Philomina Mary vs Mgt Of St John Co-Education ...
2012 Latest Caselaw 3853 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

         +      W.P.(C) 567/1997

     %                  Judgment reserved on: 9th May, 2012
                        Judgment delivered on: 3rd July, 2012


PHILOMINA MARY                                             ..... Petitioner
                                    Through: Mr.G.D.Gupta, Sr. Advocate
                                    with Mr.Piyush Sharma, Adv.
                        versus

MGT OF ST JOHN CO-EDUCATION SCHOOL,
KHERA KHURD.DELHI & ORS                 ..... Respondents
                      Through:Ms.AvnishAhlawat         and
                      Ms.Urvashi Malhotra, Advs.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT


SURESH KAIT, J.

1. The instant petition is being filed seeking direction or order in the nature of mandamus, commanding the respondent No. 1 to 3 to regularise the service of the petitioner and pay back wages to the petitioner w.e.f. 18.12.1991.

2. It is submitted that the petitioner initially joined Lourd's Convent Girls inter college at Ghaziabad and was remained as an Assistant Teacher ( w.e.f 1st July, 1968 to 17th May, 1973) The petitioner took special interest in P.T., singing and other activities in school, which is evident from the Certificate issued by the Principal of the above mentioned college.

3. The petitioner had joined the respondent No. 1 in the year 1981 as an Assistant teacher as mentioned in the Certificate issued by the Manager of Saint John's Middle School/respondent No.1 by stating that the petitioner has been working in the school as Assistant Teacher in the leave vacancy of Mrs. Surlesh Gupta for the last 02years. Even before she was working in the place of Mrs. Gupta during her maternity leave. It is further stated that they found her a pains taking and diligent in her duty.

4. Thereafter, vide appointment letter dated 18.12.1991 issued by Manager of respondent's school for regularization of petitioner's service w.e.f. 18.12.1991, when the said post had fallen vacant due to promotion of Sh. Marcel Kujur Head Master, Primary Department.

5. It was clarified in the said appointment letter that the payment of salary will be made strictly subject to the receipt of grant in aid of the salary from the Education Department. In case, the grant-in-aid is not obtained, then she would have no claim on the salary.

6. The Education Officer, Directorate of Education, District North Zone IV, Lucknow Road, Delhi sought some clarification from respondent No. 1. The same was clarified by its communication dated 14.12.1992, that the petitioner was working in their institution for the last fifteen years against the leave vacancy of different teachers and she was appointed against a vacant post created by the promotion of Mr. Marcel Kujur, Assistant Teacher to the post of Head Master, Primary Department.

7. It was further clarified on the misconduct regarding her appointment that she was called for an interview and the Selection Committee with the available criteria found her not qualified as she had no Science and Maths in her matric examination. But the R.R. of the Directorate of a later date gave relaxation with the recommendation of the Selection Committee, if the candidate has passed Higher Secondary Examination. In the case of the petitioner, she had done her higher Secondary/intermediate exam and as such she stands qualified.

8. It is further submitted that at the time of her initial entry into service/leave vacancy she was within the age limit and she has become overage due to no fault of her own. In this connection, it was pointed out that certain employees of various other managements similarly placed, represented to the Education Department to regularise the services. On considering their representations, the department sought relaxation from Lt. Governor, accordingly, relaxations were granted.

9. It is pertinent to mention here that the respondent's school requested the Education Officer mentioned above to consider the case of the petitioner sympathetically and necessary relaxation in her age may please be sought from the competent authority i.e. from the Director of Education so that the future of a sincere and hardworking teacher may be safeguarded.

10. Mr. G.D. Gupta, Sr. Advocate appearing on behalf of the petitioner submitted that the petitioner has been serving the respondent No. 1 for more than 23years and was getting only Rs.1,000/- per month

till about 4years back. The respondent No. 1 had sent a letter to the Education Department for approval by clearly mentioning that at the time of her initial entry into service, the petitioner was within the age limit and she became overage due to no fault of her own. The petitioner has been doing her best for services as an Assistant Teacher and had never given any chance to respondents for any complaint.

