Sahdeo Singh Solanki vs Government Of Nct Of Delhi
1996 Latest Caselaw 902 Del

JUDGMENT

K.S. Gupta, J.

(1) This writ petition under articles 226 of the Constitution has been filed by Dr. Sahdeo Singh Solanki on the allegations that he was selected and appointed as Principal of Jindal Public School, respondent No.2, which is a private recognized and affiliated secondary school, vide letter dated 4.8.93 in the pay scale of Rs. 3000-4500 and he joined the school in that capacity on 4.8.93 itself. He was placed on probation for a period of one year. As his appointment was subject to the approval of Director of Education, vide letter dated 13.10.93 the requisite approval was sought and the same was granted by respondent No.1. It is further alleged that the petitioner was issued a letter dated 2.8.94 whereby he was informed that he has been confirmed w.e.f. 4.8.94 on completion of one year probation period but unfortunately copy of that letter is not available with him. Respondent No.2 filed annual return for the year 1993-94 alongwith a copy of the staff statement as on 20.9.94 with the office of respondent No.1 and in that statement he has been shown as confirmed Principal w.e.f. 4.8.94 on a basic salary of Rs. 3100.00 per month. It is stated that the petitioner was shocked to receive letter dated 19.11.94 by which his service was terminated with immediate effect by respondent No.3. Action of respondent no.3 in terminating his service was in violation of rule 105 of Delhi School Education Rules, 1973 inasmuch as no prior approval of the Director of Education was obtained before terminating the service. Further, as he was declared confirmed Principal w.e.f. 4.8.94 on completion of one year probation period, his service could have been terminated only by following the procedure as contained in rule 120 of the said Rules. It is pleaded that even if for the sake of argument it is believed that his period of probation was extended by another year, there has again been violation of said rule 105 as that extension was without obtaining the prior approval of the Director of Education. Vide letter dated 25.7.95 the Education Officer, Zone 21 (SW), Directorate of Education has conveyed the decision of the Director of Education to respondents 2 and 3 that the termination of the petitioner's service is not approved as it was in violation of Delhi School Education Rules,1973. It is alleged that the copy of the letter dated 25.7.95 was recieved by the petitioner on 8.8.95 and he reported for duty on 9.8.95 but as the President/Secretary of the school was not available in the school, he could not formally join the duty on that date. 10th August, 1995 was a gazetted holiday and it was only on 11.8.95 that he could report for duty to respondent No.2. He was, however, not permitted to join the duty nor the joining report was accepted . It was prayed that await of mandamus or any other appropriate writ, order or direction may be issued to respondents 2 and 3 to allow the petitioner to join as Principal of respondent No.2 school in terms of the letter dated 25.7.95 issued by the office of respondent No.1 with all consequential benefits i.e. arrears of pay and allowances, interest thereon and the seniority and continuity of the job etc. Declaration has also been sought that the petitioner is a confirmed Principal of respondent No.2 school as he has completed the probation period.

(2) In response to show cause notice, respondents 2 and 3 have filed a joint reply on the affidavit of Anil Jindal. By way of preliminary objections, it is alleged that the respondents being a private body are not amenable to writ jurisdiction and the petitioner can only seek damages in a civil court if his service was terminated illegally. It is further pleaded that an appeal lies against the order of termination of the petitioner's service before the School Tribunal under the Delhi School Education Act, 1973 and as the petitioner has not availed of that remedy he is debarred from invoking the writ jurisdiction of this court. Writ is also alleged to have become infructuous as the respondents have already appointed another Principal in the school. On merits , is not denied that the petitioner was appointed as a Principal in respondent No.2 school vide appointment letter dated 4.8.93 and he was placed on probation for a period of one year. It is alleged that that period of probation was extended by another year vide letter dated 2.8.94 and the Director of Education was moved for seeking the approval of the extension of the probation period. As no reply was received from Director of Education, it was .deemed that the approval had been granted by him. It is emphatically denied that any letter dated 2.8.94 was issued confirming the appointment of the petitioner as Principal as alleged. It is stated that the letter dated 2.8.94 whereby the probation period of the petitioner was extended by another year was duly received by the petitioner. It is admitted that the answering respondents did file annual return for the year 1993-94 with the office of the Deputy Director of Education alongwith a copy of the staff statement as alleged. It is alleged that due to oversight date of confirmation as against the petitioner was shown as 4.8.94 therein. That error was not .noticed and the President and Secretary appended their signatures on the annual return in good faith. It is alleged that as per Clause-C of the letter of appointment dated 4.8.93 the service of the petitioner could be terminated without assigning any reason or giving notice during the period of probation and the petitioner accepted the appointment subject to that term and condition. Based on the conduct of the petitioner and the innumerable complaints received against him, answering respondents were left with no option but to terminate his service. Resolution terminating the service of the petitioner was passed by the Managing Committee on 14.11.94 and the letter seeking appr.oval of the Director of Education was sent on the same day by registered post. As no disapproval was communicated by the Director of Education, his approval was deemed to have been granted and the petitioner's service terminated vide letter dated 19.11.94. It is denied that there has been any violation of rule 105 of the Delhi School Education Rules, 1973 as alleged.

