Delhi High Court
Apeejay School & Anr. vs Gnct Of Delhi & Ors. on 10 November, 2017
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 6th November, 2017
Date of Decision: 10th November , 2017
+ LPA 388/2017 & CM No.19075/2017
APEEJAY SCHOOL & ANR. ..... Appellants
Through: Mr.H.L. Tiku, Sr. Advocate
with Ms.Yashmeet Kaur,
Advocate.
versus
GNCT OF DELHI & ORS ..... Respondents
Through: Mr.Devesh Singh, ASC with
Ms.Neelam Khalia for R-1.
Mr.C.S. Parashar, Advocate for
R-2.
CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
HON'BLE MS. JUSTICE REKHA PALLI
JUDGEMENT
REKHA PALLI, J
1. The present Appeal is directed against the judgment and order
dated 26.04.2017 passed by the learned Single Judge of this Court
in W.P.(C) No.9390/2015. The learned Single Judge has dismissed
the writ petition filed by the Appellants and thereby upheld the
order dated 03.09.2015 passed by the Delhi School Tribunal which
had, after holding Respondent No.2 to be an employee of the
Appellant No.1(Apeejay School), directed his reinstatement with all
consequential benefits.
2. Briefly stated, the facts are that the Respondent No.2 was
appointed on the post of Accounts Officer for a period of one year
vide letter dated 05.06.2004 by Appellant No.2 i.e. Apeejay
Education Society and posted in the Apeejay School, Sheikh Sarai,
New Delhi (Appellant No.1) at a salary of Rs.8,000/- per month along
with other allowances. Upon completion of the initial appointment of
one year, the Respondent No.2 was further engaged on contract basis
for a further period of one year vide letter dated 06.06.2005.
3. It is the admitted case of the parties that soon after his
appointment, Respondent No.2 was directed to carry out duties in the
Appellant No.1-school and it is also an undisputed fact that ever since
his initial appointment pursuant to letter dated 05.06.2004, the
respondent No.2 has been carrying out duties in the Appellant No.1-
school. It also transpires from the record that vide letter dated
08.10.2005 issued by the Appellant No.2-society, Respondent No.2
who was working as an accounts Officer in the Appellant No.1-
school was given additional duty for supervising the Accounts
Department of Apeejay School, Saket for one month w.e.f.
13.10.2005 and he was accordingly required to visit the said school
twice a week.
4. Upon the Respondent No.2 being posted in Appellant No.1-
school, the Principal of the school vide her letter dated 19.04.2005
requested the Regional Provident Fund Commissioner to transfer the
provident fund and pension fund of the Respondent No.2 from his
previous account to his account in the school. The Principal of the
School had along with the aforesaid application also submitted the
necessary form clearly indicating the name and address of the
establishment in which name the provident fund account was to be
transferred as being Apeejay School, Sheikh Sarai, New Delhi. The
contributions on account of the provident fund vis-à-vis the
Respondent No.2 were thereafter continuously being made by the
Appellant No.1-school from 2005 itself.
5. As per the case set up by the Respondent No.2, though he had
been discharging his duties with utmost satisfaction in the Appellant
No.1-school from2004 itself, on 22.06.2012, he was suddenly called
by the Principal/Manager of the Appellant No.1-school and was
compelled to write that he had taken some amounts from travel
agents and was verbally told to report for duty at the office of the
Appellant No.2-soceity w.e.f. 23.06.2012. As the Respondent No.2,
claimed that he was an employee of the school and not of the society,
he reported to the school on 23.06.2012, but he was not allowed to
enter the school or to perform his duties. In these circumstances, he
was compelled to send the legal notice dated 14.08.2012 to the
Appellant No.1-school calling upon the school to permit him to carry
out his duties and in the said notice, Respondent No.2 also brought
out that the school was giving him a lower scale than payable to him
as per the provisions of Delhi School Education Act. In the notice, a
demand for grant of the proper pay scale including Grade Pay of
Rs.5,400/- was also made by Respondent No.2 and it was stated that
false, baseless and frivolous allegations were made against him only
because he had raised demands for getting the pay scale in
accordance with the Delhi School Education Act. When the
Appellant No.1 failed to take steps to reinstate the Respondent No.2,
a statutory Appeal No.43/2012 was filed by him before the Delhi
School Tribunal raising the following prayers:-
"(i) Declaring that the oral order of termination dated
23.06.2012 is illegal, arbitrary, malfide and in violation of
provisions of rules 117 to 120 of Delhi School Education Act &
Rules-1973 and the principles of natural justice and is not binding
on the Appellant and no-est in eye of law.
