Smt. Mary Francina vs Director Of Education And Anr
2017 Latest Caselaw 451 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   W.P.(C) Nos.788/2007 & 810/2007

%                                                     25th January, 2017

1.    W.P.(C) No.788/2007

SMT. MARY FRANCINA                                    ..... Petitioner
                 Through:                Mr. S.C. Rana, Advocate.


                          Versus


DIRECTOR OF EDUCATION AND ANR.          ..... Respondents

Through: Mr. Satyakam, ASC for GNCTD.

2.    W.P.(C) No.810/2007

SMT. K.A.P. RANGAMMAL                           ..... Petitioner
                  Through:               Mr. S.C. Rana, Advocate.


                          versus

DIRECTOR OF EDUCATION AND ANR.          ..... Respondents
                 Through: Mr. Satyakam, ASC for
                          GNCTD.

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.788/2007

1. By this writ petition under Article 226 of the Constitution

of India, the petitioner seeks the relief of being granted permanent

appointment and/or regularization as an Assistant Teacher in the school

run by the respondent no.2/Delhi Tamil Education Association Society.

2. The case of the petitioner is that she has been working

with the senior secondary school of the respondent no.2 at Lodhi

Estate, New Delhi for the last 8/9 years. Petitioner pleads that in June,

2005, she was asked to fill up the application form in terms of an

advertisement for the post of Assistant Teacher likely to be filled on

permanent basis, and accordingly she filled the form. Petitioner's

claim is that since she has been working in the school of the respondent

no.2 intermittently from 1998 onwards, hence the vacancy should not

be filled up by advertisement, but, that the petitioner should be

confirmed to the post in which she worked.

3. Respondent no.1 is the Director of Education. The stand

of the respondent no.1 would be important because schools run by the

respondent no.2 are aided schools i.e 95% of the finances for running

of the schools by the respondent no.2 are provided by the respondent

no.1. The case of the respondent no.1 is that respondent no.1 has

never released any finances with respect to appointment of the

petitioner as an Assistant Teacher in the school of the respondent no.2

i.e the appointment of the petitioner in the school of the respondent

no.2 is without the requisite sanction or permission of the respondent

no.1. The case of the respondent no.2 is that petitioner was appointed

only for short periods of 2-3 months to meet situations of non-

availability of certain teachers and that the ad hoc appointments were

given to the petitioner so that the studies of the students do not suffer.

It is pleaded that normally the petitioner was only appointed for a

limited period of three months say July to March, at the maximum, in

an academic year. It is pleaded that petitioner being only an ad hoc

teacher therefore cannot be regularized. Also, it is pleaded that

petitioner cannot be made permanent or regularized because petitioner

does not have the necessary qualification of having studied Tamil

language till intermediate/higher secondary/senior secondary and

which is a requirement in terms of the subject advertisement issued on

25.6.2005.

4. Two issues arise for decision in this writ petition. First is

as to whether an ad hoc appointee such as the petitioner can be

regularized, keeping in mind that regularization is sought in an aided

school and not in a private unaided school. The second aspect is that

whether the petitioner can be regularized and made permanent in the

post and not appointing the teachers who have applied in terms of the

subject advertisement dated 25.6.2005.

5. An ad hoc appointment of a teacher in school is as per the

provision of Rule 105(3) of the Delhi School Education Rules, 1973

and which Rule reads as under:-

"Rule105. 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 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 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."

6. Admittedly, even the case of the petitioner is that she was

appointed only intermittently since 1998 i.e petitioner's appointments

were on ad hoc basis. Obviously these ad hoc appointments were for a

few months as stated by the respondent no.2 in its counter affidavit.

The maximum period for which petitioner seems to have worked is

from 5.7.1999 to 30.4.2001 in terms of the certificate filed as Annexure

P-4 to the writ petition. Once the case of the respondent no.2 is, and

which has in effect been admitted by the petitioner that the petitioner

was only an ad hoc appointee, and which ad hoc appointment is in

accordance with Rule 105(3) of the Delhi School Education Rules,

petitioner's appointment has to remain an ad hoc appointment and

petitioner cannot seek permanent appointment to the post and/or

regularization to the post.

7. There is no provision under the Delhi School Education

Act and Rules for regularization of an ad hoc/contractual appointee

and the best case of the petitioner for permanent appointment and

regularization would only be if the petitioner had worked for a

continuous period of three years in a school of the respondent no.2

with the fact that the post and appointment in question in which the

petitioner worked was sanctioned by the respondent no.1. In view of

the ratio laid down in three connected cases with lead case being Army

Public School and Anr. Vs. Narendra Singh Nain and Anr. in

W.P.(C) No.1439/2013 decided on 30.8.2013 wherein this Court has

held that teachers of private unaided schools who have continuously

worked for more than three years in a school have to be made

permanent otherwise there would be a fraud upon the scheme of the

Delhi School Education Act and Rules. However, the petitioner has not

shown continuous working of three continuous years (365 days X 3)

with the school besides the aspect that the judgment in the case of

Army Public School (supra) holds that an ad hoc appointee in terms of

Rule 105(3) of Delhi School Education Rules cannot be regularized

and that is all the more so in the present case because, unlike private

unaided schools like in Army Public School's case (supra), respondent

no.2 in the present case runs an aided school and the finances of which

to the extent of 95% are provided by the respondent no.1. In aided

schools the post creation and appointment of an employee of an aided

school has to be with the sanction and permission of the respondent

no.1, and which aspects are admittedly missing in the present case.