(3) In the rejoinder to the counter-affidavit filed on behalf of respondents 2 and 3, petitioner has alleged that the respondents are amenable to writ jurisdiction in view of the decision in V.S.Rahi vs. Lt.Gouernor of Delhi and others, . It is stated that the petitioner neither has a right to appeal nor can he approach the Tribunal for reliefs claimed under Section 11 of the Delhi School Education Act, 1973. It is emphatically denied that the letter dated 2.8.94 (annexure R-11) was acknowledged by the petitioner. His signature thereon has been fabricated by respondents 2 and 3. It is further denied that the petitioner misled the management and got the signatures on the annual return as alleged.

(4) By way of preliminary objection No.3 in the joint reply, respondents 2 and 3 have raised the plea that as they are a private body they are not amenable to the writ jurisdiction of this court. In V.S.Rahi vs The Lt.Governor of Delhi & others one of the preliminary questions taken was whether the petitioner can invoke the writ jurisdiction to seek relief which was against a private school and relying on the decision of the Supreme Court in Miss Raj Soni vs Air Officer Incharge Administration and Another that question was answered in affirmative. In view of the two decisions aforementioned, preliminary objection No.3 deserves to be rejected being without merit.

(5) Respondents 2 and 3 do not dispute that the Delhi School Education Act, 1973 and the rules made thereunder are applicable to them. It is also the admitted case of the parties that the petitioner was appointed as Principal of respondent No.2 school vide letter dated 4.8.93 and he was placed on probation for a period of one year. However, the case of respondents 2 and 3 is that the probation period was extended by another year vide letter dated 2.8.94 and a copy thereof was sent to the Director of Education for according approval and as no reply was received it was deemed that the necessary approval has been granted by him. On the contrary, petitioner alleges that vide letter dated 2.8.94 he was confirmed as Principal w.e.f. 4.8.94 by respondent No.3. Further according to him, assuming for the sake of argument that the probation period was extended by another year in terms of the letter dated 2.8.94, that extension was in violation of rule 105 of Delhi School Education Rules, 1973 inasmuch as prior approval of the Director of Education was not obtained in that behalf. Petitioner has not filed the letter dated 2.8.94 whereby he was informed that he had been confirmed w.e.f.4.8.94 as Principal of respondent No.2 school. Annexure R-12 is the copy of the letter dated 2.8.94 sent through registered post by Anil Jindal, Chairman of respondent No.2 school to the Director of Education. Annexure R-11 is stated to be the copy of that letter acknowledging the receipt thereof under the signature of the petitioner with the date as 2.8.94. If the petitioner's probation period was not extended by another one year beyond 4.8.94, there was hardly any occasion on the part of above Anil Jindal to have sent a copy thereof (annexure R-12) to the Director of Education for seeking approval of extension In the absence of the alleged letter dated 2.8.94 whereby petitioner was informed of his being confirmed w.e.f. 4.8.94, there seems to be no reason to disbelieve respondents 2 and 3 that the petitioner's period of probation was extended by another year beyond 4.8.94 vide letter dated 2.8.94 and he was not confirmed w.e.f. 4.8.94 as alleged by him. Sub-rule 1 of rule 105 of the Delhi School Education Rules,1973 which is relevant reads thus: "EVERY employee shall, on initial appointment, be on probation for a period of one year which may be extended by the appointing authority by another year [with the prior approval of the Director] and the 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. (PROVIDED that the provisions of this sub-rule relating to the prior approval of the Director in regard to the extension of the period of probation by another year, shall not apply in the case of an employee of a minority school: Provided Further that no termination from the service of an employee on probation shall be made by a school, other than a minority school, except with the revious approval of the Director)"

