Delhi High Court
Shalu Kataria vs Director Of Education & Ors. on 3 December, 2010
Author: Manmohan Singh
* HIGH COURT OF DELHI : NEW DELHI
+ WP (C) No.4277/2010
Shalu Kataria ......Petitioner
Through: Mr. M.A. Niyazi, Adv. with
Mr. Manish Kumar, Adv.
Versus
Director of Education & Ors. .....Respondents
Through: Mrs. Naresh Bakshi, Adv.
with Mr. Ankur Chhibber,
Adv.
Judgment reserved on : 05.08.2010
Judgment decided on : 03.12.2010
Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether the Reporters of local papers may
be allowed to see the judgment? No
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 way of present writ petition, the petitioner has sought
quashing the oral termination order dated 21.06.2010 issued by
the respondent No.3 to the petitioner and further issue writ, order
or direction directing the respondent Nos. 2 &3 to issue
appointment letter in favour of the petitioner for her appointment
on the regular post of TGT (English) in respondent No.3 School on
the basis of combined Screening Board (CSB) exam held on
13.01.2008 and interview in the month of February 2008.
2. The brief facts in nutshell, inter alia, are that the
respondent No. 3 in December 2007 advertised vacancies in
different Army Public Schools in Delhi/NCR for PGT/TGT/PRT in
various subjects on the basis of All India Written Test and interview
and teaching demonstration (interview and teaching demo for
successful candidates of written exam).
3. The petitioner filled up the form and applied for TGT
(English).
4. The petitioner received the admit card for written
examination for TGT English which was to be held on 13.01.2008.
5. The petitioner qualified the written examination for TGT
English and received the score card alongwith interview call letter
dated 14.02.2008 for interview of TGT English to be held on
23.02.2008. The petitioner was selected.
6. As per the petitioner, her selection as TGT(English) was
done by the respondents in consonance with Rule 96 of the Delhi
School Education Rules, 1973 and the selection Committee, in
accordance with the procedure applicable for selection, carried out
the selection process and selected the petitioner as TGT(English).
The petitioner qualified the interview and was finally selected as
TGT (English). In the last week of July, she was telephonically
asked to join the service in respondent no.3 school from
01.08.2008. Accordingly, she joined the school on 01.08.2008. She
was given the appointment letter dated 14.08.2008 which illegally
mentioned that she was appointed as PRT for a specific period
from 01.08.2008 to 31.03.2009 as teacher(term Based) in
respondent No.3 School on a consolidated salary of Rs. 12,423/-
per month.
7. According to the petitioner when she inquired from the
respondent No.3 regarding her appointment as PRT instead of TGT
and tenure of appointment, she was told by the respondent
principal of the School that she would soon be appointed/promoted
as TGT(English) and her appointment has been made for a term
based/contractual as probation and after completion of the said
term/probation, she would be appointed as regular TGT (English).
8. The petitioner was given appointment letter dated
14.08.2008 for term based teacher for PRT instead of TGT English
and for a fixed tenure. Her tenure was from 01.08.2008 till
31.03.2009. The petitioner was given teaching assignment again
from 16.04.2009 till 15.05.2009 when the school closed for
summer vacation.
9. After summer vacation she received another
appointment letter dated 10.08.2009 wherein it was stated that
her term of appointment as PRT was from 08.07.2009 till
31.03.2010. She was again asked to join her assignments from
08.04.2010 till 15.05.2010 when the school was closed for the
summer vacation. According to the petitioner, from the perusal of
the aforesaid selection procedure devised by respondents, it is
evident that the CSB selection procedure is for the appointment of
TGT/PGT whether through fresh applications or for those who are
already employed on ad hoc basis. In the present case, the record
produced by the petitioner shows that she qualified the CSB test
and also the interview in the year 2008. Clause 24 of the
regulations of the selection of teachers‟ guideline clearly states
that "TGTs selected through CSB will be on probation for 1 year,
which may be extended upto maximum 2 years. Thereafter their
appointment will stand confirmed". The petitioner admittedly
worked in the respondent school from 01.08.2008 to 15.05.2010.
