IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.598  OF 2009 (Arising out of S.L.P.(C)NO.3027 of 2008)

Samarth Shiksha Samiti & Anr.   …    Appellants

Vs.

Bir Bahadur Singh Rathour & Ors.   …    Respondents

J U D G M E N T  

ALTAMAS KABIR,J.

1. Leave granted.

2. The Appellant No.1, Samarth Shiksha Samiti, is a

Society registered under the Societies Registration

Act, 1860 and was established with the object of

catering to the educational needs of society.   In

fulfillment  of  its  object,  the  Appellant-Society

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established  and  began  running  several  recognized

schools all over Delhi in the name of Bal Mandirs.

One such school is Mahashya Chunni Lal Saraswati Bal

Mandir situated at Hari Nagar, Delhi, the Appellant

No.2 herein.

3. On  9th May,  1992,  the  Society  (hereinafter

referred  to  as  ‘the  Samiti’)  appointed  the

Respondent No.1, Shri Bir Bahadur Singh Rathour, as

a  Lower  Division  Clerk  and  posted  him  in  the

Appellant No.2 School.  From the appointment letter

issued to the Respondent No.2 by way of an Office

Memorandum dated 9th May, 1992, it will be apparent

that  he  was  appointed  by  the  Samiti  and  was  an

employee of the Samiti.  Condition No.4 of the terms

and  conditions  of  his  appointment  also  indicates

that during his service period, the respondent could

be transferred to the Samiti or to any of the Bal

Mandirs  managed  by  the  Samiti.   Condition  No.6

provides  that  during  his  period  of  service,  the

Respondent  No.1  would  have  to  abide  by  the

discipline of the Samiti.  Condition No.8 enjoins

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the  Respondent  No.1,  while  reposing  trust  in  the

aims and objects of the Samiti, to participate in

all  activities  organized  by  the  Samiti  with

devotion.  Condition  No.11  prescribes  that  the

Respondent No.1 would have to obey all the rules as

mentioned in Chapter-9 of the Delhi School Education

Rules, 1973.  However, what is of consequence is

Condition No.15 which provides as follows :-

“15. In case he failed to comply with the aforesaid conditions and the rules as mentioned in 123 of Delhi Education Act the Samiti will have full  right  to  remove  him  from service according to the law.”

4. As  will  be  evident  from  the  aforesaid

conditions, the Respondent No.1 was an employee, not

of  the  School,  but  of  the  Samiti,  though  he  was

posted in the School as a Lower Division Clerk.

5. On  9th August,  1999,  the  Respondent  No.1  was

promoted as Upper Division Clerk and was posted at

the same School at Hari Nagar.  Such promotion being

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ad-hoc in nature, the same was regularized on 18th

September, 2000 with effect from 1st August, 2000.   

6. It appears that in September, 2003, interviews

were held for the post of Superintendent Grade II

and a list of selected candidates was drawn up by

the Selection Committee and out of the said selected

candidates, only the name of one Shri Arun Kumar was

recommended for the said post.  According to the

Respondent No.1, he too submitted a representation

for promotion to the said post and, although, his

case was recommended by the Manager of the School to

the General Secretary of the Appellant No.1-Samiti,

not only was he not granted such promotion, but by

an order dated 16th July, 2005, he was transferred

from the School to the office of the Appellant No.1-

Samiti.  Subsequently, on 9th September, 2005, in an

incident involving the Respondent No.1 and one Shri

Shiv Nath Pandey, an order of suspension was issued

against the Respondent No.1 by the Appellant No.1 on

21st September, 2005.  While the disciplinary inquiry

was  pending,  the  Respondent  No.1  filed  a  writ

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petition challenging the transfer order dated 16th

July,  2005;  the  suspension  order  dated  21st

September,  2005;  the  charge-sheet  dated  29th

September, 2005 and the letter dated 26th October,

2005,  initiating  the  departmental  enquiry  against

him.

7. The writ petition filed by the Respondent No.1

was dismissed by the learned Single Judge of the

High  Court  on  3rd November,  2006.   On  an  appeal

preferred by the Respondent No.1, notice was issued

to the appellants in the month of January, 2007.  In

the appeal, it was contended on behalf of Respondent

No.1  that  his  services  were  governed  not  by  the

rules and regulations of the Samiti but by the Delhi

School  Education  Act,  1973,  and  the  Rules  framed

thereunder.   