(ii) Declaring that the Appellant continues to be in service as a
regular employee on his regular scale of pay and enjoying all the
statutory benefits and right under Delhi School Education Act &
Rules-1973 without any break in service.
(iii) Declaring that the Appellant is entitled to get the scale of
Rs.7500-250-12000/- w.e.f. 06.06.2005 and grade pay of Rs.5400/-
on implementation of Sixth Pay Commission i.e. 01.01.2006.
(iv) The cost of the petition and litigation expenses to the tune of
Rs.75,000/- may also be awarded in favour of the Appellant and
against the respondent in the interest of justice."
6. In its reply before the Tribunal, the Appellant No.1 took the
plea that the Respondent No.2 was not its employee and that he had
been employed by the Apeejay Education Society (Appellant No.2)
as an Accounts Officer and had only been sent on deputation to work
in the Appellant No.1-school. It was further contended by the
Appellant No.1 that since the Respondent No.2 was only an employee
of the society, there was no question of termination of his
employment by the school and it was accordingly prayed that since
the Apeejay Education Society did not fall within the ambit of the
Delhi School Education Act and Rules, the appeal was not
maintainable and liable to be dismissed on this ground alone.
7. The Appellant No.2-Society also filed an impleadment
application before the Tribunal and was impleaded as Respondent
No.3 before the Tribunal. In view of the contentions raised by the
parties before it, the Tribunal observed that the only question which
was to be decided was whether Respondent No.2 was a regular and
confirmed employee of the school or of the society. Upon
consideration of the submissions made before it and perusal of the
documents filed by both the parties, the Tribunal was of the
considered opinion that Respondent No.2 was a regular employee of
the school w.e.f. 06.06.2006 and it was further held that neither the
school nor the society admitted to have terminated his services, but
since Respondent No.2 was not being permitted to join the school
w.e.f. 23.06.2012, the Tribunal directed the school to reinstate him
along with all consequential benefits.
8. Being aggrieved by the order passed by the Tribunal directing
Respondent No.2's reinstatement in service of the school, the
Appellants i.e. both the School and the Society, impugned the same
before the Court in writ proceedings. The learned Single Judge after
considering all the documents placed on record as well as the
judgments relied upon by the Appellants found no infirmity with the
order passed by the Delhi School Tribunal. Pertinently, the learned
Single Judge also, in particular, referred to the letter dated 29.06.2006
whereby the Appellant No.2-society had specifically directed the
Appellant No.1-School to appoint the Respondent No.2 as Accounts
Officer on regular basis w.e.f. 06.06.2006 in the pay scale of
Rs.6,500-200-10,500/- and directed the Principal of the school to
issue a formal appointment letter at their end under intimation to the
Central office of the society. The learned Single Judge has observed
as under :-
"9. No doubt, the letter dated June 5, 2004 was issued by the
Society but the same was for a period of one year. Even the letter
of appointment dated June 6, 2005 was by the Society but for a
period of one year. In any case, vide letter dated June 29, 2006,
the petitioner No.2 Society called upon the Principal to issue a
formal appointment letter in the pay scale of Rs.6500-10500. His
employment in the School was to be from June 6, 2006. Since June
6, 2006, the respondent No.2 has been working in the School till
2012 when he was asked to report to the Society. At least, nothing
has been brought to the notice of the Court to contend otherwise. I
agree with the submission made by Mr. Parasher that vide letter
dated April 19, 2005 the Regional Provident Fund Commissioner
was requested to transfer the Provident Fund account of the
respondent No.2 from his previous employer to the School, as the
respondent No.2 was its employee."
