14, 4, 10, 11, 12, 15 to 78.
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(C) 9799/2009
AJINDER KAUR LAMBA & ORS. ..... Petitioners
Through: Mr. R.K. Saini & Mr. Vikas Saini,
Advocates
Versus
GURU HARKRISHAN PUBLIC SCHOOL
& ORS. ...... Respondents
Through: Ms. Jyoti Singh, Sr. Advocate with
Mr. Bhagwant Singh, Ms. Manpreet
Kaur, Mr. Kirtiman Singh, Mr.
Mansimran Singh, Advocates.
Reeta Kaul, Advocate for R-2
AND
W.P.No.2360/2010, 1948/2010, 2405/2010, 2411/2010, 9826, 9834,
9839, 9841, 9842, 9843, 9845, 9846, 9860, 9861, 9862, 9863, 9864,
9865, 9866, 9867, 9868, 9879, 9880, 9881, 9882, 9883, 9997, 9998,
9999, 10019, 10020, 10021, 10022, 10023, 10024, 10025, 10040,
10041, 10042, 10043, 10044, 10045, 10046, 10047, 10048, 10049,
10050, 10161, 10173, 10565, 10566, 11183, 11184, 11185, 11186,
11587, 12047, 12319, 12321, 13015, 13016, 13082, 13442, 13443,
13444, 13997 all of 2009, 353/2010 & 882/2010.
Present:- Dr. Sarabjit Sharma with Ms. Jasmine Detwani & Ms
Prerna Verma, Advocates for petitioners in W.P(C) 9861,
9860, 9862, 9863, 9864, 9865, 9866, 9867, 9868, 10565,
10566, 11587, 13015, 13016, 13997 all of 2009 and
353/2010.
Mr. I.S. Alag with Mr. J.S. Lamba, Advocates for
petitioners in W.P.(C) 9839, 9841, 9842, 9843, 9845,
9845, 9846, 10040, 10041, 10042, 10043, 10044, 10045,
10046, 10047, 10048, 10049, 10050, 11183, 11184,
11185, 11186 & 13082 all of 2009. 1/12
Mr. Baljit Singh, Advocate for petitioner in W.P.(C)
10019, 10020, 10021, 10022, 10023, 10024, 10025 all of
2009.
Mr. R.K. Saini & Mr. Vikas Saini, Advocates for
petitioners in W.P.(C) 9826, 9834 all of 2009.
Ms. Jyoti Singh, Sr. Advocate with Mr. Bhagwant Singh,
Ms. Manpreet Kaur, Mr. Kirtiman Singh, Mr. Mansimran
Singh, Advocates for respondents in W.P.(C) 2360/2010,
2405/2010, 2411/2010, 9826, 9834, 9839, 9841, 9842,
9843, 9845, 9846, 9860, 9861, 9862, 9863, 9864, 9865,
9866, 9867, 9868, 9879, 9880, 9881, 9882, 9883, 9997,
9998, 9999, 10019, 10020, 10021, 10022, 10023, 10024,
10025, 10040, 10041, 10042, 10043, 10044, 10045,
10046, 10047, 10048, 10049, 10050, 10161, 10173,
10565, 10566, 11183, 11184, 11185, 11186, 11587,
12047, 12319, 12321, 13015, 13016, 13082, 13442,
13443, 13444, 13997 all of 2009, 353/2010 & 882/2010
Ms. Purnima Maheshwari, Advocate for R-4 in W.P.(C)
9843, 9879, 9880,9881,9882 all of 2009.
Ms. Reeta Kaul, Advocate for R-4 in W.P.(C)
9883/2009.
Ms. Bandana Shukla for Ms. Ruchi Sindhwani, Advocate
for R-4/DOE in W.P.(C) 9997, 9998, 10173 all of 2009.
Mr. Sumit Chander, Advocate for R-4/DOE in W.P.(C)
10161/2009.
Ms. Shobhana Takiar, Advocate for R-GNCTD in
W.P.(C)12319/2009.
Ms. Sangeeta Sondhi & Mr. Rahul Sood, Advocates for
R-2 in W.P.(C)12321/2009.
Ms. Sana Ansari for Ms. Zubeda Begum, Advocate for
R-DOE in W.P.(C)13442, 13443 & 13444 all of 2009.
Mr. S.Q. Kazim with Mr. M.H. Usmani, Advocates for
R-2 in W.P.(C) 882/2010.
