Ms. Saroj Anand W/O N.K. Anand, ... vs Shri Hanuman Mandir Middle ...
2002 Latest Caselaw 336 Del

JUDGMENT

Anil Dev Singh, J.

1. Shri Hanuman Mandir Committee (for short the 'Society') is a society registered under the Societies Registration Act. The society is managing two schools, namely, Shri Hanuman Mandir Middle School (now upgraded and called Shri Hanuman Mandir Secondary School), which is a recognised Government aided school, and Shri hanuman Mandir Public School, which is a private school, neither recognised nor aided by the Government.

2. It is claimed by the appellant that on December 2, 1987 she was appointed as Assistant Teacher in Shri Hanuman Mandir Middle School. After serving in the said school for several years she Along with four other teaches and a clerk of the school were not allowed to perform their duties in the school w.e.f. May 3, 1995. According to the appellant, this act of the first respondent, Shri Hanuman Mandir Middle School, and the second respondent, the Chairman, Shri Hanuman Mandir Middle School, amounted to their removal from service in violation of the law. The appellant issued a notice to the first and second respondents calling upon them to reinstate her in Shri Hanuman Mandir School. In response, the Manager of Shri Hanuman Mandir Middle School vide letter dated 22nd May, 1995 took the stand that she was never employed by Shri hanuman Mandir Middle School.

3. The appellant, being aggrieved by the action of the first and the second respondents, filed an appeal before the Delhi School Tribunal. The Tribunal by its order, dated 30th April, 1996 held that the appellant was appointed in Shri Hanuman Mandir Middle School and the action of the society in removing her from service was arbitrary. The said respondents were directed to reinstate the appellant in Shri Hanuman Mandir Middle School with consequential benefits.

4. This led to the filing of the Civil Writ Petition No. 2570/1996, by the Manager, the Chairman, the Headmistress and the President of Shri Hanuman Mandir Middle School against the order of the Tribunal. In the writ petition, besides the appellant, the Director of Education and Delhi School Tribunal were made party respondents. The learned Single Judge did not find any evidence on record to show that the appellant, herein, had ever been appointed as a teacher in Shri Hanuman Mandir Middle School. At this stage it will be appropriate to quote the observations of the learned single Judge:-

"The Tribunal has not given any finding that there was any appointment order appointing the first respondent as Teacher is Shri Hanuman Mandir Middle School which is a recognised aided school.

" In the absence of any conclusive evidence, the first respondent cannot claim to have been appointed as Teacher in Shri Hanuman Mandir Middle School.; In a matter like this where jural relationship of 'master and servant' as to be on the basis of clinching documentary evidence, Court cannot come to a conclusion of the basis of some documents produced to show the duties performed by a particular teacher.

" The Delhi Education Act, 1972 and the Rules, 1973 there under laid down clearly the procedure for appointment of teachers. The first respondent has not been able to establish that she was appointed as Teacher in accordance with the procedure prescribed under the Act and the Rules.

"On the materials placed on record, the conclusion is irresistible that the first respondent has not been able to show that she was appointed in 1987 as Teacher in the recognised aided school, Shri Hanuman Mandir Middle School. Accordingly, the order passed by the Delhi School Tribunal cannot be allowed to sustain and the same is quashed. The writ petition stands allowed."

Thus, it is clear the learned single Judge inter alia held that the appellant was not able to establish that she was appointed as a teacher is Shri Hanuman Mandir Middle School in accordance with the Delhi Education Act, 1972 and the Delhi Education Rules, 1993.

5. Dissatisfied with the order passed by the learned single Judge the appellant filed LPA No. 569/1998. The parties on 31st December, 1997, however, reached a compromise. The terms of the compromise, as available from the sample agreement appearing at pages 120-121 of the paper book, are as follows:-

"1. That the school will withdraw its writ petition No. 2571/96 challenging the order of the Education Tribunal of Delhi dated 30.04.96 and the teacher will withdraw her writ petition No. 3395/96 pending before the High Court of Delhi on the following terms and conditions:-

2. That the school will reinstate the teacher as per order of the Tribunal since the English Medium Class/Section which the teacher was teaching had already closed therefore the Teacher will become surplus immediately after her reinstatement.

3. That the school will pay to the teacher salary for 33 months amounting to Rs. 35,640/0 at the rate of -----p.m. Which was the rate of the last month drawn salary in full payment of her claim of consequential benefits as per Rule 12192) of Education Act and Rules 1973.

4. That the school will also pay to the teacher salary of one day only for the period of her employment after reinstatement before becoming surplus.

5. That the school will give preference to the teacher and 5(five) other teachers whose appeals were also allowed by the Tribunal at the time of filling of vacancies in feature to re-absorb the teachers in the school. The school will also try its best to get the teachers absorbed in the Government school or in aided school, as specified by the administrator as per Rule 47 and after following recruitment Rule 96 subject to the approval of the Director."

