Managing Committee Of Army Public … vs Director Of Education on 16 April, 1998

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Delhi High Court
Managing Committee Of Army Public … vs Director Of Education on 16 April, 1998
Equivalent citations: 73 (1998) DLT 549, 1998 (45) DRJ 664
Author: K Ramamoorthy
Bench: K Ramamoorthy

JUDGMENT

K. Ramamoorthy, J.

1. The second respondent was offered employment as Principal on the 29th of March, 1993 in the petitioner school and he was appointed, as such, on the 8th of April, 1993 fixing the probation period. On the 11th of April, 1994, the petitioner wrote to the Director of Education for extension of period of probation of the second respondent for a period of one year w.e.f. 16.4.1994. The Director of Education passed the following order on the 2nd of June, 1994:-

“With reference to your letter No. 2/PF/SNO dated 11 Apr. 1994 on the subject cited above, I am directed to convey the approval of the Director of Education to extend the probation period of Mr.Scaria NO, Principal of your School by one year w.e.f. 15.4.1994.”

2. Thus, the probation is to be extended by virtue of the order for a period of one year but the petitioner extended the probation period of the second respondent for a period of six months from 15.4.1994 to 15.10.1994. No order of further extension was passed by the petitioner and the second respondent continued to be in service. On the 8th of April, 1995, the petitioner passed the order terminating the probation of the second respondent stating “your probation period terminates on the 14th of April, 1995 and your services stands terminated w.e.f. 14th of April, 1995.”

3. It may also be noticed that the petitioner offered some other employment in Army Public School, Noida to the second respondent by proceedings of 10th of April, 1995
and that was also followed by another order of 14th of April, 1995. Reference to these two orders is not necessary.

4. The second respondent filed an appeal to the Delhi School Tribunal against the orders of the petitioner which was passed on the 8th of April, 1995 and obtained order of slay. During the pendency of the appeal before the Delhi School Tribunal, the petitioner issued an order what is characterised as Corrigendum, which reads as under:-

“Following orders may be read so mentioned against each herein alter for compliante of action:-

(a) Letter No. 7845/APS/Sigs/63 dt.10 Apr 95 may be read as withdrawn and eaneelled.

(b) Letter No. 7845/APS/Sigs/64 dt. 14 Apr 95 may be partially read as withdrawn and modified to the extent that Mr.Scaria NO shall continue to function as Principal APS Dhaula Kuan in the existing capacity till a suitable decision is taken on merit of the case as per law.

(c) The probation period of Mr.Scaria NO is hereby extended by another period of six months w.e.f. 1.5 Oct. 94. These orders shall have the retrospective effect which has the approval of Director of Edn as required under the provision of DSER 1973.

(d) Letter No. 7845/APS/Sigs/62 dt.08 Apr 95 will not be given effect till the approval of Director of Education is accorded for which is a case has already been taken. Till such lime as mentioned above, Mr.Scaria NO will continue to perform the duties of principal.”

5. The effect of this corrigendum is that the appointment of the second respondent as Principal in Army Public School, Noida stood withdrawn and, six months, after the two years probation period, was extended to the second respondent retrospectively from 15th of November, 1994. The petitioner had undertaken to seek approval of the Director of Education for the order of termination dated the 8th of April, 1995. When the appeal came up before the Tribunal on the 17th of August, 1995, this corrigendum was produced before the Tribunal and that Was taken note of by the Tribunal and the Tribunal passed the following order:-

“This is an appeal against the Order dated 8th April, 1995 passed by the respondent whereby the services of the appellant were terminated. The main ground for appeal is that the impugned order is bad in law on account of non-compliance of the mandatory provisions of Section 8(2) of Delhi School Education Act, 1973. As per this provision no employee of a recognised private school shall be dismissed, terminated except with the prior approval of the Director. Admittedly the approval of the Director was not obtained before the services of the appellant were terminated. However, during the pendency of this appeal the respondents have filed a copy of corrigendum i.e. letter supplied to the appellant whereby the letter of termination of service has been withdrawn and cancelled. The appellant has been further informed that the latter No. 7845/APS/Sigs/64 dated 14th April, 1995 also stands withdrawn and modified to.the extent that the appellant .shall continue to function as Principal, APS, Dhaula Kuan in the existing capacity till a suitable decision is taken on merit of the case as per law. It further extends his period of probation by another six months with effect from 1.5th October, 1994 with retrospective effect. Thus, the letter No. 7845/APS/Sigs/62 dated 8th April, 1995 whereby his probation period was terminated on 14th April, 1995 has become inoperative. Shri S.C.Anand, the representative of the respondents has made the statement to this effect. In view of the above statement of the respondents and the withdrawal of the termination letter as well as extension of period of probation with retrospective effect for six months w.e.f. 15th October, 1994, the appeal has become infructuous. Thus appellant shall be deemed to be continuing in service without any break and his termination order shall be deemed to have become inoperative.

