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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.598 OF 2009
(Arising out of S.L.P.(C)NO.3027 of 2008)
Samarth Shiksha Samiti & Anr. ... Appellants
Vs.
Bir Bahadur Singh Rathour & Ors. ... Respondents
J U D G M E N T
ALTAMAS KABIR,J.
1. Leave granted.
2. The Appellant No.1, Samarth Shiksha Samiti, is a
Society registered under the Societies Registration
Act, 1860 and was established with the object of
catering to the educational needs of society. In
fulfillment of its object, the Appellant-Society
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established and began running several recognized
schools all over Delhi in the name of Bal Mandirs.
One such school is Mahashya Chunni Lal Saraswati Bal
Mandir situated at Hari Nagar, Delhi, the Appellant
No.2 herein.
3. On 9th May, 1992, the Society (hereinafter
referred to as `the Samiti’) appointed the
Respondent No.1, Shri Bir Bahadur Singh Rathour, as
a Lower Division Clerk and posted him in the
Appellant No.2 School. From the appointment letter
issued to the Respondent No.2 by way of an Office
Memorandum dated 9th May, 1992, it will be apparent
that he was appointed by the Samiti and was an
employee of the Samiti. Condition No.4 of the terms
and conditions of his appointment also indicates
that during his service period, the respondent could
be transferred to the Samiti or to any of the Bal
Mandirs managed by the Samiti. Condition No.6
provides that during his period of service, the
Respondent No.1 would have to abide by the
discipline of the Samiti. Condition No.8 enjoins
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the Respondent No.1, while reposing trust in the
aims and objects of the Samiti, to participate in
all activities organized by the Samiti with
devotion. Condition No.11 prescribes that the
Respondent No.1 would have to obey all the rules as
mentioned in Chapter-9 of the Delhi School Education
Rules, 1973. However, what is of consequence is
Condition No.15 which provides as follows :-
“15. In case he failed to comply with
the aforesaid conditions and the
rules as mentioned in 123 of Delhi
Education Act the Samiti will have
full right to remove him from
service according to the law.”
4. As will be evident from the aforesaid
conditions, the Respondent No.1 was an employee, not
of the School, but of the Samiti, though he was
posted in the School as a Lower Division Clerk.
5. On 9th August, 1999, the Respondent No.1 was
promoted as Upper Division Clerk and was posted at
the same School at Hari Nagar. Such promotion being
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ad-hoc in nature, the same was regularized on 18th
September, 2000 with effect from 1st August, 2000.
6. It appears that in September, 2003, interviews
were held for the post of Superintendent Grade II
and a list of selected candidates was drawn up by
the Selection Committee and out of the said selected
candidates, only the name of one Shri Arun Kumar was
recommended for the said post. According to the
Respondent No.1, he too submitted a representation
for promotion to the said post and, although, his
case was recommended by the Manager of the School to
the General Secretary of the Appellant No.1-Samiti,
not only was he not granted such promotion, but by
an order dated 16th July, 2005, he was transferred
from the School to the office of the Appellant No.1-
Samiti. Subsequently, on 9th September, 2005, in an
incident involving the Respondent No.1 and one Shri
Shiv Nath Pandey, an order of suspension was issued
against the Respondent No.1 by the Appellant No.1 on
21st September, 2005. While the disciplinary inquiry
was pending, the Respondent No.1 filed a writ
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petition challenging the transfer order dated 16th
July, 2005; the suspension order dated 21st
September, 2005; the charge-sheet dated 29th
September, 2005 and the letter dated 26th October,
2005, initiating the departmental enquiry against
him.
7. The writ petition filed by the Respondent No.1
was dismissed by the learned Single Judge of the
High Court on 3rd November, 2006. On an appeal
preferred by the Respondent No.1, notice was issued
to the appellants in the month of January, 2007. In
the appeal, it was contended on behalf of Respondent
No.1 that his services were governed not by the
rules and regulations of the Samiti but by the Delhi
School Education Act, 1973, and the Rules framed
thereunder.
