The Managing Committee Arwaching ... vs Ms. (Dr.) Angel Gupta
2013 Latest Caselaw 1401 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         WP(C) No.7256/2011

%                                                      March 21, 2013

THE MANAGING COMMITTEE ARWACHING BHARTI BHAWAN
SENIOR SECONDARY SCHOOL                         ..... Petitioner
                 Through: Mr. Sudhanshu Tomar, Advocate.


                          Versus


MS. (DR.) ANGEL GUPTA                              ..... Respondent

                   Through:              Mr.   Bankim      K.   Kulshreshtha,
                                         Advocate with Mr. Vivek Bhadauria,
                                         Advocate.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J. MEHTA

To be referred to the Reporter or not?          Yes


VALMIKI J. MEHTA, J (ORAL)

1. This writ petition impugns the order dated 8.9.2011 passed by

the Delhi School Tribunal whereby the Delhi School Tribunal directed the

reinstatement of the respondent-teacher in the petitioner-school as also that

the respondent be paid 50% of the back wages with consequential benefits.

2. The facts of the case are that the respondent was appointed as PGT

(Biology) teacher in the petitioner-school in terms of appointment letter dated

5.4.2008 w.e.f. 15.4.2008. Clause (b) of this appointment letter dated

5.4.2008 reads as under:-

"(b) Your appointment is on probation for the period from 15.4.08 to 31.3.2009 and is a sort of agreement between the Management and yourself and carries within itself your responsibility of achieving not less than 90% pass result in respect of subject/class you are assigned, tests, examination to be held independently by the Management or the C.B.S.E. In case of your failure to achieve the prescribed results the Management hereby reserves the right to terminate your services without any notice keeping in view the interest of the students as first and foremost."

3. The petitioner-school on the basis of clause (b) terminated the

services of the respondent vide letter dated 13.6.2009, and which letter reads

as under:-

"Ref. No.ABB/SSS/VV/Pres/41/38/3391 Dated 13.6.2009

Ms. (Dr.) Angel Gupta W/o Lt. Cl. Pankaj Gupta 24-D, Pocket-4, Mayur Vihar, Ph-I Delhi-110091

Subject: Termination of services-probation teacher

Madam,

Your appointment as PGT (Biology) on probation was from 15.04.2008 to 31.03.2009, subsequently extended upto 31.05.2009 with a view to assess your proficiency and achieving not less than 90% result in respect of your teaching subject/class in terms of clause (b) of your appointment letter dated 05.04.2008. Since your Board Result is not found satisfactory as per clause (b) of your appointment letter, therefore your services are no longer required w.e.f. 11.06.2009 (after-noon) as decided by the Managing Committee in its meeting held on 11.06.2009. Sd/-

(Arun Sharma) Manager"

4. Before the services of the respondent were terminated, the

respondent had written a letter dated 25.5.2009 giving the reasons why 90%

pass result was not obtained in the class taught by the respondent. This letter

dated 25.5.2009 reads as under:-

"To,

The Principal Arwachin Bharti Bhawan Sr. Sec.

     Vivek Vihar, Delhi-91

     Sub:     regarding XII result

     Respected Madam,

As, this is regarding my result of class XII Session 2008-2009. I want to explain that (1) amount 35 students five were failed student and they were never serious in the class, so many times given call to their parents.

(2) 12 students were totally promoted students who has main Maths instead of Biology.

(3) Biology was taken by the students as a optional subject. (4) Even after releasing that of........we required even then most of the student not regular in the class. (5) Sample papers were not taken seriously by the students. (6) It is my request that Biology should be main subject for the students in the next session.

(7) Next year 2009-2010, I will try my level best by taking extra classes as give best result.

(8) It is required to considered all these.........Regarding my board result.

Kindly consider Yours sincerely Sd/-

25.5.09 PGT Biology"

5. The petitioner-school on the representation of the respondent

again appointed the respondent as a probationer w.e.f. 13.7.2009.

Appointment was again as PGT (Biology). The services of the respondent

were thereafter terminated vide letter dated 23.6.2010 and which reads as

under:-

"Ref No.ABB/SSS/YY/41/Per/3536 Dated 23.6.2010 Dr.(Ms.) Angel Gupta Wife of Col Pankaj Gupta 24-D Pocket IV Mayur Vihar I Delhi110091 Subject: Termination of Services Madam, You have been on appointment of PGT (Biology) on probation from 13.07.2009 to 30.06.2010.

You have achieved pass percentage below 90% in your teaching subject Biology, in class XII CBSE Board Result 2009-10; whereby you have failed to fulfil the conditions of your appointment on probation.

With effect from 30.06.2010 (after-noon), your services are no longer required as your board result has not been satisfactory in terms of clause (b) of your appointment letter. (Arun Sharma) Manager"

The counsel for the respondent on instructions states that it is not

as if the results were drastically less than 90% i.e only 50% or so, and the

results were about 86% of the students passing.

6. There are two principal issues which are required to be

considered in this writ petition. First is the issue as to whether any school can

put a clause such as the aforesaid clause (b) as one of the terms of

appointment, and whereby the school is entitled to treat the services of the

teacher as not satisfactory and consequently terminate the services of the

teacher. The second aspect is whether a teacher appointed on probation can

be terminated and thereafter reappointed again on probation.

