Shashi Kohli vs Director Of Education And Anr
2011 Latest Caselaw 2295 Del

                                                             REPORTABLE


*        IN THE HIGH COURT OF DELHI AT NEW DELHI


                               WP (C) No.4330/2010

                                           Date of Decision: April 29, 2011


         SHASHI KOHLI                       ..... Petitioner
                               through Ms. Tamali Wad, Advocate with
                               Ms. Indrani Ghosh, Advocate

                          versus


         DIRECTOR OF EDUCATION AND ANR       ..... Respondents
                        through Mr. Anjum Javed, Advocate with
                        Mr. Nirbhay Sharma, Advocate for
                        respondent No.1.
                        Mr. Puneet Mittal, Advocate with
                        Mr. Nitin Sharma, Mr. Ankur Aggarwal,
                        Ms. Suman Rani & Mr. Sagar, Advocates
                        for respondent No.2.

         CORAM:
         HON'BLE MISS JUSTICE REKHA SHARMA

1.       Whether the 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 in the „Digest‟? Yes

REKHA SHARMA, J.

The petitioner was a Chemistry teacher in Delhi Public School.

She attained the age of 60 years on July 31, 2010. It is not disputed

that her age of retirement was 60 years. Her grievance is that a

Notification dated January 29, 2007 was issued by the Government

of National Capital Territory of Delhi, Directorate of Education (in

short, referred to as "GNCTD") allowing re-employment to all

retiring teachers upto PGT level till they attain the age of 62 years

and that despite the Notification, she has not been granted the

benefit of re-employment without any cogent reason.

Before I proceed further, let me reproduce the Notification. It

runs as under:-

"GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI, DIRECTORATE OF EDUCATION, OLD SECRETARIAT, DELHI.

No.F.30-3(28)/Co-Ord/2006/686-753

Dated: 29th January, 2007

NOTIFICATION

In pursuance to Cabinet Decision No.113, dt. 4.9.2006 conveyed vide letter No.F.3/3/2004-GAD/CN/ 20491-502, dt. 8.9.2006, the Lieutenant Governor, Government of National Capital Territory of Delhi is pleased to allow automatic re-employment of all retiring teachers upto PGT level, subject to fitness and vigilance clearance, till they attain the age of 62 years or till clearance from Government of India for extending retirement age is received, whichever is earlier. The terms and conditions of re-employment are being notified separately.

By order and in the name of The Lt. Governor of the National Capital Territory of Delhi

Sd/-

(MADHUP VYAS) Joint Secretary (Education)"

In furtherance to the Notification dated January 29, 2007, the

GNCTD issued another Notification dated February 28, 2007 laying

down instructions/guidelines for re-employment. The following

paragraph of this Notification is relevant.

"x x x x x

1. The retiring teachers of the Directorate of Education, GNCT of Delhi, shall be eligible for consideration for re-employment against clear vacancy upto his/her attaining the age of 62 years. The re-employment will be subject to fitness and vigilance clearance of the retiring teachers, i.e. the pensioner. For physical fitness of retiring teacher, a certificate from authorized medical practitioner is required to be submitted to the Head of School, where the retiring teacher has last served. The professional fitness is required to be assessed by DDE of the concerned District after considering work and conduct report, vigilance clearance and medical certificate submitted by the pensioner. The DDE concerned will ensure that the teachers, who are free from vigilance angle, are only re-employed and individual teacher should not be made to run around to get the vigilance clearance..."

While the petitioner has relied upon the aforesaid Notification

of January 29, 2007, respondent No.2, namely, the Managing

Committee of the School has taken the stand that the Notification so

relied upon by her does not apply to private unaided Schools and

that as respondent No.2 is also a private unaided School, it is not

covered by the Notification. It may be noted that respondent No.1,

namely, Director of Education in its counter-affidavit to the

writ-petition has endorsed the said stand of respondent No.2. It

says that the Notification dated January 29, 2007 regarding

re-employment is meant for teachers upto PGT level in Government

and Government aided Schools and is not applicable to unaided

Public Schools. It further says that the re-employment is subject to

conditions as specified in the Notification, like, medical fitness and

performance before the retirement and that the competent

authority in the case of Public Schools is the Managing Committee

which has to take final decision in the matter of re-employment.

