Delhi High Court
Gnct Of Delhi & Ors. vs Satinder Kumar Rana & Ors. on 9 September, 2010
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved On: 06th September, 2010
Judgment Delivered On:09th September, 2010
+ WP(C) 13237-13238/2004
GNCT OF DELHI & ORS. ...Petitioners
Through : Ms.Avnish Ahlawat and
Ms.Latika Choudhary, Advocates.
Versus
SATINDER KUMAR RANA & ORS. ...Respondents
Through: Mr.S.C.Saxena, Advocate for R-1.
WP(C) 7010/1999
DIRECTOR OF EDUCATION, GNCT OF DELHI & ANR.
...Petitioners
Through : Ms.Avnish Ahlawat and
Ms.Latika Choudhary, Advocates.
Versus
VED RAM SINGH & ORS. ...Respondents
Through: Mr.Arun Bhardwaj, Advocate.
W.P.(C) 16205-16206/2004
GNCT OF DELHI & ORS. ...Petitioners
Through : Ms.Avnish Ahlawat and
Ms.Latika Choudhary, Advocates.
Versus
ARUNESH AWASTHI & ORS. ...Respondents
Through: Mr.R.M.Sinha, Advocate.
W.P.(C)16214-16215/2004
GNCT OF DELHI & ORS. ...Petitioners
Through : Ms.Avnish Ahlawat and
Ms.Latika Choudhary, Advocates.
Versus
W.P.(C) No.13237/04, 7010/99, 16205/04, 16214/04 & 7056/05 Page 1 of 16
G.S.SHARMA & ORS. ...Respondents
Through: Mr.G.D.Gupta, Senior Advocate
with Mr.Arun Bhardwaj and
Ms.Vivya Nagpal, Advocates.
W.P.(C) 7056/2005
VIRENDER SINGH ...Petitioner
Through : Mr.Ashok Gurnani, Advocate.
Versus
GNCT OF DELHI & ORS. ...Respondents
Through : Ms.Avnish Ahlawat and
Ms.Latika Choudhary, Advocates.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J.
1. The origin of all afore-noted writ petitions is an
order dated 30.4.1991 passed by the Supreme Court in WP(C)
No.1350/1990 'Subhash Chandra Sharma & Ors. vs. Director of
Education & Anr.'. The order reads as under:-
"This is an application under Article 32 of the Constitution
on behalf of some of the part-time teachers said to be 22
in all who have raised objections against their being
continued as part-time teachers for more than 8 to 10
years. These teachers are of two categories - Trained
Graduates and Post Graduates. After hearing
Mr.Ramamurthi for the petitioners, we suggested to
Mr.V.C.Mahajan for the respondents that these teachers
may be regularized and it is now agreed by counsel for
both sides and we dispose of the writ petition with the
following directions:-
(1) Within three months hence, the respondent - Director of
Education shall hold a selection test for these 22
teachers with a view to regularizing them.
(2) The question of bar of age shall not be raised against
them in view of the fact that they have been already in
employment.
(3) Those of them who are fond successful at the selection
test shall be forthwith regularized and in regard to
others, they may be continued in service provided there
is temporary vacancy."
2. A bare perusal of the order passed by the Supreme
Court shows that the writ petition was disposed of passing
consent directions and pertained to 22 writ petitioners before
the Supreme Court.
3. Directions issued were that the Director of
Education shall hold a selection test for the 22 writ petitioners
and would not plead the bar of age for employment while
subjecting them to the test. Those who succeeded at the
selection test would be regularized.
4. It may be noted that the 22 writ petitioners before
the Supreme Court were employed on contract as part time
teachers pursuant to an Adult Education Program of the
Government of NCT of Delhi, as per which during evening
hours i.e. between 6:00 PM to 9:00 PM, overage adult students
were taught in schools. The 22 writ petitioners had
approached the Supreme Court on account of teaching under
Adult Education Program for periods ranging between 8 years
to 10 years and being paid a fixed monthly remuneration.
5. An issue immediately arose whether the benefit of
the consent order dated 30.4.1991 passed by the Supreme
Court inured only for the benefit of the 22 writ petitioners
before the Supreme Court or was it available for all persons
teaching as contractual part time teachers under the Adult
Education Program. A representative petition registered as OA
No.1879/1994 was filed by the „Government Adult Schools Part
Time Teachers Association‟ in which it was prayed that the
Government of NCT Delhi be directed to implement the
consent directions issued vide order dated 30.4.1991 in
respect of all part time teachers employed under the Adult
Education Program.
