Sh. Angan Lal Aggarwal vs Director Of Education & Ors.
2011 Latest Caselaw 4267 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                  Date of decision: 01.09. 2011
+                              W.P.(C) 4537/2008

         SH. ANGAN LAL AGGARWAL                       ..... Petitioner
                       Through: Mr. Vikas Saini, Adv. for Mr R K
                       Saini, Advocate.

                                      versus

         DIRECTOR OF EDUCATION & ORS.              ..... Respondents
                      Through: Mr C P S Verma, Dy.Education Officer
                      on behalf of R-1 & R-2.
                      Mr Hanu Bhaskar, Adv. for R-3.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may         Yes
         be allowed to see the judgment?

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

3.       Whether the judgment should be reported             Yes
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petition impugns the order dated 28th May, 2008 of the Delhi

School Tribunal dismissing the appeal of the petitioner and seeks a

direction to the respondents to re-employ the petitioner to the post of

Drawing Teacher in the respondent No.3 DAV Senior Secondary School

No.2, Shankar Nagar, Delhi. The writ petition was accompanied with an

application for interim relief to restrain the respondent No.3 school from

filling up the vacancy to the post of Drawing Teacher. Notice of the writ

petition was issued and vide order dated 18th June, 2008 which continues to

be in force it was directed that the appointment if any made of the Drawing

Teacher, shall be subject to final outcome of the writ petition. Pleadings

have been completed and counsels have been heard.

2. The petitioner joined the employment of Geeta Higher Secondary

School on 26th August, 1968 as a Drawing Teacher and was on 26th

August, 1993 transferred to the respondent No.3 school, a Govt. aided

school; both the Geeta Higher Secondary School and the respondent No.3

school being under the umbrella of the same Hindu Education Society

(Registered). The petitioner was due to superannuate on 31st December,

2007. The petitioner, claiming that he was under orders dated 8th

September, 2006 and 29th January, 2007 of the Government of NCT of

Delhi entitled to re-employment for two years, on 14th December, 2007

applied to the respondent No.3 School for such re-employment. The

respondent No.3 school on 17th December, 2007 forwarded the said request

of the petitioner to the Directorate of Education of the Government of NCT

of Delhi.

3. It is further the case of the petitioner that the Government of NCT of

Delhi vide notification dated 31st December, 2007 allowed automatic re-

employment of retiring teachers in Government aided schools, upto PGT

level, subject to fitness and vigilance clearance, till the age of 62 years and

that vide clarification dated 15th February, 2008 it was further clarified that

the teachers upto PGT level in Government aided schools who have retired

on or after 31st January, 2007 shall be eligible for consideration for re-

employment against clear vacancy and upto the age of 62 years. The

petitioner thus claims that as per the said notification dated 31 st December,

2007 and its clarification also, he was entitled to re-employment but was

not re-employed inspite of representations of his being eligible therefor.

The petitioner ultimately in or about March, 2008 approached the Delhi

School Tribunal.

4. It was the case of the respondent No.3 school before the Tribunal

that the earlier orders dated 8th September, 2006 and 29th January, 2007

(supra) of DOE providing for re-employment of teachers were with respect

to teachers in Government schools only and not with respect to teachers in

Government aided schools as the Respondent No.3 school was/is; that it

was for the first time vide notification dated 31st December, 2007 (supra)

released on 8th January, 2008 that a provision for re-employment of

teachers in Government aided schools was made; that even under the said

notification, such re-employment was subject to a request being made by

the Managing Committee of the aided school clearly indicating the

Management's willingness to meet the respective additional proportionate

expenditure on the salary of the teacher concerned; that though respondent

No.3 school had forwarded the letter dated 14th December, 2007 of the

petitioner for re-employment to the Directorate of Education but the

Directorate of Education vide its letter dated 5th January, 2008 received in

the school on 8th January, 2008 had rejected the request of the petitioner

for re-employment on the ground that the provisions for re-employment

were not applicable to Government aided schools; that the petitioner was

duly informed of the same; that on the subsequent representations of the

petitioner pursuant to the notification of 31st December, 2007, the

Managing Committee of the respondent No.3 school vide its resolution in

the meeting held on 7th March, 2008 rejected the request of the petitioner

for re-employment and expressed its unwillingness to bear its

proportionate share of the wages which would have become due to the

petitioner on re-employment and informed the petitioner of the same. It

was thus the case of the respondent No.3 school that the petitioner had no

vested right for claiming re-employment and his re-employment was

dependent upon the Managing Committee of the school agreeing to bear

the proportionate share of the wages for the re-employment period which

had not been agreed to and thus the petitioner had no claim for re-

employment.

5. The Directorate of Education also before the Tribunal stated that

prior to notification dated 31st December, 2007 there was no provision for

re-employment of teachers in Government aided schools and under the

said notification the respondent No.3 school had not shown willingness to

re-employ the petitioner.

6. The Tribunal vide order dated 28th May, 2008 impugned in this

petition has held that since the respondent No.3 school was not willing to

bear the proportionate share of the salary during re-employment of the

petitioner, he could not be granted re-employment. The petitioner before

the Tribunal stated that he was willing to forego the 5% of the salary which

was to be borne by the respondent No.3 school. The Tribunal however held

that the Managing Committee of the respondent No.3 school could not still

be compelled to re-employ the petitioner.

