W.P.(C) No. 354/2010 & ors. Page 1 of 30 * HIGH COURT OF DELHI : NEW DELHI WP (C) No. 354 of 2010 % Decided on: August 31, 2010 GURPREET KAUR ……..Petitioner Versus DELHI SIKH GURUDWARA MANAGEMENT COMMITTEE & ORS. ....Respondents and WP (C) No. 355 of 2010 SHEELA DEVI ……..Petitioner Versus DELHI SIKH GURUDWARA MANAGEMENT COMMITTEE & ORS. ....Respondents and WP (C) No. 357 of 2010 HARSIMRAN KAUR ……..Petitioner Versus DELHI SIKH GURUDWARA MANAGEMENT COMMITTEE & ORS. ....Respondents and WP (C) No. 361 of 2010 AMRIT KAUR ……..Petitioner Versus DELHI SIKH GURUDWARA MANAGEMENT COMMITTEE & ORS. ....Respondents W.P.(C) No. 354/2010 & ors. Page 2 of 30 and WP (C) No. 362 of 2010 TAJINDER KAUR ……..Petitioner Versus DELHI SIKH GURUDWARA MANAGEMENT COMMITTEE & ORS. ....Respondents and WP (C) No. 375 of 2010 GURMEET KAUR ……..Petitioner Versus DELHI SIKH GURUDWARA MANAGEMENT COMMITTEE & ORS. ....Respondents and WP (C) No. 377 of 2010 RAMANJEET KAUR ……..Petitioner Versus DELHI SIKH GURUDWARA MANAGEMENT COMMITTEE & ORS. ....Respondents and WP (C) No. 379 of 2010 LAKHWINDER SINGH ……..Petitioner Versus DELHI SIKH GURUDWARA MANAGEMENT COMMITTEE & ORS. ....Respondents and W.P.(C) No. 354/2010 & ors. Page 3 of 30 WP (C) No. 380 of 2010 HARJIT KAUR ……..Petitioner Versus DELHI SIKH GURUDWARA MANAGEMENT COMMITTEE & ORS. ....Respondents and WP (C) No. 391 of 2010 MANJIT SINGH ……..Petitioner Versus DELHI SIKH GURUDWARA MANAGEMENT COMMITTEE & ORS. ....Respondents and WP (C) No. 2551 of 2010 DELHI SIKH GURUDWARA MANAGEMENT COMMITTEE & ANR. ……..Petitioners Versus MS. SHEELA DEVI & ANR. ....Respondents and WP (C) No. 2552 of 2010 DELHI SIKH GURUDWARA MANAGEMENT COMMITTEE & ANR. ……..Petitioners Versus MS. HARJEET KAUR & ANR. ....Respondents and W.P.(C) No. 354/2010 & ors. Page 4 of 30 WP (C) No. 2553 of 2010 DELHI SIKH GURUDWARA MANAGEMENT COMMITTEE AND ANR. ……..Petitioners Versus MS. AMRIT KAUR & ANR. ....Respondents and WP (C) No. 2561 of 2010 DELHI SIKH GURUDWARA MANAGEMENT COMMITTEE AND ANR. ……..Petitioners Versus MS. GURPREET KAUR & ANR. ....Respondents and WP (C) No. 2563 of 2010 DELHI SIKH GURUDWARA MANAGEMENT COMMITTEE AND ANR. ……..Petitioners Versus MS. GURMEET KAUR & ANR. ....Respondents and WP (C) No. 2565 of 2010 DELHI SIKH GURUDWARA MANAGEMENT COMMITTEE AND ANR. ……..Petitioners Versus MS. HARSIMRAN KAUR & ANR. ....Respondents W.P.(C) No. 354/2010 & ors. Page 5 of 30 and WP (C) No. 2726 of 2010 DELHI SIKH GURUDWARA MANAGEMENT COMMITTEE AND ANR. ……..Petitioners Versus MS. RAMANJEET KAUR & ANR. ....Respondents and WP (C) No. 2727 of 2010 DELHI SIKH GURUDWARA MANAGEMENT COMMITTEE AND ANR. ……..Petitioners Versus MR. MANJEET SINGH & ANR. ....Respondents and WP (C) No. 2728 of 2010 DELHI SIKH GURUDWARA MANAGEMENT COMMITTEE AND ANR. ……..Petitioners Versus MS. TAJINDER KAUR & ANR. ....Respondents and WP (C) No. 2738 of 2010 DELHI SIKH GURUDWARA MANAGEMENT COMMITTEE AND ANR. ……..Petitioners Versus MR. LAKHWINDER SIGH & ANR. ....Respondents W.P.(C) No. 354/2010 & ors. Page 6 of 30 Appearance: Dr. Sarbjit Sharma, Adv. with Mr. Sumit Sharma, Adv. and Ms. Seema Aggarwal, Adv. for Mrs. Tajinder Bhatia, Mrs. Sheela Devi, Mrs. Gurmeet Kaur, Mrs. Harsimran, Ms. Amrit, Ms. Ramanjeet Kaur, Mr. Lakhvinder Singh & Mr. Manjit Singh. Mr. I.S. Bakshi, Adv. for respondents Delhi Sikh Gurudwara Management Committee and Guru Harkrishan Public School. Mr. Sushil D. Salwan, Adv. with Mr. Aditya Gar, Adv. for R-DoE in Writ Petitions (C) No.362/2010, 379/2010 & 380/2010. Mr. Nawal Kihore Jha, Adv. for DoE in W.P.(C) No.354/2010. Ms. Megha Bharara, proxy counsel for Ms. Ruchi Sindhwani, Adv. for R-3 in W.P.(C) No.357/2010. Coram: HON'BLE MR. JUSTICE MANMOHAN SINGH 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported Yes in the Digest? MANMOHAN SINGH, J. 1. By this order I shall dispose of twenty writ petitions i.e. one set of 10 writ petitions filed by Ms. Tajinder Kaur Bhatia, Ms. Sheela Devi, Ms. Gurmeet Kaur, Ms. Gurpreet Kaur, Ms. Harsimran Kaur, Ms. Amrit Kaur, Ms. Ramanjeet Kaur, Ms. Harjeet Kaur, Mr. Lakhvinder Singh & Mr. Manjit Singh (hereinafter called petitioners) against three respondents i.e. Delhi Sikh Gurudwara Management Committee, Guru Harkrishan Public School and Directorate of Education respectively. 