Winnie Sampson vs Lt. Govr. Of Delhi & Ors.
2013 Latest Caselaw 2343 Del

$~R-32A.
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+                         W.P.(C) 3048/1997
%                                      Date of Decision: 20th May, 2013

       WINNIE SAMPSON                                   ..... Petitioner
                    Through:           Mr.M.C.Dhingra, Adv.


                    Versus


       LT. GOVR. OF DELHI & ORS.                ..... Respondents

Through: Mrs.Avnish Ahlawat, Adv. with Ms.Latika Chaudhary, Adv.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J. MEHTA

To be referred to the Reporters or not?

: VALMIKI J. MEHTA, J (Oral)

1. This writ petition is filed by the petitioner, a nursery teacher in the

respondent No.4/School, for quashing of the order dated 01.07.1997

whereby the petitioner's services from the school were dispensed with, with

immediate effect.

2. The facts as pleaded by the petitioner, are that she was appointed as a

nursery teacher in the respondent No.4/School in the year 1987. Respondent

No.4/School was a recognized school under the Delhi School Education

Act, 1973. On account of mismanagement, the management of the school

was taken over by the Director of Education/Administrator and who is now

represented as respondent No.5. The Director of Education is sued as

respondent No.3. On the Administrator taking charge of the school, and

which taking over is under Section 20 of the Delhi School Education Act,

1973, the petitioner along with another teacher were not found to have the

requisite qualification of a nursery teacher. Both the petitioner, and the

other teacher Smt.Rajni Mehta were directed by an order issued by the

respondent No.5 in September, 1995 to get the requisite qualifications. So

far as the petitioner is concerned, she was said not to have 2 years diploma

in NTT/Nursery Teachers Training, and therefore, by the Memorandum of

September, 1995 she was directed to obtain the requisite qualification within

two years. The petitioner by her letter dated 22.09.1995 did not challenge

the requirements of obtaining the qualification as directed vide

Memorandum of September 1995 of the respondent No.5, however, the

petitioner asked that she should be given a period of four years for obtaining

academic qualification of B.A. and B.Ed. Since the petitioner failed to

obtain 2 years diploma in NTT within a period of two years from

September, 1995, her services were terminated by the impugned

Memorandum dated 01.07.1997.

3. It is contended on behalf of the petitioner that there were no rules and

regulations of respondent No.2/Director of Education of any minimum

qualification for being appointed as a nursery teacher in the year 1987. It is

argued that petitioner already had one year diploma of NTT, and was

therefore, correctly appointed. It is argued that respondents are unjustified

in asking for application of the qualifications of 1993 or the subsequent

qualifications of 2011 of a two year NTT diploma, when the petitioner was

already appointed in the year 1987. It is argued that there is no dispute

raised by the respondents that petitioner has one year diploma, as stated in

paragraph - 6 of the writ petition and its non-traverse in the corresponding

paragraph of the counter-affidavit. The petitioner accordingly prays for

quashing of the impugned discharge letter dated 01.07.1997.

4. The respondents in their counter-affidavit have stated that petitioner

did not have the necessary qualification, and therefore, she was issued the

Memorandum of September, 1995 whereby she was required to get the

necessary 2 year diploma of NTT, but she having failed to obtain that, her

services were rightly terminated.

5. The first aspect to be considered is whether petitioner has to meet the

qualifications of a nursery teacher as in 1987 or of 01.06.1993, i.e., whether

the requirement of the NTT diploma being of 2 years came into effect only

in 1993 and was not prevalent in 1987. In fact, it is further contended that

even as per the notification of the respondent No.2/Govt. of NCT of Delhi

dated 01.06.1993, the only requirement was of an NTT Diploma from a

recognized institute, i.e., there was no requirement of two years. It is argued

that the requirement of 2 years diploma came into existence only in terms of

the Gazette Notification dated 15.06.2011 of the Govt. of NCT of Delhi.

6. Let me for the sake of argument, presume that petitioner only had to

comply with the requirement as prevalent in the year 1987 for appointment

as a nursery teacher. The fact of the matter is that unfortunately neither of

the parties had filed on record what were the qualifications required for

being appointed as a nursery teacher in 1987. Though in my opinion,

respondents are equally to be faulted with, however, considering that it is the

petitioner who has come to this Court and the petitioner who is alleging that

the petitioner complied with the requirements of 1987, it is the petitioner

who had to file and substantiate her case that the requirement of being

appointed as a nursery teacher was only of a diploma of one year in the year

1987. Merely because there is non-traverse in the counter-affidavit, it

cannot mean that the Court is necessarily bound to accept the non-traverse

and not call upon the petitioner to specify what was the required

qualification in the year 1987. This may be a strict reading of the

requirement of law, however, I am keeping in mind the alternative aspect

that I surely cannot give a conclusion that anyone and everyone without any

qualification whatsoever can be appointed as a teacher in a school, even if

only a nursery teacher. We are dealing with the issue of proper education in

schools, and therefore, I do not think it is at all unreasonable that after all

there will have to be some requirement of certain minimum qualification for

being appointed as a nursery teacher in a recognized school. Therefore, I

hold that since there is nothing on record that what should be the educational

qualifications of a nursery teacher, it is not possible to clearly hold that the

only conclusion which has to be arrived at is that petitioner should be held

as duly qualified to be appointed as a nursery teacher in 1987.