10. The petitioner further stated that that on the last day of
the school before summer vacation i.e. on 15.05.2010 she was told
that her status as regular teacher would be confirmed and the
same would be intimated to her. With this impression in mind the
petitioner kept on waiting for the confirmation letter as TGT
(English) but on 21.06.2010 she was telephonically informed by
respondent No.3 that she is no more required in the school from
the next session i.e. from 28.06.2010.
11. The petitioner has stated that in these two years the
salaries of the summer vacation was not given to her and she was
asked to wait for a suitable decision from the respondent No.2
society.
12. According to the petitioner the period for which she had
been kept as a term based/ contractual teacher ought to have
been treated by the Respondents 2 & 3 as probation and she
ought to have been confirmed as TGT (English).
13. Being aggrieved by the impugned order of the
termination dated 21.06.2010, the petitioner has filed the present
writ petition.
14. Learned counsel for the petitioner submits that since the
respondents have not passed order of her removal and termination
order was issued by the respondent No.3 school on telephone, an
appeal was therefore not maintainable in the absence of written
order. Therefore, the present writ petition is maintainable.
15. The petitioner placed reliance on the judgment dated
24.09.2007 in W.P. (C) No.4412/2005 Ms. Swapna Sood vs.
Director of Education and Ors. It was contented that the facts
of the above case are almost similar to her own case and the in
this case the respondent has been directed to issue an
appointment letter in favour of the petitioner by the Court. The
order passed in the matter has become final as the order passed in
the case of Ms. Swapna Sood was not challenged by the
respondents who are the same in the present case.
16. The respondent Nos. 2 & 3 in their counter affidavit
stated that the service condition of the petitioner is governed by
the Army Welfare Education Society which is a registered body
under the society Registration Act XXI of 1860 by Registrar of
Societies Delhi vide Certificate No. S/13459 dated 29.04.1983 for
the purpose of establishing/ running Army Schools, Army Public
School.
17. It is alleged in the counter affidavit that petitioner was
appointed on contractual basis and therefore she cannot seek
regularization of her appointment as there is no regular vacancy,
further her performance was not good in the teaching demo and
therefore she was given PRT instead of TGT, further the petitioner
herself admitted in her letter while seeking extension for services
that she was a PRT and on contractual basis. The respondent
Nos.2 and 3 have admitted that the petitioner did not make an
application for PRT teacher although it is denied that in the
application letter, it was mentioned with reference to petitioner‟s
application for the post of PRT.
18. Respondents No.2 & 3 placed reliance on the judgment
Seema Maheshwari vs. Directorate of Education, 114(2004)
DLT 291 in support of their argument, wherein it has been held
that DPC of private unaided school are always free to adopt their
own procedure to fill up the vacancy.
19. The respondent No.2 & 3 has further placed reliance on
the few judgments and contented that the respondent school is a
school run by the society and an employee who was recruited by
the society but posted in the school run by the society did not
become the employee of the school even though the society had
adopted the code of conduct contained in rule 123 and 124
(Samarth Siksha Samiti Another vs. Bir Bahadur Singh
Rathour and Ors. (2009) 3 SCC 194) And also where in the
service rule or in the letter of appointment a period of probation is
specified and power to extend the same is also confirmed upon the
authority without prescribing any maximum period of probation
and if the officer is continued beyond the prescribed or extended
period, he cannot be deemed to be confirmed.
20. Hence as per respondent Nos. 2 and 3 there is no bar
against termination at any point of time after expiry of the period
of probation. (Commissioner of Police, Hubli and Another vs.
R.S.More (2003) 2 SCC 408). The Respondent Nos. 2& 3 further
reliance upon the judgment of the Hon‟ble Supreme Court in
Secretary, State of Karnataka and Ors. Vs. Umadevi (3) and
Ors. (2006) 4 SCC 1.
21. The respondents submits that among the other
candidates, the petitioner was ranked No. 8 and thus she was only
recommended for the post of PRT which she gladly accepted. The
respondent further submitted that she worked for 2 years on the
post of PRT therefore, the petitioner can not claim for the regular
Post of TGT (Eng).