2. The second set of 10 writ petitions WP (C) No. 2551/2010, WP (C) No. 2552/2010, WP (C) No. 2553/2010, WP (C) No. 2561/2010, WP (C) No. 2563/2010, WP (C) No. 2565/2010, WP W.P.(C) No. 354/2010 & ors. Page 7 of 30 (C) No. 2726/2010, WP (C) No. 2727/2010, WP (C) No. 2728/2010 and WP (C) No. 2738/2010 filed by the Delhi Sikh Gurudwara Management Committee and Guru Harkrishan Public School (hereinafter called respondents) against the ten petitioners individually details of which are mentioned in the in first set of 10 writ petitions and Directorate of Education being respondent No.2 for setting aside the impugned judgment dated 30.11.2009 passed by Delhi School Tribunal in appeals filed by the petitioners. All the writ petitions have been taken up together as similar facts and law points are involved in both sets of writ petitions. 3. The common grounds of the petitioners are that the termination orders passed by the respondents are illegal, arbitrary, malafide and those were issued in violation of established principles of natural justice as no show cause notices were issued by the respondents. The petitioners after termination of their services preferred appeals before the Delhi School Tribunal. The Tribunal vide judgment dated 30.11.2009 in appeals No.38/2009 to 47/2009 set aside the orders of termination of services of the petitioners. Despite the said judgment and reminders issued by the petitioners for compliance they were not reinstated by the respondents. Therefore, the present writ petitions have been filed by the petitioners, for the purpose of implementation of the judgment. 4. The detail of petitioners of the first set of 10 writ petitions is given as under: Sl. No. Name Post Held Date of appointment/ joining Date of termination Reasons given in the impugned order W.P.(C) No. 354/2010 & ors. Page 8 of 30 1. Ms. Tajinder Kaur Bhatia in W.P.(C) No.362/2010 Teacher 02.04.2007 4.7.2009/ 15.7.2009 Appointed without following any procedure for appointment. Terminated under Clause 19 of Contract of Service. 2. Ms. Sheela Devi in W.P.(C) No.355/2010 Ayah 02.04.2007 15.7.09 Appointed on temporary basis 3. Ms. Gurmeet Kaur in W.P.(C) No.375/2010 Attendant 02.08.2007/ 31.08.2007 4.7.2009/ 15.7.2009 Appointed without following any procedure for appointment. Terminated under Clause 19 of Contract of Service. 4. Ms. Harsimran Kaur in W.P.(C) No.357/2010 Teacher 01.08.2007 4.7.2009/ 15.7.2009 Appointed without following any procedure for appointment. Terminated under Clause 19 of Contract of Service. 5. Ms. Amrit Kaur in W.P.(C) No.361/2010 Teacher 02.08.2007 4.7.2009/ 15.7.2009 Appointed without following any procedure for appointment. Terminated under Clause 19 of Contract of Service. 6. Ms. Ramanjeet Kaur in W.P.(C) No.377/2010 Teacher 03.09.2007 4.7.2009/ 15.7.2009 Appointed without following any procedure for appointment. Terminated under Clause 19 of Contract of Service. 7. Ms. Harjeet Kaur in W.P.(C) No.380/2010 Office Attendant 01.11.2007 4.7.2009/ 15.7.2009 Appointed without following any procedure for appointment. Terminated under Clause 19 of Contract of Service. 8. Mr. Lakhwinder Singh in W.P.(C) No.379/2010 Driver 21.07.2008 13.7.2009/ 15.7.2009 Appointed on temporary basis. 9. Ms. Gurpreet Kaur In W.P.(C) No.354/2010 Teacher 01.10.2008 4.7.2009/ 15.7.2009 Appointed without following any procedure for appointment. Terminated under Clause 19 of Contract of Service. 10 Mr. Manjeet Singh in W.P.(C) No.391/2010 Activity Instructor 12.01.2009 15.7.09 Appointed on temporary basis. 5. The first contention of the petitioners is that the respondents have a trend of passing similar orders of termination against the employees appointed by a previous committee during its tenure when it is taken over by the subsequent committee. The W.P.