9. The learned Single Judge accordingly, vide its impugned order
dated 25.04.2017 dismissed the writ petition filed by the Appellants
and thereby maintained the directions given by the Delhi School
Tribunal. By way of the present Appeal, the Appellants have assailed
the decision of the learned Single Judge.
10. Appearing for the Appellants, Mr.H.L. Tiku, learned senior
counsel has reiterated the same submissions which had been raised
before the learned Single Judge. Mr.Tiku, learned senior counsel has
strenuously argued that once the Tribunal itself came to the
conclusion that the primary question to be decided was as to whether
the Respondent No.2 was an employee of the school or a society, it
ought not to have proceeded further with the appeal, as according to
him, the Tribunal did not have the jurisdiction to decide whether the
Respondent No.2 was an employee of the school or of the society.
His contention, thus, is that only once it was established that the
Respondent No.2 was an employee of the school, could the Tribunal
get jurisdiction to decide the matter. He, thus, contends that in view
of this jurisdictional infirmity, the order of the Tribunal was liable to
be set aside which, according to him, the learned Single Judge has
failed to appreciate. He thus, submits that on this ground itself, the
judgment of the learned Single Judge and of the Tribunal are liable to
be set aside.
11. The second submission raised by learned Senior counsel for the
Appellants is that, even otherwise the Appellant No.1, being a
recognized school, it could make appointments of its employees only
by following the procedure prescribed under Rule 96(3)(c) of the
Delhi School Education Rules, which clearly mandate that an
appointment of an employee to the school would be made by the
Selection Committee comprising of the Chairman of the managing
committee or a member of the managing committee, to be nominated
by the Chairman; head of the school and a nominee of the Director.
He, thus, submits that even as per the own case of the Respondent
No.2, no such procedure had been followed and, therefore, even if the
Respondent No.2 has been working in the Appellant No.1-school
from 2005 or 2006, as contended by him, his appointment was void
ab initio and in these circumstances, he could not claim reinstatement
in the school. His contention, thus, is that once the appointment of
the Respondent No.2 in the school itself was de hors the Rules, he
had no legal right to seek reinstatement in the school.
12. The third and last submission of Mr.Tiku is that no letter of
appointment was ever issued by the school to the Respondent No.2
and the appointment letter dated 06.06.2005 issued by the Appellant
No.2-society clearly states that he would be governed by the Service
and Conduct Rules of the Society. He thus submits that the
Respondent No.2 was always aware that he was an employee of
Appellant No.2-society and merely because he was sent on deputation
to the school, he cannot claim to be a regular employee of the school.
He has also drawn our attention to the fact that the society through its
counsel had made a statement before the Tribunal that it had called
upon the Respondent No.2 to resume the duties without prejudice to
the rights and contentions of the parties in the appeal, but the
Respondent No.2 had declined this offer and had insisted that he was
an employee of the school only.
13. In support of his submissions, Mr.Tiku has relied on the
following judgments of the Supreme Court, State of Punjab & Ors. v.
Inder Singh & Ors., (1997) 8 SCC 372, Kavi Raj & Ors. vs. State of
J&K & Ors., 2013 (1) Scale 197, Samarth Shiksha Samiti & Anr.
vs. Bir Bahadur Singh Rathour & Ors., 2009(2) Scale 679.
14. Appearing for the Respondent No.1, Mr.Devesh Singh has,
while drawing attention to the counter affidavit filed by the
Respondent No.1 before the learned Single Judge supported the
judgments passed by both the learned Tribunal and the learned Single
Judge. Mr.Singh has contended that both the Tribunal and the
learned Single Judge have after considering all the relevant facts and
documents correctly come to the conclusion that the Respondent No.2
was an employee of the school. He also points out that in all
documents of the school, the Respondent No.2 had been shown as a
regular employee.
15. We have also heard Mr.C.S. Parashar, learned counsel
appearing for the Respondent No.2, who has also supported the
judgments of both, the Tribunal and the learned Single Judge.
Mr.Parashar submits that even though it is correct that Respondent
No.2 was initially appointed by the society, on a consolidated pay of
Rs.8,000/- along with allowances vide letter dated 05.06.2004 but
from the very beginning, he was posted in the Appellant No.1-school.
