Rajesh Mathews vs Director Of Education And Ors.
2013 Latest Caselaw 4653 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     W.P.(C) No. 632/2012

%                                                    7th October, 2013

RAJESH MATHEWS                                ..... Petitioners
                           Through:      Ms. Indrani Ghosh, Advocate.


                           Versus

DIRECTOR OF EDUCATION AND ORS.        ......Respondents
                 Through: Mr. Rajinder Dhawan, Advocate with
                          Mr. B.S. Rana, Advocate for
                          respondent Nos.2,3 and 5.


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

To be referred to the Reporter or not?   Yes

VALMIKI J. MEHTA, J (ORAL)

1.             In this writ petition, the petitioner impugns the action of the

respondent no.5-school in denying him a defence assistant in the disciplinary

proceedings.     Petitioner wanted appointment of his wife as the defence

assistant and the wife is an ex-employee of the respondent no.5-school.

2.             As per the guidelines relating to service conditions of

employees in unaided       schools the rules governing government employees

will be applicable in     view      of    circular     dated 25.3.1991 of the

W.P.(C) No.632/2012                                        Page 1 of 5
 Director of Education. The relevant CCS (CCA) Pension Rules in this

regard are Rules 14(8)(a) and 14(8)(b). These provisions read as under:-

     "Rule 14(8)(a) The Government servant may take the assistance of
     any other Government servant posted in any office either at his
     headquarters or at the place where the inquiry is held, to present the
     case on his behalf, but may not engage a legal practitioner for the
     purpose, unless the Presenting Officer appointed by the Disciplinary
     Authority is a legal practitioner, or, the Disciplinary Authority, having
     regard to the circumstances of the case, so permits:
     Provided that the Government servant may take the assistance of any
     other Government servant posted at any other station, if the Inquiring
     Authority having regard to the circumstances of the case, and for
     reasons to be recorded in writing so permits.
     Rule 14(8)(b) The Government servant may also take the assistance
     of a retired Government servant to present the case on his behalf,
     subject to such conditions as may be specified by the President from
     time to time by general or special order in this behalf."
3.             The charged employee is therefore entitled to have the defence

assistant who is either posted in the school or who would be an ex-employee

of the school. It may be noted that the aforesaid provisions of Rule 14(8)(a)

and (b) have been drafted with respect to central government servants and

therefore they have to apply mutatis mutandis with respect to disciplinary

proceedings in schools. Accordingly, the expression posting will have to be

read as posting in the school i.e an employee of a school can be a defence

assistant and a charged employee is entitled to defence assistant as per Rule

14(8). In terms of Rule 14(8)(b) the charged official can also seek the

assistance of a retired government servant. What is canvassed on behalf of
W.P.(C) No.632/2012                                         Page 2 of 5
 the petitioner is that so far as disciplinary proceedings in a school are

concerned a retired government servant essentially means a retired school

employee or an ex-employee and the expression „retirement‟ should not be

interpreted narrowly to mean that an employee who had resigned from the

school should not be treated as being a person envisaged under Rule

14(8)(b) to represent a charged employee.

4.          The issue before this Court is what is the meaning to be

ascribed to the expression „retired‟ as appearing in Rule 14(8)(b) and as to

whether that expression should only refer to a person who superannuated on

his ordinary date of retirement or the expression will even include an

employee who has even resigned from the school.

5.          No doubt, literal interpretation is the golden rule of the

interpretation, however, it is equally well said in various other judgments

that golden rule is that there is no golden rule i.e each provision has to be

interpreted as per the intention of the legislature, the purpose of the

provision, context in which the same appears and the other relevant factors.

In my opinion, there is no rationale in restricting the expression „retired‟

only to a person who retired on the ordinary date of superannuation

inasmuch as the issue is really of representation of a charged official by a

person who is an employee or who was an employee. An employee who has

W.P.(C) No.632/2012                                      Page 3 of 5
 resigned also would be an ex-employee and therefore I would not seek to

give a restricted interpretation to the word „retired‟ that only that person can

be a defence assistant who retires on the ordinary date of superannuation.

Really, in fact there can be no distinction between two types of employees

when we see the object of the provision and which is to ensure

representation from a limited class of persons being the present employees

and the ex-employees only can be defence assistants. Really, the object of

Rule 14(8) is to while ensuring that ordinarily a legal practitioner should not

be a defence assistant yet the charged official should always be allowed

assistance of a defence assistant who would be an employee or an ex-

employee. Therefore I hold that the expression „retired‟ in Rule 14(8) (b)

should be read to mean an ex-employee of a school so far as the provision

applies to unaided private schools in Delhi and will include ex-employees

who have resigned from the school.

6.           Counsel for the respondent no.5-school sought to refer to the

definition of retirement as existing under the CCS (CCA) Rules and FRSR

to contend that a strict interpretation may be given to the expression

„retirement‟ however in view of the reasoning which I have given above I do

not agree with the argument urged on behalf of the respondent no.5-school.



W.P.(C) No.632/2012                                         Page 4 of 5
 7.           Since the only relief pressed before this Court is entitlement of

the petitioner to be represented by his wife Smt. Reeta Mathews and Smt.

Reeta Mathews admittedly is an ex-employee of the respondent no.5-school

because she was an employee of the school but she resigned, this writ

petition is allowed by holding that the petitioner will be entitled to be

represented in the departmental proceedings by his wife Smt. Reeta

Mathews. Parties are left to bear their own costs.




OCTOBER 07, 2013                              VALMIKI J. MEHTA, J.

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