Delhi High Court
Shri Ramesh Kumar And Ors. vs The Director Of Education And Ors. on 30 January, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No.5786/2015
% 30th January, 2017
SHRI RAMESH KUMAR AND ORS. ..... Petitioners
Through: None.
versus
THE DIRECTOR OF EDUCATION AND ORS. ..... Respondents
Through: Mr. Satyakam, ASC for
respondent No.1.
Mr. Pramod Gupta, Advocate
for respondent Nos.2 and 3.
Mr. Anil Kumar, L.A. Zone-21.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. In this writ petition, a detailed order was passed on
29.5.2015 when notices were issued in the writ petition and interim
stay granted with respect to only certain petitioners. This order dated
29.5.2015 reads as under:-
"C.M. No.10408/2015 (exemption)
1. Exemption allowed subject to just exceptions.
C.M. stands disposed of.
+ W.P.(C) No.5786/2015 and C.M. No.10409/2015 (stay)
2. There are a total of 43 petitioners in this case. All the 43
petitioners claim that they are employees of the respondent no.2-school.
Petitioners claim protection of their services with the school by placing
reliance upon the judgments passed by this Court in the case of Army
Public School & Anr. Vs. Narender Singh Nain & Anr. in W.P.(C)
No.1439/2013 decided on 30.8.2013 and the recent judgment in the case
of Sunita Prem John Vs. Govt. of N.C.T. of Delhi & Ors. in W.P.(C)
No.8474/2011 decided on 27.4.2015.
3. For the petitioners to get benefit of the judgments relied upon,
the petitioners must establish that they are employees of the school.
4. Counsel appearing for respondent nos.2 and 3 states that
petitioners are not employees of the respondent no.2-school but are
employees of the respondent no.3-society or of an agency M/s. P.K.
Travels, and therefore petitioners cannot get protection. Reliance is
placed by the respondent nos.2 and 3 upon the judgment of the Supreme
Court in the case of Samarth Shiksha Samiti and Anr. Vs. Bir Bahadur
Singh Rathour and Ors. (2009) 3 SCC 194 to argue that merely because
an employee of a society is put at the disposal of the school, the
employee does not become an employee of the school and the employee
remains an employee of the society, and once the employee is the
employee of the society he cannot get protection of services in terms of
the judgments relied upon on behalf of the petitioners.
5. Prima facie determination as to whether petitioners are or are
not employees of the school or of the society would be possible if
petitioners show before this Court their employment letters issued by the
school or payments into their bank accounts by the school or cash
receipts/vouchers issued by the school showing payment of salary to the
petitioners or other documents that petitioners are in fact employees of
the school.
6. Petitioners have not filed any appointments letters issued to
them by the respondent no.2-school. Petitioners have also not filed their
bank accounts or any bank certificates that petitioners have received
payments in their accounts from the respondent no.2-school. Petitioners
have also not filed documents which would be receipts or vouchers
showing cash payments to them by the respondent no.2-school.
7. Counsel for the petitioners sought to very strenuously rely upon
the documents which are filed alongwith the writ petition to show that
petitioners are employees of the school. However, the documents which
are authorization cards for drivers permitted to drive the bus on behalf of
the respondent no.2-school will not establish a prima facie case in favour
of such petitioners that such petitioners who have been issued
authorization cards as drivers by the transport department for driving
buses of the school, they hence cannot be said to be employees of the
school. Qua these aspects the respondent nos.2 and 3 are entitled to file
their counter affidavits and documents to show that petitioners are
employees not of the respondent no.2-school but of the respondent no.3-
society or of an agency M/s. P.K. Travels.
8. Learned counsel for the respondent nos.2 and 3 also argues that
the writ petition is liable to the dismissed for lacking bonafides inasmuch
as in the writ petition out of 43 petitioners, 21 petitioners are neither the
employees of the respondent no.2-school nor of the respondent no.3-
society but they were in fact only employees of M/s P.K. Travels, an
agency appointed by the respondent nos.2 and 3 for transportation
services to the students of the school. This aspect will be examined in
view of the ratio of the judgment in the case of Sunita Prem John
(supra) in case if originally these 21 persons were employees of the
respondent no.2-school but were thereafter transferred illegally as per the
petitioners to the respondent no.3-society or to the agency M/s. P.K.
Travels. However, equally and possibly the petitioners may be able to
successfully rely upon the ratio of Sunita Prem John (supra) to seek
continuation of their employments with the respondent no.2-school if one
or more petitioner was an employee of the school and to which aspect
counter arguments can always be raised on behalf of respondent nos.2
and 3 that petitioners at no point of time were the employees of the
respondent no.2-school and that they were the employees of the
respondent no.3-society as hence they would have no statutory protection
of their services in view of the judgment of the Supreme Court in the case
of Samarth Shiksha Samiti (supra) or the petitioners were/are
employees of the transportation agency M/s. P.K. Travels.