He submits that Respondent No.2's ACR forms were filled by the
school and all his ACR forms, increments and provident fund
remittances were done by the school. Mr.Parashar has also drawn our
attention to the certificate dated 12.11.2008 issued by the Appellant
No.1 school, which clearly shows that the Respondent No.2 was
working in the school as an Accounts Officer since 07.06.2004 and
had become a regular employee of the school w.e.f. 06.06.2006. He
has also drawn our attention to the resolutions passed by the
Appellant No.2-society from time to time which clearly depict that
the Respondent No.2 was an Accounts Officer in the Appellant No.1-
school.
16. The learned counsel for the Respondent No.2 has further
contended that even otherwise, in view of the letter dated 29.06.2006
of the Appellant No.2-society, specifically directing the Appellant
No.1-school to issue a formal letter of appointment to the Respondent
No.2 in the pay scale of Rs.6,500-200-10,500/- w.e.f. 06.06.2006, the
Appellants are now estopped from contending that the Respondent
No.2 is not an employee of the Appellant No.1-school. He submits
that the willful failure of the Appellant No.1 in not issuing a formal
letter of appointment to the Respondent No.2 cannot deprive him of
his status of being an employee of Appellant No.1-school, especially
when it is an undisputed fact that the Appellant No.1 had been
depicting him as an employee of the school in all its documents right
from June, 2006 and had been making all provident fund deposits on
his behalf in his capacity as an employee of the school. He, therefore,
prays for dismissal of the appeal.
17. We have considered the submissions of learned counsel for the
parties and have perused the record.
18. We find that though on the first blush, the issue raised by the
learned Senior Counsel for the Appellants that the Tribunal did not
have jurisdiction to decide the question whether Respondent No.2
was an employee of the School or the Society, appears to be attractive
but upon a closer examination, it becomes crystal clear, that the said
contention has no merit and is liable to be rejected. In our view, once
the School/employer for whatsoever reason disputes its relationship
with the aggrieved employee, the Tribunal before examining the
employee's claim on merits, is enjoined to first decide whether the
aggrieved person is an employee of the School or not and cannot
relegate the employee to a Civil Court to get a declaration qua his
relationship with the School. In the present case, the Appellant No.1-
School having denied that Respondent No.2 was its employee, the
Tribunal was fully justified in deciding the foremost issue as to
whether he was an employee of the School or not. In our view, if
upon the mere denial of the employer-employee relationship by the
School, the jurisdiction of the Tribunal itself was to be ousted, as is
contended on behalf of the Appellants, the same would defeat the
very purpose of having a specialised Education Tribunal constituted
to deal expeditiously with cases of termination of school employees.
We thus, find no merit in this submission of the Learned Senior
Counsel for the Appellant, that the Tribunal did not have the
jurisdiction to decide whether Respondent No.2 was an employee of
the Appellant No.1-School or not.
19. In so far as the second issue raised by Mr. Tiku, regarding the
appointment of Respondent No.2 being de hors the provision of Rule
96(3)(c) of Delhi School Education Rules. We find that though no
such plea was taken either before the Tribunal or the Learned Single
Judge, but still having considered the said plea, we find no merit in
the same. In our view, the Appellant No.1-School cannot be
permitted to take benefit of its own lapse, willful or otherwise and
once there is overwhelming evidence to show that Respondent No.2
was an employee of the Appellant No.1-School for years together and
reflected as its employee in all the documents issued by the School
including his ACR forms, Provident Fund Forms & Resolutions, the
Appellant No.1 cannot be allowed to contend at this belated stage that
Respondent No.2 should not be treated as its employee. Pertinently,
Respondent No.1, the Directorate of Education, has also in its
Counter Affidavit before the Learned Single Judge categorically
stated that all the documents show that Respondent No.2 was an
employee of the Appellant No.1-School.
