Delhi High Court
Sunita Prem John vs Govt. Of N.C.T Of Delhi And Ors. on 27 April, 2015
Author: Valmiki J. Mehta
Bench: Valmiki J.Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No.8474/2011
% 27th April, 2015
SUNITA PREM JOHN ..... Petitioner
Through: Mr. C.S. Parashar, Advocate.
Versus
GOVT. OF N.C.T OF DELHI AND ORS. ...Respondents
Through: Mr. Ashwani K. Sakhuja, Advocate
with Mr. Puneet Saini, Advocate for
respondent Nos.2 to 4.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This writ petition filed under Article 226 of the Constitution of India was decided in favour of the petitioner on 3.12.2013 on merits by a detailed judgment running into 14 pages. This writ petition had come up for the first time for hearing on 2.12.2011 and thereafter decided after two years in terms of the judgment dated 3.12.2013. By the judgment dated 3.12.2013 the petitioner, a poor employee of the respondent no.2/School, and who was appointed as a maid, was held entitled to the relief of her W.P.(C) No.8474/2011 Page 1 of 22 services being continued as regular with the respondent no.2/School and not with the respondent no.4/Society.
2. The judgment dated 3.12.2013 has been set aside by the Division Bench of this Court vide its order dated 11.2.2015 and the Division Bench in LPA No.224/2014 has directed a fresh decision in the case after giving opportunity to the School to file their counter affidavits. The order of the Division Bench dated 11.2.2015 in L.P.A No.224/2014 reads as under:-
"1. Having heard learned counsel for the parties and having perused the order-sheet of W.P.(C) No.8474/2011 we note that show cause notice was issued in the writ petition filed by the first respondent on December 02, 2011 when counsel for the Government of NCT of Delhi (impleaded as the first respondent in the writ petition) appeared. Thus, notice was required to be served upon the other respondents, which included the appellant (impleaded as respondent No.2 in the writ petition).
2. Returnable for January 13, 2012, the Court Master adjourned the writ petition for February 17, 2012, since the learned Judge who had to preside over the Court was on leave. In between, CM No.2120/2012 was filed by the appellant drawing attention of the Court to the fact that the writ petitioner had already taken resort to proceedings under the ID Act, 1947 and in respect of which ID No.131/2011 was pending. It was thus prayed that the writ petition be dismissed because the writ petitioner had availed an alternative remedy.
3. Notice of the application was issued to the writ petitioner and matter was listed for May 22, 2012. Matter was deferred, and continued to be deferred. CM No.2120/2012 was never decided till when on December 03, 2013 the impugned order was passed W.P.(C) No.8474/2011 Page 2 of 22 allowing the writ petition. The prayers made in the writ petition have been granted.
4. No order has been passed on CM No.2120/2012. But, in all fairness we must note that in the impugned order the learned Single Judge has noted that the writ petitioner had moved an application to withdraw the proceedings initiated by her under the ID Act, 1947.
5. The learned Single Judge has held that the law declared by him in W.P.(C) No.1439/2013 decided on August 30, 2013 would govern the legal issue which arose for consideration before the learned Single Judge.
6. It is apparent from the record of the writ that the appellant never sought and was not granted any time to file counter affidavit in view of the fact that CM No.2120/2012 was filed by the appellant in which notice was issued. Thereafter said application was listed from time to time and the writ petition was simply being adjourned.
7. Therefore, we dispose of the appeal setting aside the impugned order dated December 03, 2013. We restore W.P.(C) 8474/2011 and other applications which were pending therein when the writ petition as decided. We grant appellant four weeks? time from today to file a counter affidavit. We grant the writ petitioner three weeks' time thereafter to file a rejoinder. We direct that the writ petition would be listed for directions before the learned Single Judge on April 27, 2015. Needless to state the issues arising between the parties keeping in view their pleadings would be kept in view while taking decision afresh.
8. No costs.CM No.4410/2014
Dismissed as infructuous.
