Subodh Sinha vs State Of Nct Delhi And Ors
2011 Latest Caselaw 2686 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                            Date of decision: 19th May, 2011.

+              W.P.(C) 12894/2009 & CM No.13664/2010 (for directions)

%        SUBODH SINHA                                        ..... Petitioner
                            Through:      Mr. Puneet Mittal & Mr. Manoj
                                          Kumar, Advocates.

                                   Versus

         STATE OF NCT DELHI AND ORS            ..... Respondents
                      Through: Mr. Alok Gupta, Advocate for Ms.
                               Purnima Maheshwari, Advocate for
                               R-1 & 2.
                               Mr Vinay Sabharwal, Adv. for R-3.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                     No

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 petitioner, at the time of the filing of this writ petition being a

teacher employed with the respondent no.3 Cambridge Primary School and

since retired on attaining the age of superannuation, preferred this writ

petition seeking, (i) mandamus directing the respondent no.3 School to

implement the orders dated 18th July, 2009 and 2nd September, 2009 of the

respondent no.2 Directorate of Education (DoE), Govt. of NCT of Delhi

and fixing the salary of the petitioner with effect from 1 st January, 1996 in

accordance therewith; (ii) relief of quashing of the communication dated

15th November, 2008 of the respondent no.3 School denying the claim of

the petitioner; and, (iii) the relief of directing the respondent no.3 School to

make the contribution to the Provident Fund of the petitioner in accordance

with the revised scale.

2. Notice of the writ petition was issued and pleadings have been

completed. The counsels have been heard.

3. The respondent no.2 DoE on representation of the petitioner and

after considering the response of the respondent no.3 School thereto, found

merit in the claim of the petitioner and as aforesaid, vide orders dated 18 th

July, 2009 and 2 nd September, 2009 supra, directed the respondent no.3

School to fix the salary of the petitioner with effect from 1 st January, 1996

as directed therein.

4. I am of the opinion that the writ petitions qua grievances of

teachers/employees of recognized Schools within the meaning of Delhi

School Education Act, 1973 are entertained by this Court to ensure that the

Directorate of Education exercises the powers which it is required to

exercise under the provisions of the Act and the Delhi School Education

Rules, 1973 vis-a-vis Schools. Else, it is a matter of debate whether writ

petitions qua reliefs claimed against the Schools would be maintainable. It

is the contention of some of the petitioners in other matters that the

Schools being engaged in the public function of imparting education, are

amenable to writ jurisdiction even where no supervisory or controlling

function of respondent no.2 DoE are involved. However, in the present

case, need is not felt to consider the said aspect inasmuch as under Section

10 of the Act, the scales of pay and allowances etc. of the employees of

recognized private Schools are required to be not less than those of the

employees of the corresponding status in Schools run by the appropriate

authority and the respondent no.2 DoE has been empowered to issue

directions directing the Managing Committees of such recognized private

Schools to bring the scales of pay and allowance upto the level of those

who are employed on corresponding status in Schools run by the Govt. of

NCT of Delhi. The orders dated 18 th July, 2009 and 2nd September, 2009

supra to the respondent no.3 School have been issued by the respondent

no.2 DoE in exercise of the said powers.

5. The respondent no.3 School having not complied with the

directions/orders of the respondent no.2 DoE, it is felt that the petitioner

has become entitled to the mandamus directing the respondent no.2 DoE

to take action consequential to the non-compliance by the respondent no.3

School of the directions. The proviso to Section 10 requires the respondent

no.2 DoE to de-recognize the School which fails to comply with the

directions issued to the Managing Committees of the Schools thereunder.

6. In the circumstances, it has been enquired from the counsel for the

respondent no.3 School whether the respondent no.3 School has challenged

the said direction of the respondent no.2 DoE. The answer is in the

negative.

7. The counsel for the respondent no.3 School however contends that

the direction of the respondent no.2 DoE in the orders dated 18 th July, 2009

and 2nd September, 2009 supra is wrong and erroneous. However, the

respondent no.3 School cannot, merely by taking a stand that the direction

is wrong, refuse to comply with the same and such refusal/failure requires

the respondent no.2 DoE to de-recognize the School.

8. It has been next enquired from the counsel for the respondent no.3

School whether any representation even has been made against the said

direction. Though the counsel had initially stated that no such

representation is required to be made but now draws attention to the order

dated 18th July, 2009 which refers to an earlier letter of the respondent no.3

School. However the same only indicates that the order dated 18 th July,

2009 has been issued after considering the representation of the respondent

no.3 School and if thereafter the respondent no.3 School does not choose

to challenge the same, there is no option but to presume that the respondent

no.3 School has acceded to the same.

9. The counsel for the respondent no.3 School has next contended that

since all the parties concerned are present before this Court, this Court in

the present proceeding only considers and adjudicates the merits of the said

orders/directions of the respondent no.2 DoE.

10. I am unable to agree. There is no challenge before this Court to the

said directions. The present proceedings are concerned only with the

enforcement of the said order/direction issued in exercise of powers under

Section 10(1) of the Act. If the respondent no.3 School was/is desirous of

impugning/challenging the same, it is for the respondent no.3 School to

take action therefor and to after satisfying the Court as to prima facie case

if any in its favour, obtain stay of the said directions. Without the

respondent no.3 School taking any such steps, the petitioner cannot be

denied the relief to which he has become entitled upon non-compliance by

the respondent no.3 School of the directions.

11. The counsel for the respondent no.3 School has next contended that

the petitioner has not even sought any relief against the respondent no.2

DoE and all the prayer paragraphs in the writ petition are directed against

the respondent no.3 School. Though it is correct that the prayer paragraphs

are not expressly directed against the respondent no.2 DoE but as

aforesaid, the purport of the writ petition is to activate the respondent no.2

DoE into action and else as aforesaid it is doubtful whether the writ

petition qua the grievance against the respondent no.3 School would be

maintainable or not. Moreover, under the residuary prayer paragraph,

appropriate relief can be granted.

12. The counsel for the respondent no.3 School at this stage states that

since the respondent no.3 School was under the impression that the validity

of the said orders/directions of respondent no.2 DoE shall be adjudicated in

the present proceedings only, an opportunity be granted to the respondent

no.3 School to now take appropriate remedies thereagainst.

13. In the circumstances, it is directed that unless there is any stay of the

orders/directions dated 18th July, 2009 and 2nd September, 2009 of the

respondent no.2 DoE to the respondent no.3 within two months of today,

the respondent no.2 DoE to take action in accordance with the law (Section

10(1) of the Act) against the respondent no.3 School for non-compliance of

the directions aforesaid. The same is however subject to the condition that

the respondent no.3 School in any such challenge shall implead the

petitioner herein as a party and shall also place before the fora concerned a

copy of this order.

14. It is also the grievance of the petitioner that the respondent no.3

School to harass the petitioner and to coerce the petitioner into the

withdrawing the writ petition has not even released to the petitioner the

admitted retiral benefits. An application in this regard has been filed and

which is pending consideration.

15. Accordingly, while granting liberty to the respondent no.3 School to

take remedies now, against the directions aforesaid of the respondent no.2

DoE, further condition is imposed on the respondent no.3 School to within

fifteen days of today, pay to the petitioner all undisputed retiral benefits if

any remaining together with a computation thereof.

The writ petition is disposed of with no order as to costs.

Copy of this order be given Dasti to the counsels for the parties

under the signature of the Court Master.

RAJIV SAHAI ENDLAW (JUDGE) MAY 19, 2011 bs