Delhi High Court
Shatrughan Thakur vs The Director Of Education & Ors. on 29 April, 2015
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No.5189/2014
% 29th April, 2015
SHATRUGHAN THAKUR ..... Petitioner
Through Mr.M.A.Niyazi with Anamika Ghai
Niyazi, Advocates.
versus
THE DIRECTOR OF EDUCATION & ORS. ..... Respondents
Through Ms.Purnima Maheswari, Advocate for
R-1.
Ms.Divia Sinderrajan, Advocate for R-
2 & 3.
W.P.(C) No.5190/2014
VIKRAM SINGH ..... Petitioner
Through Mr.M.A.Niyazi with Anamika Ghai
Niyazi, Advocates.
versus
THE DIRECTOR OF EDUCATION & ORS. ..... Respondents
Through Ms.Purnima Maheswari, Advocate for
R-1.
Ms.Divia Sinderrajan, Advocate for R-
2 & 3.
W.P.(C) No.5191/2014
RAVI KUMAR ..... Petitioner
Through Mr.M.A.Niyazi with Anamika Ghai
Niyazi, Advocates.
versus
THE DIRECTOR OF EDUCATION & ORS. ..... Respondents
Through Ms.Purnima Maheswari, Advocate for
R-1.
Ms.Divia Sinderrajan, Advocate for R-
2 & 3.
W.P.(C) No.5344/2014
BIR SINGH ..... Petitioner
Through Mr.M.A.Niyazi with Anamika Ghai
Niyazi, Advocates.
versus
THE DIRECTOR OF EDUCATION & ORS. ..... Respondents
Through Ms.Bandana Shukla, Advocate for R-1.
Ms.Divia Sinderrajan, Advocate for R-
2 & 3.
W.P.(C) No.5809/2014
SHEEJA BENOY ..... Petitioner
Through Mr.M.A.Niyazi with Anamika Ghai
Niyazi, Advocates.
versus
THE DIRECTOR OF EDUCATION & ORS. ..... Respondents
Through Ms.Purnima Maheswari, Advocate for
R-1.
Ms.Divia Sinderrajan, Advocate for R-
2 & 3.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
W.P.(C) No.5189/2014
1. This matter along with the connected matters was passed over once at the
request of the counsel appearing for the respondent no.3/School. Even after a
passover, again a further passover is sought and which request is not acceptable
considering that the issues in the present matter are covered in terms of many
judgments which have been delivered by this Court in cases of different
petitioners against the Army Public Schools itself. These judgments are as
under:-
I. W.P.(C) No.1439/2013 titled as Army Public School & Anr. Vs. Narendra
Singh Nain decided on 30.8.2013.
II. W.P.(C) No.2176/2013 titled as Army Public School & Anr. Vs. Ayodhaya
Pd. Semwal decided on 30.8.2013.
III. W.P.(C) No.2535/2013 titled as Army Public School & Anr. Vs. Anusuya
Prasad decided on 30.8.2013.
IV. W.P.(C) No.11484/2009 titled as Satya Chchikara Vs. Management
Committee of APS & Anr. decided on 03.9.2013.
V. W.P.(C) No.5964/2010 titled as Tejbeer Singh Vs. Directorate of Education
& Ors. decided on 18.12.2013.
VI. W.P.(C) No.1845/2014 titled as Anita Soharu Guleria Vs. Directorate of
Education & Ors. decided on 25.2.2015.
VII. W.P.(C) No.1944/2014 titled as Manju Nautiyal Vs. Directorate of Education
& Ors. decided on 25.2.2015.
VIII. W.P.(C) No.2112/2014 titled as Shayam Dutt Vs. Directorate of Education &
Ors. decided on 25.2.2015.
IX. W.P.(C) No.6180/2013 titled as Renu Barrot Vs. The Director of Education
decided on 27.4.2015.
2. A reading of the counter-affidavit in the present writ petition shows that
the respondent no.3/School has not been able to substantiate as to how
contractual appointment of the petitioner was on account of administrative
exigency under Rule 105(3) of the Delhi School Education Rules, 1973
framed under Delhi School Education Act, 1973 (hereinafter jointly referred
to as DSEAR, 1973), and once no exigency exists for temporary/contractual
employment, ratio of the judgment in the case of Army Public School & Anr.
