Delhi High Court
Gurpreet Kaur vs Delhi Sikh Gurudwara Management ... on 31 August, 2010
Author: Manmohan Singh
* HIGH COURT OF DELHI : NEW DELHI
WP (C) No. 354 of 2010
% Decided on: August 31, 2010
GURPREET KAUR ........Petitioner
Versus
DELHI SIKH GURUDWARA MANAGEMENT COMMITTEE & ORS.
....Respondents
and
WP (C) No. 355 of 2010
SHEELA DEVI ........Petitioner
Versus
DELHI SIKH GURUDWARA MANAGEMENT COMMITTEE & ORS.
....Respondents
and
WP (C) No. 357 of 2010
HARSIMRAN KAUR ........Petitioner
Versus
DELHI SIKH GURUDWARA MANAGEMENT COMMITTEE & ORS.
....Respondents
and
WP (C) No. 361 of 2010
AMRIT KAUR ........Petitioner
Versus
DELHI SIKH GURUDWARA MANAGEMENT COMMITTEE & ORS.
....Respondents
W.P.(C) No. 354/2010 & ors. Page 1 of 30
and
WP (C) No. 362 of 2010
TAJINDER KAUR ........Petitioner
Versus
DELHI SIKH GURUDWARA MANAGEMENT COMMITTEE & ORS.
....Respondents
and
WP (C) No. 375 of 2010
GURMEET KAUR ........Petitioner
Versus
DELHI SIKH GURUDWARA MANAGEMENT COMMITTEE & ORS.
....Respondents
and
WP (C) No. 377 of 2010
RAMANJEET KAUR ........Petitioner
Versus
DELHI SIKH GURUDWARA MANAGEMENT COMMITTEE & ORS.
....Respondents
and
WP (C) No. 379 of 2010
LAKHWINDER SINGH ........Petitioner
Versus
DELHI SIKH GURUDWARA MANAGEMENT COMMITTEE & ORS.
....Respondents
and
W.P.(C) No. 354/2010 & ors. Page 2 of 30
WP (C) No. 380 of 2010
HARJIT KAUR ........Petitioner
Versus
DELHI SIKH GURUDWARA MANAGEMENT COMMITTEE & ORS.
....Respondents
and
WP (C) No. 391 of 2010
MANJIT SINGH ........Petitioner
Versus
DELHI SIKH GURUDWARA MANAGEMENT COMMITTEE & ORS.
....Respondents
and
WP (C) No. 2551 of 2010
DELHI SIKH GURUDWARA MANAGEMENT COMMITTEE & ANR.
........Petitioners
Versus
MS. SHEELA DEVI & ANR. ....Respondents
and
WP (C) No. 2552 of 2010
DELHI SIKH GURUDWARA MANAGEMENT COMMITTEE & ANR.
........Petitioners
Versus
MS. HARJEET KAUR & ANR. ....Respondents
and
W.P.(C) No. 354/2010 & ors. Page 3 of 30
WP (C) No. 2553 of 2010
DELHI SIKH GURUDWARA MANAGEMENT COMMITTEE AND ANR.
........Petitioners
Versus
MS. AMRIT KAUR & ANR. ....Respondents
and
WP (C) No. 2561 of 2010
DELHI SIKH GURUDWARA MANAGEMENT COMMITTEE AND ANR.
........Petitioners
Versus
MS. GURPREET KAUR & ANR. ....Respondents
and
WP (C) No. 2563 of 2010
DELHI SIKH GURUDWARA MANAGEMENT COMMITTEE AND ANR.
........Petitioners
Versus
MS. GURMEET KAUR & ANR. ....Respondents
and
WP (C) No. 2565 of 2010
DELHI SIKH GURUDWARA MANAGEMENT COMMITTEE AND ANR.
........Petitioners
Versus
MS. HARSIMRAN KAUR & ANR. ....Respondents
W.P.(C) No. 354/2010 & ors. Page 4 of 30
and
WP (C) No. 2726 of 2010
DELHI SIKH GURUDWARA MANAGEMENT COMMITTEE AND ANR.
........Petitioners
Versus
MS. RAMANJEET KAUR & ANR. ....Respondents
and
WP (C) No. 2727 of 2010
DELHI SIKH GURUDWARA MANAGEMENT COMMITTEE AND ANR.
........Petitioners
Versus
MR. MANJEET SINGH & ANR. ....Respondents
and
WP (C) No. 2728 of 2010
DELHI SIKH GURUDWARA MANAGEMENT COMMITTEE AND ANR.
........Petitioners
Versus
MS. TAJINDER KAUR & ANR. ....Respondents
and
WP (C) No. 2738 of 2010
DELHI SIKH GURUDWARA MANAGEMENT COMMITTEE AND ANR.
........Petitioners
Versus
MR. LAKHWINDER SIGH & ANR. ....Respondents
W.P.(C) No. 354/2010 & ors. Page 5 of 30
Appearance:
Dr. Sarbjit Sharma, Adv. with Mr. Sumit Sharma, Adv. and
Ms. Seema Aggarwal, Adv. for Mrs. Tajinder Bhatia, Mrs.
Sheela Devi, Mrs. Gurmeet Kaur, Mrs. Harsimran, Ms. Amrit,
Ms. Ramanjeet Kaur, Mr. Lakhvinder Singh & Mr. Manjit Singh.
Mr. I.S. Bakshi, Adv. for respondents Delhi Sikh Gurudwara
Management Committee and Guru Harkrishan Public School.
Mr. Sushil D. Salwan, Adv. with Mr. Aditya Gar, Adv. for R-DoE
in Writ Petitions (C) No.362/2010, 379/2010 & 380/2010.