It is not that respondent No.2 did not consider the case of the

petitioner for re-employment up to the age of 62 years, but it was

done not on the basis of the Notification dated January 29, 2007 but

on the basis of a decision of the Working Committee of the Delhi

Public School Society taken in its meeting held on January 15, 2007

whereby it was decided that all teachers will remain in employment

upto the age of 62 years unless found unsuitable on any ground by

a Committee consisting of Chairman, Vice Chairman and Principal of

the School. The extracts of the Minutes of the meeting of the

Working Committee relevant for our purpose are as under:-

              "x       x    x      x    x     x

              i)    All teachers will remain in employment upto the

age of 62 years unless found unsuitable on any ground by a committee consisting of Chairman, Vice Chairman and Principal of the School.

              ii)   In   case   of    Principals,   Vice Principals,
              Headmistresses/Headmasters          the    committee

consisting of Chairman DPSS and Chairman of the concerned School shall take a decision.

iii) Principal of the School would put up all the cases of said employees about to attain the age of 60 years, well in time, for decision by the appropriate committee.

iv) Provisions of the Delhi Education Act and Rules would be kept in view while deciding whether the 2 years beyond 60 years of age are to be by way of

extension or reemployment and whether it can be done without seeking any approval."

It is not disputed that a Committee comprising of Mr. Ashok

Chandra, Chairman, DPSS, Mr. V.R.Vaish, Chairman, M.C.,

Mr. Pramod Grover, Vice-Chairman and Mr. M.I.Hussain,

Principal-cum-Manager was constituted and the said Committee

examined the relevant records of service including the

Annual Confidential Reports (ACRs) of last 5 years of all eligible

candidates including the petitioner but found the petitioner unfit for

re-employment.

Undoubtedly, and I say so, because it appears to be so

apparent from the Notification of GNCTD dated

January 29, 2007 read along with the Notification dated

February 28, 2007 on the one hand, and the Minutes of the meeting

relied upon by the School on the other, that the grant of extension is

not a matter of right. In so far as the Notification of GNCTD is

concerned, though it does say that the Lieutenant Governor is

pleased to allow automatic re-employment of all retiring teachers

upto PGT level, but it also goes on to say that such re-employment

is subject to fitness and vigilance clearance. And what will

constitute fitness has been clarified in the subsequent Notification of

February 28, 2007. As per the said Notification, fitness does not

mean physical fitness alone, but it also includes professional fitness

which is required to be assessed by DDE of the concerned District

after considering work and conduct report. As regards the decision

of the Working Committee of the School that its teachers will remain

in employment upto the age of 62 years, the same will also come

into effect if the teachers are not found unsuitable on any ground by

the Committee. Hence, irrespective of whether it is the Notification

of the GNCTD, or the decision of the Working Committee of the

School, in either case, what needs to be examined is whether a

teacher is fit, or to put it differently, not suitable for re-employment

on any ground. The only right that the petitioner can claim is the

right to be considered for extension. Nothing less, nothing more.

And as borne out from the record, she was considered and found to

be not fit for grant of extension.

It will not be out of place to refer to two judgments of the

Division Bench of this Court relied upon by the learned counsel for

respondent No.2 wherein it has been held that the only right that an

employee has in the matter of re-employment is the right to be

considered and the Courts ordinarily will not interfere in the decision

of the authority empowered to take such a decision.

In the first judgment titled Prof. P.S.Verma versus Jamia Millia

Islamia University & others, reported in 1996 III AD (Delhi) 33, the

petitioner was a Professor in Jamia Millia Islamia University. He

retired at the age of 60 on attaining the age of superannuation.

Upon his retirement, he sought re-employment relying upon

Regulation XXXVII of the University which provided that the

Executive Council, on recommendation of Vice Chancellor, may in

the interest of University, re-employ a teacher for such period as it

may deem fit but not beyond the age of 65 years. The petitioner‟s

request for re-employment was forwarded by the Head of the

Department, namely, the Dean to the Vice Chancellor without

making any comments of his own. However, subsequently the

comments of the Dean were called for and in his comments, he

stated that the petitioner‟s bio-data did not show any substantial

contribution in respect of the research work, which is expected from

a person of his status and as such, he did not recommend his case

for re-employment. His case was also referred to the

Advisory Committee, but the Advisory Committee also in its

recommendation to the Executive Committee felt that it was not in

the larger interest of the institution to grant him re-employment.

