Roopa Sharma & Ors. vs Directorate Of Education& Ors.
2011 Latest Caselaw 4468 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    Date of decision: 13th September, 2011
+                               W.P.(C) No. 14142/2009


         ROOPA SHARMA & ORS.                    ..... Petitioners
                    Through: Ms. Madhumita Bhattacharjee, Adv.


                                     versus


         DIRECTORATE OF EDUCATION& ORS.        ..... Respondents
                     Through: Ms. Purnima Maheshwari, Adv. for
                              R-1.
                              Mr. R.K. Kapoor, Ms. Shweta
                              Kapoor & Ms. Reetu Sharma, Adv.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                                    JUDGMENT

RAJIV SAHAI ENDLAW, J.

1. The question for adjudication in the present petition is, whether the

teachers employed in the unaided primary school are entitled to be

promoted to the government aided secondary school even if both were

established by the same Society/Trust. While the seven petitioners claim

that they are entitled to be so promoted, the respondent no.2 Secondary

school as well as the respondent no.1 Directorate of Education controvert.

2. Notice of the petition was issued and vide order dated 15 th July,

2010 which continues to be in force, the respondent no.2 Secondary school

restrained from filling up the post of TGTs therein. Owing to the said

interim order, the vacancies of teachers in the respondent no.2 school have

remained unfilled for the last over one year, of course to the detriment of

the students of the respondent no.2 school.

3. The petitioners claim to be working as Assistant Teachers in the

primary section of the respondent no.2 Sant Nirankari Boys Senior

Secondary School (Evening), since 1st January, 1997; they claim to be

qualified for promotion to the post of Trained Graduate Teacher (TGT);

they further claim that of the 24 sanctioned posts of TGTs in the

respondent no.2 school, 7 are lying vacant; however the respondent no.2

school and the respondent no.3 Sant Nirankari Mandal (Regd.) being the

Society under whose aegis the respondent no.2 school functions, instead of

promoting the petitioners to the said post are intending to fill up the posts

through direct recruitment ignoring the rights of the petitioners to

promotion.

4. The petitioners themselves admit that the respondent no.2 school

with classes from 6th to 12th was in existence for long as a recognized aided

school; that it applied for recognition of its primary section from classes 1st

to 5th and which was granted on 9 th December, 1993 and whereafter the

petitioners were employed as Assistant Teachers in the said primary

section. The petitioners thus seek mandamus for being promoted.

5. The respondent no.2 school and the respondent no. 3 Society in their

counter affidavit have stated that the question of promoting the petitioners

does not arise since they are not even eligible to hold the post of Assistant

Teachers to which they were appointed. It is pleaded that according to the

Directorate of Education the appointment of the petitioners in the primary

section of the school is illegal and irregular since they were not qualified

on the date of recruitment as per the Recruitment Rules. It is further

pleaded that the petitioners have in this regard filed W.P.(C) No.

1292/2002 and wherein also the stand of the Directorate of Education is

that the petitioners do not possess the requisite qualification for being

employed even as a primary school teacher.

6. The respondent no.1 Directorate of Education in its counter affidavit

in the present petition has stated that the petitioners working in unaided

primary section of the school cannot be promoted to the aided secondary

section of the respondent no.2 school because employees of unaided

Wings/Sections cannot be transferred/absorbed/adjusted in aided

Wings/Section of the school; that since there is no post of Assistant

Teacher in the aided secondary wing of the school, so the post of TGTs are

to be filled up by direct recruitment and the petitioners if consider

themselves to be qualified are free to apply for direct recruitment to the

post of TGT in the secondary section of the respondent no.2 school. It is

further pleaded that the mere fact that the primary school in which the

petitioners are employed is also recognized would not make any

difference.

7. Needless to state that the petitioners in the rejoinder to the counter

affidavit of the respondent no.1 Directorate of Education have controverted

the aforesaid position.

8. Even though another writ petition as aforesaid filed by the

petitioners relating to their appointment in the primary section is pending

consideration before another Bench but it has not been deemed expedient

to tag this writ petition with the other writ petition and adjourn the matter,

in as much as the interim relief of stay of appointment of teachers is

continuing and obviously as aforesaid to the detriment of the students.