Mr. Nawal Kihore Jha, Adv. for DoE in W.P.(C) No.354/2010.
Ms. Megha Bharara, proxy counsel for Ms. Ruchi Sindhwani,
Adv. for R-3 in W.P.(C) No.357/2010.
Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
MANMOHAN SINGH, J.
1. By this order I shall dispose of twenty writ petitions i.e.
one set of 10 writ petitions filed by Ms. Tajinder Kaur Bhatia, Ms.
Sheela Devi, Ms. Gurmeet Kaur, Ms. Gurpreet Kaur, Ms. Harsimran
Kaur, Ms. Amrit Kaur, Ms. Ramanjeet Kaur, Ms. Harjeet Kaur, Mr.
Lakhvinder Singh & Mr. Manjit Singh (hereinafter called petitioners)
against three respondents i.e. Delhi Sikh Gurudwara Management
Committee, Guru Harkrishan Public School and Directorate of
Education respectively.
2. The second set of 10 writ petitions WP (C) No.
2551/2010, WP (C) No. 2552/2010, WP (C) No. 2553/2010, WP (C)
No. 2561/2010, WP (C) No. 2563/2010, WP (C) No. 2565/2010, WP
(C) No. 2726/2010, WP (C) No. 2727/2010, WP (C) No. 2728/2010
and WP (C) No. 2738/2010 filed by the Delhi Sikh Gurudwara
Management Committee and Guru Harkrishan Public School
(hereinafter called respondents) against the ten petitioners
individually details of which are mentioned in the in first set of 10
writ petitions and Directorate of Education being respondent No.2
for setting aside the impugned judgment dated 30.11.2009 passed
by Delhi School Tribunal in appeals filed by the petitioners. All the
writ petitions have been taken up together as similar facts and law
points are involved in both sets of writ petitions.
3. The common grounds of the petitioners are that the
termination orders passed by the respondents are illegal, arbitrary,
malafide and those were issued in violation of established
principles of natural justice as no show cause notices were issued
by the respondents. The petitioners after termination of their
services preferred appeals before the Delhi School Tribunal. The
Tribunal vide judgment dated 30.11.2009 in appeals No.38/2009 to
47/2009 set aside the orders of termination of services of the
petitioners. Despite the said judgment and reminders issued by
the petitioners for compliance they were not reinstated by the
respondents. Therefore, the present writ petitions have been filed
by the petitioners, for the purpose of implementation of the
judgment.
4. The detail of petitioners of the first set of 10 writ
petitions is given as under:
Sl. No. Name Post Date of Date of Reasons given in the
Held appointment/ termination impugned order
joining
1. Ms. Tajinder Teacher 02.04.2007 4.7.2009/ Appointed without
Kaur Bhatia in 15.7.2009 following any procedure
W.P.(C) for appointment.
No.362/2010 Terminated under
Clause 19 of Contract of
Service.
2. Ms. Sheela Ayah 02.04.2007 15.7.09 Appointed on temporary
Devi basis
in W.P.(C)
No.355/2010
3. Ms. Gurmeet Attendant 02.08.2007/ 4.7.2009/ Appointed without
Kaur in 31.08.2007 15.7.2009 following any procedure
W.P.(C) for appointment.
No.375/2010 Terminated under
Clause 19 of Contract of
Service.
4. Ms. Teacher 01.08.2007 4.7.2009/ Appointed without
Harsimran 15.7.2009 following any procedure
Kaur in for appointment.
W.P.(C) Terminated under
No.357/2010 Clause 19 of Contract of
Service.
5. Ms. Amrit Teacher 02.08.2007 4.7.2009/ Appointed without
Kaur 15.7.2009 following any procedure
in W.P.(C) for appointment.
No.361/2010 Terminated under
Clause 19 of Contract of
Service.
6. Ms. Teacher 03.09.2007 4.7.2009/ Appointed without
Ramanjeet 15.7.2009 following any procedure
Kaur in for appointment.
W.P.(C) Terminated under
No.377/2010 Clause 19 of Contract of
Service.
7. Ms. Harjeet Office 01.11.2007 4.7.2009/ Appointed without
Kaur Attendant 15.7.2009 following any procedure
in W.P.(C) for appointment.
No.380/2010 Terminated under
Clause 19 of Contract of
Service.
8. Mr. Driver 21.07.2008 13.7.2009/ Appointed on temporary
Lakhwinder 15.7.2009 basis.
Singh in
W.P.(C)
No.379/2010
9. Ms. Gurpreet Teacher 01.10.2008 4.7.2009/ Appointed without
Kaur In 15.7.2009 following any procedure
W.P.(C) for appointment.
No.354/2010 Terminated under
Clause 19 of Contract of
Service.
10 Mr. Manjeet Activity 12.01.2009 15.7.09 Appointed on temporary
Singh in Instructor basis.
W.P.(C)
No.391/2010
5. The first contention of the petitioners is that the
respondents have a trend of passing similar orders of termination
against the employees appointed by a previous committee during
its tenure when it is taken over by the subsequent committee. The
appointments are terminated in respect of employees of various
schools run by the respondent No.1 and on several occasions in the
past employees filed various writ petitions before this Court and the
said orders were withdrawn from time to time after issuance of
directions by the Court. It is contended that the President of
respondent No.1 i.e. Delhi Sikh Gurudwara Management Committee
decided to terminate the services of various employees from the
service and therefore, a resolution was passed for terminating the
petitioners without affording them an opportunity of being heard.
