2022 Supreme(Del) 247

IN THE HIGH COURT OF DELHI AT NEW DELHI
Jyoti Singh, J.
Chairman, Arya Girls Senior Secondary School - Appellant
Versus
Director & Ors. - Respondents
W.P.(C) 6257 of 2011 & CM Appl. Nos. 12599 of 2011, 36872 of 2019 and 1238 of 2020
Decided On : 24-01-2022

Headnote:

Dismissal order of a probationer, on the ground of cheating, without holding an inquiry, is bad in law and violative of the principles of natural justice. Prior approval of the Director of Education is mandatory before terminating the services of a probationer, under the Delhi School Education Act and Rules. Reinstatement may not always be an automatic consequence of the Court declaring the termination to be illegal and each case would have to be viewed on its own facts and circumstances.

Fact of the Case:

Respondent No.2 was appointed as UDC in the School on 31.07.1993, on probation of one year, extendable by the Appointing Authority. On 14.02.1995, School passed a dismissal order and on the same day, FIR No.47/1995 was registered. Respondent No.2 contended that on account of his 'Good'/'Very Good' ACR, at the end of first year of probation period, in the absence of extension or extension without approval of the Director of Education, he stood confirmed, stand of the School is that the probation period was extended by another one year and there is no deemed confirmation in law. Respondent No.2 also contended that his services were terminated without holding any inquiry and in violation of principles of natural justice, including the lack of prior approval from the Directorate, as mandated under the provisions of the DSE Act and DSE Rules. It is a categorical stand of Respondent No.2 that the documents pertaining to his educational qualifications, relied upon by the School and alleged to be fake, were fabricated and forged by the School, as he had never submitted those documents. Respondent No.2 had submitted originals of genuine documents including his certificates and mark sheets from the school and degree from the University, where he had actually studied. Per contra, the stand of the Petitioner is that Respondent No.2 had submitted fabricated and forged documents pertaining to his educational qualifications, for seeking appointment and the appointment was void ab initio, requiring no inquiry by the employer. Since the very appointment was non est in law, School was not required to seek prior approval of the Director of Education under Rule 105(1) of the DSE Rules and thus, on both counts, the Tribunal has erred in quashing the dismissal order and granting reinstatement to Respondent No.2. The order of the Tribunal, according to the Petitioner, deserves to be set aside.

Finding of the Court:

1. Rule 105 of the DSE Rules provides that on initial appointment, every employee shall be on probation for a period of one year which may be extended by the Appointing Authority with the prior approval of the Director and the services of an employee may be terminated without notice during the period of probation if the work, and conduct of the employee, during the said period, is not, in the opinion of the appointing authority, satisfactory. 2. There is no concept of deemed confirmation of probation and as a general rule, save as expressly provided by a particular Rule to the contrary, only an order of confirmation, passed by the employer shall give to the employee the status of a confirmed employee. 3. Second Proviso to Rule 105(1) of the DSE Rules stipulates that no termination from service of an employee on probation shall be made by a school, except with the 'prior' approval of the Director of Education. 4. A dismissal order passed in violation of provision of second proviso to Rule 105(1) of DSE Rules, framed with the avowed purpose and objective of safeguarding the rights of probationers, cannot be upheld, as the salutary purpose behind the said safeguarding provision, can hardly be underscored. 5. Where the order is based on a misconduct and is 'founded' on allegations, it cannot be termed as an order of termination simpliciter and a stigmatic order passed without conducting an inquiry, will be vitiated. 6. An employee of a school has a statutory protection and his services cannot be terminated except by following due process of law.

Issues: 1. Whether the dismissal order of a probationer, on the ground of cheating, without holding an inquiry, is bad in law and violative of the principles of natural justice? 2. Whether prior approval of the Director of Education is mandatory before terminating the services of a probationer, under the Delhi School Education Act and Rules? 3. Whether reinstatement may always be an automatic consequence of the Court declaring the termination to be illegal?

Ratio Decidendi: 1. A dismissal order passed in violation of provision of second proviso to Rule 105(1) of DSE Rules, framed with the avowed purpose and objective of safeguarding the rights of probationers, cannot be upheld, as the salutary purpose behind the said safeguarding provision, can hardly be underscored. 2. Where the order is based on a misconduct and is 'founded' on allegations, it cannot be termed as an order of termination simpliciter and a stigmatic order passed without conducting an inquiry, will be vitiated. 3. An employee of a school has a statutory protection and his services cannot be terminated except by following due process of law. 4. Reinstatement may not always be an automatic consequence of the Court declaring the termination to be illegal and each case would have to be viewed on its own facts and circumstances.

Final Decision: Writ petition is accordingly dismissed, modifying the impugned order of the Tribunal passed on 13.05.2011, as above. All pending applications are accordingly dismissed.