Sunita Prem John vs Govt. Of Nct Of Delhi And Ors.
2013 Latest Caselaw 5604 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No.8474/2011

%                                                   3rd December, 2013

SUNITA PREM JOHN                                     ..... Petitioner
                          Through:       Mr. C.S. Parashar, Advocate.


                          Versus

GOVT. OF NCT OF DELHI AND ORS.                ...Respondents

Through: Mr. Rajiv Nanda, ASC with Mr. Manish Kumar Vikkey, Advocate for respondent No.1.

Mr. Ashwani K. Sakhuja, Advocate with Mr. Puneet Saini, Advocate for respondent Nos.2 to 4.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. Petitioner, who was appointed as a Maid on 25.7.2003 by the

respondent no.2/M/s Queen Marry School, seeks the relief of confirmation

as a regular employee of the respondent-school w.e.f her date of

completion of her probationary period on 24.7.2004. All consequential

monetary benefits are also claimed by the petitioner. The need to file the

writ petition arose because the services of the petitioner were being

transferred by the school to a private contractor.

2. On 11.11.2013, I passed the following order:-

"1. On 2.9.2013, I referred to the judgment passed by me in the case of Army Public School Vs. Narendra Singh Nain and Anr. in W.P.(C) No.1439/2013 decided on 30.8.2013.

2. I have today heard the counsel for the petitioner. At the stage of arguments to be urged on behalf of respondent-school represented by respondent Nos.2 and 3, counsel states that he would like to seek instructions with respect to the petition without prejudice to the rights and contentions of respondent-school.

3. At request, list on 3rd December, 2013. It is however made clear that purpose of the adjournment is only to resolve the issue and failing which the issue would be decided on merits on the next date of hearing."

3. The issue in the present case is fully covered by the ratio of

the judgment passed by me in the case of Army Public School Vs.

Narendra Singh Nain and Anr. in W.P.(C) No.1439/2013 decided on

30.8.2013 which holds that an employee of a school cannot be appointed

on ad hoc basis unless there are administrative exigencies as existing in

Rule 105 (3) of the Delhi School Education Rules, 1973 and if without

administrative exigency an ad hoc appointment is given then in that case,

the employee will be treated as a regular employee from the original date

of employment. The relevant paras of the judgment in the case of Army

Public School (supra) are paras 2 to 8 and which read as under:-

"2. The facts of the case are that respondent No.1 was firstly appointed as Lower Division Clerk (LDC) on contractual basis by the petitioner-school for a period of one year in terms of letter dated 3.12.2007. After the contractual period came to an end, respondent No.1 was immediately re-appointed as LDC, however on probation, in terms of the appointment letter dated 30.5.2008. The period of probation was one year from 1.4.2008. As per the appointment letter the respondent No.1 was to continue in probation till the services were confirmed in writing by the Managing Committee of the petitioner-school. The period of probation of the petitioner was extended by the petitioner-school for one more year from 1.4.2009 (i.e till 31.3.2010) by the letter dated 31.3.2009. Respondent No.1's services were terminated by a letter dated 21.3.2010 observing that as per the performance reports and advisories given during the extended period of probation, the respondent No.1's services were to stand terminated w.e.f 29.3.2010. Respondent No.1 was however immediately again appointed on 8.4.2010 as a part-time Admission Clerk for one year w.e.f 3.4.2010. Respondent No.1 had however in the meanwhile challenged the order of the petitioner-school terminating his services vide letter dated 21.3.2010 before DST, and consequently when the notice of the appeal filed before the DST reached the petitioner-school, it is contended by the respondent No.1 that immediately thereafter on 10.6.2010, the petitioner-school terminated the contractual appointment given by the letter dated 8.4.2010 by simply stating that the petitioner school no longer requires the services of the respondent No.1.