7. I may at this stage mention that the appeal aforesaid was preferred to

the Tribunal in accordance with the judgment then in force in Kathuria

Public School Vs. DOE 123 (2005) DLT 89. The Full Bench since then in

judgment dated 27th August, 2010 in O. Ref. 1/2010 titled Presiding

Officer, Delhi School Tribunal Vs. GNCTD has held that appeals to the

Tribunal lie only in matters as mentioned in Section 8(3) of the Delhi

School Education Act, 1973 and in no other matter(s). In accordance with

the judgment of the Full Bench of this Court, the appeal aforesaid preferred

by the petitioner to the Tribunal was not maintainable.

8. The aforesaid would disclose that the grievance if any of the

petitioner is against the Managing Committee of the respondent No.3

school and not against the Directorate of Education. The counsel for the

petitioner has not even argued that the petitioner under any notification/

rule/ order prior to 31st December, 2007 was entitled to re-employment.

The entitlement if any of the petitioner for re-employment is under the

notification dated 31st December, 2007 only and under which notification

re-employment of the petitioner was dependent upon the Managing

Committee of the respondent No.3 school making a request to the

Directorate of Education expressing its willingness to meet the respective

additional proportionate expenditure on the salary of the petitioner. Thus,

without such a request being made by the Managing Committee of the

employer school, the Directorate of Education could not have granted the

relief to the petitioner. Thus the petitioner is not found entitled to any

relief against the Directorate of Education.

9. Once the dispute is found to be between the petitioner and the

Managing Committee of the respondent No.3 school, the question of

maintainability of this writ petition would also arise. It will have to be

determined whether a writ is maintainable against an aided school qua the

action of the Managing Committee of the said school and over which

action the Directorate of Education has no control. No guidelines appear

to exist as to qua which teachers the school is obliged to make a request for

re-employment and qua which teachers the school is entitled to refuse to

make such a request. Though I am of the opinion that qua such action of

the Managing Committee of an aided school, a writ would not be

maintainable but since the matter has remained under consideration for

long, it is deemed expedient to consider the same on merits also.

10. The petitioner in the writ petition in this regard has merely stated

that the respondent No.3 school having forwarded his application dated

14th December, 2007 for re-employment to the Directorate of Education is

indicative of having no objection to re-employment of the petitioner. It is

further contended that no basis has been disclosed for denying re-

employment to the petitioner. It is yet further contended that the

respondent No.3 school has not even placed before this Court the

resolution dated 7th March, 2008 of the Managing Committee in which a

decision is stated to have been taken to not re-employ the petitioner.

11. On the contrary, the respondent No.3 in its counter affidavit before

this Court has pleaded that the respondent No.3 had merely forwarded the

application dated 14th December, 2007 of the petitioner to the Directorate

of Education and had not recommended the case for re-employment. It is

further the case of the respondent No.3 school that the conduct of the

petitioner was not appreciable; the petitioner had been issued warning for

his conduct; that vide letter dated 22nd March, 2006 the petitioner had been

directed to be punctual in attending the school since the petitioner in the

month of February, 2006 was late in attending the school on 10 days; that

the petitioner in March, 2006 was also directed to report for CBSE

invigilating duties on various dates and to report at 9.30 am but did not

report for the same without any justifiable cause and for which advisory

memo was issued to the petitioner on 3rd March, 2006. It is thus contended

that the school was not desirous to re-employ the petitioner. It is further

reiterated that the petitioner has no vested right of re-employment and is

earning a handsome pension and the children of the petitioner are well

settled and the petitioner cannot be said to be in need of re-employment.

12. The petitioner in rejoinder has pleaded that it is in the economic

interest of the school to re-employ teachers in as much as the consolidated

amount payable to a re-employed teacher is far less than the salary of a

fresh appointee. The petitioner also denies the allegations of misconduct

against him and refers to various certificates issued to him certifying that

he had a no penalty record. The petitioner has further reiterated that he

having been willing to waive off from his salary the amount which was

required to be shared by the respondent No.3 school, the respondent No.3

school had no reason to deny him re-employment. The petitioner has also

filed an additional affidavit stating that the society under aegis whereof the

respondent No.3 school functions has in its other schools re-employed

teachers; it is alleged that the school is following a policy of pick and

choose.

13. I am afraid that the aforesaid questions raise disputed question of

fact and which cannot be adjudicated in exercise of writ jurisdiction.

14. Though there is merit in the argument of the petitioner of unguided

discretion having been vested in the Managing Committee of the aided

school to allow/reject the re-employment and the same requires to be

looked into by the Directorate of Education but in the existing scenario it

cannot be said that any direction can be issued for re-employment of the

petitioner or for payment to the petitioner of the emoluments he would

have earned on such re-employment, the petitioner now being 64 years of

age; even otherwise, as aforesaid the petitioner had already waived off his

claim against the respondent No.3 school and I would be loathe to direct

any compensation against the State which has not been found at fault.

Even otherwise it is the settled position in law (See Chander Prabha Sood

Vs. Director of Education 179 (2011) DLT 486, Prof. P.S. Verma Vs.

Jamia Millia Islamia University (1996) III AD (Del) 33, Dr. V.K.

Aggarwal Vs. University of Delhi 125 (2005) DLT 468 (DB), B.L. Kapur

Vs. Madan Lal Khurana 47 (1992) DLT 32 (DB ) & Dr. Madhu Rathour

Vs. Vice-Chancellor, DU 113 (2004) DLT 571) that there is no vested

right of re-employment.

15. There is thus no merit in the petition the same is dismissed.

However, the Directorate of Education, Govt. of NCT of Delhi is directed

to consider the need for laying down guidelines for re-employment to

prevent favourtism and bias in the matter of re-employment. No order as

to costs.

RAJIV SAHAI ENDLAW (JUDGE) SEPTEMBER 01, 2011 Mb (corrected and released on 15th September, 2011)