Bir Bahadur Singh Rathour vs Director Of Education And Ors.
2007 Latest Caselaw 1703 Del

JUDGMENT

Mukundakam Sharma, C.J.

1. This appeal is directed against the judgment and order dated 3rd November, 2006 passed by the learned Single Judge dismissing the writ petition filed by the appellant herein. The aforesaid writ petition was filed praying for quashing of the order of transfer dated 16th July, 2005 and also for setting aside the order of suspension, memo of charge and the order initiating domestic inquiry.

2. In order to properly appreciate the contentions raised by the parties herein, it would be necessary to set out certain background facts leading to filing of the writ petition as also this appeal.

3. The appellant herein was appointed as LDC in Mahasaya Chunni Lal Saraswati Bal Mandir by Samarth Shiksha Samiti, Mata Mandir Gali, Jhandewalan, New Delhi, under order dated 9th May, 1992. Since a number of contentions have been raised based on the said order of appointment, we deem it appropriate to extract the relevant portions of the said order, which read as under:

Samarth Shiksha Samandewalan, New Delhi-55 09 May, 1992

OFFICE MEMORANDUM

According to decision dated 1.1.1992 of the Selection Committee, Shri Vir Bahadur Singh is appointed as LDC on Govt. pay scale 950-20-1150-EB-25-1500 + admissible usual allowance payable to Bal Mandirs on the permanent basis in Mahasaya Chunni Lal Saraswati Bal Mandir, Hari Nagar, L-block, on the following terms. His appointment will take place w.e.f. 1st April, 1992 but he will remain posted in Central Office of the Samiti till further orders of the Samiti.

1. x x x

2. x x x

3. He can be relieved from his services in initial probation period or extended period of probation after giving one month's notice or one month pay. Similarly if he wants to relieve himself from service during the period of probation he will have to give one month prior notice or in the absence of notice he will have to deposit one month pay. After his services are made permanent if the Samiti wants to relieve him of the service, he will be given three months prior notice or deposit three months salary. Similarly if he wants to relieve himself from service he will have to give three months prior notice or will deposit pay equivalent to three months pay.

4. During service period he can be transferred in Samiti or in any Bal Mandir under the Samiti.

5. x x x

6. During the period of service he will abide by the discipline of the Samiti.

7. He will have to apply for service at any other place or getting higher education after getting the permission in writing from Samiti for initimating the Samiti in writing.

8. While reposing trust in the aims and objects of the Samiti he will participate in all activities organized by the Samiti with devotion.

9. The annual increment which has been mentioned in the aforesaid Grade will neither be automatically granted nor as a matter of right but the same will be given on the obedience of the orders of the senior officers with honesty, punctuality, good behavior with his colleagues and the rules of conduct (as mentioned in Rule 123 of the Delhi Education Act).

10.x x x

11. During the period of service he will have to obey all the rules as mentioned in Chapter-9 of Delhi Education Act.

12. x x x

13. x x x

14. x x x

15. In case he failed to comply with the aforesaid conditions and the rules as mentioned in 123 of Delhi Education Act the Samiti will have full right to remove him from service according to law.

4. Under order dated 16th July, 2005 the appellant was transferred to the office of the Samiti. While working in the office of the Samiti, certain misconducts were alleged by the respondent No. 2 against the appellant. On the basis thereof, the the respondent No. 2 passed an order placing the appellant under suspension and also issued a memorandum of charge and another order initiating domestic inquiry. The aforesaid action on the part of the respondent No. 2 was challenged by filing the aforesaid writ petition on the ground that the appellant is governed by the provisions of the Delhi School Education Act, 1973 and consequently, disciplinary proceeding could be initiated only in accordance with the said Act and Rules framed there under, particularly Rule 118 of the Delhi School Education Rules. The contention of the appellant was that since his appointed was to the school, provisions of the Delhi School Education Act would apply and, therefore, he could be be proceeded with only in accordance with the provisions of Rule 118 and not in any other manner, as done by the Samiti.

