P.K. Jain v. Directorate of Education and Anr

11. It is submitted on behalf of the petitioner that during the period of probation the performance and conduct of the respondent no. 2 was under watch by the petitioner being the employer in so far as the petitioner/employer is the most suited entity to determine the satisfactory performance of the employee. Learned senior counsel for the petitioner has relied upon the judgment of St. Thomas School vs. Manish Kaushik, W.P. (C) 1264/2016 dated 13th April 2017. It is submitted that the appointment letter itself stipulated the condition that on being satisfied with the services of the respondent no. 2, his services would be confirmed and from the very beginning the conduct and performance of the respondent no. 2 was not satisfactory, therefore, his services were terminated during the extended probation period.

12. It is further stated on behalf of the petitioner that departmental inquiry is not required for termination during probation period for which he has relied upon the judgments of Muir Mills Unit of NTC (UP) Ltd. vs. Swayam Prakash Srivastava, (2007) 1 SCC 491 and Hem Singh vs. Director of Education, W.P. (C) 5788/2011 dated 26th August 2013.

13. Learned senior counsel for the petitioner School had duly informed the Directorate of Education at every stage and representative of the Directorate of Education was present at every relevant meeting with respect to Respondent teacher‟s service and the Directorate of Education knew that the respondent no.2‟s work and conduct was not satisfactory. It is submitted that despite repeated reminders despite repeated reminders from the petitioner, no response was received from the Directorate of Education.

14. Therefore, it is submitted that the impugned order be set aside.

15. Per Contra, Mr. Neeraj Bansal, learned counsel for GNCTD and Mr. R.K. Saini, learned counsel appearing on behalf of respondent no.2 vehemently opposed the instant petition and submitted that there is no error or illegality in the order passed by the Tribunal.

16. It is submitted on behalf of the respondent no. 2 that there is no provision of law which provides for initial probation and extension thereof. A maximum period for such extension is provided beyond which it is not permissible to extent the probation and inference in such cases is that the officer concerned is deemed to have been confirmed upon the expiry of maximum period of probation in case before its expiry the order of termination has not been passed. It is submitted that the appointment letter stipulated that upon completion of two years‟ probation, the services of the respondent no. 2 shall be confirmed and therefore, after successfully completing the maximum period of probation of two years in terms of appointment letter on 13th July 2010, which also is the maximum period of probation as provided under Rule 105 of DSEAR, the services of the respondent no. 2 stood confirmed. Therefore, the order of termination of services of respondent no. 2 passed on 7th October 2012, treating him as a probationer, was misconceived and without jurisdiction.

17. It is further submitted that being a private aided school, the petitioner School was required to seek approval of the Directorate of Education for termination of services of an employee as per Rule 120 (2) of the DSEAR. However, no such approval was ever received by the

18. It is submitted by the learned counsel that the termination order was passed based on the conduct of the respondent no. 2, however, no domestic enquiry was carried out by the petitioner School at any point of time during his tenure. The petitioner School was bound to issue notice, invite reply, hold enquiry and then take the final decision regarding the employment of the respondent no. 2. Therefore, the termination was ordered without following the due process of law and against the principles of natural justice.

19. It is submitted on behalf of the respondent no. 2 that the order dated 9th August 2012 passed by the Tribunal, reinstating the petitioner with consequential benefits, clearly reveals that all the relevant factors were taken into consideration while passing a well-reasoned order without any legal infirmities and same is not liable be interfered by way of the instant writ petition.

20. Heard learned counsel for the parties at length. This Court has perused the record, including the impugned order dated 9th August 2012.

ANALYSIS AND FINDINGS

21. The petitioner School has approached this Court aggrieved by the decision of the Delhi School Tribunal dated 9th August 2012 in Appeal No. 51/2011 whereby the respondent no. 2 to the order passed by the petitioner School terminating his services was set aside and he was directed to be reinstated. The limited question before this Court is whether the order passed by the Tribunal suffered from any illegality or error apparent on the face of record.

