters are illegal being in
violation of Rule 105.
(ii) I have already stated that once the ratio of the judgment in the
case of Hamdard Public School Vs. Directorate of Education and Anr.
(supra) applies, then, Courts have to very carefully examine the termination
of the services order when an employee continues in the employment of a
W.P.(C) Nos.1439/2013, 2176/2013 & 2535/2013 Page 15 of 25
school around a period of three years. To determine the period of three
years, it is not the form of appointment letters which matter, but what matter
is the substance thereof. Unless the substance and not form is taken, the
intent and purpose of Rule 105 as required by the legislature would stand
frustrated. It was not the object of Rule 105 that an employee gets
appointment under different heads either of contractual employment or
probationary employment or part-time employment at the convenience of
the school which can then take up a defence that the employee is not in
effect in continuous employment of the school although in reality the
employment is continuous but merely in different forms simply to suit the
convenience of the school. I have, therefore, no hesitation in holding that I
have to take the employment of the respondent no.1 as continuous either
from 28.11.2007, or at least from 1.4.2008, and when so taken, it is quite
clear that different designations of employment have been used to deny
permanency of employment to the respondent no.1, so that, at the whims and
fancies of the school services can be terminated and an employee of a school
who is rightly entitled to the mandatory emoluments and protection of
services in terms of Delhi School Education Act and Rules, 1973 is denied
such benefits. I cannot give imprimatur of the Court to such sham actions of
W.P.(C) Nos.1439/2013, 2176/2013 & 2535/2013 Page 16 of 25
a school which are intended to frustrate the intention of the legislature and
give uncertainty in employment to the employees of a school. Let me at this
stage reproduce the relevant para of the judgment delivered by me in the
case of Hamdard Public School Vs. Directorate of Education and Anr.
(supra) and this para 11 reads as under:
“11. Now that takes us to the most vexed question as to what
should be a reasonable period. We will have to keep in mind
Article 21A of the Constitution for this purpose. To understand
the issue of what should be a reasonable period qua Rule 105 as
regards a teacher, let us start with two extreme examples. One
extreme example is that probation period cannot be extended at
all for the third year and the other extreme example is that the
probation period can be kept on extending by the management
even till the age of superannuation. Obviously, both these
extreme situations cannot decide what is a reasonable period. In
many statutory rules and rules of many organizations , there is
provided a three year period of probation like in the case of
Lawrence School (supra) . Therefore, probation period
undoubtedly can be of 3 years under Rule 105 because as
already stated there is no outer limit of probation period
provided. The question is that for how long beyond the third
year can a period of probation continue. In my opinion,
reasonable period will have to be dependent on the facts of each
case including as to what is the post or nature of employment in
question, what are the terms and conditions agreed to at the time
of original appointment and subject of course to the same being
in accordance with Delhi School Education Act and Rules, 1973.
The nature of job or duties to be performed by the teacher will
also have to be kept in mind. It will also have to be kept in mind
whether the teacher will be overage for similar employment if
he/she is not confirmed. Keeping in mind all the relevant facts,
probation period, except in exceptional cases, so far as a teacher
is concerned, should not continue beyond a period of 5 years
W.P.(C) Nos.1439/2013, 2176/2013 & 2535/2013 Page 17 of 25
from the first date of appointment. Even a period of 4/5 years
has to be really in a very grave and exceptional case depending
on the facts of that case. However, I do not express myself
finally with respect to what should be a reasonable period
between 3 to 5 years because Courts will necessarily examine
that aspect in the facts and circumstances of each individual
case. I am making these specific observations with respect to
the maximum period of probation being ordinarily only of 5
years because in the absence of fixing an outer limit by the
statute viz Rule 105, the entire purpose of a probation period and
a probationary teacher being confirmed would be defeated by
the machinations of the management of the schools in certain
cases thus affecting education and bringing in of Article 21A in
the Constitution. Therefore, I hold that the Rule 105 must be so
interpreted that the reasonable period therein should ordinarily
be around three years, should not extend beyond five years in
most of the cases, and, in the rarest or rare cases, one more year
upto 6 years may be considered. However again at the cost of
repetition it is stated that six years period is being observed only
as a most grave and rarest of rare circumstance in a case, and
ordinarily, a probation period qua a teacher should not extend
beyond/around three years which is a reasonable period, and as
per the facts and circumstances of certain case, and which
issues/decisions are of course justiciable before Courts the
probation period can go up to 5/6 years as stated above.”
11. Therefore, I hold that even if the respondent no.1 was not a
statutory employee from the first date of the employment in terms of the
ratio of the Supreme Court judgment in the case of Management Committee
of Montfort Senior Secondary School vs. Sh. Vijay Kumar and Ors.
(supra) , even then, the respondent no.1’s services as a probationer were
illegally terminated by the letter dated 21.3.2010 as there is nothing in the
W.P.(C) Nos.1439/2013, 2176/2013 & 2535/2013 Page 18 of 25
form of unsatisfactory services of the respondent no.1 inasmuch as the
convenient language used in the letter dated 21.3.2010 is wholly
unsubstantiated. Also on applying the ratio of Hamdard Public School Vs.
Directorate of Education and Anr. (supra) ordinarily a period of three
years should be the maximum period of probation and when we take the
total period of employment of the respondent no.1 with the petitioner-school
i.e from 28.11.2007 to 10.6.2010 this period of probation comes to around
three years and, therefore, I hold that there is nothing before me to hold that
the period of probation should not ordinarily be taken to have been already
completed when the termination letter dated 10.6.2010 was issued by the
petitioner-school and which does not refer to any unsatisfactory services of
the respondent no.1.
