$~75 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 9865/2016, CM APPL. 39284/2016 (Exemption) SHAZI JAH Decided on 24th October, 2016 ........ Petitioner
Through: Ms. Tamali Wad with Ms. Indrani Ghose, Advs. versus MANAGING COMMITTEE HAMDARD PUBLIC SCHOOL AND ORS ..... Respondent Through: Mrs. Ekta Sikri with Mrs. Adwaita Sharma, Adv. for respondent nos. 1, 2 & 4. Mr. Siddhartha Shankar Ray, Adv. for R-3. CORAM: HON'BLE MR. JUSTICE NAJMI WAZIRI NAJMI WAZIRI, J (oral) The petitioner is aggrieved by the order of the Delhi School Tribunal 1. dated 22.09.2016 in Appeal No.59 of 2015 whereby the order dated 18.05.2015 terminating her services was upheld.
2. It is the petitioner’s case that she was employed by respondent No.1 - Hamdard Public School and not by respondent No.2, i.e., the Hamdard Education Society. Therefore, insofar as the letter of termination has been issued by the Hamdard Education Society, it would be non est in law and of WP(C) 9865 of 2016 Page 1 of 5 no consequence.
3. Ms. Tamali Wad, the learned counsel for the petitioner submits that an identical issue has been answered in favour of the petitioner in two LPAs wherein the issue was whether identically situated employees of the school run by the Hamdard Education Society could be transferred by the Society instead of the Hamdard Public School where they were working. The Division Bench of this Court in LPA Nos. 508/2013 and 945/2013 vide order dated 16.05.2014 answered the issue in the negative, holding that the employer-employee relationship existed between the Managing Committee of the School and the employee, and that the employee is to serve only the employer. She contends that identical letters of employment were issued by the two schools of the Hamdard Education Society, i.e., Hamdard Public School and Rabea Girls Public School. She further submits that in both the aforesaid LPAs the transfer clause was similar, if not identical and that the issue as to whether the petitioner was employed by the School or by the Society has been answered in favour of the School.
4. Ms. Ekta Sikri, the learned counsel for the respondent, who appears on receipt of advance copy of the petition refutes the said contentions. She contends that the letter of appointment issued in this case would be material insofar as the appointment letter has been issued by the School but with the approval of employment by the Managing Committee of the Hamdard Education Society. She refers to clauses 2, 7 and 11 of the letter to contend that throughout its contents the letter refers to both, the Society and the School in the same breath. The petitioner has acted upon the said letter. The petitioner was initially appointed on probation for a period of one year. The school did not wish to retain her services beyond that period. Therefore, WP(C) 9865 of 2016 Page 2 of 5 her services were terminated in terms of the clauses of the appointment letter with one month’s salary in lieu of the termination. The said money was accepted by the petitioner without protest. She further submits that (i) insofar as the petitioner has accepted that she had been appointed subsequent to approval from the Managing Committee of the Hamdard Education Society and that extension of her services would be subject to the approval of the Managing Committee of the Hamdard Education Society and (ii) the letter stated that the Managing Committee will make periodic assessment apropos her performance regarding teaching and other assignments, therefore, it is evident that the petitioner acknowledged that her services were to be governed and supervised by the Society and not by the School. Hence, for the petitioner to contend that she was an employee of the School and not of the Society is not tenable. Ms. Wad refers to the judgment of the Supreme Court in General 5. Manager (OSD), Bengal Nagpur Cotton Mills, Rajnandgaon v. Bharat Lal and Another (2011) 1 SCC635to contend that the test for determination as to who is the principal employer is two fold, i.e., (i) whether the said employer pays the salary and (ii) whether the said employer has supervision and control over the services and transfers of the employee concerned. In the present case, it is not in dispute that monies have been paid by 6. the School. However, the supervision, control, transfer and assignment of services to be rendered by the petitioner were entirely subject to approval of the Society. Therefore, to that extent, the case is distinguishable on facts; the rigours of the aforesaid judgment would not be applicable to the present case.
7. Ms. Wad further refers to clauses 4, 6 & 8 of the appointment letter WP(C) 9865 of 2016 Page 3 of 5 which read as under: “4. The Society / School will expect you to work initiative and integrity, with a high standard of efficiency.
6. Your services will be governed by the rules and regulations of society/school, which are in force or may come in force from time to time.
8. You will also be entitled to free tuition-fee for two of your own children as long as you are in employment of this School.” 8. The Court notes that clauses 4 & 6 concern only the rules which may be applicable for the employee’s tenure of service, whereas clause 8 provides the benefit of free tuition for up to two children of the employee.
9. At this stage, the learned counsel for the petitioner submits that there is no post of PRT (Primary Teacher) in the Society, therefore the Society would not have appointed the petitioner. She further submits that the appointment letter has been issued on the letter head of Hamdard Public School with Employee Code No.HPS/286. She submits that under Rule 120 of the Delhi School Education Act, 1973, schools need to run by a Managing Committee.
10. Be that as it may, the aforesaid argument remains academic because the tenure of one year is over and this Court need not go into this question. It is not in dispute that the employment of the petitioner was initially only for a probation period of one year only and was not extended either by the School or by the Society. WP(C) 9865 of 2016 Page 4 of 5 11. Considering that the fact that the appointment was initially made for a period of one year on probation, the period could have been extended by the School in terms of the appointment letter, but it was not done. The tenure of employment has been exhausted by efflux of time. The petitioner has no right to seek a mandamus extension of that tenure or for regular employment in that post. The prerogative to hire the services of an employee is entirely of the employer. The writ jurisdiction cannot be invoked to necessarily seek extension of tenure of employment after lapse of the agreed tenure or for employment against the wishes or requirement of an employer and that too de hors the eligibility and/or suitability of the person. The petitioner has no right to continue in service beyond the tenure of employment.
12. without merit and is accordingly dismissed. This Court finds no error in the impugned order. The petition is OCTOBER24 2016/acm NAJMI WAZIRI, J WP(C) 9865 of 2016 Page 5 of 5