Delhi High Court
Anita Mishra vs Govt. Of N.C.T. Of Delhi And Ors. on 25 October, 2007
Author: M Sharma
Bench: M Sharma, S Khanna
JUDGMENT
Mukundakam Sharma, C.J.
1.This appeal is directed against the order dated 17th February, 2003 passed by the learned Single Judge dismissing the writ petition filed by the appellant. The appellant was appointed as an Assistant Teacher in Government Girls Senior Secondary School No. 1, Shakarpur, Delhi by an order dated 30th August, 1997. A copy of the said order is placed on record. A bare perusal of the aforesaid order would indicate that it was issued by the Principal of Government Girls Senior Secondary School No. 1, Shakarpur, Delhi. The appointment letter stipulated the following terms and conditions:
1.The appointment is purely temporary and on emergent basis which may be terminated at any time without any notice.
2. The appointment shall not confer any right or claim whatsoever of regular appointment, seniority or any other kind of benefit.
3. She will be paid a fixed salary of Rs. 1,000/- (Rs. One thousand only) per month to be collected from the students through P.T.A. fund.
4. In case, she avails of any kind of leave, during the period of her stay in the school, necessary deductions from salary to that extent shall be made.
5. She will not claim any right for absorption or higher pay at any stage in future.
6. She is directed to report for duty w.e.f. 1.9.97 (F/N).
2. The appellant filed the writ petition praying for a direction to the respondents to regularise her services as permanent Assistant Teacher in the school. The learned Single Judge considered the terms and conditions of her appointment and on hearing the counsel for the parties held that the aforesaid appointment of the appellant was made only on emergent basis and her salary was to be paid out of the funds to be collected through the Parent Teacher Association funds. It was also held that the appointment of the appellant would not confer any right upon her to claim regularisation. It was observed that the appellant having been appointed in violation of the recruitment rules would not have any right to be regularised in service. Consequently, the writ petition was dismissed.
3. Being aggrieved by the aforesaid judgment, the present appeal was filed on which we have heard the learned Counsel appearing for the parties. Counsel for the parties have also drawn our attention to the terms and conditions of appointment as spelt out in the order dated 30th August, 1997. The said order clearly stipulated that the appointment of the appellant was a temporary appointment on emergent basis. She was also directed to be paid a fixed salary of Rs. 1,000/- per month, which was to be paid from the money collected through the Parent Teacher Association Fund. The order was issued by the Principal of the school, who was not the appointing authority as the aforesaid school was a Government school. The Director of Education was the appointing authority of an Assistant Teacher in a Government school and in respect of the aforesaid, no dispute could be raised. Procedure for appointment of an Assistant Teacher is also laid down in the statutory rules, which governs such appointment. The aforesaid appointment, therefore, was against the said procedure and the same being in violation of the statutory rules, no order for regularisation can be made on the basis of such an order of appointment.
4. Counsel appearing for the appellant has also submitted before us that even if it is held that the aforesaid appointment of the appellant was irregular and in violation of the provisions of the rules, yet the respondent cannot take advantage of their own wrong and/or deny regularisation of the services of the appellant since she has rendered about four years of service.
5. We are unable to agree with the counsel for the appellant and we are not persuaded by the aforesaid submissions. If a wrong is committed, the same has to be rectified and such a wrong cannot be allowed to be perpetuated only because she was allowed to work in that school on the basis of such an illegal order for a period of about 3/4 years. The appointment was illegal and in violation of the provisions of the rules and non est in the eyes of law. On the basis of an illegal order, the appellant cannot claim a legal right for regularisation of her services and even allowed to continue in service. The said order of appointment being illegal and having been issued by the incompetent authority, is void ab initio and same would not confer any right on the appellant to claim regularisation in service. In this connection, we may refer to the decision of the Supreme Court in Secretary, State of Karnataka and Ors. v. Uma Devi and Ors. . The ratio of the aforesaid decision is clearly applicable to the facts of the present case.
6. In that view of the matter, we find no merit in this appeal, which is dismissed.
7. Counsel appearing for the appellant, however, submits that the appellant has not been paid salary for the period during which she had actually worked in the school pursuant to the stay order passed by this Court. The aforesaid grievance of the appellant can be raised before the school authorities, who shall look into the matter and if the appellant has not been paid salary for the period she had actually worked, she would be paid such unpaid salary from the PTA fund of the school. We, however, make it clear that the payment of the aforesaid salary would not confer any right on the appellant for making any claim for regularisation etc.
