WP (C) No.4277/2010 Page 1 of 20 * HIGH COURT OF DELHI : NEW DELHI + WP (C) No.4277/2010 Shalu Kataria ......Petitioner Through: Mr. M.A. Niyazi, Adv. with Mr. Manish Kumar, Adv. Versus Director of Education & Ors. .....Respondents Through: Mrs. Naresh Bakshi, Adv. with Mr. Ankur Chhibber, Adv. Judgment reserved on : 05.08.2010 Judgment decided on : 03.12.2010 Coram: HON'BLE MR. JUSTICE MANMOHAN SINGH 1. Whether the Reporters of local papers may be allowed to see the judgment? No 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 way of present writ petition, the petitioner has sought quashing the oral termination order dated 21.06.2010 issued by the respondent No.3 to the petitioner and further issue writ, order or direction directing the respondent Nos. 2 &3 to issue appointment letter in favour of the petitioner for her appointment on the regular post of TGT (English) in respondent No.3 School on the basis of combined Screening Board (CSB) exam held on 13.01.2008 and interview in the month of February 2008. 2. The brief facts in nutshell, inter alia, are that the respondent No. 3 in December 2007 advertised vacancies in different Army Public Schools in Delhi/NCR for PGT/TGT/PRT in various subjects on the basis of All India Written Test and interview WP (C) No.4277/2010 Page 2 of 20 and teaching demonstration (interview and teaching demo for successful candidates of written exam). 3. The petitioner filled up the form and applied for TGT (English). 4. The petitioner received the admit card for written examination for TGT English which was to be held on 13.01.2008. 5. The petitioner qualified the written examination for TGT English and received the score card alongwith interview call letter dated 14.02.2008 for interview of TGT English to be held on 23.02.2008. The petitioner was selected. 6. As per the petitioner, her selection as TGT(English) was done by the respondents in consonance with Rule 96 of the Delhi School Education Rules, 1973 and the selection Committee, in accordance with the procedure applicable for selection, carried out the selection process and selected the petitioner as TGT(English). The petitioner qualified the interview and was finally selected as TGT (English). In the last week of July, she was telephonically asked to join the service in respondent no.3 school from 01.08.2008. Accordingly, she joined the school on 01.08.2008. She was given the appointment letter dated 14.08.2008 which illegally mentioned that she was appointed as PRT for a specific period from 01.08.2008 to 31.03.2009 as teacher(term Based) in respondent No.3 School on a consolidated salary of Rs. 12,423/- per month. 7. According to the petitioner when she inquired from the respondent No.3 regarding her appointment as PRT instead of TGT and tenure of appointment, she was told by the respondent principal of the School that she would soon be appointed/promoted WP (C) No.4277/2010 Page 3 of 20 as TGT(English) and her appointment has been made for a term based/contractual as probation and after completion of the said term/probation, she would be appointed as regular TGT (English). 8. The petitioner was given appointment letter dated 14.08.2008 for term based teacher for PRT instead of TGT English and for a fixed tenure. Her tenure was from 01.08.2008 till 31.03.2009. The petitioner was given teaching assignment again from 16.04.2009 till 15.05.2009 when the school closed for summer vacation. 9. After summer vacation she received another appointment letter dated 10.08.2009 wherein it was stated that her term of appointment as PRT was from 08.07.2009 till 31.03.2010. She was again asked to join her assignments from 08.04.2010 till 15.05.2010 when the school was closed for the summer vacation. According to the petitioner, from the perusal of the aforesaid selection procedure devised by respondents, it is evident that the CSB selection procedure is for the appointment of TGT/PGT whether through fresh applications or for those who are already employed on ad hoc basis. In the present case, the record produced by the petitioner shows that she qualified the CSB test and also the interview in the year 2008. Clause 24 of the regulations of the selection of teachers‟ guideline clearly states that “TGTs selected through CSB will be on probation for 1 year, which may be extended upto maximum 2 years. Thereafter their appointment will stand confirmed”. The petitioner admittedly worked in the respondent school from 01.08.2008 to 15.05.2010. 