SANGEETA BAJAJ & ANR. v. SCHOOL MANAGEMENT OF SRI GURU NANAK PUBLIC SCHOOL & ANR.

1. Petitioners by this writ petition seek implementation of the order of a learned Single Judge of this Court dated 18.7.2011 passed in CM (Main) Nos. 444/1998 and 446/1998. As per this order dated 18.7.2011, petitioners were reinstated in service and respondent no.1-school was directed to comply with the provision of Rule 121 of the Delhi School Education Rules, 1973 and make payment of back wages to the petitioners.

2. Though, counsel for respondent no.1 at one stage sought to argue that Rule 121 does not apply to respondent no.1-school as it is a minority school, 2013:DHC:4909 however, this argument was not too seriously pressed because the order dated 18.7.2011 binds both the parties and as per which, it was agreed that Rule 121 will apply and the school management will pass speaking orders in terms of Rule 121. I may also note that in the judgment of Management Committee of Montfort Senior Secondary School Vs. Sh. Vijay Kumar and Ors., (2005) 7 SCC 472 it has been held that teachers of minority schools also have all the protection and entitlements as given to teachers of nonminority schools under the Delhi School Education Act and Rules, 1973. Para 10 of the said judgment 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 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.....” (underlining added)

3. The school management in this case has passed orders dated 9.8.2011, however, these orders are not judgments or speaking orders as is required by law. Duties to be performed as per Rule 121 is a quasi judicial function as per the Constitution Bench judgment of the Supreme Court in the case of S.N.Mukherjee vs. Union of India, 1990 (4) SCC 594.

4. The impugned orders dated 9.8.2011 being non-speaking orders, it is necessary that speaking orders be passed. The speaking orders will have to deal with the contentions, the case law and relevant provisions of law as referred to by the petitioners with respect to their claim of back wages. If according to the respondent no.1-school complete back wages are not payable then the appropriate authority deciding the case under Rule 121, will be bound to give reasons in support of denial of the complete back wages to the petitioner.

5. In view of the above, the writ petition is disposed of with the direction that the respondent no.1-school will now pass speaking orders in terms of the orders dated 18.7.2011 in CM(Main) Nos. 444/1998 and 446/1998 within a period of six weeks from today. The appropriate authority of the respondent no.1-school will issue notice to the petitioners through counsel to appear before the authority before passing an order in terms of Rule 121. Petitioners will be entitled to appear personally or through their representatives before the appropriate authority who will decide the amount to be paid to the petitioners as per Rule 121 of the Delhi School Education Rules, 1973. The speaking order which would be passed by the appropriate authority as per Rule 121 will be communicated to the petitioners as also their counsel by registered AD post within a period of one week of passing of the same. Parties are left to bear their own costs.

SEPTEMBER 25, 2013 /ib VALMIKI J. MEHTA, J.