3. On the basis of the admitted facts: in the form of various appointment letters and the termination letters which have been issued by the petitioner-school as detailed above; the provision of Rule 105 of the Delhi School Education Act & Rules, 1973; the judgment delivered by me in the case of Hamdard Public School Vs. Directorate of Education and Anr. in W.P.(C) No.8652/2011 decided on 25.7.2013 interpreting Rule 105; and, the judgment of the Supreme Court in the case of Management Committee of Montfort Senior Secondary School Vs. Sh. Vijay Kumar and Ors., (2005) 7 SCC 472 read with Division Bench judgment of this Court in the case of Social Jurist, a Civil Rights Group Vs. GNCT & Ors. 147 (2008) DLT 729, the issues which arise, and on which

counsel for the parties have been heard, are first as to whether the respondent No.1 at all can be said to only be a contractual employee in terms of the first contractual appointment letter dated 3.12.2007 or whether the employment of respondent No.1 since inception in the peculiar facts of this case would have a statutory favour in view of the provisions of the Delhi School Education Act and Rules, 1973, and secondly as to whether the actions of the petitioner- school amount to over-reach the provision of Rule 105 and is, therefore, against the ratio not only of the categorical language of Rule 105 but also the ratio of the judgment passed by me in the case of Hamdard Public School Vs. Directorate of Education and Anr. (supra). The following issues are, therefore, crystallized for decision by this Court:

(i) Should the respondent No.1's services in the facts of this case be not taken as having statutory protection in terms of the Delhi School Education Act and Rules, 1973 since the original date of the contractual appointment in terms of letter dated 3.12.2007. Related with this issue would be whether the respondent No.1 is estopped from challenging the nature of appointment as contractual inasmuch as respondent No.1 thereafter accepted services first as a probationer and thereafter again on contractual basis.

(ii) Whether all the appointment letters, whether giving contractual appointment or as appointment on probation, have to be read in their substance and not in form whereby actually the respondent No.1 should be treated as on probation either from 28.11.2007 or in any case from 1.4.2008 and since there is no mention of termination on account of unsatisfactory services in the termination letter dated 10.6.2010, and none exist as stated in the letter dated 21.3.2010, therefore, respondent No.1 would have confirmation of employment on account of language of Rule 105 and the judgment in the case of Hamdard Public School Vs. Directorate of Education and Anr. (supra).

4. So far as the first issue is concerned, as to whether the respondent No.1's services originally w.e.f 28.11.2007 are contractual in nature or statutory in character, it would be necessary at this stage to refer to the relevant para 10 of the Supreme Court judgment in the case of Management Committee of Montfort Senior Secondary School Vs. Sh. Vijay Kumar and Ors. (supra),

but, before I do so I must hasten to add that the observations which are being made by me in this judgment as regards the first issue is because of the facts of this case whereby I am not treating the first appointment as contractual in nature in spite of the letter dated 3.12.2007 so specifying because I hold this letter, and also subsequent probationary/contractual appointment letters, to be a sham and given only for denying regular employment to respondent No.1 as LDC. The repeated appointments and terminations, have persuaded me to hold that the petitioner's-school's actions are a fraud upon the requirement to normally not to appoint an employee on contract basis. Accordingly, in a case where on account of genuine exigencies a contractual appointment is required (like when a regular employee suddenly leaves etc.) then such employment will be treated as adhoc/temporary/contractual and not a statutory one having protection of the Act & Rules. With this preface let us reproduce para 10 of Montfort Senior Secondary School's case (supra) and which reads as under:-

"10. In St. Xaviers' case (supra) the following observation was made, which was noted in Frank Anthony's case (supra): "A regulation which is designed to prevent mal-administration of an educational institution cannot be said to offend clause (1) of Article 30. At the same time it has to be ensured that under the power of making regulation nothing is done as would detract from the character of the institution as a minority educational institution or which would impinge upon the rights of the minorities to establish and administer educational institutions of their choice. The right conferred by Article 30 is intended to be real and effective and not a mere pious and abstract sentiment; it is a promise of reality and not a teasing illusion. Such a right cannot be allowed to be whittled down by any measure masquerading as a regulation. As observed by this Court in the case of Rev. Sidhajbjai Sabhai (supra), regulations which may lawfully be imposed either by legislative or executive action as a condition of receiving grant or of recognition must be directed to making the institution while retaining its character as minority institution as an educational institution. Such regulation must satisfy a dual test the test of reasonableness, and the test that it is regulative of the educational character of the institution and is conclusive to making the

institution an effective vehicle of education for the minority or other persons who resort to it."

