Delhi High Court
Mann Public School vs Shri Kumar Kant Jha And Anr. on 3 March, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 8253/2010
% 3rd March, 2017
MANN PUBLIC SCHOOL ..... Petitioner
Through: Ms. Saurabh Chadha, Advocate.
versus
SHRI KUMAR KANT JHA AND ANR. ..... Respondents
Through: Mr. S.K. Jha, Advocate for R-1.
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, the petitioner/school, challenges the order of
the Delhi School Tribunal (DST) dated 10.8.2010 by which the DST
has set aside the order of the petitioner/school dated 10.3.2008
terminating the services of the respondent no. 1.
2. The DST has set aside the order of termination of the
respondent no. 1 on the ground that the services of the respondent no. 1
with the petitioner/school stood confirmed after one year of service in
lieu of Rule 105 of the Delhi School Education Rules, 1973. The
relevant paragraph of the judgment of the DST is para 4 and which
para reads as under:-
"4. The argument put forth by the Counsel for the Respondent School
is that the Appellant was on probation till his services were confirmed in
writing by the Managing Committee. Rule 105 of the Rules provides for
placing an employee on probation for a period of one year. The said period
can also be extended by the Appointing Authority by another one year. In
other words any term and condition keeping an employee on probation till
his services are confirmed in writing, is against the statutory rules. Such
condition even if stipulated in the letter of appointment, is not binding on
the employee. Any extension of the period of appointment has to be made
expressly. No employee can be kept on probation for an unlimited period.
The purpose of extension of period of probation is to afford the employee an
opportunity to improve his performance. In the case of an aided recognized
school prior approval of the Director is required for this purpose. I am fully
conscious of the fact that the case in hand relates to a private unaided
school. Clearly even in the case of private unaided school extension of the
period of probation has to be done in writing. There cannot be any deemed
extension of probation as advocated by the Respondent School in the
present case. The Appellant in the present case was appointed on
01.11.2006. He was granted increment w.e.f. 01.11.2007. He is deemed to
have completed the period of probation after one year of service i.e. on
30.10.2007. Rule 105 (ii) of the Rules provides that on completion of
period of probation the employee is confirmed with effect from the expiry of
the period of probation. It is not the case of the parties that the appointment
in question was on ad hoc or part time or daily wages basis. The Appellant
had already crossed the period of one year and as per rules he stood
confirmed on completion of the period of probation of one year. The
impugned order dated 10.03.2008 terminating his service was, therefore, in
the nature of his removal from service without holding a departmental
inquiry. I am, therefore, of the view that the impugned order dated
10.03.2008 is illegal in the eyes of the law as after completion of period of
probation of one year on 30.10.2007 the service of Appellant could not be
terminated without following the procedure as laid-down in Rule 120 of the
Rules. Appeal is hence allowed. The impugned orders dated 10.03.2008
terminating the service of the appellant is hereby set-aside. The Appellant is
entitled to full back-wages. I place reliance on the judgment passed by the
Hon'ble High Court of Delhi in the case of LPA No. 493/2002 M/s. Apeejay
School Vs. Presiding Officer Delhi School Tribunal and Others decided on
16.12.2002.
Appeal is accordingly disposed of."
3. The DST has clearly fallen into a grave legal error
because there is no deemed confirmation in terms of the ratio in Rule
105 of the Delhi School Education Rules only after one year of service
of an employee of a school. This aspect of deemed confirmation has
been considered by this Court in detail in the judgment in the case 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. The ratio of the judgment in the case of Hamdard Public
School (supra) is that there is no automatic or deemed confirmation
even after a two year period of service of an employee working on
probation because there is required a specific order of confirmation.
This Court in Hamdard Public School's case (supra), however has
held that in case the school continues the probation period for more
than three years, then normally a teacher/employee will be taken as
deemed to be confirmed after three years of service with the school and
not before. It has been further observed in Hamdard Public School
(supra) case that in extreme cases of grave circumstances the probation
period can even go up to six years, but ordinarily probation period will
not be more than three years.
4. In the present case, the admitted facts are that the
respondent no. 1 was appointed as Post Graduate Teacher (PGT)
(Mathematics) on 1.11.2006. Results of classes in which respondent
no. 1 was teaching were found to be poor and explanation therefore
was called for from the respondent no. 1 by the letter dated 25.10.2007
of the petitioner/school. Respondent no. 1 submitted his reply in
writing on 29.10.2007. Petitioner/school, thereafter, continued the
respondent no.1 in services to further check his performance but
ultimately finding the performance of respondent no. 1 not to be
satisfactory, terminated the services of respondent no. 1 vide the
petitioner's letter dated 10.3.2008 and which letter reads as under:-
"To,
Mr. K.K. Jha,
PGT (Mathematics)
Mann Public School.
Date : 10-03-08
Sub : Termination of Services
Refer to this school letter dated 25th October' 07 and the reply submitted by
you dated 29th October' 07.
You are hereby intimated that inspite of your commitment to show the
improvement in the management of the class and having a proper control
over the class, no improvement has been observed on this front. Though
you have been intimated orally many time to have an effective control over
class but no improvement has been seen.
The performance of the students in the mathematics classes (class-11 & 12)
has been very poor. You had committed that you are planning to focus on
important sections of the syllabus to bring up the students. However the
Pre-Board results and Terminal Exams (class-11) shows a decline in the
performance of the students.
In view of the above i.e. for not satisfactory performance in the academics
and class management, your services have been terminated and you are
being given 1 month's notice w.e.f. today i.e. from 10th March 2008' to 9th
April 2008', after which your services will be considered as terminated.
Sd/-
Cdr. V.K. Banga (Retd.)
PRINCIPAL."
5. It is a settled law that it is the employer which is entitled
to judge the suitability of the probationer so as to decide whether or not
to confirm the probationer in his services. This Court cannot substitute
its judgment for that of the employer which decides that the services of
the probationer employee are found to be unsatisfactory.
Petitioner/school has held and observed that the services of respondent
no. 1 are not satisfactory because performance of the students in class
11 and 12 on the subject of Mathematics which the respondent no. 1
was teaching was not good. This Court cannot substitute its view for
the aforesaid view which has been taken by the petitioner/school.
6. In view of the above discussion, this writ petition is
allowed. The impugned judgment of the DST dated 10.8.2010 is set
aside. The order of the termination dated 10.3.2008 issued by the
petitioner/school terminating the services of the respondent no. 1 will
accordingly stand good and affirmed/valid.
7. The writ petition is allowed and disposed of accordingly,
leaving the parties to bear their own costs.
MARCH 03, 2017/AK VALMIKI J. MEHTA, J
