RAVI NEGI  Vs BALVANTRAY MEHTA VIDYA BHAWAN ANGURIDEVI SHERSINGH MEMORIAL ACADEMY SECOND SHIFT & ORS

LPA 482/2019 Page 1 of 9
* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of decision: 5th January, 2021.

+ LPA 482/2019

RAVI NEGI ….. Appellant
Through: Mr. Ashim Vachher, Adv.

Versus

BALVANTRAY MEHTA VIDYA BHAWAN ANGURIDEVI
SHERSINGH MEMORIAL ACADEMY – SECOND
SHIFT & ORS. ….. Responde nts
Through: Ms. Avnish Ahlawat, Ms. Tania
Ahlawat and Mr. Nitesh Kumar
Singh, Advs. For R-3.
CORAM:
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON’BLE MR. JUSTICE SANJEEV NARULA

[VIA VIDEO CONFERENCING]

RAJIV SAHAI ENDLAW, J.

CM APPL. 154/2021 (of the appellant for early heari ng)
1. Only the counsel for the respondent no.3 Directo rate of Education
(DoE) appears on advance notice.
2. Be that as it may, need is not felt to issue not ice of this application to
the other respondents.
3. For the reasons stated, the application is allow ed and disposed of and
the LPA is taken up for hearing today itself.