The effect of the decision in Frank Anthony's case (supra) is that the statutory rights and privileges of Chapter IV have been extended to the employees covered by Chapter V and, therefore, the contractual rights have to be judged in the background of statutory rights. In view of what has been stated in Frank Anthony's case (supra) the very nature of employment has undergone a transformation and services of the employees in minorities un-aided schools governed under Chapter V are no longer contractual in nature but they are statutory. The qualifications, leaves, salaries, age of retirement, pension, dismissal, removal, reduction in rank, suspension and other conditions of service are to be governed exclusively under the statutory regime provided in Chapter IV. The Tribunal constituted under Section 11 is the forum provided for enforcing some of these rights....."

5. A reference to aforesaid para shows that the Supreme Court in Management Committee of Montfort Senior Secondary School Vs. Sh. Vijay Kumar and Ors. (supra) has laid down the ratio that the very nature of employment of the employees of a school are that they are no longer contractual in nature but statutory. This observation was made by the Supreme Court in spite of the fact that the minority schools had entitlement under the provisions of Section 15 and Rule 130 of the Delhi School Education Act and Rules, 1973 to have a contract of services for its employees. It be noted that so far as the non-minority schools are concerned there is no provision in the Delhi School Education Act and Rules, 1973 to have a contractual appointment. Therefore, once if minority schools' employees cannot have contractual employment and they have to be treated as statutory employees, then a fortiorily non- minority schools whose employees cannot be engaged in employment on contractual basis, such employees in non-minority school would surely have statutory protection of their services. In Management Committee of Montfort Senior Secondary School Vs. Sh. Vijay Kumar and Ors. (supra) the Hon'ble Supreme Court has made it clear in the aforesaid paragraph 10 that the qualifications, leaves, salaries, age of retirement etc, removal and

other conditions of services are to be governed "exclusively" under the statutory regime provided under the Delhi School Education Act and Rules, 1973. Once that is so, then, as per Rules 118 to 120 of the Delhi School Education Rules, 1973 the services of an employee can only be terminated on account of misconduct and that too after following the requirement of holding of a detailed enquiry and passing of the order by the Disciplinary Authority. Therefore, in view of the categorical ratio of the judgment of the Supreme Court in the case of Management Committee of Montfort Senior Secondary School Vs. Sh. Vijay Kumar and Ors. (supra) and in view of the facts of this case the respondent No. 1's services from the inception cannot be taken as only contractual in nature and would be statutory in nature. Once the services are statutory in nature, and admittedly the respondent No. 1 has not been removed by following the provisions of conducting an enquiry and passing of an order by the Disciplinary Authority as required under the Rules 118 to 120 of the Delhi School Education Rules, 1973, the respondent No. 1's services cannot be said to have been legally terminated. Respondent No. 1, therefore, continues to be in services.

6. To distinguish the applicability of the Supreme Court in the case of Management Committee of Montfort Senior Secondary School vs. Sh. Vijay Kumar and Ors. (supra), learned counsel for the petitioner has urged the following two arguments:

(i) Respondent No.1 is estopped from questioning his first appointment as contractual, thereafter appointment on probation and his termination during the probation period and thereafter again a fresh contractual appointment and finally his termination as per the last contract dated 8.4.2010. It is argued that respondent No.1 having acted upon the aforesaid sequence of events comprised in different appointments cannot now contend that the ratio of the judgment in Management Committee of Montfort Senior Secondary School vs. Sh. Vijay Kumar and Ors. (supra) should come to his aid.

(ii) It is argued that the judgment in Management Committee of Montfort Senior Secondary School vs. Sh. Vijay Kumar and Ors. (supra) was intended only to apply to minority schools and

ratio of the said judgment cannot be read to apply to non-minority schools.