Vs. Narendra Singh Nain & Anr. in W.P.(C) No.1439/2013 decided on
30.8.2013 will apply entitling the appointment of the petitioner to be treated as
regular and having statutory protection under DSEAR, 1973. The relevant para
nos. 2 to 8 of this judgment in the case of Narendra Singh Nain (supra) read as
under:
"2. The facts of the case are that respondent No.1 was firstly appointed
as Lower Division Clerk (LDC) on contractual basis by the petitioner-
school for a period of one year in terms of letter dated 3.12.2007. After
the contractual period came to an end, respondent No.1 was
immediately re-appointed as LDC, however on probation, in terms of
the appointment letter dated 30.5.2008. The period of probation was
one year from 1.4.2008. As per the appointment letter the respondent
No.1 was to continue in probation till the services were confirmed in
writing by the Managing Committee of the petitioner-school. The
period of probation of the petitioner was extended by the petitioner-
school for one more year from 1.4.2009 (i.e till 31.3.2010) by the letter
dated 31.3.2009. Respondent No.1's services were terminated by a
letter dated 21.3.2010 observing that as per the performance reports and
advisories given during the extended period of probation, the respondent
No.1's services were to stand terminated w.e.f 29.3.2010. Respondent
No.1 was however immediately again appointed on 8.4.2010 as a part-
time Admission Clerk for one year w.e.f 3.4.2010. Respondent No.1
had however in the meanwhile challenged the order of the petitioner-
school terminating his services vide letter dated 21.3.2010 before DST,
and consequently when the notice of the appeal filed before the DST
reached the petitioner-school, it is contended by the respondent No.1
that immediately thereafter on 10.6.2010, the petitioner-school
terminated the contractual appointment given by the letter dated
8.4.2010 by simply stating that the petitioner school no longer requires
the services of the respondent No.1.
3. On the basis of the admitted facts: in the form of various
appointment letters and the termination letters which have been issued
by the petitioner-school as detailed above; the provision of Rule 105 of
the Delhi School Education Act & Rules, 1973; the judgment delivered
by me in the case of Hamdard Public School Vs. Directorate of
Education and Anr. in W.P.(C) No.8652/2011 decided on 25.7.2013
interpreting Rule 105; and, the judgment of the Supreme Court in the
case of Management Committee of Montfort Senior Secondary School
Vs. Sh. Vijay Kumar and Ors., (2005) 7 SCC 472 read with Division
Bench judgment of this Court in the case of Social Jurist, a Civil Rights
Group Vs. GNCT & Ors. 147 (2008) DLT 729, the issues which arise,
and on which counsel for the parties have been heard, are first as to
whether the respondent No.1 at all can be said to only be a contractual
employee in terms of the first contractual appointment letter dated
3.12.2007 or whether the employment of respondent No.1 since
inception in the peculiar facts of this case would have a statutory favour
in view of the provisions of the Delhi School Education Act and Rules,
1973, and secondly as to whether the actions of the petitioner-school
amount to over-reach the provision of Rule 105 and is, therefore, against
the ratio not only of the categorical language of Rule 105 but also the
ratio of the judgment passed by me in the case of Hamdard Public
School Vs. Directorate of Education and Anr. (supra). The following
issues are, therefore, crystallized for decision by this Court:
(i) Should the respondent No.1's services in the facts of this
case be not taken as having statutory protection in terms of the
Delhi School Education Act and Rules, 1973 since the original
date of the contractual appointment in terms of letter dated
3.12.2007. Related with this issue would be whether the
respondent No.1 is estopped from challenging the nature of
appointment as contractual inasmuch as respondent No.1
thereafter accepted services first as a probationer and thereafter
again on contractual basis.
