Anju Pahwa vs Child Education Society & Ors.
1998 Latest Caselaw 525 Del

ORDER

Manmohan Sarin, J.

1. The petitioner, a Teacher by vocation, by this writ petition seeks to challenge the validity of the order of termination of service dated 3.9.1993, issued by respondent No.3 as also the order of the Appellate School Tribunal (hereinafter referred to as "Tribunal"), dated 1.8.1994, dismissing her appeal bearing No.36/93, against the order of termination. Apart from seeking quashing of the impugned orders of termination dated 3.9.1993 and order dated 1.8.1994 of the Tribunal, dismissing the appeal, petitioner seeks a direction for reinstatement, with all attendant consequential benefits.

2. The facts in brief leading to the filing of the present writ petition may be noticed:

(i) The petitioner is "BA(Hons.)" graduate and had completed her Nursery Teachers Training. The petitioner was appointed as an Assistant Teacher in the Montessory Department of respondent No.2-School on 16.7.1985. She was confirmed and made permanent in service on 16.7.1987.

(ii) Respondent No.1, i.e., Child Education Society, is a Society registered under the Societies Registration Act, with the main object of imparting education and has established the "Bal Bharti Schools". Respondent No.2 is the Bal Bharti School at Sir Ganga Ram Hospital Marg, New Delhi and respondent No.3 is the Bal Bharti School, Sector 20 NOIDA, U.P., while Director of Education, Delhi is imp leaded as respondent No.4. The petitioner claims that respondent No.1 is running a number of schools in the name of Bal Bharti Public Schools both within and outside Delhi. Respondent No.2 School, i.e., the School at Sir Ganga Ram Hospital Marg is called the main school while others are stated to be its branches and units. It is claimed that the Managing Committee of the Society in different combination forms the manag-

ing committee of individual schools. The recruitment for various branches and units is carried out at the main school and the teachers are transferred from one unit/branch schools to another.

3. The petitioner claims that in April, 1992, respondent No.3 school at NOIDA was opened. The petitioner, who was having a small child at that time and was living in Mayur Vihar, sought a transfer to the NOIDA School, since the same was close to her residence, enabling her to have some more time with her child. The Principal designate of the Montessori Branch of respondent No.3, endorsed and supported the said proposal. Respondents No.1 & 2 readily agreed for the same stating the same to be in the interest of the new school as well as of the petitioner. The petitioner claims that she was induced to submit a letter of resignation, requesting waiver of three months notice, so as to expedite the transfer of the petitioner to the NOIDA School. The petitioner claims that she was assured that the resignation letter was for record purposes and would not be used in any manner to affect her permanent status, seniority and her emoluments which would remain protected on transfer. The petitioner claims that she accordingly gave the letter of resignation on 21.4.1992 and in good faith joined duties at NOIDA branch of respondent No.2 on 22.4.1992. Respondent No.3 issued an appointment letter dated 26.4.1992, in terms of which the petitioner had applied for the appointment on 9.4.1992 and having been interviewed she was placed on probation for a period of one year. The petitioner claims she protested against the said letter, however, she was assured by the Incharge of respondent No.3; that the standard appointment letter had been issued to meet audit requirements and that probationer clause would not be applicable to her. However, she was granted all the benefits of transfer, namely, her earned leave, protection of pay, continuity of service, benefits of accumulated leave, transfer of her service book, continuance of her provident fund account with respondent No.2 as well as salary for summer vacation, which was not available to probationers.

4. The petitioner, who expected to be appointed as the Teacher Incharge of the Montessory Department by respondent No.3 school, was distressed to find one Mrs. Pasricha, to whose selection, the petitioner was a party, appointed to head the branch duties. The petitioner also submitted a representation dated 2.12.1992. The petitioner also made representation to the Chairman of the Managing Committee of respondent No.3 School, but to no avail. The petitioner claims that despite pressures, she did not withdraw the said representations. The petitioner claims to have incurred the displeasure of the Chairman, Shri O.P. Bhutani and she was issued a letter purporting to extend her probation on grounds of poor conduct and performance till 31.10.1993 and she was called upon to show improvement. The petitioner claims that the situation got aggravated on the petitioner taking up the grievances of the parents, with regard to hardship being faced by students in the school bus, which was overcrowded.

5. On 3.9.1993, the petitioner was called by the said Shri Bhutani and asked to submit her resignation. On her declining to do so, she was handed over a letter of termination of service with immediate effect. The petitioner submitted a representation dated 13.9.1993 against termination of service, but there was no response. A Legal Notice dated 23.11.1993 was issued. There being no response, the petitioner filed an appeal bearing Appeal No.36/93 before the Appellate School Tribunal. The respondents instead of filing a reply to the appeal objected to the jurisdiction, which culminated in passing of the impugned order.

