Delhi High Court
Vishwa Bharti Public School And ... vs I Nder Jeet Singh And Anr on 24 October, 2013
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 7168/2012 & conn.
% 24th October, 2013
+ W.P.(C) 7168/2012
VISHWA BHARTI PUBLIC SCHOOL AND ORS ..... Petitioners
Through: Mr. Rahul Gupta, Mr. Shekhar Dasi
and Mr. Shekhar Gupta, Advocates.
versus
I NDER JEET SINGH AND ANR ..... Respondents
Through: Mr. Pankaj Kr. Sinha, Mr. Ranjan
Kumar, Mr. Ratan Shukla, Mr.
Ashutesh Kr. Mishra and Mr. Pankaj
Tiwari, Advocates for R-1.
Mr. Kushal Yadav, Adv. for Ms.
Sonia Arora, Adv. for R-2/DOE.
+ W.P.(C) 7170/2012
VISHWA BHARTI PUBLIC SCHOOL AND ORS ..... Petitioners
Through: Mr. Rahul Gupta, Mr. Shekhar Dasi
and Mr. Shekhar Gupta, Advocates
versus
INDU NEGI AND ANR ..... Respondents
Through: Mr. Pankaj Kr. Sinha, Mr. Ranjan
Kumar, Mr. Ratan Shukla, Mr.
Ashutesh Kr. Mishra and Mr. Pankaj
Tiwari, Advocates for R-1.
WPC 7168/2012 & conn. Page 1 of 23
Mr. Kushal Yadav, Adv. for Ms.
Sonia Arora, Adv. for R-2/DOE.
+ W.P.(C) 7171/2012
VISHWA BHARTI PUBLIC SCHOOL AND ORS ..... Petitioners
Through: Mr. Rahul Gupta, Mr. Shekhar Dasi
and Mr. Shekhar Gupta, Advocates.
versus
DEEPTI POPLI AND ANR ..... Respondents
Through: Mr. Pankaj Kr. Sinha, Mr. Ranjan
Kumar, Mr. Ratan Shukla, Mr.
Ashutesh Kr. Mishra and Mr. Pankaj
Tiwari, Advocates for R-1.
Mr. Kushal Yadav, Adv. for Ms.
Sonia Arora, Adv. for R-2/DOE.
+ W.P.(C) 7172/2012
VISHWA BHARTI PUBLIC SCHOOL AND ORS ..... Petitioners
Through: Mr. Rahul Gupta, Mr. Shekhar Dasi
and Mr. Shekhar Gupta, Advocates.
versus
RITU KUMARI AND ANR ..... Respondents
Through: Mr. Pankaj Kr. Sinha, Mr. Ranjan
Kumar, Mr. Ratan Shukla, Mr.
Ashutesh Kr. Mishra and Mr. Pankaj
Tiwari, Advocates for R-1.
Mr. Kushal Yadav, Adv. for Ms.
Sonia Arora, Adv. for R-2/DOE.
WPC 7168/2012 & conn. Page 2 of 23
+ W.P.(C) 7173/2012
VISHWA BHARTI PUBLIC SCHOOL AND ORS ..... Petitioners
Through: Mr. Rahul Gupta, Mr. Shekhar Dasi
and Mr. Shekhar Gupta, Advocates.
versus
VIRENDRA TIWARI AND ANR ..... Respondents
Through: Mr. Pankaj Kr. Sinha, Mr. Ranjan
Kumar, Mr. Ratan Shukla, Mr.
Ashutesh Kr. Mishra and Mr. Pankaj
Tiwari, Advocates for R-1.
Mr. Kushal Yadav, Adv. for Ms.
Sonia Arora, Adv. for R-2/DOE.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? Yes
VALMIKI J. MEHTA, J (ORAL)
1. The facts of these cases are almost identical and therefore for
the sake of convenience reference will be made to the facts of W.P.(C)
No.7173/2012.