The termination letters issued by the respondent No.1 are contrary
to the law. The said letter no.3751/2-5 resolution dated 15.5.2009
reads as under:
"During the Executive Board Meeting held on 9.5.2009,
it has been decided that the confirmations granted to
the employees of DSGMC and Schools, Institutes,
Hospitals, Dispensaries run under Delhi Sikh Gurudwara
Management Committee prior to completion of one
year of service between 01.03.2007 to 9.5.2009 be
cancelled.
Hence, any such confirmations are being cancelled."
6. In view thereof, vide office order No.5468/11-13 dated
19.6.2009, the President, Delhi Sikh Gurudwara Prabandhak
Committee, issued directions for enquiry into all appointments,
promotions, including new posts and ranks, special scale,
increments made during 9th February 2007 to 9th May 2009 in all
Guru Harkrishan Public Schools, and all other educational
institutions under the management of respondent No.1.
7. In W.P. (C) No.380/2010 filed by Harjeet Kaur one of the
petitioners who has filed an additional affidavit wherein it has been
stated that the services of the various teachers were terminated by
the respondents No.1 and 2 because of surplus staff and that at the
same time fresh appointments were advertised. It is also stated in
the affidavit that one of the teachers namely Ms. Roma whose
services were also terminated along with the petitioner has been
reinstated in service and fresh appointments were made of
Ms. Maninder Kaur, Ms. Amandeep Kaur, Ms. Vaishali and Ms.
Harmit Kaur who are overage.
7.1 It is in the affidavit that the respondents are relaxing the
age as well as qualification. When the inspection was conducted
by a team of Central Board of Secondary Education a number of
employees were found to be overage or under qualified. The
details of the same is filed along with the affidavit as Annexure P-
10.
7.2 The few examples are given by the petitioner that Mrs.
Malvinder Kaur was appointed in July 2004 before the respondent
No.2 School, Hemkunt Colony, New Delhi, as TGT at the age of 44
years. Further, one Mr. Beerjit Singh was appointed by the School
as TGT Music on 29.9.2004. When an objection was raised during
inspection by CBSE in the year 2004 as he was not qualified, his
services were terminated and subsequently he was appointed as a
caretaker in the school. After he qualified the diploma from Prayag
Sangeet Samiti, Allahabad, he was again appointed as TGT (Music)
and shifted from the post of caretaker to TGT (Music) by the
Principal on 10.11.2005.
7.3 Similarly, Ms. P.K. Sandhu was appointed by the school
as Computer Instructor on 15.9.2003 at the recommendation of
President of respondent No.1 and on inspection it was found that
she was not qualified and was overage. Later on she was put on
the post of LDC.
7.4 The petitioner has given many examples of similar
nature about the appointments of the employees by the
respondents No.1 and 2 in paras 9 to 23 of her affidavit in order to
show that most of the employees were not qualified, overage and
were appointed as per choice of respondents No.1 and 2.
8. Learned counsel for the petitioners has also filed various
documents/letters which indicate the details of the appointments
on probation/confirmation of the employees of the respondents in
order to show irregularity on the part of the respondents during the
course of the hearing. It appears from the said documents that
various appointments/relieving orders were passed by the schools
under the signature of Principals or on behalf of General
Secretary/Chief Administrator of respondent No.1.
8.1 Few of the letters issued by the respondent No.1 to the
Principals/Chairmen of all Guru Harkrishan Public Schools under the
Management of respondent No.1 dated 21.6.2006 and 30.6.2007
read as under:
(a) Letter dated 21.6.2006 issued by the respondent
No.1:
"To
The Principals/Chairmen
All Guru Harkrishan Public Schools
Under the management of
Delhi Sikh Gurdwara Management Committee
It has been observed that many schools are making
appointments/confirmations/promotions of staff at their
own level. Henceforth, no appointment/promotion/
confirmation should be made without obtaining the
prior approval of the President/General Secretary-
DSGMC.
(b) Letter dated 30.6.2007 issued by the respondent
No.1:
"To
The Principal
All Guru Harkrishan Public Schools,
Under the management of
Delhi Sikh Gurdwara Management Committee.
Dear Sir/Madam
In view of the problem of surplus staff being faced in
our schools resulting in abnormal financial crises and
prolong legal battle. It has been decided that no new
recruitment of staff in your school be made until it is
conformed that the required staff is not available in any
other branch that can be adjusted against that required
post.
No new appointment would be made without the prior
permission of the President and General Secretary,
Delhi Sikh Gurdwara Management Committee. Any
action in violation will attract recovery of the salary of
the new appointment from the account of the
Principals/Incharge concerned."
9. It is argued by the counsel for the petitioner that the
employment of the petitioners, whether confirmed or on probation,
cannot be terminated by passing a resolution without being given a
show cause notice and affording any opportunity of being heard is
in violation of principles of natural justice. He has referred to
Harbanslal Sahnia & Anr. Vs. Indian Oil Corporation Ltd. &
Others, AIR 2003 SC 2120 and State of HP Vs. Gujrat Ambuja
Cement Ltd., AIR 2005 SC 3936. In Harbanslal Sahnia & Anr.
(supra) it was laid down:
"in an appropriate case, inspite of availability of the
alternative remedy, the High Court may still exercise its
writ jurisdiction in at least three contingencies (i) where
the writ petition seeks enforcement of any of the
fundamental rights; (ii) where there is a failure of the
principles of natural justice or (iii) where the orders or
proceedings are wholly without jurisdiction or the vires
of an Act and is challenged".
In State of HP (supra) it was held:
"when the impugned order has been made in violation
of the principles of the natural justice, and where the
proceeding itself are an abuse of the process of law,
the High Court in an appropriate case can entertain a
writ petition."