6. OA No.1879/1994 was allowed vide judgment and
order dated 31.1.1997 and it was directed, vide para 7, as
under:-
"7. Therefore, in the light of the Supreme Court
judgment, the respondents ought to consider the
applicants also for regularization in the vacant posts of
teachers after holding suitable selection test as they
have held in the other cases, with relaxation of age if
necessary, as they are already in employment. In
other words, the respondents ought not to
discriminate against the applicants, when in all other
aspects they fall on all fours with the applicants in
Subhash Chandra Sharma‟s case (supra). The
respondents shall hold the selection test for
regularization of the applicants within a period of three
months from the date of receipt of a copy of this order
and in the meantime the applicants shall be continued
on the same terms and conditions. Those who are not
successful in the test may be continued in service
provided there are vacancies for them."
7. Government of NCT of Delhi proceeded to
implement the directions aforenoted issued by the Tribunal
and while so doing treated the consent directions issued by
the Supreme Court qua the 22 writ petitioners as extended to
all similarly situated employees as entitling them to the benefit
of age relaxation and not the benefit of relaxing the prescribed
eligibility norms qua education qualifications for PGTs and
TGTs as prescribed by the notified recruitment regulations for
the said posts.
8. Thus, sprung up another controversy. Those who
did not possess the requisite educational qualifications went
right back to the Tribunal and filed a contempt petition
registered as CP No.209/1997 in which it was alleged that the
Department was in contempt of the order dated 31.1.1997
passed in OA No.1879/1994. The contempt petition was
dismissed vide order dated 29.8.1997 holding that having
perused the record produced there was compliance with the
directions issued by the Tribunal. The contempt petition was
accordingly disposed of and the notice of contempt was
discharged.
9. It was hoped and expected that this would be the
end of the controversy, but it was not to be so.
10. One Bhoo Dev Sharma and 10 others filed OA
No.2407/1997 making a grievance against their not being
regularized as teachers on being declared unsuccessful at the
examination-cum-appraisal conducted for being appointed as
teachers. It may be noted that complying with the consent
directions issued by the Supreme Court and the directions
issued by the Tribunal in OA No.1879/1994 the Government of
NCT Delhi held a written test for which a percentage of marks
was awarded and a certain percentage of marks was awarded
for consistent good academic record i.e. the overall scholastic
performance of the candidates.
11. Vide order dated 10.9.1999 OA No.2407/1997 was
disposed of directing that the 11 applicants i.e. Bhoo Dev
Sharma and 10 others could apply at the time of regular
selections as and when vacancies arose for the post of TGT or
PGT and would be entitled to the benefit of age relaxation.
12. However, it would be relevant to note that the
Tribunal held that the consent directions issued by the
Supreme Court and the directions issued by the Tribunal on
31.1.1997 cannot be read as a continuous mandamus. In para
5 of its order dated 10.9.1999, the Tribunal held as under:-
"5. It must be remembered that the availability of
regular vacancies in TGT/PGT is not infinite and the
repeated holding of such selection tests exclusively for
part time teachers such as applicants, and excluding
others from the open market aspiring for appointment
as TGT/PGTs, besides reducing the availability of
vacancies, is itself violative of the principle of equality
enshrined in Article 14 and 16 of the Constitution."
13. We may crystallize the legal position as it can be
culled out with reference to the consent order dated 30.4.1991
issued by the Supreme Court, the directions issued by the
Tribunal in OA No.1879/1994 as per the order dated
31.1.1997, the decision dated 29.8.1997 disposing CP
No.209/1997 and finally the decision dated 10.9.1999 in OA
No.2407/1997. The position would be that candidates not
possessing the requisite educational qualifications would not
be entitled to be considered for regularization and the only
benefit which had to be extended to the part time teachers
employed under the Adult Education Program was to be
accorded age relaxation. Holding of a special test to
determine the suitability of the part time teachers was not an
ongoing process and was limited to the point of time when
consent directions were issued by the Supreme Court and
benefit whereof was extended to similarly situated part time
teachers. Further, it was within the power of the department
to fix a suitability norm which had to be achieved by the part
time teachers before their services were regularized and the
suitability norm could factor in a written test as also the overall
academic performance of the candidates.
14. We may add that the order dated 30.4.1991 passed
by the Supreme Court as a result of consent given by the
Directorate of Education evidences that the reason for the
consent was the equitable consideration that the 22 writ
petitioners before the Supreme Court had worked as part time
teachers for periods ranging between 8 years to 10 years.
Suffice would it be to state that the order dated 30.4.1991 did
not lay down any law and was premised on special equities in
favour of the writ petitioners; the special equity being that the
petitioners had rendered service as contractual teachers for
periods ranging between 8 years to 10 years and had become
overage for regular selection. Thus, by no means could said
benefit be extended to those who had worked as contractual
teachers for short durations.
