Tabita Chand vs Director Of Education & Ors.
2013 Latest Caselaw 955 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+            WP(C) No. 7585/2008 with CM Nos.14666/2008 ,
                       9225/2009 & 2463/2013
%                                               February 26, 2013

      TABITA CHAND                                       ..... Petitioner
                          Through:       Mr. Romy Chacko, Adv.

                          versus

      DIRECTOR OF EDUCATION & ORS.             ..... Respondents

Through: Ms. Latika Dutta, Adv. for Mr. S.D. Salwan, Adv. for R-1.

Mr. Azeem Samuel, Adv. for R-4.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. The present writ petition is filed by the petitioner who was

recommended to be appointed as a Principal by the Managing Committee of

the respondent/school, M/s. B.M.Gange, Girls Senior Secondary School, and

which school is represented by respondents No. 2 and 3.

2. The case of the petitioner is that the petitioner was

recommended to be appointed as the Principal by the Managing Committee

on 1.7.2008. By the said `meeting, the Managing Committee appointed the

petitioner subject to approval of the Director of Education to the

appointment of the petitioner, and therefore the approval of the Director of

Education was sought. The Director of Education vide letter No. 2582/VII

dated 15.7.2008 refused to grant approval to the name of the petitioner for

being appointed as Principal of the school. The petitioner contends that

Director of Education has no role to play in giving approval because as per

proviso to Rule 98 of the Delhi School Education Rules, 1973 with respect

to a minority aided school, no prior permission is required of the Director of

Education. I may only note that the Director of Education refused approval

vide letter dated 15.7.2008 on the ground that the petitioner was not the

senior most PGT entitled to be appointed as a principal of the school.

3. On behalf of the respondent/school a stand is taken up that the

petitioner was appointed only as an officiating Principal, however, after

receiving the refusal of the Director of Education, one Mrs. M.M.Philip who

is the respondent No.4 in this petition was appointed as an officiating

Principal subject to approval being obtained of the Director of Education. In

this regard the respondent/school relies upon the resolutions of the

Managing Committee dated 27.8.2008 and 31.3.2009 showing taking over

charge as an officiating Principal by Mrs. M.M.Philip/respondent No.4. The

second resolution dated 31.3.2009 also talks of the fact that the petitioner

had allegedly wrongly taken 'no objection" by undue means from the other

persons who were senior in the list to her, and which was one of the grounds

for withdrawal by the Managing Committee of the earlier resolution dated

1.7.2008 in the subsequent resolution dated 31.3.2009.

4. The aforesaid facts show that really the dispute is in fact a

dispute between the petitioner and the respondent/school. Since it is the

common case of the parties that Director of Education has no role to play for

grant of the approval for appointment of the Principal, really the issue

between the parties is the entitlement of the petitioner to continue as a

Principal or the entitlement of the respondent/school to take up a stand and

maintain the stand that the petitioner was removed as an officiating Principal

and in fact the respondent No.4 was appointed as an officiating Principal.

5. As per the judgment of the Supreme Court in the case of Shashi

Gaur vs. NCT of Delhi & Ors., 2001 (10) SCC 445, any issue between an

employee or teacher of a school and the school pertaining to removal, has

necessarily to be decided by approaching the Delhi School Tribunal which is

constituted under the Delhi School Education Act, 1973. Since the

petitioner claims that she ought to continue as a Principal, and the

respondent/school states by relying upon the resolutions dated 27.8.2008 and

31.3.2009 that the petitioner since long was removed and is no longer the

officiating Principal of the school, there is no issue of violation of any

fundamental right of the petitioner for invoking the jurisdiction under Article

226 of the Constitution of India. I again reiterate that this is not a case

where the petitioner seeks enforcement of any provision of the Act or Rules

as against the respondent/school or the respondent No.4 who is the present

officiating Principal of the school.

6. It has been held by the Supreme Court in the judgment of

Satimbla Sharma vs. St. Paul's Senior Secondary School dated 11.8.2011

in Civil Appeal No.2676/2010 that any dispute between an employee and a

school, will not make the school a State as per Article 12 of the Constitution

of India for exercising of writ jurisdiction under Article 226 of the

Constitution of India.

7. In view of what is stated above without commenting one way or

the other on the merits of the validity or invalidity of the appointment of the

petitioner as the Principal of the school or otherwise of her removal from the

post of the Principal of the school, and similarly on all such aspects qua the

respondent No.4, this writ petition is dismissed with liberty to the petitioner

to approach the Delhi School Tribunal acting under the Delhi School

Education Act, 1973.

8. Finally, I may state that this Court had granted an interim order

of status quo on 29.7.2009, however, since the resolutions of the

respondent/school dated 27.7.2008 and 31.3.2009 show that it was the

respondent No.4/Mrs. M.M.Philip who was continuing as the officiating

Principal, the status quo order would only mean that as on 29.7.2009 it was

the respondent No.4 who was continuing as an officiating Principal of the

school and she would be entitled to continue as officiating Principal of the

school, subject to any interim or final orders which may be passed by the

Delhi School Tribunal.

9. Writ petition is accordingly disposed of.

VALMIKI J. MEHTA, J FEBRUARY 26, 2013 ak