10. The contention of the petitioners is that the orders of
termination of service of the petitioners are illegal, malafide,
arbitrary and without any jurisdiction. Hence, prior to filing these
writ petitions, they filed the appeals against the said orders of
termination under Section 8(3) of Delhi School Education Act, 1973
before the Delhi School Tribunal being Appeals No.38 to 47/2009.
11. After hearing the parties, Delhi School Tribunal allowed
the appeals of the present petitioners by passing judgment on
30.11.2009 against the respondents. The operative part of the
findings are given in para 36 which reads as under:
"36. There is no doubt that a duly constituted Managing
Committee has every right to manage and run the affairs
of the Respondent No.1 as per applicable provisions of
law. It is also not in doubt that a duly constituted
Managing Committee has a right to take action against
the teachers/employees who are either not qualified or
on any other legal and valid ground as per law. There
was no duly constituted Managing Committee of
Respondent No.1 School on the date of passing of the
impugned orders and as a result thereof, impugned
orders against the Appellants were not passed by a duly
constituted Managing Committee. Hence, the said
orders cannot be sustained in the eyes of law."
12. The prayer sought by the petitioners in the first set of
writ petitions is as respondents No.1 and 2 are not implementing
the judgment passed by the Delhi School Tribunal by not
reinstating the petitioners, hence, this Court may pass the
appropriate orders for reinstating the petitioners in service and also
quash the letter No.3751/2-5 dated 15.5.2009 issued by the Chief
Administrator, Delhi Sikh Gurudwara Management Committee and
Office Order No.5468/11-13 dated 19.6.2009 issued by the
President, Delhi Sikh Gurudwara Management Committee as the
said act of the respondents is illegal, malafide, arbitrary and the
orders passed against the petitioners on different dates i.e. dated
04.07.2009, 13.07.2009 and 15.07.2009 be quashed.
13. The case of the respondents is that the respondent No.1
is a Statutory Authority/Committee, known as Delhi Sikh Gurudwara
Management Committee, constituted under Delhi Sikh Gurudwara
Management Act, 1971 and is governed by he said Act and the
Delhi Sikh Gurudwara Management Committee Rules.
14. The respondent No.1 committee is looking after the
management, administration and control of various Gurudwaras in
Delhi including Bangla Sahib Gurudwara, Gurudwara Sis Ganj Sahib,
Shri Rakab Ganj Sahib, Gurudwara Mata Sundri and various other
Gurudwaras situated in Delhi.
15. The respondent No.1 is also running various hospitals,
dispensaries, schools and other educational institutions. The
hospitals include Guru Harkrishan Hospital, Bala Sahib, Guru Har
Krishan Hospital, Bangla Sahib, and various others. The
educational institutions include SGTB Khalsa College, Mata Sundri
College, Guru Gobind Singh College of Commerce, affiliated to the
University of Delhi. There are various other institutions,
polytechnics, institutes of electronics, engineering college etc.,
which are being run by the respondent No.1.
16. On merit following are the contentions of the
respondents No.1 and 2:
(i) That the respondent No.2 school is a minority institution
managed by respondent No.1 under the provisions of
Delhi Sikh Gurudwaras Act, 1971. Article 30(1) of
Constitution of India provides for right of minorities to
establish and administrate educational institutions of
their choice. Thus, the Tribunal had no jurisdiction to
entertain the appeals filed by the petitioners.
(ii) The petitioners were on contractual appointment as per
Regulation III (1) (iii) of the Regulations who were later
on confirmed to the permanent posts without any
authority. Even otherwise, the services of the petitioners
can be terminated by giving three months notice or pay
as per contract without assigning any reason.
(iii) As petitioners were appointed without authority of law,
the respondent No.1 within its right vide Resolution
dated 19.6.2009 resolved that all the promotions/
confirmations/appointments made through the period
from 9.2.2007 to 9.5.2009 were illegal as they were
appropriated wrongly.
(iv) Delhi School Education Act, 1973 is not applicable to the
schools operated and managed by respondent No.1. In
the Contract of Service of the petitioners there is an
arbitration clause for settlement of disputes. Thus, the
Tribunal had no jurisdiction to entertain the appeals filed
by the petitioners.
(v) Further contention is that the petitioners were illegally
appointed as the said posts were never advertised nor
any approval was sought from the Management
Committee which has the exclusive right of making the
appointments. In case the Delhi School Education Act,
1973 would be made applicable to the School
Management, then provisions of Delhi Sikh Gurudwaras
Act, 1971 would become redundant.
(vi) As regards the respondent No.2 school is concerned, it
was contended that since a Resolution dated 19.6.2009
was passed by the respondent No.1, the respondent No.2
is bound by the orders passed by the respondent No.1.
As the appointments of the petitioners were not made in
accordance with the Rules and Regulations, the
termination orders were rightly passed against the
petitioners.
17. It is also contended that the petitioners had joined the
service with the respondent school on clear understanding that
their services are purely temporary and can be terminated without
any notice before the expiry of course of their employment. As
their services are no further required in the fresh session, the same
were terminated.
18. Learned counsel for the respondents No.1 and 2 has
referred to Section 15 of Delhi School Education Act and Rules,
1973, which deals with the Contract of Service.
19. The submission of the respondents, that even if
conditions prescribed under Section 15(2) of Delhi School Education
Act, 1973 for registering the contract of service is not complied
with, the service conditions shall be governed by the Contract of
Service, has no force as Chapter XI of Delhi School Education Rules,
1973 deals with recruitment, minimum qualifications, power to
relax the qualification and executing Contract of Service and its
registration.
20. The following are the main grounds for challenging the
judgment dated 30.11.2009 by the respondents No.1 and 2 are:
(a) That the Tribunal has acted in excess of its
jurisdiction and has committed grave and material
irregularity while passing the judgment.
