Darshana Bhandari vs Directorate Of Education & Anr.
2010 Latest Caselaw 2575 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of Judgment: 14.05.2010

+                            W.P (C) 6583/1999

DARSHANA BHANDARI                                              ......Petitioner
                                     Through:   None

                             Versus

DIRECTORATE OF EDUCATION & ANR.         .......Respondents
                      Through: Mr. Rakesh Agarwal &
                                Mr. Pulkit Agarwal,
                                Advocates
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

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

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

  3. Whether the judgment should be reported in the Digest?
                                                       Yes
INDERMEET KAUR, J. (Oral)

1. The petitioner is aggrieved by the communication dated

20.07.1999 and also the second communication dated 08.10.1999

vide which the Director of Education had permitted the

respondent no. 2 school to discontinue the subject of Physical

Education with the rider that the services of the petitioner namely

Ms. Darshana Bhandari should be continued for utilization for

other general physical education activity in the school. Vide the

second communication dated 08.10.1999 the respondent school

had given an option to the petitioner to get her post reduced from

PGT to TGT (physical education) failing which her services would

be terminated. Both these communications are under challenge

and the subject-matter of this writ petition.

2. Factual Matrix of the case is as follows:

(i) The petitioner was appointed against a regular post of PGT

i.e. physical education teacher on 10.05.1990.

(ii) On 16.6.1992, her services were confirmed.

(iii) Around February, 1999, the respondent school wrote to the

Director of Education seeking permission to close down physical

education as a subject as a senior secondary education as there

were not enough students who were opting for the said subject .

(iv) The Director of Education vide letter dated 20.07.1999

permitted the school to discontinue with the subject with the

condition that the services of the present petitioner namely Smt.

Darshana Bhandari would be continued for utilization for other

general physical education activity in the school.

(v) Petitioner has challenged this communication. It is stated

that under the Delhi School Education Rules, the physical

education even otherwise is a compulsory and mandatory subject

and the services of the petitioner were required in the school. She

has illegally been reduced in rank from PGT to TGT.

(vi) On 24.9.1999, the respondent school gave an option to the

petitioner to give her consent for her reversion as a TGT which

was declined by her vide letter dated 28.09.1999.

(vii) A second communication was addressed to her by the school

on 08.10.1999 giving her an outer limit of three days to either

accept her reversion to TGT or else she shall face termination as it

was stated that the petitioner had fallen in the „surplus‟ category.

(viii) The petitioner having little choice had agreed for her

reversion vide her letter dated 12.10.1999 reserving her right to

address her grievances before the appropriate forum.

(ix) Her representation to the Director of Education on

20.10.1999 received no response.

(x) Present writ petition was filed on 28.10.1999.

3. Counter affidavit has been filed by respondent no. 2.

Respondent no. 1 has not filed any response. In the counter filed

by the respondent school the factual averments are not in dispute.

It is, however, submitted that since physical education had been

abolished as a subject in the school, the services of the petitioner

had fallen surplus and as such it had become necessary to reduce

her in rank from PGT to TGT.

4. The Delhi School Education Rules, 1973 also prescribed

physical education as a subject; reference may be made to Rule 29

of the said Rules. Be that as it may, learned counsel for the

respondent has drawn the attention of this Court to Section 8 sub-

clause (2) and sub-clause (3) which are the terms of service of

employees of recognized private schools as engrafted in the Delhi

Education Rules 1973. They inter alia reads as follows:

"8. Terms and conditions of service of employees of recognized private schools -

(1) .... ..... .....

(2) Subject to any rule that may be made in this behalf, no employee of a recognised private school shall be dismissed, removed or reduced in rank nor shall his service be otherwise terminated except with the prior approval of the Director.

(3) Any employee of a recognised private school who is dismissed, removed or reduced in rank may, within three months from the date of communication to him of the order of such dismissal, removal or reduction in rank, appeal against such order to the Tribunal constituted under section 11."

5. The Tribunal has been constituted under Section 11 of the

said Act. Sub clause (1) states that the Administrator shall, by

notifications, constitute a Tribunal, to be known as the "Delhi

School Tribunal". Sub clause (5) states that the Tribunal shall have

power to regulate its own procedure in all matters arising out of

the discharge of its functions including the place or places at

which it shall hold its sitting. Sub clause (6) states that the

Tribunal shall for the purpose of disposal of an appeal preferred

under this Act have the same powers as are vested in a court of

appeal by the Code of Civil Procedure, 1908, (5 of 1908) and shall

also have the power to stay the operation of the order appealed

against on such terms as it may think fit.

6. The grievance of the petitioner is that she has been reduced

in rank from PGT to TGT. This condition of her service is a dispute

which falls within the ambit and scope of the Delhi School

Education Tribunal. The petitioner has admittedly not approached

the said forum. The rules stipulate that the aggrieved employee

will approach the Tribunal within three months from the date of

the communication to him of his order either of dismissal, removal

or reduction in rank.

7. Since, the petitioner has an alternate efficacious remedy

which she has not availed of and also in view of the judgment of

this Court, reported in Kathuria Public School v. Director of

Education & Anr. 123 (2005) DLT 89 (DB) wherein it has been held

that grievances of the staff of school which includes teachers can

been addressed before the Tribunal, it is directed that the

petitioner may approach the appropriate forum i.e. the Delhi

School Education Tribunal to get her grievances addressed. The

period spent by the petitioner in pursuing this petition will be

excluded for the purposes of her seeking the remedy in the

appropriate forum i.e. before the Delhi School Education Tribunal.

8. With this direction writ petition is disposed of. No orders as

to costs. A copy of this order be communicated to the petitioner at

her address as mentioned in the petition.

INDERMEET KAUR, J.

May 14, 2010 rb