20. We deem it appropriate to reproduce in extenso the letter dated
29.06.2006 written by the Appellant No.2-society to the Appellant
No.1-school as also the certificate issued by the Principal of the
Appellant No.1-School on 12.11.2008 and the same reads as:-
"APEEJAY EDUCATION SOCIETY
June 29, 2006
MRS. SARITA MANUJA
Sub. Renewal of Contract - Mr.Bhuwan Kansal
Ref. Your letter No. Appt/Staff position/4737 dated 20.05.2006
After the expiry of his contract on 05.06.2006, Mr.Bhuwan Kansal
may be appointed as Accounts Officer on regular basis with effect
from 6.6.2006 in the pay scale at Rs.6500-200-10500. He will
allow the following emoluments:
Pay Rs.7,100/- p.m. in the pay scale of
6500-200-10500
D.P. Rs.3,550/- p.m.
D.A. @ 24% Rs.2,556/- p.m.
HARA @ 30% Rs.3,195/- p.m.
CCA Rs. 300/- p.m.
Medical Rs. 75/- p.m.
Transport Rs. 400/- p.m.
Rs.17,176/- p.m.
He may please be issued a formal appointment letter at your end
under intimation to centre office.
Sd/-
Vijay Berlia"
"APEEJAY SCHOOL
SHEIKH SARAI-I, NEW DELHI-110017
Ref. No.29752
Dated 12.11.2008
To whomsoever it may concern
This is to certify that Mr. Bhuvan Kansal has been working with us as
Accounts Officer since 07.06.2004. He became our regular employee w.e.f.
06.06.2006 in the pay scale of 6500-200-10500. Presently his monthly
emoluments is as under:
Basic : 7500.00
Dearness Pay : 3750.00
Dearness Allowance : 5288.00
H.R.A. : 3375.00
C.C.A : 300.00
T.A. : 400.00
Medical : 75.00
Total : 20688.00
Any assistance accorded to him will be appreciated.
Sd/-
PRINCIPAL"
21. In view of the aforesaid documents, we find merit in the
submission of the learned counsel for Respondent No.2 that the
communication dated 29.06.2006 from the Appellate No.2-Society to
the Appellant No.1-School to issue a formal appointment letter to
Respondent No.2 coupled with the certificate dated 12.11.2008 issued
by the Principal of the School, are conclusive documents to show that
Respondent No.2 was an employee of the Appellant-School since
06.06.2006 and could not at all be considered to be on deputation
with the School after 06.06.2006.
22. In light of the above documents, we agree entirely with the
finding of the Learned Single Judge whereby he after considering all
the documents on record, held that the conclusion of the learned
Tribunal holding Respondent No.2 as an employee of the Appellant-
School was proper.
23. We have also carefully considered the judgments relied upon by
the Appellant and find that none of them applies to the facts of the
present case. In so far as the decision of the Supreme Court in State
of Punjab & Ors. v. Inder Singh (supra), we find that the same only
reiterates the well settled legal position that after the period of expiry
of deputation, howsoever long, the deputationist has to come back to
his parent department. The facts of the present case show that w.e.f.
06.06.2006, Respondent No.2 was an employee of the Appellant
No.1-School and in fact the Appellant No.2-Society had specifically
directed the School to issue a formal letter of appointment to him.
24. In our view the reliance placed by Mr. Tiku, on the decision of
the Apex Court in the case of Kavi Raj (supra) and Samarth Shiksha
Samiti (supra) is also of no avail. We find that the decision in the
case of Kavi Raj (supra) deals with the proposition that the
willingness of posting on deputation need not always be express but
can be implied. In the case of Samarth Shiksha Samiti (supra), the
Supreme Court was concerned with an employee appointed by the
Society being placed at disposal of the School, as per the specific
terms and conditions of his appointment which stated that he would
continue to be an employee of the Samiti. It was, in those
circumstances that the Supreme Court held that the employee would
even while posted in the school, continue to be an employee of the
Samiti. In the present case, once it has been concurrently found by
both the Tribunal and the learned Single Judge that Respondent No.2
was a regular employee of the Appellant No.1-School w.e.f.
06.06.2006 the aforesaid decision of the Supreme Court, can have no
applicability to the present case.
25. In these circumstances, we find absolutely no merit in the
present Appeal and the same is dismissed with no order as to costs.
CM No.19075/2017 in W.P.(C) 9921/2015
The application is dismissed as infructuous.
REKHA PALLI, J
SIDDHARTH MRIDUL, J
November 10, 2017
gm
