Delhi High Court

Ajinder Kaur Lamba & Ors. vs Guru Harkrishan Public School & ... on 30 May, 2011

Author: Rajiv Sahai Endlaw

14, 4, 10, 11, 12, 15 to 78.
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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                           W.P.(C) 9799/2009

      AJINDER KAUR LAMBA & ORS.                ..... Petitioners
                   Through: Mr. R.K. Saini & Mr. Vikas Saini,
                            Advocates
                               Versus
      GURU HARKRISHAN PUBLIC SCHOOL
      & ORS.                                 ...... Respondents
                  Through: Ms. Jyoti Singh, Sr. Advocate with
                           Mr. Bhagwant Singh, Ms. Manpreet
                           Kaur, Mr. Kirtiman Singh, Mr.
                           Mansimran Singh, Advocates.
                           Reeta Kaul, Advocate for R-2
                                  AND
      W.P.No.2360/2010, 1948/2010, 2405/2010, 2411/2010, 9826, 9834,
      9839, 9841, 9842, 9843, 9845, 9846, 9860, 9861, 9862, 9863, 9864,
      9865, 9866, 9867, 9868, 9879, 9880, 9881, 9882, 9883, 9997, 9998,
      9999, 10019, 10020, 10021, 10022, 10023, 10024, 10025, 10040,
      10041, 10042, 10043, 10044, 10045, 10046, 10047, 10048, 10049,
      10050, 10161, 10173, 10565, 10566, 11183, 11184, 11185, 11186,
      11587, 12047, 12319, 12321, 13015, 13016, 13082, 13442, 13443,
      13444, 13997 all of 2009, 353/2010 & 882/2010.

      Present:-    Dr. Sarabjit Sharma with Ms. Jasmine Detwani & Ms
                   Prerna Verma, Advocates for petitioners in W.P(C) 9861,
                   9860, 9862, 9863, 9864, 9865, 9866, 9867, 9868, 10565,
                   10566, 11587, 13015, 13016, 13997 all of 2009 and
                   353/2010.
                   Mr. I.S. Alag with Mr. J.S. Lamba, Advocates for
                   petitioners in W.P.(C) 9839, 9841, 9842, 9843, 9845,
                   9845, 9846, 10040, 10041, 10042, 10043, 10044, 10045,
                   10046, 10047, 10048, 10049, 10050, 11183, 11184,
                   11185, 11186 & 13082 all of 2009.                  1/12
       Mr. Baljit Singh, Advocate for petitioner in W.P.(C)
      10019, 10020, 10021, 10022, 10023, 10024, 10025 all of
      2009.
      Mr. R.K. Saini & Mr. Vikas Saini, Advocates for
      petitioners in W.P.(C) 9826, 9834 all of 2009.

      Ms. Jyoti Singh, Sr. Advocate with Mr. Bhagwant Singh,
      Ms. Manpreet Kaur, Mr. Kirtiman Singh, Mr. Mansimran
      Singh, Advocates for respondents in W.P.(C) 2360/2010,
      2405/2010, 2411/2010, 9826, 9834, 9839, 9841, 9842,
      9843, 9845, 9846, 9860, 9861, 9862, 9863, 9864, 9865,
      9866, 9867, 9868, 9879, 9880, 9881, 9882, 9883, 9997,
      9998, 9999, 10019, 10020, 10021, 10022, 10023, 10024,
      10025, 10040, 10041, 10042, 10043, 10044, 10045,
      10046, 10047, 10048, 10049, 10050, 10161, 10173,
      10565, 10566, 11183, 11184, 11185, 11186, 11587,
      12047, 12319, 12321, 13015, 13016, 13082, 13442,
      13443, 13444, 13997 all of 2009, 353/2010 & 882/2010
      Ms. Purnima Maheshwari, Advocate for R-4 in W.P.(C)
      9843, 9879, 9880,9881,9882 all of 2009.
      Ms. Reeta Kaul, Advocate for R-4 in W.P.(C)
9883/2009.
      Ms. Bandana Shukla for Ms. Ruchi Sindhwani, Advocate
      for R-4/DOE in W.P.(C) 9997, 9998, 10173 all of 2009.
      Mr. Sumit Chander, Advocate for R-4/DOE in W.P.(C)
      10161/2009.
      Ms. Shobhana Takiar, Advocate for R-GNCTD in
      W.P.(C)12319/2009.
      Ms. Sangeeta Sondhi & Mr. Rahul Sood, Advocates for
      R-2 in W.P.(C)12321/2009.
      Ms. Sana Ansari for Ms. Zubeda Begum, Advocate for
      R-DOE in W.P.(C)13442, 13443 & 13444 all of 2009.
      Mr. S.Q. Kazim with Mr. M.H. Usmani, Advocates for
      R-2 in W.P.(C) 882/2010.
                                                        2/12
       CORAM:
      HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                        ORDER

% 30.05.2011

1. These sixty nine petitions are being listed together and common

orders have been passed therein. Common questions of law and facts are

stated to be entailed therein. The counsels inform that the petitioner/s in all

the petitions are teaching/non-teaching employees of the Guru Harkrishan

Public Schools at different locations in Delhi. The petitions have been filed

impugning the orders of termination of employment

2. The counsels inform that there are two categories of cases. One

category is of regular employees of the schools who have been served with

termination order. The other category is of employees who were on

probation and who had been issued letters of confirmation but which letters

of confirmation were withdrawn and termination letters issued. In the latter

category of cases, withdrawal of letters of confirmation is also challenged.