(C) No. 354/2010 & ors. Page 9 of 30 appointments are terminated in respect of employees of various schools run by the respondent No.1 and on several occasions in the past employees filed various writ petitions before this Court and the said orders were withdrawn from time to time after issuance of directions by the Court. It is contended that the President of respondent No.1 i.e. Delhi Sikh Gurudwara Management Committee decided to terminate the services of various employees from the service and therefore, a resolution was passed for terminating the petitioners without affording them an opportunity of being heard. The termination letters issued by the respondent No.1 are contrary to the law. The said letter no.3751/2-5 resolution dated 15.5.2009 reads as under: “During the Executive Board Meeting held on 9.5.2009, it has been decided that the confirmations granted to the employees of DSGMC and Schools, Institutes, Hospitals, Dispensaries run under Delhi Sikh Gurudwara Management Committee prior to completion of one year of service between 01.03.2007 to 9.5.2009 be cancelled. Hence, any such confirmations are being cancelled.” 6. In view thereof, vide office order No.5468/11-13 dated 19.6.2009, the President, Delhi Sikh Gurudwara Prabandhak Committee, issued directions for enquiry into all appointments, promotions, including new posts and ranks, special scale, increments made during 9th February 2007 to 9th May 2009 in all Guru Harkrishan Public Schools, and all other educational institutions under the management of respondent No.1. 7. In W.P. (C) No.380/2010 filed by Harjeet Kaur one of the petitioners who has filed an additional affidavit wherein it has been stated that the services of the various teachers were terminated by the respondents No.1 and 2 because of surplus staff and that at the W.P.(C) No. 354/2010 & ors. Page 10 of 30 same time fresh appointments were advertised. It is also stated in the affidavit that one of the teachers namely Ms. Roma whose services were also terminated along with the petitioner has been reinstated in service and fresh appointments were made of Ms. Maninder Kaur, Ms. Amandeep Kaur, Ms. Vaishali and Ms. Harmit Kaur who are overage. 7.1 It is in the affidavit that the respondents are relaxing the age as well as qualification. When the inspection was conducted by a team of Central Board of Secondary Education a number of employees were found to be overage or under qualified. The details of the same is filed along with the affidavit as Annexure P- 10. 7.2 The few examples are given by the petitioner that Mrs. Malvinder Kaur was appointed in July 2004 before the respondent No.2 School, Hemkunt Colony, New Delhi, as TGT at the age of 44 years. Further, one Mr. Beerjit Singh was appointed by the School as TGT Music on 29.9.2004. When an objection was raised during inspection by CBSE in the year 2004 as he was not qualified, his services were terminated and subsequently he was appointed as a caretaker in the school. After he qualified the diploma from Prayag Sangeet Samiti, Allahabad, he was again appointed as TGT (Music) and shifted from the post of caretaker to TGT (Music) by the Principal on 10.11.2005. 7.3 Similarly, Ms. P.K. Sandhu was appointed by the school as Computer Instructor on 15.9.2003 at the recommendation of President of respondent No.1 and on inspection it was found that she was not qualified and was overage. Later on she was put on the post of LDC. W.P.(C) No. 354/2010 & ors. Page 11 of 30 7.4 The petitioner has given many examples of similar nature about the appointments of the employees by the respondents No.1 and 2 in paras 9 to 23 of her affidavit in order to show that most of the employees were not qualified, overage and were appointed as per choice of respondents No.1 and 2. 8. Learned counsel for the petitioners has also filed various documents/letters which indicate the details of the appointments on probation/confirmation of the employees of the respondents in order to show irregularity on the part of the respondents during the course of the hearing. It appears from the said documents that various appointments/relieving orders were passed by the schools under the signature of Principals or on behalf of General Secretary/Chief Administrator of respondent No.1. 