The appeal is dismissed having become infructuous.”

6. The legal effect of this order would be, that the second respondent continued to serve in the petitioner school without there being an order of termination. The Tribunal had dismissed the appeal on the ground that it had become infructuous. The Tribunal had observed that the appellan1/second respondent shall be deemed to be continuing in service without any break and his termination order shall be deemed to have become inoperative. The petitioner had accepted this order and that was not challenged.

7. It would appear that the petitioner had moved the Director of Education seeking the approval of the order dated the 8th of April, 1995 and what exactly was asked for before the Director is not referred because that has not been produced and the Director of Education passed an order on the 22nd of September, 1985 which runs as under:-

“Reference to all the correspondence so far till today you arc hereby informed that the D.E. has given the direction on the basis of the judgement given by Delhi School Tribunal that in view of the withdrawal of termination letter dated 8.4.95 and withdrawal of extension of probation with retrospective effect from 15th October, 1994. Mr.Scaria NO, shall be deemed to be continuing in service without any break and his termination order shall be deemed to become inoperative. Hence he stands confirmed in his job as the Principal, Army Public School, Dhoula Kuan w.e.f. 15.10.1994.”

7. The petitioner had asked lor reconsideration of the order of the Director of Education and that was rejected on the 17th of January, 1996. On the 13th of May, 1996, the Director of Education issued a direction to the petitioner in following terms:-

“Confirmation letter may be issued to him as directed by the Department vide this office letter No.DE.54/Z-20/95/548 dated 20.9.1995. Your attention is also invited to the conditions of recognition especially following the provisions of Delhi School Education Act/Rules, 1973.

Please send the compliance to this office latest by 20.5.1996.”

8. The petitioner has challenged the orders dated the 22nd of September, 1995, the 17th of January, 1996 and the 13th of May, 1996 in this writ petition. The proceedings dated the 17th of January, 1996 and the 1.3th of May, 1996 are only consequential orders depending upon the legal effect of the order dated the 22nd of September, 1995 and. therefore, the validity of the order dated the 22nd of September, 1995 has to be considered.

9. The learned counsel for the petitioner submitted that the order passed by the Director of Education is contrary to Rule 105 of the Delhi School Education Rules, 1973. The Director of Education had misdirected himself in construing, the scope of the order of the Tribunal. The Tribunal did not dispose of the matter on the merits and the appeal was disposed of on the basis of the corrigendum and the statement made on behalf of the petitioner school. Therefore, according to the learned counsel for the petitioner, the Director of Education had committed an error in assuming that the Tribunal had set aside the order of the petitioner passed on the 8th of April, 1995.

10. The learned counsel submitted that under Rule 105, there should be an order by the employer confirming the services of the employee and till such time such order was passed by the employer, the employee would be deemed to be in probation for the entire period of one year granted by the Director of Education. Learned counsel submitted that the Director of Education committed a very serious error in stating that the services of the second respondent stand confirmed as Principal in Army Public School w.e.f. 15.10.1994.

11. The learned counsel for the petitioner referred to the judgments of the Supreme Court “Municipal Corporation, Raipur v. Ashok Kumar Misra“; 1995 Suppl. 3 SCC “Jai Kishan v. Commissioner of Police and Anr.“; 1996 (32) ATC 486 wherein, according to the learned counsel for the petitioner, the dictum had been laid down by the Supreme Court in very unmistakable terms that unless and until there is an order of confirmation, as in this case, under Rule 105, there is no question of the second respondent being confirmed w.e.f. 15.10.1994. Therefore, the argument proceeded that the order passed by the Director of Education on the 22nd of September, 1995 is vitiated and is liable to be set aside.

12. The learned counsel for the second respondent submitted that the order passed by the petitioner on the 8th of April, 1995 terminating the services of the second respondent is void and vitiated and it has absolutely no legal effect and the services of the second respondent had not been terminated on the ground of his work being unsatisfactory and there was absolutely no material on record at the relevant time warranting an inference that his work was not satisfactory. Learned counsel for the second respondent further submitted that, as a matter of fact, there are materials in abundance showing the contrary and the creditable record he had established during the tenure as Principal at the relevant time and he continues to work for the institution. The learned counsel for the second respondent submitted that the order passed by the Director of Education dated the 22nd of September, 1995 is in accordance with rules and he also referred to bye-laws 28 issued by the Central Board of Secondary Education. That bye-law reads as under:-28. Confirmation

(1) If the work and conduct of an employee during the period of probation arc found to be satisfactory, he/she will become eligible for confirmation on the expiry of the period of probation of the extended period of probation as the case may be, with effect from the date of expiry of the said period provided he/she fulfills other requisite conditions.