22. It is also contented that though the petitioner qualified
the written examination and was issued the admit card and
petitioner was directed to conduct a class for duration of 40
minutes for evaluation of teaching skill vide letter dated
14.02.2008 and the petitioner was found fit for the selection for
the post or PRT.
23. The respondent also referred to the representation of
the petitioner dated 20.02.2009 making a request to continue as
PRT admitted that she was selected by the board of officers for the
post of PRT in Army Public School/respondent No.3.
24. In this regard petitioner in her rejoinder stated that had
the contention of the respondents been correct and assuming that
the petitioner was on contractual appointment, then there was no
occasion for the respondents to throw the petitioner during the
summer vacation by oral termination when there was no
complaint/dissatisfaction of her performance and at the same time
to appoint 4 new teachers for PRT.
25. The petitioner stated that the respondents can not take
any advantage of the representation dated 20.02.2009, which the
petitioner was made to write at the instance of the respondents on
the format given by the respondent school itself.
26. The petitioner further stated that she duly qualified the
written exam as well as interview and as per the provisions of the
rule 96 of Delhi School Education Act and Rules 1973 and therefore
the said letter written by the petitioner at the instance of the
respondents has no meaning and it is irrelevant for the purpose of
adjudication of the issues involved in the present case which is
that the petitioner who qualified and selected for the TGT (English)
regular post is entitled for the said regular post and was illegally
given the contractual appointment that too in PRT which was
accepted by the petitioner in view of the assurance of the
respondent No. 3.
27. In view of the above said position, the precise question
to be answered by this Court is as to whether the petitioner was
lawfully and validly selected in term of selection procedure/
schemes/regulations or not?
28. I have considered the submissions made by the learned
counsel for the parties at the bar and have also carefully perused
pleadings and documents filed by the parties.
29. The guidelines/standing operating procedure circular
No.006/school/2004 and rule book of respondent No.2 school for
the selection of teachers through CSB and LSB are reproduced
below:-
"Conduct of Combined SCREENING BOARD
(CSB) & LOCAL SCREENING BOARD (LSB)
o CSB is conducted once every year for the following
categories:
For fresh applicants of PGTs, TGTs & PRTs.
For PGTs/TGTs/PRTs appointed earlier on ad hoc basis.
For teachers seeking higher grade i.e. PRT to TGT and
TGT to PGT.
(PGTs stand for the post graduate teachers, TGT for
trained graduate teachers and PRT for primary
teachers)
LSB (LOCAL SCREENING BOARD)
LSB is conducted every year for the following categories:
# PRTs (Primary Teacher)
# Adhoc teachers employed as TGTs or PGTs (those who
could not be screened through CSB)
# Activity Teachers- through LSB without written test.
Procedure in Outline
CSB and LSB is conducted in three stages as under:-
Written Test (200 Marks).
Interview (200 Marks)
Teaching Skills (200 Marks)- for
short listed candidates
after
interview
Written Test
Qualifying in the written test only makes you eligible for a
panel interview.
(a)Part A General 90 min PGT& TGT- Objectiv
(common for Awareness, (0930- 80 Marks e type Q
PGT/TGT/PRT) Mental Ability, 1100h) PRT 200 Paper
English marks using
Comprehension, QMR
Educational
concept And
methodology
(b) Part B (PGT Subject Specific 2hrs 120Marks Objective
& TGT) (less English & (1130- Type Q
Hindi 1330hrs paper Using
QMR
(c) Part B English, Hindi 2 hrs 120marks 90 marks
Languages (1130- objective
(PGT & TGT) 1330 hrs 30 marks
descriptive
To qualify you must score 50% in Each part „A‟ and „B‟ (PGT
& TGT and part A ONLY(PRT).
"PGT/ TGT Qualifying in part A entitles you for a PRT „Score
Card‟."
The CSB and LSB procedure are further defined in the
guidelines and the same are also reproduced as under:-
"12. Category. CSB will be for following category of
teachers:-
(a) For PGTs/TGTs who were earlier employed an Adhoc
basis.
(b) For fresh applications of PGTs/TGTs.
(c) For up gradation of PRTs in TGTs and TGTs in PGTs.