Moreover, it is felt that this Court in the present writ petition is not

concerned with the validity of appointment of the petitioners in the primary

section of the school and/or with the qualifications of the petitioners; the

only question to be adjudicated in this petition, as the counsels also agree,

is whether there is any right of promotion from an unaided primary school

to aided secondary school even if both are under the aegis of the same

Society. If the said question is answered in favour of the petitioners, then

the further question whether the petitioners are eligible for such promotion

or not, does not fall for consideration in this writ petition and is to be

considered by the Departmental Promotion Committee (DPC) to be

constituted for the said purpose.

9. The petitioners in support of their case rely on the following

Notification dated 9th December, 1987 of the Directorate of Education

School Branch as quoted in its rejoinder:-

"[DTE. OF EDN., SCHOOL BRANCH, VIDE NO.

PA/ADDLN. DE/SCH. BR./670, DT.9.12.1987]

Promotion of the Assistant Teachers of the Primary Schools Under the same society as well as Management of the Delhi Administration.

Representation from the teachers of the primary schools under the same Society recognized by the MCD have been received requesting for their consideration for promotion to TGT in the same school recognized by the Delhi Administration under the same society. It has been decided by the Director of Education that in these institutions the same rules will be followed as are applicable to the Government Schools where we get 42% from MCD by promotion so the Education Officers/Deputy Education Officers may kindly be advised accordingly when they are considered the case of DPC in the Aided Schools. If the management desires 100% promotion under rules we should have no objection for consideration."

10. The counsel for the petitioners also refers to the order dated 14th

November, 1979 of the Directorate of Education as quoted in Deen Dayal

Sharma v. Union of India 96 (2002) DLT 555 and which is as under:-

                   "DIRECTORATE         OF     EDUCATION            (GENERAL
                   BRANCH) DELHI ADMN., DELHI
                   No.F.32(2)(22)Genl./79-80 Dated: 14.11.1979

Subject: Maintenance of common seniority of employees of different schools run by same Trust/Society.

The Department had been considering the issue of maintenance of common seniority of employees of different schools run by the same Trust/Society, after the enforcement of Delhi School Education Act, 1973 and the Rules made thereunder. In consultation with the Law Department of Delhi Administration, it has now been decided that a joint seniority of the teachers working in various schools run by the same trust/society should continue to be maintained for the purpose of promotion and grant of selection grade.

All pending cases may be decided accordingly.

Sd/-

(Baleshwar Rai) Director of Education, Delhi Admn., Delhi.

Dated."

11. As far as the notification dated 14 th November, 1979 (supra) and the

judgement in Deen Dayal Sharma (supra) (LPA No. 760/2002 titled

MCD vs. Deen Dayal Sharma whereagainst was dismissed on 21 st

September, 2006) is concerned, the same have no application. Deen Dayal

Sharma was a case of a primary and a middle school both aided, run by

the same Society. Similarly the Notification dated 14th November, 1979

deals with maintenance of common seniority list of employees of different

schools run by the same Trust/Society. Neither the judgement nor the

Notification deal with the situation as has arisen here, i.e. of right of

promotion from an unaided primary school to an aided secondary school of

the same Society.

12. Though the Delhi School Education Act, 1973 and the Rules framed

thereunder do not make much distinction between the employees of an

aided and an unaided school but a Division Bench of this Court in

Kathuria Public School vs. Director of Education 123 (2005) DLT 89

relying upon T.M.A. Pai Foundation Vs. State of Karnataka (2002) 8

SCC 481 held that a private unaided recognized school has to be granted

maximum autonomy including in respect of rights of appointment and

disciplinary powers over its staff; in such schools the relationship between

the management and the employees is contractual in nature and the

disciplinary proceedings have to satisfy only the test of fairness. It was

thus held that the management of private unaided recognized schools do

not require the consent or approval of the Director of Education qua such

actions. Accordingly several of the Rules dealing with requirement of pre

or post approval of Director of Education and/or for presence of the

nominee of the Director on the disciplinary authority of the school were

held to be not applicable to such private unaided recognized schools. The

provisions providing for representatives of the Director of Education on

the Governing Bodies of such schools were also held to be bad. It was held

that though the authority granting recognition can prescribe the conditions

of academic and educational matters but the right of administration vests in

the management of such schools. It was also held that the Delhi School

Tribunal has jurisdiction to hear appeals against all grievances of the

employees of the schools. Though subsequently a Full Bench of this Court

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

Officer, Delhi School Tribunal Vs. GNCTD overruled what was held qua

the jurisdiction of the Tribunal but the aspect as to autonomy of the private

unaided recognized schools as laid down in this judgement remains. It

would thus be seen that today it cannot be said that the status and rights of

the teachers in an unaided and in an aided school are the same; they are

materially different.