6. The petitioner in support of the writ petition has alleged the following:

a) The petitioner continued to be a permanent employee of respondent No.1 and 2 and her move to NOIDA branch-respondent No.3 and was de-facto de jure only a transfer and not otherwise. The purported resignation of the petitioner was non-est in law since the same was obtained by deceit, undue influence, misrepresentation and was never intended to be acted upon.

b) Resignation was of no effect since it was neither sent to nor approved by the Director of Education as per Rule 114-A of the Delhi School Education Rules. It was also not based on the approval of the Competent Authority, the Managing Committee of respondent No.2. The statutory protection of service under the Delhi School Education Act could not have been taken away from her by this facade of resignation. It was incredible that an employee would voluntarily resign and give up her permanent status and privilege of service and statutory protection merely to take up some job in another unit of the employer, without any increase in emoluments as a fresh employee on probation. Respondents No.1, 2 & 3 were not separate legal entities. The Managing Committee of the School cannot be regarded as a legal entity distinct from the Society, which runs the School. The School building, land etc. of respondents No.2 & 3 are admittedly owned by respondent No.1. Respondent No.3 does not have any other status in law other than that of branch unit of respondents No.1 & 2.

7. Learned counsel for the petitioner, Mr.K.T.Anantharaman, while elaborating the ground in para 6 (a & b) above, submitted that the resignation of the petitioner should be held to nonest, in which case the petitioner would continue to be an employee of respondent Nos.1 and 2, who are amenable and subject to the jurisdiction of the Tribunal and the termination of service even on 21.4.1992 and 3.9.1993, would be hit by Section 8(3) of the Delhi School Education Act and Rule 114-A of the Delhi School Education Rules.

8. The case of the respondents in brief is that the respondents No.1 to 3 are not amenable to writ jurisdiction. The Society-respondent No.1 is not State or an authority within the meaning of Article 12 of the Constitution of India. Respondent No.2 is an unaided and private recognized school, which does not receive any aid or grant from the Government. Respondent No.3 is the unaided private school not receiving any aid or grant from the Government and is situated in NOIDA, Uttar Pradesh. Apart from the maintainability of the writ petition under article 226 of the Constitution of India, it is contended that the respondents No.2 & 3 are separate and independent schools having their own managing committees and scheme of management. Provisions of Delhi School Education Act, 1973 are not applicable to respondent No.3-School as it is outside the National Capital Territory, Delhi. The petitioner having taken up employment with respondent No.3 which is located in U.P., the appeal filed under section 8(3) of the Delhi School Education Act was misconceived and not maintainable, the petitioner at the relevant time being employed with respondent No.3 school at NOIDA and her service having been terminated in NOIDA itself. Respondent also placed reliance on Wg.Cdr. S.K. Singh Vs. Lt. Governor, U.T. of Delhi & Others (AIR 1987 (1) S.L.R. 99) in support of his contention that the Society and the respondent No.3-School were not amenable to writ jurisdiction. A Single Bench of this Court in the cited case, held that the Managing Committee of the School was neither a statutory body nor an authority within the meaning of Article 12 of the Constitution of India and even if the order of termination had been made in breach or violation of statutory provisions, it would not warrant writ jurisdiction of the Court under Article 226 of the Constitution of India for quashing the impugned order of termination. The Court also held that very rarely does the Court under Article 226 of the Constitution of India give a declaration with regard to the continuance of service. In the cited case, it may be noted that the Court had reached the conclusion that the termination of the service was illegal and in violation of the rules, yet it declined to issue the writ. Respondents in the present case contend that the petitioner had voluntarily submitted her resignation acted thereupon and accepted her fresh appointment with respondent No.3 School at NOIDA.

9. Learned counsel for the petitioner also emphasised that in the instant case, respondent No.3-School was run and controlled by respondent No.1-Society and had some common members of the Managing Committee. The Chairman and Secretary of respondent No.3-School are from the Board of Management of respondent No.1-Society. He also referred to Rules 50 (1) and 59 (q), wherein the Managing Committee is subject to the supervision of trust, by which it is run, to submit that respondent No.1-Society was controlling and running the various Schools. Learned counsel submitted that there were several instances of transfers and movements within the various branches. He submitted that the Delhi School Education Act, does not create a School as a specific juristic entity different from the Society. Learned counsel urged the Court to interfere in the matter to do complete justice between the parties. Learned counsel emphasised that it was the Court jurisdiction to reach injustice wherever it was existing. Learned counsel submitted that in the instant case, the acceptance of the so called resignation and termi-

nation of service entailed violation of the statutory provisions viz. Section 8 (2) and 8(3) of the Act. The resignation could not have been accepted without the approval of the Director of Education and was violative of Rules 105 and 114-A of the Delhi School Education Rules. Even the termination of services of a probationer required prior approval.

10. On the question of the Society being amenable to the writ jurisdiction, learned counsel for the petitioner placed reliance on L.R. Sharma Vs. Delhi Admn. (AIR 1982 (1) S.L.R. 526) to submit that the Managing Committee cannot be regarded as a legal entity distinct from the Society or Trust which runs the School. Reliance is also placed on Safdarjung Enclave Education Society Vs. M.C.D. , in support of the contention that the Education Act, does not create a School as a specific juristic entity different from the Society.