13. CSB (interviews) will be conducted from 15-21 feb. This
will consist of two or more Boards per Command
making cludters at sub area/Area/Div/Corps level. If a
School is located in distant and isolated place, Comd.
HQ may have a separate board exclusively for that
School, eg. Srinagar, Dinjan.
14. Convening of CSB. HQ Commands will be responsible
for canvenning requisite no of CSBs based on their
cluster of Schools.
15. Composition (CSB).
Presiding officer- Brig
Members- All Principals, Eminent Educationalist, Subject
Expert and Psychologist(desirable).
Notes:
1. All principals of the cluster will be members, however,
only two will sit in for any interviews; Out of these two,
one Principal must be of the school for which the
particular candidate is being interviewed.
2. For CSB having only one school i.e. only one principal
the second Principal will be invited from any local
school.
16. Interview. Each CSB will conduct the interview in one
location. In the interview following aspects should be
evaluated:-
(a) Confidence and ability to communicate.
(b) Knowledge and clarity of concept
(c) Ability to Contribute to extra circular activities.
(d) General Awareness.
(e) Computer literacy
(f) Experience
(g) Attitude
(h) Whether teacher has the requisite QR.
(i) Emotional balance and stability.
17. Merit List & Weightages
(a) Written Test- 200 marks
(b) Interview- 200 marks
18. A candidate must score 50% marks in written test
(Aggregate of two papers) to qualify for interview. In
interview also minimum qualifying percentage is 50. A
candidate qualifying both in written test and interview
will be approved. Merit list will be made taking both the
written test and interview in consideration.
Appointment will made based on the merit list. Those
approved but not in merit will be kept in the reserve
panel. In case an approved candidate does not join or a
vacancy occurs in mid session, candidates from this
panel may be appointed. The reserve panel will remain
effective for current academic session only.
19. Format for preparing Merit Sheet as per Appx „B‟.
20. Appointing Selected Teachers. Presiding officer of CSB
will send Bd proceeding to reach HQ Comds ans
respective Chairman by 05 Mar. HQ Comd will confirm
the proceeding by 15 mar. Chairman may issue
appointment letters w.e.f. 20 Mar even if confirmation
from HQ Comd has not been reed.
LSB.
21. LSB will be for following category of teachers:-
(b) Primary Teachers (PRTs).
(C) Adhoc Teachers employed as TGTs or PGTs (those who
could not be screened through CSB).
(d) Activity Teachers- through LSB without written test.
22. It will be conducted and composed similar to CSB,
except Presiding Officer who may be of the rank of
colonel if necessary. Written paper will be prepared by
SMC.
23. LSB will be conducted in the period May- Jul, after CSB
has been completed. Screening will be organized by
School Mgt. Committee. The procedure will consist of
local advt., shortlisting written test, interview and
appointment of teachers.
Other Instructions
24. TGTs selected through CSB will be on probation for 1
year, which may be extended upto maximum 2 years.
Thereafter their appointment will stand confirmed.
25. A TGT, if qualified, may be upgraded to PGT after
screening through a CSB for PGT selection (i.e. incl.
written test).
26. Similarly a PRT, if qualified may be upgraded to TGT
after screening through a CSB or TGT selection (i.e.
incl. written test).
27. A candidate who has been found fit by CSB will not
have to appear for written test again if he/ she applies
for another school. However, they will be put through
interview to finalize the inter se merit. In such cases
their merit position new School will be decided based
on the marks of the marks of interview.
28. If a candidate has worked as a TGT/ PGT in a Kendriya
Vidalaya/ Navyug Vidalayas for three years, he/she can
be considered for direct enrolment without going
through CSB. This discretion rests with SMC.
29. For those who are initially employed as Adhoc teachers
after LSB and are subsequently selected by CSB, the
Adhoc period will be considered as on probation. Even
in such cases they will be under probation for a
minimum period of 6 months as regular teacher."