Sd/-
(Judge) Sd/-
(Judge) FEBRUARY 11, 2015 W.P.(C) No.8474/2011 Page 3 of 22 rb"
3. The effect of the order of the Division Bench is that the writ petitioner has been thrown back by a couple of years and as the present judgment will show only on account of malafide delaying tactics of the respondent no.2/School and the respondent no.4/Society. I note that the issue of the application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC) of the School as a reason for not deciding the writ petition on merits was dealt with in detail in the judgment dated 3.12.2013 by giving detailed reasoning as under:-
"4. I may note that in this case in spite of opportunities being given, no counter-affidavit has been filed and only an application under Order 7 Rule 11 CPC was filed on the ground that petitioner was indulged in forum shopping by seeking remedies filed under the Delhi School Education Act and Rules, 1973 (DSEAR, 1973) as also the Industrial Disputes Act, 1947. It is also stated that petitioner approached the civil court for redressal of her grievances. Mere filing of such an application is not an automatic stay for filing of the counter-affidavit. The fact of the matter is that none of the earlier proceedings stand decided and since the issue in the present case is a pure question of law and delay in disposal of the rights claimed by the petitioner will cause prejudice to her, I am of the opinion that the writ petition is not liable to be dismissed by invoking provision of Order 7 Rule 11 CPC by the school, and therefore I am deciding the petition on merits. I may also state that petitioner has already moved an application for withdrawal of the proceedings initiated under the Industrial Disputes Act, 1947 and therefore I am not agreeable to dismiss the writ petition on the ground of enforcement of other remedies. So far as the case in civil court is concerned, the civil court will actually have no inherent jurisdiction inasmuch as issues as are urged and which have to be decided in the writ petition can only W.P.(C) No.8474/2011 Page 4 of 22 be decided by the Delhi School Tribunal under the DSEAR, 1973 or under the Industrial Disputes Act, 1947. It has been held by a learned Single Judge of this Court in the case of Apeejay School Vs. Sh. Darbari Lal & Ors. 170 (2010) DLT 608 that an employee of the school can invoke remedies either under the Industrial Disputes Act, 1947 or under the DSEAR, 1973, and he is accordingly bound to seek his remedies under one of the two specific statutes only."
(underlining added)
4. In fact, I am constrained to note that respondent no.2/School and respondent no.4/Society are acting less than fair because before the judgment was delivered on 3.12.2013 the matter came up on two occasions being 2.9.2013 and 11.11.2013 and which orders did not record that respondent nos.2 and 4 sought time for filing counter affidavits, and contents of which orders were never challenged as having been wrongly recorded by moving an application before this Court. In fact, the order dated 11.11.2013, being the last order before the parties were heard and the case was decided by the judgment dated 3.12.2013, shows that no request was made by the School and the Society for filing of the counter affidavits and time was only sought for obtaining instructions. This order dated 11.11.2013 reads as under:-
"1. On 2.9.2013, I referred to the judgment passed by me in the case of Army Public School Vs. Narendra Singh Nain and Anr. in W.P.(C) No.1439/2013 decided on 30.8.2013.
2. I have today heard the counsel for the petitioner. At the stage of arguments to be urged on behalf of respondent-school W.P.(C) No.8474/2011 Page 5 of 22 represented by respondent Nos.2 and 3, counsel states that he would like to seek instructions with respect to the petition without prejudice to the rights and contentions of respondent-school.
3. At request, list on 3rd December, 2013. It is however made clear that purpose of the adjournment is only to resolve the issue and failing which the issue would be decided on merits on the next date of hearing."
5. A reading of the order of the Division Bench reproduced above shows that the Division Bench in its order dated 11.2.2015 has not referred to the order passed by this Court on 11.11.2013. The net result of the above has been that the respondent no.2/School and the respondent no.4/Society for malafide and ulterior reasons have managed to drag and delay the case of a poor maid who was seeking enforcement of her rights of statutory protection of her employment and which was decided on merits in her favour by the judgment dated 3.12.2013. In fact, even the counter affidavits now filed by the respondent nos.2 and 4 show that no new fact has emerged which would in any manner change the conclusions arrived at as per the judgment dated 3.12.2013. Since however this Court has been directed by the order of the Division Bench dated 11.2.2015 to decide the matter afresh, this Court proceeds to decide the matter afresh and which will really in the most part be reiterating the same facts and conclusions as already given in the judgment dated 3.12.2013. W.P.(C) No.8474/2011 Page 6 of 22
6. The issue in the writ petition remains the same as to whether the petitioner was or was not the employee of the respondent no.2/School or was in fact an employee of the respondent no.4/Society from the beginning or at least after March, 2010 when salary came to be paid to the petitioner by the respondent no.4/Society.