The petitioner challenged the non-grant of extension to him,

amongst others, on the ground, that two teachers after

superannuation were re-employed without any recommendation of

the Head of the Department, on the mere forwarding of their

applications. The Division Bench of this Court dismissed the

writ-petition and held as under:-

"5. Having considered the respective stand of the parties, their submissions and the relevant Ordinance XXXVII-A, we are of the view that there is no legal right vested in a teacher of the respondent-University for being re-employed beyond the age of superannuation. The only right, if any, which can be said to be available to a teacher on superannuation would be of being considered for re-employment and in case recommendation is made for re-employment, he may be re-employed by the Executive Council. In a case where no recommendation for re-employment is made, the matter has to be referred to the Advisory Committee. In the case of the petitioner there was no positive recommendation for re-employment and no fault can be found in respondents‟ action in forwarding his case to the Advisory Committee, which also has now given its advice for not re-employing the petitioner. The mere fact that in the past two teachers, after superannuation were re-employed, assuming, without any recommendation of the Head of the Department, on the mere forwarding of their applications, the same cannot amount to conferring a right in petitioner‟s favour and this act cannot be taken as an act of discrimination thereby giving right in petitioner‟s favour for being re-employed as a matter of course when petitioner‟s case was duly considered and not recommended and approved by the Advisory Committee."

The second case titled Dr. V.K.Agrawal versus University of

Delhi and others, reported in (2005) Delhi Law Times 468 (DB) was

an appeal from a decision of a learned Single Judge dismissing the

plea of the appellant who was a Lecturer in Moti Lal Nehru College

for re-employment after he had attained the age of superannuation.

His case for re-employment was recommended by the Principal of

the college and was also recommended by the Governing Body of

the college. However, the Vice Chancellor on receiving the

recommendation sent it to the Advisory Committee which consisted

of experts and the Advisory Committee after examining the

same on various aspects declined to recommend the appellant for

re-employment. The appellant contended before the Division Bench

that once the Governing Body had recommended its case, the Vice

Chancellor was only required to give his formal assent. Dismissing

the plea of the appellant, the Division Bench held that, " it is not for

this Court to say whether a teacher is a distinguished teacher or not.

This Court does not consist of experts in the subject concerned, and

the Court must ordinarily defer to the opinion of the experts. The

advisory committee consists of experts, who considered the case of

the appellant and did not recommend grant of re-employment to

him. We cannot sit in appeal over the decision of the advisory

committee, which was accepted by the Vice-Chancellor."

Coming back to the case of the petitioner, I find, that she does

not say that the Committee was not validly constituted. Of-course,

she does say that she was a party to complaints made against the

Principal of the School, namely, Shri M.I.Hussain to the National

Commission for Women for harassing the teachers of the school and

on those complaints, the Principal was indicted by the Commission.

It is, thus, contended that the Principal was inimically disposed

towards the petitioner and because of his animus against her, he

might have misrepresented the facts before the Screening

Committee resulting in her unfair assessment. I feel, that the mere

fact that she along with some others had made complaints against

the Principal, would not be sufficient to discard the finding of the

Committee. The Principal was not the sole member of the

Committee. It also comprised of the Chairman and the Vice

Chairman and no bias is alleged against them. The Committee

records that it examined the relevant records of service including

the Annual Confidential Reports of last 5 years of all eligible

candidates including the petitioner. It is not the case of the

petitioner that such record was not looked into. She does say that

some ACRs were taken into consideration, which did not paint her in

rosy colours and which were also not communicated to her, but that

is another argument which I shall deal with a little later. The report

of the Committee cannot be rubbished on the sole ground that the

petitioner had filed a complaint against the Principal. However, in

fairness to the learned counsel for the petitioner, let me refer to a

judgment of the Supreme Court relied upon by her rendered in the

case of Rattan Lal Sharma versus Managing Committee, Dr. Hari

Ram (Co-Education) Higher Secondary School and others , reported

in (1993) 4 Supreme Court Cases 10.

In the aforesaid case, the Principal of a Higher Secondary

School was suspended and a charge-sheet was issued to him. One

of the charges was that a sum of ` 129.37 on account of

amalgamated fund given to the appellant by the teacher incharge of

the amalgamated fund, was reported to have been used by him and

was unaccounted for. The school authorities appointed an inquiry

committee of three members including the teacher incharge of the

amalgamated fund. The said teacher not only acted as a member of

the Inquiry Committee but also appeared as a witness in support of

the charge. A learned Single Judge of the High Court held that the

inquiry proceeding was vitiated by bias and hence not sustainable.

