The main legal point established in the judgment is that a contractual employee, as per the terms of the appointment letter, has no right to seek permanent employment or consequential benefits, and an appointment in violation of the Recruitment Rules does not confer statutory protection.

JUDGMENT

Najmi Waziri, J. (Oral)

The hearing has been conducted through hybrid mode (physical and virtual hearing).

1. The interim order dated 19.11.2018 passed in W.P.(C) 12377/2018 directed the appellant to give employment to the respondent no. 2 as a permanent employee and upheld the Delhi School Tribunal (DST) judgment, which in turn had directed the respondents inter alia as under:

25. I have also carefully gone through the authorities relied upon for the Ld. Counsel for Respondent School there is no dispute in the ratio of law laid-down in these authorities. However, the ratio of law in an authority is laid down according to the facts and circumstances of that particular case and the same, may not be squarely applicable to the fact and circumstances of each case. As discussed above, facts of the case in hand are entirely different wherein the appellant was appointed in the year 2012 and continued till 2016. In these facts and circumstances of this case, this Tribunal is of the opinion that ratio of law laid down in authorities relied upon by Ld. Counsel for Respondent No. 1 to 3 is not applicable.

26. In view of the above, this appeal is accepted with cost. Cost is assessed at Rs.33,000/-. Respondent No. 1 to 3 are directed to re-instate-the Appellant within a period of 4 weeks. Appellant will be entitled for all the consequential, benefits. He will be entitled for full wages from the date of this order onwards.

27. With respect to the back wages, in view of Rule 121 of Delhi School Education Act and Rules, 1973, the Appellant is directed to make exhaustive representation to the R-1 to R-3 within a period of 4 weeks from the date of this order, as to how and-in what manner the Appellant will be entitled to complete wages. The Respondent No. 1 to 3 are directed to decide the representation given by the Appellant within 4 weeks of receiving the same by a speaking order and to communicate the order alongwith the copy of the same to the Appellant;

2. The impugned order has relied upon the dicta of this court in Hamdard Public School v. Directorate of Education and Anr., 202 (2013) DLT 111 as well as on the connected cases with the lead case being Army Public School and Anr. v. Narendra Nain and Anr. in W.P.(C) 1439/2013 decided on 30.08.2013, which has held that the Rule 105 must be so interpreted that the reasonable period therein should ordinarily be around three years and should not exceed five years so that a contractual employee against a substantive vacancy could find some sense of re-assurance apropos the continuance of his employment.

3. The Hamdard Public School judgment has been set aside by the Supreme Court in Durgabai Deshmukh Memorial Senior Secondary School & Anr. v. J.A.J. Vasu Sena & Anr., (2019) 17 Supreme Court Cases 157. The Supreme Court has interpreted the said Rule 105 in the following terms:

45. It emerges from the consistent line of precedent of this Court that where the relevant rule or the appointment letter stipulates a condition precedent to the confirmation of service, there is no deemed confirmation of service merely because the services of a probationer are continued beyond the period of probation. It is only upon the issuance of an order of confirmation that the probationer is granted substantive appointment in that post. Rule 105(2) stipulates the satisfaction of the appointing authority as a condition precedent to the issuance of an order of confirmation. The argument advanced by the learned counsel for the first respondent that there is a deemed confirmation upon the continuation of service beyond the expiry of the period of probation is negatived by the express language of Rule 105(2). In this view, the continuation of services beyond the period of probation will not entitle the probationer to a deemed confirmation of service. The High Court has erred in holding that there is a deemed confirmation where the services of a probationer are continued beyond the expiry of the probationary period.