Servants Of People Society And ... vs Smt. Sudesh Oberoi And Anr.
2007 Latest Caselaw 1081 Del

JUDGMENT

Hima Kohli, J.

1. The present appeal, filed by the appellants, defendants No. 1 to 4 in the suit, is directed against the judgment and decree dated 17th November, 2001 passed by the learned Additional District Judge whereunder respondents No. 1 and 2, plaintiffs in the suit were declared to be entitled to the benefits of the 5th Pay Commission for the posts held by them as Assistant Teachers, with effect from 1st January, 1996. The appellants were also directed to pay to both respondents No. 1 and 2, a sum of Rs. 1,71,000/- each (comprising of Rs. 1,50,000/- as principal amount Along with interest accrued thereon @ 9% p.a. till the filing of the suit) and pendente lite interest and future interest with proportionate costs.

2. Briefly stated, facts of the case are as follows:- Appellant No. 3 (hereinafter referred to as 'the said school'), is a school run by the appellant No. 1, a registered society. The said school is a Senior Secondary School, in which there are two sections, one is the Senior Secondary School and the other is the Primary Section. Both the schools are recognized by the Directorate of Education, respondent No. 3. While the primary section is unaided, the senior secondary school is an aided one. Respondents No. 1 and 2 were initially working with the said school as teachers for more than the last 38 years and lastly, they were working as Assistant teachers. Respondents No. 1 and 2 stated that they were appointed against the certificate which they had obtained from the Indian Council for Child Welfare, Bal Sevika Training Course, which was duly recognized by the Government of India, Delhi State and after their appointment, they received all benefits against their post including the benefits as per the Fourth Pay Commission recommendations, but the appellants refused to grant them the benefits of the 5th Pay Commission despite various requests made by them, as also letter dated 25th October, 2000 issued to the school by the Additional Director of Education. Having failed to receive any positive reply from the appellants, respondents No. 1 and 2 filed a civil suit for declaration, mandatory injunction and recovery of Rs. 3,80,000/- against the appellants, while impleading Director of Education as defendant No. 5 therein, (respondent No. 3 herein), who was proceeded against ex parte. The appellants filed their written statement wherein they raised certain preliminary objections on the grounds that the respondents No. 1 and 2 did not possess the minimum qualifications as prescribed by the Department of Education vide its letters dated 8th September, 1998 and 16th April, 1999 read with Rule 100 of the Delhi School Education Rules, 1973 (in short 'the Rules') which shows that only those employees were entitled to the benefits of the 5th Pay Commission who possessed the minimum qualifications as prescribed at the time of their initial appointment. An objection was also taken as regards the jurisdiction of the civil court, by referring to the provisions of Section 28 read with Section 25 of the Delhi School Education Act, 1973 (hereinafter referred to as 'the Act'). However, negativing the aforesaid two contentions of the appellants, the impugned judgment and decree was passed thereby declaring that respondents No. 1 and 2 were entitled to all the benefits of the 5th Pay Commission and the appellants were directed to pay to respondents No. 1 and 2, a sum of Rs. 1,71,000/- each with interest thereon, as also pendente lite and future interest with proportionate costs. Aggrieved by the aforesaid judgment and decree, the appellants have filed the present appeal.

3. During the course of arguments, learned Counsel for the appellants submitted that since respondents No. 1 and 2 did not possess the minimum requisite qualification for the post of Assistant Teacher, they were not entitled to the benefits under the 5th Pay Commission. It was stated that Rule 100 of the Rules prescribed minimum qualifications for appointment of teachers, and that at the relevant time, as per notification issued by the Department of Education, the prescribed qualification for the post of Assistant Teachers was that of Matric and JBT/BTC, while respondents No. 1 and 2 were merely matric pass and held certificates issued by the Indian Council for Child Welfare, Bal Sevika Training Course, which were not equivalent to any other minimum requisite teaching degree for appointment to the post of Assistant Teacher. It was further submitted that inspite of having been advised by the appellants both orally and in writing, respondents No. 1 and 2 did not upgrade their qualifications at least to the minimum qualifications required for an Assistant Teacher at the time of their initial appointment, for which reason also, they were not entitled to be granted the benefits under the 5th Pay Commission and that they were not even legally entitled to benefits under the Fourth Pay Commission, but these were released to them as a gesture of goodwill only on account of their long association with the school and their assurance that they would upgrade their educational qualifications. In support of his contention, learned Counsel for the appellants relied on a judgment of this Court in the case of Prem Lata Datta v. Union of India and Ors. reported as 2004 (3) All India Services Law Journal 274, wherein the petitioner was appointed as an Assistant Teacher at a time when the school was unrecognized. Later, while recognizing the school, minimum education qualification of JBT was made compulsory, about which the petitioner was duly informed and was asked to acquire JBT. The petitioner, however, insisted that her certificate of Bal Sevika was equivalent to JBT. But the Director of Education did not accept it as a recognized qualification and consequently her services were terminated by the management of the school. It was in this context that it was held by this Court that since the petitioner did not qualify for the post of Assistant Teacher, therefore, it was not a case of termination for misconduct etc. so as to be covered under Section 8 of the Act, but it was merely a case of non-confirmation for lack of qualifications and accordingly the petition was dismissed.