7. I have already reproduced clause (b) of the appointment letter

above and which specifies that it was undoubtedly a term of appointment that

respondent will get 90% pass results of students in subject/class which the

respondent is assigned. The question is can a school in terms of Delhi School

Education Act, 1973 and its Rules impose such a term for confirmation of the

appointment of a teacher appointed as a probationer?

8. The relevant rules with respect to appointment of a teacher in

school are contained in Chapter VIII of the Delhi School Education Act and

Rules, 1973 and which is contained in Rules 96 to 121. A reference to the

rules shows that these rules provide for appointing authority, qualifications

required for appointment, the authority which is entitled to appoint the

teacher, provision for probation, age limit for appointment, procedure with

respect to removal of a teacher and so on. None of the rules from 96 to 121

entitles imposition of a condition entitling terminating the services of the

probationer on such ground which does not pertain to any lack of capability

of the teacher to perform the duties which are assigned to her ie on events

which are beyond the control of the teachers. Putting it differently, a teacher

who is on probation, cannot be found to be unfit for the job for reasons she

cannot control. There can always be reasons that the said teacher may not be

competent in teaching, may not be attending classes, may be indisciplined or

there may be other aspects pertaining to her performing of her duties as

teacher, however, with respect to issues which are beyond the control of the

teacher, there is no provision in the 1973 Rules whereby the services of a

petitioner can be found to be unsatisfactory, and therefore form a basis for

termination of services of a teacher. If this is permitted then on fortuitous

circumstances or circumstances beyond the control of teacher of certain

students not studying properly, although a teacher has put in her full efforts

towards teaching, yet, the teacher can be said to have not satisfactorily

performed her duties. I do not think this can be or ought to be the legal

position. Of course, the fact that most of the students or a substantial

percentage of the students, who are taught by a teacher, fail and thus are not

promoted to the higher class may be a ground to determine the lack of

performance of a teacher, however, I do not think that the requirement of

90% pass result with respect to the students of a school can be a criteria.

Also, it be noted that otherwise passing percentage theoretically even 0.1%

below 90% can be sufficient to hold that a probationer can be terminated by

concluding that the teacher has not satisfactorily performed her services.

There cannot be a thumb rule with respect to passing percentage of students

at 90%, though a school can always weigh this factor in determining the

suitability of the services of a teacher in a school of course necessarily with

other relevant factors. Even assuming that a percentage of passing can be put

as a thumb rule to determine the suitability of the teacher for teaching, surely

90% is too high percentage to determine suitability of a teacher with respect

to the services which a teacher renders in a school. In the present case it

cannot be disputed that the only ground for terminating the services of the

petitioner initially, as also for the second time vide letter dated 23.6.2010,

was only on the ground of pass percentage of the students being below 90%.

There is no other ground mentioned in the termination letter dated 23.6.2010

that the services of the respondent as a probationer are terminated because the

respondent-teacher has been found guilty of not teaching properly or not

attending classes or not performing duties or being guilty of any acts of

indiscipline and so on. I cannot go beyond the language of the letter dated

23.6.2010 and I am not able to agree to the arguments urged on behalf of the

petitioner that this Court must look into the other record to determine as to

whether the respondent-teacher was suitable for the job or not.

9. I therefore hold that since clause (b) of employment is itself

illegal, there cannot be termination of services of a probationer on this ground

of requiring that 90% of the students in the class/subject of having to pass,

failing which it must be held that the respondent-teacher is unsuitable for the

job.

10. In my opinion, there is also strength in the argument and issue

urged on behalf of the respondent that if the policy of appointing teachers on

probation and thereafter terminating them and again reappointing them on

probation is allowed, then, the statutory protection which is given to the

teachers against termination of employment under the Delhi School

Education Act, 1973 and its Rules, will be found to be hollow, because,

nothing then can prevent a school from repeatedly keep on appointing a

teacher on probation. If this is permitted it will quite clearly violate the

provisions of Delhi School Education Act and Rules, 1973 both in letter and

spirit. I may note that once a person is appointed as a teacher, and confirmed

to the services on completion of probation, the only way of removing a

teacher is by the method of conducting an enquiry in terms of Rules 118 to

120 of the Delhi School Education Rules, 1973. At this stage, it must be

noted that Supreme Court in the case of Management Committee of

Montfort Senior Secondary School Vs. Vijay Kumar and Ors. (2005) 7 SCC

472 has held that services of teachers under the Delhi School Education Act,

1973 are statutory in character and it cannot be said that merely because

contract of services has been entered into, the teacher will be a contractual

teacher. The contract of services, as held by the Supreme Court in the case of

Management Committee of Montfort Senior Secondary School (supra),

graduates to one of a statutory character in terms of provisions of Delhi

School Education Act and Rules, 1973.

11. In view of the above, I do not find any merit in the petition,

which is accordingly dismissed, leaving the parties to bear their own costs.

VALMIKI J. MEHTA, J MARCH 21, 2013 Ne