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CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 30.05.2011
1. These sixty nine petitions are being listed together and common orders have been passed therein. Common questions of law and facts are stated to be entailed therein. The counsels inform that the petitioner/s in all the petitions are teaching/non-teaching employees of the Guru Harkrishan Public Schools at different locations in Delhi. The petitions have been filed impugning the orders of termination of employment
2. The counsels inform that there are two categories of cases. One category is of regular employees of the schools who have been served with termination order. The other category is of employees who were on probation and who had been issued letters of confirmation but which letters of confirmation were withdrawn and termination letters issued. In the latter category of cases, withdrawal of letters of confirmation is also challenged.
3. Vide interim orders in all the petitions except W.P.(C) 2405/2010, the respondent schools were directed to maintain status quo. It is informed that by virtue of the said interim orders, all the petitioners are continuing in the employment of the respondent schools, except the petitioner in W.P.(C) No.2405/2010 who is stated to be out of employment.
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4. The respondents have raised an objection as to the maintainability of the writ petitions, their contention being that the remedy, if any, of the petitioners is before the Delhi School Tribunal under Section 8(3) of the Delhi School Education Act, 1973. The senior counsel for the respondent schools also informs that in an intra court appeal preferred in some of the matters, the Division Bench had also directed the issue of maintainability to be decided first.
5. The counsels for the petitioners however contend that the availability of an alternative remedy does not absolutely bar the jurisdiction of this Court under Article 226 of the Constitution. They also invite attention to the consent order dated 11th May, 2010 in all the petitions, where it was inter alia agreed that during the pendency of these writ petitions, inquiry may be conducted by the respondent schools as per applicable rules and be completed within a period of six months. The counsels for the petitioners contend that the respondent schools having agreed to hold the inquiry and which has not been completed till now, cannot now be permitted to urge the maintainability of the writ petition.
6. The senior counsel for the respondent schools has contended that the petitioners are creating impediments in the inquiries which have been 4/12 commenced and are not allowing the same to be proceeded with and completed. It is stated that the applications have been filed for extension of time for completing the inquiry. It is further stated that the inquiries could not be completed within six months as agreed, also owing to the sheer number of cases.
7. It has been enquired as to what purpose, the present writ petitions would serve, once it has been agreed that an inquiry has to be conducted by the respondent schools in each of the cases. It is felt that upon said agreement having been reached, the earlier orders, impugned in these petitions, whether of termination simplicitor or of termination by revocation of confirmation of probation, would no longer survive and the parties hereafter would be governed by the outcome of the inquiry as agreed to be undertaken.
8. The counsels for the petitioners are agreeable that the writ petitions have become infructuous but state that the same were in consent order dated 11th May, 2010 (supra) kept pending since the petitioners had been granted interim protection and to enure the same for the benefit of the petitioners during the pendency of the inquiry.
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9. The senior counsel for the respondent schools on the contrary contends that the writ petitions were kept pending inspite of inquiry having been agreed upon so that the question of maintainability thereof can be gone into. It is contended that had the intent been to bind the parties to the outcome of inquiry proceedings, the writ petitions would have been disposed off on 11th May, 2010 and not kept pending; she however confirms that the order (supra) of the Division Bench is of prior to the consent order dated 11th May, 2010 (supra).
10. I am unable to agree with the contention of the respondent schools. The inquiry which was agreed upon and which is already stated to be underway could not have been intended to be an empty exercise. If the respondent schools are to be held to be entitled to dispense with the services of petitioners on the basis of the termination orders impugned in the petitions, the question of holding an inquiry in each case would not have arisen. The version of the counsels for the petitioners that the petitions were kept pending to enure interim protection to the petitioners during the pendency of the inquiry is believable and logical and in consonance with the order dated 11th May, 2010.
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11. Both sets of counsels have pleaded that the time for completion of inquiry be extended by six months and the writ petitions be kept pending till then.
12. I fail to see as to what purpose would be served in keeping these writ petitions pending. Some of the counsels for petitioners have contended that they have filed interim applications regarding other grievances viz of non- grant of increments, non-release of salaries or payment of salary at a rate less than entitlement. In this regard, I may notice that it is one of the terms of the consent order dated 11th May, 2010 that the respondent schools shall pay the unpaid salaries to each of the petitioners. The respondents schools are bound by the said order and if is in breach thereof, the petitioners shall have remedy thereagainst. The writ petitions cannot be kept pending to resolve such disputes which may arise between the parties from time to time and which otherwise are not subject matter of the writ petitions.
13. I am of the opinion that in view of the order dated 11 th May, 2010 the orders which were impugned in these petitions, are now of no avail and the parties have agreed to the same being not actionable. The relationship of the parties would hereafter be governed by the outcome of the inquiry agreed to be undertaken. The necessary corollary is, that the petitioners continue in the 7/12 respondent schools in the same position in which they were immediately before the orders impugned in the petitions. Axiomatically, there is no need also of continuing the interim order of status quo. However to avoid any further ambiguity, it is clarified that each of the petitioners shall continue in the same position as prior to the order impugned in each of the petitions and till the decision of the respondent schools in pursuance to the inquiry aforesaid.