4. The other plea raised by the learned Counsel for the appellants was that the trial court wrongly arrived at a conclusion that the civil suit instituted by respondents No. 1 and 2 was not barred under the provisions of the Act and that the said conclusion was based on a misappreciation of Sections 3, 10, 25 & 28 of the Act, a plain reading of which would show that the suit instituted by respondents No. 1 and 2 was actually barred and not maintainable and that respondents No. 1 and 2 could only approach the Administrator and not the Civil Court for redressal of their grievances.

5. We have heard the submissions made by the learned Counsels for the parties. We have also perused the impugned judgment and decree.

6. The first objection taken by the appellants is that the Civil Court was not the appropriate forum for seeking the said relief in view of the same being barred under the provisions of the Act. For the purposes of dealing with the aforesaid contention raised by the learned Counsel for the appellants, it is necessary to peruse the relevant provisions of the Act.

7. Section 3 of the Act deals with the powers of the Administrator to regulate education in all the schools in Delhi. Section 10 stipulates, amongst others, that scales of pay and allowances, medical facilities, pension, retirement benefits and other prescribed benefits of the employees of a recognized private school shall not be less than those of the employees of corresponding status in schools run by the appropriate authority and in case it is found to be less, the appropriate authority shall be entitled to direct, in writing, the managing committee of such a school to bring the same up to the levels of those employees of the corresponding status in schools run by the appropriate authority. Section 25 of the Act stipulates that no Civil Court shall have jurisdiction in respect of any matter in relation to which the Administrator or the Director or any other person so authorised or specified under the Act, is empowered by or under the Act to exercise any power. Section 28 of the Act deals with the power of the Administrator to make rules to carry out the provisions of the Act, with previous approval of the Central Government and subject to the condition of previous publication.

8. The plea of lack of jurisdiction in Civil Courts can be tested on the anvil of the provisions of Section 8 of the Act which specifies the terms and conditions of service of employees of recognized private schools and Sub-section (3) thereof provides that any employee of a recognized private school who is dismissed, removed or reduced in rank may, within three months from the date of communication of such order of dismissal to him, appeal against the same to the Tribunal constituted under Section 11, namely, the Delhi School Tribunal.

9. In the present case, respondents No. 1 and 2 have not sought redressal in respect of any grievance pertaining to their dismissal, removal or reduction in rank. Their plea in the suit was for release of the benefits under the 5th Pay Commission to them by the appellants. However, the statute does not provide any machinery for seeking the said relief. The jurisdiction of Civil Courts is excluded by Section 25 only in respect of any matter in relation to which the Administrator or the Director or such other person as mentioned therein is empowered to exercise any power. With regard to the matters where the aforesaid authorities are not empowered to exercise their powers, as in the present case, the Civil Court shall retain the jurisdiction to entertain a suit and grant interim orders therein. Section 9 of the Code of Civil Procedure (in short 'CPC') provides that the Civil Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

10. For the aforesaid reasons, the appellants cannot be heard to state that the Civil Court did not have jurisdiction to try and entertain the suit instituted by respondents No. 1 and 2. Thus the finding given in the impugned judgment while dealing with the issue No. 2 with regard to the jurisdiction, cannot be interfered with. Useful reference in this regard can be made to the observations of the Supreme Court in the case of I.T.I. Ltd. v. Siemens Public Communications Network Ltd. reported as , wherein while dealing with the provisions of Section 37 of the Arbitration and Conciliation Act, 1996 which provides for appeal, it was held that notwithstanding the fact that the CPC is not specifically made applicable, initiation of revision proceedings would not amount to judicial intervention, as provided under Section 5 of the Act, and in this context it was observed as below:

Para 10 : We do not agree with this submission of the learned Counsel. It is true in the present Act application of the Code is not specifically provided for but what is to be noted is : Is there an express prohibition against the application of the Code to a proceeding arising out of the Act before a Civil Court? We find no such specific exclusion of the Code in the present Act. When there is no express exclusion, we cannot by inference hold that the Code is not applicable.

