Shri Vijay Prasad vs Directorate Of Education And Ors.
2004 Latest Caselaw 707 Del

JUDGMENT

Manmohan Sarin, J.

1. Petitioner by this petition assails the order dated 27.10.2003 Annexure P-1 passed by respondent no.4 terminating the services of the petitioner w.e.f 28.10.2003. The services of the petitioner as Upper Division Clerk (in short U.D.C.) have been terminated following the rejection of the proposal of grant-in-aid by the Directorate of Education in respect of the petitioner. The Directorate of Education refused the grant-in-aid since the petitioner was over age, being 28 years on the date of recognition of the school. The maximum age permissible under the Delhi School Education Rules, 1973 being 25 years.

2. The facts giving rise to the petition may be noted:-

Petitioner Vijay Prakash was employed on 17.8.1994 by Sharda Devi Sanskrit Vidyapeeth-respondent no.4 as a U.D.C at a consolidated salary of Rs.1500/- per month. With the passage of time, his salary was enhanced to Rs.2000/- per month. The school was recognized by respondent no.1-Directorate of Education on 1.4.1998. The school kept on following up with Directorate of Education for sanction and creation of posts for its staff. These were sanctioned on 10.7.2001. These were Teacher grade II(TGT)-3, UDC-1, Group `D'-1 and Cook-1. While sanctioning the Education Officer also observed " It is also informed that the surplus employees/teachers from other Vidyalayas if available, may be considered for the absorption against these sanctioned posts. The school branch keeps the record of such employees." In the event, DPC was held on 22.11.2002. The minutes of the DPC are produced as Annexure P-4 page 20.

3. The DPC comprised Deputy Director Education(C), Secretary Sanskrit, Academy, Chairman/Manager of School and Education Officer of the Zone 27. It considered the regularization of the staff namely two teachers, one UDC, one Waterman and one Cook. As per the minutes of the DPC, after minutely scrutinizing the record and taking a logical and humanitarian view, the DPC decided on regularization of five employees against their respective posts w.e.f. 26.11.2001. The school also passed a resolution accepting regularization. The Education Officer further vide communication dated 4.12.2002, informed School that the Deputy Director of Education, Distt. Central had approved the regularization of the said employees. Pursuant thereto appointment letters were also issued to the employees including the petitioner.

4. Petitioner is aggrieved by the impugned order dated 27.10.2003, by which the services of the petitioner were terminated w.e.f 28.10.2003 since the Directorate of Education had declined to provide grant-in-aid in respect of the petitioner. Petitioner by this writ petition has challenged his termination. Show Cause notice was issued on 5.11.2003 and the order dated 27.10.2003 was made subject to further orders to be passed in the writ petition.

5. Mr. Sandeep Sharma, learned counsel for the petitioner assails the order of termination as being illegal and wholly unwarranted. He submits that the petitioner had been recruited by the school on 17th August, 1994. The condition sought to be imposed by the respondents that the petitioner should be of age not above 25 years on the date of recognition of the school is onerous to all those persons who were employed earlier. Further the same is not warranted by any provision of the Delhi School Education Act and the Rules framed there under. He submits that Rule 104 on which reliance is placed prescribes the minimum and maximum age limit for recruitment to a recognized private school. He further submits that petitioner stood recruited in August, 1994 and at that time petitioner was less than 25 years of age. The age limit is to apply only to recruitment to a recognized private school and not to regularization of service. He submits that there is no age limit prescribed for employees who have already been working.

6. Mr. Rajinder Dhawan appearing on behalf of respondent no.4-school submits that a recognised school is on a different footing than an unrecognised school. A recognised school has to follow the Rules and Regulations as per Delhi School Education Act. Rule 104 provides for the same. The minimum age at the time of recognition should be 25 years. Petitioner was overage and hence is not eligible for being regularised in a recognised school.

7. Mr. Dhawan has placed reliance on a decision of the learned Single Judge in Prem Lata Datta Vs. Union of India & Ors . This was a case where the teacher was not found to be possessing the requisite qualifications being only a Matric at the time school was recognized. Opportunity had been granted to the teacher to obtain the necessary qualifications. As the teacher has failed to obtain the minimum qualifications, her services were terminated and non possession of the requisite qualification was regarded as non compliance with the rules which a recognised school is required to follow and hence her services were terminated. I am of the view that the above case is distinguishable and it does not advance the respondent's case. It refers to not attaining minimum prescribed qualification despite opportunity.