22. To adjudicate upon the impugned order dated 9th August 2012, it is deemed significant to reproduce the relevant contents of the operative decision passed by the Tribunal:-

23. A part of the preliminary arguments on behalf of the respondent NO. 2, before this Court as well as before the Tribunal is that the probationary period of two years and its extension thereof by the petitioner was not in accordance with law.

24. The law regarding probation is clear and has been reiterated by the Division Benches of this Court as well as by the Hon‟ble Supreme Court. Being an appointee of a private recognized aided school, the services of respondent no. 2 are governed by the Delhi School Education Act and Rules, 1973, as per Rule 4 (f). The DSEAR makes provision for the probationary period of an employee under its Rule 105, which is reproduced hereunder:-

27. The Hon‟ble Supreme Court in Durgabhai Deshmukh (Supra) has also categorically settled the position regarding maximum period permissible for keeping the employee on probation and has held as follows:-

28. The principal provision under Rule 105 provides for an initial probation period of one year and, with the proviso, confers the power to the appointing authority to extend the probation period. This power is also subject to the condition that the period of probation may be extended by „another year‟ with the prior approval of the Director. The debate before this Court as well as the Hon‟ble Supreme Court has been whether there is a maximum period prescribed under the Rule 105 for which an employee can be continued on probation. The aforesaid judgement of Durgabhai Deshmukh (Supra) clarifies the position. The legislature, by way of Rule 105 of the DSEAR, sought to offer a protection to the employees kept on probation indefinitely on the ground of unsatisfactory performance. A balance was also sought to be brought about by keeping a check on the appointing authority. Therefore, the intention of the legislature as well as a bare reading of the Rule, which has also been interpreted by the Hon‟ble Supreme Court, clarifies that there is a limit to the period for which an employee may be kept on probation under the DSEAR. The mandate is for an initial year of probation with a subsequent year of extension of services with the prior approval of the Director.

29. It is also evident from the above observations of the Hon‟ble Supreme Court that the approval of the Director is a condition which cannot be dispensed with if the appointing authority is seeking to extend the period of probation of an appointee. The condition acts as a safeguard against the absolute powers of the appointing authority and also as a protective measure for the probationary employees ensuring that their services are not kept under watch in the garb of probation unreasonably and without following the due process of law.

30. In the case at hand, admittedly, after completion of two years of service of the respondent no. 2, neither any confirmation of services nor any termination of services order was passed by the petitioner but the period of probation of the petitioner was extended by virtue of three subsequent orders extending the period thereof. The petitioner School sought to extend the probation period of respondent no. 2 when his conduct and performance was found unsatisfactory. This extension was granted three times for a period of six months each, however, at no occasion was the approval of Director had been obtained by the School. Since, the provision in its bare language mandates the approval of the Director for extension of probation period and the Hon‟ble Supreme Court has also reiterated the necessity of such an approval, an action of the petitioner School extending the period of probation of respondent NO. 2 failing to comply with this substantial condition cannot be said to be an action taken in accordance with law.

31. However, the peculiar facts and circumstances of the instant petition, also suggest that the teacher whose probation and its extension thereof is in consideration, i.e., respondent no. 2, had acted in defiance of the conduct and standard norms and practices of its employer, i.e., the petitioner. Accordingly, as the table as placed before indicated, there were several memos and letters issued to him intimating him about such defiance and also granting him an opportunity to mend his ways. The extension of period of probation of the respondent no. 2 was also such opportunity granted to him not once but three times to improve his performance and match the quality expected by the petitioner to ensure welfare of the students and suit their best interest. The extensions were not an affirmation of his performance but were chances given to the respondent no. 2 to act in such a manner that would enable the confirmation of his services. Yet, as per the record, it is evident that the respondent no. 2 did not mend his ways and continued to act in defiance and could not deliver the quality of teaching that was reasonably expected from him. Therefore, an extension of probation period by the petitioner could not have been said to be an absolute confirmation of services but was only an opportunity to an employee to keep working at his job.