Such an ad hoc employee as the petitioner who has therefore been

appointed in an aided school without any sanction or permission of the

respondent no.1 which gives 95% of the finances, therefore, cannot be

made permanent or regularized. Therefore looking at it from any

manner as to the fact that petitioner was only an ad hoc appointee in

terms of Rule 105(3) of the Delhi School Education Rules who thus

cannot be regularized, even the appointment of the petitioner was in

fact without the sanction and permission of the respondent no.1, and

hence the petitioner cannot seek the relief of being made permanent or

regularized in school of the respondent no.2.

8. There is another reason why petitioner cannot be made

permanent inasmuch as the requirement as per the advertisement dated

25.6.2005 for being appointed as an Assistant Teacher in the school of

the respondent no.2 is that candidate must have studied Tamil language

at least up to intermediate/higher secondary/senior secondary, but,

admittedly and which is conceded by the counsel for the petitioner, that

the petitioner has studied only up to 8th class for Tamil language.

Authorities which appoint teachers are entitled to fix minimum

standards of educational qualifications for appointment of a teacher,

and therefore, petitioner cannot quarrel with the requirement of the

prescribed standard laid down that a candidate must have studied up to

intermediate/higher secondary/senior secondary for the Tamil

language, and which requirement admittedly the petitioner does not

satisfy.

9. Learned counsel for the petitioner sought to argue that

respondents must show the legal requirement of the minimum

educational qualification, however, besides the fact that it is the

petitioner who has come to the Court and therefore the petitioner must

prove that the standard demanded of a particular educational

qualification by the respondent no.2 is illegal, there is also the

additional fact that respondent no.1 does not dispute the stand of the

respondent no.2, and once the respondent no.1/Director of Education

does not dispute the requirement of a candidate having to have studied

Tamil language up to intermediate/higher secondary/senior secondary,

then the petitioner cannot claim that the standard/educational

qualification required has been illegally fixed. In any case, petitioner

seeks regularization after and in fact in terms of the advertisement of

June, 2005, and therefore, regularization can only be sought w.e.f June,

2005 as per the advertisement dated 25.6.2005, and as per the subject

advertisement there is a requirement of a candidate for being appointed

as an Assistant Teacher in the school of the respondent no.2 to have

studied Tamil language up to intermediate/higher secondary/senior

secondary, and since respondent no.1 supports the recruitment process

through the advertisement in question dated 25.6.2005 and it is at this

stage that the petitioner seeks regularization by the respondent no. 2

not pursuing the recruitment process through the advertisement dated

25.6.2005, therefore, the petitioner has to meet the qualifying standard

of having studied Tamil language till intermediate/higher

secondary/senior secondary, and which qualification the petitioner

does not have.

10. In fact, this writ petition is a writ petition on account of

frustration of the petitioner because petitioner filled up the form for

being selected through the subject advertisement, but was not short-

listed as she did not have the requisite qualification of having studied

Tamil language up to intermediate/higher secondary/senior secondary.

11. Reliance placed by the learned counsel for the petitioner

on the judgment of a learned Single Judge of this Court in the case of

Mrs. Usha Sharma Vs. Union of India (UOI) & Ors. 110 (2004) DLT

116 in fact goes against the petitioner because in that case a teacher

who was working in a school for a long time sought relief of being

regularized, but, was not regularized because petitioner in that case

was originally appointed in an unrecognized school, and after

recognition of the school, the Director of Education required meeting

of a particular standard which the petitioner in that case did not have,

and therefore, the writ petition filed by the petitioner Smt. Usha

Sharma was dismissed i.e the Director of Education was found to be

justified in seeking specific qualifications for regularization. Also, the

said judgment would not apply because in the facts of the said case

petitioner was not an ad hoc appointee for short periods like the

petitioner was so appointed in the present case. The judgment in the

case of Usha Sharma (supra) does not lay down any ratio qua Rule

105(3) of the Delhi School Education Rules and hence the said

judgment will not apply to the facts of the present case.

12. Reliance placed by the petitioner upon the judgment of

another learned Single Judge of this Court in the case of Harbhajan

Kaur (Smt.) Vs. The Director of Education (NCT of Delhi) & Anr.

2010 IV AD (Delhi) 790 also does not help the petitioner because in

the facts of the said case, the advertisement was for a permanent post

and yet the candidate was only appointed as an ad hoc employee, and

since the ad hoc person had been appointed to a permanent post in

terms of an advertisement for the permanent post who had worked for

many many years, hence, the petitioner Smt. Harbhajan Kaur in the

said case was directed to be made permanent. The facts of the present

case are totally different because the petitioner admits that

appointments of the petitioner were only ad hoc appointments i.e

intermittently since the year 1998. Therefore, this judgment in the case

of Harbhajan Kaur (Smt.) (supra) also does not support the case of

the petitioner.

13. In view of the above, this writ petition is hopelessly

misconceived and therefore the same is dismissed, leaving the parties

to bear their own costs.

W.P.(C) No.810/2007

14. For the discussion and reasoning given while disposing of

W.P.(C) No.788/2007, and which is adopted mutatis mutandis so far as

this petition is concerned, this writ petition is also dismissed, leaving

the parties to bear their own costs.

JANUARY 25, 2017                             VALMIKI J. MEHTA, J
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