10. The petitioner further stated that that on the last day of the school before summer vacation i.e. on 15.05.2010 she was told WP (C) No.4277/2010 Page 4 of 20 that her status as regular teacher would be confirmed and the same would be intimated to her. With this impression in mind the petitioner kept on waiting for the confirmation letter as TGT (English) but on 21.06.2010 she was telephonically informed by respondent No.3 that she is no more required in the school from the next session i.e. from 28.06.2010. 11. The petitioner has stated that in these two years the salaries of the summer vacation was not given to her and she was asked to wait for a suitable decision from the respondent No.2 society. 12. According to the petitioner the period for which she had been kept as a term based/ contractual teacher ought to have been treated by the Respondents 2 & 3 as probation and she ought to have been confirmed as TGT (English). 13. Being aggrieved by the impugned order of the termination dated 21.06.2010, the petitioner has filed the present writ petition. 14. Learned counsel for the petitioner submits that since the respondents have not passed order of her removal and termination order was issued by the respondent No.3 school on telephone, an appeal was therefore not maintainable in the absence of written order. Therefore, the present writ petition is maintainable. 15. The petitioner placed reliance on the judgment dated 24.09.2007 in W.P. (C) No.4412/2005 Ms. Swapna Sood vs. Director of Education and Ors. It was contented that the facts of the above case are almost similar to her own case and the in this case the respondent has been directed to issue an appointment letter in favour of the petitioner by the Court. The WP (C) No.4277/2010 Page 5 of 20 order passed in the matter has become final as the order passed in the case of Ms. Swapna Sood was not challenged by the respondents who are the same in the present case. 16. The respondent Nos. 2 & 3 in their counter affidavit stated that the service condition of the petitioner is governed by the Army Welfare Education Society which is a registered body under the society Registration Act XXI of 1860 by Registrar of Societies Delhi vide Certificate No. S/13459 dated 29.04.1983 for the purpose of establishing/ running Army Schools, Army Public School. 17. It is alleged in the counter affidavit that petitioner was appointed on contractual basis and therefore she cannot seek regularization of her appointment as there is no regular vacancy, further her performance was not good in the teaching demo and therefore she was given PRT instead of TGT, further the petitioner herself admitted in her letter while seeking extension for services that she was a PRT and on contractual basis. The respondent Nos.2 and 3 have admitted that the petitioner did not make an application for PRT teacher although it is denied that in the application letter, it was mentioned with reference to petitioner‟s application for the post of PRT. 18. Respondents No.2 & 3 placed reliance on the judgment Seema Maheshwari vs. Directorate of Education, 114(2004) DLT 291 in support of their argument, wherein it has been held that DPC of private unaided school are always free to adopt their own procedure to fill up the vacancy. 19. The respondent No.2 & 3 has further placed reliance on the few judgments and contented that the respondent school is a WP (C) No.4277/2010 Page 6 of 20 school run by the society and an employee who was recruited by the society but posted in the school run by the society did not become the employee of the school even though the society had adopted the code of conduct contained in rule 123 and 124 (Samarth Siksha Samiti Another vs. Bir Bahadur Singh Rathour and Ors. (2009) 3 SCC 194) And also where in the service rule or in the letter of appointment a period of probation is specified and power to extend the same is also confirmed upon the authority without prescribing any maximum period of probation and if the officer is continued beyond the prescribed or extended period, he cannot be deemed to be confirmed. 20. Hence as per respondent Nos. 2 and 3 there is no bar against termination at any point of time after expiry of the period of probation. (Commissioner of Police, Hubli and Another vs. R.S.More (2003) 2 SCC 408). The Respondent Nos. 2& 3 further reliance upon the judgment of the Hon‟ble Supreme Court in Secretary, State of Karnataka and Ors. Vs. Umadevi (3) and Ors. (2006) 4 SCC 1. 21. The respondents submits that among the other candidates, the petitioner was ranked No. 8 and thus she was only recommended for the post of PRT which she gladly accepted. The respondent further submitted that she worked for 2 years on the post of PRT therefore, the petitioner can not claim for the regular Post of TGT (Eng). 