*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 19th May, 2011.
+ W.P.(C) 10243/2009
% SANJEET SINGH DABAS ..... Petitioner
Through: Mr. M.M. Sudan, Adv.
Versus
GOVT. OF NCT OF DELHI & ORS. .... Respondents
Through: Mr. V.K. Tandon & Ms. Mamta
Tandon, Advocates for R-1 GNCTD.
Mr. Pramod Dayal, Adv. for R-2 & 3.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may No.
be allowed to see the judgment?
2. To be referred to the reporter or not? No.
3. Whether the judgment should be reported No.
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The petitioner employed as an Accounts Clerk with the respondent
no2 D.A.V. College Management Committee (DCMC) of the respondent
no.3 D.A.V. Centenary Public School, Narela, Delhi has filed this writ
W.P.(C)10243/2009 Page 1 of 10
petition impugning the order dated 3rd April, 2008 of the respondent no.2
DCMC transferring the petitioner to D.A.V. Centenary Public School,
Bhawanathpur, District-Garhwa, Jharkhand “in his existing pay, pay scale
and admissible allowances”. The petitioner first preferred an appeal to the
Delhi School Tribunal in accordance with Kathuria Public School Vs.
Director of Education 123 (2005) DLT 89 (DB) laying down that appeals
before the Tribunal were maintainable against all grievances of the
teachers/employees of the School. However the said appeal was
withdrawn on 11th December, 2008 with liberty to pursue the remedies
before the Directorate of Education (DOE) or before other appropriate
forum. The DOE, on the representation of the petitioner and after hearing
the respondent no.3 School found that no common/joint seniority list was
maintained by the School at Narela and the School in Jharkhand to which
the petitioner had been transferred and held that an employee of a
recognized School can be transferred by its management to any other
School only if the School is maintaining a common/joint seniority list of
employees of the School and if the transfer is made with the concurrence of
the employee concerned; the DOE accordingly, vide order dated 7th March,
W.P.(C)10243/2009 Page 2 of 10
2009 held the transfer to be not tenable under the provisions of the Delhi
School Education Act and the Rules, 1973 and directed the respondent no.3
School to allow the petitioner to continue to perform his duties in the
respondent no.3 School at Narela. Upon non-compliance by the
respondent no.3 School of the said direction of the Directorate of
Education, the School was also threatened with de-recognition. The
petitioner has in the present writ petition also sought the relief of issuance
of direction to the DOE to take action against the School in accordance
with the provisions of Section 24(3&4) of the Act and the Rules.
2. Notice of the writ petition was issued and vide interim order which
continues to be in force, passing of final order in the disciplinary
proceedings initiated against the petitioner for failing to comply with the
transfer order, though permitted to be continued, was stayed.
3. The respondent no.1 DOE has in its counter affidavit, though
supporting the petitioner has submitted that further action against the
respondent no.3 School has not been taken since the petitioner had
preferred the present writ petition.
W.P.(C)10243/2009 Page 3 of 10
4. The petitioner in the writ petition itself has relied upon the judgment
dated 3rd October, 2008 in LPA No.1991/2006 titled Jitender Singh Tyagi
Vs. Director of Education and the judgment dated 16th January, 2009 in
Review Petition No.395/2008 in LPA No.1991/2006 titled D.A.V. College
Managing Committee Vs. Jitender Singh Tyagi laying down that General
Terms and Conditions of employees of DCMC in no way empower the
DCMC to transfer employees of any recognized School in Delhi, merely
on the basis of contractual General Terms and Conditions of employment.
5. The respondent no.2 DCMC in its counter affidavit has with
response to the aforesaid judgment of Division Bench of this Court
contended that the same is contrary to the judgment of the Apex Court in
Samarth Shiksha Samiti Vs. Bir Bahadur Singh Rathour AIR 2009 SC
1990. In fact the said judgment of the Apex Court is the sole defence of
respondent no.2 DCMC to the present writ petition, besides the general
argument of, transfer being an incident of service and of the petitioner, as
per the terms and conditions of his appointment, being liable to be
transferred.
W.P.(C)10243/2009 Page 4 of 10
6. The Apex Court in Samarth Shiksha Samiti (supra) drew the
distinction between an employee of the Society which runs the School and
posted in the School run by the Society and an employee of the School and
held that the Society is not bound to follow the provisions of the Act and
the Delhi School Education Rules, 1973. The counsel for the respondent
no.2 DCMC has contended that the petitioner also is the employee of the
respondent no.2 DCMC and not an employee of the respondent no.3
School and thus what has been held by the Division Bench of this Court in
the judgments supra relating to employees of the School would not apply
to the petitioner. It is contended that the case of the petitioner is squarely
covered by the judgment aforesaid of the Apex Court.