8.1 Few of the letters issued by the respondent No.1 to the Principals/Chairmen of all Guru Harkrishan Public Schools under the Management of respondent No.1 dated 21.6.2006 and 30.6.2007 read as under: (a) Letter dated 21.6.2006 issued by the respondent No.1: “To The Principals/Chairmen All Guru Harkrishan Public Schools Under the management of Delhi Sikh Gurdwara Management Committee It has been observed that many schools are making appointments/confirmations/promotions of staff at their own level. Henceforth, no appointment/promotion/ confirmation should be made without obtaining the prior approval of the President/General Secretary- DSGMC. (b) Letter dated 30.6.2007 issued by the respondent No.1: “To The Principal All Guru Harkrishan Public Schools, Under the management of W.P.(C) No. 354/2010 & ors. Page 12 of 30 Delhi Sikh Gurdwara Management Committee. Dear Sir/Madam In view of the problem of surplus staff being faced in our schools resulting in abnormal financial crises and prolong legal battle. It has been decided that no new recruitment of staff in your school be made until it is conformed that the required staff is not available in any other branch that can be adjusted against that required post. No new appointment would be made without the prior permission of the President and General Secretary, Delhi Sikh Gurdwara Management Committee. Any action in violation will attract recovery of the salary of the new appointment from the account of the Principals/Incharge concerned.” 9. It is argued by the counsel for the petitioner that the employment of the petitioners, whether confirmed or on probation, cannot be terminated by passing a resolution without being given a show cause notice and affording any opportunity of being heard is in violation of principles of natural justice. He has referred to Harbanslal Sahnia & Anr. Vs. Indian Oil Corporation Ltd. & Others, AIR 2003 SC 2120 and State of HP Vs. Gujrat Ambuja Cement Ltd., AIR 2005 SC 3936. In Harbanslal Sahnia & Anr. (supra) it was laid down: “in an appropriate case, inspite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is a failure of the principles of natural justice or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act and is challenged”. In State of HP (supra) it was held: “when the impugned order has been made in violation of the principles of the natural justice, and where the proceeding itself are an abuse of the process of law, the High Court in an appropriate case can entertain a writ petition.” 10. The contention of the petitioners is that the orders of W.P.(C) No. 354/2010 & ors. Page 13 of 30 termination of service of the petitioners are illegal, malafide, arbitrary and without any jurisdiction. Hence, prior to filing these writ petitions, they filed the appeals against the said orders of termination under Section 8(3) of Delhi School Education Act, 1973 before the Delhi School Tribunal being Appeals No.38 to 47/2009. 11. After hearing the parties, Delhi School Tribunal allowed the appeals of the present petitioners by passing judgment on 30.11.2009 against the respondents. The operative part of the findings are given in para 36 which reads as under: “36. There is no doubt that a duly constituted Managing Committee has every right to manage and run the affairs of the Respondent No.1 as per applicable provisions of law. It is also not in doubt that a duly constituted Managing Committee has a right to take action against the teachers/employees who are either not qualified or on any other legal and valid ground as per law. There was no duly constituted Managing Committee of Respondent No.1 School on the date of passing of the impugned orders and as a result thereof, impugned orders against the Appellants were not passed by a duly constituted Managing Committee. Hence, the said orders cannot be sustained in the eyes of law.” 12. The prayer sought by the petitioners in the first set of writ petitions is as respondents No.1 and 2 are not implementing the judgment passed by the Delhi School Tribunal by not reinstating the petitioners, hence, this Court may pass the appropriate orders for reinstating the petitioners in service and also quash the letter No.3751/2-5 dated 15.5.2009 issued by the Chief Administrator, Delhi Sikh Gurudwara Management Committee and Office Order No.5468/11-13 dated 19.6.2009 issued by the President, Delhi Sikh Gurudwara Management Committee as the said act of the respondents is illegal, malafide, arbitrary and the orders passed against the petitioners on different dates i.e. dated 04.07.2009, 13.07.2009 and 15.07.2009 be quashed. W.P.