14. Some of the counsels for the petitioners have contended that the remedy before the School Tribunal is not an alternative and efficacious remedy owing to the reluctance of the Tribunal in granting interim orders. This in my opinion cannot be a ground for by passing alternative remedy provided in pursuance to the mandate of the Constitution Bench of the Apex Court in T.M.A. Pai Foundation v. State of Karnataka AIR 2003 SC 355. If the petitioners have any grievance against non-grant of interim orders, their remedy is thereagainst but not to bypass the alternative remedy provided.
15. The counsels for the petitioners then seek extension of protection against disengagement, for two weeks in the event of the report of inquiry proceedings being against them and fresh orders of their termination being passed. It is contended that such order is necessary to enable them to 8/12 approach the necessary fora and to obtain interim order against their termination. The senior counsel for respondent schools opposes. She contends that merely because fresh inquiry has been commenced cannot place the petitioners in any better position than what they would have been otherwise.
16. I have weighed the rival contentions. The parties had agreed to the petitions remaining pending till the fresh inquiry agreed being completed. For whatsoever reasons, the inquiry could not be completed. If the petitions are to be kept pending, the petitioners will be protected even in the event of fresh termination pursuant to such inquiry. The position which the petitioners would have enjoyed under the consent order cannot be changed by disposal of these petitions notwithstanding the inquiry having not been completed.
17. Accordingly, it is directed that the fresh orders if any of termination of services of petitioners, pursuant to inquiry in terms of order dated 11th May, 2010 be not implemented for a period of 15 days from communication to petitioners/dispatch by registered post AD at addresses of the petitioners.
18. As far as the grievance of the respondent schools of the petitioners not participating in the inquiry is concerned, the same can be allayed by 9/12 providing that if any of the petitioners default in the inquiry proceedings, Inquiry Officer/School shall be entitled to proceed in accordance with law. The counsels for the petitioners however controvert that the petitioners are not participating in the inquiry and assure that they will so participate.
19. It is stated that the petitioners in W.P.(C) No.10040, 10041, 10042, 10043, 10044, 10045, 10046, 10047 & 10048, 10050 and 11185 & 11186 all of 2009 have not been paid salary. The senior counsel for the respondent schools assures that 50% of the salary shall be released by 10 th June, 2011 and remaining 50% on 10th July, 2011.
20. As far as disputes of rate of salaries, increments etc. are concerned, the petitioners having been restored to the position as prior to the orders impugned in the petition would be entitled to avail the remedies therefore, including of approaching the Directorate of Education with representation against the school.
21. As far as the petitioner in W.P.(C) No.2405/2010 is concerned, since he is not continuing in employment, the respondent school is directed to complete the inquiry proceedings and pass the order thereon on or before 15th July, 2011. If the order is against him, he will have his remedies in law. 10/12
22. The challenge in W.P.(C) No.2411/2010 is to designation of the petitioner therein as a Sweeper; he claims that he was earlier employed as a Peon-cum-Helper. Since the said writ petition is also covered by the consent order dated 11th May, 2010, the inquiry in this case be limited to whether there has been any change in the designation of the petitioner and if so, whether the respondent school is entitled to do so or not.
23. The petitions are disposed of with the following directions/observations:-
a. The parties shall remain bound by the consent order dated 11 th May, 2010.
b. Owing to the said consent order dated 11th May, 2010, the orders of the respondent schools impugned in each of the petitions save W.P.(C) 2405/2010, are now no longer actionable.
c. Each of the petitioner/s save the petitioner in W.P.(C)2405/2010 shall continue in the same position as immediately prior to the orders impugned in the petitions and till fresh decision if any of the respondent schools in pursuance to the inquiry in terms of the consent order dated 11 th May, 2010.
11/12 d. That even if such fresh decision is against the petitioner/s, the same shall not be implemented for a period of 15 days from communication thereof to the petitioner/s dispatched by registered post AD at the addresses of the petitioners, to enable the petitioners to seek appropriate remedy with respect thereto. e. The petitioner/s are bound by their assurance to participate in the inquiry and not to create impediment thereto. Similarly the respondents are also bound by their assurances recorded herein above.
f. The position qua W.P.(C)2405/2010 and W.P.(C)2411/2010 shall be as aforesaid.
No order as to costs.
Dasti under signatures of court master.
RAJIV SAHAI ENDLAW, J MAY 30, 2011 pp ..
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