6. On the basis of the compromise, the Division Bench on 24th March, 1999 passed the following order while disposing of the LPA:-

"During the course of hearing of this appeal, by way of amicable settlement the learned counsel for the respondents has made the following offer to the appellant who is present in person in court:

That upon the appellant withdrawing the present appeal, the respondent would pay a sum of Rs. 40,000/- to the appellant within one week in complete settlement of all her claims and a letter declaring her surplus as in there case of five other teaches similarly situated a the appellant would be issued to the appellant.

The counsel for the appellant on instructions from the appellant who is present in court submits that the above offer is acceptable to the appellant.

In view of the acceptance of the offer made by counsel for the respondent to the appellant in court today, this appeal is disposed of in terms of the settlement arrived at between the parties. The respondents will pay a sum of Rs.40,000/- by way of a draft in favor of the appellant within one week from today in full and final settlement of all her claims against the respondent. In addition thereto, the respondent will also issue a letter in terms of the statement made by the counsel above.

This appeal is disposed of with no order as to costs."

7. It appears that pursuant to the compromise and the order passed by the Division Bench on March 24, 1999, the society paid a sum of Rs. 40,000/- to the appellant and declared her surplus Along with four other teachers.

8. On 6th March, 1999, the society advertised for the following posts of teachers as per below:-

"Wanted qualified, experienced Lady Teachers, TGT, Hindi (5500-9000) unreserved, Assistant (4500-7000) (OBC), Peon (unreserved) (2550-3200). Apply within one week. hanuman Mandir Secondary School, Shakti Nagar, Delhi-110007."

9. It seems that this advertisement gave an offence to the appellant. She filed a fresh writ petition, being C.W. 4826/1999, claiming that the respondent society is not complying with the terms of the compromise and the order passed by the Division Bench dated 24th March, 1999, inasmuch as the appellant was not being given preference for reabsorption as a teacher in Shri Hanuman Mandir Middle School despite the fact that there were vacancies of teachers in the school. The learned single Judge on 5th February, 2001 rejected the writ petition of the appellant holding that the appellant was never in the employment of Shri Hanuman Mandir Middle School and even otherwise she cannot be considered for appointment as an Assistant Teacher as she does not fulfill the educational qualifications required for the post. It was also held that since the Delhi Administration was providing 95% of the funds to Shri Hanuman Mandir Middle School it was imperative that the appellant should be possessed of the qualifications laid down for the post by the Delhi Administration. At this stage it will be appropriate to quote the observations of the learned single Judge:-

" In my view the petition has no merit. The essential pre-requisite for the petitioner to be considered for employment as an Assistant Teacher is her possessing the stipulated educational qualifications. Sub Rule (4) of Rule 47 of the Delhi School Education Rules, 1973 cannot be read as permitting a relaxation of these requirements. All it states is that, upon re-absorption, the concerned employee's continuity in service and seniority would be protected. When applied to the facts of the present case, if a post is available in the primary section and if the petitioner is reappointed/reabsorbed to this post her continuity of service and seniority would be protected. However, this is not what has resulted when the advertisement was placed. The appointment was to the Middle School, in which the petitioner had not served at all. In my opinion since it is the Administration which is paying 95 per cent of the funds it is incumbent that the petitioner should be possessed of the qualifications stipulated by the Administration. What transpires, inter se, the petitioner and the school, even it is assumed for the sake of arguments that she was appointed to the Middle School, could not have a bearing or applicability on the Administration which is to foot her bill. On the grounds of her not fulfilling the educational qualification, the petition is liable to be dismissed.

In these circumstances, I see no merit in the petition.

The petition is dismissed accordingly."

10. The appellant being aggrieved by the order of the learned single Judge has filed the instant Letters Patent Appeal.

11. We have heard the appellant, who appeared in person as also the learned counsel, Mr. Nandrajog, appearing for the first respondent. The appellant submitted that she was appointment as a teacher in Shri Hanuman Mandir Middle School and in view of the compromise reached between her, the society and Shri Hanuman Mandir Middle School, the first and the second respondents, are bound to reabsorb her against the post of Assistant Teacher which was advertised by them. In this regard she invited our attention to Clause 5 of the aforesaid agreement. It was also submitted that the school has been making appointments of Trained Graduate Teachers by direct recruitment without making promotions from amongst the Assistant Teachers to avoid creationof vacancies for the post of Assistant Teachers with a view to frustrate the compromise.