7. So far as the second arguments urged on behalf of the petitioner-school to distinguish the applicability of the ratio in the case of Management Committee of Montfort Senior Secondary School vs. Sh. Vijay Kumar and Ors. (supra), I have already dealt with this aspect above by holding, and the same is reiterated herein, that, if for minority schools, there cannot be contractual appointments, and which in fact was so envisaged under the relevant provisions of the Delhi School Education Act and Rules, 1973, then, surely and indubitably, so far as non-minority schools are concerned, and who do not have provisions even in terms of Delhi School Education Act and Rules, 1973 for making contractual appointments, the ratio of Management Committee of Montfort Senior Secondary School vs. Sh. Vijay Kumar and Ors. (supra) would squarely apply and the employees of the non- minority schools will be treated not as contractual employees of the schools but statutory employees having statutory protection in terms of the relevant provisions of the Delhi School Education Act and Rules, 1973.

8. So far as the first argument of estoppel is concerned, that argument is attractive only at the first blush, however, this argument overlooks the elementary principle that there is no estoppel against law. Of course, there may be estoppel against law where the provisions of law are only for private individual interest and not meant to be in public interest, however, considering that statutory protection is given to the employees of a school and which results in stability to the education system, the same therefore cannot be held to be as not in public interest, more so after amending of the Constitution by introduction of Article 21A by which right to education has been made as a fundamental right for children from the ages of 6 to 14 years. Also one cannot ignore the fact that right to education otherwise also is an important part of Directive Principles of State Policy vide Article 41 and Article 45 of the Constitution, and thus subject of education itself has been treated by the Supreme Court as a public function and consequently, writ petitions lie against even private educational institutions. Reference need in this regard be only made to the

Constitution Bench judgment of the Supreme Court in the case of Unni Krishnan J.P. & Ors. etc. etc. Vs. State of A.P. & Ors. etc. etc. 1993(1) SCC 645 and which clearly holds that the subject of education is a public function, and hence writ petitions are maintainable even against private educational institutions."

4. I may note that in this case in spite of opportunities being

given, no counter-affidavit has been filed and only an application under

Order 7 Rule 11 CPC was filed on the ground that petitioner was indulged

in forum shopping by seeking remedies filed under the Delhi School

Education Act and Rules, 1973 (DSEAR, 1973) as also the Industrial

Disputes Act, 1947. It is also stated that petitioner approached the civil

court for redressal of her grievances. Mere filing of such an application is

not an automatic stay for filing of the counter-affidavit. The fact of the

matter is that none of the earlier proceedings stand decided and since the

issue in the present case is a pure question of law and delay in disposal of

the rights claimed by the petitioner will cause prejudice to her, I am of the

opinion that the writ petition is not liable to be dismissed by invoking

provision of Order 7 Rule 11 CPC by the school, and therefore I am

deciding the petition on merits. I may also state that petitioner has already

moved an application for withdrawal of the proceedings initiated under the

Industrial Disputes Act, 1947 and therefore I am not agreeable to dismiss

the writ petition on the ground of enforcement of other remedies. So far as

the case in civil court is concerned, the civil court will actually have no

inherent jurisdiction inasmuch as issues as are urged and which have to be

decided in the writ petition can only be decided by the Delhi School

Tribunal under the DSEAR, 1973 or under the Industrial Disputes Act,

1947. It has been held by a learned Single Judge of this Court in the case

of Apeejay School Vs. Sh. Darbari Lal & Ors. 170 (2010) DLT 608 that

an employee of the school can invoke remedies either under the Industrial

Disputes Act, 1947 or under the DSEAR, 1973, and he is accordingly

bound to seek his remedies under one of the two specific statutes only.

5(i) Counsel appearing for the respondent nos.2 to 4 states that the

petitioner was an employee of the school till the year 2010 however she

thereafter was transferred as an employee of the society which runs the

school, and as the petitioner accepted her appointment with the society,

consequently, the petitioner is estopped from claiming that petitioner can

continue as an employee of the school.

