Mrs. S.S. Manohara vs Director Of Education & Ors.
2010 Latest Caselaw 1763 Del

                 *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              WP(C) No.2781/1997

%                                             Date of decision: 5th April, 2010

MRS. S.S. MANOHARA                                          ..... Petitioner
                               Through: Mr. V.K. Rao, Sr Advocate with Mr.
                                        Karan Maini, Advocate.

                                        Versus

DIRECTOR OF EDUCATION & ORS.                  ..... Respondents
                 Through: Ms. Avnish Ahlawat with Ms. Latika
                          Choudhury, Advocates for R-1.
                          Mr. Anil Srivastav, Advocate for R-
                          2&3.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.        Whether reporters of Local papers may
          be allowed to see the judgment?                 Yes

2.        To be referred to the reporter or not?                 Yes

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

RAJIV SAHAI ENDLAW, J.

1. The petitioner by this writ petition seeks direction to the respondents

to pay to the petitioner the pay scale and other allowances and benefits as

of a TGT and a further direction of sanctioning of a post of TGT for the

purposes of grant- in-aid and on such sanction being received, direction for

appointment of the petitioner as a TGT.

2. The petitioner filed the petition stating that the respondents No. 2

being the Andhra Education Society running a chain of schools recognized

and fully aided by respondent No.1 Director of Education had appointed

the petitioner as a TGT in one of the said schools at Janakpuri (impleaded

as respondent No.3) in the year 1986, initially temporarily on a

consolidated pay and after proper selection by duly constituted Selection

Committee, vide appointment letter dated 1st September, 1992 in the pay

scale of Rs.1400-2300. It was the case of the petitioner that though the

petitioner, at the time of filing of this petition in the year 1997 had been

teaching in the said school for more than ten years and had teaching

experience in other schools also, but was being treated as "Society Staff"

because the respondent No.1 Director of Education had not sanctioned the

post of a TGT for grant-in-aid purposes. It is the averment of the

petitioner that though there is a continuous and perennial need for a TGT as

evident from the petitioner having taught in the said school for over ten

years but no such post was being sanctioned for the purposes of grant- in-

aid. It is further the case of the petitioner that the other TGTs in the school

who were performing the same duties as the petitioner but whose salaries

were received by way of aid from the Director of Education were in the pay

scale of Rs. 1400-2600. The petitioner thus on the principle of "equal pay

for equal work" sought the writ/direction aforesaid for payment in the scale

of Rs. 1400-2600.

3. The senior counsel for the petitioner informs that the petitioner has

since superannuated in or about the year 2000. It is contended that the

petitioner is thus not claiming the relief of regularization but is claiming the

relief of grant of the pay scale of a regular TGT for her entire career in the

said school from 1986 till superannuation in the year 2000 or at least from

1992 when she was confirmed and till the age of superannuation in 2000.

4. It was inquired from the senior counsel for the petitioner as to

whether for the appointment of the petitioner the procedure as prescribed in

Rules 96-106 of the Delhi School Education Rules, 1973 had been

followed. The answer is in the negative. Attention of the senior counsel

for the petitioner was then drawn to the judgment dated 26 th April, 2007 of

the Division bench of this court in LPA 1620/2006 titled NCT of Delhi Vs.

Anubha Pant. Ms. Anubha Pant had filed the writ petition seeking a

direction for granting her regular pay scale of Assistant Teacher and for

regularisation of her services in a private unaided recognized school, the

management whereof had been taken over by the Director of Education.

The Single Judge of this court allowed the writ petition and directed the

Director of Education to take a final decision as per Rules 96 & 98 for the

appointment of Anubha Pant. Aggrieved from the said order of the Single

Judge, the LPA was preferred. The Division Bench found that Anubha

Pant was overage at the time of her initial appointment and no

advertisement inviting application had been issued prior to her appointment

and no selection committee constituted for her selection. The Division

Bench thus held that backdoor appointment cannot be regularized and

given legal sanction. The appeal was accordingly allowed.

5. In the present case also the petitioner, at the time of her initial

appointment was overage. No advertisement inviting applications for

appointment was issued and no Selection Committee under the Delhi

School Education Rules was constituted. The present case would thus be

fully covered by the judgment of the Division Bench aforesaid.

6. The senior counsel for the petitioner then contended that even if the

petitioner is not entitled to the relief against the Director of Education, she

would still be entitled to the relief against the respondent No.2 Society

which is running the school, for payment for equal pay for equal work as

the TGTs employed by the school. Attention is also invited to the pleadings

in the petition regarding the petitioner performing the same work and

teaching the same classes as the TGTs who were receiving a higher scale.

Reliance is also placed on Nehru Yuva Kendra Sangathan Vs. Rajesh

Mohan Shukla (2007) 6 SCC 9 where the Supreme Court finding that the

nature of duties being discharged by the Youth Coordinators on deputation

and those who had been directly recruited being the same and the only

difference being their source of recruitment, directed payment of the same

emoluments to the deputationists as to the direct recruits. Reliance is

further placed on Rakhi Sharma Vs. Lt. Governor 1998 (47) DRJ 127

where a Single Judge of this court applying principle of "equal pay for

equal work" directed payment of arrears of difference in the pay to a school

teacher appointed by the Parent Teacher Association and found to be

performing the same job as a teacher appointed by the school.