7. Not finding the letter heads of the respondent no.2 DCMC on record
to be indicative of the same being the Society running the respondent no.3
School, it was enquired from the counsel for respondents no.2 & 3 whether
the respondent no.2 DCMC is a “Society”. The counsel answers in the
affirmative. However being suspicious of the stand so taken and sought to
be conveyed without making any definite pleadings, the counsel was told
W.P.(C)10243/2009 Page 5 of 10
that he should take a positive stand which would be recorded and with
which he will be bound and responsible for consequences if not proved to
be correct. The counsel then says that he is not sure whether the
respondent no.2 DCMC is the “Society” which has set up the respondent
no.3 School.
8. The respondent no.2 DCMC in its counter affidavit has referred to
its Rules and extracted the Rules relied upon without choosing to produce
the same before this Court. It was enquired from the counsel for the
respondents no.2 & 3 as to from where he had extracted the Rules. The
counsel stated that he does not have the document available with him but
had seen the same while drafting the counter affidavit. Again, being
suspicious from non production of the Rules which would have disclosed
as to whether the respondent no.2 DCMC is the “Society” or the Society is
distinct from the DCMC, the counsel was again implored in this regard.
He ultimately pulled out from his file the “Rules of the D.A.V. College
Managing Committee” qua “Provident Fund” and which have been taken
on record. The same disclose that the Society running the respondent no.3
W.P.(C)10243/2009 Page 6 of 10
School is the “Dayanand Anglo-Vedic College Trust & Management
Society” and not the respondent no.2 DCMC. The counsel also, upon the
document having surfaced, is unable to controvert the said position.
9. The aforesaid shows that the respondents no.2 & 3 have
intentionally built up a false case before this Court and wrongly portrayed
before this Court that the respondent no.2 DCMC, the Managing
Committee of the respondent no.3 School to be the Society when it very
well knew or is deemed to have known that the Society is different from
the respondent no.2 DCMC. A visit to the official website of respondent
no.2 DCMC also reveals that the same is the “Executive Body” of the
Dayanand Anglo-Vedic College Trust and Management Society. It is not
understandable as to on what basis it was pleaded and argued that the
petitioner is an employee of the Society and not of the School.
10. I may record that the aforesaid stand was persisted with inspite of
the petitioner along with his rejoinder to the counter affidavit filing the
letter of appointment in the case of Samarth Shiksha Samiti supra which
clearly shows that the employee in that case was appointed by the Society
W.P.(C)10243/2009 Page 7 of 10
at a post in the Central Office of the Society. It was also enquired from the
counsel for the respondents no.2 & 3 whether there are two sets of
employees in the respondent no.3 School i.e. those employed by the School
and others by the Society. The counsel stated that he has no instructions in
this regard. Attention of the counsel was invited to the definition of an
“employee” in Section 2(h) of the DSE Act as all those working in the
School and neither require employment by the School nor creates a
distinction between employment by the School and by the Society. Thus it
appears that all those working in the School, irrespective of whether
employed by the Society or by the School would be covered by the
provisions in the Act and the Rules relating to employees of the School.
11. Before parting with the matter other arguments of the counsels may
also be noticed. The counsel for the petitioner has contended that the order
of transfer in the present case as per the documents filed with the rejoinder,
is by way of punishment and bad for this reason also having been made
without holding any inquiry. The counsel for the respondents no.2 & 3 has
argued that the petitioner has suppressed an appointment letter and the
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factum of appeal before the Tribunal. However as aforesaid the appeal was
dismissed.
12. It is not deemed expedient to discuss the matter further. The mater
is otherwise covered by the judgment of the Division Bench of this Court
in Jitender Singh Tyagi (supra) holding transfer to be not permissible.
The judgment relied upon by the counsel for the respondents no.2 & 3 is
not applicable, the petitioner being an employee of the respondent no.2
DCMC, being the Management Committee of the respondent no.3 School
and not of the Society. Even otherwise, it is felt that the provisions of the
Act and the Rules cannot be permitted to be defeated by making
employment in the Society and taking work in the School.
13. The writ petition is accordingly allowed, the order of transfer is set
aside/quashed. The respondent no.3 School is however given opportunity
to take back the petitioner on duty within four weeks from today, failing
which the respondent no.1 DOE is directed to take action in accordance
with law against the respondent no.3 School for non-compliance of the
directions issued by it.
W.P.(C)10243/2009 Page 9 of 10
14. The respondents no.2 & 3 having deliberately taken a false stand
before this Court and having abused the process of this Court, are also
burdened with exemplary costs of `30,000/- of this litigation payable to the
petitioner within four weeks hereof and are warned to be careful in future.
At this stage, I am resisting from proceeding further against the respondent
no.3 School and its General Secretary who has filed the false affidavit.
The writ petition is disposed of.
RAJIV SAHAI ENDLAW
(JUDGE)
MAY 19, 2011
Bs..
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