Jasbir Kaur vs Govt. Of Nct Of Delhi And Anr
2013 Latest Caselaw 1368 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+            WP(C) No.1863/2013 & WP(C) No.1870/2013

%                                                        March 20, 2013

1. W.P.(C) 1863/2013

      JASBIR KAUR                                          ..... Petitioner
                            Through:     Mr. Rajat Aneja, Adv.

                   versus


      GOVT. OF NCT OF DELHI AND ANR          ..... Respondents
                    Through: Mr. Jagdeep Sharma, Adv. for R-1.


                            and

2. W.P.(C) 1870/2013

      KULJIT KAUR                                          ..... Petitioner
                            Through:     Mr. Rajat Aneja, Adv.

                   versus


      GOVT. OF NCT OF DELHI AND ANR          ..... Respondents
                    Through: Mr. Jadgeep Sharma, Adv. for R-1.


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

To be referred to the Reporter or not?


WP(C) No.1863/2013 & WP(C) No.1870/2013                               Page 1 of 7
 VALMIKI J. MEHTA, J (ORAL)

CM No.3557/2013(for exemption) in WP(C) No.1863/2013 &
CM No.3565/2013(for exemption) in WP(C) No.1870/2013

             Allowed, subject to all just exceptions.

             Applications stand disposed of.

WP(C) No.1863/2013 & CM No.3556/2013(for direction) with
WP(C) No.1870/2013 & CM No.3564/2013(for direction)

1.           The petitioners claim that they continue to be teachers in the

respondent No.2/school. Petitioner in WP(C) No.1863/2013 was appointed

as a TGT (English) teacher and the petitioner in WP(C) No.1870/2013 was

appointed as TGT (Social Sciences).

2.           There is a history of litigations in the present cases in view of

the fact that there were earlier writ petitions filed by these writ petitioners,

and which were WP(C) No.4061/1997 and WP(C) No.4062/1997. These

writ petitions were originally allowed vide judgment dated 29.1.1999. An

LPA was filed by the Directorate of Education and which appeal was

allowed by directing the Single Judge to dispose of the writ petitions on

merits. The writ petitions were ultimately heard on merits and disposed of

by the judgment dated 27.11.2012.

3.           What the reliefs were, as claimed in the earlier writ petitions

WP(C) No.1863/2013 & WP(C) No.1870/2013                              Page 2 of 7
 becomes clear from the following prayer clause in one of the writ petitions:-

         (a) issue a writ of mandamus or any other writ, order or
         directions directing respondents 1 to 4 to treat the petitioner
         as appointed under rule 96 of the Delhi Education Rules,
         1973 and make payment of arrears of salary to the petitioner
         for the period from 01.05.1996 till date as per their
         respective shares in accordance with the rules applicable to
         the grant-in-aid school and also continue paying salary from
         month to month."

4.          By the judgment dated 27.11.2012, the writ petitions being

WP(C) No.4061/1997 and WP(C) No.4062/1997 were disposed of. Some of

the relevant observations and findings in the said judgment are reproduced

below, and they are relevant for the purpose of the present judgment,

inasmuch as those paragraphs indicate the existence of disputed questions of

fact with regard to whether the petitioners have continued to perform their

duties as teachers with the respondent No.2/school. Paras 11, 12, 16 and 17

of the said judgment read as under:-

         "11.      Ms. Ahlawat then submitted that the letters written by
         the School to the DoE did not reveal that the two Petitioners
         were appointed on regular basis as TGTs in the Secondary
         School. She referred to the letters dated 19th April, 1995 and
         25th May 1995. Even on 17th July 1995 the School only
         informed the DoE that the two teachers have been appointed on
         part-time basis. She submitted that it was not known as to how
         they subsequently became regular teachers. She referred to the
         attendance register and stated that while entries up to March
         1998 were acceptable to the DoE, the entries beyond that date
         could not be accepted as they appear to have been made by
WP(C) No.1863/2013 & WP(C) No.1870/2013                            Page 3 of 7
          same hand and not countersigned by the management.