22. It is also contented that though the petitioner qualified the written examination and was issued the admit card and petitioner was directed to conduct a class for duration of 40 minutes for evaluation of teaching skill vide letter dated WP (C) No.4277/2010 Page 7 of 20 14.02.2008 and the petitioner was found fit for the selection for the post or PRT. 23. The respondent also referred to the representation of the petitioner dated 20.02.2009 making a request to continue as PRT admitted that she was selected by the board of officers for the post of PRT in Army Public School/respondent No.3. 24. In this regard petitioner in her rejoinder stated that had the contention of the respondents been correct and assuming that the petitioner was on contractual appointment, then there was no occasion for the respondents to throw the petitioner during the summer vacation by oral termination when there was no complaint/dissatisfaction of her performance and at the same time to appoint 4 new teachers for PRT. 25. The petitioner stated that the respondents can not take any advantage of the representation dated 20.02.2009, which the petitioner was made to write at the instance of the respondents on the format given by the respondent school itself. 26. The petitioner further stated that she duly qualified the written exam as well as interview and as per the provisions of the rule 96 of Delhi School Education Act and Rules 1973 and therefore the said letter written by the petitioner at the instance of the respondents has no meaning and it is irrelevant for the purpose of adjudication of the issues involved in the present case which is that the petitioner who qualified and selected for the TGT (English) regular post is entitled for the said regular post and was illegally given the contractual appointment that too in PRT which was accepted by the petitioner in view of the assurance of the respondent No. 3. WP (C) No.4277/2010 Page 8 of 20 27. In view of the above said position, the precise question to be answered by this Court is as to whether the petitioner was lawfully and validly selected in term of selection procedure/ schemes/regulations or not? 28. I have considered the submissions made by the learned counsel for the parties at the bar and have also carefully perused pleadings and documents filed by the parties. 29. The guidelines/standing operating procedure circular No.006/school/2004 and rule book of respondent No.2 school for the selection of teachers through CSB and LSB are reproduced below:- “Conduct of Combined SCREENING BOARD (CSB) & LOCAL SCREENING BOARD (LSB) o CSB is conducted once every year for the following categories:  For fresh applicants of PGTs, TGTs & PRTs.  For PGTs/TGTs/PRTs appointed earlier on ad hoc basis.  For teachers seeking higher grade i.e. PRT to TGT and TGT to PGT. (PGTs stand for the post graduate teachers, TGT for trained graduate teachers and PRT for primary teachers) LSB (LOCAL SCREENING BOARD) LSB is conducted every year for the following categories: # PRTs (Primary Teacher) # Adhoc teachers employed as TGTs or PGTs (those who could not be screened through CSB) # Activity Teachers- through LSB without written test. Procedure in Outline  CSB and LSB is conducted in three stages as under:- WP (C) No.4277/2010 Page 9 of 20 Written Test (200 Marks). Interview (200 Marks) Teaching Skills (200 Marks)- for short listed candidates after interview Written Test Qualifying in the written test only makes you eligible for a panel interview. (a)Part A (common for PGT/TGT/PRT) General Awareness, Mental Ability, English Comprehension, Educational concept And methodology 90 min (0930- 1100h) PGT& TGT- 80 Marks PRT 200 marks Objectiv e type Q Paper using QMR (b) Part B (PGT & TGT) Subject Specific (less English & Hindi 2hrs (1130- 1330hrs 120Marks Objective Type Q paper Using QMR (c) Part B Languages (PGT & TGT) English, Hindi 2 hrs (1130- 1330 hrs 120marks 90 marks objective 30 marks descriptive To qualify you must score 50% in Each part „A‟ and „B‟ (PGT & TGT and part A ONLY(PRT). “PGT/ TGT Qualifying in part A entitles you for a PRT „Score Card‟.” The CSB and LSB procedure are further defined in the guidelines and the same are also reproduced as under:- “12. Category. CSB will be for following category of teachers:- (a) For PGTs/TGTs who were earlier employed an Adhoc basis. (b) For fresh applications of PGTs/TGTs. (c) For up gradation of PRTs in TGTs and TGTs in PGTs. 13. CSB (interviews) will be conducted from 15-21 feb. This will consist of two or more Boards per Command WP (C) No.4277/2010 Page 10 of 20 making cludters at sub area/Area/Div/Corps level. If a School is located in distant and isolated place, Comd. HQ may have a separate board exclusively for that School, eg. Srinagar, Dinjan. 