THE PRINCIPAL ST MARY?S SCHOOL & ANR vs. RAJENDRA PRATAP SINGH & ORS

* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Reserved on: 01.11.2018
Pronounced on:16.11.2018
LPA 222/2017 and CM No. 13007/2017 (Stay)

THE PRINCIPAL ST MARY’S SCHOOL & ANR ..... Appellants
Through: Mr. Romy Chacko and Mr.
Ajay Singh, Advocates.
versus

RAJENDRA PRATAP SINGH & ORS .... Respondents
Through: Mr. Amit Kumar, Advocate for
R-1.
Mr. Anuj Aggarwal with Mr.
Himanshu Sharma, Advocates
for R-2 and R-3.

CORAM:
JUSTICE S. MURALIDHAR
JUSTICE SANJEEV NARULA

J U D G M E N T
SANJEEV NARULA, J

1. This appeal under Clause X of the Letters Patent Appeal read with
Delhi High Court Act and Rules framed there under, impugns
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Judgment dated 28 November, 2016 passed in W.P (c) No.
6780/2015, whereby the learned Single Judge has upheld the order of
Delhi School Tribunal (hereinafter referred to as ‘DST’), quashing the
order of termination of services of Respondent and consequently
reinstating him.

LPA 222/2017 Page 1 of 16


Background
2. The brief facts relevant for disposal of the present appeal are that
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on 1 April, 2009, the Appellant school appointed Respondent No. 1
to the post of P.G.T (Mathematics), on probation for a period of one
year. On 1st March 2013, Appellant issued a letter to Respondent
No.1 giving him three months notice for discontinuance of his
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services. This was followed by letter dated 5 April, 2013 whereby
Respondent no.1 was informed that his services were no longer
required.

3. Aggrieved with the termination of his services, Respondent No. 1
preferred an appeal under Section 8 (3) of the Delhi School Education
Act and Rules, 1973 (hereinafter referred to as ‘the Act’) before the
DST.

4. The DST after examining the facts of the case and taking note of
several decisions of this Court as also of the Supreme Court, observed
that the removal of an employee of a school can only be in terms of
the statutory regime provided under the Delhi School Education Act,
1973 and the Rules framed there under. The Tribunal relied upon the
decision of this court in the case of Tejveer Singh v. Directorate of
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Education , dated 18 December, 2013 passed in W.P. (c) 5964/2010
and held that the termination of services of Respondent No.1 was
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illegal and accordingly, the letter/order dated 5 April, 2013 was set
aside.

LPA 222/2017 Page 2 of 16


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5. The final order dated 12 May, 2015 passed by the Tribunal was
challenged by the Appellant by way of W.P (C) No. 6780/2015. The
Learned Single Judge decided the writ petition in favour of
Respondent No.1 by way of the judgment impugned in the present
appeal. The learned Single Judge has held that the services of
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Respondent No. 1 were deemed to be confirmed w.e.f. 1 April, 2012.
The contention of learned counsel for the Appellant that Respondent
no.1 was continuing on probation even after three years on account of
his non-satisfactory services was rejected. The learned Single Judge
held that accepting such a submission would violate the spirit of the
ratio of the Judgment rendered in the case of Hamdard Public School
v. Directorate of Education reported in, (2013) 202 DLT 111 .

Additional facts brought on record
6. During the course of hearing, Respondent No. 1 filed an
application being C.M. No. 16944/2018 for bringing on record the
information/ documents received by him pursuant to a query raised
under Right to Information Act, 2005. The said application was
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allowed vide order dated 4 October, 2018 subject to all just
objections.

7. These documents are germane to the real controversy between the
parties and are thus being noted and discussed for the purpose of
adjudication of the present appeal. In response to the RTI application
of Respondent No.1, the office of Deputy Director of Education
(District South), Government of NCT of Delhi has provided a copy of
LPA 222/2017 Page 3 of 16


staff statement available with the Department for the year 2012-2013.
This staff statement provided by the Deputy Director of Education is
in-fact a copy of the statement so furnished by the Appellant school to
the office of the Deputy Director. The relevant portion of the said
statement is reproduced hereunder for ready reference:

8. The name of Respondent No. 1 appears at Serial No. 12 and ‘ Date
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of Confirmation ’, against his name is shown as 1 April, 2011.