12(i) On behalf of the petitioner-school it was also sought to be
argued that the DST erred in holding the circular issued by the society of the
petitioner-school for terminating services of a large number of employees as
sham because if the petitioner-school intended to act upon the circular dated
30.3.2009, then, petitioner-school would not have extended the period of
probation of the respondent No. 1 by one year w.e.f 1.4.2009 (and which
was so done by the letter of the petitioner-school dated 31.3.2009) i.e just
W.P.(C) Nos.1439/2013, 2176/2013 & 2535/2013 Page 19 of 25
two days after issuance of the circular dated 30.3.2009. Even this argument
urged on behalf of the petitioner-school does not merit acceptance because it
is quite clear that the letter dated 30.3.2009 shows the real intention of the
petitioner-school to treat its employees by employing the hire and fire rule
and which action is categorically prohibited by the provisions of the Delhi
School Education Act and Rules, 1973 read with the ratio laid down by the
Supreme Court in the case of Management Committee of Montfort Senior
Secondary School vs. Sh. Vijay Kumar and Ors. (supra). AT this stage
therefore let me reproduce the said letter dated 30.3.2009 and which reads as
under :
“Telephone: 26151564 Army Welfare Education Society (AWES)
Adjutant General’s Branch
Integrated HQ of MoD (Army),
Building No.202, Shankar Vihar,
Delhi Cantt.-10.
B/45902/Gen/AWES 30 Mar 2009
List A, B and F
1. It has been observed that inspite of directions given vide our
letter no.B/45710/R/AWES dated 24 Mar 2004, some of the Schools have
employed administrative staff on pay scales instead of consolidated pay
on term basis. This was further clarified in Article 123 (b) of AWES
Rules and Regulations Vol.-I for Army Schools/Army Public Schools
(Apr 2008 Edition) that the administrative staff would be employed only
on term basis on consolidated pay.
2. All schools will ensure that administrative staff will be employed
only on term basis and also on a consolidated pay.
3. The following will be ensured:
a. No administrative staff is employed on pay scales.
W.P.(C) Nos.1439/2013, 2176/2013 & 2535/2013 Page 20 of 25
Administrative staff will only be employed on term basis on consolidated
pay.
b. The administrative staff employed on pay scales between 24 Mar
2004 and 29.04.2008 would serve only up to the period of engagement.
After that they may be employed afresh on term basis on consolidated
pay, if required.
c. The services of Group D staff would be outsourced to the extent
feasible. Where this is not feasible due to remoteness of the area, Group
D staff would only be employed on terms basis on consolidated pay.
s/d-
(Amar Narwat)
Col (Retd.)
Director S, L & F,
For Managing Director”
(underlining added)
(ii) I put a specific query to the counsel for the petitioner as to whether
petitioner-school in this writ petition or even before the DST had stated in its
pleadings that petitioner-school had already received the society circular
dated 30.3.2009 when the extension letter dated 31.3.2009 was issued to the
respondent No. 1 by the petitioner-school, however, counsel for the
petitioner could not point out to me any such pleadings that the petitioner-
school had received the circular of the Army Welfare Education Society
dated 30.3.2009 when the letter dated 31.3.2009 was issued for extending
the probationary period of the respondent No. 1 by one year w.e.f 1.4.2009.
Therefore, I reject the argument that the letter dated 30.3.2009 issued by the
Army Welfare Education Society which runs the petitioner’s school does not
show the mala fides of the petitioner-school and it is quite clear that this
W.P.(C) Nos.1439/2013, 2176/2013 & 2535/2013 Page 21 of 25
letter dated 30.3.2009 shows that both the petitioner-school and the society
which manages it, have scant regard for the provisions of the Delhi School
Education Act and Rules, 1973.
13. The counsel for the petitioner-school also sought to argue before me
that since the petitioner-school only got recognition on 26.2.2010, and
therefore prior to this date, the provisions of Delhi School Education Act and
Rules, 1973 would not apply to the petitioner-school. This argument urged
on behalf of the petitioner is without any substance and has already been
decided against the school by a Division Bench of this Court in the judgment
reported as Social Jurist, a Civil Rights Group Vs. GNCT & Ors. (supra)
which holds that the provisions of the Delhi School Education Act and
Rules, 1973 apply not only to recognized school but also to every un-
recognized school which is functioning in Delhi. This argument urged by
the petitioner is also therefore rejected.
14. In view of the above, impugned order of the DST is sustained not only
for the reasons stated therein but for the additional reasoning which is given
by me above. The impugned termination letter of the petitioner-school dated
10.6.2010 and 21.3.2010 are hence quashed, and respondent No. 1 will be
held in continuous service of the petitioner-school as if the letters dated
W.P.(C) Nos.1439/2013, 2176/2013 & 2535/2013 Page 22 of 25
21.3.2010 and 10.6.2010 do not stand implemented.
15. Now, the only issue which remains is as to what should be the salary
and consequential benefits of service including monetary benefits which
should be granted to respondent No. 1. Counsel for the respondent No. 1
agrees that this be decided by the school and the respondent No. 1 will make
representation to the petitioner-school in terms of Rule 121 of the Delhi
School Education Rules, 1973 within a period of two weeks from today for
seeking of appropriate benefits. On such representation being made,
petitioner –school will decide the same by a speaking order within a period
of one month thereafter after giving the respondent No. 1 or his
representative a personal hearing in the matter. At the hearing, the
respondent No. 1 or his representative will be entitled to show the law as to
the entitlement to back wages.
16. Since the impugned order of the DST was stayed subject to deposit of
the back wages in this Court, and which amount has been deposited in this
Court as stated by the counsel for the petitioner-school, this amount so
deposited, will continue to remain deposited in this Court and will abide by
the final order which would be passed under Rule 121 including any
challenge thereto, if so required.