The Division Bench in appeal reversed the decision of the Single

Judge. The Apex Court agreed with the Single Bench and held that

in the facts of the case, there was not only a reasonable

apprehension in the mind of the appellant about the bias of one of

the members of the inquiry committee but such apprehension

became real when the member appeared as a witness against the

employee to prove the charge and thereafter proceeded with the

inquiry proceedings as a member of the inquiry committee to

uphold the correctness of his deposition as a judge. The Apex Court

further held that the said member of the inquiry committee was

interested in establishing the charge and from the charge itself, it

was apparent that he had a pre-disposition to decide against the

appellant.

The aforementioned case cited by the learned counsel for the

petitioner is clearly distinguishable. In the said case, the bias of the

member of the Committee was very pronounced. He not only acted

as a member of the inquiry committee but also deposed against the

employee in support of the very charge on which, the inquiry

committee was required to give its finding of „proved‟ or „not

proved‟. The facts of the present case are entirely different. Here

there was a mere apprehension in the mind of the petitioner that

the Principal on account of her having made complaints against him

was biased against her. There was no further allegation against

him. Hence, the petitioner can derive no assistance from the

aforementioned case.

This brings me to the question, whether the Committee could

take into consideration such ACRs of the petitioner which were

adverse and were not communicated to her while she was in

service?

The petitioner contends that notwithstanding the adverse

ACRs which were never communicated to her, she was granted

financial upgradation under the ACP Scheme dated August 09, 1999.

She further contends that the denial of the benefit of

re-employment to her on the basis of the very same ACRs is

arbitrary, malafide, biased and hence illegal. On the other hand,

respondent No.2 in paragraph-5 of its counter-affidavit has

reproduced the entries made in the ACRs of the petitioner between

the years 2002-03 to 2008-09. Those entries certainly do not

project the petitioner in good hues. The very first entry of 2002-03

shows that her increment was stopped for a period of one year

w.e.f. July 01, 2003. The ACR of 2003-04 reflects that she was

adjudged to be a teacher with very poor communication skill and

poor knowledge of chemistry and that she could not satisfy the

students of 10+2 level. Hence it was recommended that she should

not be given Class-XI to teach. The ACRs of the years 2004-05 till

2008-09 indicate that she was not following the norms of teaching;

she was not dynamic; she was not keeping herself updated with the

development of the subject; and, there were complaints received

against her from the students/teachers and parents.

Besides the ACRs, respondent No.2 by way of Annexure-B to

the writ-petition filed a bunch of communications addressed to the

petitioner by the Principal or on his behalf which ranged from as

distant a time as January 05, 1979 and were as recent as

July 14, 2009. I do not propose to refer to the contents of each of

such communication. However, the fact remains that some of them

pertain to the conduct of the petitioner with regard to her improper

style of teaching, her not reporting for Monday Test Duty at times,

her refusal to accept the ACRs under her signatures and her not

attending to morning assembly sessions, etc.

It is well settled that every adverse entry in a confidential

report of an employee has to be communicated to him, for it is likely

to mar his chances of promotion or other benefits. Here, in the

present case, it is the petitioner‟s own case that inspite of adverse

entries which were not communicated to her, she was given the

benefit of financial upgradation under the ACP Scheme and was not

put to any disadvantage while she was in service. The question is,

whether once she has ceased to be in the service of the respondent

on attaining the age of 60 years, those ACRs even though not

communicated to her could be looked into for determining, whether

she deserved to be re-employed up to the age of 62 years. I feel

that for the purpose of re-employment, the Committee was required

to take an over-all view of conduct of the petitioner as a teacher in

terms of fitness and, therefore, the ACRs, whether adverse or

favourable, could be looked into. In any case, the Committee not

only examined the ACRs of the last 5 years of the petitioner, but

also her other record which, as noticed above, was far from

commendatory. It is true that the school did not take any

disciplinary action against the petitioner on the basis of the adverse

ACRs while she was in service, but if the school overlooked and

ignored her such record and yet granted her financial upgradation

and other benefits, must it also grant her re-employment? I feel,

the answer is in the negative. At the cost of repetition, it may be

stated that the petitioner has no right to re-employment. She only

has a right to be considered and the school has a right to deny her

re-employment, if after considering her over-all performance as a

teacher, it finds that she is not fit for re-employment.

For the reasons delineated above, I find myself one with

respondent No.2, and hold, that the action taken by it in not

granting re-employment to the petitioner suffers from no illegality.

The writ-petition has no merit. The same is dismissed.

REKHA SHARMA, J.

APRIL 29, 2011 ka