Smt. Lovika Jain vs The Principal, Delhi Public ...
2013 Latest Caselaw 4702 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  W.P.(C) No.3248/ 2012

%                                                   9th October, 2013

SMT. LOVIKA JAIN                                    ..... Petitioner
                          Through:       Mr. R.K. Saini, Advocate with Ms.
                                         Seema Salwan, Advocate.


                          Versus

THE PRINCIPAL, DELHI PUBLIC SCHOOL AND ORS. ...Respondents
                   Through: Mr. Puneet Mittal, Advocate for
                             respondent Nos.1 and 2.
                             Mr. Dhanesh Relan, Advocate for
                             respondent No.3.


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

To be referred to the Reporter or not?    Yes

VALMIKI J. MEHTA, J (ORAL)

1.           I have taken on record photocopy of the affidavit dated

8.10.2013 filed by the respondent-school represented by respondent nos.1

and 2. Original be placed on record within one week from today.


2.           This writ petition is filed by the petitioner-Smt. Lovika Jain

seeking the relief of payment of salary to her by the respondent-school from

17.5.2009 to 31.7.2009. Payment of this salary is claimed for the three
W.P.(C) No.3248/2012                                           Page 1 of 5
 months period provided under the second proviso to Rule 96(9) of Delhi

School Education Rules, 1973.


3.             The facts of the case are that petitioner was working as PGT

(Psychology) with the respondent-school.         Petitioner vide letter dated

1.5.2009 submitted her resignation stating that she would like to resign w.e.f

1.5.2009 on account of the fact that she had been invited by an International

School to start their psychology department. In this letter dated 1.5.2009

tendering resignation, petitioner also stated that she will serve her notice

time period.

4.             The issue in the present case revolves around the interpretation

of the second and third provisos of Rule 96(9) of the Delhi School Education

Rules, 1973 (hereinafter referred to as „the Rules‟) and therefore the said two

provisos alongwith the main sub-Rule (9) of Rule 96 is reproduced below:-

     "Rule 96(9) No managing committee shall entertain any application
     for employment from a person who is already serving as teacher in a
     recognized school, whether aided or not, unless the application from
     such person is duly forwarded by the manager of the school in which
     such applicant is serving:
        Provided that every application from such person shall be
     forwarded by the manager, but any application in excess of three in a
     year shall not be forwarded unless the managing committee, for
     reasons to be recorded by it in writing so directs:
        Provided further that no such teacher shall be relieved of his duties
     except after the expiry of a period of:
        (i) three months, in the case of a permanent teacher, from the date
     on which notice of intimation to leave the school is given; and
W.P.(C) No.3248/2012                                              Page 2 of 5
         (ii) one month, in the case of a teacher who is not permanent, from
     the date on which notice of intimation to leave the school is given.
        Provided also where the managing committee is in a position to
     provide for a substitute for such teacher earlier than the respective
     period specified in the foregoing proviso, the managing committee
     may relieve the teacher of his duties on the expiry of such earlier
     period."


5.            Whereas the petitioner contends that every teacher on giving

notice of intimation to leave the school is entitled to three months‟ pay in

terms of second proviso to Rule 96(9), the respondent-school relies upon the

third proviso to state that if a substitute can be provided earlier than the

period specified in the second proviso of three months, managing committee

is entitled to relieve the teacher before the expiry of three months.

6.            At the outset, I may state that there is no provision in the Rules

except Rule 96(9) and as per which a permanent employee like the petitioner

can seek three months salary after giving a notice of resignation.

Resignation of an employee is in terms of Rule 114A of the Rules and as per

which all that is required is that the managing committee must accept the

resignation within 30 days. There is no issue in this case of the managing

committee not having accepted the resignation within 30 days. What is

argued before me on behalf of the petitioner is that even after acceptance of

resignation, yet, the leaving employee will be entitled to work and get salary

of three months in terms of second proviso to Rule 96(9).
W.P.(C) No.3248/2012                                               Page 3 of 5
 7.           In my opinion, the arguments which are urged on behalf of the

petitioner by placing reliance upon the second proviso to Rule 96(9) are

misconceived inasmuch as the second proviso to Rule 96(9) is not made for

the benefit of the teacher but for the benefit of the school. This becomes

clear from the third proviso which states that before expiry of the three

months period if a school is able to provide a substitute for teacher who

resigns, then, managing committee can relieve the teacher from his earlier

duties. The earlier period means that period which commences when the

substitute teacher would be available to the school. The object of law and

which become clear on reading of second and third provisos together of Rule

96(9) is that the studies of the children in the school should not be affected

by a teacher suddenly leaving the school. The period of three months is

provided so that the school may get a substitute teacher. The expression

„substitute teacher‟ does not mean that there has to be necessarily a fresh

appointment inasmuch as the school may have sufficient number of teachers

to take the classes of that teacher who resigned from the school. If within

the three months as provided under the first proviso to Rule 96(9) a

substitute teacher is available then surely the school will be entitled to accept

the resignation of an employee even before the three month period, and

consequently bring an end to the services of such resigning teacher even

W.P.(C) No.3248/2012                                               Page 4 of 5
 prior to three months period.

8.           Since in the present case respondent-school has stated that

duties of the petitioner were given to Ms. Vandana Goswami after reopening

of the summer vacation of the school, the school remaining closed from

16.5.2009 to 7.7.2009, in my opinion, it is not open to the petitioner to

contend that petitioner was entitled to work and take salary for the period of

three months under the second proviso to Rule 96(9) of the Rules. As

already stated above, a combined reading of second and third provisos show

that period of three months is for the benefit of the school and not for the

teacher who is leaving the services of the school.

9.           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.




OCTOBER 09, 2013                               VALMIKI J. MEHTA, J.

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