2. Petitioner no.1-school along with its General Secretary and
Principal by this writ petition impugns the judgment of the Delhi School
Tribunal dated 25.4.2012. By the impugned judgment, the Tribunal set aside
WPC 7168/2012 & conn. Page 3 of 23
the communication dated 11.5.2011 issued by the petitioner no.1-school to
the respondent no.1 informing that the probationary period has not been
extended and the respondent no.1 stands relieved w.e.f 12.5.2011. Two
main reasons weighed with the Tribunal for passing of the impugned
judgment. The first was that in the opinion of the Tribunal the Minutes of
Meeting of the Managing Committee dated 26.3.2011 were fabricated and
the second was that the probationary period as per Rule 105 of the Delhi
School Education Rules, 1973 should have been extended by one year, but it
was only extended for about 50 days. The termination of services of the
respondent no.1 were hence held to be illegal.
3. The facts of the case are that respondent no.1 was appointed as
PGT(Mathematics) by the petitioner no.1-school on a probation period of
one year w.e.f 1.4.2010. The appointment letter appointing respondent no.1
on probation for one year is dated 31.3.2010. Paras 2 and 3 of the
appointment letter dated 31.3.2010 make it clear that confirmation will be
effected only from a date of written communication to the fact that
confirmation has taken place and that the services can be terminated by one
month‟s notice or salary in lieu thereof even before expiry of the probation
period. The case set up by respondent no.1 before the Delhi School Tribunal
WPC 7168/2012 & conn. Page 4 of 23
was that without any requisite backing of allegation of existence of non-
satisfactory services having been rendered respondent no.1‟s services were
terminated by the impugned communication dated 11.5.2011, besides the
fact that termination is illegal because probation period could not have been
less than one year and termination in such lesser period is hence
automatically illegal.
4. Petitioner no.1-school before the Tribunal has placed reliance
for non-satisfactory services of respondent no.1 upon the resolution of the
Managing Committee of the petitioner-school dated 26.3.2011. It was
contended that respondent no.1 being a probationer could always be
terminated during the probationary period inasmuch as, services of
respondent no.1 were not found to be satisfactory and as recorded in the
Minutes of Managing Committee Meeting dated 26.3.2011. It was also
argued that probation period need not be of one year and it can be of a lesser
period inasmuch as Rule 105 of the Delhi School Education Rules, 1973
does not provide that the extended period of probation has to be
specifically/necessarily be only of one year.
5. Let me at this stage reproduce the relevant findings and
observations of the Delhi School Tribunal, and which are contained in its
WPC 7168/2012 & conn. Page 5 of 23
paras 4 to 7, 9 and 10 of the impugned judgment, and the same read as
under:-
"4. Assuming the contention of the Respondent School that a
meeting of the Management took place on 26.03.2011, true, a question
arises as to why the Respondent School did not terminate their
services after finding them unfit for the job. The decision (i) referred
to above in the meeting on 26.03.2011 was to the effect that the
Appellants were not to be confirmed. Decision (ii) was to the effect
that their probation shall be extended till the commencement of the
summer vacation so that the classes did not go unattended. Vide
decision (iii) the Management had fixed the date of termination of
services as 12.05.2011. Was it a just legal and justifiable
order/decision? The purpose of extension of probation under Rule 105
of Delhi School Education Act & Rules-1973 is for giving an
opportunity to the employee to improve his/her performance.
Probation is normally extended by one year. In the present case it was
admittedly increased for a period of 50 days. What it open to the
Respondent School to keep the. Appellants in dark after finding them
unfit for the job? Could the Respondent School avail of their services
after finding them „unfit‟ on the pretext that their probation stood
extended? Respondent School wanted to avail of the services of the
Appellants for a period of 50 days under the garb of extended
probation. Since the legislature never provided for extending the
probation for such dubious purposes, the Respondent School acted
dishonestly, illegally and unjustifiably. Once the Appellants were
found unfit to be retained, the career of the students was also put in
peril by utilizing the services of the teachers who were unfit for
continuation. At the same time the career of the Appellants was also
at stake. Once found unfit for the job they ought have been told to
leave the job so as to enable them to search for other service/career
elsewhere.
