Delhi Cantonment Board vs Smt. Raj Kumari Sachdeva And Ors.
2014 Latest Caselaw 266 Del

       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                         Reserved on: 28.11.2013
                                                       Pronounced on: 15.01.2014

+      LPA No.434/2009 & CM No.2224/2010

       DELHI CANTONMENT BOARD                            .......Appellant

                                      Versus

       SMT. RAJ KUMARI SACHDEVA & ORS.                   ......Respondents

+      LPA No.403/2010 & C.M. No.10850/2010 (Stay)

       DELHI CANTONMENT BOARD                            .......Appellant

                                      Versus

       SMT. ANUVERSHA & Ors.                             ......Respondents

+      W.P. (C) No.614/2010

       SMT. RAJINDER KAUR & ORS.                         ........ Petitioner

                                      Versus

       DELHI CANTONMENT BOARD                            ........ Respondent
               Through: Mr. D'Souza Philip, Standing Counsel with Mr. Sunil
               Satyarth, Advocates for the appellant.
               Ms. Anu Bagai, Advocate for respondents and petitioners in WP(C)
               No.614/2010.
               Mr. R.N. Singh with Mr. P.K. Singh, Advocates, for applicant in CM
               No.15841/2013.
               Mr. Nitendra Sharma, Advocate, for Respondent in LPA No.403/10

CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE NAJMI WAZIRI

LPA Nos.434/09, 403/10 & WP(C) No.614/10                                    Page 1
 MR. JUSTICE S. RAVINDRA BHAT
%
   1. The present common judgment disposes off a set of appeals in respect of the
       order in WP (C) No. 758 of 1995 and WP (C) No. 1551 of 1995 (being LPA
       nos. 434 of 2009 and 403 of 2010 respectively) along with WP (C) No. 614
       of 2010 filed by eight teachers against the Delhi Cantonment Board, the
       present appellant.These appeals arise from judgments dated 27.04.2009 and
       22.03.2010 by a learned single judge in the aforementioned writ
       proceedings. The dispute relates to the promotion and grant of pay scale in
       respect of certain assistant teachers to the TGT grade from the date as per
       which the respondents were discharging their duties on the said post in the
       certain middle and secondary schools governed by the Delhi Cantonment
       Board.
       Facts

2. The Delhi Cantonment Board is a statutory body constituted under the Cantonment Act, 2006. The employees including the teachers of cantonment schools are governed under the Cantonment Fund Servant Rules (CFS Rules). The appellant is running six schools (Uri Enclave, DID Lines, Jharera, Sadar Bazaar, Mehram Nagar and Old Nangal) throughout the territory of Delhi.

3. The respondents, although qualified to be Trained Graduate Teachers (TGT), were appointed as Assistant teachers in the pay scale of Rs 330, on different dates in 1989, as the Schools run by the appellant at that time were upto Primary level only. Thus, for the period of 1989-92, there were in all 89 teachers in the six aforementioned schools. On 4th April 1992, the Director of Education granted recognition of upgraded primary schools upto middle level in three of the aforementioned six schools (Uri Enclave, DID lines and

LPA Nos.434/09, 403/10 & WP(C) No.614/10 Page 2 Jharera) were upgraded to Middle level schools and subsequently in 2003, they were further upgraded to Secondary Level schools. At the behest of the appellant, the respondents were also teaching secondary classes.The said upgradation came on a request made by the appellant vide letter dated 8.6.1992 for the unaided schools run by them. Further, in 2003, the remaining three schools (Sadar Bazaar, Mehram Nagar, Old Nangal) were upgraded to Middle Level as well.

4. Immediately subsequent to the upgrade of these schools, the respondents have been, on the appellant's instructions, teaching Middle Level Classes. Since these teachers were qualified to be TGT, they were entrusted with the duties of teaching middle/secondary level classes by the appellant. (Annexure A - lists out date of appointment, educational qualifications and duration of teaching in Cantonment board schools). The appellants also certified that the respondents were satisfactorily performing their teaching duties in middle level classes.