32. The question, at this juncture, which arises and falls for consideration and adjudication by this Court is that considering the probation to be extended wrongly, whether the services of the petitioner were deemed to be confirmed after the initial probation period, as per the appointment letter and also in accordance with the provision under Rule 105 of the DSEAR, of two years ended.

33. The respondent no. 2 was appointed by the petitioner School vide appointment letter dated 8th July 2008, which is appended as Annexure P- 2 to the petition. The appointment of respondent no. 2 was subject to two years‟ probation. The condition of the appointment letter prescribing the period of probation is reproduced hereunder:- “The appointment is subject to two years probation. After completing two years satisfactory service, the service shall be confirmed and benefit of Provident Fund shall be started in accordance with rules.”

34. This probation period prescribed in the appointment letter also stipulated a condition that on completing two years‟ satisfactory services, the services shall be confirmed. A perusal of the record reveals that respondent no. 2 joined the services on 14th July 2008, which means that his officially stipulated probation period ended on 14th July 2010, whereafter, the School was to either confirm his appointment, upon being satisfied of his performance, or terminate his services in accordance with law. However, the petitioner School, did not take either course of actions and availed a third option, extending the period of probation of the respondent no. 2 for further six months at first, and subsequently, two more extensions were afforded by the petitioner. While the respondent before the Delhi School Tribunal argued that his case was squarely covered by the principle of deemed confirmation, the petitioner argued the contrary. To this effect, in the impugned order, the Tribunal observed in the favour of the respondent no. 2.

35. The principle of deemed confirmation does not find its mention in the statute of DSEAR, but has been interpreted time and again by the Hon‟ble Supreme Court. The sum and substance of the principle is that it confers entitlement to probationary employee to seek deemed confirmation of services upon completion of their probationary period in the absence of any notice of confirmation or termination of their services. However, this principle also has limitations and conditions guiding its implementation to ascertain as to at what stage and under what conditions would the entitlement arise.

36. The primary guidelines and directions to this question that have been relied upon time and again were made in the landmark judgment of the Hon‟ble Supreme Court in High Court Madhya Pradesh and Ors. vs. Satya Narain Jhavar, (2001) 7 SCC 161. The relevant contents of the said judgment are reproduced hereunder:-

37. Hence, the three situations that are probable to arise are the ones enumerated above and are referred to hereafter to examine whether the services of the respondent no. 2 were deemed to be confirmed. First, is the category of cases where the appointment letter or the respective service rules specify a period of probation alongwith the power of extending the same but there is no mention of any maximum period of probation. Second, are the cases consisting of those where there is a provision for an initial period of probation and a provision for extension of this period as well, however, a maximum period for extension is provided beyond which the probation period may not be extended. And finally, third, is the category which comprises of instances where although under the rules, a maximum period of probation is prescribed, but the same requires a specific act on the part of the employer by issuing an order of confirmation and of passing a test for the purposes of confirmation. The Hon‟ble Supreme Court categorically states that only the cases of services falling under the second category shall be deemed to be confirmed when the maximum prescribed period of probation ends.

38. In Kasturi Ram International School and Anr. vs. Directorate of Education and Anr., LPA 457/2012 decided on 14th October 2015, the following was observed by a Division Bench of this Court qua Rule 105 of the DSEAR and deemed confirmation of services:-

