Delhi High Court
Hem Singh vs Army Public School on 1 November, 2010
Author: Manmohan Singh
* HIGH COURT OF DELHI : NEW DELHI
+ WP (C) No. 1184/2010
Hem Singh ....Petitioner
Through: Mr. K.C.Dubey, Adv.
Versus
Army Public School .....Respondent
Through: Ms. Asha Jain Madan, Adv.
% Judgment pronounced on : 01.11.2010
Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether the Reporters of local papers may
be allowed to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported
in the Digest?
MANMOHAN SINGH, J.
1. Petitioner was appointed as Estate Supervisor by the
Respondent on 15-03-2007. The Respondent school is a unit
of Army Welfare Education Organization under the Adjutant
General's Branch. The Army Headquarters has full control
over Army Welfare Education Organization. The maximum
period of probation the petitioner can be subjected to is 2yrs
as per Regulation 125 of the concerned rules.
2. As per letter dated 30-05-2008 given to the petitioner, the
respondent again appointed the petitioner on the probation
period of one year for the post of Estate Supervisor w.e.f.
01-04-2008 and period was subject to extension as per the
discretion of Managing Committee.
3. The probation period of the petitioner was extended for one
year vide letter dated 31-03-2009. The petitioner being
working since 15-03-2007 for more than two years is deemed
to be a regular employee as per the rules and regulations
concerned to him as per the case of the petitioner. According
to him, he has been given all the benefits as of a post of
regular employee as regular salary as per recommendations
of the VI pay commission of the Central Government, the
arrears of the adoption of the VI Pay Commission, a staff
quarter since 01-01-2008 (deductions of House Rent
Allowance from monthly salary for quarter) and other legal
benefits.
4. The petitioner states that instead of giving recognition as a
regular permanent employee to the petitioner, the
respondent threatened to remove him from services on his
asking for letter of regular post.
5. The Directorate of Education, Government Of Delhi, during
inspection for recognition of the school issued letter dated
28-01-2008 pointing out irregularities committed by the
respondent while appointing staff on consolidated salary in
violation of the provisions of the Delhi Education Act.
Assistant Director of The Directorate of Education also issued
letter dated 06-05-2008 to the Respondent for the said
violation. Respondent gave an undertaking stating that they
will not appoint staff in violation to the said act.
6. On 16-02-2010, petitioner filed a Writ petition bearing No.
1076/2010 against the respondent for regularization of his
services and quashing of letter dated 31-03-2009 extending
the probationary period of his services.
7. On 19-02-2010, the respondent terminated the services of
the petitioner through letter bearing no. 1105/APS.SV. On 22-
02-2010, the court granted him liberty to file a writ petition
challenging his termination letter.
8. Thus this Writ Petition is filed by the petitioner in front of this
court to direct the respondent to grant him permanent status
to the post of Estate Supervisor, to quash letter dated
31-03-2009 relating to extension of his probation period and
to quash the letter dated 19-02-2010 relating to his
termination.
9. Respondent in the counter affidavit contended that
petitioner is not competent to file this petition as respondent
is not a state within the meaning of Article 12 of the
Constitution Of India.
10. Respondent contended that as per provisions of Rule 129 of
the rules and regulations of the school, petitioner being an
administrative staff was appointed as a term based employee
for one year period from 15-03-2007 to 14-03-2008, after
which his employment will automatically cease. Also the
respondent was not a recognized school when petitioner was
appointed and so operated as per its own rules and regulation.
Respondent was granted a provisional recognition on 03-07-
2008 for academic session till 31-03-2009 and permanent
recognition for 2009/10 academic session vide letter dated 26-
02-2010/03-03-2010 subject to abide by provisions of Delhi
School Education Act & Rules, 1973.
11. The petitioner w.e.f. 01-04-2008 was appointed on probation
period under Regulation 125 of the School Regulation. The
probation period of the petitioner was extended as his
performance was not found satisfactory. The petitioner was
terminated during his probationary period and so has no rights
on the post.
12. During the course of hearing of the writ petition, the learned
counsel for the respondent has also raised the objection about
jurisdiction of this Court in view of the prescribed remedy
available with the petitioner to challenge the order of
termination before the Appellate Tribunal under Section 8(3)
of the Delhi School Act. It is evident that in terms of the
above mentioned provision read with Delhi School Education
Act and Rules, 1973, there is a remedy for appeal against the
order of termination. The petitioner admittedly was
terminated by the impugned letter dated 19.2.2010. This
Court is of view that the petitioner ought to have filed the
appeal against the order of termination and raised his
grievance before the Appellate Tribunal.
13. It is the admitted position that at the time of appointment, the
petitioner was also allotted a staff quarter. The present writ
petition was first time listed on 25.2.2010 when in CM
No.2473/2010, an interim order was passed against the
respondent restraining him from vacating the petitioner from
staff quarter till the next date of hearing.
14. The said interim order is continuing as of today. The
petitioner submits that in-case the present writ petition is
dismissed being not maintainable, the petitioner has to vacate
the staff quarter immediately and great prejudice would be
caused to him.
15. As observed already that in term of specific provision of Delhi
School Act, in normal course an order of termination is to be
challenged by the petitioner before the Appellate Tribunal
under Section 8(3) of the Act which reads as under:
"8. Terms and conditions of service of employees of
recognised private schools-
(1) ...
(2) ....
(3) Any employee of a recognised private school who is
dismissed, removed or reduced in rank may, within three
months from the date of communication to him of the order
of such dismissal, removal or reduction in rank, appeal
against such order to the Tribunal constituted under section
11.
As specific remedy is available with the petitioner, it
would be appropriate for the petitioner to approach the
Appellate Tribunal by filing appeal against the order of
termination dated 19.2.2010. The petitioner is granted time
of two months from today to challenge the order along with
interim application, if so advised.
16. However, in the interests of justice and equity this court is of
the view that since interim order granted on 25.2.2010 has
continued for the last eight months, therefore, the same shall
continue for further period of three months from today. The
interim application, if so filed, along with an appeal shall be
disposed of by the Appellate Tribunal on or before 31.1.2011
as per its own merit.
17. The present writ petition is, therefore, disposed of with the
above mentioned directions.
MANMOHAN SINGH, J.
NOVEMBER 01, 2010
jk/dp
