If an employee's appointment is illegal, no permission is required from Director of Education for termination of services: Delhi High Court

The Delhi High Court recently held that the legal right to continue in a job is available only to legal appointees. If the process is illegal, termination of services need not follow the standard route, which is first seeking permission from the Director of Education, court said.

“In the circumstances there was no occasion for the school to seek permission/ concurrence of the DOE, in terms of Pramod Kumar (supra), for the termination of her services. She never met the eligibility criteria for the appointment. The continuance of an irregularity was stopped by the school,” said high court.

A woman named Prema Sharma submitted that she worked as an Arts and Crafts teacher, for which a B.Ed degree was not required. Apparently, she was terminated because of not having a B.Ed degree. Because her submission stated that a B.Ed degree was not required for the post, she termed her termination illegal. Citing Pramod Kumar case, she further said that there was a procedural irregularity in her termination. According to the judgment, permission from the Directorate of Education (DOE) is required before termination, which was not followed in her case.

In response, DOE submitted that Prema was not appointed for the post of SUPW (Arts and Crafts). Instead, her appointment was for TGT-SUPW, which requires a B.Ed degree. The department also told the court that TGT-SUPW was a promotion post since she was initially appointed as PRT-SUPW. DOE submitted that it had not sanctioned both of these posts.

“It is not in dispute that the appellant did not have a B.Ed. degree either before or after her employment. Her appointment as TGT- SUPW was evidently irregular therefore she cannot claim the benefit of Pramod Kumar (supra) or the reliefs which she now seeks in this appeal,” DOE further submitted.

The court noted that the appellant woman was offered a TGT-SUPW post on 12.06.1995 and it was confirmed on 09.05.1997. It then added that as submitted by DOE, if such a post was not sanctioned, the appellant could not claim benefits under Delhi School Education Act, 1973.

The high court relied on Salwan Public School v. Director of Education judgment by the division bench. In that case, the appointment was supposed to be statutory under Rule 96, which was not followed. After establishing it, the court had held, “The appointee cannot take any advantage of an appointment which even if not to fill a temporary vacancy or any vacancy for a limited period, is contrary to the Rules governing appointment/recruitment. Such appointment/recruitment will be non-est”.

In a case involving similar facts titled Anita Mishra v. Govt. of N.C.T. of Delhi & Ors, the appellant had sought regularisation of her service. Incidentally, her appointment itself was based on an illegal order, as it was issued by an incompetent authority. The division bench had termed the appointment as ‘void ab initio’.

In the present case, the appellant submitted to HC that she was in the process of getting a B.Ed degree. The HC termed it as acceptance on her part that B.Ed degree was an essential requirement for the post. Moreover, the HC also observed that in the Pramod Kumar case, the Apex Court had held that even with a subsequent B.Ed degree after appointment, the assistant teacher could not continue on his post.

The division bench of Justice Najmi Wizri and Justice Sudhir Kumar Jain, also looked into the teacher’s claim that without permission from DOE, her services could not be terminated. The bench observed that it is true that Pramod Kumar judgment states that termination is not possible without permission, however, it is also true that such a facility is available to only regular employees, i.e. legally appointed.

“When an employee is illegally appointed i.e. she does not have the requisite eligibility criteria for appointment to the post, then with respect to such an employee, there is no need of taking prior permission of Directorate of Education,” it added.

The bench also held that there is no estoppel against the statute. When the rules require certain criteria, the petitioner can’t take advantage of any defect in her appointment letter. Additionally, no relaxation at the stage of recruitment was notified under Rule 96 of The Delhi School Education Rules, 1973.

Case Title: PREMA SHARMA v. DIRECTOR OF EDUCATION & ORS