8. Accepting the submissions made on behalf of the

Respondent  No.1,  the  Division  Bench  of  the  High

Court reversed the judgment of the learned Single

Judge  dismissing  the  writ  petition  and  held  that

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since the said respondent was working in the School

as a Lower Division Clerk on permanent appointment

with  effect  from  1st April,  1992  and  was  given

promotion  in  the  said  School,  which  was  also

regularized, for all practical intents and purposes

he must be considered as an employee in the school

and, therefore, the provisions of the Delhi School

Education Act and the Rules framed thereunder would

apply  to  his  services.   The  Division  Bench  also

directed that if the Samiti and the School wished to

take any disciplinary action against the Respondent

No.1, they would have to follow the procedure laid

down in the aforesaid Act and the Rules.   

9. This appeal has been filed by the Samiti and the

School against the said decision of the High Court

in the Letters Patent Appeal filed by the Respondent

No.1 herein.   

10. From  the facts as disclosed herein  above, it

would be more or less clear that primarily three

questions arise for decision in this appeal, namely,

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i) Is the Respondent No.1 an employee of

the Samiti or of the School?

ii) If the Respondent No.1 is found to be

an employee of the Samiti, could it be

said  that  the  Respondent’s  service

would be governed by the Delhi School

Education  Act,  1973  and  the  Rules

framed thereunder or under the rules of

the Samiti?

iii)If it is held that the provisions of

the Delhi School Education Act and the

Rules  framed  thereunder  would  govern

the  services  of  the  Respondent  No.1,

would such a condition of service stand

altered  on  the  Respondent  No.1  being

transferred  to  the  office  of  the

Samiti?

11. Referring to the Office Order dated 16th July,

2005, whereby the Respondent No.1 was appointed, Mr.

Puneet Taneja, learned Advocate appearing for the

Appellant-Samiti,  emphasized  the  fact  that  the

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Respondent No.1 had been appointed by the Samiti and

was, therefore, an employee of the Samiti and not of

the School. He pointed out the different conditions

in the said Office Order, which indicated that the

service  of  the  Respondent  No.1  was  transferable

between the different schools managed and run by the

Samiti and also to the Samiti itself, as was done in

the instant case.  He also referred to the various

other  documents,  including  the  Experience

Certificate and the Office Order dated 9th August,

1999, whereby the Respondent No.1 had been promoted

to the post of Upper Division Clerk by the Samiti

and his subsequent confirmation therein and the fact

that his salary was being paid by the Samiti.

12. Mr. Taneja denied the claim of the Respondent

No.1 that inspite of being an employee of the Samiti

and being governed by the rules and regulations of

the  Samiti,  his  services  were  governed  by  the

provisions of the Delhi School Education Act, 1973

and the Rules framed thereunder.  Mr. Taneja made

special reference to the letter dated 3rd October,

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2005 addressed by the Respondent No.1 to the General

Secretary of the Samiti acknowledging the fact that

his services were under the control and disposal of

the Samiti.

13. Mr. Sarvesh Bisaria, learned Advocate appearing

for the Respondent No.1, reiterated the stand taken

on behalf of the said respondent before the High

Court that even though the said respondent had been

appointed  by  the  Samiti,  once  his  services  were

placed at the disposal of the School in question,

his services came to be governed by the provisions

of  the  Delhi  School  Education  Act  and  the  Rules

framed  thereunder.  Mr.  Bisaria  referred  to  and

relied on Condition No.11 of the Appointment Order,

which provides that during the period of his service

with the Samiti, the Respondent No.1 would have to

obey all the rules as mentioned in Chapter 9 of the

Delhi  School  Education  Rules,  1973.   He  also

referred to Condition No.15 extracted hereinabove,

which stipulates that in case the Respondent No.1

failed to comply with the various conditions and the

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rules as mentioned in Rule 123 of the Delhi School

Education Rules, the Samiti would have full right to

remove him from service according to the law.

14. Mr. Bisaria urged that not having taken recourse

to  the  provisions  of  the  Delhi  School  Education

Rules, the Samiti had erroneously issued the order

of  transfer  dated  16th July,  2005,  whereby  the

Respondent No.1 had been transferred from the school

to the office of the Samiti.  Mr. Bisaria submitted

that the order of suspension passed by the Samiti on

21st September, 2005 and the subsequent order dated

29th September,  2005,  initiating  disciplinary

proceedings against the Respondent No.1, were liable

to be set aside.

