Chandranimehta vs New Delhi Municipal Committee And ...
1986 Latest Caselaw 294 Del

JUDGMENT

Mahinder Narain, J.

(1) The petitioner in this writ petition asserts that she is a displaced person. She says that she was employed as a Headmistress in Nagar Palika Primary School No. 1, Keeling Lane, New Delhi, under the New Delhi Municipal Committee. The said school is recognised and aided by the Delhi Administration.

(2) The petitioner states that she was compulsorily and prematurely retired at the age of 56 years without any reason by an order dated 14th May, 1976. The order annexed to the petition is Annexure 1. This order was passed "in exercise of the powers conferred by clause 'J' of Rule 56 of the Fundamental Rules as adopted by the Committee".

(3) Later on in modification of this order another resolution was passed on 15-5-1978 by the respondent Committee which is annexed to the writ petition as Annexure IX. Annexure Ix reads as under :-

"RESOLVED that in modification of Resolution No. 26 dated 30-4-1976, Smt. Chand Rani Mehta. Headmistress, be retired from service w.e.f. 31-12-77 (A.N.) i.e. on attaining the age of compulsory retirement and the intervening period from 1-1-3-76 to 31-12-77 be treated as the leave of the kind due."

(4) The petitioner states that she would have attained the age of 58 years on 31-12-1977. Her retirement on 14-5-1976 was on attaining her the age of 56 years. This later on was modified by a resolution 'dated 15-5-1978. It is notable that the resolution which retired the petitioner w.e.f. 31-12-1977 was passed five months and 15 days after the age of her retirement. This is because when a head of the school is to retire then the retirement date is extended till the end of the academic session which ended in April, 1978. Whatever be the situation, one thing is clear that the resolution dated 15-5-1978 is retroactive. This resolution effects the retirement of the petitioner when she attained the age of 58 years.

(5) Miss Sachdeva, appearing for the petitioner, refers to the provisions of Rule 110 of the Delhi School Education Rules, 1973, which reads as under :-

"110.Retirement age.-(1) Except where an existing employee is entitled to have a higher age of retirement, every employee of a recognised private school, whether aided or not, shall hold office until he attains the age of 58 years;

PROVIDED that the managing committee may grant extension to a teacher for a period not exceeding two years in the aggregate, if in the opinion of the managing committee such teacher is fit for such extension and has no mental or physical incapacity which would disentitle him to get such extension; Provided further that no such extension shall be granted in the case of a teacher of an aided school except with the previous approval of the Director;

PROVIDED also where a teacher attains the age of superannuation on or after the 1st day of November, of any year such teacher shall be re-employed up to the 30th day of April of the year immediately following.

"(2)Notwithstanding anything contained in sub-rule (1) where a teacher has obtained a National or State Award for rendering meritorious service as a teacher or where he has received both the National and State Awards as aforesaid, the period of service of such teacher may be extended such period as the Administrator may, by general or special order, specify in this behalf."

THE existing employee is mentioned in Section 2(i) of the Delhi School Education Act, 1973, which reads as under :-

"2.(i) "existing employee" means an employee of an existing school who is employed in such school immediately before the commencement of this Act, and includes an employee who was employed in. such school for a period of' not less than twelve months immediately preceding the 2nd day of September, 1972."

IT is not disputed by the respondents that the petitioner was an existing employee. M/s. Sachdeva relies upon the averments made to the writ petition, with regard to Annexure Ii that in case of displaced persons who were employed in Government schools, were to be allowed on compassionate grounds, to continue in service till the age of 60 years on a year to year basis after considering each case on merits.

Annexure to the writ petition reads as under :- "Copy of Letter No. 10228170-UT.I Dated 30-12-1970 from the Government of India, Ministry of Education & Social Welfare, New Delhi.

SUBJECT:-Continuation in service of Refugee teachers employed in Government Schools up'to the age of 50 years.

Iam directed to forward herewith a copy of letter No. Per/4/79/71, dated 29-12-70 on the above cited subject and to say that in accordance with Government of India, Ministry of Education and S.W. Orders No. F. 4-U55-D.5 dated 22-11-55 the displaced person employed in Government schools were to be allowed on compassionate grounds, to continue in service till the age of 60 years on a year to year basis after considering each case on merits.

However, a reference received from Union Territory of Delhi in this connection, it was decided that the extended period of employment may be treated as extension in service beyond the age of superannuation, which entitles them the benefit of pension etc. for such period service. It was further decided that this concession shall be treated as cancelled in the case of displaced persons teachers (including Principals and Headmasters) appointed on or after the 1st October, 1962. You may also kindly consider taxing action accordingly."

(6) From para 3(vii) of the counter affidavit it is clear that the respondents had not denied in their reply that Annexure Ii has no application to schools run by N.D.M.C. In fact the respondents have gone further and they have admitted in reply to ground 'S' as follows :- "(S)Ground(s) is not admitted as stated. It, is not correct that a number of persons have been allowed two years more extension beyond the age of retirement on the ground of their being, displaced person. The cited case of Mrs. S. Kumar Principal has been considered on the ground that she is a displaced teacher and her service record. It is further stated that while Mrs. Kumar has produced evidence to the effect of "being a teacher in Pakistan, there is no evidence on record to prove so in The case of the petitioner."

IN view of the above said admission mentioned in ground 'S', it is apparent that some of the employees of the school run by N.D.M.C. were permitted to continue in service till they attained the age of 56 years on compassionate grounds. No rule is brought to my notice by Mr. Nayyer under which any employee of .the N.D.M.C. could have continued to be in service till the age of 60 years. The permission given to Mrs. S. Kumar to continue in service of the N.D.M.C. school till attaining the age of 60 years, could only be on the basis that Annexure Ii applied, equally to to the schools run by the N.D.M.C. The contention of Mr. Nayyer that Annexure Ii did not apply to N.DM.C. schools, therefore, is not acceptable. (7) "IT is not permissible for the N.D.M.C. to treat employees discharging the same functions and duties, i.e. to say as Principal of the Nagar Palika School run by it differently and discriminatingly. It was not disputed by the respondent Committee that the petitioner is also a refugee. In my view. in view of the actions of the N.D.M.C. with respect to the Principal Mrs. S. Kumar, was permitted to continue till the age of 60 years, the petitioner also has to be similarly treated as she is similarly situate."

(8) In my view it is not relevant under Annexure Ii that the Principal to whom Annexure Ii is to be applied should also have been a teacher in Pakistan. Such a condition is not stipulated in Annexure II.

(9) In this case what has happened is that as is clear from resolution dated 15-5-78, Annexure Ix, the services of the petitioner were terminated effectively from 14-8-1976. She was not liable to be retired on that date. She was entitled to continue till 31-12-1977 and was entitled to receive salary as a Principal till 31-12-1977 in so far as the resolution dated 15-5-78 deems the period between 14-8-76 and 31-12-77 as a leave period due to the petitioner, the same has to be struck down. This period also has to be treated as the petitioner was on duty and received the salary for being on active duty.

(10) The petitioner, being a refugee was entitled to continue in service till she attained the age of 60 years. She would have attained the age of 60 years on 19-12-1979. She would have therefore. retired from service on 31-12-1979. The petitioner was entitled to continue till she attained the age of 60 years like the other other employees mentioned in the ground(n). She is entailed to have all the benefits including the pay and allowances till the age of her superannuation which is hereby declared to be 31-3-1979.

(11) This writ petition is allowed. The parties are left to bear their own costs.