Full Text
HIGH COURT OF DELHI
Date of order : 18th August, 2023
44084/2022 DAV PUBLIC SCHOOL AND ANR. ..... Petitioners
Through: Ms.Nikita Anand, Advocate
Through: Mr.Anuj Aggarwal, Advocate for R-1 Mr.Gaurav Dhingra, Advocate for
R-2
CHANDRA DHARI SINGH, J (Oral)
ORDER
1. The present petition under Articles 226 and 227 of the Constitution of India has been filed by the petitioner seeking the following reliefs: “a) Issue a writ of certiorari or any other writ or order or direction under Article 226 and 227 of the Constitution of India in setting aside the impugned order dated 28.02.2019 passed by the Ld. Delhi School Tribunal in Appeal No. 44/2018; and b) Pass any such order or further orders that this Hon'ble Court may deem just and fair in the facts of the case, in the interest of justice.”
2. The respondent No. 1 (hereinafter “respondent teacher”) is a teacher by profession and has been working as a Primary Teacher (hereinafter “PRT”) with the petitioner No. 1 (hereinafter “petitioner school”) since 2014.
3. The present petition has been filed by the petitioner school challenging the legality and validity of the impugned order dated 28th February 2019, in Appeal bearing No. 44/2018, passed by the learned Delhi School Tribunal (hereinafter “learned Tribunal”), directing the petitioner school to reinstate the respondent teacher.
4. Learned counsel appearing on behalf of the petitioner school submitted that the respondent teacher had been employed with the petitioner school on a contractual basis since 1st July 2014, and thereafter, reappointed on contractual basis on 15th July 2016, after conducting a fresh interview process on 11th July 2016. The said reappointment was concluded by the efflux of time in May 2018.
5. It is submitted that the respondent teacher had filed an appeal against her alleged illegal termination before the learned Tribunal. The respondent teacher in her appeal admitted that she was contractually appointed from 1st July 2014, till May 2016, with no subsequent guarantee of employment. Similarly, after the fresh interview conducted on 11th July 2016, a memorandum dated 15th July 2016, was issued to the respondent teacher recording that the services of the respondent teacher can be terminated without notice by the petitioner school.
6. It is further submitted that a meeting was conducted between the petitioner school and the respondent teacher on 9th August 2018, subsequent to which, the petitioner school offered the respondent teacher an appointment to the post of PRT, which she declined. Further, the respondent teacher failed to report to work on 10th August 2018. Thereafter, the petitioner school inquired the respondent teacher regarding her willingness to join her duties, instead, she served the petitioner school with a legal notice on 16th July 2018, accusing the petitioner school of illegally terminating her services.
7. It is submitted that the learned Tribunal failed to take into consideration Rule 105 (3) of the Delhi School Education Rules, 1973 (hereinafter “DSEAR”), wherein, an employee who has been appointed to fill a temporary vacancy for a limited period cannot after expiry of the said period, automatically acquire the status of a permanent employee.
8. It is further submitted that according to the judgement of a Coordinate Bench of this Court in Mrs. Aradhana Goel v. Balwantray Mehta Vidya Bhawan & Anr., W.P(C) No. 8165/2007, it is a settled law that the employer is the concerned authority for judging the suitability of the services of a probationer and this Court cannot substitute its decision for that of the employer for any reason and if the probationer is found to be unsuitable for the service, such services of the probationer can be terminated in accordance with the appointment letter.
9. It is submitted that the petitioner school has paid Rs. 93,507/- to the respondent teacher as maternity benefits w.e.f. 3rd December 2016, to 31st March 2017, and no further benefits are due to the respondent teacher.
10. In view of the foregoing submissions, it is submitted that the impugned order dated 28th February 2019, passed by the learned Tribunal in Appeal bearing No. 44/2018, is against the settled principles of law and therefore, is liable to be set aside.
11. Per Contra, the learned counsel appearing on behalf of the respondent teacher vehemently opposed the instant writ petition and denied the averments made by the petitioners.
12. It is submitted that the respondent teacher was appointed on probation basis on 1st July 2014, and her services were confirmed by the petitioner school on 11th July 2016. On 2nd July 2018, vide an oral order, the services of the respondent teacher were terminated illegally by the petitioner school.
13. It is further submitted that the same is in violation of Section 8 of the Delhi School Education Act, 1973 (hereinafter “DSE”) and Rule 118, 120 & 123 of the DSEAR. Furthermore, no prior approval for termination was taken by the petitioner school from the South Delhi Municipal Corporation (hereinafter “SDMC”).
14. It is submitted that the present writ is liable to be dismissed since the petitioner school is guilty of misleading this Court by averring wrong facts, thereby, concealing that the respondent teacher was a confirmed employee.
15. It is further submitted that as per the judgment of Municipal Corporation of Delhi vs. Asha Ram and Anr. 2005 (80) DRJ 750, there is no perversity in the impugned order passed by the learned Tribunal which may call for the interference of this Court under the present writ petition.
16. It is submitted that as per the report received from the SDMC through an application filed under the Right to Information Act, 2005, it is evident that the respondent teacher was a confirmed PRT.
17. It is further submitted that in the said report, the bills attached for the period between April 2017 to July 2017, states that the respondent teacher was paid salary in accordance to the appropriate pay scale including house rent allowance & dearness allowance. However, the same was withdrawn by the petitioner school and recovery was initiated, whereby a sum of Rs. 7,250/- was deducted on a monthly basis from the salary of the respondent teacher.
18. It is submitted that in gross violation of the provisions of DSEAR, the respondent teacher by way of refusal of duty, was illegally terminated on 2nd July 2018, vide an oral order of the petitioner school.