30. From the perusal of the abovementioned procedure/
regulations of selection of the teachers, the score-card and admit
card indicates that the selection of the petitioner as TGT (English)
was conducted by the respondent as per the provisions of Delhi
School Education Act and rules as well as through CSB written and
interview and the period for which petitioner kept as term
based/contractual ought to have been treated by the respondents
as probation and she ought to have been confirmed as TGT
(English).
31. In case of unaided school following category of members
constitutes a selection Committee:-
"96 (3)(b) in the case of an appointment of a teacher
(other than the head of the school):
(a) The chairman of the managing committee or a
member of the managing committee nominated by the
chairman;
(ii) The head of the school.
(iii) In the case of a primary school, a female
educationist having experience of school education;
(iv) In case of an aided school, one educationist to be
nominated by the Director, and one representative of
the Director;
(v) In the case of appointment of a teacher for any
class in the middle stage of any class in the higher
secondary stage, an expert on the subject in relation to
which the teacher is proposed to be appointed, to be
nominated, in the case of an unaided school by the
managing committee, or in the case of an aided school,
by the director."
32. The respondent Nos.2 and 3 had brought records of the
selection process in the Court on 29.7.2010. It appears that there
was one vacancy i.e. for appointment of TGT English and not for
PRT. As per records all the officials/selection committee who were
present in the selection of teachers and the said selection
committee was in consonance and conformity of Rule 96 of the
Delhi School Education Act and Rules 1973. The record of the said
selection documents no where mentions that the said selection
was for contractual appointment.
33. The counsel for the respondent Nos.2 and 3 on specific
query by this court admitted that for selection of contractual/term
based/adhoc teachers, the selection process which was adopted in
the case of the petitioner was not adopted and there is different
procedure to appoint the teacher for selection of any
contractual/term based/adhoc teachers as the same appointments
are made by the Principal of the school without the presence of
other members of selection committee.
34. As per record made available by the respondents of the
selection process, the petitioner was duly selected in CSB written
as well as interview for the regular vacancy of TGT (English). The
composition of selection committee was in consonance and
conformity of Rule 96 of the Delhi School Education Act and Rules
1973. The learned counsel for the respondent Nos.2 and 3 has not
denied the fact that the selection process which the petitioner had
undergone is not the same for the appointment of contractual/
adhoc/term based teachers.
35. The clause 30 of the selection procedure of teachers
through CSB and LSB reads as under :
"Contract Teachers
30. If a suitable teacher is not
available after CSB/LSB or a vacancy has
been created in mid academic session
which must be filled immediately, SMC
should appoint teachers on contract till the
completion of academic session. For such
teachers SMC can fix a pay scale, not more
than what is applicable to regular
teachers."
36. In view of the above, it is evident that the selection of
the petitioner was done for regular appointment of TGT (English)
but it appears from the record provided by the respondent No.2
and 3 that later on the respondents had changed their mind and
put the petitioner in contractual appointment in PRT which is
accepted by the petitioner may be under compulsion or on the
basis of alleged assurance given by the respondent Nos.2 and 3
but the fact remains that the respondent Nos. 2 and 3 had adopted
same selection process which the petitioner had undergone is not
same for the appointment of contractual and term based
teachers as per clause 30 but the same was in consonance with
Rule 96 of Delhi School Education Act and Rules for regular
teachers.
37. As in the selection which was carried out for CSB/LSB all
the members as envisaged under Rule 96 were present. I am of
the view that the selection of the petitioner on the said post fulfills
the entire essential requirement for the selection against the
regular post of TGT (English).
38. In the case of Smt. Promila Dixit Vs. Govt. of NCT of
Delhi & Ors. in WP (C) No.1234/2010 passed on 26.11.2010 this
court held as under :
"32. There is no res integra to the proposition that
when the provision enacts the fiction in the given
circumstances and if the same are satisfied, the
necessary consequences flow from the said fiction
must be given full effect as if the said things are real.
It is, as noted above, a deeming provision. Such a
provision creates a legal fiction. As was stated by
James, L.J. in Levy, Re, ex p Walton, 1881 (17) Ch.D
746:
"when a statute enacts that something shall be
deemed to have been done, which in fact and in
truth was not done, the court is entitled and
bound to ascertain for what purposes and
between what persons the statutory fiction is to
be resorted to. After ascertaining the purpose full
effect must be given to the statutory fiction and
it should be carried to its logical conclusion and
to that end it would be proper and even
necessary to assume all those facts on which
alone the fiction can operate.