Para 11 : It has been held by this Court in more than one case that the jurisdiction of the Civil Court to which a right to decide a lis between the parties has been conferred can only be taken by a statute in specific terms and such exclusion of right cannot be easily inferred because there is always a strong presumption that the Civil Courts have the jurisdiction to decide all questions of civil nature, therefore, if at all there has to be an inference the same should be in favor of the jurisdiction of the Court rather than the exclusion of such jurisdiction and there being no such exclusion of the Code in specific terms except of the extent stated in Section 37(2), we cannot drawn an inference that merely because the Act has not provided the C.P.C. to be applicable, by inference it should be held that the Code if inapplicable. This general principle apart, this issue is now settled by the judgment of a three Judge Bench of this Court in the case of Bhatia International v. Bulk Trading S.A. And Anr. in C.A. No. 6527/2001 decided on 13-3-2002 wherein while dealing with a similar argument arising out of the present Act, this Court held : While examining a particular provision of a statute to find out whether the jurisdiction of a Court is ousted or not, the principle of universal application is that ordinarily the jurisdiction may not be ousted unless the very statutory provision explicitly indicates or even by inferential conclusion the Court arrives at the same when such a conclusion is the only conclusion.

11. Similarly, in the case of Sahebgouda (dead) by Lrs. and Ors. v. Ogeppa and Ors. reported as , the Supreme Court while deciding the issue relating to the jurisdiction of the Civil Court to entertain the suit instituted by the appellants therein, in the context of the bar imposed by Section 80 of the Bombay Public Trusts Act, 1950, held as below:

Para 8 : The question whether the suit filed by the appellants is barred by the provisions of Section 80 of the Act has to be examined in the light of the provisions referred to above. Section 9 of the Code of Civil Procedure clearly lays down that the civil court shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. It is well settled that the civil court has jurisdiction to try all suits of civil nature and the exclusion of jurisdiction of the civil court is not to be lightly inferred. Such exclusion must be either explicitly expressed or clearly implied. In Musamia Imam Haider Bax Razvi v. Rabari Govindbhai Ratnabhai this Court observed that it is necessary to bear in mind the important principle of construction which is that it a statute purports to exclude the ordinary jurisdiction of a civil court it must do so either by express terms or by the use of such terms as would necessarily lead to the inference of such exclusion. This principle was reiterated in Dewaji v. Ganpatlal .

Para 9 : It is also well settled that a provision of law ousting the jurisdiction of a civil court must be strictly construed and onus lies on the party seeking to oust the jurisdiction to establish his right to do so. In Sri Vedagiri Lakshmi Narasimha Swami Temple v. Induru Pattabhirami Reddi Subba Rao, J. speaking for the Court held as under in para 13 of the Report:

13. Under Section 9 of the Code of Civil Procedure, the courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. It is a well settled principle that a party seeking to oust jurisdiction of an ordinary civil court shall establish the right to do so. Section 93 of the Act does not impose a total bar on the maintainability of a suit in a civil court. It states that a suit of the nature mentioned therein can be instituted only in conformity with the provisions of the Act; that is to say, a suit or other legal proceeding in respect of matters not covered by the section can be instituted in the ordinary way. It therefore imposes certain statutory restrictions on suits or other legal proceedings relating to matters mentioned therein.

12. The aforesaid position of law was also reiterated in the case of Dwarka Prasad Agarwal (D) by L.Rs. and Anr. v. Ramesh Chandra Agarwala and Ors. reported as as below:

Para 22 : The dispute between the parties was eminently a civil dispute and not a dispute under the provisions of the Companies Act. Section 9 of the Code of Civil Procedure confers jurisdiction upon the civil Courts to determine all disputes of civil nature unless the same is barred, under a statute either expressly or by necessary implication. Bar of jurisdiction of a civil Court is not to be readily inferred. A provision seeking to bar jurisdiction of civil court requires strict interpretation. The Court, it is well-settled, would normally lean in favor of construction, which would uphold retention of jurisdiction of the civil Court. The burden of proof in this behalf shall be on the party to asserts that the civil Court's jurisdiction is ousted. See Sahebgouda (dead) by Lrs. and Ors. v. Ogeppa and Ors. 2003 (3) Supreme 130. Even otherwise, the civil Court's jurisdiction is not completely ousted under the Companies Act, 1956.

