V.P. Sharma Through Lrs vs Director Of Education And Anr.
2013 Latest Caselaw 1264 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            WP(C) No.354/2000

%                                                       March 14, 2013

V.P. SHARMA through LRs                                   ..... Petitioner
               Through:           Mr. Sarvesh Bisaria, Advocate.


                    versus


DIRECTOR OF EDUCATION AND ANR.         ..... Respondents

Through: Ms. Navratan Chaudhary, Advocate for respondent No.1.

Mr. R.S. Hedge, Advocate for respondent No.2.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J. MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This writ petition is filed by the petitioner one Mr. V.P.

Shrama against two respondents. Respondent No.1 is the Director of

Education and respondent No.2 is the school where the petitioner was

employed, namely Delhi Kannada Sr. Secondary School. By the writ

petition, the petitioner claims appropriate writ or directions against the

respondents to release the provident fund, gratuity, leave encashments

etc, alongwith interest, for the period for which the petitioner worked

with the respondent No.2-school.

2. The facts of the case are that petitioner was employed by the

respondent No.2-school on 1.11.1962 as a Physical Education teacher.

The petitioner continued to work in the school till 1982 whereupon the

petitioner applied for the foreign assignment vide letter dated 12.6.1984

directly with the respondent No.1 instead of routing it through respondent

No.2. By the time this representation was given on 12.6.1984, petitioner

had already left the services of respondent No.2-school by submitting the

letter dated 1.9.1983 whereby the petitioner is said to have handed over

the charge. The petitioner thereafter pleads that he took up a job in a

school in Muscat. At Muscat, he received an order dated 12.7.1984 from

respondent No.2 removing the petitioner from services. It is not an issue

raised by the petitioner that before the order dated 12.7.1984 was passed

the petitioner was not served with the article of charges. Petitioner

thereafter came back to India in the year 2000 i.e 16 years later from the

year 1984 and filed this writ petition claiming the aforesaid reliefs.

3. Respondent No.1-Director of Education agrees to the stand

of the petitioner in its counter affidavit. Respondent No.1 states that

since the order of removal of services of the petitioner by the respondent

No.2 did not have the consent or approval of the respondent No.1, the

termination of services of the petitioner by the respondent No.2-school is

illegal and bad.

4. On behalf of respondent No.2-school, the defence is

essentially under three heads. The first is that a person who has been

terminated from services after proper departmental enquiry, the necessary

service records were wiped of and which is the consequence that the

order dated 12.7.1984 became final as the same was not challenged in any

Court of law. Secondly, it is contended that respondent No.2 being a

linguistic minority school, there was no requirement of taking of

permission of the Director of Education for terminating the services of

the petitioner as per Section 8(2) of the Delhi School Education Act &

Rules, 1973. Thirdly, it is very vehemently pleaded that petition is barred

by delay and laches because the rights which arose in the year 1984

should not be allowed to be claimed by means of filing of a writ petition

16 years later in the year 2000. I may note that the third argument being

a legal argument though the same is not raised in the counter affidavit, I

have permitted it to be argued. I note that counsel for the respondent

No.2-school contends that the post of the petitioner which was vacated on

the petitioner being terminated from services was filled by another

teacher after due approval of the respondent No.1 by appointing Mr. N.K.

Sharma and for which person grant in aid is being received from the

respondent No.1, but I am not noting the same in detail as I do not

propose to deal with the same in the present judgment.

5. Learned counsel for the petitioner has in support of the

argument that the order dated 12.7.1984 is an order void ab initio relied

upon the judgment of Uttrakhand High Court in the case of Dr. T.C.

Sharma Vs. Gurukula Kangri Vishwavidyalaya in W.P.(C) No.518/2003

decided on 25.11.2010.

6. In my opinion, the writ petition is liable to be dismissed and

the arguments which have been raised on behalf of respondent No.2-

school have to be accepted for the reasons given hereinafter.

7. Firstly, the petitioner was terminated from services way back

in July, 1984 after properly following the requirements of the Delhi

School Education Act and Rules, 1973 of serving of chargesheet,

conducting departmental proceedings and passing of an order. For the

sake of arguments, let us assume that the order was illegal because no

permission was taken of the Director of Education (though as will be

discussed subsequently that no permission of the Director of Education is

required with respect to respondent No.2-school which is a linguistic

minority school), but, merely because an order is argued to be a wrong

order the same cannot mean that it will not become operative or will

become void ab initio as is sought to be urged on behalf of the petitioner.

