{"id":1541,"date":"1998-10-30T00:00:00","date_gmt":"1998-10-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/asha-vij-vs-the-chief-of-army-staff-others-on-30-october-1998"},"modified":"2018-09-16T04:22:36","modified_gmt":"2018-09-15T22:52:36","slug":"asha-vij-vs-the-chief-of-army-staff-others-on-30-october-1998","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/asha-vij-vs-the-chief-of-army-staff-others-on-30-october-1998","title":{"rendered":"Asha Vij vs The Chief Of Army Staff & Others on 30 October, 1998"},"content":{"rendered":"
Delhi High Court<\/div>\n
Asha Vij vs The Chief Of Army Staff & Others on 30 October, 1998<\/div>\n
Equivalent citations: 1998 VIIAD Delhi 497, 77 (1999) DLT 473, 1998 (47) DRJ 778<\/div>\n
Author: V Jain<\/div>\n
Bench: V Jain<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
Vijender Jain, J.<\/p>\n
1.         Rule.\n<\/p>\n
2.   The petitioner by filing the present writ petition has challenged  the order of termination dated 1.9.1998 of her service. Mr. CM Khanna,  learned counsel appearing for the petitioner, has at the outset contended that  the impugned order has been issued without any show cause notice or any allegation of misconduct on the part of the petitioner. He has further  contended that the impugned order has been issued without giving the notice of  three months  as provided under the terms of employment. The petitioner  was  appointed in terms of appointment letter dated 18.7.1988. Following terms and conditions  are relevant for determining the controversy between  the  parties:-\n<\/p>\n
     “You  will be on probation for one year and your services can  be terminated after giving one notice on either side without assigning any reason.\n<\/p><\/blockquote>\n
     On successful completion of probation period you will be  granted one  year  extension of service at a time. Your services  can  be terminated  by giving three months notice on either side  without assigning any reason.\n<\/p><\/blockquote>\n
     All  the  service  and conduct rules as  prescribed  by  Managing Committee will be applicable to you from the date of taking  over the assignment.”\n<\/p><\/blockquote>\n
3.   The case of the petitioner is that the petitioner has been continuously teaching in the school for the last ten years to the satisfaction of the respondents.  He has further contended that on the basis of the  letter  of the Principal of the school dated 8.9.1998 termination of the petitioner in the  mid session was not proper. It has been further contended in the  said letter  that  the school can financially afford the current  teacher  pupil ratio and various other suggestions have been made by Principal in the said letter addressed to the Chairman of the school.\n<\/p>\n
4.   On  the  other hand, learned counsel appearing  for  the  respondents, Ms.Jyoti  Singh,  has  vehemently contended that in  terms  of  appointment letter dated 18.7.1988 the service was only for a period of one year  after successful  completion  of probation period of one year.  She  has  further contended that it was yearly extension which was granted to the  petitioner and petitioner cannot claim any substantive right for a permanent  appointment  in  the school. She has further contended that the  petitioner’s  appointment  was  on the basis of a contract as stipulated in the  letter  of
\nappointment  dated 18.7.1988. She has further contended that the said  contract  was  extended at the discretion of the Chairman  of  the  respondent school and the last extension was granted to the petitioner till  July’1998 and thereafter the extension has not been granted and the petitioner cannot claim  a  right that her contract may be renewed. Learned counsel  for  the respondent has vehemently argued that in terms of Clause 41 of the  Constitution of School, it has been specifically provided that the members of the staff  will be confirmed after satisfactory completion of probation  period
\nand  the  extension  so given shall be at the discretion  of  the  Chairman restricted  to one year at a time. Clause 41 of the Constitution  regarding the termination of services is reproduced below :-\n<\/p>\n
     a) During probation of one year: The appointment teaching and onteaching  staff of the DAPS, NOIDA will be on a probation  for  a period  of 6 months. Their services can be terminated  by  giving one month notice on either side without assigning any reason.\n<\/p><\/blockquote>\n
    b)  After confirmation: On satisfactory completion of the  probation period, the members of the staff will be confirmed and  will be given extension at the discretion of the Chairman,  restricted to one year at a time. Their services can be terminated by giving three months notice on either side without assigning any  reason. However  termination notice will not be applicable if there is  a case of moral turpitude against any employees of the school.\n<\/p><\/blockquote>\n
