The Commanding Officer And Anr. vs Sudevi Khanna
2006 Latest Caselaw 178 Del

JUDGMENT

Markandeya Katju, C.J.

1. This writ appeal has been filed against the impugned judgment of the learned Single Judge dated 27.2.2002.

2. Heard counsel for the parties and perused the record.

3. The facts in detail have been set out in the judgment of the learned Single Judge and hence we are not repeating the same except where necessary.

4. It is alleged in paragraph 1 of the writ petition that the petitioner was a teacher working in a school run by an Army Unit, Army Headquarters Static Workshop (EME) Subroto Park, Delhi Cantt., in the name and style of "Nursery School Army HQ Static Workshop (EME) Subroto Park, New Delhi" for the last 22 years. It is alleged that the petitioner requested the respondent No. 2, the Commanding Officer, Army HQ Static Workshop (EME), Subroto Park to fix her pay in the prescribed pay structure but to no avail.

5. It is alleged that the petitioner prayed for regularization of her appointment to the respondents, but this annoyed the respondents and hence she has been removed from service without opportunity of hearing.

6. A counter affidavit was filed in the writ petition by the respondents and we have perused the same. In paragraph 2 of the same, it is stated that the respondent is not running any school in the name of Army HQ, Static Workshop (EME), Subroto Park.

7. The correct facts are that the Junior Commissioner Officers of the Army/OR who are posted at the workshop on their own framed a system locally to look after their children by taking help/assistance of the petitioner to take care of the wards below the age of 5 years on part time basis of 2 to 3 hours daily. In this system the Junior Commissioner Officer/OR used to contribute a small amount i.e., less than Rs. 50/- to be paid to the caretaker for the wards. The petitioner was never appointed by the respondent and the petitioner never received any salary or allowance from the department of the respondent. Whatever she received was as a contribution voluntarily given by the JCOs/OR whose children were being looked after by the petitioner.

8. In paragraph 4 of the counter affidavit, it is stated that no school is run by the respondent and no accommodation was given for this purpose. It was only a crèche, and since the number of children coming to the crèche were only 5 or 6 and none of the parents wanted to contribute more than Rs. 50/- per month, hence the crèche was closed by the common consent of the parents.

9. The learned Single Judge by judgment dated 27.2.2002 has allowed the petition and hence this appeal.

10. In our opinion this appeal deserves to be allowed. It is evident from the facts that there was no school at all in which the writ petitioner was working. It was only a crèche running on the voluntary contributions by the JCOs/OR in the Indian Army, and since there was no sufficient contribution the crèche was closed down.

11. The learned Single Judge only relied on an experience certificate given by the commanding officer but in our opinion this will not create any right in the writ petitioner. Since there is no school obviously the prayer in the writ petition could not be granted.

12. The appeal is, therefore, allowed and the impugned judgment of the learned Single Judge is set aside and the writ petition is dismissed.