Harish And Another vs Lt. Governor, Nct Of Delhi And ...
2012 Latest Caselaw 2856 Del

       *       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                          Judgment reserved on: 24.4.2012
                                           Judgment pronounced on: 01.05.2012

+      W.P.(C) 1528/2012

       Harish And Another                                           ..... Petitioners

                            versus

       Lt. Governor, NCT of Delhi And Others                      ..... Respondents

Advocates who appeared in this case:
For the Petitioner   : Mr. Rajiv K. Garg
For the Respondent   : Mr. V.C.Jha & Ms. Sonia Sharma

CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE V.K.JAIN

V.K. JAIN, J.

This writ petition is directed against the order dated 31.10.2011, passed by

the Central Administrative Tribunal, Principal Bench, New Delhi (herein after

referred to as „the Tribunal‟), whereby OA 4182/2010 filed by the petitioner was

dismissed. The petitioners were appointed as part-time vocational teachers in

terms of a Scheme of the Government introduced in the year 1977-78, purely on

contingent basis. The terms and conditions of their appointment indicated that the

appointment could be terminated at any time without assigning any reason/notice.

It was further stipulated that the appointment would not entitle them to any regular

job under the Directorate of Education. The remuneration payable to them was

fixed at Rs.80/- per hour for theory classes and Rs.50/- per hour for subjective

classes, subject to maximum of Rs.2,000/- per month. The remuneration payable

to the petitioners was later increased by Rs.3,500/- (consolidated) revised per

month, subject to their teaching minimum 12 periods per week to qualify for the

maximum limit of the remuneration/honorarium. It was also stipulated in the order

that the honorarium/remuneration shall be calculated on the basis of actual teaching

periods. In the event of the number of periods being less than the prescribed limit,

the remuneration was to be reduced proportionately. While revising the

remuneration, it was reiterated that the appointment was purely on contingent basis

and could be terminated without assigning any notice. It was also clearly stated

that the appointment would not entitle the petitioners to any regular job under the

Directorate of Education. The remuneration was further revised to Rs.5,000/- per

month (consolidated), subject to the conditions that they would teach a minimum of

16 periods per week or 64 periods per month, to qualify for the enhanced maximum

limit for remuneration. The remuneration was to be calculated on the basis of

actual teaching periods and in case the number of periods was less than the

maximum prescribed limit, the remuneration was to be proportionately reduced.

By the order dated 06.08.2008, the remuneration was increased to Rs.8,200/- per

month w.e.f. 01.07.2008.

By a notification dated 06.07.2009, the remuneration was enhanced from

Rs.8200/- to Rs.11,140/- in case of Part-Time Vocational Teachers on contract

basis who were not qualified as per Recruitment Rules (RRs) for the post of PGT

(Vocational) and Rs.13,160/- for those Part-Time Vocational Teachers on contract

basis who were qualified in terms of the said Recruitment Rules (RRs). The

revision of remuneration was subject to the condition that they would take 32

periods per week, which is also prescribed for regular teachers and in case the

number of periods was less than the prescribed limit, their remuneration shall be

proportionately reduced.

2. OA No. 1748/2010 was filed by the petitioners seeking a declaration that

they were regular employees of the Government and entitled to half of the salary of

regular teachers. They also sought the pay applicable to PGTs on the principle of

"equal pay for equal work", from the date they were asked to impart studies for 32

periods in a week. The OA was disposed of vide order dated 26.5.2010, by

directing the respondents to consider the representation of the petitioners and pass a

speaking order. The representation was rejected by the respondents by a speaking

order dated 9.9.2010, which was challenged by them in OA No. 4182/2010. The

said OA having been dismissed, the petitioners are before this Court by way of this

writ petition. The Tribunal while dismissing the OA filed by the petitioners

observed that the issue involved in the matter stood concluded by its decision in

OA No. 1748/2010 Vocational Part-Time Teachers‟ Association And Others v. Lt.

Governor of NCT of Delhi And Others. In OA No. 1748/2010 the Tribunal had

given a direction to the respondents to fill up Vocational Part-Time Teachers as per

the methodology laid down under the Rules of 2000 and consider the applicants

after relaxing the age requirement. They were also directed to given weightage for

the applicants having been engaged as teachers for a significant period of time.

