ARMY PUBLIC SCHOOL Vs. NARENDRA SINGH NAIN

JUDGEMENT

(1.) BY this writ petition, the petitioner -school impugns the order of the Delhi School Tribunal (DST) dated 18.9.2012. By the impugned order two appeals filed by the respondent No.1 herein were disposed of. First appeal was filed impugning the termination of the probationary services by the letter dated 21.3.2010. The second appeal had challenged the action of the petitioner -school in passing the termination order dated 10.6.2010 terminating the contractual appointment of the respondent No.1 given in terms of letter of the petitioner -school dated 8.4.2010. DST by the impugned order allowed the appeal which challenged the termination of services of the respondent no.1 as a probationer and he was directed to be reinstated with full back wages. Accordingly, the second appeal of the respondent No.1 challenging the termination of contractual appointment by the petitioner -school's subsequent letter dated 10.6.2010 was held to be infructuous.

(2.) THE facts of the case are that respondent No.1 was firstly appointed as Lower Division Clerk (LDC) on contractual basis by the petitioner -school for a period of one year in terms of letter dated 3.12.2007. After the contractual period came to an end, respondent No.1 was immediately re - appointed as LDC, however on probation, in terms of the appointment letter dated 30.5.2008. The period of probation was one year from 1.4.2008. As per the appointment letter the respondent No.1 was to continue in probation till the services were confirmed in writing by the Managing Committee of the petitioner -school. The period of probation of the petitioner was extended by the petitioner -school for one more year from 1.4.2009 (i.e till 31.3.2010) by the letter dated 31.3.2009. Respondent No.1's services were terminated by a letter dated 21.3.2010 observing that as per the performance reports and advisories given during the extended period of probation, the respondent No.1's services were to stand terminated w.e.f 29.3.2010. Respondent No.1 was however immediately again appointed on 8.4.2010 as a part -time Admission Clerk for one year w.e.f 3.4.2010. Respondent No.1 had however in the meanwhile challenged the order of the petitioner -school terminating his services vide letter dated 21.3.2010 before DST, and consequently when the notice of the appeal filed before the DST reached the petitioner -school, it is contended by the respondent No.1 that immediately thereafter on 10.6.2010, the petitioner -school terminated the contractual appointment given by the letter dated 8.4.2010 by simply stating that the petitioner school no longer requires the services of the respondent No.1.

(3.) SO far as the first issue is concerned, as to whether the respondent No.1's services originally w.e.f 28.11.2007 are contractual in nature or statutory in character, it would be necessary at this stage to refer to the relevant para 10 of the Supreme Court judgment in the case of Management Committee of Montfort Senior Secondary School Vs. Sh. Vijay Kumar and Ors. (supra), but, before I do so I must hasten to add that the observations which are being made by me in this judgment as regards the first issue is because of the facts of this case whereby I am not treating the first appointment as contractual in nature in spite of the letter dated 3.12.2007 so specifying because I hold this letter, and also subsequent probationary/contractual appointment letters, to be a sham and given only for denying regular employment to respondent No.1 as LDC. The repeated appointments and terminations, have persuaded me to hold that the petitioner's -school's actions are a fraud upon the requirement to normally not to appoint an employee on contract basis. Accordingly, in a case where on account of genuine exigencies a contractual appointment is required (like when a regular employee suddenly leaves etc.) then such employment will be treated as adhoc/temporary/contractual and not a statutory one having protection of the Act & Rules. With this preface let us reproduce para 10 of Montfort Senior Secondary School's case (supra) and which reads as under: -