(C) No. 354/2010 & ors. Page 14 of 30 13. The case of the respondents is that the respondent No.1 is a Statutory Authority/Committee, known as Delhi Sikh Gurudwara Management Committee, constituted under Delhi Sikh Gurudwara Management Act, 1971 and is governed by he said Act and the Delhi Sikh Gurudwara Management Committee Rules. 14. The respondent No.1 committee is looking after the management, administration and control of various Gurudwaras in Delhi including Bangla Sahib Gurudwara, Gurudwara Sis Ganj Sahib, Shri Rakab Ganj Sahib, Gurudwara Mata Sundri and various other Gurudwaras situated in Delhi. 15. The respondent No.1 is also running various hospitals, dispensaries, schools and other educational institutions. The hospitals include Guru Harkrishan Hospital, Bala Sahib, Guru Har Krishan Hospital, Bangla Sahib, and various others. The educational institutions include SGTB Khalsa College, Mata Sundri College, Guru Gobind Singh College of Commerce, affiliated to the University of Delhi. There are various other institutions, polytechnics, institutes of electronics, engineering college etc., which are being run by the respondent No.1. 16. On merit following are the contentions of the respondents No.1 and 2: (i) That the respondent No.2 school is a minority institution managed by respondent No.1 under the provisions of Delhi Sikh Gurudwaras Act, 1971. Article 30(1) of Constitution of India provides for right of minorities to establish and administrate educational institutions of their choice. Thus, the Tribunal had no jurisdiction to entertain the appeals filed by the petitioners. W.P.(C) No. 354/2010 & ors. Page 15 of 30 (ii) The petitioners were on contractual appointment as per Regulation III (1) (iii) of the Regulations who were later on confirmed to the permanent posts without any authority. Even otherwise, the services of the petitioners can be terminated by giving three months notice or pay as per contract without assigning any reason. (iii) As petitioners were appointed without authority of law, the respondent No.1 within its right vide Resolution dated 19.6.2009 resolved that all the promotions/ confirmations/appointments made through the period from 9.2.2007 to 9.5.2009 were illegal as they were appropriated wrongly. (iv) Delhi School Education Act, 1973 is not applicable to the schools operated and managed by respondent No.1. In the Contract of Service of the petitioners there is an arbitration clause for settlement of disputes. Thus, the Tribunal had no jurisdiction to entertain the appeals filed by the petitioners. (v) Further contention is that the petitioners were illegally appointed as the said posts were never advertised nor any approval was sought from the Management Committee which has the exclusive right of making the appointments. In case the Delhi School Education Act, 1973 would be made applicable to the School Management, then provisions of Delhi Sikh Gurudwaras Act, 1971 would become redundant. (vi) As regards the respondent No.2 school is concerned, it was contended that since a Resolution dated 19.6.2009 W.P.(C) No. 354/2010 & ors. Page 16 of 30 was passed by the respondent No.1, the respondent No.2 is bound by the orders passed by the respondent No.1. As the appointments of the petitioners were not made in accordance with the Rules and Regulations, the termination orders were rightly passed against the petitioners. 17. It is also contended that the petitioners had joined the service with the respondent school on clear understanding that their services are purely temporary and can be terminated without any notice before the expiry of course of their employment. As their services are no further required in the fresh session, the same were terminated. 