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LPA 482/2019 & CM No.33095/2019 (for stay)
4. Though, the appeal was listed before this Court on a number of
occasions but a perusal of the orders show that no notice of the appeal has
been issued till now and only the counsel for the D oE has been appearing on
advance notice. We have thus requested the counsel for the appellant to
argue the appeal for admission.
5. The appeal impugns the order dated 1 st July, 2019 of the Single Judge
of dismissal of W.P.(C) No.6914/2019 preferred by t he appellant, seeking
direction to the respondent no.1 Balvantray Mehta V idya Bhawan
Anguridevi Shersingh Memorial Academy–Second Shift (School), an
unaided recognised school and the respondent no.2 S ervants of the People
Society (Delhi) (Society) which has set up the resp ondent no.1 School, to (a)
regularise the services of the appellant in the res pondent no.1 School on the
permanent post of Office Attendant, at par with sim ilar employees working
in the same post in Delhi Government Schools under the Delhi School
Education Act, 1973; (b) fix the Grade Pay of the a ppellant in terms of the
recommendations of the Seventh Pay Commission, with effect from the date
of appointment of the appellant; and, (c) pay arrea rs of salary found due to
the appellant with interest.
6. The writ petition came up before the Single Judg e on 1 st July, 2019,
when finding that the respondent no.1 School had is sued a Show Cause
Notice dated 28 th May, 2019 to the appellant and the appellant had a lso filed
a reply thereto, and recording the statement of the counsel for the respondent
no.1 School that a preliminary inquiry had been ini tiated and if required, a
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regular departmental inquiry shall be conducted aga inst the appellant, the
petition was disposed of as premature.
7. The counsel for the appellant, on enquiry states that no further action
was taken against the appellant by the respondent n o.1 School pursuant to
the said show cause notice and the preliminary inqu iry stated to have been
conducted.
8. The argument of the counsel for the appellant is , that (i) the appellant
was appointed as Office Attendant in the respondent no.1 School, on
contractual basis, with effect from 1 st April, 2014 on a consolidated salary;
(ii) the said contract of the appellant was renewed from time to time, last till
30 th June, 2019, whereafter the Show Cause Notice dated 28 th May, 2019
was issued to the appellant; (iii) there is no term ination of the employment
of the appellant and the appellant is merely prohib ited from entering the
school; and, attention is drawn to Rule 105 of the Delhi School Education
Rules, 1973 and it is argued that thereunder the em ployment of the appellant
in the respondent no.1 School, even if contractual, is deemed to have been
confirmed after the expiry of two years; it is argu ed that the appellant
worked in the respondent no.1 School contractually, for a period of five
years and is deemed to be a permanent employee of t he respondent no.1
School, under the statutory protection; reliance is placed on Army Public
School Vs. Narendra Singh Nain 2013 SCC OnLine Del 3351 and which
has been screen-shared during the hearing and it is stated that the appeal
preferred thereagainst to the Division Bench was al so dismissed; reference is
also made to the judgments of this Court in Anita Soharu Guleria Vs.
Director of Education 2015 SCC OnLine Del 7983, Renu Barrot Vs.
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Directorate of Education 2015 SCC OnLine Del 9203 and Delhi Public
School Vs. Manoj Bhandari 2016 SCC OnLine Del 5910 and it is stated
that Army Public School supra is followed therein.
9. We have perused Rule 105 of the Rules aforesaid and find, (i) the
same to be titled ‘Probation’ and merely providing that every employee, on
initial appointment, will be on probation for a per iod of one year which may
be extended by the Appointing Authority with prior approval of the DoE and
the services of an employee may be terminated witho ut notice during the
period of probation; (ii) however the said extensio n of period of probation
shall be for not more than one year; (iii) that on expiry of the period of
probation or extended period of probation, the empl oyee shall be confirmed
with effect from the date of expiry of the said per iod; and, (iv) that nothing
in the said Rule shall apply to an employee who has been appointed to fill a
temporary vacancy or any vacancy for a limited peri od.
10. Before proceeding further, we may record that b efore the Single
Judge, as recorded in the impugned order dated 1 st July, 2019, it was also the
argument of the counsel for the respondent no.1 Sch ool, that there is no
regular post of Office Attendant and the appellant had never been
regularised and that the appellant had filed the wr it petition, only to avoid
the departmental action proposed to be taken agains t the appellant.
However, the Single Judge, as aforesaid, did not go into the said aspect.
11. We have enquired from the counsel for the appel lant, how Rule 105
of the Rules would have application to the present controversy. We have
also enquired, whether there is any provision for a ppointment of employees
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in unaided recognised schools governed by the provi sions of the Delhi
School Education Act, 1973 and the Rules aforesaid.
12. The counsel for the respondent no.3 DoE appeari ng on advance notice
has drawn our attention to Rule 96 titled ‘Recruitm ent’ and which, inter alia
provides that, (i) the recruitment of the employees of a recognised private
schools shall be made on the recommendation of the Selection Committee;
and, (ii) the Selection Committee for appointment o f any employee other
than the Head of the School or a teacher shall comp rise of the Chairman of
the Managing Committee or a member of the Managing Committee
nominated by the Chairman, Head of the School and a nominee of the DoE.
13. We have enquired from the counsel for the appel lant, whether the
appointment of the appellant to the respondent no.1 School was in
accordance with Rule 96 supra.
14. The counsel for the appellant states that he wi ll have to obtain
instructions and will file an affidavit.
15. We have however enquired, whether the appellant has pleaded that his
appointment was by a Selection Committee of the Sch ool.
16. The answer is in the negative.
17. We have considered the contentions of the couns el for the appellant.