7. I may notice that in Nehru Yuva Kendra (supra) the rules permitted

deputationists as well as direct recruitment. Thus, it was not that the

appointment of one stream was within the Rules and of the other in breach

of the Rules. It was in that factual background that the Supreme Court

held that the source of recruitment was immaterial. However, in the

present case, though the petitioner claims to be performing the same work

as the teachers appointed under the Delhi School Education Rules, the fact

remains that the appointment of the petitioner is admittedly not as per the

said rules. It was therefore put to the senior counsel as to how the principle

of "equal pay for equal work" could be applied to the present case where

the teachers with whom the petitioner is claiming parity are not at par with

the petitioner. The senior counsel contends that the parity has to be in the

performance of duties and not in appointment. However, the said principle

if applied would run contrary to the judgment of the Supreme Court in

State of Karnataka Vs. Uma Devi (2006) 4 SCC 1 and would tantamount

to permitting first the appointment through means other than those

prescribed in the Rules and then bringing such appointees at par with those

appointed in terms of the Rules. The same cannot be permitted.

8. The counsel for the respondent No.1 Director of Education contends

that the appointment of the petitioner is not against any vacancy to the post

of a TGT in the school. Attention is invited to Rule 75 whereunder the

Director of Education sanctions the post and approves the appointment in

the school. It is contended that neither any approval was sought nor

granted qua the petitioner and thus the petitioner cannot claim any relief

whatsoever of grant in aid qua her salary from the Director of Education.

9. The counsel for the respondents 2 and 3 has besides controverting

that the petitioner was performing the same duties as of TGTs in the school

has at the outset itself drawn attention to State of Haryana Vs. Charanjit

Singh (2006) 9 SCC 321 where after a consideration of a catena of past

judgments it has been held that the doctrine of "equal pay for equal work"

is not an abstract doctrine but equal pay must be for equal work of equal

value; the principle has no mechanical application in every case of similar

work; Article 14 permits reasonable classification based on qualities or

characteristics of persons recruited and grouped together as against those

who are left out; the very fact that the person has not gone through the

process of recruitment may itself, in certain cases, make a difference;

where persons are selected by a Selection Committee on the basis of merit

with due regard to seniority, a higher pay scale granted to such persons

who are evaluated by a competent authority cannot be challenged. It was

further held that nomenclature cannot be determinative and the quality of

work produced may be different and even the nature of work assigned may

be different. It was further held that the application of principle of "equal

pay for equal work" requires consideration of various dimensions of a

given job and before any direction can be issued by a court, the court must

first see that there are necessary averments and proof.

10. Having laid the aforesaid foundation, the counsel draws attention to

the appointment letter of the petitioner where it is expressly mentioned that

the petitioner is as an employee/staff of the society in the aforesaid pay

scale as distinct from employee/staff of the school in the pay scale

prescribed under the Delhi School Education Act. It is also urged that the

pay scale of Rs. 1400-2300 is mentioned in the appointment letter itself and

it has further been clarified that the society/staff shall have no claims to

vacant post in the school receiving grant-in-aid. The counsel for the

society explains that the school caters primarily to the children of natives of

State of Andhra Pradesh settled in Delhi; the said children at times have

difficulty in understanding the English medium of teaching and for that

reason and otherwise need supplementing and for which purpose the

society employs staff such as the petitioner. The counsel describes the

petitioner as a "remedial teacher". It is also contended that the pleadings of

the petitioner qua performing equal work as a TGT are vague and the

documents filed do not prove the petitioner performing equal work as a

TGT. It is argued that though the petitioner has stated that she is teaching

higher classes (though appointed only for primary classes) but has not

made a comparison of the work performed by the TGTs. The contention is

that the petitioner has been performing the work of a TGT not regularly but

only intermittently whenever so required; she has no responsibility for

ensuring the result and is not required to have carried out the assignments

as a TGT is required to carry out. From the documents filed by the

petitioner it is demonstrated that the work of the petitioner as TGT is

periodic and for a few days only in a year. The counsel thus contends that

the petitioner is not entitled to relief against the society also even on the

principle of "equal pay for equal work".

11. The senior counsel for the petitioner in the rejoinder though not

disputing the correctness of the principle laid down in Charanjit Singh

(supra) has also referred to State of Punjab Vs. Surjit Singh (2009) 9 SCC

514 to again buttress that the source of recruitment is immaterial and it is

only the work performed which is to be seen.

12. Applying the principle laid down in Charanjit Singh (supra) I am

unable to hold the petitioner entitled to the relief. The petitioner has failed

to prove that the duties performed by her are same as that of the teachers

whose pay scale she claims. It is not the plea of the petitioner that as a

TGT she was made a class teacher or a subject teacher or responsible for

the result of the students taught by her or taught the said students regularly.

Merely because in the absence of any teacher the petitioner was assigned to

perform her task would not place the petitioner in the same position as the

teachers whose pay scale she is claiming. Moreover allowing the claim of

the petitioner as aforesaid would eliminate the compliance of the Rules

(supra).

The petition therefore fails and is dismissed. However, no order as

to costs.

RAJIV SAHAI ENDLAW (JUDGE) 5th April, 2010 M