Arvind Gupta Dav Centenary Public ... vs Smt. Maheshwari & Anr.
2011 Latest Caselaw 4362 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Date of decision: 6th September, 2011

+                           W.P.(C) 5267/2008

%      ARVIND GUPTA DAV CENTENARY
       PUBLIC SHOOL                           .....Petitioner
                    Through: Mr. Sanjay Kumar, Adv.

                                    Versus

    SMT. MAHESHWARI & ANR.                   ..... Respondents
                 Through: Ms. Sangeeta Sondhi, Adv. for R-2.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.     Whether reporters of Local papers may             Not necessary
       be allowed to see the judgment?

2.     To be referred to the reporter or not?            Not necessary

3.     Whether the judgment should be reported           Not necessary
       in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petition impugns the order dated 25.04.2008 of the Delhi School

Tribunal allowing the appeal of the respondent No.1 and setting aside the

order dated 17.11.1999 of the petitioner School dismissing the respondent

No.1from service and directing the petitioner School to decide the question

of salary and allowances to be paid to the respondent No.1 as provided under

Rule 121 of the Delhi School Education Rules, 1973.

2. Notice of the petition was issued and vide order dated 25.07.2008 the

operation of the impugned order stayed. Notices of the petition sent to the

respondent No.1 were received back with the report that she was not residing

at the address given. Vide order dated 25.01.2010, the respondent No.1 was

directed to be served by publication and was so served. None appeared for

the respondent No.1 inspite of publication. None has appeared for the

respondent No.1 today also. The stay of the order of the Tribunal has

continued for the last over three years; as a consequence thereof, the

respondent No.1 has not been able to avail any benefit of the order of the

Tribunal in her favour; notwithstanding the same, the respondent No.1 has

not appeared before this Court. The respondent no.1 is proceeded against ex

parte. The counsel for the petitioner and counsel for respondent no.2 DOE

have been heard.

3. The counsel for the petitioner has contended that the respondent No.1

was employed as an 'Aya' with the Nursery Wing of the petitioner School;

that she was placed under suspension on 27.10.1994 and after holding an

inquiry was dismissed from service on 17.11.1999. It is further contended

that the Nursery Wing of the petitioner School was unrecognized at the time

of initial employment of the respondent No.1. The School from classes I to

VIII only was granted recognition on 30.05.1989 and the Nursery Wing of

the School in which the respondent No.1 was employed was granted

recognition only with effect from 23.03.1999. It is thus contended that the

provisions of the Delhi School Education Act, 1973 and the Rules were not

applicable to the employment of the petitioner on 27.10.1994 when she was

placed under suspension and it is further contended that the petitioner School

even thereafter being an unaided School was not required to obtain any

approval from the Directorate of Education before terminating the services

of the respondent No.1 and on which ground the Tribunal has held the

termination to be illegal. Reliance is placed on TMA Pai Foundation Vs.

State of Karnataka AIR 2003 SC 335.

4. The Tribunal has held that there was nothing on record to show that

the respondent No.1 was an employee of the Nursery Wing of the School

which was unrecognized and has further held that the principles of natural

justice had not been complied with in the matter of termination of

employment of the respondent No.1.

5. I may notice that the Division Bench of this Court in Kathuria Public

School Vs. Director of Education 123 (2005) DLT 89 has held that the

Rules requiring prior and ex post facto approval for disciplinary proceedings

against employees have no application to private unaided Schools. Even

though the Full Bench of this Court in judgment dated 27th August, 2010 in

O.Ref.1/2010 titled Presiding Officer, Delhi School Tribunal Vs. GNCTD

has disagreed with another part of Kathuria Public School (supra) but not

with the aforesaid aspect. The Tribunal has unfortunately failed to notice the

said judgment and has relied upon judgment in Frank Anthony Public

School Employee Association Vs. Union of India (1986) 4 SCC 707 which

is no longer a good law after the judgment in Kathuria Public School.

6. Moreover, from the conduct of the respondent No.1 of inspite of stay

by this Court of the order of the Tribunal directing the petitioner School to

reinstate the respondent No.1, having chosen to not appear, it appears that

the respondent No.1 is no longer interested in her employment with the

petitioner School.

7. The writ petition therefore succeeds. The order of the Delhi School

Tribunal impugned in this petition is set aside / quashed. Resultantly, the

order of the petitioner School dismissing the respondent No.1 from

employment shall remain in force. The petition is disposed of. No order as

to costs.

RAJIV SAHAI ENDLAW (JUDGE) SEPTEMBER 06, 2011 'gsr'