18. A literal reading of Rules 96 and 105 of the R ules does not show any
legal right of the appellant to seek mandamus, as s ought in the writ petition
from which this appeal arises; without a legal righ t, no mandamus in
enforcement thereof can be sought or granted.
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19. The reference in Rule 105, to an employee, is t o an employee
recruited in accordance with Rule 96 and whose init ial appointment was on
probation. It is not the case of the appellant tha t the appointment of the
appellant was in accordance with Rule 96 or that th e initial appointment of
the appellant was on probation. Without the appella nt having been appointed
in accordance with Rule 96, the question of applica tion of Rule 105 to the
appellant does not arise. Rule 105 deals with proba tion of only those
employees who are appointed in accordance with Rule 96 and for them
provides for the appointment to be on probation. Th e same has no
application to an appointment made otherwise than i n accordance with Rule
96 and rather expressly carves out an exemption the refor in sub-rule (3). A
perusal of the letters issued by the respondent No. 1 School to the appellant
from time to time shows the same to be titled “Offe r of Contractual
Appointment” and expressly providing that the appoi ntment was on “purely
contractual basis against a temporary post of Offic e Attendant in the school”
and to be on a consolidated salary and terminable e ither by the school or by
the appellant by giving one month’s notice or salar y in lieu thereof. The
appellant is found to have signed the said letters in token of acceptance of
the terms and conditions contained therein. Moreov er, Rule 105 nowhere
provides for deemed confirmation after one year or after any other period,
whatsoever may have been the mode of appointment or even if the
appointment was contractual. Thus, the appellant c annot derive any benefit
from Rule 105.
20. For the appellant to succeed in his argument of enjoying statutory
protection, the appellant has to first show his app ointment to be statutory
and which the appellant has failed to aver or argue . Rather, the claim
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appears to have been pursued without taking notice of Rule 96. The said
Rule lays down the method of recruitment in a unaid ed recognised school
and the principle, what has been prescribed to be d one in a particular manner
shall be done in that manner only and not otherwise , shall apply. Without
the recruitment being in compliance of Rule 96, no statutory protection shall
enure to the appointee and the appointee cannot tak e any advantage of an
appointment which even if not to fill a temporary v acancy or any vacancy
for a limited period, is contrary to the Rules gove rning appointment /
recruitment. Such appointment/recruitment will be non-est.
21. As far as the dicta of a Single Judge of this C ourt in Army Public
School supra and in all other judgments referred to, by t he same Hon’ble
Judge, relied upon by the counsel for the appellant are concerned, though
undoubtedly the same, inter alia holds that all appointments to recognised
unaided schools, even if contractual, have a statut ory character owing to the
Act and the Rules aforesaid but the counsel for the appellant admits that
Rule 96 is not taken notice of in any of the said j udgments. Moreover, the
aforesaid observation of the Court, on which relian ce is placed by the
counsel for the appellant, is prefaced by a clear o bservation that the same
was in the peculiar facts of that case and in view of the finding returned on
the said facts, of the initial contractual appointm ent of the petitioner therein
being a sham. In that case, though the appointment of the petitioner therein
was initially contractual, but was subsequently reg ularised and the petitioner
was on probation and though again on the expiry of the period of probation,
a colour of contractual appointment was sought to b e given but the petitioner
therein had commenced challenge to the termination during the probation
period and which was the cause of action for the wr it petition. It is not the
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case of the appellant herein that the appellant, at any time, was on probation.
On the contrary, it was only the temporary contract ual appointment of the
appellant which was extended from time to time.
22. On a reading of the aforesaid judgment on scree n we have also
enquired from the counsel for the appellant, whethe r without returning a
finding of the contractual appointment being a sham and a device for regular
appointment, if appointments initially contractual, were to be treated as
statutory, the same would not fall foul of the Cons titution Bench dicta in
Secretary, State of Karnataka Vs. Umadevi (2006) 4 SCC 1, which has
expressly prohibited such conversion of employees, initially taken on
contract, as regular employees and which mode of ap pointment was given
the nomenclature of a “backdoor entry” in that cas e.
23. The counsel for the appellant contends that Umadevi supra would
have no attraction as the appointment of the appell ant was/is statutory.
24. We are unable to agree. The appointment of the appellant in the
present case is clearly merely contractual one, not in compliance of the
procedure prescribed in the Rules for appointment o f an Office Attendant in
an unaided recognised school and as long as the app ointment is contractual,
there can be no right of absorption.
25. The counsel for the appellant, on further enqui ry, whether there is any
specific plea in the petition or the appeal, of the appointment of the appellant
as contractual being a sham or a device for a statu tory appointment, fairly
states that there is no such specific pleading. Eve n otherwise, we are of the
opinion that it is only in rare facts, that in exer cise of writ jurisdiction, a
factual finding of a document being a sham and a de vice can be given. From
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a reading of the facts in Army Public School supra, it is found that the
documents in that case spoke for themselves and dis closed the contractual
appointment to be a sham and in the light whereof t he judgment was
pronounced. It is not found to be so in the presen t case.
26. No merit is thus found in the appeal.
27. Dismissed.

RAJIV SAHAI ENDLAW, J.

SANJEEV NARULA, J.
JANUARY 5, 2021
‘pp’

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