Delhi High Court - Orders
45 The Chairman, Bharat Mata Saraswati ... vs Ms. Anita & Anr on 6 May, 2022
Author: V. Kameswar Rao
Bench: V. Kameswar Rao
$~45, 46, 55
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 7045/2022 & CM APPL. 21613-21614/2022
45 THE CHAIRMAN, BHARAT MATA SARASWATI BAL MANDIR
SENIOR SECONDARY SCHOOL
& ORS. ..... Petitioners
Through: Mr. Puneet Mittal, Sr. Adv. with
Mr. Ravinder Kumar, Adv.
versus
MS. ANITA & ANR. ..... Respondents
Through: Mr. Sudhir Naagar and Mr. Prashant
Khatana, Advs. for R-1
Mr. Sujeet Kumar Mishra and
Ms. Sonam Chawhan, Advs. for R-2
+ W.P.(C) 7046/2022 & CM APPL. 21615-21616/2022
46 THE CHAIRMAN, BHARAT MATA SARASWATI BAL MANDIR
SENIOR SECONDARY SCHOOL
& ORS. ..... Petitioners
Through: Mr. Puneet Mittal, Sr. Adv. with
Mr. Ravinder Kumar, Adv.
versus
MS. VINITA SINGH & ANR. ..... Respondents
Through: Mr. Sudhir Naagar and Mr. Prashant
Khatana, Advs. for R-1
Mr. Naushad Ahmed Khan, Adv. with
Ms. Manisha Chauhan, Adv. for R-2
+ W.P.(C) 7095/2022 & CM APPL. 21752-21753/2022
55 THE CHAIRMAN, BHARAT MATA SARASWATI BAL MANDIR
SENIOR SECONDARY SCHOOL &
ORS. ..... Petitioners
Through: Mr. Puneet Mittal, Sr. Adv. with
Mr. Ravinder Kumar, Adv.
Versus
MS. MANEESHA KHOKHAR & ANR. ..... Respondents
Through: Mr. Sudhir Naagar and Mr. Prashant
Signature Not Verified
Digitally Signed By:ASHEESH
KUMAR YADAV
Signing Date:10.05.2022
19:45:44
Khatana, Advs. for R-1
Mr. Yeeshu Jain, SC, UOI with
Ms. Jyoti Tyagi and Ms. Surbhi
Arora, Advs. for R-3
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
ORDER
% 06.05.2022 CM APPL. 21613/2022 in W.P.(C) 7045/2022 CM APPL. 21615/2022 in W.P.(C) 7046/2022 CM APPL. 21752/2022 in W.P.(C) 7095/2022 Exemption allowed subject to all just exceptions.
Applications are disposed of.
W.P.(C) 7045/2022 W.P.(C) 7046/2022 W.P.(C) 7095/2022
1. As the challenge in these three petitions being common that is to the order of the Delhi School Tribunal ('Tribunal', for short) dated July 22, 2021, with identical facts and issue, they are being decided by this common order. The facts of each writ petition shall be narrated separately. W.P.(C) 7045/2022
2. In this petition the petitioners have challenged the order dated July 22, 2021 in an appeal filed by the respondent No.1 challenging her termination order dated December 07, 2020 whereby the Tribunal has set aside the termination order and directed the petitioners herein to reinstate her within a period of four weeks with all consequential benefits. With regard to the back wages it was directed that in view of Rule 121 of Delhi School Education and Rules, 1973 ('Rule of 1973', hereinafter) on a representation to be made by the respondent No.1 to the petitioner school within a period of four Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:10.05.2022 19:45:44 weeks from that date, the same shall be decided by a speaking order.