(ii) Whether all the appointment letters, whether giving
contractual appointment or as appointment on probation, have to
be read in their substance and not in form whereby actually the
respondent No.1 should be treated as on probation either from
28.11.2007 or in any case from 1.4.2008 and since there is no
mention of termination on account of unsatisfactory services in
the termination letter dated 10.6.2010, and none exist as stated in
the letter dated 21.3.2010, therefore, respondent No.1 would have
confirmation of employment on account of language of Rule 105
and the judgment in the case of Hamdard Public School Vs.
Directorate of Education and Anr. (supra).
4. So far as the first issue is concerned, as to whether the respondent
No.1's services originally w.e.f 28.11.2007 are contractual in nature or
statutory in character, it would be necessary at this stage to refer to the
relevant para 10 of the Supreme Court judgment in the case of
Management Committee of Montfort Senior Secondary School Vs. Sh.
Vijay Kumar and Ors. (supra), but, before I do so I must hasten to add
that the observations which are being made by me in this judgment as
regards the first issue is because of the facts of this case whereby I am
not treating the first appointment as contractual in nature in spite of the
letter dated 3.12.2007 so specifying because I hold this letter, and also
subsequent probationary/contractual appointment letters, to be a sham
and given only for denying regular employment to respondent No.1 as
LDC. The repeated appointments and terminations, have persuaded me
to hold that the petitioner's-school's actions are a fraud upon the
requirement to normally not to appoint an employee on contract basis.
Accordingly, in a case where on account of genuine exigencies a
contractual appointment is required (like when a regular employee
suddenly leaves etc.) then such employment will be treated as
adhoc/temporary/contractual and not a statutory one having protection
of the Act & Rules. With this preface let us reproduce para 10 of
Montfort Senior Secondary School's case (supra) and which reads as
under:-
"10. 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 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....."
5. A reference to aforesaid para shows that the Supreme Court in
Management Committee of Montfort Senior Secondary School Vs. Sh.
Vijay Kumar and Ors. (supra) has laid down the ratio that the very
nature of employment of the employees of a school are that they are no
longer contractual in nature but statutory. This observation was made
by the Supreme Court in spite of the fact that the minority schools had
entitlement under the provisions of Section 15 and Rule 130 of the
Delhi School Education Act and Rules, 1973 to have a contract of
services for its employees. It be noted that so far as the non-minority
schools are concerned there is no provision in the Delhi School
Education Act and Rules, 1973 to have a contractual appointment.
Therefore, once if minority schools' employees cannot have contractual
employment and they have to be treated as statutory employees, then a
fortiorily non-minority schools whose employees cannot be engaged in
employment on contractual basis, such employees in non-minority
school would surely have statutory protection of their services. In
Management Committee of Montfort Senior Secondary School Vs. Sh.
Vijay Kumar and Ors. (supra) the Hon'ble Supreme Court has made it
clear in the aforesaid paragraph 10 that the qualifications, leaves,
salaries, age of retirement etc, removal and other conditions of services
are to be governed "exclusively" under the statutory regime provided
under the Delhi School Education Act and Rules, 1973. Once that is so,
then, as per Rules 118 to 120 of the Delhi School Education Rules, 1973
the services of an employee can only be terminated on account of
misconduct and that too after following the requirement of holding of a
detailed enquiry and passing of the order by the Disciplinary Authority.
Therefore, in view of the categorical ratio of the judgment of the
Supreme Court in the case of Management Committee of Montfort
Senior Secondary School Vs. Sh. Vijay Kumar and Ors. (supra) and in
view of the facts of this case the respondent No. 1's services from the
inception cannot be taken as only contractual in nature and would be
statutory in nature. Once the services are statutory in nature, and
admittedly the respondent No. 1 has not been removed by following the
provisions of conducting an enquiry and passing of an order by the
Disciplinary Authority as required under the Rules 118 to 120 of the
Delhi School Education Rules, 1973, the respondent No. 1's services
cannot be said to have been legally terminated. Respondent No. 1,
therefore, continues to be in services.
6. To distinguish the applicability of the Supreme Court in the case of
Management Committee of Montfort Senior Secondary School vs. Sh.