15. Mr.  B.  Dutta,  learned  Additional  Solicitor

General  appearing  for  the  Director  of  Education,

Government  of  NCT  of  Delhi,  supported  the  stand

taken on behalf of the Respondent No.1 to the effect

that the Samiti could not have proceeded against the

Respondent No.1 under its own rules while initiating

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disciplinary  proceedings,  but  should  have  taken

recourse  to  the  provisions  of  the  Delhi  School

Education Act and the Rules framed thereunder.   In

this  regard,  the  learned  Additional  Solicitor

General referred to Rule 50 of the 1973 Rules and in

particular, Clauses (i) and (vi) thereof which read

as follows :-

“50. Conditions for recognition.- No private school shall be recognized, or continue to be recognized, by the appropriate  authority  unless  the school  fulfils  the  following conditions, namely:-

(i) the school is run by a society registered  under  the  Societies Registration Act, 1860 (21 of 1860), or  a  public  trust  constituted  under any law for the time being in force and  is managed in accordance with a scheme of management made under these rules;

(ii)   ……… (iii) ……… (iv) ………

(v)    ……… (vi)    the managing committee

observes the provisions of the Act and the rules made thereunder;”

16. The  learned  Additional  Solicitor  General

submitted  that  not  having  followed  the  said

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procedure,  the  Samiti  had  acted  illegally  in

proceeding  against  the  Respondent  No.1  under  the

rules and regulations of the Samiti on the ground

that  having  appointed  him  the  Samiti  had  control

over his services.

17. The  learned  Additional  Solicitor  General

submitted  that  having  regard  to  the  above,  no

interference was called for with the decision of the

High Court in L.P.A.No.52/2007.  

18. It  is  in  the  context  of  the  aforesaid

submissions made on behalf of the respective parties

that we will have to consider the questions set out

hereinbefore in paragraph 8.  

19. Regarding the first question, as to whether the

Respondent No.1 is an employee of the Samiti or of

the  School,  there  can  be  no  doubt  that  the

Respondent No.1 is an employee of the Samiti whose

services were placed at the disposal of the School,

where he was functioning as a Lower Division Clerk

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and thereafter as Upper Division Clerk. There is no

dispute that his appointment was made by the Samiti

and  that  his  salary  is  also  paid  by  the  Samiti.

There is also no dispute that he was promoted to the

post of Upper Division Clerk by the Samiti and not

by the School.   

20. At this juncture, it may be fruitful to consider

the  procedure  adopted  for  appointment  of  the

Respondent No.1 to the post of Lower Division Clerk

in the School.  The Office Memorandum dated 9th May,

1992  by  which  the  Respondent  No.1  was  appointed,

indicates at the outset that pursuant to a decision

taken by the Selection Committee, the respondent was

appointed as Lower Division Clerk on Government pay

scale and admissible usual allowances payable to Bal

Mandirs,  on  a  regular  basis  in  the  School  in

question.  The said appointment was to take place

with effect from 1st April, 1992, but he would remain

posted  in  the  central  office  of  the  Samiti  till

further  orders  of  the  Samiti.   In  other  words,

though  the  Respondent  No.1  was  appointed  by  the

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Samiti as a L.D.C. in the School in question with

effect from 1st April, 1992, he was to remain posted

in the central office of the Samiti till further

orders were passed by the Samiti.  Since a reference

has  been  made  to  the  Selection  Committee  in  the

Office Memorandum, it will be necessary to consider

the  effect  of  Rule  96  vis-à-vis  the  Respondent

No.1’s appointment by the Samiti.

21. Rule 96 of the 1973 Rules falls under Chapter

VIII of the said Rules, which deals with recruitment

and terms and conditions of service of employees of

the  private  schools  other  that  unaided  minority

schools.  Rule 96(2) provides that recruitment of

employees in each recognized private school shall be

made  on  the  recommendations  of  the  Selection

Committee, which, in the case of appointment of any

employee  other  than  the  Head  of  the  School  or  a

teacher other than the Head of the School, not being

an employee belonging to Group ‘D’, was to consist

of :

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(i) the Chairman of the managing committee

or a member of the managing committee, to be

nominated by the Chairman;                  

(ii) head of the school;

(iii) a nominee of the Director;

(iv) in the case an aided school, two

officers having experience of the administration of

the school, to be nominated by the Director.