8. Accepting the submissions made on behalf of the
Respondent No.1, the Division Bench of the High
Court reversed the judgment of the learned Single
Judge dismissing the writ petition and held that
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since the said respondent was working in the School
as a Lower Division Clerk on permanent appointment
with effect from 1st April, 1992 and was given
promotion in the said School, which was also
regularized, for all practical intents and purposes
he must be considered as an employee in the school
and, therefore, the provisions of the Delhi School
Education Act and the Rules framed thereunder would
apply to his services. The Division Bench also
directed that if the Samiti and the School wished to
take any disciplinary action against the Respondent
No.1, they would have to follow the procedure laid
down in the aforesaid Act and the Rules.
9. This appeal has been filed by the Samiti and the
School against the said decision of the High Court
in the Letters Patent Appeal filed by the Respondent
No.1 herein.
10. From the facts as disclosed herein above, it
would be more or less clear that primarily three
questions arise for decision in this appeal, namely,
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i) Is the Respondent No.1 an employee of
the Samiti or of the School?
ii) If the Respondent No.1 is found to be
an employee of the Samiti, could it be
said that the Respondent’s service
would be governed by the Delhi School
Education Act, 1973 and the Rules
framed thereunder or under the rules of
the Samiti?
iii) If it is held that the provisions of
the Delhi School Education Act and the
Rules framed thereunder would govern
the services of the Respondent No.1,
would such a condition of service stand
altered on the Respondent No.1 being
transferred to the office of the
Samiti?
11. Referring to the Office Order dated 16th July,
2005, whereby the Respondent No.1 was appointed, Mr.
Puneet Taneja, learned Advocate appearing for the
Appellant-Samiti, emphasized the fact that the
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Respondent No.1 had been appointed by the Samiti and
was, therefore, an employee of the Samiti and not of
the School. He pointed out the different conditions
in the said Office Order, which indicated that the
service of the Respondent No.1 was transferable
between the different schools managed and run by the
Samiti and also to the Samiti itself, as was done in
the instant case. He also referred to the various
other documents, including the Experience
Certificate and the Office Order dated 9th August,
1999, whereby the Respondent No.1 had been promoted
to the post of Upper Division Clerk by the Samiti
and his subsequent confirmation therein and the fact
that his salary was being paid by the Samiti.
12. Mr. Taneja denied the claim of the Respondent
No.1 that inspite of being an employee of the Samiti
and being governed by the rules and regulations of
the Samiti, his services were governed by the
provisions of the Delhi School Education Act, 1973
and the Rules framed thereunder. Mr. Taneja made
special reference to the letter dated 3rd October,
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2005 addressed by the Respondent No.1 to the General
Secretary of the Samiti acknowledging the fact that
his services were under the control and disposal of
the Samiti.
13. Mr. Sarvesh Bisaria, learned Advocate appearing
for the Respondent No.1, reiterated the stand taken
on behalf of the said respondent before the High
Court that even though the said respondent had been
appointed by the Samiti, once his services were
placed at the disposal of the School in question,
his services came to be governed by the provisions
of the Delhi School Education Act and the Rules
framed thereunder. Mr. Bisaria referred to and
relied on Condition No.11 of the Appointment Order,
which provides that during the period of his service
with the Samiti, the Respondent No.1 would have to
obey all the rules as mentioned in Chapter 9 of the
Delhi School Education Rules, 1973. He also
referred to Condition No.15 extracted hereinabove,
which stipulates that in case the Respondent No.1
failed to comply with the various conditions and the
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rules as mentioned in Rule 123 of the Delhi School
Education Rules, the Samiti would have full right to
remove him from service according to the law.