9. The aforesaid observations for not grant of interim orders apply
to the petitioners other than the petitioner nos.6, 9, 10, 12, 13, 16, 17, 22,
24 and 29.
10. With respect to these petitioner nos.6, 9, 10, 12, 13, 16, 17, 22,
24 and 29, alongwith the writ petition, ESI documents have been filed,
and which show that these petitioners are employees of the school.
11. Therefore, prima facie, such petitioners are entitled to the
benefit of the ratio of the judgment in the case of Sunita Prem John
(supra) subject to the rights of the respondent nos.2 and 3 to contend
otherwise and argue that out of petitioners or some of them today are no
longer employees of the respondent no.2-school or even of M/s. P.K.
Travels and also that some of these petitioners are as of date of filing of
the petition are not employees of the respondent no.2-school but of the
respondent no.3-society and/or of M/s. P.K. Travels.
12. In view of the above, so far as petitioner nos. 6, 9, 10, 12, 13,
16, 17, 22, 24 and 29 are concerned, prima facie, they would be entitled
to the benefits available to employees of schools under the Delhi School
Education Act and Rules, 1973 and their services could not have been
terminated by the school without complying with the provision of Rule
120 of Delhi School Education Rules, 1973 and also that there was
disentitlement in the respondent no.2-school to transfer their services
from the school either to the respondent no.3-society or to M/s P.K.
Travels. Of course, and as already stated above, the grant of interim
orders are subject to rights of the respondent nos.2 and 3 to be taken up in
their counter affidavits and for these respondents to argue that even these
petitioners were never the employees of the respondent no.2-school but
were/are employees of the respondent no.3/society or of M/s P.K.
Travels.
13. So far as petitioner nos. 6, 9, 10, 12, 13, 16, 17, 22, 24 and 29
are concerned, respondent no.2-school is restrained from terminating
their services with the respondent no.2-school till further orders.
14. Notice.
15. Counsel for respondent nos.1 to 3 accept notice. Counter
affidavits be filed within six weeks. Rejoinder affidavits thereto be filed
within four weeks thereafter.
16. Dasti notice be issued to respondent no.4, on filing of process
fee, both in the ordinary method as well as by registered post AD,
returnable on 18th August, 2015."
2. Respondent nos.2 and 3 being school and society have
filed a counter affidavit stating that so far as petitioners whose ESI
dues has been paid by the respondent no.2/school, the said aspect was
done on account of the provisions of Employees‟ State Insurance Act,
1948 (hereinafter referred to as „ESI Act‟) whereby even for
employees of a contractor it is the principal employer, being the
respondent no.2/school, who has to pay ESI and reference in this
regard is made to Section 2(17)(iii) and Section 40(1) of the ESI Act.
Counter affidavit in this case was filed by the respondent nos.2 and 3
way back on 12.8.2015. Thereafter, in spite of repeated opportunities,
petitioners have not filed the rejoinder affidavit and which is for the
reason that obviously petitioners have no answers to the facts as stated
in the counter affidavit of none of the petitioners being employees of
the respondent no.2/school, and only if the petitioners are employees of
the respondent no.2/school, can this Court entertain the writ petition
for grant to the petitioners the reliefs of full pay scale as also
implementation of recommendations of 6th Pay Commission Report.
In fact, in the counter affidavit of the respondent nos.2 and 3,
respondent nos.2 and 3 have stated that in fact some of the petitioners
have never been employees either of the school or of the society, being
respondent nos.2 and 3, but, that such persons were employees of the
private employer M/s P.K. Travels and which persons are petitioner
no.11/Mr. M.P. Singh, petitioner no.14/Mr. Sachin Kumar, petitioner
no.25/Mr. Devender, petitioner no.26/Mr. Umed Singh and petitioner
no.28/Mr. Mahender Giri Goswami, and by bunching these persons
with other petitioners, petitioners have sought to overreach the Court.
3. I may add that respondent no.2/school, on instructions,
states that respondent no.2/school regularly sends list of its employees
to the Director of Education and none of the petitioners are shown as
employees of the respondent no.2/school in the list furnished by the
respondent no.2/school to the Director of Education and this aspect is
affirmed by the counsel who appears for the Director of Education.
4. In view of aforesaid discussion, it is seen that petitioners
have never been employees of the respondent no.2/school, and once
petitioners are not employees of respondent no.2/school, then,
petitioners cannot get the reliefs as prayed in this writ petition of pay
scale of employees of a school governed by Delhi School Education
Act and Rules, 1973.
5. Writ petition is accordingly dismissed, leaving the parties
to bear their own costs.
JANUARY 30, 2017 VALMIKI J. MEHTA, J
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