W.P.(C) Nos.1439/2013, 2176/2013 & 2535/2013 Page 23 of 25
17. In view of the above observations, the writ petition is dismissed,
subject to the requirement of the school to comply with the Rule 121 of the
Delhi School Education Act and Rules, 1973. Parties are left to bear their
own costs.
CM 12147/2013
18. Though this case is heard as a writ petition really the original
proceedings before the DST are challenged in these proceedings. Therefore,
this application is dismissed inasmuch as at the second stage, no fresh
pleadings can be introduced as it will cause the parties to be sent back to a
point of time many years earlier and which will cause grave prejudice to the
respondent No. 1. I may also state that the additional grounds which are
urged are admittedly not the ground on the basis of which the termination
orders passed by the petitioner-school were sought to be sustained by the
petitioner-school before the DST. Factual issues at this stage which will
once again require a de novo adjudication cannot be permitted and therefore,
this application is dismissed.
W.P.(C) 2176/2013
19. In view of the reasoning and the ratio given while deciding W.P.(C)
1439/2013, this writ petition is also dismissed. In fact, the facts in this case
W.P.(C) Nos.1439/2013, 2176/2013 & 2535/2013 Page 24 of 25
are more strongly in favour of the respondent No. 1 inasmuch as the
appointment of the respondent No. 1 with the petitioner-school since
inception has already crossed a period of three years.
20. This writ petition is accordingly dismissed, leaving the parties to bear
their own costs and subject to compliance of Rule 121, as stated above.
W.P.(C) 2535/2013
21. This writ petition will also stand dismissed in view of the reasoning
and ration of W.P.(C) 1439/2013, however, I note that some of the facts of
this case are different because the respondent No. 1 did not take up a third
term contractual appointment. In any case, this would not, in any manner,
cause any difference to the other aspects which have been held against the
petitioner-school given in W.P. (C) 1439/2013.
22. The writ petition is accordingly dismissed, leaving the parties to bear
their own costs, and subject to compliance by the petitioner-school of the
provision of Rule 121, as stated above.
VALMIKI J. MEHTA, J
AUGUST 30, 2013
godara
W.P.(C) Nos.1439/2013, 2176/2013 & 2535/2013 Page 25 of 25
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 1439/2013, W.P.(C) 2176/2013, W.P.(C) 2535/2013
th
% 30 August, 2013
1. W.P.(C) No.1439/2013
ARMY PUBLIC SCHOOL & ANR. ..... Petitioners
Through: Ms. Asha Jain Madan, Advocate.
versus
NARENDRA SINGH NAIN AND ANR. ..... Respondents
Through: Mr. M. A. Niyazi, Mr. Manish Kumar,
Advocates for respondent No.1.
Mr. Kushal Yadav, Advocate for Ms. Sonia Arora,
Advocate & Ms. Jahnavi Upadhyay, Advocate for
Mr. Dhamesh Relan, Advocate for respondent
No.2/Directorsyr of Education.
2. W.P.(C) No.2176 /2013
ARMY PUBLIC SCHOOL & ANR. ..... Petitioners
Through: Ms. Asha Jain Madan, Advocate.
versus
AYODHYA PRASAD SEMWAL AND ANR. ..... Respondents
Through: Mr. M. A. Niyazi, Mr. Manish Kumar,
Advocates for respondent No.1.
Mr. Kushal Yadav, Advocate for Ms. Sonia Arora,
Advocate for respondent No.2/Director of
Education.
W.P.(C) Nos.1439/2013, 2176/2013 & 2535/2013 Page 1 of 25
3. W.P.(C) No.2535/2013
ARMY PUBLIC SCHOOL & ANR. ..... Petitioners
Through: Ms. Asha Jain Madan, Advocate.
versus
SH. ANUSUYA PRASAD & ANR. ..... Respondents
Through: Mr. M. A. Niyazi, Mr. Manish Kumar,
Advocates for respondent No.1.
Mr. Kushal Yadav, Advocate for Ms. Sonia Arora,
Advocate for respondent No.2/Director of
Education.
CORAM:
HON’BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? Yes
VALMIKI J. MEHTA, J (ORAL)
W.P.(C) No.1439/2013 & C.M. No.12147/2013
1. By this writ petition, the petitioner-school impugns the order of the
Delhi School Tribunal (DST) dated 18.9.2012. By the impugned order two
appeals filed by the respondent No.1 herein were disposed of. First appeal
was filed impugning the termination of the probationary services by the
letter dated 21.3.2010. The second appeal had challenged the action of the
petitioner-school in passing the termination order dated 10.6.2010
terminating the contractual appointment of the respondent No.1 given in
W.P.(C) Nos.1439/2013, 2176/2013 & 2535/2013 Page 2 of 25
terms of letter of the petitioner-school dated 8.4.2010. DST by the
impugned order allowed the appeal which challenged the termination of
services of the respondent no.1 as a probationer and he was directed to be
reinstated with full back wages. Accordingly, the second appeal of the
respondent No.1 challenging the termination of contractual appointment by
the petitioner-school’s subsequent letter dated 10.6.2010 was held to be
infructuous.
2. The facts of the case are that respondent No.1 was firstly appointed as
Lower Division Clerk (LDC) on contractual basis by the petitioner-school
for a period of one year in terms of letter dated 3.12.2007. After the
contractual period came to an end, respondent No.1 was immediately re-
appointed as LDC, however on probation, in terms of the appointment letter
dated 30.5.2008. The period of probation was one year from 1.4.2008. As
per the appointment letter the respondent No.1 was to continue in probation
till the services were confirmed in writing by the Managing Committee of
the petitioner-school. The period of probation of the petitioner was
extended by the petitioner-school for one more year from 1.4.2009 (i.e till
31.3.2010) by the letter dated 31.3.2009. Respondent No.1’s services were
terminated by a letter dated 21.3.2010 observing that as per the performance
W.P.(C) Nos.1439/2013, 2176/2013 & 2535/2013 Page 3 of 25
reports and advisories given during the extended period of probation, the
respondent No.1’s services were to stand terminated w.e.f 29.3.2010.