11. Ld. Sr. counsel has also mentioned that the date of birth of the petitioner is 22.11.1947 and she joined the respondent's school as Assistant Teacher, at that time, she was eligible for the post of Assistant Teacher

12. As per Recruitment Rules for the post of Assistant Teacher, it is not necessary to have Maths and Science for the candidates, who have passed their Higher Secondary Examination. The petitioner had already passed her intermediate examination, therefore, the petitioner is entitled to get the benefit of regular Assistant Teacher.

13. It is further submitted that respondents No. 1 to 3 had never sent any notice/letter to the petitioner against the appointment letter for regularization of the petitioner w.e.f. 18.12.1991, which is violation of recruitment Rules for Assistant Teacher, therefore, the instant petition be allowed.

14. Response to the instant petition was filed by respondent No. 1, wherein, it has been clearly stated that respondent No. 1 is a minority aided school. The school is situated in out-lying rural area about 10kilometers beyond the by-pass on the Punjab side. Along with the

school, there is an orphanage, where more than 200 orphans, semi- orphans and very poor children live and study under the care of charitable institution. It is further stated that the petitioner had been working with them from time to time sometimes as Library Assistant and at other times against leave vacancies of regular teachers. The respondent school being a purely charitable institution, was paying consolidated amount to the petitioner from the PTA fund, since the Directorate was not approving her appointment and the 95% aid was also not been received in relation to her. Despite the respondent No.1 had forwarded from time to time the proposal for regularising the petitioner but to no avail.

15. It is pertinent to mention here that for a school which is situated at far flung rural location and several years back when she started working, there was hardly any teacher who was willing to serve at such a distant rural place.

16. The respondent's school has no objection to regularize the services of the petitioner in view of the fact that a clear vacancy is existing for the petitioner to be regularized at present and subject to the Directorate of Education granting approval and also sanctioning the requisite grant in aid on account of her salary, however, keeping in view the charitable character of the respondent school and its running an orphanage with 200 children, the direction for regularization be made prospective.

17. Respondents No.2 and 3 also filed response to the instant

petition stating that the petitioner was never appointed as Assistant Teacher in respondent No. 1's school through a regularly constituted Selection Committee. The records and correspondence with the management reveals that the petitioner was engaged as a helper by the management and in all probability she had been working not in the school but in the orphanage. Vide a letter dated 24th January, 1990, written by the management to the Education officer, it has been clearly stated that the petitioner was only a helper in the school, she did not have the required qualifications, therefore, she was paid from the PTA fund to the tune of Rs.500/- per month, as she was considerably over aged. It is also stated that the management had helped the petitioner in several ways as they parted education to her husband in the Society's technical school as an electrician where all the expences were met by the society and that the representation of the petitioner as well as her statements are baseless.

18. Ms. Avnish Ahwawat, learned counsel for the respondents has submitted that vide letter dated 14.02.1991, the manager of the school informed the Deputy Education officer that the petitioner is working in their institution at a post of Librarian, the post which is vacant as per post fixation.

19. Further submitted that a certificate dated 4th November, 1988 indicates that the petitioner was working as Librarian (Honorary Service) in the school and before that she had worked on the leave vacancy. Even vide letter dated 18.04.1991, the Education officer was informed that the petitioner is working as a Librarian and a request was

made to regularize her services. However, she did not she did not had the requisite qualification for appointment to the post of Librarian.

20. It is further submitted that in the year 1989, three posts of Assistant Teachers were advertised, the names were also called from the Employment Exchange. In all, 27 candidates appeared before the Selection Committee which met on 17th November, 1989. The petitioner also appeared for the interview but was not selected for the post. She was not even in the waiting list, hence, it is evident that if the petitioner had actually worked in the school as a teacher or a Librarian and her work and conduct was up to the mark, the Selection Committee which comprises of the Manager, Vice Principal and other members would have definitely selected her. But, in fact, she was not selected, clearly indicate that the petitioner was not working in the school.

