Baljeet Singh vs Lt. Governor Of Delhi & Ors.
2000 Latest Caselaw 874 Del

ORDER

N.G. Nandi, J.

1. In this petition under Article 226 of the Constitution of India, the petitioner has been seeking to quash the office order No.6463-6663 dated 17.8.1998 whereby the petitioner is sought to be re-transferred/ repatriat- ed to Vidya Gyan Mandir Senior Secondary School, Pahari Dhiraj, Delhi and also a writ of mandamus requiring the respondent to absorb the petitioner in the present post i.e. PET (Physical Education Teacher) in Government School or aided school as per the provisions contained in Rule 47 of the Delhi School Education Rules 1973 (hereinafter referred to as 'the Rules').

2. The facts leading to the filing of the present writ petition, shortly stated, are that the petitioner was appointed as PET in the year 1982 at Vidya Gyan Mandir School, Pahari Dhiraj, Delhi, a Government aided school; that the petitioner continued to work in the said school till 15.10.1987 when he was posted at Government Boys Senior Secondary School, (GBSSS) Adarsh Nagar, Delhi on being declared surplus vide office order No.3539/2 dated 27.6.1983 due to abolition of the post of PET at Vidya Gyan Mandir Senior Secondary School, Pahari Dhiraj, Delhi, the school where the peti- tioner was originally appointed; that it was also ordered that the peti- tioner would continue to draw his salary and other payments against the post of teacher till he is absorbed in another school against the post of PET under Rule 47(1) of the Rules; that vide impugned order dated 17.8.1998, the petitioner is transferred back to his original school after rendering continuous service for a period of about 11 years in G.B.S.S.S, Adarsh Nagar, Delhi. According to the petitioner, without any change in the circumstances in the said school, as per the provisions contained in Rule 47, the petitioner could not have been re-transferred after 11 years serv- ice and the petitioner is entitled to be absorbed under Rule 47(1) in Government school or aided school rather than repatriated/re-transferred to the original school. It is also contended that the impugned order is arbi- trary, discriminatory and unjust inasmuch as the other persons similarly situated have been absorbed by the respondents in their respective post in Government school or aided school; that the strength of the former school has decreased as compared to the strength at the time when the post was abolished as presently there are only 349 students in the school and one PET namely Smt.Raj Lamba is working as PET and at this strength, two Pets cannot be posted.

3. Respondents 1 & 2, vide counter affidavit, refuted the claim of the petitioner inter alia contending that the petitioner was rendered surplus in Vidya Gyan Mandir Senior Secondary School, Pahari Dhiraj, Delhi, which is a taken over school of the Directorate of Education; that the school is managed through an authorised officer appointed by the administrator of Delhi; that the petitioner was posted in G.B.S.S.S, Adarsh Nagar, Delhi as the post of PET was rendered surplus in his parent school i.e. Vidya Gyan Mandir Senior Secondary School, Pahari Dhiraj, Delhi; that now with the retirement of another PET Sh.H.S.Dabas with effect from July 1996, a vacant post of PET is available in Vidya Gyan Mandir Senior Secondary School, Pahari Dhiraj, Delhi; that the petitioner was never absorbed under Rule 47 of the Rules and, therefore, Rule 47 is not applicable; that the petitioner having been rendered surplus in his parent school was only posted physical- ly so that his services could be utilised profitability in the best inter- est of the students; that the petitioner has been drawing his salary continuously from his parent school i.e. Vidya Gyan Mandir Senior Secondary School, Pahari Dhiraj, Delhi; that since the petitioner was not absorbed under sub-rule (1)(a) of Rule 47, he cannot be regularly absorbed in the Government school where he has been posted temporarily; that the petitioner so far has not been absorbed under Rule 47(a) and, therefore, he cannot be considered for regular absorption in the Government School even after the expiry of 5 years. In substance, the say of the respondents is that as the petitioner has not been absorbed under Rule 47(1)(a), he cannot be consid- ered for regular absorption in Government school/aided school even after expiry of 5 years and as he has been drawing his salary from his parent school i.e. Vidya Gyan Mandir Senior Secondary School, Pahari Dhiraj, Delhi.

Respondent No. 3 adopted the counter filed by respondents 1 & 2.

4. It would be seen from the above that the only controversy raised in this petition is whether the petitioner is entitled to regular absorption in G.B.S.S.S, Adarsh Nagar, Delhi in view of the provisions contained in Rule 47 or not.