15. The respondents of WP(C) No.13237-13238/2004
filed an Original Application before the Tribunal registered as
OA No.1776/1998 in which they claimed that even they were
entitled to the same benefit as was accorded by the Supreme
Court to the 22 writ petitioners before the Supreme Court.
16. Two out of the three respondents of WP(C)
No.13237-13238/2004 had joined as part time teachers in the
year 1994 and the third had joined in the year 1995 and their
claim was opposed on the ground that they could not avail the
benefit which the 22 writ petitioners before the Supreme Court
had obtained, for the reason said persons had worked for
years together as against the said three claimants who had
filed a claim before the Tribunal in the year 1998. The
petitioner pleaded that having worked for 3 - 4 years, these
petitioners could not have claimed that their services should
be regularized or that they should be permitted the benefit of
age relaxation. Additional stand taken by the department was
that as and when recruitment was resorted to people could
apply and as held in the decision in Bhoo Dev‟s case, the
department was not expected to repeatedly hold limited
departmental exams.
17. The OA filed by the said three persons i.e. the
respondents of WP(C) No.13237-38/2004 has been allowed
vide order dated 27.6.2003 and directions have been issued
that the said three applicants before the Tribunal be subjected
to a special test after relaxing the eligibility condition related
to age, they be considered for appointment as regular
teachers.
18. The respondents of W.P.(C) No.7010/1999 were
denied even the right to take the limited departmental exam
because they did not have the prescribed 45% marks in their
graduation degrees which was the essential educational
qualification as per the notified recruitment rule. Their
Original Application being OA No.1336/1998 was opposed on
the ground that the applicants being 5 in number were note
eligible as per the notified recruitment rules and that the only
benefit which was extended in terms of the consent directions
issued by the Supreme Court on 30.4.1991 and the decision
dated 31.1.1997 by the Tribunal was to grant relaxation in age
and no more. It was additionally pleaded that the issue raised
in OA No.1336/1998 was raised in CP No.209/1997 filed by the
Government Adult Schools Part Time Teachers Association and
the Tribunal held that its order dated 31.1.1997 was complied
with when informed that the department was justified in not
relaxing the educational qualification as per the notified
recruitment rules.
19. The petition filed by them had been allowed by the
Tribunal vide order dated 4.8.1999. The direction issued is
that the said respondents be subjected to a limited
departmental exam. Qua the defence taken it has been held
that the eligibility norm pressed by the department by
referring to the recruitment rules was a bogey.
20. Relevant would it be to note that the Bench has not
considered the effect of dismissal of CP No.209/1997 in which
defence taken was that the department was not under any
mandate to relax the educational qualifications.
21. The respondents of WP(C) No.16205-16206/2004
and WP(C) No.16214-16215/2004 also filed petitions before
the Tribunal stating that though they were subjected to a
departmental exam but were denied appointment on the
ground that the qualifying marks obtained by them were below
the prescribed cut-off percentage, being 60%. They alleged
that while subjecting the 22 writ petitioners before the
Supreme Court to a written test, the cut-off prescribed was
33%.
22. Opposing the claim of these respondents the
department pleaded that the persons concerned were
appointed on various dates after the Supreme Court had
decided the claim of the 22 writ petitioners before the
Supreme Court and that the department was entitled to fix a
suitable qualifying cut-off percentage to be obtained.
23. Vide impugned order dated 7.5.2004 which is
challenged in WP(C) No.16205-16206/2004 and WP(C)
No.16214-16215/2004, the Tribunal granted relief to the
applicants before it and directed that a fresh examination be
conducted.
24. As regards WP(C) No.7056/2005 it may be noted
that Virender Singh lost battle before the Tribunal when OA
No.333/2000 filed by him was dismissed vide order dated
10.12.2004. His claim is unique. He drew up a chart as
under:-
Teachers Associated with Non Teachers Associated with Adult
Adult Education Programme Education Programme
(1) School timing 7.30 a.m. to (1) School timing 6 pm to 9.30
12.40 p.m. pm.