Respondent No.1 was however immediately again appointed on 8.4.2010 as
a part-time Admission Clerk for one year w.e.f 3.4.2010. Respondent No.1
had however in the meanwhile challenged the order of the petitioner-school
terminating his services vide letter dated 21.3.2010 before DST, and
consequently when the notice of the appeal filed before the DST reached the
petitioner-school, it is contended by the respondent No.1 that immediately
thereafter on 10.6.2010, the petitioner-school terminated the contractual
appointment given by the letter dated 8.4.2010 by simply stating that the
petitioner school no longer requires the services of the respondent No.1.
3. On the basis of the admitted facts: in the form of various appointment
letters and the termination letters which have been issued by the petitioner-
school as detailed above; the provision of Rule 105 of the Delhi School
Education Act & Rules, 1973; the judgment delivered by me in the case of
Hamdard Public School Vs. Directorate of Education and Anr. in W.P.(C)
No.8652/2011 decided on 25.7.2013 interpreting Rule 105; and, the
judgment of the Supreme Court in the case of Management Committee of
Montfort Senior Secondary School Vs. Sh. Vijay Kumar and Ors., (2005)
W.P.(C) Nos.1439/2013, 2176/2013 & 2535/2013 Page 4 of 25
7 SCC 472 read with Division Bench judgment of this Court in the case of
Social Jurist, a Civil Rights Group Vs. GNCT & Ors. 147 (2008) DLT 729,
the issues which arise, and on which counsel for the parties have been heard,
are first as to whether the respondent No.1 at all can be said to only be a
contractual employee in terms of the first contractual appointment letter
dated 3.12.2007 or whether the employment of respondent No.1 since
inception in the peculiar facts of this case would have a statutory favour in
view of the provisions of the Delhi School Education Act and Rules, 1973,
and secondly as to whether the actions of the petitioner-school amount to
over-reach the provision of Rule 105 and is, therefore, against the ratio not
only of the categorical language of Rule 105 but also the ratio of the
judgment passed by me in the case of Hamdard Public School Vs.
Directorate of Education and Anr. (supra). The following issues are,
therefore, crystallized for decision by this Court:
(i) Should the respondent No.1’s services in the facts of this case
be not taken as having statutory protection in terms of the Delhi School
Education Act and Rules, 1973 since the original date of the contractual
appointment in terms of letter dated 3.12.2007. Related with this issue
would be whether the respondent No.1 is estopped from challenging the
W.P.(C) Nos.1439/2013, 2176/2013 & 2535/2013 Page 5 of 25
nature of appointment as contractual inasmuch as respondent No.1 thereafter
accepted services first as a probationer and thereafter again on contractual
basis.
(ii) Whether all the appointment letters, whether giving contractual
appointment or as appointment on probation, have to be read in their
substance and not in form whereby actually the respondent No.1 should be
treated as on probation either from 28.11.2007 or in any case from 1.4.2008
and since there is no mention of termination on account of unsatisfactory
services in the termination letter dated 10.6.2010, and none exist as stated in
the letter dated 21.3.2010, therefore, respondent No.1 would have
confirmation of employment on account of language of Rule 105 and the
judgment in the case of Hamdard Public School Vs. Directorate of
Education and Anr. (supra).
4. So far as the first issue is concerned, as to whether the respondent
No.1’s services originally w.e.f 28.11.2007 are contractual in nature or
statutory in character, it would be necessary at this stage to refer to the
relevant para 10 of the Supreme Court judgment in the case of Management
Committee of Montfort Senior Secondary School Vs. Sh. Vijay Kumar and
Ors. (supra), but, before I do so I must hasten to add that the observations
W.P.(C) Nos.1439/2013, 2176/2013 & 2535/2013 Page 6 of 25
which are being made by me in this judgment as regards the first issue is
because of the facts of this case whereby I am not treating the first
appointment as contractual in nature in spite of the letter dated 3.12.2007 so
specifying because I hold this letter, and also subsequent
probationary/contractual appointment letters, to be a sham and given only
for denying regular employment to respondent No.1 as LDC. The repeated
appointments and terminations, have persuaded me to hold that the
petitioner’s-school’s actions are a fraud upon the requirement to normally
not to appoint an employee on contract basis. Accordingly, in a case where
on account of genuine exigencies a contractual appointment is required (like
when a regular employee suddenly leaves etc.) then such employment will
be treated as adhoc/temporary/contractual and not a statutory one having
protection of the Act & Rules. With this preface let us reproduce para 10 of
Montfort Senior Secondary School’s case (supra) and which reads as
under:-
“10. In St. Xaviers' case (supra) the following observation was
made, which was noted in Frank Anthony's case (supra):
"A regulation which is designed to prevent mal-administration of
an educational institution cannot be said to offend clause (1) of
Article 30 . At the same time it has to be ensured that under the
power of making regulation nothing is done as would detract
from the character of the institution as a minority educational
W.P.(C) Nos.1439/2013, 2176/2013 & 2535/2013 Page 7 of 25
institution or which would impinge upon the rights of the
minorities to establish and administer educational institutions of
their choice. The right conferred by Article 30 is intended to be
real and effective and not a mere pious and abstract sentiment; it
is a promise of reality and not a teasing illusion. Such a right
cannot be allowed to be whittled down by any measure
masquerading as a regulation. As observed by this Court in the
case of Rev. Sidhajbjai Sabhai (supra), regulations which may
lawfully be imposed either by legislative or executive action as a
condition of receiving grant or of recognition must be directed to
making the institution while retaining its character as minority
institution as an educational institution. Such regulation must
satisfy a dual test the test of reasonableness, and the test that it
is regulative of the educational character of the institution and is
conclusive to making the institution an effective vehicle of
education for the minority or other persons who resort to it."