5. Despite performing their teaching duties to the fullest, the appellants have failed to promote or grant the requisite pay scale of TGT to the respondents, who continued to be on the post and draw salaries equivalent of Assistant Teachers. The respondents issued a legal notice dated 20.1.1995 on the appellant but regardless of the service of notice, they were denied the scale of TGT. Thereafter, the respondents had filed a writ petition against the appellant before this Court being W.P. No. 758 of 1995 seeking, inter alia, promotion taking view the past service at the post of TGT and arrears of pay at the scale of TGT, to prevent the Board from adhering to direct recruitment of TGT contrary to the Rules.

6. The Board sought sanction for appointment of TGT teachers from the Competent Authority as there were no TGT posts under the existing CFS LPA Nos.434/09, 403/10 & WP(C) No.614/10 Page 3 rules and such sanction was received for upgradation of 41 assistant teachers to the post of TGT only on 1st September 2005 without any financial benefit. This sanction neglected the past services of the respondents and stated that the promotion to TGT is merely notional and will have no financial implications as all the promotees are already drawing the pay scale of TGT prior to the order. Aggrieved by the sanction, the respondents through the Delhi Cantonment Board Teachers Welfare Association had also issued six notices (2004-05) to the appellants stating the grievances of teachers and education in their schools, among which promotional and pecuniary benefits to the respondents who were working since 1991 in TGT posts merely as Assistant teachers was mentioned as an important ground which needed to be remedied. The appellant in March 2006 directly recruited as many as 18 candidates as TGTs and were rightfully placed in the seniority list of TGTs, without considering the assistant teachers for promotion.

7. The respondents had claimed promotion to the post of TGT and scale of pay w.e.f. 10.08.1989 i.e. from the date they claimed they were teaching middle classes and thus discharging duties of a TGT. The learned Single Judge by a judgment and order dated 27th April 2009 was pleased to allow this petition of the respondents. The single judge held that once the Board had taken the stand that the respondents were teaching middle level students from the year 1992 and these schools were also given recognition by the Directorate for upgradation, the appellant owed a duty to initiate steps to either grant promotion to the aggrieved assistant teachers or to take steps for direct recruitment in accordance with their rules, none of which were taken despite the respondents continuing to discharge their duties to teach middle level students.

LPA Nos.434/09, 403/10 & WP(C) No.614/10 Page 4

8. The court further held that the appellant had failed to disclose any such steps or communication which was undertaken by them to obtain necessary sanction for appointment of regular teachers on the post of TGT either based on promotion or direct recruitment. The only step taken by the Appellant was to obtain the sanction of the Competent Authority under Rule 47 of Cantonment Account Code for appointment of 41 posts of Assistant teachers in scale of 4500-7000 to TGT in the pay scale of 5500-175-9000 after the upgradation of the primary school to the middle level.

9. The said judgment declared that the Delhi Cantonment Board is directed to pay the entire arrears within the period of two months from the date of the order to the aggrieved teachers on the scale of TGT w.e.f. 14. 09. 1992.This benefit was given keeping in mind appointment by promotion was one of the methods prescribed under the rules and the benefit ought to be given from the date when middle schools were sanctioned by the Directorate of Education on the subject that the pay being claimed by the teachers on the principle of quantum meruit i.e. commensurate pay for commensurate work done. The learned judge thereby directed the Board not to induct TGT by direct recruitment overlooking the claim of such assistant teachers who were working as TGT and to reckon service rendered from 1992 for the purpose of seniority in the context of entitlement to be considered for promotions. The Board was also directed to consider the case of the teachers for promotion to the post of TGT in terms of the recruitment rules of the Delhi Cantonment Board within a period six months, subject to the fulfillment of eligibility criteria of these teachers after giving due benefit of their service on the said post.

