Tp Singh Saini And Ors vs Guru Harkishan Public ...
2011 Latest Caselaw 2116 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of decision: 20th April, 2011

+                              W.P.(C) 971/2011
       TP SINGH SAINI AND ORS                                   ..... Petitioners
                      Through:          Mr. Raj Kumar Sherawat, Advocate.
                                     versus
       GURU HARKISHAN PUBLIC SCHOOL
       FATEH NAGAR, NEW DELHI & ORS.                  .... Respondents
                     Through: Mr. K.T.S. Tulsi, Sr. Advocate & Mr.
                              Raj Kamal, Advocate.
                              Mr. Bhagwant Singh & Mr. Manpreet
                              Kaur, Advocates for R-1 to 4.
                              Ms. Purnima Maheshwari, Advocate for
                              R-5.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.     Whether reporters of Local papers may                       No
       be allowed to see the judgment?

2.     To be referred to the reporter or not?                      No

3.     Whether the judgment should be reported                     No
       in the Digest?


RAJIV SAHAI ENDLAW, J.

1. The petition was filed with a grievance that the respondent no.1 School

in which the 79 petitioners claim to be employed as teachers was not paying

emoluments in accordance with Section 10 of the Delhi School Education

Act, 1973 and seeking a mandamus to the respondent no.5 Directorate of

Education to direct the respondent no.1 School to pay emoluments in

accordance with law.

2. Notice of the petition was issued for 6th September, 2011.

3. CM No.4378/2011 was filed by the petitioners alleging that their

salary was being withheld by the school and seeking direction for payment.

Notice of the said application was issued for today.

4. The counsel for the respondent no.5 Directorate of Education today

states that owing to the default by the respondent no.1 School to pay

emoluments in accordance with law inspite of direction issued, the same has

been de-recognized vide order dated 11 th April, 2011.

5. The consequence provided in second proviso to Section 10, of non-

compliance by the recognized school with provisions thereof is of

de-recognization only. The mandamus to the respondent no.5 Directorate of

Education was claimed by the petitioners also to the said effect only. It has

as such been enquired from the counsel for the petitioners as to what further

relief can be granted in the writ petition.

6. The counsel for the petitioners however now seeks a direction to the

respondent no.1 School to pay to the petitioners the arrears of

wages/emoluments in accordance with Section 10.

7. It has been enquired from the counsel for the petitioners as to how

such direction in a writ proceeding would be maintainable against the

respondent no.1 School in as much as a writ petition also would not lie

against the respondent no.1 School and the writ petition was filed only

because of the relief sought against the respondent no.5 Directorate of

Education to take action against the respondent no.1 School.

8. The counsel for the petitioners has contended that since the

respondent no.1 School during the time it was recognized by the respondent

no.5 Directorate of Education was required to pay emoluments to the

petitioners in accordance with Section 10 and has not so paid, direction can

be issued in this proceeding only for payment of the said arrears. It is yet

further contended that since the order of de-recognition in the present case

has been passed after the filing of the writ petition and after issuance of

notice thereof and rather in compliance of the obligations of the respondent

no.5 Directorate of Education, the writ petition will continue to be

maintainable notwithstanding the de-recognition of the respondent no.1

School and the direction as sought for payment of arrears can be issued. The

counsel for the petitioners has also relied on:-

a. Judgment dated 18th August, 2006 of the Division Bench of this

Court in LPA no.1721/2005 titled Vaishali International

School Teachers Welfare Association v. All India Siddhartha

International Educational Society;

b. Judgment dated 11th January, 2010 of this Court in W.P.(C)

No.5046/1999 titled Ms. Sadhna Payal v. Director of

Education;

        c.     Manju Tomar v. NCT 2010 (114) DRJ 389 (DB);

        d.     Sonica Jaggi v. Lt. Governor 152 (2008) DLT 601 (DB).

9. However the aforesaid judgments are either found to be not dealing

with the question which has been raised or are found to have contained

earlier directions for payment owing to undertakings having been given or

orders for payment having already been made. They are not found to be

laying down that a writ would lie against a school for directing it to pay the

arrears of salary to its teachers, even when the Directorate of Education has

already for such disobedience taken the action which it is required to take

under Delhi School Education Act, 1973 against the school or that the writ

petition lies against the school alone.

10. In my opinion, no further direction can be issued to the respondent

no.5 Directorate of Education in the present petition. Once it is held that the

writ against the respondent no.5 Directorate of Education does not survive,

in my opinion the writ against the respondent no.1 School or Chairman of its

Managing Committee or its Principal or against the Delhi Sikh Gurudwara

Managing Committee stated to be apex body controlling the said school and

impleaded as respondents no.2 to 4, would not lie.

11. I am unable to accept the contention of the counsel for the petitioners

that merely because at the time of institution the writ was maintainable for

the reason of claiming relief against a party against which the petitioners had

a right of relief in writ remedy, would mean that even after the

body/authority against whom writ was maintainable has performed its

obligation, the other reliefs for which the writ does not lie can also be

granted. Upon de-recognition of the respondent no.1 School by the

respondent no.5 Directorate of Education, the only grievance of the

petitioners which survives is as to the arrears claimed to be due to them and

for which relief in any case ordinarily a writ petition does not lie and the

petitioners have alternative remedies for their claims if any of recovery

against the respondents no.1 to 4. It is a settled principle of law that a writ

remedy is not intended to be a substitute for the ordinary remedies if any of

recovery of monies claimed to be due. It does not make any difference

whether de-recognition has been effected before the institution of the writ

petition or during the pendency of the writ petition.

12. In the circumstances, the date fixed of 6th September, 2011 in the writ

petition is cancelled and the writ petition is disposed of with the following

directions:-

i. That notwithstanding the disposal of this writ petition, the

petitioners shall have liberty to approach the appropriate Fora in

accordance with law for recovery of dues alleged against the

respondents no.1 to 4;

ii. In the event of the respondent no.1 School approaching the

respondent no.5 Directorate of Education for re-calling of the

order of de-recognition, the respondent no.5 Directorate of

Education to in this regard issue notice to the petitioners also

and to hear the petitioners also and to, if re-calling the order of

de-recognition, consider the interests of the petitioners.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) APRIL 20, 2011 pp..