8. Mr. Dhawan submitted that a recognized and unrecognized schools were on a different footing. A recognized school is required to strictly adhere and follow the norms, qualifications as prescribed under the Delhi School Education Act and Rules, 1973. In the recognized school, governing body is the employer as against managing committee of the society which manages a unrecognized school. The DPC is held in recognized school to ensure that the person whose services are sought to be regularized, possesses the requisite qualifications, experience and also meets the requirement of age. He urged that it is only then the benefit of regularization can be given.

9. Ms. Avnish Ahlawat appearing for respondents 1 to 3-Directorate of Education, submits that the petitioner could not be said to have been employed on regular basis and scale. His appointment has to be reckoned as a contractual one, being on a consolidated salary. In this context, she further submits that Rule 104 would be attracted as and when the school is recognised and his services are sought to be regularized. It would tantamount to recruitment within the meaning of Rule 104 of the Delhi School Education Rules. It is further urged that post was created only on 10.7.2001. She submits that when post was created even then petitioner was overage. He was overage at the time of grant of recognition. He was overage at the time of sanction of posts. Hence she urges that impugned order has been rightly passed.

10. The question to be considered is whether the age limit as prescribed under Rule 104 of the Delhi School Education Rules, 1973 being 25 years can be applied to a person like the petitioner, who was already employed? As would be seen the minimum and maximum age limit are prescribed for recruitment to a recognized school. The petitioner was recruited on 17.8.1984. At the time of his recruitment or engagement by the school, he was not over 25 years of age.

11. Recruitment as per Webster's Oxford New World English Dictionary means " enlist (someone) in the armed forces, enrol (someone) as a member or worker in an organization to hire or engage services of."

Regularization in the present context as per the Oxford Dictionary would be following :-

" of or belonging to the permanent professional armed forces of a country, properly trained or qualified and pursuing a full time occupation, a regular member of the organization."

As per Blacks Law Dictionary, "Regular" is conformable to Law, steady or uniform in course practice or occurrence, not subject to unexplained or irrational variation, made according to Rule, duly authorized, formed after uniform type, built or arranged according to established plan, law or principle.

12. It would be seen that the Rule specifying the age bar is for recruitment or engagement and not for regularization. When the petitioner was engaged or recruited, he was within the age limit. For purpose of regularization, no upper age limit has been prescribed. Hence Rule 104 would not be attracted in the instant case. Moreover, in this case the selection process was duly followed. It is not a case where the petitioner is found not to be possessing the requisite qualification and experience. D.P.C comprising representative from the Directorate of Education had duly approved the selection of the petitioner as a U.D.C. It was pursuant to this selection and approval by the Directorate of Education that appointment letter was issued to the petitioner for his regularization. It is only subsequently that the Directorate of Education has refused to grant-in-aid on the ground that petitioner was overage at the time of grant of recognition to the school or even when the posts were sanctioned.

13. Reference may also be useful to the decision of a learned Single Judge in CW No.1592/2003 in Smt. Amita Majumdar & ors Vs. Govt. of NCT of Delhi & ors decided on 13.1.2004. In the cited case, school had been established by the Officers of Indian Air Force in the year 1976 and was run as an unrecognised school. Recognition was granted in the year 1993. Petitioners were employees of the school prior to the date of recognition i.e. their appointment was between the year 1975 and 1988. When recognition was granted, objections as to the appointment of these employees were not taken. The Directorate of Education also admitted the school for receiving grant-in-aid. However, while sanctioning grant-in-aid, it excluded 12 teachers/non-teaching staff for the purpose of disbursement of grant-in-aid because the said persons were overage. The Directorate of Education took the stand that it had released grant-in-aid only in respect of the member of staff, who were qualified for the appointment as on the date of recognition. The petitioners being overage, were not eligible to be appointed when the school sought recognition and therefore, Director of Education would not release any grant-in-aid for the said petitioners. The learned Judge held as under:-

" There is no provision in the Act and the rules framed there under under requires that no school could employ on its roll any person who was over age as on the date when the school was recognised. Rules prescribe that a recognized school is bound by the norms of age limit prescribed by the Director of Education. Thus, post recognization, a school cannot employ persons who are overage. Say, a school may be established in the year 1980. It recruits persons who would be within the age limit. The school may seek recognition in the year 1990. By 1990, these persons may become over age, but can it said that these persons have to be removed from the school. In my opinion, the answer is no."

14. I am in respectful agreement with the views expressed by the learned Single Judge in Smt. Amita Majumdar's case (supra). In the cited case also, regularization was not granted following the refusal of grand-in-aid.

15. In view of the foregoing discussion, the impugned order is held to be unsustainable and is hereby quashed. The petitioner is entitled to reinstatement forthwith with all consequential benefits. The Directorate of Education shall not withhold grant-in-aid in respect of the petitioner on the ground that petitioner was overage at the time of regularization.