The effect of the decision in Frank Anthony's case (supra) is that the
statutory rights and privileges of Chapter IV have been extended to
the employees covered by Chapter V and, therefore, the contractual
rights have to be judged in the background of statutory rights. In
view of what has been stated in Frank Anthony's case (supra) the
very nature of employment has undergone a transformation and
services of the employees in minorities un-aided schools governed
under Chapter V are no longer contractual in nature but they are
statutory. The qualifications, leaves, salaries, age of retirement,
pension, dismissal, removal, reduction in rank, suspension and other
conditions of service are to be governed exclusively under the
statutory regime provided in Chapter IV. The Tribunal constituted
under Section 11 is the forum provided for enforcing some of these
rights.....”
5. A reference to aforesaid para shows that the Supreme Court in
Management Committee of Montfort Senior Secondary School Vs. Sh.
Vijay Kumar and Ors. (supra) has laid down the ratio that the very nature of
W.P.(C) Nos.1439/2013, 2176/2013 & 2535/2013 Page 8 of 25
employment of the employees of a school are that they are no longer
contractual in nature but statutory. This observation was made by the
Supreme Court in spite of the fact that the minority schools had entitlement
under the provisions of Section 15 and Rule 130 of the Delhi School
Education Act and Rules, 1973 to have a contract of services for its
employees. It be noted that so far as the non-minority schools are concerned
there is no provision in the Delhi School Education Act and Rules, 1973 to
have a contractual appointment. Therefore, once if minority schools’
employees cannot have contractual employment and they have to be treated
as statutory employees, then a fortiorily non-minority schools whose
employees cannot be engaged in employment on contractual basis, such
employees in non-minority school would surely have statutory protection of
their services. In Management Committee of Montfort Senior Secondary
School Vs. Sh. Vijay Kumar and Ors. (supra) the Hon’ble Supreme Court
has made it clear in the aforesaid paragraph 10 that the qualifications,
leaves, salaries, age of retirement etc, removal and other conditions of
services are to be governed “ exclusively” under the statutory regime
provided under the Delhi School Education Act and Rules, 1973. Once that
is so, then, as per Rules 118 to 120 of the Delhi School Education Rules,
W.P.(C) Nos.1439/2013, 2176/2013 & 2535/2013 Page 9 of 25
1973 the services of an employee can only be terminated on account of
misconduct and that too after following the requirement of holding of a
detailed enquiry and passing of the order by the Disciplinary Authority.
Therefore, in view of the categorical ratio of the judgment of the Supreme
Court in the case of Management Committee of Montfort Senior
Secondary School Vs. Sh. Vijay Kumar and Ors. (supra) and in view of the
facts of this case the respondent No. 1’s services from the inception cannot
be taken as only contractual in nature and would be statutory in nature.
Once the services are statutory in nature, and admittedly the respondent No.
1 has not been removed by following the provisions of conducting an
enquiry and passing of an order by the Disciplinary Authority as required
under the Rules 118 to 120 of the Delhi School Education Rules, 1973, the
respondent No. 1’s services cannot be said to have been legally terminated.
Respondent No. 1, therefore, continues to be in services.
6. To distinguish the applicability of the Supreme Court in the case of
Management Committee of Montfort Senior Secondary School vs. Sh.
Vijay Kumar and Ors. (supra), learned counsel for the petitioner has urged
the following two arguments:
(i) Respondent No.1 is estopped from questioning his first appointment
W.P.(C) Nos.1439/2013, 2176/2013 & 2535/2013 Page 10 of 25
as contractual, thereafter appointment on probation and his termination
during the probation period and thereafter again a fresh contractual
appointment and finally his termination as per the last contract dated
8.4.2010. It is argued that respondent No.1 having acted upon the aforesaid
sequence of events comprised in different appointments cannot now contend
that the ratio of the judgment in Management Committee of Montfort
Senior Secondary School vs. Sh. Vijay Kumar and Ors. (supra) should
come to his aid.
(ii) It is argued that the judgment in Management Committee of Montfort
Senior Secondary School vs. Sh. Vijay Kumar and Ors. (supra) was
intended only to apply to minority schools and ratio of the said judgment
cannot be read to apply to non-minority schools.
7. So far as the second arguments urged on behalf of the petitioner-
school to distinguish the applicability of the ratio in the case of
Management Committee of Montfort Senior Secondary School vs. Sh.
Vijay Kumar and Ors. (supra), I have already dealt with this aspect above
by holding, and the same is reiterated herein, that, if for minority schools,
there cannot be contractual appointments, and which in fact was so
envisaged under the relevant provisions of the Delhi School Education Act
W.P.(C) Nos.1439/2013, 2176/2013 & 2535/2013 Page 11 of 25
and Rules, 1973, then, surely and indubitably, so far as non-minority schools
are concerned, and who do not have provisions even in terms of Delhi
School Education Act and Rules, 1973 for making contractual appointments,
the ratio of Management Committee of Montfort Senior Secondary School
vs. Sh. Vijay Kumar and Ors. (supra) would squarely apply and the
employees of the non-minority schools will be treated not as contractual
employees of the schools but statutory employees having statutory
protection in terms of the relevant provisions of the Delhi School Education
Act and Rules, 1973.