Vijay Kumar and Ors. (supra), learned counsel for the petitioner has
urged the following two arguments:
(i) Respondent No.1 is estopped from questioning his first
appointment as contractual, thereafter appointment on probation
and his termination during the probation period and thereafter
again a fresh contractual appointment and finally his termination
as per the last contract dated 8.4.2010. It is argued that
respondent No.1 having acted upon the aforesaid sequence of
events comprised in different appointments cannot now contend
that the ratio of the judgment in Management Committee of
Montfort Senior Secondary School vs. Sh. Vijay Kumar and
Ors. (supra) should come to his aid.
(ii) It is argued that the judgment in Management Committee
of Montfort Senior Secondary School vs. Sh. Vijay Kumar and
Ors. (supra) was intended only to apply to minority schools and
ratio of the said judgment cannot be read to apply to non-minority
schools.
7. So far as the second arguments urged on behalf of the petitioner-
school to distinguish the applicability of the ratio in the case of
Management Committee of Montfort Senior Secondary School vs. Sh.
Vijay Kumar and Ors. (supra), I have already dealt with this aspect
above by holding, and the same is reiterated herein, that, if for minority
schools, there cannot be contractual appointments, and which in fact
was so envisaged under the relevant provisions of the Delhi School
Education Act and Rules, 1973, then, surely and indubitably, so far as
non-minority schools are concerned, and who do not have provisions
even in terms of Delhi School Education Act and Rules, 1973 for
making contractual appointments, the ratio of Management Committee
of Montfort Senior Secondary School vs. Sh. Vijay Kumar and Ors.
(supra) would squarely apply and the employees of the non-minority
schools will be treated not as contractual employees of the schools but
statutory employees having statutory protection in terms of the relevant
provisions of the Delhi School Education Act and Rules, 1973.
8. So far as the first argument of estoppel is concerned, that argument
is attractive only at the first blush, however, this argument overlooks the
elementary principle that there is no estoppel against law. Of course,
there may be estoppel against law where the provisions of law are only
for private individual interest and not meant to be in public interest,
however, considering that statutory protection is given to the employees
of a school and which results in stability to the education system, the
same therefore cannot be held to be as not in public interest, more so
after amending of the Constitution by introduction of Article 21A by
which right to education has been made as a fundamental right for
children from the ages of 6 to 14 years. Also one cannot ignore the fact
that right to education otherwise also is an important part of Directive
Principles of State Policy vide Article 41 and Article 45 of the
Constitution, and thus subject of education itself has been treated by the
Supreme Court as a public function and consequently, writ petitions lie
against even private educational institutions. Reference need in this
regard be only made to the Constitution Bench judgment of the
Supreme Court in the case of Unni Krishnan J.P. & Ors. etc. etc. Vs.
State of A.P. & Ors. etc. etc. 1993(1) SCC 645 and which clearly holds
that the subject of education is a public function, and hence writ
petitions are maintainable even against private educational institutions."
3. The facts which are stated by the respondents for giving contractual
appointments do not bring the case of respondents under Rule 105(3) of the
DSEAR, 1973. The stand of respondents no. 2 & 3 in para 5 at pages 4 & 5 of
the counter affidavit is pleaded as a justification for posts to remain only
contractual posts, but, this stand is in violation of the ratio of the Supreme
Court in the case of Management Committee of Montfort Senior Secondary
School vs. Sh. Vijay Kumar and Ors. (2005) 7 SCC 472 and which lays down
that teachers and employees of schools must have statutory protection and
therefore, contractual appointments are not permissible instead of regular
appointments. In Management Committee of Montfort Senior Secondary
School's case (supra) the contractual appointments were held not be valid
appointments and such employees were held to have statutory protection
under DSEAR, 1973 as regards their services although the appointments were
given on contract basis. Also, the pleading of strength of students being
variable as urged by respondents no. 2 & 3 is only a self-serving ipse dixit
with no material at all in support of the same, much less such statistics which
are spread over many many years, and which also have to be established to the
satisfaction of this Court.