7. The facts of the case as per the writ petition are that the petitioner was appointed as a maid in the respondent no.2/School on 25.7.2003 and she became a regular employee of the respondent no.2- school with effect from completion of her probation period from 24.7.2004. Petitioner claims her all monetary benefits as a regular employee of the respondent no. 2/School and which were denied to her by the respondent no.2/School.
8. The issue in the present case is fully covered by the ratio of the judgment passed by this Court in the case of Army Public School and Anr. Vs. Narendra Singh Nain and Anr. in W.P.(C) No.1439/2013 decided on 30.8.2013 which holds that an employee of a school cannot be appointed on ad hoc basis unless there are administrative exigencies as existing in Rule 105 (3) of the Delhi School Education Rules, 1973 and if without administrative exigency an ad hoc appointment is given then in that case, the employee after a period of three years will be treated as a W.P.(C) No.8474/2011 Page 7 of 22 regular employee three years after the original date of employment. The relevant paras of the judgment in the case of Army Public School (supra) are paras 2 to 8 and which read as under:-
"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 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 W.P.(C) No.8474/2011 Page 8 of 22 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) 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 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 W.P.(C) No.8474/2011 Page 9 of 22 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 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 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 W.P.(C) No.8474/2011 Page 10 of 22 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 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 W.P.(C) No.8474/2011 Page 11 of 22 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, 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 as contractual, thereafter appointment on probation W.P.(C) No.8474/2011 Page 12 of 22 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 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 W.P.(C) No.8474/2011 Page 13 of 22 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 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. Counsel appearing for the respondent nos.2 to 4 states that the petitioner was working with the pre-primary section of the School, which was unrecognized, till the year 2010 however she thereafter was undoubtedly an employee of the respondent no. 4/Society which runs the respondent no. 2/School, and as the petitioner accepted her appointment with the respondent no. 4/Society, consequently, the petitioner is estopped from claiming that petitioner can continue as an employee of the School.
10. The reason for rejecting the argument of the respondent no. 2/School and respondent no. 4/Society of estoppel is that estoppel arises when a person with open eyes knowing all the facts and the legal position accepts a particular state of affairs. In the present case, if the petitioner is allowed to be transferred from respondent no.2/School to respondent W.P.(C) No.8474/2011 Page 14 of 22 no.4/Society, petitioner will lose the statutory protection which is afforded to her services (as also other related service benefits) as per the provisions of the Delhi School Education Act and Rules, 1973 (DSEAR, 1973). The employment of a person in a school is a statutory employment and such an employee cannot be removed except following the procedure provided under Rules 118 to 120 of the Delhi School Education Rules, 1973. This is so held by the Supreme Court in its judgment in the case of Management Committee of Montfort Senior Secondary School Vs. Sh. Vijay Kumar and Ors., (2005) 7 SCC 472 and which has been referred to by me in the judgment in the case of Army Public School (supra). I have also held the issue of estoppel against the school in Army Public School's case (supra) as per para 8 thereof and which reasoning is squarely also applicable in this case and adopted for this judgment. Therefore, the statutory protection of employment given to employees of the school governed by DSEAR, 1973 cannot be taken away allegedly on the ground of estoppel as is sought to be argued by the respondent nos.2 to 4 before me as employees such as the petitioner did not with knowledge and consent agree to give up the statutory protection granted to them by DSEAR, 1973.
