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2013 Supreme(Del) 1158
High Court of Delhi
VALMIKI J. MEHTA, J.
ST. Anthony’s Senior Secondary School, New Delhi
Versus
Radhika Sharma & Another
W.P.(C) No. 6548 of 2008
Decided On : 10-09-2013
For the Petitioner:P.P. Khurana, Sr. Adv. With Jaideep Bedi, Advocate.
For the Respondents:Arvind Nayar, Pradeep Kumar, Zartab Anwar, Advocates.
The main legal point established in the judgment is that Rule 105 of the Delhi School Education Act and Rules, 1973 does not provide for automatic confirmation of services and emphasizes the need for a reasonable probation period.
Headnote:
Probation - Termination of Services - Rule 105 of the Delhi School Education Act and Rules, 1973 - The judgment discusses the interpretation of Rule 105, which provides for the probation period of teachers and the termination of services. The court held that Rule 105 does not provide for a maximum period of probation or automatic confirmation in service. It also emphasized that the probationary period of teachers cannot continue indefinitely and should ordinarily be around three years, not extending beyond five years in most cases.
Fact of the Case:
The respondent was appointed on a temporary basis for a fixed period of one year, which was later extended. The petitioner-school terminated the respondent's services during the extended probation period due to unsatisfactory performance.
Finding of the Court:
The court found that there was no deemed confirmation of services and rejected the argument of satisfactory completion of probationary services. It upheld the termination of the respondent's services.
Issues: The issues included whether the respondent's services should be considered as having statutory protection, the nature of the respondent's appointments, and the termination of services during the probation period.
Ratio Decidendi: The court held that there was no automatic confirmation of services and that the respondent's services were not satisfactory during the probation period. It also emphasized the need for a reasonable probation period and the absence of a maximum period of probation in Rule 105.
Final Decision: The writ petition was allowed, and the impugned order of the Tribunal was set aside. The termination letter issued to the respondent was upheld, and the parties were left to bear their own costs.
Valmiki J. Mehta, J.
1. By this writ petition the petitioner-school impugns the judgment of the Delhi School Tribunal dated 30.7.2008. By the impugned judgment the Tribunal has accepted the appeal filed by the respondent no.1 herein and set aside her dismissal order dated 15.5.2008 passed by the petitioner-school. The dismissal order dated 15.5.2008 was passed observing that the respondent no.1 did not perform satisfactory services during the period of probation and therefore her services were terminated.
2. The facts of the case are that the respondent No.1 herein was first appointed on temporary basis for a fixed period of one year on account of exigencies of work. This letter though does not bear the date, it is agreed before me that the same is dated 16.3.2005. The first two paras of this letter reads as under:-
“This has reference to your application seeking appointment as a temporary Teacher and subsequent interview on 07.03.2005. We here by appoint you as a temporary teacher for a fixed period of one year 16.03.2005 to 15.03.2006. Your monthly salary would be Rs.9,000/- all inclusive. You will not be entitled to any paid leave during this period.
Please note that this vacancy has occurred due to exigencies of work and is for a fixed period of one year only. Unless terminated earlier, your services will automatically come to an end upon completion of the fixed period. The School Management can also terminate your services at any time earlier than the specified period by giving one month’s notice or salary in lieu thereof. Upon expiry of the fixed period of service or upon the termination of your services at any time earlier, you shall neither have any lien on the temporary post held by you nor any right for absorption on the rolls of the school.”
3. Respondent No.1 was thereafter appointed on probation in terms of the Service Agreement dated 3.7.2006, and an Appointment Letter of the same date. Paras 1,3 and 4 of the appointment letter read as under:-
“1. You will be on probation for a period of one year, in the first instance, from the date of your joining duty. This period of probation will be liable to such extensions as the school may deem fit in its sole discretion. Unless an order in writing confirming your appointment is issued by the school, you will not be deemed to have been confirmed in service but you shall continue as a probationer. During the period of probation or any extension thereof, your employment will be subject to termination by one month notice or payment of one month salary in lieu thereof, without assigning any reasons. Similarly you may resign from the services after giving one month’s notice or salary in lieu thereof.
3. On Confirmation of your services by the school you will be entitled to the benefits as available to confirmed employees according to Rules.
4. After confirmation of your services, your employment will be subject to termination without assigning any reason on three month’s written notice on either side or payment of three month’s salary in lieu thereof.” (underlining added)
4. While extending the period of probation for one year, the petitioner-school vide its letter dated 5.10.2007 informed the respondent No.1 that her services were not up to the mark and that respondent No.1 needed to make efforts to improve her performance. This letter again specifically mentions that unless confirmation is in writing, respondent No.1 will continue to remain on probation.
5. During the extended period of probation, which was of one year from 3.7.2007, the respondent No.1 was served with a letter dated 24.3.2008 by the petitioner-school with regard to her unsatisfactory services, and this letter reads as under:-
“To
Ms. Radhika Sharma
TGT (Hindi)
B-82, Sarvodaya Enclave
New Delhi 110 017
Sub: Observation regarding work.
Dear Madam,
You have been appointed on probation w.e.f. 03/07/2006 for a period of one year which was extended for another period of one year w.e.f. 03/07/