11. I have heard learned counsel for the parties, perused the material on record and considered the rival submissions, as narrated above. The Tribunal had dismissed the appeal as not being maintainable under Section 8(3) of the Act, holding that the petitioner was employed with the Bal Bharti Public School, NOIDA, respondent No.3 herein, which falls within the State of U.P. The provisions of Delhi School Education Act, accordingly would not apply to the petitioner or respondent No.3-School. The petitioner, as noted above has assailed the 'resignation' as being "non-est" and claims that the petitioner would continue to be employee of respondent Nos.1 and 2 at Delhi and, accordingly, the 'Tribunal' would have the jurisdiction to entertain the matter. The crucial question, which requires consideration is whether the resignation of the petitioner was nonest, as claimed by the petitioner or the same had been duly accepted and acted upon with the consent of the petitioner? The sequel to this would be whether the petitioner's appointment with the respondent No.3 was merely a transfer or it was a fresh appointment?

12. I find that the case attempted to be set up by the petitioner in this regard is devoid of merit. The petitioner had been employed with respondent No.2 on 16.7.1985. She had been confirmed and made permanent in service on 16.7.1987. It is nearly 7 years after her employment that respondent No.3- School was set up by respondent No.1-Society. The petitioner herself admits that it was her request for being moved to respondent No.3-School, that was considered and found as convenient to her, and of mutual benefit. The petitioner had signed and given her resignation letter, with a request for waiver of three months notice period. The petitioner also admits that she filled up a 'proforma' furnishing her bio-data for being appointed to respondent No.3-School. The appointment letter was issued to the petitioner dated 26.4.1992, which was duly signed by the petitioner in token of receipt. The said letter of appointment was accepted without any demur or protest. There was no protest even when the period of probation of the petitioner was extended on 23.4.1993. It is also the admitted position that the petitioner commenced performing her duties at NOIDA with respondent No.3-School, pursuant to her resignation and acceptance as aforesaid. The petitioner herself admits that she was interested in moving to NOIDA School as the same was convenient to her on account of a small child and proximity to her residence at Mayur Vihar. The version now sought to be set up is that the petitioner had protested against the letter of resignation, but was assured that it was not to be used in any manner prejudicial to the petitioner, does not appear to be credible and inspire any confidence. Further, the petitioner though feebly claims to have protested against the appointment letter, including a probation period, but her reservation appears to have assuaged by the Principal of respondent No.3-School, stating that the appointment letter had been issued only to meet audit requirements, similarly does not appear to be credible or inspiring any confidence. Admittedly, there was no protest by the petitioner rather the petitioner acted upon the resignation and accepted the appointment letter. It appears that the petitioner's grievance was not so much with the 'resignation letter' and terms of the appointment letter, rather it was on account of the petitioner being denied the post of teacher incharge of Montessori department. Be it may, there is nothing on record to show that from April, 1992 till the letter of termination was issued on 3.9.1993, the petitioner ever protested with regard to the resignation letter or the terms of the appointment letter. I am in full agreement with the findings reached by the Tribunal that the appointment of the petitioner with respondent No.3-School was a fresh appointment as Assistant Teacher. The mere factum of the petitioner being employed on the salary, she was drawing earlier in Delhi as well as continuance of the service book and transfer of provident fund, would not make this a case of transfer or vitiate the resignation which was tendered and acted upon. The mere fact that respondent No.1-Society owns the land, on which respondent No.3-School is located or some of the members of its Managing Committee also happen to be members of the Managing Committee would not result in effacing the character of respondent No.3, as an independent School. The respondent No.3-School is stated to be a separate School, having its own Managing Committee with an officer from the NOIDA Authority, as a member of the Managing Committee and its own scheme of management. The provisions of the Delhi School Education Act, 1973 and the Rules framed thereunder are not applicable to respondent No.3-School and petitioner, who was employed with and was working till her termination with and at the respondent No.3-School.

13. Petitioner has cited number of authorities with regard to exercise of writ jurisdiction in case of termination of services of an employee in violation of statutory provisions. Petitioner has also cited authorities in support of his submission that recognised Schools are bound to follow the statute and cannot defy the statute on the ground that it is not an 'Au-

thority' or 'State' within the meaning of Article 12 of the Constitution of India. In the view that has been taken regarding the tendering of resignation by the petitioner, its acceptance and both the parties acting thereupon as well as the fresh appointment of the petitioner with the respondent No.3 School at NOIDA, it is not necessary to deal with the above authorities or decide the respondent's submission that even respondent No.1-Society and respondent No.2 would not be amenable to writ jurisdiction. Accordingly the authorities cited by the parties in this regard, need not be considered. As regards the Court exercising writ jurisdiction where injustice is done, I may mention that the parties had explored the possibility of a settlement and respondents, at the suggestion of the Court, were not averse to considering a fresh appointment for the petitioner, but the petitioner was insistent upon quashing of the order of termination and reinstatement with all benefits. Hence, no settlement could be reached. I find that the impugned order of Tribunal does not suffer from any infirmity or error, calling for interference in the exercise of discretion in writ jurisdiction by this Court. The writ petition under Article 226 of the Constitution of India, is dismissed as not maintainable and being without merit, as discussed.