13. Now we come to the second and the only other plea taken by the appellants, i.e., whether respondents No. 1 and 2 were entitled to claim the benefits under the 5th Pay Commission, as regards which it was submitted that Section 28(2)(g) of the Act empowered the Administrator to make rules with respect to minimum qualifications, the method of recruitment, and the terms and conditions of service of the employees and such a provision read with Rule 100 of the Rules which prescribes minimum qualifications for appointment of the teachers, supports the plea of the appellants that as respondents No. 1 and 2 did not fulfilll the minimum qualifications required for the post of Assistant Teacher, they were not entitled to grant of the benefits under the 5th Pay Commission.

14. At first blush, there appears considerable merit in the contention of the appellants that respondents No. 1 and 2, without fulfillling the minimum educational qualifications as prescribed in the relevant Rules to make them eligible to be appointed as Assistant Teacher, could not seek the benefits payable under the 5th Pay Commission. In the case of Prem Lata (supra) the court was dealing with different situation altogether. In that case, the services of the said teacher were dispensed with as she did not possess minimum qualification and that action was upheld. Fact of the matter here is that notwithstanding the fact that respondents No. 1 and 2 did not possess the requisite qualifications in terms of the provisions contained in the Act and Rules, the appellants chose to retain them in service unlike in Prem Lata Case (supra). Not only this, the appellants even decided to release the benefits under the Fourth Pay Commission to them. Having done so of their own free will, the appellants themselves waived the objection with regard to lack of minimum educational qualifications of respondents No. 1 and 2 as a purported ground to deny them the benefit of pay fixation. Having once done so and releasing the benefits under the Fourth Pay Commission to them, the appellants cannot be permitted to reprobate when it came to the grant of the benefits under the 5th Pay Commission to the said respondents. Once fitment is given to the respondents No. 1 and 2 in the scales provided under the Fourth Pay Commission, now the question is only further revision of pay as per the 5th Pay Commission.

15. It is also not out of place to note that the appellants did not pay any heed to the instructions issued by respondent No. 3, Director of Education, as contained in the letters dated 16th April and 16th September, 1999 by which the appellants were directed to release the 5th Pay Commission benefits to respondents No. 1 and 2 with immediate effect. The record reflects that an appeal was preferred by respondents No. 1 and 2 against the aforementioned order passed by the Assistant Director of Education, which was rejected by the department and duly communicated to the appellants vide order dated 3rd April, 2000 clearly stating inter alia as below:

This is with reference to the appeal made by your before the Director of Education vide your letter dated 28.2.2000. Your appeal was considered by the Addl. Director of Education who has observed that these two teachers were employed on 1.8.62 and 17.9.62 cannot be deprived off their legitimate rights in accordance with the self-created thought and conditions of services. They have completed 38 years of service and so far they have enjoyed all the service benefits as per rules. As such it is directed in very clear terms that all the benefits for which these teachers are entitled should be immediately released without making any hypothetical obstructions.

A compliance report may be submitted within a week's time on receipt of this letter as the same is to be apprised to the Director of Education.

16. Despite the aforesaid directions, the appellants refused to release the benefits under the 5th Pay Commission to respondents No. 1 and 2 and instead continued to correspond with respondent No. 5 on the said issue, by making representations for reconsideration of its earlier decision.

17. In view of the aforesaid facts and circumstances, the plea of the appellants that merely because they had released all the benefits up to the Fourth Pay Commission to respondents No. 1 and 2 of their own free will and volition, they were under no legal obligation to release the benefits of the 5th Pay Commission as well to them, is devoid of merits. Having waived their right to enforce the conditions with regard to minimum requisite qualifications of Assistant Teacher at the time of their appointment, i.e. in the year 1962, and even after the Act and the Rules were notified, i.e. in the year 1973, by releasing the benefits of the Fourth Pay Commission to respondents No. 1 and 2, the learned Additional District Judge cannot be faulted in holding that as a consequence thereof, the respondents No. 1 and 2 were also entitled to receive the benefits under the 5th Pay Commission, for the posts held by them, from the appellants.

18. In view of the factual position as obtained in the present case and the position of law as discussed above, we have no hesitation in upholding the impugned judgment and decree. As a result, the appeal fails and is dismissed. There shall be no order as to costs.