5. The Directorate of Education, who was party-respondent in the writ petition and in this appeal, has supported the stand of the appellant herein. Directorate of Education has stated that the provisions of Delhi School Education Act and Rules framed there under are applicable to the appellant as he was appointed as an LDC in the school and in that view of the matter unless and until compliance is made to the aforesaid statutes, particularly Rules 118, 119 and 120 of the Rules, no disciplinary action could be initiated and continued. The Act and the Rules do not permit disciplinary action in any other manner.

6. The aforesaid contention raised by the appellant however did not find favor of the learned Single Judge who held that the appellant was appointed by the Samiti and that the alleged misconduct of the appellant was also detected by the Samiti, therefore Samiti can initiate action, independent of the provisions of the Delhi School Education Act and Rules made there under.

7. The aforesaid findings recorded by the learned Single Judge are under challenge in this appeal on which we have heard the learned Counsel appearing for the parties.

8. Before us also the Directorate of Education supports the stand of the appellant that in terms of the appointment letter dated 9th May, 1992, the appellant was appointed to the Mahasaya Chunni Lal Sarswati Bal Mandir, Hari Nagar. It is clear from the aforesaid letter that although the appellant was appointed in the aforesaid school but he would remain posted in Central Office of the Samiti till further orders. According to the appellant and the Directorate of Education, it was like taking work from somebody appointed to the school in a diverted capacity and, therefore, for all practical intent and purposes the appellant was appointed as an employee of the Saraswati Bal Mandir, a recognised school.

9. We find force in the aforesaid stand of the appellant and the Directorate of Education. A bare reading of the appointment letter would make it clear that the appellant was appointed to the School but his services were being utilised in the Central office of the Samiti which is managing of the School. Various clauses in the appointment letter again and again refer to the Delhi School Education Act. In Clause-11 it is mentioned that during the period of service the appellant will have to obey all Rules as mentioned in Chapter-9 of the Delhi Education Rules. Reference was also made to Rule 123 of the Delhi School Education Rules. The intention therefore is explicit that for all intent and purpose provisions of Delhi School Education Act and the Rules made there under would be applicable to the services of the appellant. In our considered opinion therefore it cannot be said that the Samiti's Central Office will have control over the services of the appellant. The aforesaid stand taken by the Samiti who is running various schools in Delhi is found to be without any basis as the appointment letter itself indicates the nature of appointment of the appellant. The fact that though the appellant was appointed to the school but his services were utilised by the Samiti's Central Office would not change the position that he for all practical intents and purposes is an employee of the school and will be governed by the Delhi School Education Act and Rules. Consequently the provision of Rules 118 and other provisions would be applicable.

10. The aforesaid conclusions also find force and support from the Smiti's own letter dated 22nd January, 2007 which is placed on record as Annexure -2 to CM No. 12366/2007. The said letter was written by the General Secretary of the Samiti to the appellant informing him that subsistence allowance is paid to him as per the provisions of Delhi School Education Act, 1973. Reference may also be made to the experience certificate given to the appellant by the School to which the appellant was appointed. The said experience certificate is dated 5th April, 1995 and reads as under:

It is certified that Shri Vir Bahadur Singh son of Shri Gorender Singh has been working in this School as LDC on permanent appointment w.e.f. 01.04.1992. Since he was entrusted with the assignment in this School, he did his work with full devotion and honesty. In the beginning he was given the job as the reception which he performed in a methodical manner. Keeping in view his experience of accounts work he was entrusted with the job of "Vidyalaya Khata" and "Student Fund", he performed his duty with full efficiency and also has given extra time to the school according to requirements.

His work is appreciable and his behavior also commendable.

11. The said letter also makes it explicit that the appellant was working in the school as LDC on permanent appointment with effect from 1st April, 1992 and that he was entrusted with the assignment in the said School. He was given promotion in the said school and was also regularised. Therefore, for all practical intents and purposes he must be considered as employed in the school and, therefore, the provisions of Delhi School Education Act and Rules would apply to the services of the appellant.

12. If the Samiti and the school intent to take any disciplinary action against the appellant, they will have to follow the procedure laid down in the Delhi School Education Act and the Rules framed there under. In terms of the aforesaid order we set aside the impugned order passed by the learned Single Judge leaving it open to the school to proceed in the matter in accordance with law and in terms of this order.

The appeal and the application for stay stand disposed of.