5. It is not in dispute that the petitioner was appointed as PET in the year 1982 at Vidya Gyan Mandir Senior Secondary School, Pahari Dhiraj, Delhi which is a Government aided school. It is also not in dispute that by order dated 27.6.1983 (Annexure-II), the petitioner was rendered surplus in Vidya Gyan Mandir Senior Secondary School, Pahari Dhiraj, Delhi and that vide office order No.1000 dated 15.10.1987 (Annexure-I), the petitioner was transferred as PET to G.B.S.S.S, Adarsh Nagar, Delhi. It is also not in dispute that the petitioner continued to draw his salary from Vidya Gyan Mandir Senior Secondary School, Pahari Dhiraj, Delhi till his absorption in the transferred school and that the petitioner served as PET in G.B.S.S.S, Adarsh Nagar, Delhi and continuously worked there till the impugned order dated 17.8.1998 (Annexure-III) came to be passed seeking to re- transfer/repatriate the petitioner to his parent school i.e. Vidya Gyan Mandir Senior Secondary School, Pahari Dhiraj, Delhi.

6. Rule 47 of the Rules deal with the absorption of surplus employees, etc. The same reads as follows:-

   47. Absorption of surplus teachers, etc.- (1) where as a result    of -
 

   (a) the closure of an aided school or any class or classes in    any aided school: 
 

   or          (b)     .......      (c)     .......   

   any student or employee becomes surplus, such student or employ-   ee, as the case may be, shall be absorbed, as far as practicable,    in such Government school or aided school as the Administrator    may specify. 
 

   Provided that the absorption in Government service of any employ-   ee who has become surplus shall be subject to the availability of    a vacancy and shall be subject further to the condition that the    concerned employee possesses the requisite qualifications for the    post and has not been retrenched by the management of the aided    school on any ground other than the ground of closure of the    school or any class or classes of the school, or withdrawal of    recognition or aid from the school.         (2)     ..........      (a)     ..........      (b)     ..........      (c)     ..........   

   (3) Without prejudice to the provisions of sub-rules (1) and (2),    where a teacher becomes surplus by reason of the closure of any    class or section thereof or the discontinuance of the teaching of    any subject, such teacher shall be absorbed in the first in-   stance, as far as practicable, in such Government or aided school    as the Administrator may specify, and if the class or section    which was closed is reopened by the former school or if any new    class or section which was closed is reopened by such school or    if the subject, the teaching of which was discontinued, is re-   introduced by such school, or the strength of the teaching staff    of the former school is increased, such teacher shall be re-   absorbed in the former school; but if such re-absorption does not    take place within a period of five years from the date of absorp-   tion of such teacher in the Government or aided school, such    teacher shall be regularly absorbed in such Government or aided    school, as the case may be. 
 

   (4)     .........."  
  

7. The impugned order (Annexure-III) is also challenged on the ground of discrimination and arbitrariness inasmuch as the persons similarly situated are alleged to have been absorbed under rule 47. Annexure-V is the order dated 16.8.1989 whereby the PGTs stated therein have been ordered to be absorbed in the Government school against the suitable vacancies. Annexure- VI is the order dated 21.12.1992 whereby, resorting to sub-rule (1) of Rule 47, Km. Sarita, TGT has been ordered to be absorbed in Government school whereas she was rendered surplus in Janta Uchya Madhyamik Vidyalaya, Ghogha, Delhi. Annexure-VII is the copy of the order dated 15.2.1994 where- by Raghubir Singh, PGT, who was declared surplus from DAV Senior Secondary School, Samaipur Badli, Delhi has been ordered to be absorbed in Government Girls Senior Secondary School, Bawana, Delhi whereas the petitioner's request for absorption in G.B.S.S.S, Adarsh Nagar, Delhi (Annexure-VII) did not find favour with the respondents.

8. Rule 47, reproduced above, clearly suggests that the teacher could be reabsorbed in his former school when a class or section which was closed is reopened in the former school or if the teaching of which was discounted is reintroduced or the strength of the former school is increased or if any class or new section is reintroduced but the said re-absorption can take place within a period of 5 years from the date of absorption of such a teacher in the Government school or aided school. In the instant case, the petitioner, as submitted by learned counsel for the respondents, is not absorbed in G.B.S.S.S, Adarsh Nagar, Delhi. Sub-rule (1) requires the employee in the event of the closure of an aided school or class or classes in an aided school to be absorbed as far as practicable in such Government school or aided school as the administrator may specify. Thus, when the petitioner has been transferred, having been rendered surplus, to G.B.S.S.S, Adarsh Nagar, Delhi, he would be first required to be absorbed in the said school or any other Government school or aided school. More- over, there is nothing to suggest on record that in the parent school i.e. Vidya Gyan Mandir Senior Secondary School, Pahari Dhiraj, Delhi, the cir- cumstances have changed, as required by sub-rule 3 reproduced above, so as to reabsorb the petitioner in the former (parent) school.

