Delhi High Court
Shazi Jah vs Managing Committee Hamdard ... on 24 October, 2016
$~75
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on 24th October, 2016
+ W.P.(C) 9865/2016, CM APPL. 39284/2016 (Exemption)
SHAZI JAH
..... Petitioner
Through: Ms. Tamali Wad with Ms. Indrani
Ghose, Advs.
versus
MANAGING COMMITTEE HAMDARD PUBLIC SCHOOL AND
ORS
..... Respondent
Through: Mrs. Ekta Sikri with Mrs. Adwaita
Sharma, Adv. for respondent nos. 1, 2 & 4.
Mr. Siddhartha Shankar Ray, Adv. for R-3.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J (oral)
1. The petitioner is aggrieved by the order of the Delhi School Tribunal
dated 22.09.2016 in Appeal No. 59 of 2015 whereby the order dated
18.05.2015 terminating her services was upheld.
2. It is the petitioner's case that she was employed by respondent no. 1 -
Hamdard Public School and not by respondent no. 2, i.e., the Hamdard
Education Society. Therefore, insofar as the letter of termination has been
issued by the Hamdard Education Society, it would be non est in law and of
no consequence.
3. Ms. Tamali Wad, the learned counsel for the petitioner submits that
an identical issue has been answered in favour of the petitioner in two LPAs
wherein the issue was whether identically situated employees of the school
run by the Hamdard Education Society could be transferred by the Society
instead of the Hamdard Public School where they were working. The
Division Bench of this Court in LPA Nos. 508/2013 and 945/2013 vide
order dated 16.05.2014 answered the issue in the negative, holding that the
employer-employee relationship existed between the Managing Committee
of the School and the employee, and that the employee is to serve only the
employer. She contends that identical letters of employment were issued by
the two schools of the Hamdard Education Society, i.e., Hamdard Public
School and Rabea Girls Public School. She further submits that in both the
aforesaid LPAs the transfer clause was similar, if not identical and that the
issue as to whether the petitioner was employed by the School or by the
Society has been answered in favour of the School.
4. Ms. Ekta Sikri, the learned counsel for the respondent, who appears
on receipt of advance copy of the petition refutes the said contentions. She
contends that the letter of appointment issued in this case would be material
insofar as the appointment letter has been issued by the School but with the
approval of employment by the Managing Committee of the Hamdard
Education Society. She refers to clauses 2, 7 and 11 of the letter to contend
that throughout its contents the letter refers to both, the Society and the
School in the same breath. The petitioner has acted upon the said letter.
The petitioner was initially appointed on probation for a period of one year.
The school did not wish to retain her services beyond that period. Therefore,
her services were terminated in terms of the clauses of the appointment letter
with one month's salary in lieu of the termination. The said money was
accepted by the petitioner without protest. She further submits that (i)
insofar as the petitioner has accepted that she had been appointed subsequent
to approval from the Managing Committee of the Hamdard Education
Society and that extension of her services would be subject to the approval
of the Managing Committee of the Hamdard Education Society and (ii) the
letter stated that the Managing Committee will make periodic assessment
apropos her performance regarding teaching and other assignments,
therefore, it is evident that the petitioner acknowledged that her services
were to be governed and supervised by the Society and not by the School.
Hence, for the petitioner to contend that she was an employee of the School
and not of the Society is not tenable.
5. Ms. Wad refers to the judgment of the Supreme Court in General
Manager (OSD), Bengal Nagpur Cotton Mills, Rajnandgaon v. Bharat Lal
and Another (2011) 1 SCC 635 to contend that the test for determination as
to who is the principal employer is two fold, i.e., (i) whether the said
employer pays the salary and (ii) whether the said employer has supervision
and control over the services and transfers of the employee concerned.
6. In the present case, it is not in dispute that monies have been paid by
the School. However, the supervision, control, transfer and assignment of
services to be rendered by the petitioner were entirely subject to approval of
the Society. Therefore, to that extent, the case is distinguishable on facts;
the rigours of the aforesaid judgment would not be applicable to the present
case.
7. Ms. Wad further refers to clauses 4, 6 & 8 of the appointment letter
which read as under:
"4. The Society / School will expect you to work
with a high standard of integrity, initiative and
efficiency.
6. Your services will be governed by the rules
and regulations of society/school, which are in force or
may come in force from time to time.
8. You will also be entitled to free tuition-fee for
two of your own children as long as you are in
employment of this School."
8. The Court notes that clauses 4 & 6 concern only the rules which may
be applicable for the employee's tenure of service, whereas clause 8
provides the benefit of free tuition for up to two children of the employee.
9. At this stage, the learned counsel for the petitioner submits that there
is no post of PRT (Primary Teacher) in the Society, therefore the Society
would not have appointed the petitioner. She further submits that the
appointment letter has been issued on the letter head of Hamdard Public
School with Employee Code No. HPS/286. She submits that under Rule
120 of the Delhi School Education Act, 1973, schools need to run by a
Managing Committee.
10. Be that as it may, the aforesaid argument remains academic because
the tenure of one year is over and this Court need not go into this question.
It is not in dispute that the employment of the petitioner was initially only
for a probation period of one year only and was not extended either by the
School or by the Society.
11. Considering that the fact that the appointment was initially made for a
period of one year on probation, the period could have been extended by the
School in terms of the appointment letter, but it was not done. The tenure of
employment has been exhausted by efflux of time. The petitioner has no
right to seek a mandamus extension of that tenure or for regular employment
in that post. The prerogative to hire the services of an employee is entirely
of the employer. The writ jurisdiction cannot be invoked to necessarily seek
extension of tenure of employment after lapse of the agreed tenure or for
employment against the wishes or requirement of an employer and that too
de hors the eligibility and/or suitability of the person. The petitioner has no
right to continue in service beyond the tenure of employment.
12. This Court finds no error in the impugned order. The petition is
without merit and is accordingly dismissed.
NAJMI WAZIRI, J
OCTOBER 24, 2016/acm