39. Further, another Division Bench of this Court in Mitul Goel vs. Food Corporation of India and Others, 2020 SCC OnLine Del 1773, also expressed a similar opinion while adjudicating an issue where the appellant was discharged from services on the ground of not being able to complete his probation period satisfactorily observing as under:- “12. Therefore, there cannot be any disagreement on the proposition of law that there cannot be any automatic confirmation on the expiry of the period of probation. The terms of the appointment or the recruitment rules have to be examined to come to the correct conclusion. Since the relevant clause in the letter of appointment stipulates an affirmative and positive act on the part of the employer to confirm the probationer, we cannot hold that the appellant was confirmed by way of implication, as there is no order confirming him on the said post. …” The Bench referred to the judgment of Medical Council of India vs. Sangeeta Sharma and Another, 2019 SCC OnLine Del 8276, wherein the following was observed:- “19. In Head Master, Lawrence School, Lovedale (supra), the respondent/probationer was appointed on the post of a Mistress in the Petitioner School. It was stipulated in her letter of appointment that she would be on probation for a period of two years which may be extended for one year, if necessary. An order of termination simplicitor was passed against the respondent-probationer. The said termination order was assailed before the High Court and was set-aside by the ld. Single Judge. The LPA preferred against the said order was also dismissed. The appeal preferred against the judgment of the Division Bench of the High Court was ultimately allowed by the Supreme Court, wherein it was held that the status of confirmation of employment had to be earned and conferred. The Supreme Court held that there was nothing in the terms of the letter of appointment from which it could be construed that after the expiry of the period of probation, the probationer could have been treated as a deemed confirmed employee. Had the rule making authority intended that the probationer would be entitled for automatic confirmation upon the expiry of the period of probation, the recruitment rules would have been couched in such specific language. Supreme Court further went on to hold that confirmation of employment does not occur with efflux of time. An affirmative or positive act is the requisite by the employer to confirm a probationer which had not been done in the present case. The Supreme Court considered several earlier decisions in this judgment. The relevant excerpts of Head Master, Lawrence School, Lovedale (supra) read as follows: xxxxxxxxxxx

16. In G.S. Ramaswamy v. Inspector General of Police [AIR 1966 SC 175], another Constitution Bench, while dealing with the language employed under Rule 486 of the Hyderabad District Police Manual, referred to the decision in Sukhbans Singh [AIR 1962 SC 1711] and opined as follows: (G.S. Ramaswamy case [AIR 1966 SC 175], AIR p. 179, para 8)

20. This Court in V.K. Mittal (supra) culled out law on deemed confirmation of employment upon successful completion of probation period, as follows:

(d) While there could be some other cases where the rules do not contemplate issuance of such a specific order in writing but merely require that there will not be any automatic confirmation or some acts, other than issuance of specific orders, are required to be performed by the parties. Even in those cases, there would be no „deemed confirmation‟.”

21. Thus, whenever a person is appointed as a probationer for a specified period, he does not automatically stand confirmed upon the expiry of such probation period, unless the maximum period of probation is prescribed and the person is allowed to continue even after the expiry of such maximum period of probation. Unless and until the relevant recruitment rules or the terms of appointment specifically provide for either deemed confirmation by providing for a maximum period of probation, or confirmation is effected by passing an order to that effect, merely because the express probation period has expired, it cannot be said to confer on the probationer the status of deemed confirmed.”

40. The Hon‟ble Supreme Court has also expressed its opinion on the issue of probation and deemed confirmation in the judgment of Durgabhai Deshmukh (Supra) and has made the following observations in this regard:-

42. In G.S. Ramaswamy v. Inspector General of Police [G.S. Ramaswamy v. Inspector General of Police, (1964) 6 SCR 279: AIR 1966 SC 175], a Constitution Bench of this Court considered the promotions of Sub-Inspectors of Police under Rule 486 of the Hyderabad District Police Manual which stipulated that all officers who are promoted will be on probation for a period of two years and that they may be reverted during the aforesaid period if their work and conduct is not found satisfactory. Noting that the rule stipulated that “promoted officers will be confirmed at the end of their probationary period if they have given satisfaction”, this Court held thus: (AIR p. 179, para 8)