     c)  Notice  for termination of services, will be  signed  by  SO-2(Edn) on approval of Chairman.\n<\/p><\/blockquote>\n
5.   On  the basis of the aforesaid Clause 41, counsel for  the  respondent has contended that the petitioner was under probation for one year and  her contract  was being renewed from year to year and she was not  a  confirmed employee  and  it  was pure and simple discretion of the  Chairman  of  the school  to grant extension or not and the said extension was restricted  to one  year  at a time. She has further contended that  the  student  teacher ratio in the school had to be 35 to 1 whereas the present ratio is 17 to  1 and  that has a bearing on the financial resources of the school.  Ms.Singh
\nhas  further  argued that there was no requirement to give any  show  cause notice  in the present case and the notice of three months was to be  given if the services of the petitioner had been terminated during the continuity of the extended period of extension of one year.\n<\/p>\n
6.   I  have heard the arguments advanced by the learned counsel  appearing for both the parties at length. Respondent Nos.1 and 2 are the army authorities.  The school in question is Delhi Area Primary School run  for  headquarters  Delhi area for the primary education of children of  serving  and retired  defense  services personnel stationed at Noida and  its  vicinity. Under the Constitution of the said school the following aim has been incorporated :-\n<\/p>\n
      “The DAPS aims at imparting students in the age group of 3.1\/2 to 10  years all round primary education with special  attention  to their mental and physical developments.”\n<\/p>\n
7.   It has been contended in para-4 of the writ petition that the  command and  control  of respondents vest with the serving army personnel.  It  has been stated that the army has created a society under the Society Registration  Act known as ‘Army Welfare Educational Society’. It has been  further contended  that the Army Welfare Housing Organisation has handed  over  the building of the school to respondent No.2 to start and administer a primary school for the children of the serving and retired defense services personnel  stationed at Noida and its vicinity. It is further mentioned  in  writ
\npetition that respondent No.1 allotted an initial corpus fund of Rs.6 lakhs to respondent No.2 for starting and managing the school.\n<\/p>\n
8.   The question, which has to be answered, is as to whether the  respondents in view of the letter of appointment and Clause 41 of the Constitution of School can summarily terminate the services of the petitioner, more  so, when  the  petitioner has unblemished record of ten years  of  service  and whether  under the garb of contract, the Chairman of the respondent  school can  exercise  the discretion of non-grant of extension  in  an  arbitrary, unjust and fanciful fashion so as to terminate the service of the petitioner.  If  strict interpretation of Clause 41 of the School  Constitution  is
\ngiven,  same  would amount to confer unbridled, uncanalised  and  arbitrary power  on  the authority to terminate the services of an  employee  without recording  any reasons and without conforming to the principles of  natural justice.  There  is no guide-line in the aforesaid Clause 41 that  in  what cases  and  circumstances this power of not giving extension can  be  exercised. It is now well settled that the ‘audi alteram partem’ rule which  in essence, enforces the equality clause in Article 14 of the Constitution  is applicable not only to quasi-judicial orders but to administrative  orders. Counsel for the petitioner in support of his contentions has cited the case of  Delhi Transport Corporation Vs. DTC Mazdoor Congress & Others  wherein regulation 9(b) confers some what similar kind of powers  on he authority and the Supreme Court held that :-\n<\/p>\n
      “Thus  on  a conspectus of the catena of cases  decided  by  this  Court  the only conclusion follows is that Regulation 9(b)  which confers  powers on the authority to terminate the services  of  a permanent and confirmed employee by issuing a notice  terminating the  services  of  by making payment in lieu  of  notice  without assigning any reasons in the order and without giving any  opportunity  of  hearing to the employee before passing  the  impugned
\n     order is wholly arbitrary, uncanalised and unrestricted violating principles  of natural justice as well as Article 14 of the  Constitution.”\n<\/p>\n
9.   Supreme Court in Roshan Lal Tandon Vs. Union of India  held that :-\n<\/p>\n
