Delhi High Court
Prabha Chawla & Anr. vs Air Force Bal Niketan (Aided) ... on 9 August, 2019
$~ 1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 09th August,2019
+ LPA 179/2018
PRABHA CHAWLA & ANR. ..... Appellants
Through Mr.Gurbaksh Singh, Advocate.
versus
AIR FORCE BAL NIKETAN (AIDED) SCHOOL & ANR.
..... Respondents
Through Mr. Jitesh Vikram Srivastava,
Advocate for R-1.
Mrs. Avnish Ahlawat, Standing
Counsel with Mr. Nitesh Singh and
Ms. Laveena Arora, Advocates for
R-2/DOE.
Mrs.Archana Gaur, OSD (Lit.), Zone
23.
CORAM:
HON'BLE MR. JUSTICE G.S. SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G.S. SISTANI, J. (ORAL)
1. The present appeal is directed against the order dated 08.03.2018
passed by a learned Single Judge of this Court, by which a petition
filed by the appellants herein stands dismissed.
2. The appellants no.1 and 2 had joined the services of respondent
no.1/school as primary teachers on 11.09.2011 and 11.09.2012
respectively on ad hoc basis. The services of both the appellants were
extended every year till May, 2017. On 02.05.2017, the appellants
made a representation to the respondents for regularization of their
services. The request for regularization was not considered favourably
by the respondents which led to filing of a writ petition. Aggrieved by
the order dated 08.03.2018 passed by a learned Single Judge of this
court by which W.P. (C) 3726/2017 was dismissed has led to the filing
of the present appeal.
3. Learned counsel for the appellants submits that the appellants were
appointed on regular posts and they have worked continuously till the
year 2017 and accordingly there was no reason as to why their
services should not be regularized when they meet the eligibility
criteria, which is denied by counsels for the respondents. Counsel
submits that in the year 2011, respondent no.1/school in order to
appoint PRT (Primary Teacher) on ad hoc basis on a consolidated
salary, advertised in the AF SRO and sought response from the
deserving candidates. Appellant no.1 being qualified was appointed as
a teacher on ad hoc basis. Similarly on the basis of an advertisement in
the year 2012, appellant no.2 applied and was appointed as an ad hoc
teacher on contractual basis. It has been pointed out by learned
counsel for the appellant that during summer vacation, the appellants
were asked to proceed on leave. Applications were again invited and
the appellants were selected through the selection process.
4. It is also contended by learned counsel for the appellants that the
appellants have been performing duties of regular teachers and
accordingly, it is prayed that their services should be regularized.
5. It may be noted that respondent no.1 has not supported the case of the
appellants. Counsel for respondent no.1/school has relied on the
appointment letter in support of his submission that as per
appointment letter, the appointment of the appellant was purely ad hoc
and for a contractual post for a specified session only. Counsel further
submits that it is not denied that respondent no.2/Directorate of
Education was not involved in any manner in the contractual
employment of the appellants.
6. This petition is opposed by Mrs. Avnish Ahlawat, learned standing
counsel appearing for respondent no.2/Directorate of Education. She
submits that respondent no.1 is a government aided school and
receives 95% grant in aid. Counsel further submits that grant for salary
is released only in favour of regular staff and salary was not paid to
the appellants by the Government.
7. It is pointed out by Mrs. Ahlawat, learned standing counsel appearing
for respondent no.2 that the appellants were appointed by the
respondent no.1/school without following due process of law. The
school did not follow the procedure for appointment of teachers as
prescribed under the Delhi School Education Act, 1973 and the rules
framed thereunder. It is further pointed out that the appellants were
appointed by the school on ad hoc basis, which is evident from the
fact that their salary was paid from the development fee collected by
the school and not through the grant in aid received by the school.
Mrs. Ahlawat further submits that the appellants do not fulfil the
eligibility criteria as well.
8. Mrs. Ahlawat has drawn attention of the court to rule 151 of Delhi
School Education Rules, 1973 to contend that ad hoc appointees are
paid salary from development fee collected and accordingly the
appellants would have no claim whatsoever either for regular
appointment, seniority or benefit of provident fund, pension, gratuity
or any other benefits admissible to the regular teachers of the school.
Counsel further submits that although regular vacancies have arisen
from time to time, the appellants for the reasons best known to them,
did not participate in the selection process and thus no relief can be
granted to the appellants.
9. Mrs. Ahlawat has also placed reliance on Rule 98 of the Delhi School
Education Rules, 1973 to buttress her submission that every
appointment made by the Managing Committee of an aided school is
provisional and requires the approval of the Director. She further
submits that in this case neither any approval was sought nor the
proviso to Rule 98 would apply as at the time of ad hoc appointment
of the appellants the Director's nominee was not present. Counsel
further submits that in compliance with Rule 98 (3), the appointment
of the appellants was not communicated by the committee to the
Director of Education. She contends that in any case the appointment
of the appellants was not regular appointment.
10. Learned counsel for the respondent no.2 has placed reliance on
Secretary to Govt. of Tamil Nadu Vs. A. Singamuthu, AIR 2017 SC
13040, more particularly para 8, which reads as under :
"8. Part-time or casual employment is meant to serve the
exigencies of administration. It is a settled principle of law
that continuance in service for long period on part-time or
temporary basis confers no right to seek regularisation in
service. The person who is engaged on temporary or casual
basis is well aware of the nature of his employment and he
consciously accepted the same at the time of seeking
employment. Generally, while directing that temporary or
part-time appointments be regularised or made permanent,
the courts are swayed by the long period of service rendered
by the employees. However, this may not be always a
correct approach to adopt especially when the scheme of
regularisation is missing from the rule book and
regularisation casts huge financial implications on public
exchequer."
11. We have heard learned counsels for the parties. The present appeal is
to be decided on the touchstone of the law laid down by the Apex
Court. Backdoor entries have been repeatedly discouraged by the
Apex Court (see : Secretary, State of Karnataka & others Vs.
Umadevi & others, 2006 (4) SCC 1).
12. The basic facts which we have detailed in para afore-going are not in
dispute that the appellants were appointed as ad hoc teachers based on
the advertisement issued by the school. It is also not in dispute that the
salary was paid to the appellants from the development fee collected
by the school and not by the Directorate of Education. Since the
appointment of the appellants were ad hoc and the appellants did not
participate in the selection of regular teachers, the relief sought cannot
be granted.
13. At this stage, learned counsel for the appellants submits that as and
when posts are advertised the appellants should be given age
relaxation for the period, they served the school upto the date of the
decision in the appeal.
14. Although we find no merit in the appeal and the same is dismissed,
keeping in view the long length of service of the appellants in case
vacancies arise, the appellants would be granted age relaxation for the
period of 2011-2019 as a one-time age relaxation.
CM.APPL 6190/2019 (stay)
15. The application also stands dismissed in view of the order passed in
the appeal.
G.S.SISTANI, J
SANGITA DHINGRA SEHGAL, J
AUGUST 09, 2019/pst/ck