5. The next question that arises is as to whether any meeting of the
Management took place on 26.03.2011 or not? Admittedly an
inspection of the Respondent School had taken place on 26.05.2011
by the team of the officers of Directorate of Education. The
inspection report does not make any mention of any vacancy in the
WPC 7168/2012 & conn. Page 6 of 23
cadre of PGT. The Principal of the Respondent School also gave an
undertaking dated 06.05.2011 to the same effect. The Managing
Committee once having decided on 26.03.2011 to terminate the
services of the Appellants, there was no occasion of stating on
06.05.2011 that there existed no vacancy in PGT cadre. It clearly
goes to show that the minutes of the meeting dated 26.03.2011 are
false and fabricated.
6. Impugned orders dated 05.04.2011 were never delivered to any
of the Appellants before 06.05.2011. It was only after the inspection
by the officers of Directorate of Education was completed on
06.05.2011 that there was handed over to the Appellants. This further
shows a malafide on the part of the Respondent School in terminating
the services of the Appellants.
7. The Hon‟ble High Court of Delhi in a case of terminating the
services of the employees under Delhi School Education Act & Rules-
1973 in Writ Petition No. 5774/2010 disposed of on 17.09.2010
directed the Respondent School therein to produce the ACRs of the
employees before this Tribunal. The Hon‟ble High Court passed the
directions to find out if the services were terminated malafide and in
the absence of any adverse material against the petitioners therein. It
may however be mentioned here that the said matter was finally
disposed of by this Tribunal vide orders dated 28.02.2011 (in appeal
No. 61-64/2010 Manphool Singh & Others vs. Army Welfare
Education Society (AWES) & Others. It was held by this Tribunal
that the Respondent School therein had acted malafide. Take a cue
from that case, this Tribunal Directed the Respondent School herein to
produce the ACRs of the present Appellants. The Respondent School
herein did not file the ACRs and placed on record an affidavit stating
that the ACRs were not written for the reason that it was decided to
terminate the services. The period of probation in the present case
comes to an end on 31.03.2011. The work and conduct of an
employee is to be assessed after completion of one year period of
probation. It is unbelievable that the Respondent School did not
record anything relating to the work and conduct of any of the
Appellant in this period. Was the Respondent School making a
mental note of the work and conduct of all these five Appellants in a
span of one year? The plea does not stand to reason.
WPC 7168/2012 & conn. Page 7 of 23
.........
9. As discussed above, the impugned orders dated 11.05.2011
terminating the services of the Appellants herein are clearly a gross
misuse of the provisions of Rule 105 of Delhi School Education Act
& Rules-1973. The Respondent School ought have offered the
appointments to the Appellants in the very beginning on contract
basis, if it chose so. Once the Appellants were appointed on regular
basis their services could not have been terminated with a motive of
replacing them with teachers on contract basis under the garb of rule
105 of Delhi School Education Act & Rules-1973 governing
„Probation‟.
10. In view of the reasons given above, I am of the considered
opinion that the impugned orders dated 11.05.2011 are wholly illegal,
arbitrary and unjust, passed with malafide intentions. The same are
hence set aside. All the Appellants i.e. Ms. Ritu Kumari (PGT
English), Ms. Indu Negi (PGT Biology), Sh. Virendra Tiwari (PGT
Mathematics), Sh. Inderjeet (PGT Physics) and Ms. Deepti Popli
(PGT Business Studies and Accounts) are reinstated in services with
all consequential benefits and back-wages @ 50%. They shall be paid
full salary and other allowances w.e.f. the date of these orders. In
case the Respondent School does not comply with these orders within
a period of one month, the Appellants shall be entitled to a simple
interest @ 12% per annum on their claims of arrears of back-wages.
Appeals are accordingly disposed of. Files be consigned to record
room."
6. Before me, counsel for the parties have made their submissions
under the same two heads which were argued before the Tribunal. The first
is as to whether or not extension of probation period has or has not to be at
least of one year, and secondly whether respondent no.1‟s services were or
were not satisfactory and especially as regards the validity and existence of
the Minutes of Meeting dated 26.3.2011.