(b) There was no ground on the part of the petitioners
to challenge the recognition of the school in their
appeals filed under Section 8(3) read with Section
11 of Delhi School Education Rules-1973.
(c) It is submitted that the Tribunal has failed to
appreciate that the main grievance of the
petitioners before the Tribunal was about the
termination of service. However, the Tribunal has
given the judgment on imaginary grounds which
were not agitated or raised by the petitioners in
their appeals.
(d) The petitioners could not even otherwise challenge
the procedural irregularity in the constitution of
Management Committee of the School in their
appeals as the same could be corrected at any
time.
(e) The finding of the Tribunal is erroneous when it is
held that the contract of service, if any, between
the petitioner and respondent No.1 is to be
registered as per Rule 130 of the Delhi School
Education Rules, 1973. There is no illegality in the
Management Committee of the respondent No.1
and the observations made by the Tribunal is
without any basis and contrary to the Rule 59(3) of
Delhi School Education Rules, 1973.
21. It is not disputed by the respondents that the contract of
service with the petitioners and respondent No.2 was not registered
as provided in Section 15(2) of Delhi School Education Act, 1973
read with Rule 130 of Contract of Service. The justification given
by the counsel for the respondents is that the respondent No.2
school is a minority institution. Since the provisions of Delhi Sikh
Gurudwaras Act, 1971 would apply, they have the rights to
establish and administrate education institutions as per their choice
under the Act. Therefore, the appeals filed by the petitioners
before the Tribunal were not maintainable.
22. No doubt, the schools run by the respondent No.1 is a
minority school, but there is no force in the submission of the
respondents in view of the judgment of the Apex Court in the case
of Frank Anthony Public School Employees' Association Vs.
Union of India and Others, AIR 1987 SC 311, wherein in paras
13, 16 and 18 it has been held:
"13... The right guaranteed to religious and linguistic
minorities by Art. 30(1) is two fold, to establish and to
administer educational institutions of their choice. The
key to the Article lies in the words "of their own
choice". These words indicate that the extent of the
right is to be determined, not with reference to any
concept of State necessity and general societal interest
but with reference to the educational institutions
themselves, that is, with reference to the goal of
making the institutions "effective vehicles of education
for the minority community or other persons who resort
to them". It follows that regulatory measures which are
designed towards the achievement of the goal of
making the minority educational institutions effective
instruments for imparting education cannot be
considered to impinge upon the right guaranteed by
Article 30(1) of the Constitution. The question in each
case is whether the particular measure is, in the goal,
without of course nullifying any part of the right of
management in substantial measure....
16. .....The management of a minority Educational
Institution cannot be permitted under the guise of the
fundamental right guaranteed by Art. 30(1) of the
Constitution, to oppress or exploit its employees any
more than any other private employee. Oppression or
exploitation of the teaching staff of an educational
institution is bound to lead, inevitably, to discontent
and deterioration of the standard of instruction
imparted in the institution affecting adversely the
object of making the institution an effective vehicle of
education for the minority community or other persons
who resort to it. The management of minority
institution cannot complain of invasion of the
fundamental right to administer the institution when it
denies the members of its staff the opportunity to
achieve the very object of Art.30(1) which is to make
the institution an effective vehicle of education.
18. ....Keeping in mind the views of the several learned
Judges, it becomes clear that Section 8(2) must be held
to be objectionable. Section 8(3) provides for an
appeal to the Tribunal constituted under Section 11,
that is, a Tribunal consisting of a person who has held
office as a District Judge or any equivalent judicial
office. The appeal is not to any departmental official
but to a Tribunal manned by a person who has held
office as a District Judge and who is required to
exercise his powers not arbitrarily but in the same
manner as a Court of appeal under the Code of Civil
Procedure. The right of appeal itself is confined to a
limited class of cases, namely, those of dismissal,
removal or reduction in rank and not to every dispute
between an employee and the management. The
limited right of appeal, the character of the authority
constituted to hear the appeal and the manner in which
the appellate power is required to be exercised make
the provision for an appeal perfectly reasonable, in our
view...."
23. The similar view was taken by the Apex Court in the case
of Management Committee of Montfort Senior Secondary
School and Others Vs. Sh. Vijay Kumar and Others; AIR 2005
SC 3549 while holding that benefit of Section 8(3) has been
extended to the employees of recognized unaided minority schools
and they have been put at par with their counterparts in private
schools and once employees have chosen one remedy by
approaching the Tribunal, it is not permissible to file the other one.
24. Thus, arbitration clause does not come in the way of
petitioners while approaching the Tribunal and the appeals filed by
the petitioners were maintainable.
25. In the present case, admittedly no contracts of service of
the petitioners were sent to the Administrator for registration under
the Delhi School Education Rules, 1973. Rule 183 of Chapter XV of
Delhi School Education Rules, 1973 provides that every
Management Committee shall comply with the provisions of the Act
and Rules. Thus, the respondents are not entitled to take the
benefit of said plea and submissions made by them.
26. The schools regulated by the Government of NCT of
Delhi, are governed by Delhi School Education Act, and Delhi
School Education Rules, 1973. The said rules are applicable to all
the recognized schools in Delhi.
27. The Rule 130 of Delhi School Education Act and Rules,
1973 provides the procedure to be adopted for executing and
registering of Contract of Service. The said rule reads as under:
"130. Contract of Service :
(1) Every contract of servicer, referred to in sub-
section (1) of section 15 shall be entered into in the
form specified in the scheme of management before
the employee is called upon to join his duties.
(2) A copy of the contract of service, referred to in
sub-section (1) of section 15, shall be forwarded to the
Administrator by the managing committee of the
concerned unaided minority school either by registered
post, acknowledgement due, or by a messenger within
thirty days from the date on which the contract is
entered into.
