Delhi High Court
Apeejay School And Anr vs Govt. Of Nct Of Delhi And Anr on 22 March, 2018
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved On- 09.02.2018.
Date of Decision- 22.03.2018.
+ RP No.46/2018 in LPA 388/2017
APEEJAY SCHOOL AND ANR ..... Petitioners
Through Mr. H.L.Tiku, Sr.Advocate with
Ms.Yashmeet Kaur, Advocate
Versus
GOVT. OF NCT OF DELHI AND ANR ..... Respondents
Through Mr. Devesh Singh, ASC (Civil)
with Ms.Minal Sehgal,
Advocate for R-1.
Mr.C.S.Parashar, Advocate
with Ms.Jyotsna Parashar,
Advocate for R-2.
CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
HON'BLE MS. JUSTICE REKHA PALLI
REKHA PALLI, J
1. This petition seeks review of our judgment and order dated
10.11.2017, passed in LPA No.10975/2017, whereby the concurrent
findings recorded by both the Courts below were upheld and the
appeal was dismissed vide a detailed reasoned judgment examining
every aspect including the submissions made by the learned Senior
counsel for the Petitioners.
2. This judgment was assailed by the Petitioners under Article 136
of the Constitution of India in SLP(C) No.37323/2017 preferred
before the Hon'ble Supreme Court. The Special Leave Petition was
posted for hearing on 11.01.2018 and as is depicted and contained in
the order of the Hon'ble Supreme Court, the learned Senior Counsel
for the Petitioners raised the following contention:-
"the learned senior counsel appearing for the petitioners points out
that if the appointment is made by the school, it should be in terms of
Rule 96 of Delhi School Education Rules. Though this point was
raised, apparently, the same was not considered by the High Court."
3. On the strength of the contention raised at the Bar by the
learned Senior counsel, the Hon'ble Supreme Court vide its order
dated 11.01.2018 permitted the Petitioners to file a review petition
before this Court as this was the crucial issue that the High Court
ought to have considered, which as per the submission raised was
vehemently canvassed before the learned Single Judge as well as in
Letters Patent Appeal before the High Court. Therefore, this petition
for review has been submitted by the Petitioners.
4. Having heard the learned counsel for the parties and having
minutely perused the judgment in light of the submissions made by the
learned Senior Counsel for the petitioners and specifically on the anvil
of the order passed by the Hon'ble Supreme Court, we are constrained
to reject the review petition outrightly as it has no merits, is wholly
misconceived, and in an utter abuse of the process of law and courts.
5. It appears that in the SLP preferred by the Petitioner before the
Apex Court, the detailed findings recorded by this Court in its
judgment dated 10.11.2017 were deliberately suppressed. We find
that Paragraph No.11 of our judgment squarely and in extenso deals
with the contentions raised by the Senior Counsel viz-a-viz Rule 96 of
the Delhi School Education Rules. Similarly, Paragraphs 19 to 22 of
the judgment, categorically and specifically record, the reasoning for
repelling the contention of the learned Senior Counsel for the
Applicant/Petitioner regarding the appointment of Respondent No.2
being dehors the provisions of Rule 96(3) of the said Rules. We find
that even after this Court had found that no such plea had been taken
either before the Tribunal or the learned Single Judge, this Court had
dealt with the aforesaid plea raised by the Petitioner in detail. It was
specifically held that the once there existed overwhelming clinching
evidence to show that Respondent No.2 was an employee of the
Petitioner/School for years together and depicted as its employee in
every form germane to the nature of employment, the
Petitioner/School could be permitted to take benefit of its own wrong.
For the sake of completion, the relevant paragraphs are reproduced
hereinbelow:
"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. xxxxxxx
13 xxxxxxx
14. xxxxxxx
15. xxxxxxx
16. xxxxxxx
17. xxxxxxx
18. xxxxxxx
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."
6. We do not wish to revisit this issue for the second time afresh
that too at the behest of the Petitioner/School, particularly when we
are confronted with the concurrent findings of the two Courts below,
which we had found to be unassailable as also on our own independent
findings based upon the evidence established on the record.
7. For the reasons stated above, we are constrained to dismiss this
petition seeking review. In our considered opinion, the Petitioner
ought not to have concealed vital and material facts either before the
Apex Court or this Court. This review petition, which is raised on a
false edifice, is untenable and deserves to be dismissed.
REKHA PALLI, J
SIDDHARTH MRIDUL, J
MARCH 22, 2018/mb