14. Mr. Bisaria urged that not having taken recourse
to the provisions of the Delhi School Education
Rules, the Samiti had erroneously issued the order
of transfer dated 16th July, 2005, whereby the
Respondent No.1 had been transferred from the school
to the office of the Samiti. Mr. Bisaria submitted
that the order of suspension passed by the Samiti on
21st September, 2005 and the subsequent order dated
29th September, 2005, initiating disciplinary
proceedings against the Respondent No.1, were liable
to be set aside.
15. Mr. B. Dutta, learned Additional Solicitor
General appearing for the Director of Education,
Government of NCT of Delhi, supported the stand
taken on behalf of the Respondent No.1 to the effect
that the Samiti could not have proceeded against the
Respondent No.1 under its own rules while initiating
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disciplinary proceedings, but should have taken
recourse to the provisions of the Delhi School
Education Act and the Rules framed thereunder. In
this regard, the learned Additional Solicitor
General referred to Rule 50 of the 1973 Rules and in
particular, Clauses (i) and (vi) thereof which read
as follows :-
“50. Conditions for recognition.-
No private school shall be recognized,
or continue to be recognized, by the
appropriate authority unless the
school fulfils the following
conditions, namely:-
(i) the school is run by a society
registered under the Societies
Registration Act, 1860 (21 of 1860),
or a public trust constituted under
any law for the time being in force
and is managed in accordance with a
scheme of management made under these
rules;
(ii) .........
(iii) .........
(iv) .........
(v) .........
(vi) the managing committee
observes the provisions of the Act and
the rules made thereunder;”
16. The learned Additional Solicitor General
submitted that not having followed the said
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procedure, the Samiti had acted illegally in
proceeding against the Respondent No.1 under the
rules and regulations of the Samiti on the ground
that having appointed him the Samiti had control
over his services.
17. The learned Additional Solicitor General
submitted that having regard to the above, no
interference was called for with the decision of the
High Court in L.P.A.No.52/2007.
18. It is in the context of the aforesaid
submissions made on behalf of the respective parties
that we will have to consider the questions set out
hereinbefore in paragraph 8.
19. Regarding the first question, as to whether the
Respondent No.1 is an employee of the Samiti or of
the School, there can be no doubt that the
Respondent No.1 is an employee of the Samiti whose
services were placed at the disposal of the School,
where he was functioning as a Lower Division Clerk
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and thereafter as Upper Division Clerk. There is no
dispute that his appointment was made by the Samiti
and that his salary is also paid by the Samiti.
There is also no dispute that he was promoted to the
post of Upper Division Clerk by the Samiti and not
by the School.
20. At this juncture, it may be fruitful to consider
the procedure adopted for appointment of the
Respondent No.1 to the post of Lower Division Clerk
in the School. The Office Memorandum dated 9th May,
1992 by which the Respondent No.1 was appointed,
indicates at the outset that pursuant to a decision
taken by the Selection Committee, the respondent was
appointed as Lower Division Clerk on Government pay
scale and admissible usual allowances payable to Bal
Mandirs, on a regular basis in the School in
question. The said appointment was to take place
with effect from 1st April, 1992, but he would remain
posted in the central office of the Samiti till
further orders of the Samiti. In other words,
though the Respondent No.1 was appointed by the
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Samiti as a L.D.C. in the School in question with
effect from 1st April, 1992, he was to remain posted
in the central office of the Samiti till further
orders were passed by the Samiti. Since a reference
has been made to the Selection Committee in the
Office Memorandum, it will be necessary to consider
the effect of Rule 96 vis-`-vis the Respondent
No.1’s appointment by the Samiti.
21. Rule 96 of the 1973 Rules falls under Chapter
VIII of the said Rules, which deals with recruitment
and terms and conditions of service of employees of
the private schools other that unaided minority
schools. Rule 96(2) provides that recruitment of
employees in each recognized private school shall be
made on the recommendations of the Selection
Committee, which, in the case of appointment of any
employee other than the Head of the School or a
teacher other than the Head of the School, not being
an employee belonging to Group `D’, was to consist
of :
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(i) the Chairman of the managing committee
or a member of the managing committee, to be
nominated by the Chairman;
(ii) head of the school;
(iii) a nominee of the Director;
(iv) in the case an aided school, two
officers having experience of the administration of
the school, to be nominated by the Director.
