Delhi High Court
Resmi Rajeev vs Directorate Of Education & Anr. on 8 March, 2013
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 339/2012
% 8th March, 2013
RESMI RAJEEV ..... Petitioner
Through: Dr. M.P.Raju and Ms. Mary Scaria,
Advocates.
versus
DIRECTORATE OF EDUCATION & ANR. ..... Respondents
Through: Ms. Navratan Chaudhary, Ms. T.Pongener
and Ms. L. Gangmei, Adv. for R-1/DOE.
Mr. K.N.Jaya Sankar, Adv. for R-2.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? Yes
VALMIKI J. MEHTA, J (ORAL)
1. This writ petition is filed by the petitioner Smt. Resmi Rajeev seeking
directions that the petitioner should not be considered as overage inasmuch as the
age bar has to be seen not on the date of grant-in-aid to the school or from the date
of recognition of the school but from the date of original appointment of the
petitioner.
2. The facts of the case are that the petitioner was appointed as a clerical staff
with the respondent no.2-school on 1.4.1998. On completion of her period of
W.P.(C) 339/2012 Page 1 of 5
probation on 1.4.1999, she was regularized in service and this is not an issue
because an agreement was duly signed between the petitioner and the respondent
no.2-school and respondent no.2-school in its letter dated 12.7.2011 has
accordingly informed the Director of Education that the services of the petitioner
were regularized w.e.f. 1.4.1999.
3. The petition is contested by the respondent No.1/Director of
Education on the ground that the grant-in-aid was given to the respondent no.2-
school by the Director of Education on 1.9.2003, and on which date according to
the Director of Education, as per Rule 104 of the Delhi School Education Act and
Rules, 1973, an employee should not be overage. The Director of Education
refused to consider the petitioner as an employee of the respondent no.2-school as
having been appointed on 1.4.1998, the original date of appointment/recruitment.
4. On behalf of the petitioner, it is argued that what Rule 104 requires is
that on the date of recruitment an employee must not be overage and the date of
recruitment of the petitioner was 1.4.1998 i.e original date of recruitment and it
was not permissible for the Director of Education to take the date of appointment
as the date of regularization or the date of recognition of the school viz. 1.4.1999.
5. In my opinion, the issue is no longer res integra in view of the
judgment of a learned Single Judge of this Court in the case of Shri Vijay Prasad
W.P.(C) 339/2012 Page 2 of 5
Vs. Directorate of Education & Ors. 113(2004) DLT 141, wherein the earlier
judgment of a learned Single Judge in CW No. 1592/2003 decided on 13.1.2004
titled as Smt. Amita Majumdar & Ors Vs. Govt. of NCT of Delhi & Ors. is
quoted. The relevant paras of the judgment in the case of Shri Vijay Prasad
(supra) are paragraphs 10 to 14 and which read as under:-
10. The question to be considered is whether the age limit as prescribed under
Rule 104 of the Delhi School Education Rules, 1973 being 25 years can be
applied to a person like the petitioner, who was already employed? As would be
seen the minimum and maximum age limit are prescribed for recruitment to a
recognized school. The petitioner was recruited on 17.8.1984. At the time of his
recruitment or engagement by the school, he was not over 25 years of age.
11. Recruitment as per Webster's Oxford New World English Dictionary means
" enlist (someone) in the armed forces, enrol (someone) as a member or worker
in an organization to hire or engage services of."
Regularization in the present context as per the Oxford Dictionary would be
following :-
" of or belonging to the permanent professional armed forces of a country,
properly trained or qualified and pursuing a full time occupation, a regular
member of the organization."
As per Blacks Law Dictionary, "Regular" is conformable to Law, steady or
uniform in course practice or occurrence, not subject to unexplained or
irrational variation, made according to Rule, duly authorized, formed after
uniform type, built or arranged according to established plan, law or principle.
12. It would be seen that the Rule specifying the age bar is for recruitment or
engagement and not for regularization. When the petitioner was engaged or
recruited, he was within the age limit. For purpose of regularization, no upper
age limit has been prescribed. Hence Rule 104 would not be attracted in the
instant case. Moreover, in this case the selection process was duly followed. It
is not a case where the petitioner is found not to be possessing the requisite
qualification and experience. D.P.C comprising representative from the
W.P.(C) 339/2012 Page 3 of 5
Directorate of Education had duly approved the selection of the petitioner as a
U.D.C. It was pursuant to this selection and approval by the Directorate of
Education that appointment letter was issued to the petitioner for his
regularization. It is only subsequently that the Directorate of Education has
refused to grant-in-aid on the ground that petitioner was overage at the time of
grant of recognition to the school or even when the posts were sanctioned.
13. Reference may also be useful to the decision of a learned Single Judge in
CW No.1592/2003 in Smt. Amita Majumdar & ors Vs. Govt. of NCT of Delhi
& ors decided on 13.1.2004. In the cited case, school had been established by
the Officers of Indian Air Force in the year 1976 and was run as an
unrecognised school. Recognition was granted in the year 1993. Petitioners
were employees of the school prior to the date of recognition i.e. their
appointment was between the year 1975 and 1988. When recognition was
granted, objections as to the appointment of these employees were not taken.
The Directorate of Education also admitted the school for receiving grant-in-
aid. However, while sanctioning grant-in-aid, it excluded 12 teachers/non-
teaching staff for the purpose of disbursement of grant-in-aid because the said
persons were overage. The Directorate of Education took the stand that it had
released grant-in-aid only in respect of the member of staff, who were qualified
for the appointment as on the date of recognition. The petitioners being overage,
were not eligible to be appointed when the school sought recognition and
Therefore, Director of Education would not release any grant-in-aid for the said
petitioners. The learned Judge held as under:-
" There is no provision in the Act and the rules framed there under under
requires that no school could employ on its roll any person who was over age as
on the date when the school was recognised. Rules prescribe that a recognized
school is bound by the norms of age limit prescribed by the Director of
Education. Thus, post recognization, a school cannot employ persons who are
overage. Say, a school may be established in the year 1980. It recruits persons
who would be within the age limit. The school may seek recognition in the year
1990. By 1990, these persons may become over age, but can it said that these
persons have to be removed from the school. In my opinion, the answer is no."
14. I am in respectful agreement with the views expressed by the learned Single
Judge in Smt. Amita Majumdar's case (supra). In the cited case also,
regularization was not granted following the refusal of grand-in-aid.
(underlining added).
W.P.(C) 339/2012 Page 4 of 5
6. A reading of the aforesaid paragraphs show that what is required is
that a person should not be overage on the date of recruitment and not on the date
of recognition or grant in aid or regularization. On the date of recruitment of the
petitioner on 1.4.1998, the petitioner admittedly was not overage i.e petitioner was
below 25 years of age. As has been observed in the judgment of Smt. Amita
Majumdar (supra), if Rule 104 is strictly interpreted as is sought to be done by the
Director of Education, the same will yield the result that employees of
unrecognized school which subsequently gets recognized would be treated as
overage on the date of recognition and thus would have to be removed from their
services, and which was rightly said that could not be the position in law.
7. In view of the above, the writ petition is allowed and it is held that the
petitioner will not be treated as overage by the respondents and the petitioner will
be taken to have been recruited from 1.4.1998. The petitioner will now get all
consequential benefits from the respondents taking the petitioner's date of
recruitment as 1.4.1998.
8. The writ petition is allowed and disposed of accordingly.
MARCH 08, 2013 VALMIKI J. MEHTA, J.
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