Submission of the parties
9. Mr. Romy Chacko, learned Counsel for the Appellant has argued
that Respondent No.1 was appointed on probation. His performance
was not satisfactory. However, the management allowed Respondent
No. 1 to continue in service with a hope that he will improve his
performance. Several warnings were issued to Respondent No. 1, yet
he failed to discharge his duties to the satisfaction of the management.
To buttress this argument, the Appellant relied upon self-appraisal
form and the reports given by the supervisors and submitted that the
aforesaid documents note/record that the performance of Respondent
No.1 was not satisfactory. Mr. Chacko further argued that, since
Respondent No.1 failed to improve his performance, the school is
justified in its action for not issuing the letter of confirmation.
Appellant ultimately issued a letter to Respondent No.1 giving him
LPA 222/2017 Page 4 of 16


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three month’s notice for discontinuance w.e.f. 1 March, 2013,
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followed by termination letter dated 5 April, 2013. The Appellant,
thus contends that the services of Respondent No. 1 were dispensed
with in accordance with the service contract.

10. Mr. Chacko, referring to the service rules of St. Mary’s Education
Society, further argued that as per the service rules, an employee has
to be expressly confirmed on his satisfactory completion of the period
of probation. The confirmation has to be in writing with the approval
of the management committee. The letter of confirmation has to be
signed by the Administrator. Relying on the aforesaid rules, it is
urged that there cannot be any concept of deemed confirmation of any
of the probationers. Since no confirmation letter was issued by the
Appellant school, Respondent No. 1 continued to be on probation. To
emphasize this point he relies on the decision of the Apex Court in
the case of High Court of M.P. through its Registrar & Ors vs. Satya
Narain Jhavar, reported in (2001) 7 SCC 161.

11. Lastly the learned counsel, contends that learned Single Judge
erred in placing reliance on the case of Hamdard Public School
( supra ), in as much as it does not apply to minority institutions.

12. Mr. Amit Kumar, learned Counsel for Respondent No.1, on the
other hand, submits that the teachers and employees of all schools in
Delhi including the Appellant school have statutory protection with
respect to their services.
LPA 222/2017 Page 5 of 16



13. Learned Counsel for Respondent no.1 further urged that
Respondent No. 1 should be taken to have been confirmed in his
services, even though he was appointed on probation vide the letter of
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appointment dated 3 March, 2009, in as much as the Appellant
school is unable to produce on record any material with respect to the
unsatisfactory services of Respondent No. 1 during the probation
period.

14. Learned Counsel for Respondent no.1, relied upon the ratio of
Hamdard Public School ( supra ) to submit that the period of three
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years probation had come to an end on 31 March, 2012 and therefore
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he was deemed to have been confirmed in services w.e.f. 1 April,
2012. He further submitted that the first letter of intimation w.r.t.
discontinuation of services of Respondent No. 1 and also the
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subsequent termination letter dated 5 April, 2013, make several
allegations that are stigmatic. Respondent no. 1 is entitled under law
to controvert such allegations and therefore the Appellant school
could not have terminated his service without following the due
process of law and the principles of natural justice.

15. Learned counsel for Respondent No.1 further submits that, in
view of the information that his client has now obtained under the
RTI Act, 2005, Appellant cannot raise the plea of non-confirmation.
Relying upon the staff statement obtained from the Director of
Education, he contends that Appellant's stand is contrary to the
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record.

Analysis and findings
16. The controversy in the present appeal is centered around the
question as to whether the services of Respondent No. 1 can be said
to be deemed to have been confirmed on completion of the three year
period of probation. To appreciate the concept of probation, it is
necessary to read Rule 105 of the Delhi School Education Rules,
1973 which states as under:-
105. Probation.-(1) Every employee shall, on initial appointment, be on
"
probation for a period of one year which may be extended by the
appointing authority [with the prior approval of the Director] and the
services of an employee may be terminated without notice during the
period of probation if the work and conduct of the employee, during the
said period, is not, in the opinion of the appointing authority, satisfactory:

[Provided that the provisions of this sub-rule relating to the prior
approval of the Director in regard to the extension of the period of
probation by another year, shall not apply in the case of an employee of a
minority school:

Provided further that no termination from the service of an employee on
probation shall be made by a school, other than a minority school, except
with the previous approval of the Director.]

(2) If the work and conduct of an employee during the period of probation
is found to be satisfactory, he shall be on the expiry of the period of
probation or the extended period of probation, as the case may be,
confirmed with effect from the date of expiry of the said period.

