Smt. Raj Kumari Sachdev & Ors. vs Delhi Cantonment Board
2009 Latest Caselaw 1690 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    WP (C) Nos. 758/1995

%                             Judgment delivered on: 27.04.2009

Smt. Raj Kumari Sachdev & Others ...... Petitioners
                    Through: Ms. Anu Bagai, Advocate

                     versus

Delhi Cantonment Board               ..... Respondent
                   Through: Mr.R. Wanavaty, Advocate

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.      Whether the Reporters of local papers may         Yes
        be allowed to see the judgment?

2.      To be referred to Reporter or not?                Yes

3.      Whether the judgment should be reported           Yes
        in the Digest?

KAILASH GAMBHIR, J. (Oral)

*

1. By way of this writ petition filed under Article 226 of

the Constitution of India, the petitioners seek direction for the

grant of scale of TGT w.e.f. 10.8.1989 from which date as per

the petitioners they were discharging their duties on the said

post.

2. Brief facts to decide the present case are as under:-

All the petitioners are employed as Assistant Teachers

in the Middle School, Uri Enclave, Delhi Cantt. being run and

managed by the Delhi Cantonment Board/Respondent No.1.

This school was earlier a Primary School and was upgraded as

Middle School w.e.f. 10.8.1989 and since then all the petitioners

have been performing the duties as TGT and teaching to the

middle school students. As per the petitioners, the TGT post is

a promotional post on the basis of cent percent quota from the

post of Assistant Teachers based on seniority and this practice

is being adopted and followed by the Cantonment Board in the

country running various middle Schools such as Bareilly,

Faizabad, Fatehgarh, Lansalowne, Meerut, Ranikhet, Varanasi

and Saugor . As per the petitioners, the respondent No.1 in

utter disregard of the principles of natural justice was trying to

fill up the 16 regular posts of TGT by direct recruitment from

open market. It is asserted by the petitioners that in the

schools rule by the Delhi Administration and in the Delhi

Municipal Corporation the post of TGT is to be filled on the

basis of promotion to the extent of 72 per cent from the

Assistant Teacher with five years service. It is further averred

that although the petitioiners have been performing the duties of

TGT but are being paid the salary of Assistant Teachers. The

petitioners sent a legal notice dated 20.1.1995 on the

respondents but despite service of the notice the petitioners

were denied the scale of TGT. Hence the petition.

3. Counsel for the petitioners submits that all the

petitioners are trained graduate teachers and they were

appointed on the post of Assistant Teachers but then the school

being run by the respondent Uri Enclave was a primary

teachers' school and not at the level of middle school. Counsel

further submits that the said school was upgraded to the level

of middle school from 10.8.1989 and since then present

petitioners started teaching to the middle level classes. Counsel

further submits that all these petitioners are trained graduate

teachers and they are fully qualified to be appointed on the post

of TGT as per the provisions of Delhi School Education Act,

1973 and Delhi School Education Rules, 1973 framed

thereunder. Counsel further submits that the post of TGT under

the Rules of the cantonment board is 100% promotional post on

the basis of cent percent quota from the post of the Assistant

Teachers on the basis of the seniority of the Assistant Teachers.

Counsel further submits that the said practice is being adopted

by the respondent in all their middle level schools being run at

various places such as Bareilly, Faizabad, Fatehgarh,

Lansalowne, Meerut, Ranikhet, Varanasi, Saugor, etc. Counsel

further submits that even under the schools run by the Delhi

Government, the post of TGT is filled on the basis of promotion

to the extent of 72% from the Assistant Teachers with 5 years

experience and rest are filled through direct recruitment.

4. Counsel for the petitioner has drawn attention of

this court to the stand taken by the respondent in their counter

affidavit wherein they have admitted that in the year 1992 the

school was upgraded to middle level and accordingly the present

petitioners started teaching students of middle school.

Respondent has also admitted that the petitioners were qualified

to teach the students of middle classes. Counsel thus submits

that under the said unequivocal admission on the part of the

respondent at least the petitioners are entitled to the scale of

TGT w.e.f. 1992 if not from the year 1989.