4. Reliance placed by respondents no. 2 & 3 on the ratio in the case of
T.M.A. Pai Foundation and Others Vs. State of Karnataka and Others, 2002
(8) SCC 481 and other judgments is misplaced as entitlement to administer a
private unaided school does not entitle such a school to take away statutory
protection of employment given as per DSEAR, 1973 and which issue is
squarely decided against the respondent no.3/School in terms of the
categorical ratio contained in para 10 of the judgment in the case of
Management Committee of Montfort Senior Secondary School (supra), and
which has been reproduced above. Right to administer does not mean right to
mal-administer i.e. right to administer has to be in accordance with the laws
being DSEAR, 1973 and the employment in view of the judgment of the
Supreme Court in the case of Management Committee of Montfort Senior
Secondary School (supra) acquires statutory flavor superseding the
contractual nature of the appointment/employment. The employment of the
employees/teachers in schools as contractual appointments would thus be an
anathema to the required statutory nature as mandated qua their services.
5. In view of the above, the writ petition is allowed and it is held that the
petitioner's services with the respondent no.3/School will be taken not as
contractual employment but as regular statutory employment on the
completion of third year of service with the respondent no.3/School i.e w.e.f
22.10.2008. Since the petitioner will be taken as a regular employee of the
respondent no.3/School w.e.f 22.10.2008, petitioner will also be entitled to the
monetary benefits taking the petitioner as a regular employee of the
respondent no.3/School for a period of three years prior to filing of the writ
petition i.e though regularization will be w.e.f 22.10.2008, payment of
enhanced salary and other monetary emoluments will be granted to the
petitioner for a period of three years prior to filing of the writ petition and to
be continued thereafter during the employment of the petitioner with the
respondent no.3/School. Arrears be cleared within a period of two months
from today.
6. In view of the above, the writ petition is allowed with costs of
Rs.25,000/- to be paid to the petitioner by the respondent no.3/School.
7. In view of the facts as stated above, and which show that various Army
Public Schools are over-reaching the provisions of Delhi School Education
Act and Rules, 1973 including the present Army Public School being the
branch at Delhi Cantt, Sadar Bazar Road, Delhi, the Director of Education
will conduct an enquiry against the respondent no.3/School by constituting a
committee to examine the records for a period of about 10 years prior to filing
of the writ petition. The committee will give its report within a period of three
months from today to the Director of Education, and if the respondent
no.3/School is found to be violating the provisions of DSEAR, 1973 by
illegally giving employment only on contractual basis instead of regular
statutory employment, then, the Director of Education will take necessary
action against the respondent no.3/School under DSEAR, 1973.
W.P.(C) No.5190/2014
This writ petition also stands allowed in terms of the observations made
while deciding W.P.(C) No.5189/2014 and the regularization being granted to
the petitioner w.e.f 14.05.2005.
Petitioner will be entitled to costs of Rs.25,000/- from the respondent
no.3/School.
W.P.(C) No.5191/2014
This writ petition also stands allowed in terms of the observations made
while deciding W.P.(C) No.5189/2014 and the regularization being granted to
the petitioner w.e.f 02.8.2013.
Petitioner will be entitled to costs of Rs.25,000/- from the respondent
no.3/School.
W.P.(C) No.5344/2014
This writ petition also stands allowed in terms of the observations made
while deciding W.P.(C) No.5189/2014 and the regularization being granted to
the petitioner w.e.f 05.7.2008.
Petitioner will be entitled to costs of Rs.25,000/- from the respondent
no.3/School.
W.P.(C) No.5809/2014
This writ petition also stands allowed in terms of the observations made
while deciding W.P.(C) No.5189/2014 and the regularization being granted to
the petitioner w.e.f 08.1.2011.
Petitioner will be entitled to costs of Rs.25,000/- from the respondent
no.3/School.
APRIL 29, 2015 VALMIKI J. MEHTA, J.
KA
After the judgment has been dictated, Mr. Ankur Chhiber, Advocate has
put in appearance for respondent nos. 2 & 3, and he has been apprised of the
above judgment.
APRIL 29, 2015 VALMIKI J. MEHTA, J.
KA
