VALMIKI J. MEHTA, J

W.P.(C) No. 10398/2004

1. This writ petition is filed under Article 226 of the Constitution of India by the petitioner/Sh. Shiv Sharma seeking relief of being regularized to the post of Physical Education Teacher (PET), in the respondent no.2/Air Force Senior Secondary School. The case of the petitioner is that he was appointed in August, 1993 with the respondent no. 2/school as a Physical Education Teacher (PET) on ad hoc basis and the petitioner was paid a consolidated amount by the respondent no. 2/school. In July, 1995 the petitioner was put in the pay scale of Rs. 850/- and which pay scale kept on increasing from time to time. Petitioner claims benefit of the ratios of the judgments delivered by this Court in the cases of Hamdard Public School Vs. Directorate of Education and Anr. 202 (2013) DLT 111 and Army Public School and Anr. Vs. Narendra Singh Nain and Anr. in W.P.(C) No.1439/2013 decided on 30.8.2013 and ratios of which judgments holds that schools cannot commit fraud on statutory protection given to a post in a school in Delhi and which appointment has statutory favour in terms of the judgment of the Supreme Court in the case of Management Committee of Montfort Senior Secondary School Vs. Vijay Kumar and Others, (2005) 7 SCC 472. Accordingly, it is argued that since in terms of ratios of the judgments of this Court in the cases of Hamdard Public School (supra) and Army Public School (supra) when the petitioner completed three years of service after his first joining with the respondent no. 2/school, petitioner should be then regularized in the post of PET.

2. The relevant observations of this Court are given in paras 3 to 8 in the case of Army Public School (supra), and these paras 3 to 8 read as under:-

“3. On the basis of the admitted facts: in the form of various appointment letters and the termination letters which have been issued by the petitioner-school as detailed above; the provision of Rule 105 of the Delhi School Education Act & Rules, 1973; the judgment delivered by me in the case of Hamdard Public School Vs. Directorate of Education and Anr. in W.P.(C) No.8652/2011 decided on 25.7.2013 interpreting Rule 105; and, the judgment of the Supreme Court in the case of Management Committee of Montfort Senior Secondary School Vs. Sh. Vijay Kumar and Ors., (2005) 7 SCC 472 read with Division Bench judgment of this Court in the case of Social Jurist, a Civil Rights Group Vs. GNCT & Ors. 147 (2008) DLT 729, the issues which arise, and on which counsel for the parties have been heard, are first as to whether the respondent No.1 at all can be said to only be a contractual employee in terms of the first contractual appointment letter dated 3.12.2007 or whether the employment of respondent No.1 since inception in the peculiar facts of this case would have a statutory favour in view of the provisions of the Delhi School Education Act and Rules, 1973, and secondly as to whether the actions of the petitioner-school amount to over-reach the provision of Rule 105 and is, therefore, against the ratio not only of the categorical language of Rule 105 but also the ratio of the judgment passed by me in the case of Hamdard Public School Vs. Directorate of Education and Anr. (supra). The following issues are, therefore, crystallized for decision by this Court:

(i) Should the respondent No.1’s services in the facts of this case be not taken as having statutory protection in terms of the Delhi School Education Act and Rules, 1973 since the original date of the contractual appointment in terms of letter dated 3.12.2007. Related with this issue would be whether the respondent No.1 is estopped from challenging the nature of appointment as contractual inasmuch as respondent No.1 thereafter accepted services first as a probationer and thereafter again on contractual basis.

(ii) Whether all the appointment letters, whether giving contractual appointment or as appointment on probation, have to be read in their substance and

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