V.P. Sharma v. Director of Education and Anr.

1. This writ petition is filed by the petitioner one Mr. V.P. Shrama against two respondents. Respondent No.1 is the Director of Education and respondent No.2 is the school where the petitioner was employed, namely Delhi Kannada Sr. Secondary School. By the writ petition, the petitioner claims appropriate writ or directions against the respondents to release the provident fund, gratuity, leave encashments etc, alongwith interest, for the period for which the petitioner worked 2013:DHC:1414 with the respondent No.2-school.

2. The facts of the case are that petitioner was employed by the respondent No.2-school on 1.11.1962 as a Physical Education teacher. The petitioner continued to work in the school till 1982 whereupon the petitioner applied for the foreign assignment vide letter dated 12.6.1984 directly with the respondent No.1 instead of routing it through respondent No.2. By the time this representation was given on 12.6.1984, petitioner had already left the services of respondent No.2-school by submitting the letter dated 1.9.1983 whereby the petitioner is said to have handed over the charge. The petitioner thereafter pleads that he took up a job in a school in Muscat. At Muscat, he received an order dated 12.7.1984 from respondent No.2 removing the petitioner from services. It is not an issue raised by the petitioner that before the order dated 12.7.1984 was passed the petitioner was not served with the article of charges. Petitioner thereafter came back to India in the year 2000 i.e 16 years later from the year 1984 and filed this writ petition claiming the aforesaid reliefs.

3. Respondent No.1-Director of Education agrees to the stand of the petitioner in its counter affidavit. Respondent No.1 states that since the order of removal of services of the petitioner by the respondent No.2 did not have the consent or approval of the respondent No.1, the termination of services of the petitioner by the respondent No.2-school is illegal and bad.

4. On behalf of respondent No.2-school, the defence is essentially under three heads. The first is that a person who has been terminated from services after proper departmental enquiry, the necessary service records were wiped of and which is the consequence that the order dated 12.7.1984 became final as the same was not challenged in any Court of law. Secondly, it is contended that respondent No.2 being a linguistic minority school, there was no requirement of taking of permission of the Director of Education for terminating the services of the petitioner as per Section 8(2) of the Delhi School Education Act & Rules, 1973. Thirdly, it is very vehemently pleaded that petition is barred by delay and laches because the rights which arose in the year 1984 should not be allowed to be claimed by means of filing of a writ petition 16 years later in the year 2000. I may note that the third argument being a legal argument though the same is not raised in the counter affidavit, I have permitted it to be argued. I note that counsel for the respondent No.2-school contends that the post of the petitioner which was vacated on the petitioner being terminated from services was filled by another teacher after due approval of the respondent No.1 by appointing Mr. N.K. Sharma and for which person grant in aid is being received from the respondent No.1, but I am not noting the same in detail as I do not propose to deal with the same in the present judgment.

5. Learned counsel for the petitioner has in support of the argument that the order dated 12.7.1984 is an order void ab initio relied upon the judgment of Uttrakhand High Court in the case of Dr. T.C. Sharma Vs. Gurukula Kangri Vishwavidyalaya in W.P.(C) No.518/2003 decided on 25.11.2010.

6. In my opinion, the writ petition is liable to be dismissed and the arguments which have been raised on behalf of respondent No.2school have to be accepted for the reasons given hereinafter.

