Salwan Public School v. Director of Education & Anr.

1. The interim order dated 19.11.2018 passed in W.P.(C) 12377/2018 directed the appellant to give employment to the respondent no. 2 as a permanent employee and upheld the Delhi School Tribunal (DST) judgment, which in turn had directed the respondents inter alia as under:-

25. I have also carefully gone through the authorities relied upon for the Ld. Counsel for Respondent School there is no dispute in the ratio of law laid-down in these authorities. However, the ratio of law in an authority is laid down according to the facts and circumstances of that particular case and the same, may not be squarely applicable to the fact and circumstances of each case. As discussed above, facts of the case in hand are entirely different wherein the appellant was appointed in the year 2012 and continued till 2016. In these facts and circumstances of this case, this Tribunal is of the opinion that ratio of law laid down in authorities relied upon by Ld. Counsel for Respondent No. l to 3 is not applicable.

26. In view of the above, this appeal is accepted with cost. Cost is assessed at Rs.33,000/-. Respondent No. 1 to 3 are directed to re-instate-the Appellant within a period of 4 weeks. Appellant will be entitled for all the consequential, benefits. He will be entitled for full wages from the date of this order onwards.

27. With respect to the back wages, in view of Rule 121 of Delhi School Education Act and Rules, 1973, the Appellant is directed to make exhaustive representation to the R-1 to R-3 within a period of 4 weeks from the date of this order, as to how and-in what manner the Appellant will be entitled to complete wages. The Respondent No. 1 to 3 are directed to decide the representation given by the Appellant within 4 weeks of receiving the same by a speaking order and to communicate the order alongwith the copy of the same to the Appellant;

2. The impugned order has relied upon the dicta of this court in Hamdard Public School v. Directorate of Education and Anr., 202 (2013) DLT 111 as well as on the connected cases with the lead case being Army Public School and Anr. v. Narendra Nain and Anr. in W.P.(C) 1439/2013 decided on 30.08.2013, which has held that the Rule 105 must be so interpreted that the reasonable period therein should ordinarily be around three years and should not exceed five years so that a contractual employee against a substantive vacancy could find some sense of reassurance apropos the continuance of his employment.

3. The Hamdard Public School judgment has been set aside by the Supreme Court in Durgabai Deshmukh Memorial Senior Secondary School & Anr.

V. J.A.J. Vasu Sena & Anr., (2019) 17 Supreme Court Cases 157. The

45. It emerges from the consistent line of precedent of this Court that where the relevant rule or the appointment letter stipulates a condition precedent to the confirmation of service, there is no deemed confirmation of service merely because the services of a probationer are continued beyond the period of probation. It is only upon the issuance of an order of confirmation that the probationer is granted substantive appointment in that post. Rule 105(2) stipulates the satisfaction of the appointing authority as a condition precedent to the issuance of an order of confirmation. The argument advanced by the learned counsel for the first respondent that there is a deemed confirmation upon the continuation of service beyond the expiry of the period of probation is negatived by the express language of Rule 105(2). In this view, the continuation of services beyond the period of probation will not entitle the probationer to a deemed confirmation of service. The High Court has erred in holding that there is a deemed confirmation where the services of a probationer are continued beyond the expiry of the probationary period. (emphasis supplied)

4. A Division Bench of this court in Ravi Negi v. Balvantray Mehta Vidya Bhawan Anguridevi Shersingh Memorial Academy-Second Shift ad Ors., 2021 SCC OnLine Del 3412, has held inter alia as under:-

20. For the appellant to succeed in his argument of enjoying statutory protection, the appellant has to first show his appointment to be statutory and which the appellant has failed to aver or argue. Rather, the claim appears to have been pursued without taking notice of Rule 96. The said Rule lays down the method of recruitment in a unaided recognised school and the principle, what has been prescribed to be done in a particular manner shall be done in that manner only and not otherwise, shall apply. Without the recruitment being in compliance of Rule 96, no statutory protection shall enure to the appointee and the appointee cannot take any advantage of an appointment which even if not to fill a temporary vacancy or any vacancy for a limited period, is contrary to the Rules governing appointment/recruitment. Such appointment/recruitment will be non-est.

5. A Division Bench of this court has also held in Anita Mishra v. Govt. of N.C.T. of Delhi & Ors., ILR (2008) I Delhi 799, as under:-

5. We are unable to agree with the counsel for the appellant and we are not persuaded by the aforesaid submissions. If a wrong is committed, the same has to be rectified and such a wrong cannot be allowed to be perpetuated only because she was allowed to work in that school on the basis of such an illegal order for a period of about 3/4 years. The appointment was illegal A and in violation of the provisions of the rules and non est in the eyes of law. On the basis of an illegal order, the appellant cannot claim a legal right for regularisation of her services and even allowed to continue in service. The said order of appointment being illegal and having been issued by the B incompetent authority, is void ab initio and same would not confer any right on the appellant to claim regularisation in service. In this connection, we may refer to the decision of the Supreme Court in Secretary, State of Karnataka and Ors. v. Uma Devi and Ors., reported in (2006) 4 SCC I. The ratio of the aforesaid decision is clearly applicable to the facts of the present case.

6. The appointment letter issued by the appellant to the respondent no. 2, reads as under:- SPS/256/2012 July 23, 2012 ORDER SUBJECT: APPOINTMENT AS LAB ASSTT.

CHEMISTRY Mr. Surendra Kumar Jha is hereby appointed as Lab Asstt. (Chemistry) for a specified period w.e.f. 20.07.2012 to 31.03.2013, on payment of professional charges of ₹15,000/p.m. consolidated, subject to statutory Tax deductions. The said appointment of Mr. Surendra Kumar Jha being contractual, he shall have no right, whatsoever for regular appointment, seniority, pension, gratuity or any other benefit admissible to a regular employee. His service will be covered by the terms and conditions, as laid down in the agreement concluded between him and the school. (emphasis supplied)

7. The appellant/School never held out to the prospective employee that the said employee would be entitled to seek permanent employment or consequential benefits. The employee joined the school and rendered services for 04 years from 2012 to 2016, in the knowledge that he was a contractual employee. In 2016, the substantive post was filled by a regular employee and the said employment has not been challenged, the incumbent permanent employee continues to render services to the school, so there is no vacancy in the post in which the appellant served earlier. The learned counsel for the appellant submits that the respondent no. 2 was already 34 years of age and he could not have, in any case, claimed to be considered for employment in terms of the Recruitment Rules (at page 183 of the paperbook), which specifically mentions that the age of the prospective candidate should be between 18 and 25 years. This would preclude the respondent no. 2 from being appointed. If he seeks statutory protection, the appointment would have to be in terms of the statute. Since he is excluded from being considered, he would not receive any statutory protection.