3. The facts as noted from the record are, the respondent No.1 was appointed as TGT (Physical Education) on October 01, 1999. She was not given any Appointment Letter or any document as the school management was not giving appointment letter to any Teacher/employee. It was the case of the respondent No.1 that she along with other Teachers had made representations to the Directorate of Education (DoE) and other authorities for redressal of their grievances with regard to pay scales etc. which irked the petitioners who started harassing her and the other Teachers. It is her case that she was working as a regular Teacher for all purposes. She had joined the other Teachers in filing a writ petition being W.P.(C) 5859/2020 in this Court seeking implementation of the 7th CPC and other benefits too under the Delhi School Education Act and the Rules, 1973 ('DSEAR, 1973', in short) and immediately thereafter her services were terminated. W.P.(C) 7046/2022
4. The challenge in this petition is also to the order dated July 22, 2021 whereby the Tribunal has set aside the order of termination dated January 28, 2021 of the respondent No.1 and directed the petitioners to reinstate the respondent No.1 with all consequential benefits and with regard to back wages, similar direction was given as was given with regard to respondent No.1 in W.P.(C) 7045/2022.
5. The case of the respondent No.1 was that she was appointed as TGT (Social Science) on April 06, 1998 but was not given any appointment letter or other documents as is the practice prevailing with the school management. In 2017, she was promoted as PGT (Political Science) but no letter of promotion was given. She had an unblemished record. Her work Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:10.05.2022 19:45:44 and conduct is proper and no inquiry has been conducted against her. She was not paid salary as per entitlement and even Form 16 was not provided to her. She was representing to the petitioners to supply the details of the pay scale and copies of appointment letter. She had also represented to DoE and various other authorities with regard to redressal of her grievances which irked the management who started harassing her. A reference is also made with regard to filing of writ petition being W.P.(C) 5859/2020 seeking implementation of 7th CPC and other statutory benefits under DSEAR, 1973. It is her case that her termination followed immediately thereafter. W.P.(C) 7095/2022
6. In this petition as well the Tribunal vide the impugned order dated July 22, 2021 has set aside the termination order October 06, 2020 of the respondent No.1 and directed her reinstatement with all consequential benefits. With regard to back wages, similar directions were given as were given with regard to respondent No.1 in W.P.(C) 7045/2022 and W.P.(C) 7046/2022.
7. The case of the respondent / Teachers was primarily that their services have been terminated without following the DSEAR, 1973, inasmuch as the petitioners have not sought any permission from the Directorate of Education ('DOE', for short) prior to their termination. Reference in this regard has been made to Section 8(2) and Rule 120 of the DSEAR, 1973.
8. The DoE had also filed a reply before the Tribunal wherein it was stated that the School is bound to follow the provisions of DSEAR, 1973 which it has not done particularly Section 8(2) and Rule 120 of DSEAR, 1973. It was stated that the respondent/Teachers were shown in the staff statement having been appointed as TGT (Physical Education) on October Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:10.05.2022 19:45:44 01, 1999 (in W.P.(C) 7045/2022), TGT (Social Science) on April 06, 1998 (in W.P.(C) 7046/2022) and PGT (Commerce) on November 02, 2008 in (W.P.(C) 7095/2022).
9. The petitioners had contested the appeals by filing a reply wherein they controverted the case set up by the respondent/Teachers. They have admitted that the respondent/Teachers in these petitions were appointed on the above mentioned dates and posts
10. A stand was also taken that the respondent/Teachers were not focusing on their work, despite warnings. It was also stated that the respondent/Teachers were not confirmed employees and therefore there was no requirement to conduct a detail inquiry as envisaged under Rule 120 of DSEAR, 1973. That apart, they being not confirmed employees no permission of DoE was required to be taken. The orders of termination have been passed on reasonable grounds and there is no violation of principles of natural justice.
11. The Tribunal has allowed the appeals filed by the respondent/Teachers by referring to various case laws and holding prior approval of DoE under Section 8(2) read with Rule 105, DSEAR was mandatory with respect to employees on probation as the words used in Section 8(2) "Or Otherwise terminated" are very wide. In other words, even a probationer is entitled to protection under Section 8(2) of DSEAR, 1973. The Tribunal also adverted to their termination letters to hold that no show cause notice was given nor any inquiry was conducted. Though the Tribunal has stated with regard to the respondent in W.P.(C) 7045/2022, if any misconduct has been committed, the petitioners are free to take action as the appeal is disposed of on a technical point.
Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:10.05.2022 19:45:4412. Mr. Puneet Mittal, learned Senior Counsel appearing for petitioners would contend that the very appointment of the respondent/Teachers was in violation of Rule 96 of DSEAR, 1973 i.e., without constitution of Selection Committee and as such the appointment of the respondent Teachers being void ab initio was rightly terminated. He also states such appointment cannot be construed as an appointment on probation. At the most the appointment can be construed as contractual and therefore provisions of Rule 105 of DSEAR, 1973 have no applicability. Similarly, there being no concept of deemed confirmation, the provisions of DSEAR, 1973 to conduct disciplinary proceedings cannot be extended to the respondent Teachers. It is only in the case of employees appointed on probation, the approval of DoE has to be obtained. In that case as well no enquiry need to be conducted before terminating an employee that too while his/her services are terminated during the probation period. According to him, in these cases, the termination was effected not by way of punishment. The orders are non- stigmatic. He stated even if the respondent Teachers have worked for a long time, their appointment cannot be validated being in violation of Section 96 of the DSEAR, 1973. In this regard he has relied upon the judgments in the case of Shesh Mani Shukla v. District Inspector of Schools, Deoria and Others., (2009) 15 SCC 436, Managing Committee & Anr. v. Govt. Of NCT of Delhi & Ors., W.P.(C) No. 3264/2012, decided on July 19, 2013 and Ravi Negi v. Balvantray Mehta Vidya Bhawan Anguridevi Shersingh Memorial Academy - Second Shift and Others, 2021 SCC OnLine Del 3412. He also relied upon the judgment of the Supreme Court in the case of Durgabai Deshmukh Memorial Senior Secondary School & Anr. V. J.A.J. Vasu Sena & Anr., (2019) 17 SCC 157, to state that Rule 105 (2) stipulates Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:10.05.2022 19:45:44 a condition precedent to the issuance of order of confirmation. According to him, the Supreme Court held continuation of services of the probationer beyond the period of probation does not amount to deemed confirmation of service. He states that the impugned orders of the Tribunal needs to be set aside.
13. On the other hand, learned counsel for the respondent Teachers would justify the orders of the Tribunal by stating that the two petitioners were initially appointed as TGT and one as PGT. The TGT Teachers, after their appointment were promoted to PGT. The promotion indicates regular nature of appointment and the applicability of provisions of DSEAR, 1973. Unfortunately, it is the practice in the school that appointment letters are not issued to any Teacher/employee for the reasons best known to the authorities. It is this illegality which was opposed by the Teachers including the respondent Teachers, which irked the petitioner management and immediately after the filing of the W.P.(C) 5859/2020 the termination orders of the respondent Teachers were issued. He states that the respondent Teachers have put in 19, 20 and 12 years of service with petitioner school. Merely because that the petitioners have not issued appointment letters, cannot be construed that the appointment of the respondent Teachers was contractual. He states the submission made by Mr. Mittal that the appointment of the petitioners is void as Rule 96, DSEAR, 1973 was not followed, has never been the case of the petitioners in the termination orders or before the Tribunal.
14. Though permanent even if the respondent Teachers are to be treated as on probation even then probationers shall be entitled to protection under Rule 105(1), DSEAR, 1973 that is before effecting the termination the Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:10.05.2022 19:45:44 approval of the Director of Education has to be taken.
15. That apart, it is his submission that a perusal of the termination orders clearly reveals that the termination of the petitioners is because of the representation made by the respondent Teachers to the DoE and various authorities regarding the illegal acts of the petitioners. In other words, the termination order is stigmatic and the principles of natural justice were required to be followed before the petitioners could have taken the extreme action of termination. He seeks the dismissal of the writ petition.