43. In Kedar Nath Bahl v. State of Punjab [Kedar Nath Bahl v. State of Punjab, (1974) 3 SCC 21], the appellant was appointed to a post in the Punjab Provincial Service Class I. The appointment letter stipulated that the period of probation shall be six months. The appellant continued on probation beyond the stipulated period of six months and was eventually reverted back to his previous post. He instituted proceedings challenging his order of reversion. The appellant contended that upon the expiry of the period of probation, he was deemed to be confirmed in service. Rejecting this contention, a three-Judge Bench of this Court held thus: (SCC p. 26, para 9)

44. Recently, in Lawrence School v. Jayanthi Raghu [Lawrence School v. Jayanthi Raghu, (2012) 4 SCC 793: (2012) 1 SCC (L&S) 798], a two-Judge Bench of this Court held that even where the relevant rule prescribes a maximum period of probation, the use of the words “if confirmed” denote a condition precedent and that there is no deemed confirmation of service unless a specific order of confirmation is issued. The Court held thus: (SCC p. 804, para 38)

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.

50. In the view that we have taken, the High Court has erred in concluding that the case of the first respondent falls within the second category of cases enumerated in Satya Narayan Jhavar [High Court of M.P. v. Satya Narayan Jhavar, (2001) 7 SCC 161: 2001 SCC (L&S) 1087]. Rule 105(2) stipulates the satisfaction of the appointing authority as a condition precedent to the issuance of an order of confirmation. Admittedly, no order of confirmation was issued by the appointing authority. The case of the first respondent falls squarely within the third category of cases enumerated in Satya Narayan Jhavar [High Court of M.P. v. Satya Narayan Jhavar, (2001) 7 SCC 161: 2001 SCC (L&S) 1087] wherein though the rules prescribe a maximum period of probation and the probationer is continued beyond the expiry of the probationary period, the substantive appointment of the probationer is subject to a specific act on the part of the appointing authority of issuing an order of confirmation. In the absence of an order of confirmation, the first respondent did not acquire the status of a confirmed employee.”

41. The facts of the instant matter being similar to the situation in this judgment, to the extent that the appointment letter of the respondent no. 2 did not stipulate that his services shall stand confirmed upon the expiry of the probationary period, shall invite the same applicability of the guidelines issued by the Hon‟ble Supreme Court. The principle that in the absence of a condition stipulated in the appointment letter or the relevant rules being met there shall be no deemed confirmation of service merely for the reason of continuance of the services of the respondent no. 2 the services of a probationer are continued beyond the period of probation fits wholly to the situation at hand.

42. In the instant case, the Delhi School Tribunal, in its order dated 9th August 2012, on the question of deemed confirmation, noted as under:- “6. Now the question arises as to whether the acceptance of the Appointment letter stipulating the period of probation as two years is binding upon the Appellant. It is an established law that an agreement between two parties cannot be against the statute. Rule 105 of the Rules provides for a period of probation of one year only. Even if the letter of appointment provided for a period of two years, it cannot prevail upon the statutory provisions of Rules 105 of the Rules. Obviously the period of probation has to be governed by Rule 105 of the Rules which provided that the initial appointment of an employee shall be for a period of one year. The objection thus raised by the Respondent School is devoid of merits. The same is hence dismissed.