 (6) Obviously, said rule 105 (1) talks of prior approval of the Director of Education before the probation period is extended by the appointing authority by another year. Admittedly, by the time the above letter dated 2.8.94 was issued neither any approval was sought nor given by the-Director of Education for extending the period of probation of the petitioner for another year beyond 4.8.94 as required by said rule 105 (1). As regards deemed approval of the Director of Education in the matter, relevant portion of the letter dated 2.8.94 addressed to the Director of Education (Annexure R-12) reads thus:-    "SUB: Extension of probation period in respect of Principal Sh.S.S.Solanki. Dear Sir, (1) It is submitted that further to our letter No.JPS/RP/93 dated 4.8.93 the probation period of the above principal has been extended for a period of one more year as per clause (b) of the appointment letter. (2) The principal has duly acknowledged the receipt of this letter."  

 (7) Evidently, this letter was sent to the Director of Education for information without asking for his approval to extend the period of probation by another year by respondent No.3. That being so, it cannot be said that there was a deemed approval to extend the period of probation by another year by the Director of Education as pleaded by respondents 2 & 3. Grant or not grant of approval has to be by a speaking order, which in this case is lacking.   

(8) It is also not in dispute that previous approval of the Director of Education was not obtained by respondents 2 and 3 before the service of the petitioner was terminated with immediate effect vide letter dated 19.11.94 (annexure P-5) as required by the second proviso appended to sub-rule (1) of rule 105 of the Rules. In the reply respondents 2 and 3 have alleged that a resolution terminating the service of the petitioner was passed by the Managing Committee on 14.11.94 and the letter seeking approval of the Director of Education was sent on the same date by registered cover and as no disapproval was communicated by the Director of Education, he will be deemed to have granted the approval. In the ordinary course two days' time may have been taken in delivery of the letter dated 14.11.94 to the Director of Education as the same was sent by registered post. As the approval sought involved the termination of service of the petitioner, the Director of Education was supposed to satisfy himself about the genuineness of the grounds as disclosed in the above letter dated 14.11.94 before according the requisite approval. However, without allowing reasonable time to the Director of Education to satisfy himself in the matter and send his reply, respondent No.3 unilaterally proceeded to terminate the service of the petitioner vide letter dated 19.11.94 with immediate effect. Thus , could not be any deemed approval of the Director of Education to terminate the service of the petitioner as envisaged by second proviso appended to rule 105(1). Action of respondent No.3 in terminating the service of the petitioner w.e.f. 19.11.94 was, therefore, patently illegal.

(9) Contention advanced by the learned counsel of the respondents was that if the petitioner felt aggrieved by the order of termination of sendee, he ought have preferred an appeal against that order under Section 8(3) of the Delhi School Education Act, 1973 before the tribunal constituted under Section Ii of the Act and as he has not availed of that remedy, he is debarred from filing the present writ petition. In our view, sub-section (3) of Section 8 of the Act does not create an absolute bar to the maintainability of the writ petition and it is open to an aggrieved employee to assail the validity of an order which is patently illegal and void under the writ jurisdiction of the High Court under Article 226 of the Constitution.

(10) For the foregoing discussion, the petition is allowed with costs. The impugned order of termination is quashed and set aside. Respondent is directed to reinstate the petitioner forthwith as the Principal of respondent No.2 school with all consequential benefits in accordance with law, rules and regulations.