Now under sub-rule (3), the re-absorption has to take place within a period of five years from the date of absorption of such teacher in Govern- ment school or aided school. But if the re-absorption does not take place within five years from the date of absorption of the teacher in the Govern- ment school or aided school, then such a teacher would be required to be regularly absorbed in such Government school or aided school, as the case may be. In the instant case, the petitioner has been transferred to G.B.S.S.S, Adarsh Nagar, Delhi by order No.1000 dated 15.10.1987 (Annexure- I). Now it was for the respondent, under sub-rule (1), to absorb the peti- tioner in Government Boys Senior Secondary School, Adarsh Nagar, Delhi or aided school as the administrator may specify. It be noted that it is not the say of the respondents that for some reason, the petitioner could not be absorbed under sub-rule (1) and the petitioner worked as PET in G.B.S.S.S, Adarsh Nagar, Delhi from 1987 till he was served with the im- pugned order. Simply to say that the petitioner is not absorbed under sub- rule (1) and as such he is not entitled to be regularly absorbed in the Government school or aided school without any reason or justification for non-absorption of the petitioner under sub-rule (1) of Rule 47 would not be sufficient, especially in face of Annexures-V, VI and VII when other per- sons who were rendered surplus in their parent school have been absorbed in Government School or aided school. Annexure-II suggests that the petitioner was to continue to get his salary and other payments from the parent school i.e. Vidya Gyan Mandir Senior Secondary School, Pahari Dhiraj, Delhi till he is absorbed in another school against the post of PET under Rule 47(1), meaning thereby that after Annexure-II, the petitioner was to be absorbed in another school against the post of PET under sub-rule (1) of Rule 47 in Government school or aided school. The non-absorption of the petitioner in Government school or aided school would be against the provision of sub- rule (1) of Rule 47 which requires the absorption, of the employee who has been rendered surplus, in Government school or aided school.

9. In the counter, it has not been explained as to why the petitioner could not be absorbed in G.B.S.S.S, Adarsh Nagar, Delhi where he has been transferred vide Annexure-I dated 15.10.1987. It is pertinent to note that Annexure-I dated 15.10.1987 does not indicate that the transfer of the petitioner to G.B.S.S.S, Adarsh Nagar, Delhi was for a temporary period. Now considering Annexures & II in light of sub-rule (1) of Rule 47, the petitioner ought to have been absorbed in G.B.S.S.S, Adarsh Nagar, Delhi or any other Government School or aided school. It cannot be accepted that for 11 long years, the petitioner would continue to work in G.B.S.S.S, Adarsh Nagar, Delhi temporarily. It appears that in the counter, the stand of the respondent that the petitioner was not absorbed because his transfer was temporary to G.B.S.S.S, Adarsh Nagar, Delhi is only to justify its action of non-absorbing the petitioner and this omission on the part of the re- spondent is flagrantly in violation of the provisions contained in Rule 47, sub-rule (1) and sub-rule (3), as pointed out above and in addition the impugned order is discriminatory inasmuch as the petitioner was not ab- sorbed in Government school or aided school, though the other teachers who were rendered surplus have been absorbed in Government school or aided school, as suggested from Annexures-V, VI and VII, as pointed out above.

10. The position that emerges is that the petitioner would be required to be first absorbed under sub-rule (1) of Rule 47 in Government School or aided school and it is only after the absorption of the petitioner in Government school or aided school and if he is not re-absorbed within 5 years in the parent school, then the petitioner would be entitled to be regularly absorbed in such Government school or aided school where he has been absorbed under sub-rule (1).

11. The above discussion would reveal that the respondent wants to take the advantage of a situation created by themselves namely not absorbing the petitioner under sub-rule (1) in G.B.S.S.S, or in other Government or aided school which they were bound to do and now come forward seeking to re- transfer/repatriate the petitioner to Vidya Gyan Mandir Senior Secondary School, Pahari Dhiraj, Delhi, the parent school, without following the requirement of sub-rule (1) and sub-rule (3) of Rule 47. From 15.10.1987, the petitioner has been working in G.B.S.S.S, Adarsh Nagar, Delhi. He ought to have been absorbed in the said school or any other Government school or aided school under sub-rule (1) within a reasonable period and thereafter, within five years, he could have been reabsorbed in the parent school. Now, from 15.10.1987 or a reasonable time thereafter, the petitioner is not absorbed in G.B.S.S.S, Adarsh Nagar, Delhi or any other Government school or aided school, now by-passing the requirements of sub-rules (1) and (3) of Rule 47, the respondent cannot be permitted to re-transfer or repatriate the petitioner to Vidya Gyan Mandir Senior Secondary School, Pahari Dhiraj, Delhi and the action of the respondents retransferring/repatriating the petitioner to his parent school cannot stand and the respondents need to be directed to absorb the petitioner under sub-rule (3) read with sub-rule (1) of Rule 47 in Government school or aided school.

12. In the result, the petition deserves to be granted and the impugned order No. 6463-6663 dated 17.8.1998 seeking to transfer the petitioner-PET to Vidya Gyan Mandir Senior Secondary School, Pahari Dhiraj, Delhi is liable to be quashed and set aside and the respondents directed to follow the provisions contained in sub-rule (3) of Rule 47 of the Delhi School Education Rules 1973 as regards the absorption of the petitioner in his present post in Government school or aided school.

13. Ordered accordingly. Rule made absolute. The costs of the petitioner is quantified at Rs.5,000/-.