21. The matter was enquired into detail in the office of the Director of Education and a meeting was held in the Chamber of the Deputy Director (North) on 14.09.1993 to discuss the request of the petitioner where the manager and the Vice Principal of the school were also present. It was alleged by the manager that the petitioner was working in the school for the last 15years as an Assistant Teacher which position was not correct as was also evident from the documents. The Deputy Director of Education District North asked the Manager to produce the copy of the minutes of the meeting of the Staff Selection Committee, by which the petitioner appointed for the post of Assistant Teacher.

22. Ms. Ahlawat submitted that vide a circulation of some office minutes of the Managing Committee it is was communicated that the Managing Committee on the recommendation of the Principal of the school resolved to regularize the petitioner as Assistant Teacher and the Director of Education may be requested to grant necessary relaxation in age and qualification. It is evident that no Committee as constituted under Section 96 of the Delhi School Education Rule, 1973 met to select the candidates for the appointment under Section 96, the resolution of the Managing Committee has no value in the eyes of law.

23. Further submitted that since the petitioner was not appointed in accordance with the Rules, the Education Officer Zone IV vide his letter dated 09.03.1994 informed the Manager of the school that no age relaxation can be considered in the case of the petitioner due to the reasons that no appointment in the aided school can be made unless it is recommended by the duly constituted Selection Committee in accordance with Section 96 of Delhi School Education Rule, 1973. It was also pointed out that the Managing Committee suo moto cannot appoint any person against any post unless, it has been recommended by a duly constituted Selection Committee.

24. I have heard learned counsels for the parties.

25. It is note-worthy here that respondent No. 1's school was situated at far flung rural location and several years back when the petitioner started working, there was hardly any teacher who was willing to serve at such a distant rural place.

26. The regular services of the petitioner has not been approved by the Director of Education, due to which, she has suffered a lot as she was serving only at a meagre salary of Rs.500 - 1000 per month, which was not sufficient even to fill the belly of the petitioner , leave apart the family of the petitioner. Though, as per the Rules having Science and Maths in her matric examination was mandatory to regularize her service as Assistant Teacher. But the R.R. provides relaxation, if the petitioner has passed Higher Secondary Examination this is applicable on her.

27. It is informed by ld. Sr. Counsel for the petitioner that the petitioner is now retired from the respondent No. 1 school and got no retirement benefits. She is not even getting any pension.

28. It has emerged from the submissions advanced by ld. Counsel for the parties that the petitioner has been part of the respondent school. She was made regular w.e.f 18.12.1991. Thereafter, the management sought approval and age relaxation on parity.

29. But the fact remains that her appointment was not made by the respondent as per Rules. Thus the respondents committed irregularity. However, no fault of the petitioner. Therefore, the petitioner should not suffer for the same.

30. Therefore, I am of the considered view that keeping into account the span of service that the petitioner contributed towards respondents school, her sincerity, devotion and passion towards her job, she is entitled to be regularised.

31. I here make it clear that the instant case may not be considered as a precedent, however, keeping her poor background and devotion by which, he worked with respondent No. 1, the instant petition deserves to be allowed.

32. Accordingly, the Directorate of Education is directed to approve the post facto regularization of the petitioner w.e.f. 18.12.1991. Consequently, she is entitled to back wages with all consequential benefits.

33. This judgment shall be complied with on taking steps by the respondents within four weeks from the receipt of the copy of the judgment, failing which the petitioner shall be entitled @ 8% interest from the date of this judgment till realization.

34. The petitioner is accordingly allowed and disposed of.

35. No order as to costs.

SURESH KAIT, J

JULY 03, 2012 j/jg