11. Petitioner has filed alongwith the writ petition documents as Annexure P-1(colly) from pages 13 to 22, and these documents show that W.P.(C) No.8474/2011 Page 15 of 22 it is the respondent no.2/School which was showing the petitioner as its employee and paying provident fund. The documents include a certificate issued by the school itself (page 15 of the paper book) that the petitioner was working in the respondent no.2/School as an establishment staff. Also a salary sheet is filed which is signed by the principal of the respondent no.2/School and the caretaker showing petitioner as an employee of the respondent no.2/School (page 18 of the paper book). These documents leave no manner of doubt that the petitioner was an employee of the respondent no.2/School till March, 2010 and therefore there is no question of applying the principle of estoppel against the petitioner, who is a maid and who would not know the nuances with respect to statutory protection of her employment as an employee of a school under DSEAR, 1973 and unprotected employment when working with a Society which runs the School and in which circumstances the employee not being an employee of the School will not get protection of employment under DSEAR, 1973.
12. The aforesaid aspects of petitioner being an employee of the respondent no.2/School and not of the respondent no. 4/Society till March, 2010 is also clear from the fact that the counter affidavit filed by the respondent no.4/Society in para 8 specifically admits that payment with respect to Provident Fund was made by the respondent no.2/School, W.P.(C) No.8474/2011 Page 16 of 22 though it is sought to be conveniently contended that actually payment was made by the respondent no.4/Society but routed through the respondent no.2/School. Such convenient submissions cannot be accepted by this Court. For the sake of convenience, para 8 in the counter affidavit filed by the respondent nos.3 & 4 is reproduced as under:-
"8. The reference to documents filed along with the petition including PF slips and certificate and salary sheet and gate pass which relates to Queen Mary's School, it is submitted that the petitioner was not an employee of the respondent no.2 school and the respondents no.3 & 4 were not covered under PF Act but with a view to extend social beneficial provision an accounting arrangement was made and PF was deposited through Respondent no.2 but all monies i.e wages and employer share was paid by the Mittal Education Society. Merely payment of PF in the account of Respondent no.2 does not create relationship of Employer and Employee between the petitioner and respondent no.2. Now the society is covered under PF Act and PF benefit to the petition is paid under the code of respondent no.4. Petitioner has also applied for transfer of her previous PF deposits in her present account. Beside that issuance of gate pass is only for safety and security reasons, alleged salary sheet appears to be details of working and certificate is undated relates to year 2005-2006 must have got issued by the petitioner on her specific request as she was being paid during said period from primary section."
13. I may also note that the respondent no.4/Society has filed Annexure B with its counter affidavit, a chart showing payments made to the petitioner and this Annexure B is sought to be relied upon to show that the petitioner was working with an unrecognized nursery section of the School and payment to the petitioner should have been taken to have been W.P.(C) No.8474/2011 Page 17 of 22 made not by the respondent no.2/School, and which is only recognized from Class I to Class X, but by the respondent no.4/Society. This stand and argument of the respondent no.4/Society is misconceived because this chart is a self-serving chart prepared by the respondent no.4/Society and the same is not a bank account statement of a bank or account of the respondent nos.2 and 4, being the School and the Society, that payment was actually made to the petitioner by the respondent no.4/Society and not by the respondent no.2/School. Obviously, therefore till March, 2010 salary was given by the respondent no.2/School to the petitioner and not by the respondent no.4/Society. Hence respondent nos.2 and 4 cannot place reliance upon Annexure B to contend that the petitioner was always an employee of the respondent no.4/Society and not the respondent no.2/School as being contended by them.