(3) On receipt of a copy of the contract of service,
the Administrator shall cause the particulars of such
contract to be entered in a register to be maintained
for the purpose, to be known as the "Register of
Contracts".
(4) The Administrator shall also cause the copies
of contracts received by him to be preserved in such
manner as he may specify.
(5) If on a scrutiny of the copies of contract
received by him, the Administrator is of opinion that
the contract does not comply with the provisions of
sub-section (3) of section 15, he may draw the
attention of the school concerned so as to bring it in
conformity with the provisions of sub-section (3) of
section 15, and thereupon the school shall take urgent
steps for the rectification of the contract.
(6) When a contract has been rectified under
sub-rule (5), a copy of the contract, as so rectified shall
be forwarded to the Administrator for registration and
on receipt of the copy of such contract the
Administrator shall cause the contract to be registered
in the manner specified in sub-rule (3).
28. The termination orders of the petitioners were passed by
letters dated 4.7.2009, 13.7.2009 and 15.7.2009 which were
signed by the Chairman of Guru Harkrishan Public School as well as
by the Principal of the School.
29. It is not disputed by the respondents that the application
for recognition of the school was processed in 1993 which was
approved by the Department of Education. The scheme of the
Management shows that the Guru Harkrishan Public School Society,
New Delhi, is the Managing Committee authorized to run affairs of
the school in accordance with the Delhi School Education Act and
Rules, 1973 as applicable to unaided minority schools.
30. It is not disputed by the parties that at the time of
hearing of appeals filed by the petitioners, the Tribunal summoned
the file from the office of the Registrar of the Societies and from the
said file information was gathered about the list of the members of
the said society. The respondent No.2 school filed on record a copy
of Memorandum of Association and Rules and Regulations of
Governing Body of Guru Harkrishan Public School, Society, New
Delhi, wherein the main object as per Memorandum of Association
was to establish and carry on the administration and management
of Guru Harkrishan Public School and had power to open branches
of the School in Union Territory of Delhi.
31. In Rule 27 of Rules of the Society, it was mentioned that
all the contracts relating to the management and administration of
said society shall be executed on behalf of the society by the
Chairman, Honorary Secretary and Principal of the school. The
recognition was granted to Governing Body of Guru Harkrishan
Public School Society, New Delhi, by the Government of NCT of
Delhi.
32. The Tribunal while hearing of the appeals examined the
Memorandum of Association and Rules and Regulations of
"Governing Body of Guru Harkrishan Public School, Society, New
Delhi". The details gathered from record produced by the
respondent No.2, which is referred in judgment of the Tribunal,
read as under :
The main object of the Society was to establish and
carry on the administration and Management of Guru
Harkrishan Public School, India Gate, New Delhi and it
had power to open branches of the School in Union
Territory of Delhi as and when considered necessary by
the Society. All affairs of the Society were to be carried
out by Governing Body which was to be nominated by
Gurudwara Prabhandak Committee (now Delhi Sikh
Gurudwara Management Committee). Total
membership of Society was not to be more than 19
members out of whom at least 9 Members were to be
appointed from the sitting members of Gurudwara
Prabhandak Committee, Delhi. Principal Guru
Harkrishan Public School was to be an ex-officio
Member of the Society and normal tenure of the
Member of the Society was fixed for 3 years except the
ex-officio Member. It has been mentioned in the
Memorandum that the income and property as well as
management and control of the Society shall be vested
in the Governing Body of the Society which shall be
called the Executive Board of the Society. This Board
shall have power of management of all affairs and
funds of the Society and this Board shall meet once in
every 3 months to transact the business of
Management of the Society. In Rule 27 of Rules of
Society, it has been mentioned that all contracts
relating to the management and administration of this
Society, shall be expressed to be made by the Society
and shall be executed on behalf of the Society by the
Chairman, Honorary Secretary and Principal of the
School.
33. The Tribunal after examination of various files and
documents found many irregularities in the functioning of running
the schools by the respondent No.1, the reasons are referred in the
judgment in paras 13, 14, 15, 16, 27 to 30 of the judgment which
read as under :
"13. The Ld. Counsel for Respondent School did not offer
any explanation as to how and at what stage "Governing
Body of Guru Harkrishan Public School Society, New
Delhi" having registration no.4834 of 1970-71 was either
wound-up or dissolved and the affairs of the School were
directly taken over by Delhi Sikh Gurudawara
Management Committee by-passing the said Society as
well as the Managing Committee of the School which was
formed as per Scheme of Management duly approved by
the Competent Authority.
14. The Scheme of Management clearly states that the
Managing Committee has to run affairs of the School in
accordance with Delhi School Education Rules as
applicable to unaided minority schools. The stand of
Respondent No.2 Department is that recognition and up-
gradation of the School was granted by the Directorate
with a condition that School would abide by the
provisions of Delhi School Education Act & Rules-1973
and the School is accordingly governed under the said
Education Act & Rules. In view of this, contention of the
Respondent No.2 and 3 that teachers and employees of
Respondent No.3 School are governed by Employees
Service Regulations-1992 framed under Delhi Sikh
Gurudwaras Act, 1971 is not tenable.
15. The recognition was granted to Respondent No.1
School being run by "Governing Body of Guru Harkrishan
Public School Society, New Delhi" at Nanak Piao, Delhi
and there is no correspondence on the file of Directorate
of Education to show any change in the Management.