18. Learned counsel for the respondents No.1 and 2 has referred to Section 15 of Delhi School Education Act and Rules, 1973, which deals with the Contract of Service. 19. The submission of the respondents, that even if conditions prescribed under Section 15(2) of Delhi School Education Act, 1973 for registering the contract of service is not complied with, the service conditions shall be governed by the Contract of Service, has no force as Chapter XI of Delhi School Education Rules, 1973 deals with recruitment, minimum qualifications, power to relax the qualification and executing Contract of Service and its registration. 20. The following are the main grounds for challenging the judgment dated 30.11.2009 by the respondents No.1 and 2 are: (a) That the Tribunal has acted in excess of its jurisdiction and has committed grave and material irregularity while passing the judgment. W.P.(C) No. 354/2010 & ors. Page 17 of 30 (b) There was no ground on the part of the petitioners to challenge the recognition of the school in their appeals filed under Section 8(3) read with Section 11 of Delhi School Education Rules-1973. (c) It is submitted that the Tribunal has failed to appreciate that the main grievance of the petitioners before the Tribunal was about the termination of service. However, the Tribunal has given the judgment on imaginary grounds which were not agitated or raised by the petitioners in their appeals. (d) The petitioners could not even otherwise challenge the procedural irregularity in the constitution of Management Committee of the School in their appeals as the same could be corrected at any time. (e) The finding of the Tribunal is erroneous when it is held that the contract of service, if any, between the petitioner and respondent No.1 is to be registered as per Rule 130 of the Delhi School Education Rules, 1973. There is no illegality in the Management Committee of the respondent No.1 and the observations made by the Tribunal is without any basis and contrary to the Rule 59(3) of Delhi School Education Rules, 1973. 21. It is not disputed by the respondents that the contract of service with the petitioners and respondent No.2 was not registered as provided in Section 15(2) of Delhi School Education Act, 1973 W.P.(C) No. 354/2010 & ors. Page 18 of 30 read with Rule 130 of Contract of Service. The justification given by the counsel for the respondents is that the respondent No.2 school is a minority institution. Since the provisions of Delhi Sikh Gurudwaras Act, 1971 would apply, they have the rights to establish and administrate education institutions as per their choice under the Act. Therefore, the appeals filed by the petitioners before the Tribunal were not maintainable. 22. No doubt, the schools run by the respondent No.1 is a minority school, but there is no force in the submission of the respondents in view of the judgment of the Apex Court in the case of Frank Anthony Public School Employees’ Association Vs. Union of India and Others, AIR 1987 SC 311, wherein in paras 13, 16 and 18 it has been held: “13… The right guaranteed to religious and linguistic minorities by Art. 30(1) is two fold, to establish and to administer educational institutions of their choice. The key to the Article lies in the words “of their own choice”. These words indicate that the extent of the right is to be determined, not with reference to any concept of State necessity and general societal interest but with reference to the educational institutions themselves, that is, with reference to the goal of making the institutions “effective vehicles of education for the minority community or other persons who resort to them”. It follows that regulatory measures which are designed towards the achievement of the goal of making the minority educational institutions effective instruments for imparting education cannot be considered to impinge upon the right guaranteed by Article 30(1) of the Constitution. The question in each case is whether the particular measure is, in the goal, without of course nullifying any part of