19. Hence, in view of the foregoing submissions, the respondent teacher seeks that the instant petition being devoid of any merits is liable to be dismissed with costs.
20. Heard the learned counsel for the parties and perused the records including the pleadings and the judicial precedents cited.
21. Before delving upon the relevant issues arising in this petition, it is necessary to set out the relevant facts here.
22. The petitioner school submitted that the respondent teacher was employed on a contractual basis from the year 2014, to 2016, with no subsequent guarantee of further employment and her employment was concluded by the efflux of time in May 2018. On the other hand, the respondent teacher submitted that she was appointed on probation basis on 1st July 2014, and her services were confirmed on 11th July 2016, by the petitioner school. It has been alleged that the respondent teacher was terminated illegally on 2nd July 2018, and aggrieved by the same, the respondent teacher filed an appeal before the learned Tribunal. The learned Tribunal vide the impugned order dated 28th February 2019, allowed the appeal and directed the petitioner school to reinstate the respondent teacher. Hence, the petitioner being aggrieved from the same has approached this Court. The relevant portion of the impugned order is reproduced below:
23. The petitioner school is managed by the petitioner No. 2 management and is recognized under the DSEAR, thereby, governed by the respondent Directorate. No doubt, that the petitioner School is an unaided private school, however, it is well within the bounds of the DSEAR, and is therefore, legally obliged to implement the orders or directions given by the Government of Delhi. Rule 118 of the DSEAR, provides that every recognized private school whether aided or unaided, is required to constitute a disciplinary committee. The said Rule is reproduced hereunder:
24. The language of the above said provision clearly lays down that a private school, whether aided or unaided is required to formulate a disciplinary committee. The said provision is also supplemented by the Rule 120 of the DSEAR, which mandates that a major penalty cannot be imposed upon an employee by the school prior to an inquiry conducted by the disciplinary committee in a manner specified under the said Rule. The aforementioned Rule is reproduced hereunder:
25. The learned Tribunal observed in its impugned order that the respondent No.1 & 2 (before the learned Tribunal) i.e., the petitioner school and the Management specifically admitted in their counter affidavit in the Appeal bearing no. 44/2018, that the appellant i.e., the respondent teacher herein, was confirmed as a permanent employee to the post of PRT w.e.f. 9th August 2015.
26. Accordingly, the learned Tribunal placed reliance on the judgment of the Hon‟ble Supreme Court in Shashi Gaur vs. NCT of Delhi, (2001) 10 SCC 445 and decided that the termination of the respondent teacher falls within the category of „otherwise termination‟ and the same is in complete contravention to the provisions of Rule 118 and 120 of the DSEAR.
27. In the case of Shashi Gaur (Supra), the Hon‟ble Court therein, categorically held that under Section 8 (3) of the DSE, termination can be challenged in an appeal except in cases where the service comes to an end by an efflux of time. In other words, the statute provides for remedy of an appeal to the teachers who are taken out of the service on the whims of the Management of the Institution and Government. Relevant paragraph of the aforementioned judgement is reproduced herein-
28. Furthermore, the Hon‟ble Supreme Court in Raj Kumar vs. Director of Education and Others, (2016) 6 SCC 541, has held that the termination of an employee, will be bad in law if it is obtained without prior approval of the Director of Education. Section 8 (2) of DSE, is a procedural safeguard enacted by the legislature with a clear intent to provide security of tenure to employees and to regulate the terms and conditions of their employment. It further ensures that an employee is not terminated in an arbitrary or unreasonable manner without the approval of the Director, even by a private school. The relevant paragraphs of the aforementioned judgement are reiterated herein:
49. In Principal v. Presiding Officer [Principal v. Presiding Officer, (1978) 1 SCC 498: 1978 SCC (L&S) 70], a Division Bench of this Court held as under: (SCC p. 503, para 7)
29. In the instant case, this Court has taken into consideration the facts and documents placed on record and observes that the service of respondent teacher is clearly recorded as that of a permanent employee by the petitioner school. Furthermore, the observation laid down by the learned Tribunal are also been considered, wherein, the learned Tribunal placed reliance on the counter affidavit of the petitioner school in the Appeal bearing no. 44/2018, which stated that the petitioner school accepted the respondent teacher as a permanent employee w.e.f. 9th August 2015. Thus, proving that the respondent teacher was terminated in contravention of the provisions of Rule 118 and 120 of the DSEAR. Therefore, this Court is of the view that the respondent teacher was a permanent employee of the petitioner School.
30. Now, delving into a peculiar question raised in this petition, in regard to the entitlement of back wages. This Court is of the view that based on the observations mentioned herein above, the respondent teacher is entitled to back wages as directed vide the impugned order dated 28th February 2019, passed by the learned Tribunal. The Hon‟ble Supreme Court in the judgment of Sunil Sikri vs Guru Harkrishan Public School & Anr., 2022 SCC OnLine SC 926, held that when an appeal to the Delhi School Tribunal is filed under Section 11 of the DSE, and the employee is reinstated, then the provision is not merely an enabling one since it confers upon the Managing Committee of the school, a power that becomes a duty to consider and any other view would put the employee at the mercy of the employer, which is not the intent of the DSE.
31. Therefore, in light of the observations made by this Court in the foregoing paragraphs, it is held that the respondent teacher is entitled to reinstatement as held by the learned Tribunal. This Court finds no infirmity in the impugned order passed by the learned Tribunal and hence, upholds the impugned order 28th February 2019, passed by the learned Tribunal in Appeal bearing No. 44/2018.
32. In view of the above discussion of facts and law, this Court discerns no material in the propositions put-forth by the petitioner school and thereby, the instant writ petition is dismissed.
33. Accordingly, pending applications, if any, also stand dismissed.
34. The order be uploaded on the website forthwith.