Deputy Director of Education & Anr v. Veena Sharma

MANMOHAN, J. AUGUST 16, 2010 pk/dk

* HIGH COURT OF DELHI AT NEW DELHI Judgment Reserved on : 13th August, 2010 % Judgment Pronounced on: 16th August, 2010 + DY. DIRECTOR OF EDUCATION & ANR. ..... Appellants Through: Mr. A.K. Bhardwaj, Adv. versus VEENA SHARMA ..... Respondent Through: Mr. M.Y. Khan, Advocate CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE MANMOHAN 1. Whether reporters of the local papers be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes DIPAK MISRA, CJ Questioning the defensibility of the order dated 25th March, 2010 passed by the learned Single Judge in WP(C) No. 10274/2009, the present appeal has been preferred under Clause 10 of the Letters Patent. 2. The factual expose' lies in a narrow compass. The respondent-petitioner was appointed as Upper Division Clerk on 17.12.2007 by the Air Force Children Education Society, the respondent No.2 herein. While she was on probation, an order dated 19.3.2009 came to be passed dispensing with her services as the same were no longer required by the society. Being dissatisfied with the said order, the respondent invoked the jurisdiction of this Court under Article 226 of the Constitution of India for issuance of a writ of certiorari for quashment of the order dated 19.3.2009 and further for issuance of a writ of mandamus to command the respondents to take her back on duty and extend the continuity of service along with other benefits. 3. It was contended before the learned Single Judge that the impugned order was passed without following the due procedure of law inasmuch as the respondent was a confirmed employee since she had completed the period of probation and the society had no authority to extend the period of probation. In essence, the proponement was that she was deemed to have been a confirmed employee. That apart, it was urged that the services were not dispensed with as per the terms stipulated in the letter of appointment. 4. The appellants, who were the respondents in the writ court, resisted the aforesaid stand of the respondent-writ petitioner contending, inter alia, that she was a probationer and the scanning of the provisions and the letter of appointment would not ensue or entail in deemed confirmation. 5. The learned Single Judge adverted to the submissions raised at the bar and came to hold that the respondent was a confirmed employee and, therefore, her services could not have been dispensed with in violation of the principles of natural justice and further the condition postulated in the letter of appointment was not satisfied. Being of this view, he directed the present appellants, the respondents in the writ petition, to reinstate her with benefit of continuity of service and full back wages. 6. Mr. A.K. Bhardwaj, learned counsel appearing for the appellants, has raised the following contentions: (a) The learned Single Judge has fallen into error by expressing the opinion that the respondent was a confirmed employee on the basis of the letter of appointment though there is nothing in the said letter which would justifiably lead to such a conclusion. (b) The finding recorded by the learned Single Judge that there has been violation of the principles of natural justice is totally unsustainable inasmuch as the respondent was only a probationer and her services could be terminated during the probation. (c) To confer the benefit of confirmation, an affirmative act was required to be done by the employer and when the same had not taken place by issuing a letter of confirmation on the basis of suitability and satisfactory performance, she could not have been treated to be a confirmed employee. (d) The learned Single Judge has flawed by holding that even during probation her services could only be terminated after issuing one month notice or by making payment of a sum equivalent to the pay and allowance for the period of notice, for the same cannot be treated as a condition precedent. 7. Mr. M