(2) Interval 20 minutes (2) Interval : Nil
(3) Daily hours 5:30 (3) Daily working hours 3 ½
(4) Summer holidays 60 days (4) Summer holidays Nil
(5) Earned leave per year 10 (5) Earned leave : Nil
days
(6) Winter vacation 8 days (6) Winter vacations : Nil
(7) Sports day holidays one day (7) Sports day : Nil
(8) Autumn Break 7 days (8) Autumn Break : Nil
Total working days 189 Total working days per year 275
Total working hours 962 ½ per
Total working hours 1039 ½ year.
hours per year
(9) Pay scale of the teachers (9) Pay scale of the teachers
Basic Pay Rs.5,500-175-9000 Rs.500 p.m. (Consolidated)
(+DA, HRA, CCA & other No other allowance.
allowances)
25. Not only he claimed a right to be regularized but
also a right to be paid wages at par with the regularly
appointed teachers who teach in schools.
26. As per the chart he claimed that whereas teachers
under the Adult Education Program teach for 962.5 hours per
year, those in Adult Schools teach for 1039.5 hours per year.
He highlighted the difference between the pay received by
regular teachers and those associated in the Adult Education
Program.
27. Denying relief to him for pay parity, on the issue of
his entitlement to be regularized as a teacher, the Tribunal
directed that he may apply whenever regular selection is
resorted to and if he does so he would be entitled to the
benefit of age relaxation.
28. Dealing with the five writ petitions at seriatim, it is
apparent that the issue raised in WP(C) No.13237-38/2004
needs to be decided separately and the issue raised in WP(C)
No.7010/1999 has to be decided separately and issue raised in
WP(C) No.16205-06/2004 and WP(C) No.16214-15/2004 has to
be decided together, and finally issue raised in WP(C)
No.7056/2005 has to be decided separately.
29. Dealing with WP(C) No.13237-38/2004, as noted by
us in para 13 and 14 above, the position in law would be that
the consent order dated 30.4.1991 issued by the Supreme
Court in WP(C) No.1350/1990 cannot be treated as laying
down any law and the basis of the order is a consent of the
parties, which consent is founded upon a special equity in
favour of those part time adult education teachers who had
taught for years together i.e. between 8 years to 10 years and
had become over-age to seek regular employment. Only such
category of teachers could be entitled to similar benefit and
this was extended to all such similarly placed teachers when
the representative OA being OA No.1879/1994 filed by the
„Government Adult Schools Part Time Teachers Association‟
was allowed. Two out of the three respondents of the said
writ petition i.e. WP(C) No.13237-38/2004 had worked for three
years and one for a period of four years. Unfortunately, the
Tribunal lost sight of this vital fact. Further, the Tribunal also
lost sight of the vital fact that in OA No.2407/1999 filed by
Bhoo Dev Sharma and ten others, the Tribunal had held, vide
para 5 of its order dated 10.9.1999, contents whereof have
been noted by us in para 12 above, that the decision of the
Supreme Court could be not read infinite requiring repeated
holding of selection tests exclusively for part time teachers. It
is unfortunate that the Tribunal did not bother to consider the
effect of the order dated 10.9.1999 in Bhoo Dev Sharma‟s
case. Additionally, we see no reason why Satinder Kumar
Rana and Manoj Kumar Saxena, two out of the three
respondents who were not over aged when they took
contractual appointment did not participate in the regular
selection processes, which we note are held each year to fill up
regular vacancies of teachers, did not appear in the regular
selection process. As regards the third i.e. Sukhbir Singh
Tomar we note that he was aged 42 years as of 16.3.1994
when he was given contractual appointment as a part time
teacher and thus he could not even lay a claim that due to his
becoming over age while working as a contractual teacher, he
lost out on the opportunity to be regularly appointed.
30. That apart, the entitlement to be regularized in
service after being made to work for years together as a
contractual employee, is based upon the equitable principle;
had the department taken steps to fill up the regular vacancy,
the person concerned could have participated in the selection
process and may be would have found regular employment.
This principle cannot be extended to the instant situation
where part time teachers were required to teach for only three
hours in the evening. These teachers could not claim
entitlement to be appointed as regular teachers and teach in
school during normal school hours.
31. Thus, the direction issued by the Tribunal vide
judgment and order dated 27.6.2003 cannot be permitted to
stand.
32. Dealing with WP(C) No.7010/1999, we are surprised
at the reasons given by the Tribunal that the stand taken by
the department of the respondents of the said writ petition
were ineligible to be even considered for being appointed as
permanent teachers on account of not fulfilling the education
qualification norm was a bogie and was never predicated
earlier on. The Tribunal lost sight of the facts noted by us in
para 7 and 8 above when CP No.209/1997 was dismissed.
Suffice would it be to state that in response to CP No.209/1997
the department had responded by stating that the decision of
the Supreme Court and that of the Tribunal allowing OA
No.1879/1994 did not entitle any person to the benefit of
educational qualification norm being relaxed. Indeed, neither
the order dated 30.4.1991 issued by the Supreme Court nor
the order dated 31.1.1997 issued by the Tribunal required
education qualification norm to be relaxed. Thus, neither was
the stand taken for the first time nor was it a bogie.