The rules and the provisions of law being complied with; with respect to

issuance of chargesheet and passing of an order; merely because the order

is said to be illegal will not mean that it would be void ab initio without

the same having been challenged in a Court of law. The order is passed

in July, 1984, this writ petition is filed in the year 2000, and therefore in

that year 2000 the order of July, 1984 cannot be challenged inasmuch as

even if the period of limitation does not apply to a writ petition under

Article 226 of the Constitution of India, however that will not entitle the

petitioner at his own leisure and pleasure to approach the Court whenever

he wishes after years altogether and which is a long period of 16 years in

the present case. But for the fact that the present proceedings are filed as

a writ petition, actually the petitioner could well have filed a suit for

recovery of the amounts claimed in this writ petition because essentially

the relief is the recovery of moneys. For the suit limitation would have

expired in the year 1987. There is no provision in the Limitation Act,

1963 for condonation of delay in filing of a suit. This writ petition filed

in the year 2000 instead of around 1987 will allow a person to avoid

limitation simply by filing the proceedings as a writ petition instead of a

suit. The petition is thus clearly barred by the doctrine of delay and

laches.

8. The judgment which is very heavily relied upon by the

petitioner in the case of Dr. T.C. Sharma (supra) has no application to

the facts of the present case because para 3 of the said judgment shows

that in the said case, the employee was terminated from services of the

University without following the due process of law i.e without issuing

the chargesheet and without holding of an enquiry, whereas in the present

case, as already stated above, due process was followed by issuing of the

chargesheet and holding of an enquiry, and thus the order dated 12.7.1984

cannot be argued to be void ab initio.

9. Therefore, in my opinion, the writ petition is liable to be

dismissed on this ground itself of delay and also in a way by estoppel

against the petitioner inasmuch as an order of July, 1984 cannot be

challenged in the year 2000 inasmuch as the petitioner can be said to have

deemed by the delay of 16 years to have accepted the finality of the order

dated 12.7.1984. I must also add that I am being liberal while

interpreting the aspect of the petitioner challenging the order dated

12.7.1984 in this petition, because, in fact the order dated 12.7.1984 has

not at all in any manner been challenged in the writ petition either in the

prayer clause or by averments constituting a cause of action in the writ

petition as to why the order dated 12.7.1984 is illegal or bad or not

binding.

10. On the aspect as to whether the permission of Director of

Education is required, since respondent No.2 is a linguistic minority

school, no permission of the Director of Education is required under

Section 8(2) of the Delhi School Education Act & Rules, 1973 and which

sub Section has been held to be ultra vires by the Supreme Court in the

judgment of Frank Anthony Public School Employees' Association v.

Union of India (1986) 4 SCC 707. The said judgment has thereafter

been followed in the cases of G. Vallikumari Vs. Andhra Education

Society & Ors. (2010) 2 SCC 497 and Sindhi Education Society Vs.

Chief Secretary, Govt.-NCT of Delhi (2010) 8 SCC 49. Accordingly, I

hold that no prior or post facto permission of the Director of Education

was required for terminating the services of the petitioner by the

respondent No.2-school.

11. In my opinion, there is an additional reason because of

which I would not like to exercise my extraordinary jurisdiction under

Article 226 of the Constitution of India. Petitioner very conveniently got

a job in Muscat and which obviously must have been more profitable to

the petitioner than the job in which he was with respondent No.2. He

would have got such monetary benefit that he could risk his monetary

entitlements from the respondent No.2-school. The petitioner who was a

teacher left his existing employer and the students high and dry for taking

up a more monetary suitable job. Petitioner thereafter worked in the said

job at Muscat till the year 2000 and only then on coming back to India

has filed this writ petition. The petitioner having abandoned his services,

was duly terminated from his employment, took benefit of employment in

Muscat and thereafter as stated above at his leisure and pleasure came to

this Court in the year 2000. Present is therefore a fit case where

extraordinary jurisdiction under Article 226 of the Constitution of India

cannot and ought not to be exercised.

12. In view of the above, the writ petition is dismissed, leaving

the parties to bear their own costs.

VALMIKI J. MEHTA, J MARCH 14, 2013 Ne