33. When a thing is to be "deemed" something
else, it is to be treated as that something else with the
attendant consequences, but it is not that something
else per Cave, J., R. Vs. Norfolk County Court 1891
(60) LJ QB 379.
34. When a statute gives a definition and then
adds that certain things shall be `deemed' to be
covered by the definition, it matters not whether
without that addition the definition would have covered
them or not.
35. It is also equally trite that when the things are
prescribed to be performed in a particular manner,
then the said things must be performed in the manner
prescribed to the exclusion of the others."
38. This court does find force in the arguments of the
counsel of the respondents that the petitioner who accepted the
appointment in 2008 on contractual term now cannot claim the
contrary as TGT (English). Thus, none of the decisions referred by
the learned counsel for the respondent Nos.2 and 3 are applicable
in the facts and circumstances of the present case as the
petitioner‟s selection cannot be considered as on probation. It is
immaterial even if the petitioner later on in her letter had made
the admission about her appointment as contractual at the time of
getting her an extension. The said admission of the petitioner
cannot bind the petitioner for the same as the court has to
examine the procedure of the selection which was carried out
under Rule 96. In case the post is filled as per rule and essential
requirement for the selection then later on the contention cannot
be accepted that the appointment was on contract.
39. Further, it is pertinent to mention that earlier to the
present petition, on similar facts Smt. Swapna Sood filed a Writ
Petition in this Court being W.P. (C) No.4412/2005 against the
same respondents. The facts are almost identical. The said writ
petition was allowed. In the said judgment, the learned Judge has
also discussed the same objections raised by the respondents in
the present petition in detail. I have been informed by the parties
that the said judgment has attained its finality as no appeal was
filed. Relevant portion of the referred judgment passed in earlier
W.P. (C) No.4412/2005 reads as under:-
"There is no doubt that respondent No.3
School is being run by respondent No.2
society, which is a society registered under the
Societies Registration Act. It is also not in
dispute that the respondent school although
unaided, but is a duly recognized school,
recognized by the Directorate of Education,
Govt. of NCT of Delhi and provisions of Delhi
School Education Act and the Rules frames
thereunder are fully applicable to respondents
No.2 and 3. It is also not in dispute that the
appointment of any teacher be it regular or ad
hoc has to take place through the Selection
Committee duly constituted in accordance with
Rule 96 of the Delhi School Education Rules
and unless the mandate of Rule 96 is followed
in the selection of the petitioner, the
appointment of the petitioner cannot be
considered to be legal and valid on the said
regular post of PGT (Chemistry). It also cannot
be in dispute that the petitioner has no vested
right of appointment or of regularization and
the only right she has, is to be considered for
an appointment on the regular post by the
Selection Committee duly constituted under
Rule 96 of the Delhi School Education Rules.
In view of the said position, the precise
question to be answered by this Court is as to
whether the petitioner was lawfully and validly
selected in terms of Rule 96 of the Delhi
School Education Rules or not. Before
adverting to Rule 96 of the Delhi School
Education Rules, it may be pointed out that
respondent No.2 has evolved an elaborate
selection procedure for the appointment of
teachers through the process of conducting
Combined Screening Board (in short referred
to as CSB) and Local Screening Board (in short
referred to as LSB). The candidates who
qualify the written test either LSB or CSB are
given authenticated "score cards". This score
card, issued by the respondents, gives details
as to when the candidate has qualified a
particular written test and for which post,
including the percentage scored by the
candidate in part A and b exams."
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I also do not find any force in the arguments of
the counsel for respondent No.2 that
respondents No.2 and 3 being not the State,
the writ petition under Article 226 of the
Constitution of India is not maintainable.