5. Refuting the said submissions of the counsel for the

petitioner, counsel for the respondent submits that no doubt the

school was upgraded to the middle level in the year 1992 but the

petitioners were never appointed on the post of TGT with the

relevant pay scale. Counsel further submits that if the

petitioners were teaching the middle level school students then

that fact by itself will not entitle them to claim the scale of TGT

level unless the post against which they were appointed was

duly sanctioned or they were appointed on the said post after

following the due process of law. Counsel further submits that

the respondent also disputes this position that the post of TGT is

a 100% promotion post as already direct recruitment

appointment was made by the respondent on the said post in the

year 2005. Counsel for the respondent also submits that

sanction for promotion on the post of TGT was received by the

respondent only on 1.9.1995 and based on that the petitioners

were permitted on the said post w.e.f. 30.10.2005. Counsel thus

states that the petitioners cannot claim entitlement on the post

of TGT or the pay scales admissible to TGT either effective from

10.8.1989 or from the order dated 1992 when factually the

sanction for the said posts was received by the respondent only

on 30.10.2005.

6.            I      have heard counsel for the parties and gone

through the record.

7. The present petitioners were initially employed on the

post of Assistant Teachers in the pay scale of Rs.330. At the

time of appointment of these petitioners, the said school was

only upto the primary level and since the said students studying

in the primary level with the advancement of the classes of

these schools being run under the control of the respondent

No.1 were upgraded upto the middle level and the present

petitioners thereafter started teaching the students upto the

middle level besides teaching the primary school students as

well. It is not in dispute that the recommendation was made by

the Director of Education on 14.9.1992 to the said upgradation

of that school upto the middle level. The said upgradation came

on a request made by the respondent vide letter dated 8.6.1992.

The school being run by the respondent cantonment Board are

unaided schools. This fact is clearly borne out from the said

letter dated 14.9.1992. In the counter affidavit filed by the

respondent they have taken a stand that the petitioners had

started teaching middle classes when the primary schools being

run by the respondent were given recognition by the Director of

Education in the year 1992. The respondent has also not

disputed that the present petitioners were duly qualified to teach

the students of the middle classes level but since no sanction

was obtained by them from the competent authority, therefore,

they were not entitled to the scales payable before the sanction

was received by the respondent, therefore they were not

admissible for the grant of scales payable to TGT employees.

Although, the petitioners have claimed that they were teaching

to the middle level classes from the year 1989 but they are

ready to accept the period as stated by the respondent to be

taken into consideration for granting scales to the petitioners

from the year 14.9.1992 when DOE allowed upgradation of

school from primary to middle level. Once the respondent has

taken the stand that these petitioners were teaching to the

middle level students from the year 1992 and these schools were

also given recognition by the Director of Education for

upgrading the schools from the primary level to the middle level,

then, necessarily the respondent was to initiate steps to either

grant promotion to the teachers working on the post of Assistant

Teacher or to take steps for direct recruitment in accordance

with their rules. Undoubtedly, no such steps were taken by the

respondent with the result that these petitioners kept on

discharging their duties to teach the students of the middle level

as well. Respondent has not disclosed in the counter affidavit

as to when the steps were taken by it to obtain necessary

sanction for the appointment of regular teachers on the post of

TGT either based on promotion or through direct recruitment.

Only reliance placed by the respondent is upon letter dated

1.9.2005 which shows that the sanction of the GOC-in-C Under

Rule 47 of the Cantonment Account Code, 1924 was received for

the appointment of 41 posts of Assistant Teachers in the scale of

4500-7000 to TGT in the pay scale of 5500-175-9000 after the

upgradation of the primary school to the middle level. No other

communication has been placed on record to show any earlier

steps taken by the respondent to seek sanction for the

appointment of TGT against the said 41 vacancies.

8. Also, it is well known that the difference of grades in

a service are as per varying qualifications and accordingly

different pay scales are fixed for different grades. The

respondents have sidelined the basic feature of our Constitution

as enshrined in the concept of socialism by refusing pay scale

and post of TGT to the petitioners herein.

9. In view of the above discussion, the respondents are

directed to pay the entire arrears within a period of two months

from the date of this order to the petitioners on the scale of TGT

w.e.f. 14.9.1992. The respondents are also directed to consider

the case of petitioners for promotion to the post of TGT in terms

of the recruitment rules of Delhi Cantonment Board within a

period of six months from the date of this order subject to

fulfillment of eligibility criteria by the petitioners after giving

due benefit of their past service on the post of TGT.

10. In view of the above discussion, the petition is

allowed with above directions.

April 27, 2009                         KAILASH GAMBHIR, J.
pkv