(3) Nothing in this rule shall apply to an employee who has been
appointed to fill a temporary vacancy or any vacancy for a limited
period."

17. The learned Single Judge primarily relied upon the ratio of the
judgment authored by him in the case of Hamdard Public School
LPA 222/2017 Page 7 of 16


( supra ), wherein it has held that the employee of a school is deemed
to be confirmed in services ordinarily after the period of three years
of service. The period beyond three years and upto six years can be
extended only if there are grave and exceptional circumstances to
extend the period of probation beyond three years. The learned Single
Judge has held that rule 105 must be so interpreted that the reasonable
period of probation should ordinarily be around three years. The
relevant portion of the said judgment, is reproduced herein below:-

" 11. ...... 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 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."
(Emphasis supplied)

LPA 222/2017 Page 8 of 16


18. The interpretation given to Rule 105 is unexceptionable. In case
the statute doesn't provide for any outer limit for probation, a
meaningful interpretation ought to be given to the provisions.
Reasonable period, no doubt would have to be appreciated on the
facts of each case, taking into consideration the nature of
employment.

19. The next contention that merits consideration of this court is that,
whether the ratio of the judgment of Hamdard Public School ( supra ),
would be applicable to the Appellant school. Learned counsel for
Appellant contends that the said judgment does not deal with unaided
minority school. According to him, the learned Single Judge has
wrongly proceeded on the assumption that Rule 105 will apply to
unaided minority school. This argument stems from a reading of Rule
96 (1) of the Delhi School Education Rules, which provides that
provisions of Chapter VIII of the Act do not apply to an unaided
minority school. The relevant portion of the aforesaid rule is
reproduced for a ready reference:

“ 96. Recruitment- (1) Nothing contained in this Chapter shall
apply to an unaided minority school.

20. At this juncture it is pertinent to refer to relevant case laws on the
issue.

21. Validity of Section 12 of the Act which provides that, "nothing
contained in this chapter shall apply to an unaided minority schools" ,
fell for consideration in Frank Anthony Public School Employee’
LPA 222/2017 Page 9 of 16


Association v. Union Of India., reported in, (1986) 4 SCC 707. The
Supreme court held that Section 12 of the Act that makes the
provision in Chapter IV of the act inapplicable to unaided minority
institutions is discriminatory and void except to the extent it makes
Section 8 (2) of the Act, inapplicable to unaided minority institutions.
Accordingly a declaration was granted to that effect. The relevant
portion of the same is reproduced as under:

“21. Thus, Sections 8(1), 8(3), 8(4) and 8(5) do not encroach upon any
right of minorities to administer their educational institutions. Section
8(2), however, must, in view of the authorities, be held to interfere with
such right and, therefore, inapplicable to minority institutions. Section 9
is again innocuous since Section 14 which applies to unaided minority
schools is virtually on the same lines as Section 9. We have already
considered Section 11 while dealing with Section 8(3). We must,
therefore, hold that Section 12 which makes the provisions of Chapter IV
inapplicable to unaided minority schools is discriminatory not only
because it makes Section 10 inapplicable to minority institutions, but also
because it makes Sections 8(1), 8(3), 8(4), 8(5), 9 and 11 inapplicable to
unaided minority institutions. That the Parliament did not understand
Sections 8 to 11 as offending the fundamental right guaranteed to the
minorities under Article 30(1) is evident from the fact that Chapter IV
applies to aided minority institutions and it cannot for a moment be
suggested that surrender of the right under Article 30(1) is the price
which the aided minority institutions have to pay to obtain aid from the
Government.”

"22. The result of our discussion is that Section 12 of the Delhi School
Education Act which makes the provisions of Chapter IV inapplicable to
unaided minority institutions is discriminatory and void except to the
extent that it makes Section 8(2) inapplicable to unaided minority
institutions. We, therefore, grant a declaration to that effect and direct the
Union of India and the Delhi Administration and its officers, to enforce
the provisions of Chapter IV (except Section 8(2)) in the manner provided
in the Chapter in the case of the Frank Anthony Public School. The
management of the school is directed not to give effect to the orders of
suspension passed against the members of the staff."
(Emphasis supplied)