14. Convening of CSB. HQ Commands will be responsible for canvenning requisite no of CSBs based on their cluster of Schools. 15. Composition (CSB). Presiding officer- Brig Members- All Principals, Eminent Educationalist, Subject Expert and Psychologist(desirable). Notes: 1. All principals of the cluster will be members, however, only two will sit in for any interviews; Out of these two, one Principal must be of the school for which the particular candidate is being interviewed. 2. For CSB having only one school i.e. only one principal the second Principal will be invited from any local school. 16. Interview. Each CSB will conduct the interview in one location. In the interview following aspects should be evaluated:- (a) Confidence and ability to communicate. (b) Knowledge and clarity of concept (c) Ability to Contribute to extra circular activities. (d) General Awareness. (e) Computer literacy (f) Experience (g) Attitude (h) Whether teacher has the requisite QR. (i) Emotional balance and stability. 17. Merit List & Weightages (a) Written Test- 200 marks (b) Interview- 200 marks WP (C) No.4277/2010 Page 11 of 20 18. A candidate must score 50% marks in written test (Aggregate of two papers) to qualify for interview. In interview also minimum qualifying percentage is 50. A candidate qualifying both in written test and interview will be approved. Merit list will be made taking both the written test and interview in consideration. Appointment will made based on the merit list. Those approved but not in merit will be kept in the reserve panel. In case an approved candidate does not join or a vacancy occurs in mid session, candidates from this panel may be appointed. The reserve panel will remain effective for current academic session only. 19. Format for preparing Merit Sheet as per Appx „B‟. 20. Appointing Selected Teachers. Presiding officer of CSB will send Bd proceeding to reach HQ Comds ans respective Chairman by 05 Mar. HQ Comd will confirm the proceeding by 15 mar. Chairman may issue appointment letters w.e.f. 20 Mar even if confirmation from HQ Comd has not been reed. LSB. 21. LSB will be for following category of teachers:- (b) Primary Teachers (PRTs). (C) Adhoc Teachers employed as TGTs or PGTs (those who could not be screened through CSB). (d) Activity Teachers- through LSB without written test. 22. It will be conducted and composed similar to CSB, except Presiding Officer who may be of the rank of colonel if necessary. Written paper will be prepared by SMC. 23. LSB will be conducted in the period May- Jul, after CSB has been completed. Screening will be organized by School Mgt. Committee. The procedure will consist of local advt., shortlisting written test, interview and appointment of teachers. Other Instructions 24. TGTs selected through CSB will be on probation for 1 year, which may be extended upto maximum 2 years. Thereafter their appointment will stand confirmed. 25. A TGT, if qualified, may be upgraded to PGT after screening through a CSB for PGT selection (i.e. incl. written test). WP (C) No.4277/2010 Page 12 of 20 26. Similarly a PRT, if qualified may be upgraded to TGT after screening through a CSB or TGT selection (i.e. incl. written test). 27. A candidate who has been found fit by CSB will not have to appear for written test again if he/ she applies for another school. However, they will be put through interview to finalize the inter se merit. In such cases their merit position new School will be decided based on the marks of the marks of interview. 28. If a candidate has worked as a TGT/ PGT in a Kendriya Vidalaya/ Navyug Vidalayas for three years, he/she can be considered for direct enrolment without going through CSB. This discretion rests with SMC. 29. For those who are initially employed as Adhoc teachers after LSB and are subsequently selected by CSB, the Adhoc period will be considered as on probation. Even in such cases they will be under probation for a minimum period of 6 months as regular teacher.” 30. From the perusal of the abovementioned procedure/ regulations of selection of the teachers, the score-card and admit card indicates that the selection of the petitioner as TGT (English) was conducted by the respondent as per the provisions of Delhi School Education Act and rules as well as through CSB written and interview and the period for which petitioner kept as term based/contractual ought to have been treated by the respondents as probation and she ought to have been confirmed as TGT (English). 