Delhi High Court
Satbir Singh & Anr vs Delhi Sikh Gurudwara Management ... on 1 May, 2013
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date: 1st May, 2013
+ W.P.(C) 8060/2007
SATBIR SINGH & ANR ..... Petitioners
Through Mr. Akash Tyagi, Adv.
versus
DELHI SIKH GURUDWARA MANAGEMENT COMMITTEE & ANR
..... Respondents
Through Mr. Arjun Pant, Adv.
Mr. Bhagwant Singh, Ms. Manpreet Kaur
and Mr. Mansimran Singh, Advs.
with
+ CONT.CAS(C) 264/2011
SATBIR SINGH ..... Petitioner
Through Mr. Akash Tyagi, Adv.
versus
AJMER SINGH & ANR ..... Respondents
Through Mr. Arjun Pant, Adv.
Mr. Bhagwant singh, Ms. Manpreet Kaur
and Mr. Mansimran Singh, Advs.
AND
+ W.P.(C) 4655/2012
T.P.SINGH ..... Petitioner
Through Mr. Rajkumar Sherawat, Adv.
versus
SCHOOL MANAGEMENT OF GHPS , FATEH NAGAR AND ORS
.... Respondent
Through Ms Vatsala Singh for Ms. Jasmeet Singh,
Adv.
AND
+ W.P.(C) 1104/2011
SUSHIL SHARMA ..... Petitioner
Through Mr. Rajkumar Sherawat, Adv.
versus
GHPS INDIA GATE AND ORS .... Respondents
Through
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? Yes
VALMIKI J. MEHTA, J (ORAL)
W.P.(C) No.8060/2007
1. This writ petition is filed by two petitioners namely Sh. Satbir Singh and Sh.
Ram Baran. The prayer made in the writ petition is for quashing of the office order
dated 10.10.2007 issued by respondent No.2-school whereby the petitioners have
been transferred out of respondent No.2-School and have been asked to join the
respondent No.1-Society. Another prayer is for quashing of the office order dated
11.10.2007 whereby the petitioners have been relieved of their duties.
2. Learned counsel for the petitioner contends that the petitioners were
appointed by the School which is a separate legal entity than the respondent No.1-
Society, and therefore, transfer of the petitioners to the respondent No.1-Society
will amount to termination of the petitioners from the employment of the
respondent No.2-School. Counsel for petitioners relied upon various provisions of
Delhi School Education Act and Rules, 1973 read with the judgment of the
Supreme Court in the case of Management Committee of Montfort Senior
Secondary School vs. Shri Vijay Kumar And Ors., (2005) 7 SCC 472 that the
employees of a school governed by the Delhi School Education Act, 1973
(hereinafter „the Act‟) including employees of an unaided minority school can only
be removed from employment by following the provisions and procedures
contained in Delhi School Education Act and Rules, 1973 and more particularly
Rules 118 to 120. It is argued that transfer to another school amounts to
terminating employment of the petitioner from the school where appointment was
made, and since it is being done without following of Delhi School Education Act
and Rules, 1973; more particularly Rules 118 to 120; the transfer is illegal.
3. Reliance has also been placed upon the provisions of Section 3 (42) of the
General Clauses Act, 1897 to argue that a person need not be a legal entity and,
therefore, even if a school is not a legal entity yet school will have an independent
existence/entity in view of the provisions of the Act.
4. In my opinion, the arguments urged on behalf of the petitioners merit
acceptance that an employee who is employed by the school is an employee of the
school and not of the society which runs the school.
5. The effect of a transfer order is that the employment of a person with the
school will stand terminated and he will be asked to report to a new employer viz
the society, the respondent No.1 in the present case. The Supreme Court in its
judgment in the case of Montfort (supra) has held that an employee of a school
has statutory protection and he can only be removed on application of provisions of
the Act and the Rules. Para 10 of the said judgment reads as under:-
"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(1) 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. In Premier Automobiles Ltd. v. Kamlekar
Shantaram Wadke of Bombay and Ors.(1976 (1) SCC 496),
it has been observed that if a statute confers a right and in
the same breath provides for a remedy for enforcement of
such right, the remedy provided by the statute is an
exclusive one. If an employee seeks to enforce rights and
obligations created under Chapter IV, a remedy is available
to him to get an adjudication in the manner provided in
Chapter IV by the prescribed forum i.e. the Tribunal. That
being so, the Tribunal cannot and in fact has no power and
jurisdiction to hear the appeal on merits and only way is to
ask the parties to go for arbitration."
6. A reading of the aforesaid para leaves no manner of doubt that the services
of employees of all schools including minority unaided schools (respondent No.2
being a minority unaided school) are no longer contractual in nature but are
statutory and the removal of an employee of all such schools including of a
minority unaided school can only be in terms of the statutory regime provided
under the Delhi School Education Act and Rules, 1973.
7. We also have to note that in the different provisions of the Delhi School
Education Act and Rules, 1973, the expression „school‟ is taken with reference to
the school as a separate legal entity and wherever there was a need to refer to the
society or trust separately, the provisions refer to the society or trust independently
such as in Rule 59(1)(b)(vi), Rule 59(2)(q) and Rule 172(1) as distinguished from
Rule 172(2). Some of the relevant provisions of the Delhi School Education Act
and Rules, 1973 in this regard treating the school as a separate legal entity are:
Section 2(h) defining an „employee‟ as a person working in a recognized school,
Section 2(n) which defines a „Managing Committee‟ of a school as a body of
individuals who manage the school, Section 2(u) which defines a „school‟ to
include an institution which imparts education below the degree level, Section 4
which talks of recognition of a school as distinguished from the society which runs
the same, Section 5 which requires the „school‟ to have a scheme of management
with prior approval by the appropriate authority with no provision for the society
or trust to have a scheme of management. Further provisions of the Act which
refer to the school and not the society are Section 6 providing for aid to recognized
schools, Section 7 dealing with school property (i.e a school is capable as an entity
to own property), Section 8, Section 9 and Section 10 etc etc all of which contains
provisions for the schools and not a society or trust which controls the school.