14. Learned counsel for the respondent nos.2 to 4 also sought to argue that respondent no.2/School is recognized from Class I to X and therefore since the petitioner was working with the nursery and the primary section and hence the petitioner should be taken to be employed even prior to March, 2010 not with the respondent no.2/School, however, this argument is again misconceived because whereas petitioner has filed sufficient documents to show that she was an employee of the respondent W.P.(C) No.8474/2011 Page 18 of 22 no.2/School and not of the respondent no.4/Society, no documents have been filed by the respondent nos.2 to 4 to show that from the bank account of the respondent no.4/society any payment was made to the petitioner as an employee of the respondent no.4/Society. Also, the argument of the respondent nos.2 to 4 is misconceived relying on the chart Annexure B merely because it shows petitioner to be working with nursery and primary section, because petitioner would be an employee of the respondent no.2/School inasmuch as no separate bank account is alleged to be maintained by the respondent no.2/School with respect to Class I to X and with respect to the nursery and primary section of the School which is said to be unrecognized and thus salary payment to the petitioner was from the school account. In any case, the argument of the nursery and primary section being part of an unrecognized school is no argument available to the respondent nos.2 to 4 in view of the Division Bench judgment of this Court in the case of Social Jurist, a Civil Rights Group Vs. GNCT & Ors., 147 (2008) DLT 729 and which holds that provisions of DSEAR, 1973 apply to all schools in Delhi, whether they are recognized or unrecognized schools. The argument urged on behalf of the respondent nos.2 to 4 is therefore rejected that the petitioner was an employee of the respondent no.4/Society and not of the respondent no.2/School. As already stated W.P.(C) No.8474/2011 Page 19 of 22 above, petitioner would undoubtedly be the employee of the respondent no.2/School till March, 2010 and thereafter merely because petitioner at the convenience of the respondent nos.2 and 4 has been paid salary by the respondent no.4/Society cannot mean that the petitioner will lose her statutory protection of employment as an employee of the respondent no.2/School as already stated above.
15. A resume of the above shows conclusions as under:-
(i) Petitioner was appointed as a maid by the respondent no.2/School and she successfully completed her probation on 24.7.2004.
(ii) Petitioner worked with the respondent no.2/School admittedly till the year 2010 when she was sought to be transferred as per the stand of the respondent nos.2 & 4 from the respondent no.2/School to respondent no.4/Society.
(iii) Petitioner once is an employee of the respondent no.2/School, she has all the statutory protections and benefits as provided under the DSEAR, 1973, and such statutory protections cannot be taken away, much less on the ground of estoppel as is sought to be urged by the respondent nos.2 & 4.
(iv) Once the petitioner is an employee of the respondent no.2/School governed by the DSEAR, 1973, Section 10 of the Delhi School Education W.P.(C) No.8474/2011 Page 20 of 22 Act, 1973 will apply and the petitioner will be entitled to all the monetary benefits as payable to a regular employee of a school of Government of NCT of Delhi and petitioner cannot be forced to take monetary emoluments lesser than what is her legal right under Section 10 of the Delhi School Education Act, 1973.
(v) Petitioner will only be entitled to monetary emoluments three years prior to filing of the writ petition and not from her confirmation w.e.f 24.7.2004 inasmuch as amounts claimed which are payable three years prior to the filing of the petition would be time barred.
16. In view of the aforesaid, writ petition is liable to be allowed and is allowed accordingly by holding that the petitioner continues to be the employee of the respondent no.2/School and her services cannot be transferred to the respondent no.4/Society. Petitioner has already received certain monetary benefits inasmuch as her services have continued (by the respondent no.2/School or at best as per the claim made on behalf of respondent nos.2 & 4 by the respondent no.4/Society) and therefore for the payments which have to be made to the petitioner in view of allowing of the writ petition the same will be after adjustment of the amounts which have been received by the petitioner in this period of three years from filing of the writ petition and till date. The arrears which will be payable to W.P.(C) No.8474/2011 Page 21 of 22 the petitioner in terms of the present judgment i.e from three years prior to the filing of the writ petition till date will be paid within a period of three months from today and the petitioner will be entitled to interest on the unpaid amount @ 7 ½ % per annum simple from the dates on which they were due till payment. Petitioner will also be entitled to theoretical benefits of seniority or for any other monetary benefits including of Assured Career Progression Scheme etc etc if they be applicable and the petitioner will be taken to be a regular employee of the respondent no.2/School w.e.f 24.7.2004. Pay of the petitioner from today will be fixed at the same rate as payable to similar employees of schools which are run by the Government of NCT of Delhi taking her employment as regular w.e.f 24.7.2004.
17. The writ petition is allowed and disposed of in terms of the aforesaid observations. Petitioner is also entitled to costs of Rs.40,000/- and which costs shall be paid by the respondent no.2/School to the petitioner within four weeks from today.
APRIL 27, 2015 VALMIKI J. MEHTA, J
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