7(i) So far as the first head of argument is concerned as to whether
the extension of the period of probation can only be of one year and not less
than that, it would be necessary to refer to Rule 105 of the Delhi School
Education Act, 1973 at this stage, and the same reads as under:-
"105. Probation.-(1) Every employee shall, on initial
appointment, be on probation for a period of one year which
may be extended by the appointing authority [with the prior
approval of the Director] and the services of an employee may
be terminated without notice during the period of probation if
the work and conduct of the employee, during the said period, is
not, in the opinion of the appointing authority, satisfactory:
[Provided that the provisions of this sub-rule relating to
the prior approval of the Director in regard to the extension of
the period of probation by another year, shall not apply in the
case of an employee of a minority school:
Provided further that no termination from the service of
an employee on probation shall be made by a school, other than
a minority school, except with the previous approval of the
Director.]
(2) If the work and conduct of an employee during the
period of probation is found to be satisfactory, he shall be on the
expiry of the period of probation or the extended period of
probation, as the case may be, confirmed with effect from the
date of expiry of the said period.
(3) Nothing in this rule shall apply to an employee who
has been appointed to fill a temporary vacancy or any vacancy
for a limited period."
(ii) When we refer to not only sub-Rule 1 but also the proviso of
sub-Rule 1 of Rule 105, the period of probation which is mentioned is of one
year and extension also by „another year‟. No doubt, the proviso to sub-Rule
1 of Rule 105 states that prior approval of the Director of Education is not
required with respect to an employee of a minority school for extending the
period of probation by another year, however, there is a clear pointer by
virtue of this first proviso to sub-Rule 1 of Rule 105 that extension of period
of probation has to be by one year. The reason for extension to be of one
year probably is that since the issue of confirmation of services of an
employee of a school is with respect to satisfactory nature of services, such
satisfactory nature of services or otherwise requires a reasonable period of
one year for judging the same. It is at the end of the period of one year that
really the capability as a whole and satisfactory services as a whole of an
employee of a school are decided. What I mean to say is that there may be
periods of satisfactory services and non-satisfactory services in the probation
period, however, it is the final opinion formed at the end of the probationary
period of the totality of the services rendered in the entire probationary
period which determines the satisfactory nature of services or otherwise by
the management for grant of extension or the non-grant of extension of the
probationary period and termination of services. I have therefore no
hesitation in holding that extension of period of probation is ordinarily to be
of one year, and which period is to be ordinarily taken for determining the
nature of services of an employee of the school as to whether they are
satisfactory or not.
8. At this stage, it is also necessary to put on record that it was the
common case of both the parties before me that though extended period of
probation has to be of one year, however, there is no bar within the period of
extension of one year, on necessary circumstances existing, the services of a
probationer can be terminated within the probationary period. I may observe
that it is logical that unless there is a statutory bar in terminating the services
of a probationer in the probationary period, there is no reason why on
circumstances existing which require the termination of services of a
probationer, then the services of a probationer cannot be terminated even
before the expiry of the probationary period. What would be those facts and
circumstances justifying the immediate termination of services, will depend
on the facts of each case, and I need not elaborate on this aspect further
except giving two stark examples, one of grave corporal punishment being
meted out to a student which causes injuries to the student or second of
harassment of a girl student by a male probationary teacher. The object of
giving the two examples is only to show that there may exist necessary
circumstances, as per the facts which emerge, which necessitate the
immediate termination of services of a probationary employee. I need not
dilate further on the aspect of other factual circumstances required in
terminating the services of a probationer in the probationary period as they
would be individual case dependent.
9(i) In the facts of the present case, it is not disputed that the
probationary period was not extended by one year. The question is what
follows. Also, the related issue in the facts of this case is that whether
actually at all the services of respondent no.1 were extended as a
probationary employee for a limited period of about 50 days or is it that
really the period of extension was only fixing a future date for termination of
services and not a probationary period for determining the satisfactory
nature of services in the probationary period. This aspect is relevant because
petitioner no.1-school contends that in the facts of this case, if the Minutes
of Meeting of the Managing Committee dated 26.3.2011 are correct, then,
really language of the extension letters stating that probationary period is
extended is of no effect because really the service period in this case with
respect to respondent no.1 which was extended from 1.4.2011 till 12.5.2011
only because of summer vacations were starting from 12.5.2011 till when
studies of students should not be adversely affected, and the fact of the
matter is that decision had already been taken to terminate the services of
respondent no.1 on account of unsatisfactory services for the reasons
contained in Minutes of the Managing Committee Meeting dated 26.3.2011.