16. Having heard the learned counsel for the parties, there is no denial to the fact that the petitioners were appointed as TGT (Physical Education) on October 01, 1999, TGT (Social Science) on April 06, 1998 and PGT (Commerce) on November 02, 2008. The two respondent Teachers who were appointed as TGT were promoted to the post of the PGT, though no promotion orders have been issued. It is true and conceded by Mr. Mittal that the appointment letters were not issued to the respondent Teachers. The very fact that the appointment letters and also promotion orders have not been issued, reflect the violation of the DSEAR, 1973 by the petitioners. The Supreme Court in Management Committee of Montfort Senior Secondary School v. Shri Vijay Kumar, 2005 (7) SCC 482, has held, that the nature of employment of employee in School is not contractual but statutory.
17. Surely, the respondent Teachers having worked for so many years, their appointment cannot be treated as contractual that too when two respondent Teachers have been promoted to the higher post of PGT. I am conscious that till such time an order of confirmation is passed, the status remain that of a probationer. In these cases also the Teachers having put in years of service, that too without appointment / promotion orders their Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:10.05.2022 19:45:44 appointment shall surely have the flavour of probation whose services cannot be terminated without the approval of DoE in view of Rule 105 of the DSEAR, 1973:
"Rule 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 by another year [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:
(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."
18. In fact DoE is on record to say that the petitioners were required to follow the DSEAR, 1973. Admittedly, no approval of the DoE has been taken. If that be so, there is a violation of Section 8(2) and Rule 105(1) of the DSEAR, 1973 to that extent I agree with the conclusion reached by the Tribunal.
19. There is another aspect to the matter, that is, orders of termination passed against respondent/Teachers. The orders clearly reflect that the termination is because of certain acts committed by the respondent Teachers which includes instigating other Teachers to work in rowdy and disorderly Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:10.05.2022 19:45:44 manner; making complaints to the authorities which would make the orders of termination stigmatic, as the foundation of the orders of termination is alleged conduct of the respondent/petitioners. If that be so, the petitioners could not have terminated the services of the respondent Teachers without following due process of law. To that extent also the conclusion of the Tribunal is justified.
20. Now coming to the judgments relied upon by Mr. Mittal insofar as the judgments in the case of Management Committee of Montfort Senior Secondary School (supra) and Shesh Mani Shukla (supra) are concerned, the same have no applicability to the facts of this case inasmuch as it is not the case of the petitioners in the orders of termination and also before the Tribunal that the appointment of the respondent/Teachers was not in accordance with Rule 96 of DSEAR, 1973.
21. Surely the petitioners cannot set up a new case before this Court. Hence, the plea of Mr. Mittal by taking support of aforesaid judgments is rejected.
22. Insofar as the judgment relied upon by Mr. Mittal in the case of Ravi Negi (supra), the same is distinguishable on facts inasmuch in that case the terms of appointment clearly reveal that the appointment was on contractual basis. It is in the background of such an appointment, the Division Bench of this Court held that Rule 105 has no applicability to a contractual appointment inasmuch as the said rule is applicable to an employee who is recruited in accordance with Rule 96 and whose initial appointment was on probation.
23. This Court is of the view that the present petitions filed by the petitioners are devoid of merit and the same are dismissed with cost of Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:10.05.2022 19:45:44 ₹10,000/- to be paid by the petitioners to each of the respondent Teachers in these petitions.
24. Copy of this order be kept in all connected writ petitions. CM APPL. 21614/2022 in W.P.(C) 7045/2022 CM APPL. 21616/2022 in W.P.(C) 7046/2022 CM APPL. 21753/2022 in W.P.(C) 7095/2022 Dismissed as infructuous.
V. KAMESWAR RAO, J MAY 6, 2022/ds Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:10.05.2022 19:45:44