10.Further, the respondents represented to the appellant to extend the benefit of the above judgment dated 27th April 2009 to the remaining teachers as they LPA Nos.434/09, 403/10 & WP(C) No.614/10 Page 5 were similarly placed but the appellant failed to respond to the above representation stating that it could not be extended to the parties not mentioned in the petition. The appellant thereafter filed the present appeal against the said judgment and order dated 27th April 2009 in this Court admitted the present appeal on the limited issue of seniority and with regard to payment of differential wages. This Court on 20th October 2009 ordered the appellant to pay to the respondents the differential wages in terms of the judgment within a period of one month from the date of this order. The appellant have been in compliance of the said order by issuing cheques to individual respondents on 18th November 2009. However, subsequent to the receipt of the due drawn statements from the appellant, it was found that there were errors in calculation of the total amount by the appellant, due to various discrepancies resulting in the amount paid to the respondents falling short of the amount directed to be paid by vide the aforementioned order.

11.Since the respondents were constrained to move an application before this Court seeking appropriate directions to the appellant, this Court vide order dated 19.03.2010 directed the appellant to deposit the balance amount within one month with the Registry. In due compliance with the above order, the appellant deposited the balance amount of Rs.2,15,847/- with the Registry in a fixed deposit. The respondents now seek release of the said amount with the interest so accumulated.

12.Thus, the two substantial issues arising out of this appeal are: A) Whether the respondents are entitled for promotion to the TGT grade from the sanctioned date for upgradation to middle level schools in 1992 or from the date they were actually promoted in 2005 as per the rule of seniority? B) Whether all the respondents were entitled to pay of arrears from 1992 or from 2005?

LPA Nos.434/09, 403/10 & WP(C) No.614/10 Page 6

13.The learned counsel for the appellant submits that though no doubt the schools were upgraded to middle school in 1992, the respondents were never appointed to the post of TGT with the relevant pay scale. The learned counsel for the appellant submitted that the teachers employed are governed by the Cantonment funds Servant Rules and are entitled to promotion on the availability and sanction from the higher authorities. He further contends that the learned judge failed to consider the fact that there was no post of TGT in existence in the schools of Delhi Cantonment Board on 14.9.1992 and thus orders directing payment of arrears from this date is not in accordance with the settled law on promotion with respect to the said post or scale. The respondents claim regarding the rules of promotion could not arise because at that point of time there was no sanction for promotion post of TGT. The sanction was received from HQ Western Command only in 2005. Further, the learned judge also ignored the fact that 41 teachers were upgraded to the post of TGT for the first time on 1.9.2005 and the appellant had promoted the respondent teachers on 30.10.2005. Further, merely because the teachers were taking higher classes, without sanction of appropriate authority for such post, does not entitle them to the post or scale of TGT.

14.The counsel further submitted that the appellant disputes the position that the post of TGT is a 100% promotion post as already direct recruitment was made for the said post by the appellant in 2005. The sanction for promotion to the post of TGT was received by the appellant only on 01.09.1995 and based on the said sanction, the promotion of the respondents were facilitated on 30.10.2005. The counsel further states that the respondents cannot claim entitlement on the post of TGT or the pay scales admissible to TGT either effective from 10.8.1989 or from the order dated 1992 when factually the LPA Nos.434/09, 403/10 & WP(C) No.614/10 Page 7 sanction for the said posts were received only on 30.10.2005. The learned Judge's order will make the seniority list prepared by the Department redundant, since if the respondents are granted the TGT pay scale, the teachers senior to respondents will become junior to them, thereby affecting their promotion.