(ii) Therefore, the issue which requires determination thus is as to
whether the Minutes of the Meeting of the Managing Committee dated
26.3.2011 relied upon by the petitioner no.1-school is or is not fabricated,
and whether the Tribunal was justified in arriving at a finding that no
meeting of the Managing Committee took place on 26.3.2011.
10(i) I have already reproduced the relevant paragraphs of the
judgment of the Delhi School Tribunal and with regard to the subject head
of arguments, the Tribunal has dealt with the same in para 5 of the impugned
judgment. The Tribunal arrives at a finding of the Minutes of Managing
Committee Meeting dated 26.3.2011 being fabricated because the Tribunal
notes that an inspection was conducted on 6.5.2011 by a team of officers of
the Director of Education and that inspection report does not make any
mention of vacancy in the cadre of PGT buttressed by the fact that the
principal of the petitioner no.1-school gave an undertaking on 6.5.2011 that
there is no vacancy in the cadre of PGT, and therefore, Tribunal concludes
that if the Managing Committee had decided on 26.3.2011 to terminate the
services of the respondent no.1 then there was no occasion to state on
6.5.2011 by the Principal that there was no vacancy in the cadre of PGT on
6.5.2011.
(ii) In my opinion, the findings given by the Tribunal do not inspire
confidence. This I say so because admittedly as on 6.5.2011, there was no
vacancy in PGT cadre, because services of the respondent no.1 were to come
to an end only subsequently on 12.5.2011. As on 6.5.2011 therefore, the
Principal of the petitioner no.1-school was justified in giving an undertaking
that there was no vacancy in the PGT cadre. Also, necessary weightage will
have to be given to the petitioner no.1-school with respect to its entitlement
to judge the non-satisfactory nature of services of an employee with respect
to each of the employees in these bunch of cases. The Managing Committee
in its meeting dated 26.3.2011 has made the following observations qua each
of the employees whose probationary periods were not to be extended:-
"a) PGT Bio-Mrs. Indu Negi
. Frequent complaints from students and parents that the
teachers cannot explain the concepts.
. Lack of class control
. Many memos issued.
. Teachers in a habit of arguing and counter questioning.
She would never accept her mistake, apologize and make
and effort to improve.
b) PGT Maths-Mr. Virender Tiwari
. Teacher cannot teach in English
. Due to bilingual teaching, students are left confused.
. Incapability of teacher of ensuring that students do
adequate practice.
c) PGT Commerce- Ms. Deepti Popli
. Teacher is aggressive and often gives into bouts of flare-
ups and corporal punishment.
. Students have complained that the teachers often gives in
to partial favoritism.
d) PGT Physics-Mr. Inderjeet
. Teachers hasn‟t ensured that students do enough practice
. Complaints from parents that all aspects of Physics
teaching not given due stress and practice.
e) PGT English-Mrs. Ritu Kumari
. Language fluency and accuracy not upto the mark
. Grammatical errors spelling errors, lexical errors, faulty
sentence construction."
11. I may note that it is settled law that principles of natural justice
do not have to be followed while terminating the services of a probationer
employee. This is held by the Supreme Court in a catena of judgments and
these judgments are :- Muir Mills Unit of NTC (U.P.) Ltd. Vs. Swayam
Prakash Srivastava & Anr. (2007) 1 SCC 491 and Rajesh Kumar
Srivastava Vs. State of Jharkhand and Ors. (2011) 4 SCC 447.