(ii) This argument which is urged on behalf of the school cannot

be accepted because of two reasons. Firstly, there is no document which is

filed before me showing that the petitioner accepted her employment with

the respondent no.4-society without any objection or protest. Once there is

no valid consent as regards the act of the petitioner for accepting her

transfer of employment from respondent no.2-school to respondent no.4-

society, I cannot agree that petitioner will become an employee of the

society. The second reason for rejecting the argument is that estoppel arises

when a person with open eyes knowing all the facts and the legal position

accepts a particular state of affairs. In the present case, if the petitioner is

allowed to be transferred from respondent no.2-school to respondent no.4-

society, petitioner will lose the statutory protection which is afforded to her

services ( as also other related service benefits) as per the provisions of

DSEAR, 1973. The employment of a person in a school is a statutory

employment and such an employee cannot be removed except following

the procedure provided under Rules 118 to 120 of the Delhi School

Education Rules, 1973. This is so held by the Supreme Court in its

judgment in the case of Management Committee of Montfort Senior

Secondary School Vs. Sh. Vijay Kumar and Ors., (2005) 7 SCC 472 and

which has been referred to by me in the judgment in the case of Army

Public School (supra). I have also held the issue of estoppel against the

school in Army Public School's case (supra) as per para 8 thereof and

which reasoning is squarely also applicable in this case. Therefore, the

statutory protection of employment given to employees of the school

governed by DSEAR, 1973 cannot be taken away allegedly on the ground

of estoppel as is sought to be argued by the respondent nos.2 to 4 before

me.

6. A resume of the above shows as under:-

(i) Petitioner was appointed as a maid by the respondent no.2-school

and she successfully completed her probation on 24.7.2004.

(ii) Petitioner worked with the school admittedly till the year 2010 when

she was sought to be transferred as per the statement made before me by

the counsel for the respondent nos.2 to 4 from the respondent no.2-school

to respondent no.4-society.

(iii) Petitioner once is an employee of the school, she has all the statutory

protections and benefits as provided under the DSEAR, 1973, and such

statutory protections cannot be taken away, much less on the ground of

estoppel as is sought to be urged by the respondent nos.2 to 4.

(iv) Once the petitioner is an employee of the school governed by the

DSEAR, 1973, Section 10 of the Delhi School Education Act, 1973 will

apply and petitioner will be entitled to all the monetary benefits as payable

to a regular employee of a school of Government of NCT of Delhi and

petitioner cannot be forced to take monetary emoluments lesser than what

is her legal right under Section 10 of the Delhi School Education Act,

1973.

(v) Petitioner will only be entitled to monetary emoluments three years

prior to filing of the writ petition and not from her confirmation w.e.f

24.7.2004 inasmuch as amounts claimed which are payable three years

prior to the filing of the petition would be time barred.

7. In view of the aforesaid, writ petition is liable to be allowed

and is allowed accordingly by holding that the petitioner continues to be

the employee of the respondent no.2-school and her services cannot be

transferred to the respondent no.4-society. Petitioner has already received

certain monetary benefits inasmuch as her services have continued (by the

respondent no.2 or at best as per the claim made on behalf of respondent

nos.2 to 4 by the respondent no.4) and therefore for the payments which

have to be made to the petitioner in view of allowing of the writ petition

the same will be after adjustment of the amounts which have been received

by the petitioner in this period of three years from filing of the writ petition

and till date. The arrears which will be payable to the petitioner in terms of

the present judgment i.e from three years prior to the filing of the writ

petition till date will be paid within a period of three months from today.

In case, the amounts are not paid within a period of three months from

today, thereafter, petitioner will be entitled to interest on unpaid amount @

7 ½ % per annum simple. I am not awarding any interest for the past

period and for a period of three months only as a matter of equity to the

respondent no.2-school which is stated to be not a very big school.

Petitioner will also be entitled to theoretical benefits of seniority for any

other monetary benefits including of Assured Career Progression Schemes

etc etc if they be applicable and the petitioner will be taken to be a regular

employee of the respondent no.2-school w.e.f 24.7.2004. Pay of the

petitioner from today will be fixed at the same rate as payable to similar

employees of schools which are run by the Government of NCT of

Delhi taking his employment w.e.f 24.7.2004.

8. Writ petition is allowed and disposed of in terms of aforesaid

observations, leaving the parties to bear their own costs.

DECEMBER 03, 2013                              VALMIKI J. MEHTA, J.
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