3. Vide interim orders in all the petitions except W.P.(C) 2405/2010, the

respondent schools were directed to maintain status quo. It is informed that

by virtue of the said interim orders, all the petitioners are continuing in the

employment of the respondent schools, except the petitioner in W.P.(C)

No.2405/2010 who is stated to be out of employment.

4. The respondents have raised an objection as to the maintainability of

the writ petitions, their contention being that the remedy, if any, of the

petitioners is before the Delhi School Tribunal under Section 8(3) of the

Delhi School Education Act, 1973. The senior counsel for the respondent

schools also informs that in an intra court appeal preferred in some of the

matters, the Division Bench had also directed the issue of maintainability to

be decided first.

5. The counsels for the petitioners however contend that the availability

of an alternative remedy does not absolutely bar the jurisdiction of this

Court under Article 226 of the Constitution. They also invite attention to the

consent order dated 11th May, 2010 in all the petitions, where it was inter

alia agreed that during the pendency of these writ petitions, inquiry may be

conducted by the respondent schools as per applicable rules and be

completed within a period of six months. The counsels for the petitioners

contend that the respondent schools having agreed to hold the inquiry and

which has not been completed till now, cannot now be permitted to urge the

maintainability of the writ petition.

6. The senior counsel for the respondent schools has contended that the

petitioners are creating impediments in the inquiries which have been

commenced and are not allowing the same to be proceeded with and

completed. It is stated that the applications have been filed for extension of

time for completing the inquiry. It is further stated that the inquiries could

not be completed within six months as agreed, also owing to the sheer

number of cases.

7. It has been enquired as to what purpose, the present writ petitions

would serve, once it has been agreed that an inquiry has to be conducted by

the respondent schools in each of the cases. It is felt that upon said

agreement having been reached, the earlier orders, impugned in these

petitions, whether of termination simplicitor or of termination by revocation

of confirmation of probation, would no longer survive and the parties

hereafter would be governed by the outcome of the inquiry as agreed to be

undertaken.

8. The counsels for the petitioners are agreeable that the writ petitions

have become infructuous but state that the same were in consent order dated

11th May, 2010 (supra) kept pending since the petitioners had been granted

interim protection and to enure the same for the benefit of the petitioners

during the pendency of the inquiry.

9. The senior counsel for the respondent schools on the contrary

contends that the writ petitions were kept pending inspite of inquiry having

been agreed upon so that the question of maintainability thereof can be

gone into. It is contended that had the intent been to bind the parties to the

outcome of inquiry proceedings, the writ petitions would have been

disposed off on 11th May, 2010 and not kept pending; she however confirms

that the order (supra) of the Division Bench is of prior to the consent order

dated 11th May, 2010 (supra).

10. I am unable to agree with the contention of the respondent schools.

The inquiry which was agreed upon and which is already stated to be

underway could not have been intended to be an empty exercise. If the

respondent schools are to be held to be entitled to dispense with the services

of petitioners on the basis of the termination orders impugned in the

petitions, the question of holding an inquiry in each case would not have

arisen. The version of the counsels for the petitioners that the petitions were

kept pending to enure interim protection to the petitioners during the

pendency of the inquiry is believable and logical and in consonance with the

order dated 11th May, 2010.

11. Both sets of counsels have pleaded that the time for completion of

inquiry be extended by six months and the writ petitions be kept pending till

then.

12. I fail to see as to what purpose would be served in keeping these writ

petitions pending. Some of the counsels for petitioners have contended that

they have filed interim applications regarding other grievances viz of non-

grant of increments, non-release of salaries or payment of salary at a rate

less than entitlement. In this regard, I may notice that it is one of the terms

of the consent order dated 11th May, 2010 that the respondent schools shall

pay the unpaid salaries to each of the petitioners. The respondents schools

are bound by the said order and if is in breach thereof, the petitioners shall

have remedy thereagainst. The writ petitions cannot be kept pending to

resolve such disputes which may arise between the parties from time to time

and which otherwise are not subject matter of the writ petitions.