7. Another aspect with respect to lack of due qualification of the

petitioner is that surely even if one year's diploma in NTT was sufficient,

that would have to be from a recognized institute by the Government of

NCT of Delhi/Director of Education. Once again none of the parties have

done any justice to this aspect because it is nowhere found that the one year

diploma which the petitioner has of the Institute of Vocational Studies was

of an institute recognized by the respondents No.2 and 3. In fact, it is also

additionally relevant that the copy of the diploma filed by the petitioner

shows that the same does not pertain to Nursery Teachers Training but it is

only of 'Child Education'. It is a moot point as to whether Diploma in Child

Education is at all a one year Nursery Teachers Training diploma.

8. All in all there are too many unanswered questions in this case for me

to conclusively hold in favour of the petitioner on whether the petitioner

qualified with the requirements of 1987 or as to whether the Diploma in

Child Education obtained by the petitioner was of a recognized institute or it

is at all a diploma in NTT or is only a diploma in child education which is

not a diploma in NTT. In such state of affairs, I would not seek to give

benefit to the petitioner of her having the necessary qualifications.

9. Now turning to the aspect that if the petitioner was correctly having a

one year diploma in NTT or that whether the respondents No.3 and 4 were

justified in requiring the petitioner to get a 2 years diploma in NTT. As in

September, 1995 the notification of the Government of NCT of

Delhi/respondent No.2 dated 01.06.1993 had come into being and which

required an NTT diploma from a recognized institution by the candidate.

Also, by the time the Memorandum of September, 1995 was issued to the

petitioner for her getting the 2 years NTT diploma, the National Council for

Teachers Education Act, 1993 had come into force, and which Act had come

into force to standardize the education by requiring minimum qualifications

for teachers of schools.

10. A reference to Section 20(6)(a) of the Delhi School Education Act,

1973 shows that an Administrator who takes over the school is justified in

approving service conditions of the teachers. Once when the service

conditions are approved, those service conditions cannot be changed to the

detriment of the employee. The Administrator, therefore, could have in

view of the lack of clarity, required the petitioner to obtain the 2 years NTT

diploma. Accordingly, directions were correctly issued by the September,

1995 Memorandum ordering the petitioner to obtain the 2 years NTT

diploma. I do not think that there is any gross illegality in the respondent

No.5 requiring the petitioner to obtain two years NTT diploma.

11. In my opinion, whatever may be the position as to whether the

petitioner was duly qualified in 1987; whether one year diploma of 'Child

Education' was sufficient; whether petitioner had one year diploma from

recognized institute; whether the petitioner need not have obtained two years

diploma; all these aforesaid aspects stand merged with the aspect that the

petitioner at no point of time on issuing of the Memorandum of September,

1995 ever questioned that she was not required to get a two years NTT

diploma. If the petitioner wanted the respondents to accept that she was

duly qualified in 1987 and hence she cannot be asked to qualify the 2 years

NTT diploma course; and the Memorandum of September, 1995 was illegal;

petitioner was bound to immediately take steps to challenge the September,

1995 Memorandum. On the contrary what happened is that petitioner by her

letter dated 22.09.1995 accepted the September, 1995 Memorandum

requiring her to get a 2 years NTT diploma. A reference to the language of

this letter of the petitioner dated 22.09.1995 shows that the petitioner did not

challenge the action of the respondent Nos. 2 to 5 in asking her to get two

years NTT diploma. If the petitioner at that stage did not question the

requirement of her getting a two years NTT diploma, then surely

subsequently after the petitioner was discharged from service because of

failing to obtain 2 years NTT diploma, she at that stage cannot question the

same. The petitioner on writing the letter dated 22.09.1995, is estopped from

in any manner from questioning the requirement as asked of her by the

September, 1995 Memorandum that she should get a 2 years NTT diploma

from a recognized institute. In my opinion, all aspects prior to the

petitioner's letter dated 22.09.1995 will necessarily stand merged with the

petitioner's letter dated 22.09.1995, and thereafter when the petitioner failed

to obtain the two years NTT diploma, she cannot suddenly turn around to

question the September, 1995 Memorandum.

12. It may be relevant to note, though not determinative of the issue, that

today we are in the year 2013 and the impugned action challenged is of 16

years earlier of 1997. No doubt the petitioner approached the Court

immediately in 1997, however, this long period whereby the petitioner has

had no employment with the respondent No.4/School would have some

bearing.

13. Again, though this aspect is not relevant, respondents seem to aver in

the counter-affidavit that various teachers including the petitioner were

indisciplined. They used to directly approach the Lieutenant Governor, and

the Lieutenant Governor took a very strict view of the teachers of the

respondent No.4/School directly approaching Lieutenant Governor

repeatedly instead of coming through proper channel. The counter-affidavit

also shows that various employees of the respondent No.4/School were

unnecessarily pressurizing the authorized officer for salary for the period

prior to taking over of the school and for which period they did not work

with the school. Really though these aspects would not turn on the aspect of

legality of the employment of the petitioner, however, it appears that

petitioner also did not behave like a disciplined teacher, and probably which

forced the hands of the respondents No.3 to 5 in the facts of the present case.

It may also be noted that it is not as if the respondent No.5 resorted to pick

and choose action, inasmuch as, and as already stated above, not only the

petitioner was proceeded against for lack of qualification, another teacher,

Smt.Rajni Mehta was also proceeded against.

14. In view of the above, I do not find any merit in the petition, which is

accordingly dismissed, leaving the parties to bear their own costs.

VALMIKI J. MEHTA, J MAY 20, 2013 'anb'