      “……..the  origin of a Government service is  contractual  yet when once appointed to his post or office, the Government servant acquires  a status and his rights and obligations are  no  longer determined by the consent of both the parties, but by statute  or      statutory  rules which may be framed and altered unilaterally  by the  Government. In other words, the legal position of a  Government  servant is more one of status than of contract.  The  hallmark  of  status  is the attachment to a  legal  relationship  of rights  and  duties  imposed by the public law and  not  by  mere agreement  of the parties. It has been observed that  Article  14 does not govern or control Article 311. The Constitution must  be read as a whole. Article 311(2) embodies the principles of  natural justice including audi alteram partem rule. Once the application  of  clause (2) is expressly excluded  by  the  Constitution itself,  there can be no question of making applicable  what  has been so excluded by seeking recourse to Article 14 of the Constitution.”\n<\/p>\n
10.  The petitioner was duly appointed to a post in the institution run  by the respondents. The petitioner has undergone probation for a period of one year and has been in employment for last ten years. There are no complaints
\nagainst the petitioner. Can the services of a teacher be terminated in  any other  school  run by the State Government or by a private society  in  the manner service of the petitioner has been terminated? The answer is in  the negative.  When  there  are other statutory rules to protect  the  pay  and conditions  of  services of the teachers then in the absence  of  statutory rules issued in this behalf, the petitioner cannot be treated in a  different  manner under the garb of contract. Respondents, as a matter  of  fact, are  performing a function of State by imparting education.  Teachers,  who
\nimpart  education, get an element of public interest in the performance  of their  duties and as a consequence the element of public interest  requires to  regulate  conditions of service of those employees at  par  with  other similarly situated employees. The consequence is that the petitioner is not only  entitled  to  parity service conditions but  also  equal  protection, therefore, the action of the respondent in terminating the services of  the petitioner is unconstitutional and illegal.\n<\/p>\n
11.  Some what strange arguments were advanced before me by the respondents stating  that  they  want to get rid of the petitioner as  they  wanted  to accommodate  another  widow of an officer of the army.  This  argument  was totally inconsistent with the aims of the School and ignored the letter  of the  Principal dated 8.9.1998. No record was shown to the Court as to  when and how application for grant of extension was obtained from the petitioner on year to year basis. If the respondents were granting extension in  their own  files then that will not bind the petitioner. As a matter of fact,  in the letter of the Principal of the school dated 29.10.1998, it was specifically  pointed out that there was no set procedure laid down for  conveying information  regarding  the grant of extension to staff of the  Delhi  Area Primary School and the teachers on their own do not submit any  application for  extension. Law is well settled regarding punitive action the  opposite party  has  to be given a reasonable opportunity of hearing. In  this  case only  two  lines  order has been given by the Chairman  of  the  respondent School terminating the services of the petitioner. I hold that principle of natural justice has also been violated by the respondents. In this view  of the  matter, I hold that the impugned order dated 1.9.1998 terminating  the services of the petitioner is arbitrary, whimsical and illegal and the same is, therefore, quashed. Petition is allowed. Rule is made absolute.\n<\/p>\n
12.  There will be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Asha Vij vs The Chief Of Army Staff & Others on 30 October, 1998 Equivalent citations: 1998 VIIAD Delhi 497, 77 (1999) DLT 473, 1998 (47) DRJ 778 Author: V Jain Bench: V Jain ORDER Vijender Jain, J. 1. Rule. 2. The petitioner by filing the present writ petition has challenged the […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-1541","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nAsha Vij vs The Chief Of Army Staff & Others on 30 October, 1998 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/asha-vij-vs-the-chief-of-army-staff-others-on-30-october-1998\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Asha Vij vs The Chief Of Army Staff & Others on 30 October, 1998 - 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