13. Seen in this light I am unable to find or hold a right for promotion

from an unaided primary to an aided secondary school even if under the

aegis of the same Society. While the school management (called the

Managing Committee) and/or the Society/Trust alone are liable for

payment of all emoluments of an employee in a private unaided recognized

school, in an aided school the State or the MCD as the case may be bears

95% burden thereof. Certainly the agency granting the aid is entitled to lay

down the conditions and regulate the ultimate beneficiaries of such aid i.e.

the employees of such school. For this purpose recruitment and promotion

rules have been framed. The written arguments filed by the counsel for the

petitioners refer to Rule 108 and to Joginder Sharma Vs. Delhi

Administration 116 (2005) DLT 685 − also referring to the recruitment

rules. Though Rule 108 as well as the recruitment rules provide for filling

up of vacancies in an aided school by promotion or by direct recruitment

but such promotion can be from within the aided school and not from

outside. An unaided school, even if under the aegis of the same Society as

the aided school, cannot be treated as part of the aided school so as to

make possible promotion from one to other. Thus, neither Rule 108 nor the

recruitment rules are found to come to the rescue of the petitioners.

14. I may even otherwise mention that the Act and the Rules vest the

management of a school in the Managing Committee of the school as

distinct from the Society/Trust which may have established the school.

The Managing Committee of an aided school cannot also manage an

unaided school even if by the same Society; even if all the members on the

two Managing Committees are the same it would still be a different

Managing Committee. Thus, the common umbrella of the same

Society/Trust in my view will be irrelevant and not make any difference

and the two schools are different institutions/entities in law and the

question of movement by way of promotion or otherwise from one to the

other does not arise, specially when owing to one being aided and other

being unaided different rules apply thereto. The Division Bench of Orissa

High Court in Jyostna Satapathy Vs. State of Orissa

MANU/OR/0212/2003 held that two wings receiving aid separately even

though under common education trust necessarily requires separate

Managing Committees.

15. It even otherwise defies logic as to why the employees of an

unaided school be given any preference in the matter of

employment/recruitment in an aided school even if both were set up by the

same Society/Trust. Such a procedure would not only be in negation of the

principle of open competition but also provide for a backdoor entry to an

aided institution and which procedure has been decried by the Constitution

Bench of the Supreme Court in State of Karnataka Vs. Umadevi (2006) 4

SCC 1. Rather, Rule 64(1)(e) requires an aided school to give first

preference to such of the employees of other aided schools as have become

surplus.

16. The right to promotion can even otherwise be claimed in the same

institution/service/cadre and not in a different institution. The unaided

Primary School and the aided Secondary School, even if of the same

Society/Trust, are separate schools and cannot be treated as the same

school. A school, under the School Act and the Rules is not required to

necessarily comprise of all the classes and can be a stand alone primary or

a secondary or a senior secondary school. This Court in Chander Pal Jain

Vs. Delhi Administration 61(1996) DLT 464 has held that there is no right

of promotion in another school, even if belonging to the same society.

17. As far as the Notification dated 9th December, 1987 (supra) is

concerned, the same relates to schools recognized by the MCD; also the

same does not deal with a case of an unaided primary school and an aided

secondary school. Even otherwise in the scenario as changed by Kathuria

Public School (supra), the same cannot prevail.

18. No merit is therefore found in the claim of the petitioners. The Writ

Petition is dismissed. The interim order aforesaid stands vacated. No order

as to costs.

RAJIV SAHAI ENDLAW (JUDGE) SEPTEMBER 13, 2011 Pp.

(corrected and released on 1 st February, 2012)