31. In case of unaided school following category of members constitutes a selection Committee:- “96 (3)(b) in the case of an appointment of a teacher (other than the head of the school): (a) The chairman of the managing committee or a member of the managing committee nominated by the chairman; (ii) The head of the school. (iii) In the case of a primary school, a female educationist having experience of school education; WP (C) No.4277/2010 Page 13 of 20 (iv) In case of an aided school, one educationist to be nominated by the Director, and one representative of the Director; (v) In the case of appointment of a teacher for any class in the middle stage of any class in the higher secondary stage, an expert on the subject in relation to which the teacher is proposed to be appointed, to be nominated, in the case of an unaided school by the managing committee, or in the case of an aided school, by the director.” 32. The respondent Nos.2 and 3 had brought records of the selection process in the Court on 29.7.2010. It appears that there was one vacancy i.e. for appointment of TGT English and not for PRT. As per records all the officials/selection committee who were present in the selection of teachers and the said selection committee was in consonance and conformity of Rule 96 of the Delhi School Education Act and Rules 1973. The record of the said selection documents no where mentions that the said selection was for contractual appointment. 33. The counsel for the respondent Nos.2 and 3 on specific query by this court admitted that for selection of contractual/term based/adhoc teachers, the selection process which was adopted in the case of the petitioner was not adopted and there is different procedure to appoint the teacher for selection of any contractual/term based/adhoc teachers as the same appointments are made by the Principal of the school without the presence of other members of selection committee. 34. As per record made available by the respondents of the selection process, the petitioner was duly selected in CSB written as well as interview for the regular vacancy of TGT (English). The composition of selection committee was in consonance and conformity of Rule 96 of the Delhi School Education Act and Rules WP (C) No.4277/2010 Page 14 of 20 1973. The learned counsel for the respondent Nos.2 and 3 has not denied the fact that the selection process which the petitioner had undergone is not the same for the appointment of contractual/ adhoc/term based teachers. 35. The clause 30 of the selection procedure of teachers through CSB and LSB reads as under : “Contract Teachers 30. If a suitable teacher is not available after CSB/LSB or a vacancy has been created in mid academic session which must be filled immediately, SMC should appoint teachers on contract till the completion of academic session. For such teachers SMC can fix a pay scale, not more than what is applicable to regular teachers.” 36. In view of the above, it is evident that the selection of the petitioner was done for regular appointment of TGT (English) but it appears from the record provided by the respondent No.2 and 3 that later on the respondents had changed their mind and put the petitioner in contractual appointment in PRT which is accepted by the petitioner may be under compulsion or on the basis of alleged assurance given by the respondent Nos.2 and 3 but the fact remains that the respondent Nos. 2 and 3 had adopted same selection process which the petitioner had undergone is not same for the appointment of contractual and term based teachers as per clause 30 but the same was in consonance with Rule 96 of Delhi School Education Act and Rules for regular teachers. 37. As in the selection which was carried out for CSB/LSB all the members as envisaged under Rule 96 were present. I am of the view that the selection of the petitioner on the said post fulfills WP (C) No.4277/2010 Page 15 of 20 the entire essential requirement for the selection against the regular post of TGT (English). 38. In the case of Smt. Promila Dixit Vs. Govt. of NCT of Delhi & Ors. in WP (C) No.1234/2010 passed on 26.11.2010 this court held as under : “32. There is no res integra to the proposition that when the provision enacts the fiction in the given circumstances and if the same are satisfied, the necessary consequences flow from the said fiction must be given full effect as if the said things are real. It is, as noted above, a deeming provision. Such a provision creates a legal fiction. As was stated by James, L.J. in Levy, Re, ex p Walton, 1881 (17) Ch.D 746: “when a statute enacts that something shall be deemed to have been done, which in fact and in truth was not done, the court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to. After ascertaining the purpose full effect must be given to the statutory fiction and it should be carried to its logical conclusion and to