Shatrughan Thakur v. The Director of Education & Ors.

5. A reference to aforesaid para shows that the Supreme Court in 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 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 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 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 petitionerschool 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 W.P.(C) No.5189/2014 & connected 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 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.”

3. The facts which are stated by the respondents for giving contractual appointments do not bring the case of respondents under Rule 105(3) of the DSEAR, 1973. The stand of respondents no. 2 & 3 in para 5 at pages 4 & 5 of W.P.(C) No.5189/2014 & connected the counter affidavit is pleaded as a justification for posts to remain only contractual posts, but, this stand is in violation of the ratio 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 and which lays down that teachers and employees of schools must have statutory protection and therefore, contractual appointments are not permissible instead of regular appointments. In Management Committee of Montfort Senior Secondary School’s case (supra) the contractual appointments were held not be valid appointments and such employees were held to have statutory protection under DSEAR, 1973 as regards their services although the appointments were given on contract basis. Also, the pleading of strength of students being variable as urged by respondents no. 2 & 3 is only a self-serving ipse dixit with no material at all in support of the same, much less such statistics which are spread over many many years, and which also have to be established to the satisfaction of this Court.

4. Reliance placed by respondents no. 2 & 3 on the ratio in the case of T.M.A. Pai Foundation and Others Vs. State of Karnataka and Others, 2002 (8) SCC 481 and other judgments is misplaced as entitlement to administer a private unaided school does not entitle such a school to take away statutory protection of employment given as per DSEAR, 1973 and which issue is W.P.(C) No.5189/2014 & connected squarely decided against the respondent no.3/School in terms of the categorical ratio contained in para 10 of the judgment in the case of Management Committee of Montfort Senior Secondary School (supra), and which has been reproduced above. Right to administer does not mean right to mal-administer i.e. right to administer has to be in accordance with the laws being DSEAR, 1973 and the employment in view of the judgment of the Supreme Court in the case of Management Committee of Montfort Senior Secondary School (supra) acquires statutory flavor superseding the contractual nature of the appointment/employment. The employment of the employees/teachers in schools as contractual appointments would thus be an anathema to the required statutory nature as mandated qua their services.

5. In view of the above, the writ petition is allowed and it is held that the petitioner’s services with the respondent no.3/School will be taken not as contractual employment but as regular statutory employment on the completion of third year of service with the respondent no.3/School i.e w.e.f 22.10.2008. Since the petitioner will be taken as a regular employee of the respondent no.3/School w.e.f 22.10.2008, petitioner will also be entitled to the monetary benefits taking the petitioner as a regular employee of the respondent no.3/School for a period of three years prior to filing of the writ petition i.e though regularization will be w.e.f 22.10.2008, payment of W.P.(C) No.5189/2014 & connected enhanced salary and other monetary emoluments will be granted to the petitioner for a period of three years prior to filing of the writ petition and to be continued thereafter during the employment of the petitioner with the respondent no.3/School. Arrears be cleared within a period of two months from today.

6. In view of the above, the writ petition is allowed with costs of Rs.25,000/- to be paid to the petitioner by the respondent no.3/School.

7. In view of the facts as stated above, and which show that various Army Public Schools are over-reaching the provisions of Delhi School Education Act and Rules, 1973 including the present Army Public School being the branch at Delhi Cantt, Sadar Bazar Road, Delhi, the Director of Education will conduct an enquiry against the respondent no.3/School by constituting a committee to examine the records for a period of about 10 years prior to filing of the writ petition. The committee will give its report within a period of three months from today to the Director of Education, and if the respondent no.3/School is found to be violating the provisions of DSEAR, 1973 by illegally giving employment only on contractual basis instead of regular statutory employment, then, the Director of Education will take necessary action against the respondent no.3/School under DSEAR, 1973. W.P.(C) No.5190/2014 This writ petition also stands allowed in terms of the observations made while deciding W.P.(C) No.5189/2014 and the regularization being granted to the petitioner w.e.f 14.05.2005. Petitioner will be entitled to costs of Rs.25,000/- from the respondent no.3/School. W.P.(C) No.5191/2014 This writ petition also stands allowed in terms of the observations made while deciding W.P.(C) No.5189/2014 and the regularization being granted to the petitioner w.e.f 02.8.2013. Petitioner will be entitled to costs of Rs.25,000/- from the respondent no.3/School. W.P.(C) No.5344/2014 This writ petition also stands allowed in terms of the observations made while deciding W.P.(C) No.5189/2014 and the regularization being granted to the petitioner w.e.f 05.7.2008. Petitioner will be entitled to costs of Rs.25,000/- from the respondent no.3/School. W.P.(C) No.5809/2014 This writ petition also stands allowed in terms of the observations made while deciding W.P.(C) No.5189/2014 and the regularization being granted to the petitioner w.e.f 08.1.2011. Petitioner will be entitled to costs of Rs.25,000/- from the respondent no.3/School.

APRIL 29, 2015 VALMIKI J. MEHTA, J. KA After the judgment has been dictated, Mr. Ankur Chhiber, Advocate has put in appearance for respondent nos. 2 & 3, and he has been apprised of the above judgment.

APRIL 29, 2015 VALMIKI J. MEHTA, J. KA