The order passed by the Tribunal was challenged by the applicants before this

Court in WP(C) No. 2299/2010. Upholding the decision of the Tribunal this Court

held that since the petitioners were never subjected to a recruitment process, they

must compete in the open market and they cannot enter in the regular cadre through

the backdoor. This Court noted that the equitable benefit to which the petitioners

were entitled had already been given to them in the form of age relaxation. The

Tribunal therefore rejected their case on the principle of "equal pay for equal

work". With respect to the prayer of the petitioners to pay to them 50% of salary

and allowances received by regular teachers, the Tribunal was of the view that the

petitioners were not placed similar to the regular employees and therefore no such

direction could be issued.

3. During the course of arguments before us the learned Counsel for the

petitioners pressed the writ petition only in relation to the prayer for payment of

pay and allowances to the extent of 50% of the pay and allowances being paid to

regular teachers.

4. The learned Counsel for the petitioners drew our attention to the Cabinet

note which was approved vide cabinet decision No. 1394 dated 17.4.2008, thereby

upgrading all Part-Time Teachers deployed by Sanskrit, Urdu and Punjabi

Academies in the Government Schools of Dte. of Education to Full-Time, and

increasing their consolidated remuneration to Rs.11,140/- in case of TGTs and

Rs.13,160/- in case of PGTs. The reliance upon the said cabinet decision, in our

view is wholly misconceived. The said cabinet decision pertains only to those part-

time teachers which were deployed by Sanskrit, Urdu and Punjabi Academies, and

was not applicable to all part-time teachers employed by Dte. of Education Delhi.

A perusal of notification dated 6.7.2009, whereby remuneration of the petitioners

was enchanced from Rs.8,220/- to Rs.11,140/- in case of PGTs who were not

qualified as per Recruitments Rules and to Rs.13,160/- in case of those who were

qualified as per the Recruitment Rules, would show that this notification was

issued pursuant to decision No. 1480 taken by the Council of Ministers on

8.10.2008 and conveyed vide order dated 13.10.2008. Thus, cabinet decision No.

1394 was taken on 17.4.2008 and whereas the decision in case of the petitioners

was cabinet decision no. 1480 taken on 8.10.2008 and conveyed on 13.10.2008.

More importantly, the notification dated 6.7.2009 clearly states that the petitioners

would be part-time vocational teachers, who would take 32 periods per week and in

the event of number of periods taken by them being less than the prescribed limit of

32 periods per week, the remuneration also was to reduce proportionately. The

notification dated 6.7.2009 was extended vide subsequent notifications dated

25.6.2010 and 31.3.2011. Therefore, we cannot accept the contention of the

petitioners that they were appointed as full-time teachers vide notification dated

6.7.2009.

The learned Counsel for the petitioners placed reliance on the decision of

this Court in WP(C) No. 13296/2009 decided on 17.9.2010, in support of the case

of the petitioners for payment of 50% of the wages which were paid to a regular

teacher. A perusal of the judgment would show that the petitioners in this case

were appointed by Delhi Urdu Academy and were deputed to teach Urdu either in

the Senior Secondary Schools or in the Primary Schools. It further shows that

though labeled as part-time teachers, they alleged that they were made to perform

additional duties and required to be in their school for the entire duration of the

classes. The claim of the petitioners before the Tribunal was based on the principle

of "equal pay for equal work". The Tribunal rejected their claim on the ground that

they were employed by Urdu Academy which was an autonomous body and

therefore they could not be treated at par with regularly appointed teachers in

Government schools. This Court noted that, vide order dated 20.6.2008, that the

petitioners, pursuant to cabinet decision No.1394 dated 17.4.2008, had been made

full-time teachers with immediate effect and they were to work on full-time as per

existing norms of the Department for different categories of teachers. This Court

noted that the source of funds utilized to pay the monthly remuneration to the

petitioners was either from Government of NCT of Delhi or Municipal Corporation

of Delhi, and therefore, Urdu Academy was merely a canalizing agency.