Even if Respondent No.3 has the power to appoint
Members of the said Society, this by itself will not
empower Respondent No.3 to supersede and bypass the
said Society and directly control the affairs of respondent
No.1 School. Time and again adjournments were taken
by the Ld. Counsel appearing for Respondent No.1, 3 and
4 to search for the documents to support their stand that
the School was got recognized and was allowed to be
managed by Respondent No.3 but they failed to file any
such document on record except a copy of Delhi Sikh
Gurudawaras Act-1971 and Employees Service
Regulations-1992.
16. The said Employees Service Regulations-1992 have
been claimed to be framed under Section 40 of Delhi
Sikh Gurudawaras Act-1971. Sub-Section 3 of Section 40
of Delhi Sikh Gurudawaras Act-1971 provides that every
regulation made under this section shall be laid before
each House of Parliament for a period of 30 days for
making any modification or to agree that regulation
should not be made. The regulation thereafter would be
effected only in such modified form or be of no effect as
the case may be. Ld. Counsel appearing for Respondent
No.1, 3 and 4 have been unable to submit as to whether
the Employees Service Regulations-1992 were laid on
the Table of each House of Parliament till date or not as
mandated under Sub-Section 3 of Section 40 of Delhi
Sikh Gurudawaras Act-1971.
27. Sub-Rule (2) of Rule 59 provides for the manner in
which the Scheme of Management is to be prepared.
Proviso (2) of Sub-Rule (3) of Rule 59 provides that any
alternation or modification in the Scheme of
Management of a minority School need not be approved
by the Appropriate Authority but the said Authority has
right to give its advice. As per the file of the department,
no such modification was ever intimated to the
department for seeking its advice to make changes in
the Scheme of Management on the record of the
department, which was approved at the time of grant of
recognition and up-gradation.
28. Chapter XI of Delhi School Education Rules-1973
deals with recruitment, minimum qualifications, power to
relax the qualification and executing Contract of Service
and its registration. As mentioned earlier, no Contract of
Service was forwarded to the Administrator for
registration. Rule 183 contained in Chapter XV of Delhi
School Education Rules-1973 provides that every
Managing Committee shall comply with the provisions of
the Act and the Rules. But in this case there no legally
constituted Managing Committee, so there is no question
of complying with the provisions of Delhi School
Education Act & Rules-1973.
29. In view of the above, the major question is that who
has the right to terminate the employees of the School;
whether a duly constituted Managing Committee as per
the Scheme of Management filed with the Department of
Education or as directed by the President of Delhi Sikh
Gurudawara Management Committee or the said
Committee itself? On the basis of the above discussion, it
is quite clear that the Respondent No.1 School is to be
run as per the Scheme of Management filed with the
Department of Education and any office bearer of the
Delhi Sikh Gurudawara Management Committee of his
own, or the said Gurudwara Committee as a whole, has
no right to terminate employees of Respondent No.1
School.
30. The Managing Committee of the School is to be
constituted as provided in Scheme of Management in
view of Rule 50 and 59 of Delhi School Education Rules-
1973. The recognition of the Respondent No.1 School
was applied for it and was granted to "Governing Body of
Guru Harkrishan Public School Society, New Delhi" and
this Society has to run the School and only it has the
right to nominate members of the Managing Committee
as provided in proviso to Rule 59(1) of Delhi School
Education Rules-1973.
34. In para 33 of the judgment passed by the Tribunal,
certain directions were issued to Directorate of Education to take
necessary steps to ensure that Contracts of Service of all the
employees in recognized unaided minority schools in Delhi are filed
and registered with Administrator as provided in Rule 15 of Delhi
School Education Act - 1973 read with Section 130 of Delhi School
Education Rules - 1973 within a period of 3 months from the date
of the order. It was further ordered by the Tribunal that report be
submitted in this regard within four months.
35. Mr. Sushil Dutt Salwan, who is appearing on behalf of
Directorate of Education in Writ Petitions (C) No.362/2010,
379/2010 & 380/2010, has referred to affidavit of Sh. Ram Avtar
Haritash, Deputy Director of Education wherein it is submitted that
in pursuance to the judgment dated 30.11.2009 passed by the
Delhi School Tribunal, Directorate of Education had written a letter
on 21.12.2009 to the respondent No.2 along with the
representation of the petitioner to comply with the directions
passed by the Tribunal. No action was taken by the respondents
No.1 and 2.
36. Thereafter, show cause notice dated 8.1.2010 was issued
to the respondents No.1 and 2 as to why the recognition be not
withdrawn for the non-compliance of the directions given by the
Tribunal. Reply dated 22.1.2010 to the show cause notice was
received by it and in the reply it was stated that the judgment
dated 30.11.2009 was being challenged by the respondents No.1
and 2 in the High Court.
37. Therefore, a request was made by the respondents that
no action be taken against them. It was further contended by the
learned counsel that the withdrawal of the recognition of the
respondents is under consideration and the petitioners in the
present cases are at liberty to take legal remedy of filing an
application under Section 27 of Delhi School Education Act for non-
compliance of order.
38. There is no force in the submission of the learned
counsel for the respondents that the Tribunal has acted in excess of
its jurisdiction and the judgment passed by the Tribunal was on
imaginary grounds which were not raised by the petitioners. It is a
matter of fact that the petitioners in their appeals filed under
Section 8(3) read with Section 11 of Delhi School Education Rules,
1973 have agitated the jurisdiction of the respondents No.1 and 2
for passing the orders of termination of their services.
39. The other aspect of the matter is consent order dated
11.5.2010 passed by this Court in batch of about forty writ
petitions wherein the Court has stayed the termination orders of
the petitioners in those cases. The operative portion of the order
reads as under:
"W.P.(C) 1948/2010
Issue show cause notice to the respondent as to why
rule nisi be not issued. Mr. Bhagwant Singh, Adv.
accepts notice on behalf of the respondent No.1. Copy
of the paper book has been handed over to the counsel
for the respondent No.1. He seeks four weeks time to
file the counter affidavit. Let the counter affidavit be
filed within four weeks. Rejoinder be filed within four
weeks thereafter.