33. No appointment can be made contrary to the
recruitment rules unless there is a power to relax the rules. No
power has been shown to us that there exists a power to relax
the eligibility norm pertaining to educational qualifications,
which as per the rule is 45% marks obtained in the graduation
degree.
34. Thus, the order dated 4.8.1999 allowing OA
No.1336/1998 cannot be allowed to stand.
35. Dealing with WP(C) No.16205-06/2004 and WP(C)
No.16214-15/2004, we note that the claim of the respondents
therein was predicated on the ground of parity with those to
whom employment was given pursuant to the directions
issued by the Supreme Court on 30.4.1991 when WP(C)
No.1350/1990 was allowed. They pleaded that while
determining the suitability of the candidates the prescribed cut
off percentage in the written exam conducted by the
department was fixed at 33% and qua them it was enhanced
to 60%.
36. The Tribunal has found favour with the contention
urged.
37. It was urged by learned counsel for the petitioners
that neither the Supreme Court nor the Tribunal when it
allowed OA No.1879/1994 prescribed any cut off marks to be
obtained and thus the department was free to determine the
same. Alternatively it was urged that the decision dated
10.9.1999 disposing of OA No.2407/1997 ought to have been
followed.
38. With respect to the first plea, in the absence of any
justifiable reasons brought on record as to why the eligibility
cut off point was enhanced, it may be difficult to accept the
first contention urged. But, we find merit in the second
contention urged for the reason the decision in Bhoo Dev‟s
case was a precedent which required to be followed.
39. We find that the Tribunal has given no reasons as to
why decision in Bhoo Dev‟s case was not to be followed.
40. The contention urged by learned counsel for the
petitioners that in harmony with the decision in Bhoo Dev
Sharma‟s case and ten others, the issue of holding repeated
departmental tests was done away with and thus the Tribunal
could not have directed a special test to be conducted, must
merit acceptance and to that extent the impugned order dated
7.5.2004 required some correction, being that, the
respondents of the two writ petitions would be entitled to take
the examination next conducted to fill up the vacant posts of
teachers and would be entitled to the benefit of age relaxation.
41. We may note that the claim of the respondents of
the said two writ petition stands on a different footing vis-à-vis
the claim of the respondents of WP(C)No.13237-38/2004 for
the reason the respondents of said writ petitions had worked
for periods above 7 years and would thus be entitled to the
benefit of the equitable principle of having worked for long
enough periods as was the case with the 22 writ petitioners
who had approached the Supreme Court.
42. As regards the last writ petition, relevant would it
be to note that the respondent thereof was over age when he
was given contractual appointment as a part time teacher and
attained the age of 60 years as in the year 2009. He having
attained the age of superannuation, the question of granting
any relief to him pertaining to regularization of service does
not arise. That apart, he was inducted as a part time teacher
in the year 1991. It was apparent that he was aged 42 years.
He cannot claim benefit of the plea that due to becoming over
aged while in contractual service, he lost out on the right to be
permanently appointed.
43. As regards his claim for parity with regular teachers
as per chart drawn by him and reproduced by us in para 24
above, we have only to say that the issue cannot be seen
mathematically. The working cannot be considered hour wise
as projected. The nature of duties and responsibilities have to
be seen. Further, regularly appointed teachers teach from
7:30 AM to 12:40 PM and thus cannot find any other
employment. Even otherwise as regular government servants
they are prohibited from taking regular employment. Part
time teachers work from 6:00 PM to 9:30 PM and have the
whole day to earn their livelihood. Thus, claim for pay parity
projected by the writ petitioner of WP(C) No.7056/2005 has
rightly been negated.
44. To bring the curtains down, the five writ petitions
stand disposed off as under:-
(a) WP(C) No.13237-38/2004 is allowed. The impugned
order dated 27.6.2003 is set aside. OA No.1776/1998 is
dismissed.
(b) WP(C) No.7010/1999 is allowed. The impugned
order dated 4.8.1999 is set aside. OA No.1336/1998 is
dismissed.
(c) WP(C) No.16205-06/2004 and WP(C) No.16214-
15/2004 are partially allowed. The order dated 7.5.2004
is modified and stands substituted with the direction
issued as para 40 above.
(d) WP(C) No.7056/2005 is dismissed.
45. There shall be no order as to costs.
(PRADEEP NANDRAJOG)
JUDGE
(MOOL CHAND GARG)
JUDGE
SEPTEMBER 09, 2010
dk
