Apeejay School & Anr. vs Gnct Of Delhi & Ors

,

Rekha Palli, J",

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.,

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.,

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.",

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-Ã -vis the Respondent No.2 were thereafter continuously being made by the Appellant,

No.1-school from 2005 itself.,

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.â€​,

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.",

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.,

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.â€​",

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.,

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.,

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.",

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.,

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.",

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.,

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.,

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.",

We have considered the submissions of learned counsel for the parties and have perused the record.,

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.,

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",

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.

,