LPA 222/2017 Page 10 of 16


22. In CBSE v. Mount Carmel School Society. reported in 227
(2016) DLT 373 ., the question with respect to the applicability of
Rule 110 (2) the Delhi School Education Rules, in respect of unaided
minority schools, was decided by a coordinate Bench of this Court.
The bench relying upon the ratio laid down in the case of Frank
Anthony Public School ( supra ), held that Rule 110 of the Act was
applicable to Respondent school therein. The relevant portion of the
decision of the coordinate bench of this court is extracted as under:-

"32. We are, therefore, of the opinion that the decision in Frank Anthony
Public School(Supra) cannot be distinguished on the ground that while
rendering the said judgment there was no occasion for the Supreme
Court to consider the position with respect to the key post of the Principal
in an unaided minority school and whether the provisions of Chapter IV
of the DSE Act would continue to apply to such post and consequently
whether Chapter VIII of the DSE Rules would apply. Such interpretation,
according to us, would virtually nullify the ratio laid down by the
Supreme Court."

"33. Consequent to the law declared in Frank Anthony Public School
(supra), the provisions of DSE Rules, 1973 corresponding to Section 8(1),
8(3), 8(4), 8(5), Section 9, 10 and 11 shall also be applicable to the
unaided minority institutions. Chapter VIII of the DSE Rules consisting of
Rule 96 to Rule 121 deals with 'Recruitment and Terms and Conditions of
Service of Employees of the Private Schools other than Unaided Minority
Schools'. We have observed that Rule 96 to Rule 114A provide for
recruitment, appointing authority, minimum qualifications for
appointment, age limit, probation, seniority, retirement age, leave of
absence, whereas Rule 115 onwards deal with penalties and disciplinary
proceedings. Therefore, Rule 110 providing for retirement age which
corresponds to Section 8(1) of DSE Act is applicable to unaided minority
institutions in terms of the law laid down in Frank Anthony Public School
(supra)."

"34. It is no doubt true that in Sindhi Education Society & Anr. vs. Chief
Secretary, Govt. of NCT of Delhi & Ors. (2010) 8 SCC 49, the Supreme
Court was dealing with the provisions of the DSE Act, 1973, however, the
issue raised therein is entirely different from the issue which was
considered and decided in Frank Anthony Public School (supra). The
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question raised in Sindhi Education Society (supra) was whether Rule
64(1) (b) of the Delhi School Education Rules, 1973 and the
orders/instructions issued there under would, if made applicable to an
aided minority educational institution, violate the fundamental rights
guaranteed under Article 30(1) of the Constitution and whether
Respondents therein are entitled to a declaration and consequential
directions to that effect. The question as to applicability of Chapter IV of
DSE Act and Chapter VIII of DSE Rules, 1973 neither fell for
consideration nor decided in Sindhi Education Society (supra). Thus, the
ratio laid down in Frank Anthony Public School (supra) stands good."

"35. For the aforesaid reasons, we are of the view that the decision in
Frank Anthony Public School (supra) is binding and that it is not open to
this court to go beyond the law so declared on any ground whatsoever."

36. Therefore, following the ratio laid down in Frank Anthony Public
School (supra), we hold that the retirement age prescribed under Rule
110 of the DSE Rules, 1973 is applicable to Respondent No. 1 institution.
Consequently, the action of Respondent No. 1 in granting extension to
Respondent No. 2 is illegal being contrary to Rule 110 of the DSE Rules,
1973."

(Emphasis supplied.)

23. It is noted that the aforesaid judgment has been challenged before
the Supreme Court, wherein an interim status quo order has been
passed.

24. It is relevant to note that prior to the decision rendered in Mount
Carmel ( supra ), a Full Bench of this court had decided a reference
made to it by a learned Single Judge noting a conflict between
opinions expressed by two learned Single Judges of this Court (this
decision was not noticed in Mount Carmel ( supra )). The said
reference was decided by judgment dated 14.05.2015, in the case of
Guru Harkishan Public School v. Director of Education., reported
in 221 (2015) DLT 448. While answering the reference the Full
LPA 222/2017 Page 12 of 16


Bench also dealt with the 'ancillary issue' of applicability of the Act
and Rules to unaided schools established by minority communities.
The relevant portion recording the decision on the ancillary issue is
reproduced as under:-

"2. At the outset we note that the two conflicting decisions concern
schools recognized by the Appropriate Authority under the Delhi School
Education Act, 1973 and both schools were governed by the provisions of
the Delhi School Education Act, 1973 and the Delhi School Education
Rules, 1973. The issue of applicability of the Act and the Rules to unaided
schools established by minority communities was not an issue in the two
decisions. The writ petitioner is a recognized unaided minority school and
thus, though not a part of the reference made by the learned Single Judge,
since the issue arising out of the two conflicting views by two learned
Single Judges of this Court enwombs an unaided minority school, the
learned counsel for the parties addressed arguments on said ancillary
issue which is tied with an umbilical cord to the main issue. Thus while
answering the reference we express our opinion on the said ancillary
issue as well."
(Emphasis supplied.)