         12.        This Court has perused the original file of the DoE,
         produced in Court as well as the attendance register. There were
         admittedly problems with the School and salaried were not
         being paid even to teachers in the Middle School. They made
         representations to the DoE, in that regard. On 19th April 1995,
         in its letter to the Education Officer, the School referred to the
         appointment of both the Petitioners on honorary basis with
         effect from 1st February 199 "till further regular arrangement."
         It was further stated that "....we could not submit the case in
         time due to Examination (Annual)". Then there is a letter dated
         25th May 1995 in response to the DoE‟s letter dated 9 th May
         1995. In the said letter it was sated that the two Petitioners
         were appointed on part-time basis. It was further pointed out
         that the School had received the post fixation for the academic
         year 1994-95 "at Middle level only on 26/4/95". It was stated
         that School was orally informed by DoE that the post fixation
         was applicable to aided school only and staff for unaided
         (minority) school may be appointed by the management
         without post-fixation.       Consequently, it was decided to
         regularize the services of both the Petitioners with effect from
         1st May 1995.

         ...........

16. This Court has perused the attendance register produced by the Respondent. While the pages up to March 1998 are properly filled up indicating the names of the two teachers, it must also be recalled that there was a dispute within the management and a separate attendance register was maintained for the Secondary School. Although both the Petitioners appear to have signed the attendance register thereafter, from what is evident from the affidavit filed by Shri Rattan Singh in LPA No.157 of 1999 is that they were assigned duties only till 1st April 2000. They state that they were attending School even thereafter. If they did, then they were doing so at their risk. Applying the principle of „no work no

pay‟, it would not be appropriate to direct the arrears of salaries to be paid to the Petitioners beyond 1st April 2000 since admittedly the Petitioners were not discharging any duties as TGTs after that date.

17. For the aforementioned reasons, this court holds that both Petitioners would be entitled to the arrears of salaries from 1st May 1996 up to 1st April 2000. A direction is issued to the DoE to pay to each of the Petitioners 95% (being the share of the DoE) of the salaries due to them as TFTs from 1st May 1996 up to 1st April 2000 since admittedly the Secondary School was sanctioned grant-in-ad during the aforementioned period. Considering that both Petitioners have been made to wait in Court for 15 long years, it is directed that the said amount should be paid by the DoE, to each Petitioner along with simple interest at 9% per annum for the period 1st April 2000 till the date of payment which should not be later than eight weeks from today. If the payment of arrears of salaries for the aforementioned period together with simple interest at 9% per annum is not made as directed within eight weeks from today, the DoE will pay each Petitioner further penal simple interest at 12% per annum on the aforementioned respective sums for the period of delay." (underlining and emphasis is mine)

5. A reading of the aforesaid paras shows that there are seriously

disputed questions of facts as to whether the petitioners continued to work as

teachers from 1.4.2000 or not. The aforesaid paragraphs also show that

there is no evidence of the petitioners having attended their jobs of teaching

in the school though this aspect was seriously contended by the petitioners.

The Court examined the record as also the attendance register and was

convinced that the petitioners had only performed their duties till 1.4.2000.

Accordingly, salaries were granted to the petitioners only till 1.4.2000 i.e

salaries were not granted till the date of the disposal of the writ petitions on

27.11.2012 and for future also, and which was the prayer made in the writ

petitions, and which prayer clause has already been reproduced above.

6. The aforesaid aspects show that there are seriously disputed

questions of fact as to whether the petitioners had abandoned their services

with the respondent No.2/school or they were not allowed to attend their

duties at school. The fact of the matter is that the learned Single Judge in

terms of his judgment dated 27.11.2012 invoked and applied the principle of

„no work no pay‟ for granting salaries to the petitioners only till 1.4.2000.

Therefore, it is a moot point whether the petitioners continued as teachers or

they had in fact abandoned their services with the respondent No.2/school.

7. In my opinion, writ petitions under Article 226 can hardly be

the appropriate remedy in cases such as the present where seriously disputed

questions of fact arise of whether the petitioners have discharged their duties

as school teachers or they have abandoned their services, and which issue of

fact can be decided only on evidence being led.

8. No doubt Courts do exercise powers in certain cases of going

into disputed questions of fact, however, I am not inclined in the facts of the

present case to consider leading of evidence before this Court and which will

be better led in appropriate independent proceedings before the competent

Civil Court.

9. I may also note that the respondent No.2/school though an

aided school is a private school, and in cases such as the present, the

respondent No.2 would not be a State or an instrumentality of State in terms

of Article 12 of the Constitution. I am conscious of the fact that a writ

petition under Article 226 is also entertained against private persons,

however, the jurisdiction under Article 226 is discretionary, and more so

when there exists seriously disputed questions of fact.

10. In view of the above, the writ petitions and the applications are

dismissed giving liberty to the petitioners to file appropriate independent

proceedings in a competent Civil Court in accordance with law.

VALMIKI J. MEHTA, J MARCH 20, 2013 ak