15.The counsel for the respondents argued that the TGT post is a promotional post on the basis of cent percent quota from the post of Assistant teachers based on seniority. This practice is followed by the various Cantonment Boards across the country running various middle schools in Bareilly, Faizabad, Fatehgarh, Lansdowne, Meerut, Ranikhet, Varanasi and Saugor. The respondents allege that the appellant has acted in utter disregard of the principles of equality in the matter of service conditions violating Article 14 and 16 of the Constitution of India as well as provisions of 1973 Act and 1973 Rules by arbitrarily trying to fill up the 16 regular posts of TGT by direct recruitment from open market. It is also contended that in the schools run by the Delhi Administration and the Municipal Corporation of Delhi, the post of TGT is to be filled on the basis of promotion to the extent of 72% from the Assistant Teacher with service of five years.

16.The counsel for the respondents further states that the appellant has admitted that in the year 1992, the school was upgraded to middle level and accordingly the present petitioners started teaching students of middle school. Thus, this unequivocal admission entitles the respondents to the scale of TGT w.e.f. 1992.The counsel for the respondents state that they have been performing duties of TGT in the Uri Enclave school since 10 th August 1989, but were being paid the salary of Assistant Teachers, whereas on the principle of equal pay for equal work, they were entitled to pay the scale of TGT from their date of teaching middle classes.

LPA Nos.434/09, 403/10 & WP(C) No.614/10 Page 8

17.However, as per the counsel for the Interveners in the present petition, placing reliance upon the DOE norms, in 1992, there was a requirement of as many as 18 TGTs in three schools which were upgraded from primary to middle level schools. Therefore, 18 assistant teachers (primary) were entitled to be promoted to the post of TGT in 1992 itself. Thus, senior most assistant teachers (primary) (TGT qualified) deemed to have been promoted to the post of TGT in 1992 and are entitled to all its consequential benefits, including arrears in salary etc. The counsel further argued that, in 2003, the other three primary schools was also upgraded thereby resulting in increasing the requirement of TGTs from 18 to 36. Thus, the remaining assistant teachers (primary) (TGT qualified) were entitled to be promoted to the post of TGT with the consequential benefits. Further, he suggested that the respondents in WP(C) 758/1995 and other assistant teachers (primary) who were assigned to work as TGT shall be entitled salary admissible to TGT post for the period they have so worked. This right, however, did not confer any claim of promotion or seniority and shall not be entitled to double payments i.e. further promotion from TGT.

The provisions of Delhi School Education Act, 1973 and Rules

18.It would be relevant at this stage to notice the relevant provisions of the Delhi School Education Act and Rules, 1973 (hereafter referred to as "the Act" and "the Rules") and the rules framed thereunder. The Act governs all levels of education in the Government of NCT of Delhi, i.e. primary, middle and secondary onwards. It places overall control of education in the hands of the Administrator which in effect means the Government of NCT of Delhi. By Section 2(e)(ii), "Appropriate Authority" means, in the case of schools recognized by Delhi Administration, the Administrator, i.e. the Lieutenant Governor. By Section 2(h), "employee" means a teacher and includes every LPA Nos.434/09, 403/10 & WP(C) No.614/10 Page 9 other employee working in a recognized school. By Section 2(l), "local authority" is defined as follows:

"(iii) in relation to an area within the limits of the Delhi Cantonment Board, that Board;"

The concept of "Recognized school" is defined under Section 2(t); it means, "a school recognized by the appropriate authority". In the present case, such authority would be the Government of NCT of Delhi. By Section 3(2), Administrator may establish and maintain any school in Delhi or "permit any person or local authority to establish and maintain any school" in Delhi subject to compliance with the provisions of the Act. Section 4(1) enables the appropriate authority to recognize private schools provided it fulfills the stipulated and prescribed conditions spelt-out in the enactment and the rules framed thereunder.

19.By Section 8(1), the Administrator can make rules regulating minimum qualifications for recruitment and other conditions of service of employees of recognized private schools. Section 10 prescribes that,

"the scales of pay and allowances, medical facilities, pension, gratuity, provident fund and other prescribed benefits of the employees of a recognized private school shall not be less than those of the employees of the corresponding status in school run by the appropriate authority."