8. Hon'ble High Court of Delhi has dealt with the issue of 'deemed confirmation' at length in the case of Dy. Director of Education vs. Veena Sharma, 175 (2010) DLT 311 (DB). The Hon'ble High Court noticed the case of High Court of Madhya Pradesh through Registrar and Others vs. Satya Narayan Jhavar, AIR (2001) SC 3234 where Apex Court had observed as under: "The question of deemed confirmation in service Jurisprudence, which is dependent upon the language of the relevant service rules, has been the subject matter of consideration before this Court, times without number in various decisions and there are three lines of cases on this point. One line of cases is where in the service rules or in the letter of appointment a period of probation is specified and power to extend the same is also conferred upon the authority without prescribing any maximum period of probation and if the officer is continued beyond the prescribed or extended period, he cannot be deemed to be confirmed. In such cases there is no bar against termination at any point of time after expiry of the period of probation. The other line of cases is that where while there is a provision the rules for initial probation and extension thereof, a maximum period for such extension is also provided beyond which it is not permissible to extend probation. The inference in such cases is that the officer concerned is deemed to have been confirmed upon expiry of the maximum period of probation in case before its expiry the order, of termination has not been passed. The last line of cases is where, though under the rules maximum period of probation is prescribed, but the same requires a specific act on the part of the employer by issuing an order of confirmation and of passing a test for the purposes of confirmation. In such cases, even if the maximum period of probation has expired and neither any order of confirmation has been passed nor has the person concerned passed the requisite test, he cannot be deemed to have been confirmed merely because the said period has expired."

9. Perusal of the abovesaid legal position shows that the cases of employees/ teachers under Act and Rules fall in the second category referred to above. As per provisions of Rule 105 of the Act & Rules, initially the period of probation is one year but the same may be extended by another year. In such cases the maximum period of probation is only of two years. Beyond this period, it is not permissible to extend the probation. The concept of 'deemed confirmation' comes into play upon expiry of the maximum period of probation. In other words, an order of termination can be passed before the expiry of the total period of probation of two years.

10. In view of the law discussed above, once an employee appointed under Delhi School Education Act & Rules-1973 is deemed to have been confirmed upon expiry of maximum period of probation of two years, the question of any further extension in the period of probation (beyond two years) of services does not arise. All the abovesaid extensions in the period of probation in the present case, therefore, are illegal unjustifiable and bad in the eyes of law even if such letters were accepted by the Appellant without any objection.”

43. This Court, however, differs in opinion with the position presented by the Tribunal. As discussed in the foregoing paragraphs, the petitioner School is governed by the DSEAR, which makes provision for probation of employees working at the schools falling under the ambit of the Act & Rules. The petitioner School being a private recognized aided school also falls under the DSEAR. Rule 105 of the DSEAR provides for an initial period of probation of one year and an extension by another year. Hence, in the case at hand, there were relevant rules in place applicable to the petitioner School prescribing the maximum probation period for respondent no. 2. Further, the relevant provision subjects confirmation of service after probation to satisfaction of the appointing authority by postulating that „services of an employee may be terminated without notice during the period of probation if the work, and conduct of the employee, during the said period, is not, in the opinion of the appointing authority, satisfactory‟ and therefore, provides for a condition for passing a test for the purposes of continuation of service. The appointment letter dated 8th July 2008 also made a specific mention of the condition that „after completing two years satisfactory service, the service shall be confirmed‟.

44. Therefore, the position of law stands settled when it comes to the issue of deemed confirmation by an examination of the judgments referred to above. An examination of the relevant provision read with the appointment letter reveals that there was a maximum period of probation is prescribed, but the same required a specific act on the part of the employer, by issuing an order of confirmation and passing a test, for the purposes of confirmation of employment. Therefore, the reasonable conclusion that follows is that the case of the petitioner falls under the third line of cases as detailed in the judgment of Satya Narain Jhavar (Supra) and not under the second category as noted by the Tribunal. Unless there is an express condition to the effect that the services of an employee shall stand confirmed on the end of expiry period, there remains nothing to suggest that the principle of deemed confirmation will stand in way in discharge of services. The position stands different for cases where there is a negative stipulation that beyond the said period, probation of the respondent no. 2 could not have continued, in which case the reasonable and legal consequence that would follow would be deemed confirmation of services, however, this is absolutely not the case before this Court in the dispute between the instant parties.