7. Firstly, the petitioner was terminated from services way back in July, 1984 after properly following the requirements of the Delhi School Education Act and Rules, 1973 of serving of chargesheet, conducting departmental proceedings and passing of an order. For the sake of arguments, let us assume that the order was illegal because no permission was taken of the Director of Education (though as will be discussed subsequently that no permission of the Director of Education is required with respect to respondent No.2-school which is a linguistic minority school), but, merely because an order is argued to be a wrong order the same cannot mean that it will not become operative or will become void ab initio as is sought to be urged on behalf of the petitioner. The rules and the provisions of law being complied with; with respect to issuance of chargesheet and passing of an order; merely because the order is said to be illegal will not mean that it would be void ab initio without the same having been challenged in a Court of law. The order is passed in July, 1984, this writ petition is filed in the year 2000, and therefore in that year 2000 the order of July, 1984 cannot be challenged inasmuch as even if the period of limitation does not apply to a writ petition under Article 226 of the Constitution of India, however that will not entitle the petitioner at his own leisure and pleasure to approach the Court whenever he wishes after years altogether and which is a long period of 16 years in the present case. But for the fact that the present proceedings are filed as a writ petition, actually the petitioner could well have filed a suit for recovery of the amounts claimed in this writ petition because essentially the relief is the recovery of moneys. For the suit limitation would have expired in the year 1987. There is no provision in the Limitation Act, 1963 for condonation of delay in filing of a suit. This writ petition filed in the year 2000 instead of around 1987 will allow a person to avoid limitation simply by filing the proceedings as a writ petition instead of a suit. The petition is thus clearly barred by the doctrine of delay and laches.

8. The judgment which is very heavily relied upon by the petitioner in the case of Dr. T.C. Sharma (supra) has no application to the facts of the present case because para 3 of the said judgment shows that in the said case, the employee was terminated from services of the University without following the due process of law i.e without issuing the chargesheet and without holding of an enquiry, whereas in the present case, as already stated above, due process was followed by issuing of the chargesheet and holding of an enquiry, and thus the order dated 12.7.1984 cannot be argued to be void ab initio.

9. Therefore, in my opinion, the writ petition is liable to be dismissed on this ground itself of delay and also in a way by estoppel against the petitioner inasmuch as an order of July, 1984 cannot be challenged in the year 2000 inasmuch as the petitioner can be said to have deemed by the delay of 16 years to have accepted the finality of the order dated 12.7.1984. I must also add that I am being liberal while interpreting the aspect of the petitioner challenging the order dated 12.7.1984 in this petition, because, in fact the order dated 12.7.1984 has not at all in any manner been challenged in the writ petition either in the prayer clause or by averments constituting a cause of action in the writ petition as to why the order dated 12.7.1984 is illegal or bad or not binding.

10. On the aspect as to whether the permission of Director of Education is required, since respondent No.2 is a linguistic minority school, no permission of the Director of Education is required under Section 8(2) of the Delhi School Education Act & Rules, 1973 and which sub Section has been held to be ultra vires by the Supreme Court in the judgment of Frank Anthony Public School Employees' Association v. Union of India (1986) 4 SCC 707. The said judgment has thereafter been followed in the cases of G. Vallikumari Vs. Andhra Education Society & Ors. (2010) 2 SCC 497 and Sindhi Education Society Vs. Chief Secretary, Govt.-NCT of Delhi (2010) 8 SCC 49. Accordingly, I hold that no prior or post facto permission of the Director of Education was required for terminating the services of the petitioner by the respondent No.2-school.

11. In my opinion, there is an additional reason because of which I would not like to exercise my extraordinary jurisdiction under Article 226 of the Constitution of India. Petitioner very conveniently got a job in Muscat and which obviously must have been more profitable to the petitioner than the job in which he was with respondent No.2. He would have got such monetary benefit that he could risk his monetary entitlements from the respondent No.2-school. The petitioner who was a teacher left his existing employer and the students high and dry for taking up a more monetary suitable job. Petitioner thereafter worked in the said job at Muscat till the year 2000 and only then on coming back to India has filed this writ petition. The petitioner having abandoned his services, was duly terminated from his employment, took benefit of employment in Muscat and thereafter as stated above at his leisure and pleasure came to this Court in the year 2000. Present is therefore a fit case where extraordinary jurisdiction under Article 226 of the Constitution of India cannot and ought not to be exercised.

12. In view of the above, the writ petition is dismissed, leaving the parties to bear their own costs.

VALMIKI J. MEHTA, J MARCH 14, 2013 Ne