It was observed that Delhi School Education Rules, 1973 prohibited

appointment of part-time teachers except in primary schools or in primary classes

of a middle level or the senior secondary schools though on a regular basis. It was

further noted that as per Rule 101 Sub-Rule (2), the salary of the part-time teacher

was to include the allowances which shall be one-half of those of a full-time

teacher appointed on a regular basis and the proviso which required that the

medical facilities and other benefits excluding pensionary or retirement benefits

were also admissible to a part-time teacher, this Court held that part-time teachers

could under no circumstances be paid salary and other allowances less than one-

half of what was paid to the full-time teachers appointed on a regular basis. The

writ petition was therefore disposed of with the direction to the respondents to

release the salary to the petitioners, with reference to mandate of Rule 101 of Delhi

School Education Rules as explained in the judgment. The arrears were directed to

be paid to them w.e.f. 1.1.2000.

However, the petitioners before this Court are not employed by Sanskrit,

Urdu or Punjabi Academy. Unlike the petitioners in 13296/2009 full-time status

has not been conferred upon the petitioners before this Court since the cabinet

decision dated 17.4.2008 does not apply to them.

As far as reliance upon Delhi Education Rules 1973 is concerned, we notice

that Rule 101 forms part of Chapter VIII of the said Rules which pertains to

Recruitment and Terms and Conditions of Service of Employees of Private Schools

other than Unaided Minority Schools. Rule 101 of the said Rules reads as under:

"101. Appointment of part-time teachers to be permitted in primary schools or primary stage of any schools--- (1) It shall be lawful for the managing committee of a primary school or the managing committee of a school having a primary stage to appoint for the primary stage, a female teacher on a part-time but regular basis: Provided that not more than twenty per cent of the total strength of teachers of the primary school or primary stage, as the case may be, shall be appointed on a part- time basis.

(2) The salary and allowances admissible to a female teacher appointed on a part-time but regular basis shall be one-half of those of a full-time teacher appointed on a regular basis:

Provided that medical facilities and other benefits (not being pensionary, provident fund or retirement benefits) admissible to a part-time female teacher shall be the same as are admissible to a full-time teacher.

(3) If any part-time female teacher is appointed on a whole-time basis, one-half of the period of service rendered by such female teacher on a part-time basis

shall be reckoned as qualifying service for the purpose of computation of pension and other retirement benefits admissible to her."

It would thus be seen that Rule 101 applies only to private schools and not to

Government schools. This Rule does not apply to part-time teachers appointed by

Directorate of Education such as the petitioners before this Court. Moreover, this

Rule applies only to female teachers, whereas petitioner No.1 before this Court is a

male though petitioner No.2 is a female. No rule, requiring payment of half of the

salary and allowance admissible to a regular teacher to a part-time teacher

appointed by Directorate of Education Delhi, has been brought to our notice.

Therefore, it cannot be said that there is a statutory requirement for payment of half

of the salary of a regular teacher, to a part-time teacher appointed by the

Directorate of Education Delhi.

5. As noted earlier by us, the petitioners have never been appointed as full-time

teachers. They continue to be part-time teachers despite enhancement in their

remuneration coupled with increase in the teaching hours by them. In our view it

cannot be said that part-time teachers are similarly situated to full-time teachers.

The whole of the time of a full-time teacher is at the disposal of the Government

whereas the part-time teachers are not required to remain present in the school

throughout the working hours. Once they have taken classes in the periods

allocated to them in a particular day they are at liberty to leave the school. This,

however, is not permissible in the case of full-time teachers. Moreover, in case of

part-time teachers if there is a time lag between the periods allocated to him on a

particular day nothing prevents them from leaving the school during that

intervening period. A full-time teacher can be asked to take extra classes and no

extra remuneration is payable to them for taking such classes. Part-time teachers

on the other hand cannot be compelled to teach more than 32 periods per weeks.

Therefore, it cannot be said that the part-time teachers are similarly situated to full-

time teachers.

6. For the reasons stated hereinabove we find no legal infirmity in the

impugned order dated 31.10.2011. The writ petition is devoid of any merit and is

hereby dismissed without any order as to costs.

V.K.JAIN, J

BADAR DURREZ AHMED, J

MAY 01, 2012 rb/vn