(2) The employee shall be informed of his confirmation within 3 months of the completion of probation period.

13. The learned counsel for the petitioner in answer to these submissions submitted that bye-law 28 cannot have any overriding effect over the statutory Rule 105 and, therefore, much reliance cannot be placed by the second respondent on the bye-law 28 framed by the Central Board of Secondary Education. The fact is that no order had been passed informing the second respondent of his confirmation within three months of the completion of the probation period. The argument on behalf of the petitioner is that there was no need for such an order because under Rule 105, no order confirming the services of the petitioner had been issued by the petitioner and, therefore, he continued to be on probation.

14. The facts of the case present somewhat a novel situation The petitioner relies upon its own action in not passing an order confirming the services of the petitioner. No explanation has been forthcoming as to why the probation was not extended beyond 15.10.1994. On 8.4.1995 when the order of termination was issued by the petitioner, the second respondent was not on probation. It cannot be said that there was no order issued by the petitioner under Rule 105 and, therefore, the second respondent continued to be on probation. If the petitioner wants to follow a procedure, the petitioner must also follow the bye-laws prescribed by the Central Board of Secondary Education and it could have passed an order stating that the probation of the second respondent cannot be extended. The petitioner could pass an order of termination putting an end to the probation of the second respondent only with prior approval of the authority. This question as to what is the legal effect of not obtaining the prior approval and passing such an order had been subject matter of decision by the Supreme Court and it had been laid down by the Supreme Court that once there is a mandatory rule, that prior approval should have been obtained and any order that is passed, without such an approval, would wholly illegal and is bad in law and it cannot at all be given effect to. Therefore, in this case the petitioner cannot rely upon the order dated the 8th of April, 1995 for any purposes because it is contrary to the rules.

1.5. The petitioner would rely upon the corrigendum issued on the 20th of June, 1995. It is a basic principle of law that no authority, much less a private institution or institution like the petitioner, can seek to review its own proceedings unless there is a power to that effect. The argument on behalf of the petitioner was that no doubt it was realised by the petitioner that approval should have been obtained and inasmuch as that was not done, now it could be done by seeking the approval and whole thing could be undone by issuing a corrigendum. Once the order dated the 8th of April, 1995 was void, that cannot be resuscitated or resurrected by the petitioner by issuing a corrigendum as it has been done by passing an order in the 20th of June, 1995. Therefore, reliance on the corrigendum issued by the petitioner is absolutely not valid in law and it cannot at all be accepted.

16. The learned counsel for the petitioner submitted that Sub-rule 105 (2) clearly contemplates an order to be passed by the petitioner and that was done by passing an order in June, 1995. Therefore, the second respondent cannot be deemed to have completed his probation. Assuming that there is any substance in this submission, the corrigendum was issued on the 20th of June, 1995 after the expiry of six months’ period. Looking at the matter from any angle, the submission made on behalf of the petitioner cannot at all be sustained.

17. I do not find any error in the order passed by the Director of Education on the 22nd of September, 1995, 17th of January, 1996 and the 13th of May, 1996. The judgment of the Supreme Court referred to by the learned counsel for the petitioner is distinguishable on facts, In “State of UP and Ors. v. Rajendra Kumar Singh and Anr. the facts were entirely different and the Supreme Court had given its view on the facts presented before their Lordships and that their Lordships had observed thus:-

“We have taken into consideration the respective contentions of the parties and we have also considered the materials on record. It appears to us that simply by completing the period of probation an employee cannot claim to be made permanent until and unless his service record is taken into consideration and a positive decision is taken by the appointing authority for making him permanent. In the instant case, it appears that the records of service of the, respondent are not good and if no consideration of such adverse records, a decision to terminate the temporary service of the respondent was taken and the order was passed without attaching any stigma, we do not think that such order would be held a illegal and a punishment in disguise. Accordingly, the appeal is allowed and the impugned order of the High Court is set aside. No costs.”

18. When the petitioner is seeking to rely upon an order which is void in law, no relief could be granted and, in my view, the judgment of the Supreme Court cited by the learned counsel for the petitioner does not avail the petitioner. Accordingly, the writ petition stands dismissed. 19. There shall be no orders as to costs.

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