25. The Full Bench again relying upon the decision of the Apex Court
in Frank Anthony's ( supra ), decided the question regarding the
applicability of the rules of chapter VIII as under:-

“ 41. Since Section 12 of the Delhi School Education Act, 1973 has
already been struck down by the Supreme Court in Frank Anthony's case
(supra) its corollary would be that sub-Rule 1 of Rule 96 also has to be
struck down.”

“42. Since no arguments were advanced regarding the various Rules in
Chapter VIII of the Rules regarding their constitutionality, we would only
observe that such Rules or part thereof which impinge upon the right of
the minority institutions to manage schools established in Delhi would be
treated as not applicable to the minority unaided schools, but such
provisions which do not impact the right of the minorities to manage their
schools would have to be treated as applicable to minority schools which
are unaided.”
(Emphasis supplied)
LPA 222/2017 Page 13 of 16



26. It noted that since section 12 of the Act had already been struck
down in Frank Anthony's case ( supra ), its corollary will be that sub-
rule 96(1) has also been struck down.

27. The logical conclusion that can be inferred on perusal of the
above mentioned decisions of the Apex Court as well as the full
bench and coordinate bench of this court, is that Rule 105 is
applicable to unaided minority schools, in as much as these
provisions do not encroach or interfere with the rights of the
minorities to administer their educational institutions. Therefore the
ratio of the Judgment of the learned Single Judge in Hamdard Public
School ( supra ), would also be applicable to the Appellant School. In
view of the above, argument of the Appellant that rule 105 is not
applicable to an unaided minority institution, fails.

28. The next question that falls for consideration is whether
Respondent No.1 could be deemed to be confirmed in absence of a
confirmation letter.

29. We feel that this question in fact does not survive in view of the
document (staff statement) now brought on record by Respondent
No.1.

30. When the Appellant was confronted with the aforesaid admitted
document, the only explanation given to us was that the information
LPA 222/2017 Page 14 of 16


given in the said document was erroneous. On specific query put by
us to the learned counsel for the Appellant as to whether any steps
were taken by the Appellant school to correct the error, the response
was in the negative.

31. Further, on a query by the Bench, learned counsel for the
Appellant could not show any material on record to indicate that after
the completion of the first year of probation, whether the question
regarding the extension/continuation of the probation of Respondent
No. 1 was ever taken up by the Management. In view of the aforesaid,
it clearly emerges that in the present case, the Appellant school has
not been able to justify its stand regarding the plea of Respondent
No.1 continuing on probation. On the contrary the Staff Statement
clearly evinces that Respondent No.1 was a confirmed employee.

32. Even otherwise, if there were grave and exceptional
circumstances for continuation of the probation of Respondent No. 1,
the Appellant ought to have produced the same on record. Reliance
on certain memos issued in 2010 and February 2011 does not advance
the case of the Appellant.

33. The Appellant school did not initiate any action on account of the
alleged non-satisfactory services. In fact the termination letter is not
preceded with any show cause notice or any opportunity to
Respondent No.1 to meet the allegations of non-satisfactory service.
Moreover the staff statement clearly belies the stand of the Appellant.
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The Appellant school therefore cannot be permitted to take a plea that
they continued to treat Respondent No.1 on probation beyond
01.04.2012. In view of the foregoing discussion, we have no
hesitation in holding that Appellant school has not been able to justify
its action of treating Respondent No. 1 as a probationer.

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34. The order of termination of services dated 5 April, 2013 is
therefore illegal and has been rightly quashed. There is no infirmity in
the impugned judgment. The appeal is accordingly dismissed with no
order as to costs. The application is also dismissed.



SANJEEV NARULA, J



S. MURALIDHAR, J
NOVEMBER 16, 2018
sapna
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