Learned counsel for both the sides are agreeable that
during the pendency of the writ petitions, the inquiry
may be conducted by the respondents as per the
applicable rules against the respective petitioner in
view of the allegation raised and the same may be
completed within the period of six months. As agreed,
till that time the writ petitions filed by various
petitioners may be kept pending. Both parties have
also agreed with the following terms:-
a. The respondent DSGMC/GHPS shall pay salaries to all
the petitioners if unpaid for the previous period within
two weeks from today and shall continue to pay till
further order of this Court.
b. The process of inquiry would start after payment of
unpaid salary to the concerned petitioners.
c. In order to conduct the inquiry, the respondents are
at liberty to issue show cause notices to the concerned
petitioners within three weeks from today.
d. The petitioners shall be entitled to give reply to the
show cause notices within four weeks thereafter.
e. An opportunity of personal hearing would be granted
to the petitioners to put up their case before the inquiry
officer/authority.
f. If any extension is needed for the said purpose, the
parties are at liberty to move an application in this
regard.
CM No.3889/2010 (direction)
Till the next date of hearing, there shall be stay of the
impugned orders dated 10.7.2009 and 17.7.2009
passed by the respondent No.2.
List on 13th December, 2010.
Copy of the order be given dasti under the signature of
the Court Master."
It is admitted by the parties that in said consent order
passed in batch of writ petitions, there are few cases where the
employees were on probation and their services were terminated
and the respondents had agreed to revoke termination orders by a
mutual consent till the time enquiry proceedings are complete. The
details of three such employees are given as under:
"(i) In Gurmeet Kaur Vs. DSGMC & Ors., W.P.(C)
No.1948/2010, the petitioner was appointed on
probation as a teacher on 18.04.2008 and her services
were terminated vide letter dated 17.07.2009, during
the period of probation. This Court vide order dated
11.5.2010 stayed the operation of the impugned order
of termination and the petitioner's service was
reinstated and she is in employment.
(ii) In Bhupinder Kumar Vs. DSGMC & Ors., W.P.(C)
No.13016/2009, the petitioner was appointed as TGT
Physical Education on probation vide letter dated
01.05.2009 and his services were terminated vide
letter dated 15.5.2009, during the period of probation.
This Court stayed the operation of the impugned order
of termination and the petitioner's service was
reinstated and he is in employment.
(iii) In Satpal Vs. DSGMC & Ors., W.P.(C)
No.10566/2009, the petitioner was appointed as a
sweeper on ad-hoc basis vide letter dated 02.04.2007.
He was appointed on consolidated pay of Rs.5000/- on
ad-hoc basis vide letter dated 22.05.2007, vide letter
dated 07.02.2008 he was appointed on probation for a
period of one year. His confirmation was never made
and vide letter dated 20.07.2009 his services were
terminated during the period of probation. This Court
vide order dated 10.9.2009, stayed the operation of the
impugned order of termination and the petitioner's
service was reinstated and he is in employment.
40. In the case of Ms. Gurmeet Kaur, one of the petitioners in
the present batch, (W.P.(C) No.375/2010), learned counsel for the
respondents has no objection if the termination against her be
revoked on the ground that she was confirmed employee of the
school and no notice was issued before termination orders are
passed.
41. Having considered the rival submissions of the parties
and facts in the matter, this Court is of the view that the order
passed by the Tribunal needs no interference. The findings are
legally correct. In the present matters, the order of termination of
the service of the petitioners passed by the respondents are
contrary to law and in violation of the principles of natural justice
and the same were also passed without jurisdiction. In the case of
V.P. Ahuja Vs. State of Punjab & Ors; AIR 2000 SC 1080,
wherein the Supreme Court held:
"A probationer, or a temporary servant, is also entitled to
certain protection and his services cannot be terminated
arbitrarily, nor can those services be terminated in a
punitive manner without complying with the principles
of a natural justice. "
This Court no doubt agrees with the suggestion of the
Tribunal that constituted Managing Committee has a right to take
action against teachers/employees as per law.
42. Under these circumstances, writ petitions filed by the
petitioners being WP (C) Nos. 354/2010, 355/2010, 357/2010,
361/2010, 362/2010, 375/2010, 377/2010, 379/2010, 380/2010
and 391/2010 are allowed.
43. During the course of the hearing of the matter, it has
been informed that the petitioners have not been paid the due
wages till the stage of termination. Consequently, the orders
issued on 15.07.2009, 04.07.2010 and 13.07.2010 are also
quashed.
44. Therefore, all the writ petitions are disposed of with the
following directions :-
a) WP (C) Nos. 354/2010, 355/2010, 357/2010, 361/2010,
362/2010, 375/2010, 377/2010, 379/2010, 380/2010
and 391/2010 filed by the petitioners are allowed. The
impugned termination orders are quashed. Pending
applications also stand disposed of.
b) WP (C) Nos. 2551/2010, 2552/2010, 2553/2010,
2561/2010, 2563/2010, 2565/2010, 2726/2010,
2727/2010, 2728/2010 and 2738/2010 filed by
respondent Nos. 1 and 2 are dismissed being without
any merit. Pending applications also stand disposed of.
c) I direct the respondents No.1 and 2 to permit the
petitioners to continue their services in the school with
immediate effect.
d) The respondents No.1 and 2 are directed to pay the
due wages to the petitioners till the date of termination
within two weeks from today.
45. No costs.
MANMOHAN SINGH, J.
AUGUST 31, 2010
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