8. So far as the first argument of estoppel is concerned, that argument is
attractive only at the first blush, however, this argument overlooks the
elementary principle that there is no estoppel against law. Of course, there
may be estoppel against law where the provisions of law are only for private
individual interest and not meant to be in public interest, however,
considering that statutory protection is given to the employees of a school
and which results in stability to the education system, the same therefore
cannot be held to be as not in public interest, more so after amending of the
Constitution by introduction of Article 21A by which right to education has
been made as a fundamental right for children from the ages of 6 to 14
W.P.(C) Nos.1439/2013, 2176/2013 & 2535/2013 Page 12 of 25
years. Also one cannot ignore the fact that right to education otherwise also
is an important part of Directive Principles of State Policy vide Article 41
and Article 45 of the Constitution, and thus subject of education itself has
been treated by the Supreme Court as a public function and consequently,
writ petitions lie against even private educational institutions. Reference
need in this regard be only made to the Constitution Bench judgment of the
Supreme Court in the case of Unni Krishnan J.P. & Ors. etc. etc. Vs. State
of A.P. & Ors. etc. etc. 1993(1) SCC 645 and which clearly holds that the
subject of education is a public function, and hence writ petitions are
maintainable even against private educational institutions.
9. That takes us to the second issue to be decided as to whether
respondent no.1 should be taken to have successfully completed the
probation period and more so because the termination orders dated
10.6.2010 and 21.3.2010 fall foul of the mandate of Rule 105 which requires
that termination can only be for unsatisfactory services of a probationer.
Therefore, at this stage, it would be necessary to reproduce the second
termination of services letter dated 10.6.2010, and which reads as under:-
“Tele: 261535589 Army Public School
Shankar Vihar
Delhi Cantt-10
1105/APS SV
W.P.(C) Nos.1439/2013, 2176/2013 & 2535/2013 Page 13 of 25
10 Jun 2010
Mr. Narendra Singh Nain
Admission Clerk
TERIMINATION OF CONTRACTUAL APPOINTMENT
Dear Mr. Nain,
1. Please refer to your appointment letter dt 08 Apr 2010 for
the post of a part time admission clerk on contractual basis.
2. The school managing committee has decided to terminate
your services in the school wef 11 Jun 2010 as the school no
longer requires your services.
Yours faithfully,
(S Suresh Kumar)
Brig
Chairman
APS Shankar Vihar”
10(i) A reading of the termination letter shows that nowhere in the
same it is mentioned that the termination of services are on account of
unsatisfactory nature of services of the respondent no.1. I have already held
that the services of the respondent no.1 were statutory in nature and
character from inception and not contractual, however, even if the
respondent no.1 is treated as on probation w.e.f 1.4.2008 and also further so
far as the extended period of probation for one year w.e.f 1.4.2009, even
then, the first termination letter dated 21.3.2010 terminating the
probationary services on the ground of alleged performance reports and
advisories given to the respondent no.1, is illegal because it flies in the face
W.P.(C) Nos.1439/2013, 2176/2013 & 2535/2013 Page 14 of 25
of the fact of the requirement of non-satisfactory services which is
mandatory for terminating the services of the probationer and which factor is
missing in the present case. This I say so because when counsel for the
petitioner was asked as to what are the performance reports and advisories
given to the respondent no.1, and which is so written in the termination letter
dated 21.3.2010, and which query was put because the respondent no.1 has
disputed the existence of the alleged performance reports and advisories as
stated in the letter of the petitioner-school dated 21.3.2010, learned counsel
for the petitioner could not point out any of the alleged performance reports
and advisories given to the respondent no.1 showing that his services during
the period of probation and the extended period of probation were not found
to be satisfactory. In the impugned order of the DST also, this aspect has
been mentioned in para 22.
Thus both the termination of services letters are illegal being in
violation of Rule 105.
(ii) I have already stated that once the ratio of the judgment in the
case of Hamdard Public School Vs. Directorate of Education and Anr.
(supra) applies, then, Courts have to very carefully examine the termination
of the services order when an employee continues in the employment of a
W.P.(C) Nos.1439/2013, 2176/2013 & 2535/2013 Page 15 of 25
school around a period of three years. To determine the period of three
years, it is not the form of appointment letters which matter, but what matter
is the substance thereof. Unless the substance and not form is taken, the
intent and purpose of Rule 105 as required by the legislature would stand
frustrated. It was not the object of Rule 105 that an employee gets
appointment under different heads either of contractual employment or
probationary employment or part-time employment at the convenience of
the school which can then take up a defence that the employee is not in
effect in continuous employment of the school although in reality the
employment is continuous but merely in different forms simply to suit the
convenience of the school. I have, therefore, no hesitation in holding that I
have to take the employment of the respondent no.1 as continuous either
from 28.11.2007, or at least from 1.4.2008, and when so taken, it is quite
clear that different designations of employment have been used to deny
permanency of employment to the respondent no.1, so that, at the whims and
fancies of the school services can be terminated and an employee of a school
who is rightly entitled to the mandatory emoluments and protection of
services in terms of Delhi School Education Act and Rules, 1973 is denied
such benefits. I cannot give imprimatur of the Court to such sham actions of
W.P.(C) Nos.1439/2013, 2176/2013 & 2535/2013 Page 16 of 25
a school which are intended to frustrate the intention of the legislature and
give uncertainty in employment to the employees of a school. Let me at this
stage reproduce the relevant para of the judgment delivered by me in the
case of Hamdard Public School Vs. Directorate of Education and Anr.