Admittedly, respondents No.2 and 3 are
discharging important public functions,
namely, imparting education to the children,
therefore, to that extent the respondents are
performing the functions of the State and
recruitment of teachers to achieve the said
object is also in discharge of the public
function by respondents No.2 and 3. The
teachers who impart education have an
element of public interest in the performance
of their duties and in view of the settled legal
position as authoritatively pronounced by the
Supreme Court at (2005) 4 SCC 649 entitled
Zee Telefilms Ltd. and Anr. vs Union of India &
Ors. the present writ petition is maintainable.
It will be relevant to reproduce the following
paragraphs from the judgment:-
"31. Be that as it may, it cannot be
denied that the Board does discharge
some duties like the selection of an
Indian cricket team, controlling the
activities of the players and others
involved in the game of cricket. These
activities can be said to be akin to public
duties or State functions and if there is
any violation of any constitutional or
statutory obligation or rights of other
citizens, the aggrieved party may not
have a relief by way of petition under
Article 32. But that does not mean that
the violator of such right would go scot-
free merely because it or he is not a
State. Under the Indian jurisprudence
there is always a just remedy for the
violation of a right of a citizen. Though
the remedy under Article 32 is not
available, an aggrieved party can always
seek a remedy under the ordinary course
of law or by way of a writ petition under
Article 226 of the Constitution, which is
much wider than Article 32.
32. This Court in the case of Andi Mukta
Sadguru Shree muktajee Vandas Swami
Swarna jayanti Mahotsav Smarak Trust
vs. V.R. Rudani has held:
"Article 226 confers wide powers on the
High Courts to issue writs in the nature
of prerogative writs. This is a striking
departure from the English law. Under
Article 226, writs can be issued to „any
person or authority‟. The term
„authority‟ used in the context, must
receive a liberal meaning unlike the term
in Article 12 which is relevant only for
the purpose of enforcement of
fundamental rights under Article 32.
Article 226 confers power on the High
Courts to issue writs for enforcement of
the fundamental rights as well as non-
fundamental rights. The words „any
person or authority‟ used in Article 226
are, therefore, not to be confined only
to statutory authorities and
instrumentalities of the State. They may
cover any other person or body
performing public duty. The form of the
body concerned is not very much
relevant. What is relevant is the nature
of the duty imposed on the body. The
duty must be judged in the light of
positive obligation owed by the person or
authority to the affected party, no
matter by what means the duty is
imposed. If a positive obligation exists
mandamus cannot be denied."
33. Thus, it is clear that when a private
body exercises its public functions even
if it is not a State, the aggrieved person
has a remedy not only under the
ordinary law but also under the
Constitution, by way of a writ petition
under Article 226. Therefore, merely
because a non-governmental body
exercises some public duty, that by itself
would not suffice to make such body a
State for the purpose of Article 12. In
the instant case the activities of the
Board do not come under the guidelines
laid down by this Court in Pradeep
Kumar Biswas case hence there is force
in the contention of Mr. Venugopal that
this petition under Article 32 of the
Constitution is not maintainable."
I also do not find any merit in the
arguments of the counsel for the respondent
that the petitioner has acquiesced and waived
her right to claim the relief of appointment on
the post of PGT (Chemistry) by accepting her
contractual and ad hoc employment w.e.f.
1.7.2004 to 30.6.2005. The petitioner has duly
clarified in the petition under what
circumstances she was kept under a belief that
she would be interviewed for CSB for her final
selection on the regular post of PGT
(Chemistry). The letter dated 16.2.2005
issued by the petitioner was due to her bona
fide belief and, therefore, it cannot be said
that by writing the said letter the petitioner
can be debarred from claiming the relief of
appointment on the post of PGT (Chemistry) in
case of such a relief is otherwise legally
available to her. Doctrine of estoppel does not
come in the way of the present facts and
circumstances of the case."
40. In the light of the aforesaid discussions, the writ petition is
allowed. The respondents No.2 and 3 are directed to issue an
appointment letter in favour of the petitioner for her appointment on
the regular post TGT (English) in Army Public School, Dhaula Kuan,
New Delhi, pursuant to her selection by the Selection Board who
selected her on 23.2.2008 within two weeks from today.
41. The writ petition is disposed of. No costs.
MANMOHAN SINGH, J.
DECEMBER 03, 2010
dp/jk
