Delhi High Court
Mrs. Archana Saini vs Managing Committee, Air Force Sr. ... on 21 February, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 5228/2010
% 21st February, 2017
MRS. ARCHANA SAINI ..... Petitioner
Through: Mr. L.S.Solanki, Adv.
versus
MANAGING COMMITTEE, AIR FORCE SR. SEC. SCHOOL & ANR.
..... Respondents
Through: Mr. Rajiv Bakshi, Adv. for R-1.
Mr. Siddharth Dutta, Adv. for R-2.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. By this writ petition under Article 226 and Article 227 of the
Constitution of India, petitioner challenges the judgment of the Delhi School
Tribunal dated 22.4.2010, by which the Delhi School Tribunal has
dismissed the appeal filed by the petitioner challenging petitioner's
termination of services from the respondent no.1/Air Force Sr. Sec. School.
2. Admittedly, the respondent no.1/school is an aided school i.e
95% of the finances of the respondent no.1/school are provided by the
Government of NCT of Delhi through the Director of Education. Therefore,
where employment to such aided schools is concerned, and finances for
which employment is paid out of public monies, there are applicable rules
for recruitment of a proper Selection Committee constituted under Rule 96
of the Delhi School Education Rules, 1973, candidates being called for
selection through sufficient advertisement, nominees of the Director of
Education being present as required by Rule 96(3)(b) of the Delhi School
Education Rules and if the nominees of the Director of Education are not
present then whether the Director of Education would grant ex post facto
approval under Rule 98 of the Delhi School Education Rules.
3. In the present case, it is seen that there are no pleadings or
documents as to when the petitioner was appointed ad hoc Lady Physical
Education Teacher on 28.7.1999, whether there was a sanctioned post of
Lady Physical Education Teacher in the respondent no.1/school, whether
there was vacancy in such post, whether recruitment rules have been
followed by duly constituting a Selection Committee under Rule 96 of the
Delhi School Education Rules as applicable to aided schools such as the
respondent no.1/school, and if there were or were not present nominees of
the Director of Education, and if the Director of Education's nominees were
not present then whether ex post facto approval can be granted to the
appointment of the petitioner.
4. Learned counsel for the petitioner relies upon a judgment
delivered by this Court on 17.1.2017 in two connected cases with lead case
being Sh. Shiv Sharma Vs. Govt. of NCT of Delhi & Anr. in W.P.(C)
10398/2004 to argue that petitioner is entitled to regularization of her
employment and which judgment in Sh. Shiv Sharma's case (supra) relies
upon the judgments delivered by this Court in the cases of Hamdard Public
School Vs. Directorate of Education and Anr. 202 (2013) DLT 111 and
Army Public School and Anr. Vs. Narendra Singh Nain and Anr. in
W.P.(C) No.1439/2013 decided on 30.8.2013.
5. In my opinion, the reliance placed by the petitioner upon the
judgment dated 17.1.2017 in W.P.(C) No.10398/2004 is misplaced and the
difference between the present case and the judgment in the case of Sh. Shiv
Sharma (supra) is amplified from para 8 of the judgment dated 17.1.2017
and which reads as under:-
"8. In my opinion, therefore, though the ratios of the judgments of this
Court in the cases of Hamdard Public School (supra) and Army Public School
(supra) will squarely apply for regularization of the petitioner from a period of
three years after the petitioner was appointed to the respondent no. 2/school,
inasmuch as there is no dispute that there is a sanctioned post of PET, there was
a vacancy in such sanctioned post and that the petitioner was in fact appointed
by the Managing Committee of the respondent no. 2/school, however, the
confirmation of the petitioner to the service as a PET of the respondent no.
2/school after three years of his appointment is subject to the orders of the
approval which the respondent no.1/Directorate of Education will give in terms
of Rule 98(2) proviso of the Delhi School Education Rules. Respondent
no.1/Directorate of Education will therefore now act in accordance with Rule
98(2) proviso and pass an appropriate order with respect to confirmation of the
petitioner as a PET with the respondent no. 2/school, and with effect from
which date, keeping in view the ratios of the judgments of this Court in the
cases of Hamdard Public School (supra) and Army Public School (supra)."
(underlining added)
6. In the present case, in the absence of recruitment of the
petitioner having been done by following the due process of the recruitment
under Rule 96, of whether ex post facto approval under Rule 98 of the Delhi
School Education Rules is required, and especially when it is not even clear
as to whether there was a vacancy in the sanctioned post to which petitioner
was appointed and therefore in my opinion, this writ petition can be
disposed of as per the following directions:-
Petitioner will get the benefit of the ratios of the judgments in the case of
Hamdard Public School (supra) and Army Public School (supra) only if
selection of the petitioner even as an ad hoc teacher with the respondent
no.1/school was by following due process of law being Rule 96 of the Delhi
School Education Rules, of a proper Selection Committee being duly
constituted, sufficient number of candidates being called through
advertisements, petitioner whether was having the necessary qualifications
for being appointed to the post of Physical Education Teacher, etc etc. The
Director of Education, and who would be the relevant authority to examine
the aspects as mentioned in this para, should examine these aspects after
hearing the petitioner as also the respondent no.1/school, and the Director of
Education will thereafter pass a speaking order as to whether petitioner can
get confirmation as per ratios of the judgments in the cases of Hamdard
Public School (supra) and Army Public School (supra) provided of course
the due process and requirements of the Delhi School Education Act &
Rules, 1973 were followed at the time of recruitment of the petitioner to the
post of Physical Education Teacher with the respondent no.1/school.
Needful be done by the Director of Education or his nominees within a
period of three months from today.
7. This writ petition is accordingly disposed of with the aforesaid
directions but it is made clear that this Court has made no observations one
way or the other on the merits as to whether the requirement of law
including of due process as per the Delhi School Education Act and Rules,
1973, and relevant circulars and guidelines of the Director of Education
were or were not followed for recruitment of the petitioner, and all such
aspects as stated in this judgment will be examined in depth by the Director
of Education or his nominees and thereafter pass the speaking order as
aforesaid.
8. The writ petition is accordingly disposed of in terms of the
aforesaid observations.
FEBRUARY 21, 2017/ib VALMIKI J. MEHTA, J