13. I am of the opinion that in view of the order dated 11 th May, 2010 the

orders which were impugned in these petitions, are now of no avail and the

parties have agreed to the same being not actionable. The relationship of the

parties would hereafter be governed by the outcome of the inquiry agreed to

be undertaken. The necessary corollary is, that the petitioners continue in the

respondent schools in the same position in which they were immediately

before the orders impugned in the petitions. Axiomatically, there is no need

also of continuing the interim order of status quo. However to avoid any

further ambiguity, it is clarified that each of the petitioners shall continue in

the same position as prior to the order impugned in each of the petitions and

till the decision of the respondent schools in pursuance to the inquiry

aforesaid.

14. Some of the counsels for the petitioners have contended that the

remedy before the School Tribunal is not an alternative and efficacious

remedy owing to the reluctance of the Tribunal in granting interim orders.

This in my opinion cannot be a ground for by passing alternative remedy

provided in pursuance to the mandate of the Constitution Bench of the Apex

Court in T.M.A. Pai Foundation v. State of Karnataka AIR 2003 SC 355.

If the petitioners have any grievance against non-grant of interim orders,

their remedy is thereagainst but not to bypass the alternative remedy

provided.

15. The counsels for the petitioners then seek extension of protection

against disengagement, for two weeks in the event of the report of inquiry

proceedings being against them and fresh orders of their termination being

passed. It is contended that such order is necessary to enable them to

approach the necessary fora and to obtain interim order against their

termination. The senior counsel for respondent schools opposes. She

contends that merely because fresh inquiry has been commenced cannot

place the petitioners in any better position than what they would have been

otherwise.

16. I have weighed the rival contentions. The parties had agreed to the

petitions remaining pending till the fresh inquiry agreed being completed.

For whatsoever reasons, the inquiry could not be completed. If the petitions

are to be kept pending, the petitioners will be protected even in the event of

fresh termination pursuant to such inquiry. The position which the

petitioners would have enjoyed under the consent order cannot be changed

by disposal of these petitions notwithstanding the inquiry having not been

completed.

17. Accordingly, it is directed that the fresh orders if any of termination

of services of petitioners, pursuant to inquiry in terms of order dated 11th

May, 2010 be not implemented for a period of 15 days from communication

to petitioners/dispatch by registered post AD at addresses of the petitioners.

18. As far as the grievance of the respondent schools of the petitioners not

participating in the inquiry is concerned, the same can be allayed by

providing that if any of the petitioners default in the inquiry proceedings,

Inquiry Officer/School shall be entitled to proceed in accordance with law.

The counsels for the petitioners however controvert that the petitioners are

not participating in the inquiry and assure that they will so participate.

19. It is stated that the petitioners in W.P.(C) No.10040, 10041, 10042,

10043, 10044, 10045, 10046, 10047 & 10048, 10050 and 11185 & 11186 all

of 2009 have not been paid salary. The senior counsel for the respondent

schools assures that 50% of the salary shall be released by 10 th June, 2011

and remaining 50% on 10th July, 2011.

20. As far as disputes of rate of salaries, increments etc. are concerned,

the petitioners having been restored to the position as prior to the orders

impugned in the petition would be entitled to avail the remedies therefore,

including of approaching the Directorate of Education with representation

against the school.

21. As far as the petitioner in W.P.(C) No.2405/2010 is concerned, since

he is not continuing in employment, the respondent school is directed to

complete the inquiry proceedings and pass the order thereon on or before

15th July, 2011. If the order is against him, he will have his remedies in law.

22. The challenge in W.P.(C) No.2411/2010 is to designation of the

petitioner therein as a Sweeper; he claims that he was earlier employed as a

Peon-cum-Helper. Since the said writ petition is also covered by the consent

order dated 11th May, 2010, the inquiry in this case be limited to whether

there has been any change in the designation of the petitioner and if so,

whether the respondent school is entitled to do so or not.

23. The petitions are disposed of with the following

directions/observations:-

a. The parties shall remain bound by the consent order dated 11 th

May, 2010.

b. Owing to the said consent order dated 11th May, 2010, the

orders of the respondent schools impugned in each of the

petitions save W.P.(C) 2405/2010, are now no longer

actionable.

c. Each of the petitioner/s save the petitioner in

W.P.(C)2405/2010 shall continue in the same position as

immediately prior to the orders impugned in the petitions and

till fresh decision if any of the respondent schools in pursuance

to the inquiry in terms of the consent order dated 11 th May,

2010.

d. That even if such fresh decision is against the petitioner/s, the

same shall not be implemented for a period of 15 days from

communication thereof to the petitioner/s dispatched by

registered post AD at the addresses of the petitioners, to enable

the petitioners to seek appropriate remedy with respect thereto.

e. The petitioner/s are bound by their assurance to participate in

the inquiry and not to create impediment thereto. Similarly the

respondents are also bound by their assurances recorded herein

above.