In the case of Muir Mills Unit of NTC (U.P.) Ltd. Vs. Swayam
Prakash Srivastava & Anr. (2007) 1 SCC 491 Supreme Court has observed
that even if the termination order states that services of a probationer has
been terminated on account of the work being not satisfactory, the order
cannot be said to be stigmatic and that principles of natural justice need not
be followed for termination of services of the probationer. Para 45 of the
said judgment is relevant and the same reads as under:-
"45. This Court's decision in the case of P.N. Verma v. Sanjay
Gandhi PGI of Medical Sciences can be referred to in this context,
where it was held by this Court that, the services of a probationer
can be terminated at any time before confirmation, provided that
such termination is not stigmatic. This Court in State of Madhya
Pradesh v. Virendera Kumar Chourasiya also has held that in the
event of a non-stigmatic termination of the services of a
probationer, principles of audi alteram partem are not applicable.
In the case of Rajesh Kumar Srivastava Vs. State of
Jharkhand and Ors. (2011) 4 SCC 447 Supreme Court has held that while
taking a decision to terminate the services of the probationer, no notice is
required to be given to the probationer nor is the probationer required to be
given any opportunity of hearing. Para 10 of the said judgment reads as
under:-
"10. The aforesaid decision to release him from service was taken
by the Respondents considering his overall performance, conduct and
suitability for the job. While taking a decision in this regard neither any
notice is required to be given to the Appellant nor he is required to be
given any opportunity of hearing. Strictly speaking, it is not a case of
removal as sought to be made out by the Appellant, but was a case of
simple discharge from service. It is, therefore, only a termination
simpliciter and not removal from service on the grounds of indiscipline
or misconduct. While adjudging his performance, conduct and overall
suitability, his performance record as also the report from the higher
authorities were called for and they were looked into before any
decision was taken as to whether the officer concerned should be
continued in service or not."
12. Of course, I must hasten to add that the decision of the school
has to be a bonafide decision and has to be justified in the facts, however, I
do not find that respondent no.1 in the pleadings made before the Tribunal
(respondent no.1 rejoinder-affidavit in the appeal) has specifically denied the
charge against him that he could not teach only in English and due to this
bilingual teaching students were left confused. Further respondent no.1 was
found by the school to be lacking with respect to his capability of ensuring
that students do adequate practice. Courts do not substitute their opinions
with the opinions of the managements of the schools with respect to the
satisfactory nature of services, because Courts are ill-equipped to do so.
May be in particular cases of established malafides, Courts can interfere,
however, I do not find that decision of the school in this case is actuated by
such malafides or lack of bonafides for me to hold that inadequacies pointed
against the respondent no.1 (and the other employees) cannot be said to be
existing. That being so, I would not like to substitute my decision for that of
the petitioner-school with respect to non-satisfactory services of the
respondent no.1 in the probationary period.
13. That takes us to the aspect as to what happens consequent to the
aspect that petitioner no.1-school has violated Rule 105 by not giving an
extension of one year of probation period and has given extension only of
about 50 days. I think, in this regard violation with respect to the
probationary period not being extended by one year and its consequence
upon termination of services of a school-employee will have to depend upon
the facts of each case. This is for the reason that whereas the probationary
period has to be extended by tranche of one year, however, the undisputed
legal position is that within that one year at any point of time on
circumstances existing services of a probationary employee can be
terminated. In this case, once I have accepted the Minutes of Meeting of the
Managing Committee dated 26.3.2011 as not being fabricated, the
consequence would only be that the extension of period has to be taken as
one year and not 50 days, but the issue still is whether the facts exist in the
present case for terminating the services of the probationer
employees/respondent no.1 even prior to the period of one year. Actually, in
this regard the facts of the present case are peculiar because really though
the letter of the petitioner no.1-school dated 5.4.2011 refers to extension of
the probation period, however, really when this letter is read with the
Minutes of the Meeting dated 26.3.2011, it is shown that extension of
services was till 12.5.2011 because from that date summer vacations of the
school would begin and consequentially extension was only till 12.5.2011 so
that classes of students do not get affected. The following portion of the
Minutes of the Meeting of the Managing Committee dated 26.3.2011 in this
regard is relevant and the same reads as under:-
"The following decisions were taken:-
i) PGTs not to be confirmed
ii) Probation of PGTs to be extended till the commencement of
summer vacations so that classes don‟t go unattended.
iii) The services of these teachers to be dispensed w.e.f 12/5/11
iv) Post to be advertised and recruitment process to be completed
before the re-opening of the school on 27th June‟11.
v) Withdrawal of confidential letters and memos was done to
give a chance to the teachers to improve upon their performance.