In the instant case, the procedure under Rule 96
(2) appears to have been duly followed and the
appointment of the Respondent No.1 was made by the
Samiti on the conditions set out in the Office
Memorandum which leave no room for doubt that the
Respondent No.1 was an employee of the Samiti and
not of the School, though it has been held otherwise
by the Division Bench of the High Court. Of course,
the High Court has couched its observations by using
the expression “for all practical intents and
purposes”, but that, in our view, would not make him
an employee of the school. Furthermore, Condition
No.3 of the conditions of service provides in clear
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and unambiguous terms that the Respondent No.1 could
be relieved from his services in the initial
probation period or extended period of probation
after one month’s notice or one month’s pay. The
said condition also provides that after his services
were made permanent, if the Samiti wanted to relieve
him from his services, he would be given three
months’ prior notice or be given three months’
salary in lieu thereof. Condition No.4, which
allows the Samiti to transfer the respondent from
one Bal Mandir to another run by the Samiti or to
the Samiti itself, read with Condition No.3,
indicates that the service of the Respondent No.1
was under the Samiti and under its control.
Conditions 11 and 15, on which a good deal of
reliance has been placed on behalf of the Respondent
No.1, read as follows :
“11. During the period of service he
will have to obey all the rules as
mentioned in Chapte-9 of Delhi
Education Act.
xxx xxx xxxx
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15. In case he failed to comply with
the aforesaid conditions and the rules
as mentined 123 of Delhi Education
Act, the Samiti will have full right
to remove him from service according
to law.”
(Emphasis added)
22. This brings us to the next question as to
whether despite being an employee of the Samiti, the
Respondent No.1’s services would be governed by the
Delhi School Education Act and the Rules framed
thereunder or under the Rules of the Samiti.
23. Condition No.11, which has been reproduced
hereinabove, only indicates that during his period
of service, the Respondent No.1 would have to obey
all the rules as mentioned in Chapter 9 of the Delhi
School Education Rules. The said provision supports
the stand taken on behalf of the Samiti that Chapter
9 of the said Rules relating to the Code of conduct
for teachers and other employees was adopted by the
Samiti to govern the code of conduct of its
employees as well. Except for indicating that the
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Respondent No.1 would have to obey the rules in
question, Condition No.11 does not provide that the
Act and Rules would directly govern the services of
the said respondent. Furthermore, condition No.15
gives the Samiti the right to remove the Respondent
No.1 from service according to law.
24. In answer to the second question, it must,
therefore, be held that the services of the
Respondent No.1 would continue to be governed by the
rules of the Samiti and not by the Delhi School
Education Act, 1973 and the Rules framed thereunder,
though the provisions of the rules may have been
adopted by the Samiti for its employees.
25. Consequently, in answer to the third question
posed in paragraph 8 hereinbefore, it must be held
that the Respondent No.1 continued to be governed by
the rules of the Samiti whether his services were
placed at the disposal of the school or retained by
the Samiti in its central office.
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26. In our view, the reasoning of the Division Bench
of the High Court was erroneous as it proceeded on
the premise that for all practical intents and
purposes the Respondent No.1 was an employee of the
school and that the provisions of the Delhi School
Education Act, 1973 would, therefore, apply to him.
The judgment and order of the Division Bench cannot,
therefore, be sustained and is set aside and the
judgment of the learned Single Judge is restored.
27. The appeal is, therefore, allowed and the writ
petition filed by the Respondent No.1 is dismissed.
There will, however, be no order as to costs.
________________J.
(ALTAMAS KABIR)
________________J.
(CYRIAC JOSEPH)
New Delhi,
Dated: 3.2.2009