(supra) and this para 11 reads as under:
“11. Now that takes us to the most vexed question as to what
should be a reasonable period. We will have to keep in mind
Article 21A of the Constitution for this purpose. To understand
the issue of what should be a reasonable period qua Rule 105 as
regards a teacher, let us start with two extreme examples. One
extreme example is that probation period cannot be extended at
all for the third year and the other extreme example is that the
probation period can be kept on extending by the management
even till the age of superannuation. Obviously, both these
extreme situations cannot decide what is a reasonable period. In
many statutory rules and rules of many organizations , there is
provided a three year period of probation like in the case of
Lawrence School (supra) . Therefore, probation period
undoubtedly can be of 3 years under Rule 105 because as
already stated there is no outer limit of probation period
provided. The question is that for how long beyond the third
year can a period of probation continue. In my opinion,
reasonable period will have to be dependent on the facts of each
case including as to what is the post or nature of employment in
question, what are the terms and conditions agreed to at the time
of original appointment and subject of course to the same being
in accordance with Delhi School Education Act and Rules, 1973.
The nature of job or duties to be performed by the teacher will
also have to be kept in mind. It will also have to be kept in mind
whether the teacher will be overage for similar employment if
he/she is not confirmed. Keeping in mind all the relevant facts,
probation period, except in exceptional cases, so far as a teacher
is concerned, should not continue beyond a period of 5 years
W.P.(C) Nos.1439/2013, 2176/2013 & 2535/2013 Page 17 of 25
from the first date of appointment. Even a period of 4/5 years
has to be really in a very grave and exceptional case depending
on the facts of that case. However, I do not express myself
finally with respect to what should be a reasonable period
between 3 to 5 years because Courts will necessarily examine
that aspect in the facts and circumstances of each individual
case. I am making these specific observations with respect to
the maximum period of probation being ordinarily only of 5
years because in the absence of fixing an outer limit by the
statute viz Rule 105, the entire purpose of a probation period and
a probationary teacher being confirmed would be defeated by
the machinations of the management of the schools in certain
cases thus affecting education and bringing in of Article 21A in
the Constitution. Therefore, I hold that the Rule 105 must be so
interpreted that the reasonable period therein should ordinarily
be around three years, should not extend beyond five years in
most of the cases, and, in the rarest or rare cases, one more year
upto 6 years may be considered. However again at the cost of
repetition it is stated that six years period is being observed only
as a most grave and rarest of rare circumstance in a case, and
ordinarily, a probation period qua a teacher should not extend
beyond/around three years which is a reasonable period, and as
per the facts and circumstances of certain case, and which
issues/decisions are of course justiciable before Courts the
probation period can go up to 5/6 years as stated above.”
11. Therefore, I hold that even if the respondent no.1 was not a
statutory employee from the first date of the employment in terms of the
ratio of the Supreme Court judgment in the case of Management Committee
of Montfort Senior Secondary School vs. Sh. Vijay Kumar and Ors.
(supra) , even then, the respondent no.1’s services as a probationer were
illegally terminated by the letter dated 21.3.2010 as there is nothing in the
W.P.(C) Nos.1439/2013, 2176/2013 & 2535/2013 Page 18 of 25
form of unsatisfactory services of the respondent no.1 inasmuch as the
convenient language used in the letter dated 21.3.2010 is wholly
unsubstantiated. Also on applying the ratio of Hamdard Public School Vs.
Directorate of Education and Anr. (supra) ordinarily a period of three
years should be the maximum period of probation and when we take the
total period of employment of the respondent no.1 with the petitioner-school
i.e from 28.11.2007 to 10.6.2010 this period of probation comes to around
three years and, therefore, I hold that there is nothing before me to hold that
the period of probation should not ordinarily be taken to have been already
completed when the termination letter dated 10.6.2010 was issued by the
petitioner-school and which does not refer to any unsatisfactory services of
the respondent no.1.
12(i) On behalf of the petitioner-school it was also sought to be
argued that the DST erred in holding the circular issued by the society of the
petitioner-school for terminating services of a large number of employees as
sham because if the petitioner-school intended to act upon the circular dated
30.3.2009, then, petitioner-school would not have extended the period of
probation of the respondent No. 1 by one year w.e.f 1.4.2009 (and which
was so done by the letter of the petitioner-school dated 31.3.2009) i.e just
W.P.(C) Nos.1439/2013, 2176/2013 & 2535/2013 Page 19 of 25
two days after issuance of the circular dated 30.3.2009. Even this argument
urged on behalf of the petitioner-school does not merit acceptance because it
is quite clear that the letter dated 30.3.2009 shows the real intention of the
petitioner-school to treat its employees by employing the hire and fire rule
and which action is categorically prohibited by the provisions of the Delhi
School Education Act and Rules, 1973 read with the ratio laid down by the
Supreme Court in the case of Management Committee of Montfort Senior
Secondary School vs. Sh. Vijay Kumar and Ors. (supra). AT this stage
therefore let me reproduce the said letter dated 30.3.2009 and which reads as
under :
“Telephone: 26151564 Army Welfare Education Society (AWES)
Adjutant General’s Branch
Integrated HQ of MoD (Army),
Building No.202, Shankar Vihar,
Delhi Cantt.-10.
B/45902/Gen/AWES 30 Mar 2009
List A, B and F
1. It has been observed that inspite of directions given vide our
letter no.B/45710/R/AWES dated 24 Mar 2004, some of the Schools have
employed administrative staff on pay scales instead of consolidated pay
on term basis. This was further clarified in Article 123 (b) of AWES
Rules and Regulations Vol.-I for Army Schools/Army Public Schools
(Apr 2008 Edition) that the administrative staff would be employed only
on term basis on consolidated pay.
2. All schools will ensure that administrative staff will be employed
only on term basis and also on a consolidated pay.
3. The following will be ensured:
a. No administrative staff is employed on pay scales.
W.P.(C) Nos.1439/2013, 2176/2013 & 2535/2013 Page 20 of 25
Administrative staff will only be employed on term basis on consolidated
pay.
b. The administrative staff employed on pay scales between 24 Mar
2004 and 29.04.2008 would serve only up to the period of engagement.
