Delhi High Court
Sadhu Vaswani International ... vs Director Of Education And Anr. on 6 April, 2015
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No.4865/2001
% 6th April, 2015
SADHU VASWANI INTERNATIONAL SCHOOL FOR GIRLS & ANR.
..... Petitioners
Through: Mr. Abhinav Mukerji and Ms. Tanya
Shree, Advocates.
Versus
DIRECTOR OF EDUCATION AND ANR. .... Respondents
Through: Ms. Latika Chaudhary, Ms. Anchal
Chaudhary , Adv.for Ms. Avnish
Ahlawat, Adv. for R-1.
Ms. Sunila Sagar, GNCTD-DEO-
Zone-19.
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 filed under Article 226 of the Constitution of
India impugns the judgment of the Delhi School Tribunal dated 3.7.2001 by
which the Delhi School Tribunal allowed the appeals filed before it by the
respondent no.2 herein/employee and directed reinstatement of services of
respondent no.2 herein by the petitioner no.1/school.
WP(C) 4865/2001 Page 1 of 5
2. There were two issues before the Tribunal; first of the petitioner
no.1/school being or not being a minority institution and second as to
whether the services of the respondent no.2 were validly terminated.
3. So far as the first issue is concerned, as to whether the
petitioner no.1/School is a minority institution, this question is left open for
being decided in an appropriate case, inasmuch as, this case can be decided
on the second aspect by assuming for the sake of argument that petitioner
no.1/School is not a minority institution. The issue therefore is whether the
services of the respondent no.2 herein were rightly terminated, and which
petitioner no.1/School states were terminated on account of unsatisfactory
services of the respondent no.2 as a probationary employee.
4. The impugned order of the School terminating the services of
the respondent no.2 is dated 3.10.1996 and which reads as under:-
"No. SV/AT/PF/25 Dated: 3.10.96
Ms. Kavita Sharma,
1/19, D-1, Mehrauli,
New Delhi
Dear Madam,
Please refer to our letter dated 17.5.96 in terms of which you
were given the re-assignment of Instrumental Music Teacher. You
were given three months' time from 1.7.96 to 30.9.96 by the
management during which your performance as Instrumental Music
Teacher had to be reviewed. The management has reviewed your
WP(C) 4865/2001 Page 2 of 5
performance during these three months and have come to the
conclusion that you have not come upto the expected standard.
Accordingly, your services are no longer required with closing hours
of October 3, 1996 i.e., today.
The management is offering you one month's salary in lieu of Notice
which you may collect along with your other dues.
FOR AND ON BEHALF OF SCHOOL
MANAGEMENT COMMITTEE
SADHU VASWANI INTERNATIONAL
SCHOOL FOR GIRLS"
5. It is not disputed by the respondent no.2 that she was appointed
on probation inasmuch as the respondent no.2 in her counter-affidavit which
is filed before this Court in para 5 specifically states that she was appointed
on probation vide appointment letter dated 10.5.1994. I may note that
though the letter dated 10.5.1994 does not use the word 'probationary
services', the admitted case appearing from record including the record of
the Delhi School Tribunal, shows that respondent no.2 considered herself as
a probationary employee in terms of the original appointment letter dated
10.5.1994.
6. The law with respect to whether under Rule 105 of the Delhi
School Education Act and Rules, 1973, that there is an automatic
confirmation of probation has been dealt with by this Court in the case of
Hamdard Public School Vs. Directorate of Education and Anr. 202 (2013)
WP(C) 4865/2001 Page 3 of 5
DLT 111, and it has been held by this Court that there is no automatic
confirmation of probationary services on expiry of the probation period.
7. The issue then arises is that whether the services of respondent
no.2 with the petitioner no.1/School were satisfactory or not. In this regard,
it is settled law that this Court does not substitute its opinion for that of the
employer so as to decide whether or not services of the respondent no.2 were
satisfactory or not. The action of the petitioner no.1/School could only have
been challenged if otherwise there was sufficient material on record to show
malafides of the petitioner no.1/School that petitioner no.1/School has not
confirmed the probationary services in spite of the fact that the respondent
no.2's services were satisfactory. In the counter-affidavit which is filed by
the respondent no.2, and the supporting documents it is not found that
respondent no.2 is able to show beyond doubt that her services were
satisfactory and the petitioner no.1/School has thus wrongly arrived at a
decision that her services were not satisfactory.
8. Learned counsel for the petitioners rightly contends that in the
entire counter-affidavit there is no paragraph containing detailed averments
as to how the respondent no.2's services with the petitioner no.1/School
should be taken as satisfactory in spite of the petitioner no.1/School stating
otherwise in the impugned order dated 3.10.1996.
WP(C) 4865/2001 Page 4 of 5
9. In view of the above, the writ petition is allowed. The
impugned judgment of the Tribunal dated 3.7.2001 is set aside. Respondent
no.2 is held to have been terminated from services with the petitioner
no.1/School on account of her probationary services not being satisfactory.
The issue with respect to petitioner no.1/School being a minority institution
is left open for being decided in appropriate proceedings. No costs.
APRIL 06, 2015 VALMIKI J. MEHTA, J.
ib