But the result of class XI is a disappointment as there is a steep
downward curve in the performance of the students. Therefore, the
withdrawal of confidential letters and memos is not approved.
The meeting came to an end with vote of thanks to all present in the
meeting
Sd/-
(A.K.Bhat)
Secretary"
14. In the peculiar facts of the present case therefore really it is not
as if that the probationary period was extended but really it was decided
within the first year of probation itself that the services would not be
extended, however, a limited extension of continuation of services was
granted till the summer vacations for the classes not to be affected.
Accordingly, taking a holistic view of the situation, and more particularly
that services of a probationer even if had to be extended by a period of one
year could have been terminated within one year no purpose will be served
for setting aside the termination letters merely on the ground that probation
period was not extended specifically by one year. I am persuaded to do this
also because employees in these cases have taken the benefit of a specific
lesser period of extension without any cavil, and possibly (and this I am not
saying finally) that specifically the limited period of extension hence should
not be challenged in the facts of this case. I am however leaving this issue
specifically open because it is possible there may not be estoppel against law
i.e if the statute requires one year period of extension, merely because an
employee has accepted a lesser period of probation than one year, the same
should necessarily go against the employee.
15. That the termination letter is non-stigmatic is not an issue
before me inasmuch as there is no dispute that termination letter dated
11.5.2011 terminates the services by a non-stigmatic order.
16. I would like to put on record that there are cases where actions
of the school of termination of services of probationary employees can be
construed as malafide because of the facts that in the past certain teachers
were employed on probation basis by the school, they were terminated,
again new teachers were employed on probation and who also were
thereafter terminated by the school, and all these machinations are
repeatedly resorted to in order to avoid giving statutory protection to
teachers in terms of the Delhi School Education Act & Rules, 1973. Such
facts however are not pleaded to exist in the present case and therefore that
is not an issue in the present case which is called upon for decision. The
aforesaid observations are made by me because sometimes issue with
respect to satisfactory or non-satisfactory services of an employee have also
to be looked into alongwith the aspect of allegations of non-satisfactory
services of an employee also with the conduct of a school.
17. I may state that the issue with respect to entitlement of a school
to terminate the services of a probationer in a probationary period has
already been dealt by me in the case of Hamdard Public School Vs.
Directorate of Education & Anr. in W.P(C) 8652/2011 decided on
25.7.2013, and as per which judgment the school has a right in terms of the
appointment letter to terminate the services of an employee within the
probationary period which ordinarily should not extend beyond 3 years. In
the present case, termination has taken place well within the three years
period i.e effectively one year and 50 days after the appointment of the
respondent no.1 and hence there is no violation of Rule 105 of the Delhi
School Education Act and Rules, 1973.
18. Before concluding I record that counsel for the employees did
seek to contend that prior permission was required of the Director of
Education before terminating the services of the probationary employee,
however, in my opinion, since this issue was not argued before the Tribunal,
I cannot allow it before this Court. Even assuming I allow the same, the
issue is covered against the employees by two Division Bench judgments of
this Court in the cases of Kathuria Public School v. Director of Eduction,
123 (2005)DLT 89 (DB) and Delhi Public School & Anr. v. Shalu
Mahendroo & Ors. (2013)196 DLT 147 (DB) which hold that unaided
private schools do not require permission of the Director of Education before
terminating the services of its employees.
19. In view of the above, the writ petition is allowed. The
impugned judgment of the Delhi School Tribunal dated 25.4.2012 is set
aside and the termination letters issued by the petitioner no.1-school with
respect to the subject employees including the respondent no.1 in each of the
cases are affirmed. Parties are left to bear their own costs.
20. Pursuant to the impugned judgment of the Delhi School
Tribunal, certain amounts have been paid to the employees. Petitioner no.1-
school is given liberty to recover the same in accordance with law on the
principle of restitution similar to Section 144 CPC including by filing
appropriate proceedings before the Delhi School Tribunal.
OCTOBER 24, 2013 VALMIKI J. MEHTA, J.
ib
