Delhi High Court

Smt. Mridul Sharma vs Director Of Education & Ors. on 6 August, 2010

Author: Manmohan Singh

*              HIGH COURT OF DELHI : NEW DELHI

+                     WP (c) No. 8069 of 2008

                                Decided on :   6th August, 2010

Smt. Mridul Sharma                                 .....Petitioner
                      Through : Mr. S.K. Shukla, Advocate.

                      Versus

Director of Education & Ors                    ....Respondents
                    Through     : Ms. Purnima Maheshwari, Adv. for
                                  Respondents No. 1 & 2.
Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                             No

2. To be referred to Reporter or not?                          Yes

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

MANMOHAN SINGH, J.

1. The present writ petition has been filed by the petitioner

under Articles 226 and 227 of the Constitution of India praying for a

writ of Mandamus or directions to the respondents to pay gratuity

to the petitioner and to issue order/ direction (s) to pay the

compound interest @ 12% from 17.11.2000 till the actual date of

payment.

2. The brief facts of the case are that the petitioner was

appointed as a TGT (Science), trained graduate teacher at the

Satya Wati Sood Girls Sr. Sec School Nizamuddin East, New Delhi

on 27.02.1989 and thereafter from 01.06.1999 to 30.06.2001

attended service training programs from time to time. In the year

2002, her husband was posted out of Delhi and therefore to be with

her family she took E.O.L (Extra Ordinary Leave without pay) from

01.04.2002 to 16.11.2004 although her leave was granted upto

31.03.2005. The petitioner on the insistence of the Principal

submitted her resignation on 17.11.2004 in which she had clearly

written as under : " I am enclosing my claim for pension and

retirement benefits in triplicate for necessary action"

3. Vide letter No.SA/98/1/2005/366 dated 15.12.2005 the

petitioner was directed to deposit three months notice period salary

with the resignation letter. Complying with these instruction the

petitioner deposited Rs. 34,500/- (Rupees Thirty four thousand and

five hundred only) in the State Bank of India R. K. Puram, New Delhi

vide challan No. 3 on 22.05.2006. As per the petitioner, she

contacted the respondent No.4 many times over the phone and

also personally while she was in Delhi for to get her Provident Fund

and Retirement benefits released but she did not get any response.

Her last representation dated 05.06.2007 was sent to all the

respondents on their official address by speed post but still there

was no response from the respondents.

4. The petitioner on 26.07.2007 filed an appeal in Delhi

School Tribunal bearing Appeal No. 25/2007 and on 03.09.2007

received an Account Payee cheque of Rs. 1,24,260.60p/- on

account of final withdrawal of her Provident Fund. The appeal filed

before Delhi School Tribunal was withdrawn in view of the

judgment in the case of Sonica Jaggi Vs Lt. Governor & Ors,

152 (2008) DLT 601 (DB) wherein it was observed as under:

"It is nowhere suggested in the Kathuria Public School case that the fixation of salary can be subject matter of an appeal before the Tribunal."

5. The petitioner filed the present writ petition requesting

for directions to be issued to the respondents for payment of her

gratuity in terms of Section 10 (1) of Delhi School Education Act,

1973 and in terms of Notification dated 15.10.1975 passed by the

Administrator, Union Territory of Delhi.

6. It is not in dispute that the claim raised by the petitioner

in the petition is for grant of gratuity. On this aspect, in the case of

Ahmedabad Pvt. Primary Teachers' Association Vs.

Administrative Officer and Ors. (2004) 1 SCC 755 the Apex

Court of India in para 26 has observed as under:

"26. Our conclusion should not be misunderstood that teachers although engaged in very noble profession of educating our young generation should not be given any gratuity benefit. There are already in several States separate statutes, rules and regulations granting gratuity benefits to teachers in educational institutions which are more or less beneficial than the gratuity benefits provided under the Act. It is for the Legislature to take cognizance of situation of such teachers in various establishments where gratuity benefits are not available and think of a separate legislation for them in this regard. That is the subject matter solely of the Legislature to consider and decide."

7. Section 10 (1) of Delhi Education Act, 1973 reads as

under : "10 salaries of Employees-"(i) the scales of pay and

allowance, medical facilities, pension gratuity , provident fund and

other prescribed benefits of the employees of a recognize private

school shall not be less than those of the employees of the

corresponding status in school run by the Appropriate Authority."

Rule 73(3) of the Delhi School Education Rules reads as

under: "73(3) The recurring maintenance grants are :-

            (a)          Staff grant
            (b)          Provident Fund grant

            (c)  Pension and retirement benefit grant
            ............."

8. Vide order no.29352995 dated 30.04.04 the Director of

Education Govt. of NCT Delhi issued clarification regarding the

payment of gratuity on resignation and observed that the

provisions of Payment of Gratuity Act, 1972 are applicable to

Educational institutions as well as in accordance with Proviso of

Section 10 (1) of the Delhi Education Act, 1973 and Rule 49 (i) of

the CCS Pension Rules.

9. The relevant provisions of the payment of Gratuity Act

1972 are:

"Section 4(i) Gratuity shall be payable to an employee on the termination of his employment after he had rendered continuo service for not less than five years.

(a) On his superannuation or

(b) On his retirement or resignation or"

"Section 7(3) The employer shall arrange to pay the amount of Gratuity within the thirty days from the date it becomes payable to the person to whom gratuity is payable."

10. In the Counter Affidavit filed by the respondent Nos.1

& 2 it is submitted that as per the Rule 26 (1), CCS Pension Rules

1972 the person forfeits her part of service on resignation. The rule

reads as under:

"26. Forfeiture of Service on Resignation: (1) Resignation from a service or a post, unless it is allowed to be withdrawn in the public interest by the appointing authority, entails the forfeiture of past services."

11. According to the respondents, since the petitioner has

resigned from the service on her own she has forfeited her right of

past service and therefore, is not entitled to pension, gratuity or

terminal benefits.

12. In regard to the gratuity benefit, the notification no.

F.4(56)/74 Accts. dated 17.10.1975 was issued by the Education

Department, Delhi Administration which made the provisions of the

payment of Gratuity Act, 1972 applicable to the educational

institution as well as in accordance with proviso of sub-section (1)

of Section 10 of the Delhi School Education Act, 1973 and rule 49

(1) of CCS Pension Rules. Admittedly, the petitioner was an

employee of Satyawati Sood Arya Girls Sr. Sec. School, Nizamuddin