Kavita Mishra vs Directorate Of Education & Ors.
2013 Latest Caselaw 5736 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No. 2221/2011
%                                                    11th December, 2013

KAVITA MISHRA                                             ......Petitioner
                          Through:       Mr. Subhash Sharma and Mr. Om
                                         Prakash Mishra, Advocates.

                          VERSUS

DIRECTORATE OF EDUCATION & ORS.            ..... Respondents
                 Through: Mr. Anjum Javed, Adv. for R-1 with
                          Dr. Sudershan Kumar, L.A 2XIII

                                         Mr. A.K.Sakhija and Mr. Puneet
                                         Saini, Advocates for R-2 and 3.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)

1.    By this writ petition, petitioner prays for basically two reliefs. First

relief is for quashing the letters by which the petitioner's services were to be

terminated on the ground that petitioner was over-age. The second relief

which is claimed by the petitioner is that petitioner must be paid arrears of

salary as per recommendations of the 6th Pay Commission Report.


2.    I may note that since the respondent no.2-school took up a stand that

the petitioner's services had to be terminated on account of directions of the


WPC 2221/2011                                                                Page 1 of 5
 Director of Education which pointed out that petitioner was over-age at the

time of appointment. Interim orders passed by this Court were vacated and

the petitioner's services now stand terminated w.e.f 18.7.2013. The relief

prayed for in this case therefore with respect to issuing of directions not to

terminate the services of the petitioner becomes infructuous, more so

because petitioner has already rightly challenged the termination order by

filing an appeal before the Delhi School Tribunal in view of the judgment of

the Supreme Court in the case of Shashi Gaur vs. NCT of Delhi & Ors.,

2001 (10) SCC 445. Accordingly, so far as the first relief is concerned, the

issue of validity of termination of the petitioner will be decided by the Delhi

School Tribunal and nothing contained in today's order is a reflection on

merits of the case for or against any of the parties.


3.    That takes us to the second relief claimed by the petitioner for

implementation by the school of the recommendations of the 6th Pay

Commission Report for the period from 1.1.2006 to 31.1.2009. Counsel for

the petitioner states that this period in fact be extended till the petitioner's

services were terminated till 18.7.2013. By invoking principle akin to Order

7 Rule 7 CPC for taking note of subsequent events, I allow the modification

of prayer clause to be considered that petitioner must be paid her salary in

WPC 2221/2011                                                                Page 2 of 5
 terms of the recommendations of the 6th Pay Commission Report

from1.1.2006 till 18.7.2013 in view of the fact that the Director of Education

has directed implementation of the 6th Pay Commission Report for the

schools in terms of its notification dated 11.2.2009.


4.    That takes us to the issue that what is the amount which will now be

payable to the petitioner for the period from 1.1.2006 till 18.7.2013, being

the period for which petitioner has worked for the respondent no.2-school. I

note that it is not the case of the respondent no.2-school that petitioner was

in any manner guilty of concealing facts for taking appointment with

respondent no.2-school by concealing her age. Therefore once the petitioner

has worked with the school-respondent no.2, which has taken services of the

petitioner for the period she has worked, therefore respondent no.2 is liable

to pay petitioner recompense, remuneration and salary benefits for the period

for which the petitioner worked with the respondent no.2-school and

respondent no.2-school has taken the services of the petitioner as a teacher. I

cannot agree with the arguments urged on behalf of respondent no.2 that

since the petitioner was over-age, petitioner cannot be paid the monetary

emoluments/benefits which are claimed by her. Surely, it is not open to the

respondent no.2-school which has taken the services of the petitioner with

WPC 2221/2011                                                               Page 3 of 5
 open eyes to contend that the petitioner will not be paid the necessary

monetary emoluments, more so because the respondent no.2 is bound by

principles comprised in Section 70 of the Contract Act, 1872 which specifies

that unless a thing understood to be done gratuitously, the same is not done

gratuitously i.e it is done for remuneration.


5.    Now on the issue as to the calculations of the amount due. This

aspect in the opinion of this Court instead of being dealt with by the Court,

can be done by the Director of Education, and I have passed various orders

in this regard and one such order is passed in connected writ petitions with

lead case being W.P.(C) No. 1119/2011 titled as Meena Singh Vs. Director

of Education & Anr. decided on 4.7.2013 wherein I have directed that an

employee must make a detailed representation to the Director of Education

supported by documents and to which reply is given by the respondent-

school, and the Director of Education after hearing the parties should pass

speaking orders.


6.    Accordingly, so far as the monetary emoluments claimed by the

petitioner are concerned, the writ petition is disposed of by directing the

petitioner to make a detailed representation supported by documents to the

Director of Education within a period of four weeks from today.          The

WPC 2221/2011                                                             Page 4 of 5
 respondent no.2-school will give reply to this representation within a period

of four weeks alongwith a copy to the petitioner. Director of Education is

requested to pass speaking order as to if any amounts are due to the

petitioner, if so what amounts, and what would be the monetary reliefs

including interest which have to be granted to the petitioner by the

respondent no.2-school. If the Director of Education directs the payment of

amounts to the petitioner, it is only the respondent no.2 which will be

required to comply with such order, and compliance will be made within a

period of four weeks of receipt of the same by the school.


7.    On the Director of Education passing the speaking order, if any of the

parties are aggrieved with respect to the issue of the calculations or the

amounts paid or not paid, then, parties are at liberty to file appropriate

independent proceedings with respect to the disputed amounts. The writ

petition is accordingly disposed of, leaving the parties to bear their own

costs. All interim applications which are pending stand disposed of and

merged in terms of this judgment passed today.




DECEMBER 11, 2013                            VALMIKI J. MEHTA, J.

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