Also, when we refer to the Delhi School Education Act and Rules, 1973, we find
that corresponding rules have been made with respect to the sections under the Act
on various aspects, and all of which require the same to be followed by a school as
distinguished from the society or trust which established or controls the school. As
per Section 27 on violation of orders passed by the Delhi School Tribunal the
liability falls on the manager of the school and not on any members of the society
or trust which established/controls the school. In sum and substance, school is
treated as a totally independent entity. The school as a separate entity is run by its
own Management Committee in accordance with the scheme of management
approved by the Director of Education and also in accordance with the provisions
of the Delhi School Education Act and Rules, 1973.
As already stated above, and rightly argued on behalf of the petitioner,
a person is defined under the General Clauses Act to include a body of individuals
which is not incorporated i.e the school need not be an entity such as a Company
under the Companies Act, 1956 or a society under the Society Registration Act,
1860 or of any other legal entity.
8. I am also of the categorical opinion that an employee of a school is to be
distinguished than an employee of a society although counsel for respondents
sought to argue that a common seniority list is maintained with respect to the
employees of all the schools run by the society, inasmuch as, counsel for
respondents could not effectively rebut the submissions made on behalf of the
petitioner that the alleged common seniority list of various schools which are run
by respondent No.1-society is not used as a basis for promotions in different
schools or for any other aspects related and concerned with the alleged seniority
list. Also, I must state that it would be impractical for the society to implement a
common seniority list because this would also involve regular and frequent
transfers of all types of employees, including teachers, from one school to another
by following of an alleged common seniority list and which not only practically is
not taking place but also cannot take place because an employee as stated above is
an employee of the school and not of the society.
9. At this stage, I must mention that I am aware of certain observations which
have been made by the Supreme Court in the case of MCD v. Children Book
Trust, 1992 (3) SCC 390, that a school is not a separate entity than the society (see
para 32), however, observations in the judgment have to be read in the context of
the issue where property tax was sought to be imposed and which was sought to be
avoided by contending that the society running the school was a no profit no loss
society for charitable purposes. In this regard it is relevant that it has been held by
the Constitution Bench of the Supreme Court in Padma Sundara Rao & Ors. v.
State of Tamil Nadu & Ors., 2002 (3) SCC 533 that ratio of a case has to be read
in the context of the facts of a case and difference of even a single fact can make a
difference to the ratio of a case. In the present case, we have to read the provisions
of the Act and the Rules with respect to the issue as to whether it is permissible to
transfer an employee from one school to another or from the school to the society
and also the related issue as to whether the employee is the employee of the school
in which he was employed or of another school run by the society or of the society
itself. On this issue, in view of the discussion above, the conclusion which is
reached is that a school is taken as an independent entity by the Act and Rules. I
would also refer to an important para 90 of the Children Book Trust (supra)
judgment and which specifically talks of the school being a separate entity and,
therefore, premises occupied by the school will belong to the school (as per
Section 7 of the Act which talks of school property) and not to the society.
10. So far as the facts of this particular case is concerned, counsel for
respondents sought to argue that the petitioners are not entitled to the reliefs
claimed as they have not joined the services of the respondent No.1-society from
April, 2009, however, I have already held above that petitioners could only have
been asked to join duties with the school and not with the society. In any case, it is
upon the respondent No.2- school to take action in accordance with the provisions
of Delhi School Education Act and Rules, 1973 if assuming there is any violation
by the employee of his obligations to his employer.
11. I further clarify that if the petitioners have not performed duties, then it will
be open to the respondent No.2 (of course in accordance with the Delhi School
Education Act and Rules, 1973) to apply the principle of „no work no pay‟
provided that the principle is found to apply to the facts of the present case as per
applicable law with respect to the principle of „no work no pay‟. I must hasten to
clarify that I am not observing one way or the other for the petitioners or against
the petitioners on the aspect of the entitlement of the petitioners for complete pay
or the entitlement of the respondent No.2- school to claim that the petitioners will
not be paid at all. If any such dispute arises then the petitioners will be entitled to
approach an appropriate court in accordance with law with respect to such issue of
denial of arrears of salary including of obligation of school to pay as per the Sixth
Pay Commission Report.
12. Petitioner No.1 is now directed to positively report to the respondent No.2-
school within a period of one week from today, and in case the petitioner No.1 fails
to do so, respondent No.2-school will be entitled to take such action as is
permissible in law under the Delhi School Education Act and Rules, 1973.
13. The writ petition is allowed and disposed of, subject to the aforesaid
observations.
+ CONT.CAS(C) 264/2011
14. Counsel for petitioner does not press the contempt petition as the main writ
petition is decided in favour of the petitioner.
15. Dismissed as not pressed.
+W.P.(C) 4655/2012 & W.P.(C) 1104/2011
16. The aforesaid writ petitions are allowed in view of the detailed reasons given
while disposing of the W.P.(C) 8060/2007. The petitioners are directed to report to
respondent No.1-school within a period of one week from today failing which the
respondent No.1-school will be entitled to take action against the petitioner in
accordance with the Delhi School Education Act and Rules, 1973.
17. In view of the decision in W.P.(C) 8060/2007, the issue of „no work and
pay‟ will in these cases stand similarly decided in terms of the observations made
while disposing of the W.P.(C) 8060/2007.
18. The writ petitions are, accordingly, disposed of.
VALMIKI J. MEHTA, J
MAY 01, 2013
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