After that they may be employed afresh on term basis on consolidated
pay, if required.
c. The services of Group D staff would be outsourced to the extent
feasible. Where this is not feasible due to remoteness of the area, Group
D staff would only be employed on terms basis on consolidated pay.
s/d-
(Amar Narwat)
Col (Retd.)
Director S, L & F,
For Managing Director”
(underlining added)
(ii) I put a specific query to the counsel for the petitioner as to whether
petitioner-school in this writ petition or even before the DST had stated in its
pleadings that petitioner-school had already received the society circular
dated 30.3.2009 when the extension letter dated 31.3.2009 was issued to the
respondent No. 1 by the petitioner-school, however, counsel for the
petitioner could not point out to me any such pleadings that the petitioner-
school had received the circular of the Army Welfare Education Society
dated 30.3.2009 when the letter dated 31.3.2009 was issued for extending
the probationary period of the respondent No. 1 by one year w.e.f 1.4.2009.
Therefore, I reject the argument that the letter dated 30.3.2009 issued by the
Army Welfare Education Society which runs the petitioner’s school does not
show the mala fides of the petitioner-school and it is quite clear that this
W.P.(C) Nos.1439/2013, 2176/2013 & 2535/2013 Page 21 of 25
letter dated 30.3.2009 shows that both the petitioner-school and the society
which manages it, have scant regard for the provisions of the Delhi School
Education Act and Rules, 1973.
13. The counsel for the petitioner-school also sought to argue before me
that since the petitioner-school only got recognition on 26.2.2010, and
therefore prior to this date, the provisions of Delhi School Education Act and
Rules, 1973 would not apply to the petitioner-school. This argument urged
on behalf of the petitioner is without any substance and has already been
decided against the school by a Division Bench of this Court in the judgment
reported as Social Jurist, a Civil Rights Group Vs. GNCT & Ors. (supra)
which holds that the provisions of the Delhi School Education Act and
Rules, 1973 apply not only to recognized school but also to every un-
recognized school which is functioning in Delhi. This argument urged by
the petitioner is also therefore rejected.
14. In view of the above, impugned order of the DST is sustained not only
for the reasons stated therein but for the additional reasoning which is given
by me above. The impugned termination letter of the petitioner-school dated
10.6.2010 and 21.3.2010 are hence quashed, and respondent No. 1 will be
held in continuous service of the petitioner-school as if the letters dated
W.P.(C) Nos.1439/2013, 2176/2013 & 2535/2013 Page 22 of 25
21.3.2010 and 10.6.2010 do not stand implemented.
15. Now, the only issue which remains is as to what should be the salary
and consequential benefits of service including monetary benefits which
should be granted to respondent No. 1. Counsel for the respondent No. 1
agrees that this be decided by the school and the respondent No. 1 will make
representation to the petitioner-school in terms of Rule 121 of the Delhi
School Education Rules, 1973 within a period of two weeks from today for
seeking of appropriate benefits. On such representation being made,
petitioner –school will decide the same by a speaking order within a period
of one month thereafter after giving the respondent No. 1 or his
representative a personal hearing in the matter. At the hearing, the
respondent No. 1 or his representative will be entitled to show the law as to
the entitlement to back wages.
16. Since the impugned order of the DST was stayed subject to deposit of
the back wages in this Court, and which amount has been deposited in this
Court as stated by the counsel for the petitioner-school, this amount so
deposited, will continue to remain deposited in this Court and will abide by
the final order which would be passed under Rule 121 including any
challenge thereto, if so required.
W.P.(C) Nos.1439/2013, 2176/2013 & 2535/2013 Page 23 of 25
17. In view of the above observations, the writ petition is dismissed,
subject to the requirement of the school to comply with the Rule 121 of the
Delhi School Education Act and Rules, 1973. Parties are left to bear their
own costs.
CM 12147/2013
18. Though this case is heard as a writ petition really the original
proceedings before the DST are challenged in these proceedings. Therefore,
this application is dismissed inasmuch as at the second stage, no fresh
pleadings can be introduced as it will cause the parties to be sent back to a
point of time many years earlier and which will cause grave prejudice to the
respondent No. 1. I may also state that the additional grounds which are
urged are admittedly not the ground on the basis of which the termination
orders passed by the petitioner-school were sought to be sustained by the
petitioner-school before the DST. Factual issues at this stage which will
once again require a de novo adjudication cannot be permitted and therefore,
this application is dismissed.
W.P.(C) 2176/2013
19. In view of the reasoning and the ratio given while deciding W.P.(C)
1439/2013, this writ petition is also dismissed. In fact, the facts in this case
W.P.(C) Nos.1439/2013, 2176/2013 & 2535/2013 Page 24 of 25
are more strongly in favour of the respondent No. 1 inasmuch as the
appointment of the respondent No. 1 with the petitioner-school since
inception has already crossed a period of three years.
20. This writ petition is accordingly dismissed, leaving the parties to bear
their own costs and subject to compliance of Rule 121, as stated above.
W.P.(C) 2535/2013
21. This writ petition will also stand dismissed in view of the reasoning
and ration of W.P.(C) 1439/2013, however, I note that some of the facts of
this case are different because the respondent No. 1 did not take up a third
term contractual appointment. In any case, this would not, in any manner,
cause any difference to the other aspects which have been held against the
petitioner-school given in W.P. (C) 1439/2013.
22. The writ petition is accordingly dismissed, leaving the parties to bear
their own costs, and subject to compliance by the petitioner-school of the
provision of Rule 121, as stated above.
VALMIKI J. MEHTA, J
AUGUST 30, 2013
godara
W.P.(C) Nos.1439/2013, 2176/2013 & 2535/2013 Page 25 of 25