F.C. Sikh Girls High School, Shimla vs Smt. Deepika Vashishst

Deepak Gupta, J.—This appeal filed by the F.C Sikh Girls High School, Shimla, is directed against the judgment dated 25.5. 2007 passed by a learned Single Judge of this Court in CWP No. 1381/2002. Briefly stated the facts of the case are that the appellant is a School being run by Shri Guru Singh Sabha, Shimla. It is a School which received 95% grant -in-aid from the Government. On 7th August,2000, a letter was addressed to the Manager of the Primary Wing of the School by the District Primary Education, Shimla informing the Manager that as per the norms fixed by the State, two teachers were required for 60 students and thereafter one more teacher was required for every 40 students added thereafter. According to District Primary Education Officer (DPEO), since there were 261 students in the primary wing, as per the norms there should be 8 teachers as against 7 actually working. The School was required to employ to one more teacher and send the case for grant-in-aid.

Thereafter, according to the appellant, it started the process of selection of another teacher and after interview, petitioner Deepika Vashisht was selected and was appointed vide letter dated 1st September, 2001. Alongwith the letter of appointment certain terms and conditions were sent to the teacher. According to Clause 7 of the terms and conditions, appointment could be terminated at any time by a month''s notice from either side without assigning any reason. As per Clause 13, 95% of the Gross Salary was to be disbursed only after the receipt thereof from the State Government and 5 % management share was to be disbursed to the employee after receipt of grant-in-aid. Clause 17 provided that the employee would be on probation for a period of one year. The petitioner joined pursuant to this letter of appointment and accepted the terms and conditions as per joining report. Thereafter, it appears that the Management applied for grant-in-aid for the extra teacher also.

It would be pertinent to mention here that prior to this, the office of the District Education Officer had issued a letter dated 28th July, 2000 and in this letter, it was provided that one Nisha Sharma who was working in the Primary wing should be transferred to the High School. The same letter also provided that Avinash Kaur working in the middle wing should be shifted to the primary wing.

It appears that the School applied for grant-in-aid and included the name of the petitioner as one of the employees entitled for grant-in-aid. In the meeting of the Grant-In-Aid Committee, it was found that in fact the number of students in the primary School was only 218 and therefore, grant-in-aid could be given only to six teachers and therefore, the Committee did not entertain the claim of the seventh teacher i.e the petitioner Deepika Vashisht.

The School Management realized that it would not get grant-in-aid for the extra teacher Deepika Vashisht and thereafter, a notice was issued to her terminating her services on 19th August, 2002. The relevant portion of the letter reads as follows:

The matter regarding your appointment as a JIB.T Teacher in this School, was referred to the Director, Primary Education, H.P Shimla for his approval/remittance of your under the Grant-in-Aid Rules. It is however, regretted that the requisite approval/pay has been refused by the Director.

As it is not possible for the Management Committee of this School to adjust you against any other post, we are constrained to give you one month''s notice effective from 19.8.2002 (in terms of the conditions attached your appointment letter) after the expiry of which i.e from 19.9.2002. your services will not be required in this School.

It is apparent from the perusal of this letter that the School decided to terminate the services of the petitioner Deepika Vashisht only on the ground that since the Department had refused to approve her case for payment of grant-in-aid, the School could not keep her in service.

At this stage, it would be pertinent to refer to the rules framed by the State of H.P for the H.P Non Government Institution (Grant-in-aid) Rules, 1997.

Rule 6 (b) reads as follows:

Subject to any rule that may be made in this behalf, no employee shall be dismissed, removed nor shall his services be otherwise terminated except with the prior approval of the Dy. Director of Zone. Any employee who is dismissed, removed or reduced either in rank or within a time scale may, within three months from the date of communication to him or the order of such dismissal, removal or reduction appeal against such order to the Director (education)/Director(Pry) to Govt. of H.P. The order of Director of Education/Director Primary Education shall be final.

A bare perusal of this rule clearly shows that a School which has received grant-in-aid from the State Government is not permitted to dismiss, remove or otherwise terminate the services of any employee except with the prior approval of the Deputy Director (Education) of the School.

Mr. Balwant Kukreja, learned counsel for the Management makes three submissions in this regard. His first submission is that as per terms and conditions of the letter of appointment, which were duly accepted by the petitioner, services of any employee could be dispensed with after giving one month''s notice without assigning any reason. His second contention is that the petitioner had not completed the probation period and the management was well within its right to dispense with the services within the probation period. Lastly, it is submitted that the Management had sent a copy of the notice to the Deputy Director and this would amount to approval of the Deputy Director.

We are unable to accept any of three submissions. When there are statutory rules framed and school gets 95% grant-in-aid from the State Government, it is bound by the grant-in-aid Rules and any contract to the contrary would not bind the employee. It is settled law that employee has no bargaining power and any such contract which is contrary to the rules is ultra virus and can not be binding. The statutory rules provide a protection to the employee in as much as the management is entitled to terminate the service of the employee only after getting the prior approval of the Deputy Director Education of the Zone concerned. The legislature in its wisdom decided to use the words "Prior Approval". This clearly indicates that the approval must come before any decision is taken to terminate the services. Such an approval can not be implied or inferred. Such approval has to be in expressed terms and must be prior to the termination of the services.

The contention of Sh. Balwant Kukreja, Advocate that since the petitioner had still not completed the probation period, her services could be dispensed with, is without any force. The dispensation of services even by invoking this provision would amount to termination of the service within the meaning of clause 6(b) and therefore would require the prior approval. In any event, the letter of termination quoted in extentso hereinabove does not show that the management had relied upon this provision while terminating her services. Therefore, the order of termination is illegal and was rightly set-aside. Having said so, we are unable to accept the later reasoning of the learned Single Judge that the petitioner could have been adjusted in the primary wing against the post which was vacated by Nisha Sharma.Here the learned Single Judge erred and did not take into consideration the fact that the same letter provided that Avinash Kaur would be transferred from the middle school to the primary wing and in fact the learned single Judge vide a separate judgment dated 11.6.2007 passed in CWP 42 of 2003 directed that grant-in-aid would be given in respect of Avinash Kaur. Be that as it may, we are not expressing any final view on this issue. We therefore, dispose of the present appeal holding that the order of the termination is illegal because no prior approval of the Deputy Director was taken. Since, the order of termination is set-side on this ground, the Management is at liberty if it so desires to take fresh appropriate action strictly in accordance with law.

The appeal is dispose of accordingly.