Ajit Singh vs Directorate Of Education And Ors. ...
2005 Latest Caselaw 186 Del

JUDGMENT

Vikramajit Sen, J.

1. One of the questions which has arisen in these writ petitions is the interpretation to be given to Rule 117 of the Delhi School Education Rules, 1973 (hereinafter referred to as the "Rules"). The increments of pay of the Petitioners have been withheld for reasons which the Management of the School has endeavored to disclose for the first time in these proceedings. However, no correspondence was issued to the Petitioners putting them to notice, or requiring them to show cause why their increments should not be withheld. The principles of natural justice, therefore, appear to have been violated.

2. Learned counsel for the Management had contended that since the Petitioners assert that minor penalties have been imposed on them they ought to have taken recourse to the alternative remedy of approaching the Delhi School Education Tribunal. Counsel for the petitioners, however, draws my attention to Rule 119 of the Rules which states that no order imposing minor penalties should be passed except after informing the employee in writing of the proposal to take such action against him. However, no Notice has admittedly been issued. Where a Statute or extant Rules and Regulations have been violated, a writ petition is maintainable even though there may appear to be an alternative remedy. In my view the alternative remedy would apply to the circumstances which attended the imposition of a minor or a major penalty. Where the allegation and grievance is that the mandatory procedure has not been adhered to a writ petition would undoubtedly lie, so that such provisions are complied with. In these cases the Court does not touch upon the merits of the decision itself.

3. Learned counsel has relied on the judgment of the Division Bench of this Court in L.R. Sharma vs. Delhi Administration and Ors., 1982 Lab.I.C. 317, authored by Prakash Narain, CJ. In that judgment the Court took into notice the formation of the Management Committee prior to the coming into the effect of the Delhi School Education Act, 1973 (hereinafter referred to as the "Act ") . Reliance is also placed on the judgment of the Full Bench in Master Vibhu Kapoor vs. Council of Indian School Certificate Examination and Anr., , where the Full Bench presided over by Prakash Narain, CJ preferred his earlier view expressed in L.R. Sharma's case (supra) to that of another Division Bench decision in Miss Kum Kum Khanna vs. The Mother Acquinas, Principal, Jessus and Marry College, Chanakyapuri, New Delhi, . In the last two decades considerable advancement has been achieved on the question of the legal propriety of issuance of writs by High Courts under Article 226 of the Constitution. It is now permissible to issue prerogative writs even in respect of bodies which may not strictly fall within the ambit of "State" as envisaged in Article 12 of the Constitution. There can be no gainsaying that a School which is running in compliance with the statutory provisions of the Delhi School Education Act performs a public duty or function. Even in respect of unaided schools, High Courts have issued writs in respect of matters such as scales of fees as well as admission of students. The Hon'ble Supreme Court had exercised jurisdiction even in respect of a minority unaided school such as Frank Antony Public School, Delhi. It is to late in the day to assert that the extra-ordinary jurisdiction vested in the High Court cannot extend to such bodies.

4. Learned counsel for the Respondents have further contended that after the introduction of the Vth Pay Commission the old regime, where "efficiency bar" had to be crossed, has been eradicated and now a person is not automatically entitled to yearly increments. Even if this is so, where an employee is not being extended the benefit of his yearly increment because of his inefficiency, principles of natural justice mandate that he should be put to notice. This amounts to an adverse entry in his Confidential Report. This has admittedly not been done in all the petitions before me.

5. There is another related question which pertains to the Form envisaged in Rule 112 i.e. the Form of the Confidential Report. This issue arises because some of the petitioners had declined to fill up the Confidential Reports on the ground that the Management had made some alterations in the Form, adopted by the School. The Delhi School Education Act and Rules enjoin the Administrator to prescribe the Form of the Confidential Report. The Administrator, in this case the Hon'ble Lt. Governor, can delegate his powers to the Director. It has been contended on behalf of the Respondents that a reading of Section 2(e) and (g) shows that the Director can further delegate his powers. I am unable to accept this argument since the Director, in the case of the Form under Rule 112 is, himself a delegatee of the Administrator. If the Director is to be further permitted or empowered to delegate powers which must be exercised by the Administrator, specific provision are required and such powers cannot be exercised through an inferential exercise. Since the Form of the Confidential Report has not been settled, if these powers are delegated by the Administrator to the Director, the Director should take requisite steps within 90 days. It is not in dispute that a format of the Confidential Report is in wide circulation. All that is required is that the Administrator/Director as his delegatee should peruse the Form and, if found fit, should give his approval thereto.

6. The adherence to the Vth Pay Commission cannot have the effect of overriding statutory provisions and Rules framed there under. The provisions of the Vth Pay Commission, therefore, would not prevail over Rule 117 which deals with the withholding of increment of pay, and envisages them to be in the nature of minor penalties. In all such cases the procedure prescribed under Rule 119 must be followed.

7. It is in these circumstances that the learned counsel for the Management states that increments shall be granted to the petitioners till the last increment was due i.e. till the current year. The grant of this increment shall not be construed as having absolved the Petitioners of any misconduct which is alleged to have been committed by them. In other words, for the current year the Management would be free to act upon the previous alleged misconduct with the rider that in case these acts are to be taken into consideration, the Management will notify the Petitioners to this effect. Rule 119 must be meticulously followed. It may remain advisable that the delinquent employees, such as the petitioners before this Court are portrayed to be, are afforded opportunity of being heard.

8. In these circumstances, there is no necessity to deal with the facts of each individual case.

9. In the absence of any prescribed or settled format of the Confidential Report the petitioners shall fill up the Confidential Reports in the Form used by the School, within 60 days from today.

10. In Ajit Singh's case, CW No. 4953/2004, the Management shall take decision on the Petitioners entitlement to the benefits of the ACP Scheme within 90 days from today.

11. Writ petitions are disposed of accordingly.