In the instant case, the procedure under Rule 96

(2)  appears  to  have  been  duly  followed  and  the

appointment of the Respondent No.1 was made by the

Samiti  on  the  conditions  set  out  in  the  Office

Memorandum which leave no room for doubt that the

Respondent No.1 was an employee of the Samiti and

not of the School, though it has been held otherwise

by the Division Bench of the High Court.  Of course,

the High Court has couched its observations by using

the  expression  “for  all  practical  intents  and

purposes”, but that, in our view, would not make him

an employee of the school. Furthermore, Condition

No.3 of the conditions of service provides in clear

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and unambiguous terms that the Respondent No.1 could

be  relieved  from  his  services  in  the  initial

probation  period  or  extended  period  of  probation

after one month’s notice or one month’s pay.  The

said condition also provides that after his services

were made permanent, if the Samiti wanted to relieve

him  from  his  services,  he  would  be  given  three

months’  prior  notice  or  be  given  three  months’

salary  in  lieu  thereof.   Condition  No.4,  which

allows the Samiti to transfer the respondent from

one Bal Mandir to another run by the Samiti or to

the  Samiti  itself,  read  with  Condition  No.3,

indicates that the service of the Respondent No.1

was  under  the  Samiti  and  under  its  control.

Conditions  11  and  15,  on  which  a  good  deal  of

reliance has been placed on behalf of the Respondent

No.1, read as follows :

“11.During  the  period  of  service  he will  have  to  obey  all  the  rules  as mentioned  in  Chapte-9  of  Delhi Education Act.

xxx xxx xxxx

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15. In case he failed to comply with the aforesaid conditions and the rules as  mentined  123  of  Delhi  Education Act,  the Samiti will have full right to remove him from service according to law.”

          (Emphasis added)

22. This  brings  us  to  the  next  question  as  to

whether despite being an employee of the Samiti, the

Respondent No.1’s services would be governed by the

Delhi  School  Education  Act  and  the  Rules  framed

thereunder or under the Rules of the Samiti.

23.  Condition  No.11,  which  has  been  reproduced

hereinabove, only indicates that during his period

of service, the Respondent No.1 would have to obey

all the rules as mentioned in Chapter 9 of the Delhi

School Education Rules.  The said provision supports

the stand taken on behalf of the Samiti that Chapter

9 of the said Rules relating to the Code of conduct

for teachers and other employees was adopted by the

Samiti  to  govern  the  code  of  conduct  of  its

employees as well.  Except for indicating that the

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Respondent  No.1  would  have  to  obey  the  rules  in

question, Condition No.11 does not provide that the

Act and Rules would directly govern the services of

the said respondent.  Furthermore, condition No.15

gives the Samiti the right to remove the Respondent

No.1 from service according to law.

24. In  answer  to  the  second  question,  it  must,

therefore,  be  held  that  the  services  of  the

Respondent No.1 would continue to be governed by the

rules  of  the  Samiti  and  not  by  the  Delhi  School

Education Act, 1973 and the Rules framed thereunder,

though the provisions of the rules may have been

adopted by the Samiti for its employees.   

25. Consequently, in answer to the third question

posed in paragraph 8 hereinbefore, it must be held

that the Respondent No.1 continued to be governed by

the rules of the Samiti whether his services were

placed at the disposal of the school or retained by

the Samiti in its central office.

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26. In our view, the reasoning of the Division Bench

of the High Court was erroneous as it proceeded on

the  premise  that  for  all  practical  intents  and

purposes the Respondent No.1 was an employee of the

school and that the provisions of the Delhi School

Education Act, 1973 would, therefore, apply to him.

The judgment and order of the Division Bench cannot,

therefore, be sustained and is set aside and the

judgment of the learned Single Judge is restored.   

27. The appeal is, therefore, allowed and the writ

petition filed by the Respondent No.1 is dismissed.

There will, however, be no order as to costs.

                             ________________J. (ALTAMAS KABIR)

   ________________J. (CYRIAC JOSEPH)

New Delhi, Dated: 3.2.2009

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