12. We have considered the submissions of the appellant. It appears that the stand of the first and the second respondents, and the third respondent, the Director of Education, in their respective counter affidavits, which were filed in the writ petition, is that the appellant does not have the requisite qualification for being appointed as a teacher in Shri Hanuman Mandir Middle School. In the counter affidavit filed by the Education officer on behalf of the Director of Education it is averred that no approval of Director of Education, as required under the Rules was obtained by the society or the school for appointing the appellant in the recognised school. It was pointed out that as per the recruitment rules for the post of Assistant Teacher, the essential qualifications are Higher Secondary/Senior Secondary/Intermediate from a recognised University or Board. Since the petitioner did not have the requisite qualification for appointment to the post of Assistant Teacher, the Selection committee could not have selected her or appointed her in the recognised school. The fact that the appellant does not possess the requisite qualification cannot be denied. It appears that even if the society and Shri Hanuman Mandir Middle School had given preference to the appellant for the purpose of her re-absorption as a teacher in the school, the same would not have been binding on the Director of Education, without whose approval no appointment of a teacher can be made in a recognised school.

13. Our attention was drawn by the learned counsel for the first and the second respondents to the letter of the Manager, Shri Hanuman Mandir Middle School, dated June 21, 1999, which was written in response to the request of the appellant for being absorbed in the school. The letter in so far as it is relevant reads as follows:-

" xx xx xx

In reply I have to write as under:-

1) That the post of an Assistant Teacher which is vacant at present is an aided post approved by the Director under the norms of post fixation under Rule 66(1) while you were appointed under Rule 66(2) of the Delhi Education Act & Rules 1973.

2) That moreover the present post falls under O.B.C. quota and as such only an O.B.C. candidate is to be appointed as per direction of the Director of Education.

3) That you were declared surplus for the purpose of absorption and reabsorption only under Rule 47 and other rules and provisions of the Delhi Education Act & Rules, 1973 further subject to the approval of the Director, as in the case of other teachers similarly situated.

4) That as a surplus employee must be qualified for absorption and reabsorption and as you are not qualified for the present post under Rule 47, you will have to obtain relaxation in qualification from the Director of Education.

5) That under the above facts and circumstances the management will gladly reabsorb and against the present vacant post if the Director of Education grants to you relaxation in qualification and agrees that he will approve your reabsorption and further waives the condition that only an O.B.C. candidate is to be appointed."

14. As is evident from the aforesaid letter, the management of the school expressed its willingness to reabsorb the appellant against the post of Assistant Teacher, provided the Director of Education relaxes the requirement of the requisite qualification in her case, requirement of the requisite qualification in her case. waives the condition that only an OBC candidate was to be appointed against the post and approves her reabsorption as an Assistant Teacher in the school. Since the Director of Education did not relax the requirement of requisite qualification in the case of the appellant and did not agree to approve her re-absorption, it was not possible to appoint her against the vacancy which was advertised by the school. Neither the society nor the Hanuman Mandir Middle School can be faulted for its action.

15. The argument of the appellant that the society was not making promotions of the Assistant working in the school to the posts of Trained Graduate Teachers and resorting to direct recruitment for filling the vacancies to avoid creation of vacancies in the posts of Assistant Teachers with a view to make reabsorption of the appellant impossible, is far fetched and in an argument of despair. How the posts of Trained Graduate Teachers are being filled up by the respondents was not within the scope of the writ petition and consequently in the instant Letters Patent Appeal we cannot go into that question, more so when appointment of persons to the post of Trained Graduate Teachers have not been challenged. It is too much to imagine that Trained Graduate Teachers are being appointed by direct recruitment only to deprive the appellant of the post of Assistant Teacher.

16. Our attention was also drawn by the appellant to Rule 47 of the Delhi Education Rules, 1973. We are in respectful agreement with the learned single Judge that Rule 47 of the Delhi School Education Rules, 1973 cannot be read as permitting the school to relax the essential qualification prescribed for the post. Without the requisite qualification, the appellant is not entitled to be given preference for being absorbed against the post of Assistant Teacher advertised by the society and Shri Hanuman Mandir Middle School. Besides, the post of Assistant Teacher was reserved for an OBC candidate.

17. The appellant submitted that one Ms. Sarla Aggarwal, who was one of the teachers and who was removed Along with the appellant, was subsequently appointed as an Assistant Teacher by Shri Hanuman Mandir Middle School. Mr. Nandrajog, reacting to the submission of the appellant pointed out that Ms.Sarla Aggarwal was fully qualified for the post, being M.A.B.Ed. It was also pointed out that she was appointed on temporary basis subject to approval of the Director of Education.

18. Having given our consideration to the submission of the learned counsel for the parties, we are of the view that the case of Ms. Aggarwal stands on a different footing than that of the appellant. While the appellant is not qualified and does not fulfill the requisite qualification for the post of Assistant Teacher, Ms. Aggarwal has the requisite qualification being M.A.B.Ed.

19. In view of the aforesaid discussion, we do not find any merit in the appeal. Accordingly the same is dismissed.