45. After the period of probation prescribed expired and neither any order of confirmation had been passed nor had the person concerned passed the requisite test, his services could not deemed to have been confirmed merely because the said period had expired. This Court distinguishes with the observations of the Tribunal and finds that the services of the respondent no. 2 were not deemed to be confirmed after his probation period expired, irrespective of the fact that such period was prescribed and extended rightly or wrongly. This Court relies upon the aforesaid judgments while differentiating the decision of the Delhi School Tribunal on the issue of deemed confirmation and holds that the principle does not favour the petitioner and could not have been interpreted as so by the Tribunal.

46. The petitioner School vide order dated 7th October 2011 discharged the respondent no. 2 from services after not being found suitable for the post of TGT (Mathematics) for which he was appointed. Challenging the said order, the respondent no. 2 approached the Delhi School Tribunal and passed the impugned order dated 9th August 2012 and set aside the termination order. After the elaborate and comprehensive discussion on the issue of deemed confirmation, there does not remain much to examine with respect to the termination order. After the probationary period of the respondent no. 2 ended, there was admittedly no order of confirmation of services. Therefore, had there been no extension of the period of probation and even a termination order, the services of the respondent NO. 2 were deemed to be terminated considering that he failed to fulfil the necessary condition of completion of two years‟ satisfactory service and that there was no express order of confirmation of employment of the

47. The petitioner School has also raised objection to the impugned order directing it to reinstate the respondent no. 2 to service on the ground of loss of confidence and strained relationship with the employer. It is not the case of the petitioner that there were only a few isolated cases against the respondent no. 2 which led to his discharge from services. The record reveals that every few weeks a Show Cause letter or a memo was being issued to the respondent no. 2 regarding his conduct or performance. The petitioner School had several reasons to conclude that the performance of the respondent no. 2 was unsatisfactory. The students, who are at the center of focus for the petitioner, were not benefitting in any way from the employment of the respondent no. 2, since during his service, neither classes were being conducted properly, nor the classwork and homework of the students was being checked and corrected. An incident of argument and fight between certain students leading up to filing of an FIR also came up during arguments which again indicates the incapability of respondent no. 2 to fulfil his duties. It is certain that there is a question on the eligibility and credibility of the respondent no. 2 when it comes to his service with the petitioner School and there is no doubt that the petitioner School would have lost confidence in respondent no. 2 due to his conduct and performance. A person unsuitable for a specific post may not be employed on the same especially when it is the education of children which is at stake.

CONCLUSION

48. Keeping in view the position reiterated by the Division Benches of this Court as well as by the Hon‟ble Supreme Court it is conclusively held that at no point of time were the services of the respondent no. 2 deemed to be confirmed since the case of respondent no. 2 did not fall under the category of cases of deemed confirmation as per the guidelines issued and interpreted with respect to Rule 105 of the DSEAR. Moreover, it is also to be seen that the petitioner, being a custodian of welfare of all the children falling under its purview, has to ensure the best of its students‟ interests. It has the responsibility to ensure that the students bestowed with the kind of quality education that will shape them into the leaders of tomorrow. In this process, the School makes certain decisions which may not always be in the best interest of an individual but will indisputably benefit the students and enhance the quality of education they are being imparted. After being granted several opportunities of improvement, the performance and demeanor of the respondent no. 2 remained to be such which undoubtedly required interference and action on part of the petitioner School.

49. Therefore, after thorough consideration of the facts, circumstances, material on record, contents of the impugned order, submissions made on behalf of the parties before this Court as well as the contentions raised in the pleadings and written submissions, it is found that the Tribunal has committed an error while setting aside the order of the petitioner School terminating the services of the respondent no. 2. This Court finds merit in the objections raised by the petitioner to the impugned order passed by the Delhi School Tribunal and finds it apposite to set the same aside.

50. Accordingly, the instant petition stands allowed and the order dated 9th August 2012 passed in Appeal No. 51/2011 by the Delhi School Tribunal along with directions qua reinstatement of the respondent no. 2 are set aside.

51. Pending applications, if any, also stand disposed of.

52. The judgment be uploaded on the website forthwith.

JUDGE NOVEMBER 11, 2022 Aj/Ms