20.It is thus apparent that the entire field of school education and the right to prescribe minimum qualifications, salary, conditions of age, recognition etc. are regulated within the Union Territory of Delhi by the said enactment. With the specific reference to the Board as a "local authority" and the acknowledgement that it can also establish and maintain school is a reaffirmation that the Act extends to the Board-managed schools.

21.In terms of Rule 100(a), the minimum qualifications of teachers in recognized schools shall be those in line with what is prescribed by the affiliating Board, such as the CBSE, ICSE etc. Rule 108 says that vacancies shall be filled by promotion or direct recruitment in accordance with the

LPA Nos.434/09, 403/10 & WP(C) No.614/10 Page 10 rules framed by the Administrator. Rule 109, which deals with seniority prescribes as follows:

"109. Seniority- (i)There shall be a seniority roster for each grade and the names of employees appointed to posts in each grade shall be arranged in the roster in accordance with this rule.

(ii) Seniority of employees shall be determined by the order of merit in which they were selected for appointment in the concerned post, these selected on an earlier occasion being ranked senior to those selected later;

Provided that in a case where a joint seniority roster of employees of each grade common to all schools used to be maintained by society or trust running such schools prior to the commencement of these rules, inter-se-seniority of all employees of such schools shall continue to be maintained jointly.

(iii) Inter-se-seniority between direct recruits and promotes shall be determined according to the rotation of vacancies between direct recruits and promotes which shall be based on the basis of quota of vacancies reserved for direct recruitment and promotion respectively in the recruitment rules.

(iv) Inter-se-seniority of employees of any grade shall be determined by the managing committee in accordance with the rules applicable to the employees of corresponding posts appointed in the government schools:

Provided that in a case where a joint seniority roster of employees of each grade common to all schools used to be maintained by the society or trust running such schools prior to the commencement of these rules, such inter-se-seniority shall be determined by such society or trust.

Explanation - In this rule, the word „grade‟ means a post or a group of posts created for work of same nature in a school:

[Provided that where posts are created for work of the same nature in different schools run by the same society or trust all such posts shall be deemed to be in a single grade, if they were treated as such by the society or trust prior to the commencement of these rules].

LPA Nos.434/09, 403/10 & WP(C) No.614/10 Page 11

22.Rules 44 and 46 of the DSEAR spell-out the conditions in which new schools can be opened or existing schools can be appointed. Rule 50 spells- out what are the conditions for recognition, which include the stipulation that the management committee should observe the provisions of the Act and Rules made thereunder (Rule 50(vi) etc).

23.In the present case, the Board had established six schools, initially at the primary level. Apparently, it had sought for up-gradation. The first lot of three schools were upgraded in 1992. Interestingly, the letter granting up- gradation status, issued by the DoE cautions the Board as follows:

"You are further advised that in future, for grant of recognition, upgradation of your schools, you should comply with the provisions of DSEAR, 1973 along with the requisite documents."

Analysis and findings

24.There is no dispute about the fact that since the Act and the Rules applied and were always in force in Delhi and the Board was bound to comply with its provisions, there also was correspondingly a need to upgrade the existing posts or create the necessary posts soon after the up-gradation of the school/recognition order of 14.09.1992. The Board contends that it sought approval from its higher authorities and this was granted ultimately in 2005 when 41 posts were sanctioned. By then, the other three schools had been similarly upgraded to middle school level in 2003. Yet, the respondent teachers' grievances are, to an extent, in the opinion of the Court, justified. They continued to function against what ought to have been clearly sanctioned posts of TGTs right from 1992. The complication which this Court has to resolve is how to balance the rights of such respondents, who have undoubtedly discharged their duties as TGTs without benefit of pay scales, with those of teachers working in the other three schools who were

LPA Nos.434/09, 403/10 & WP(C) No.614/10 Page 12 similarly qualified to discharge the duties of TGTs. The latter category complains in these proceedings - as in the case of the Board, that conferment of continuous seniority on the basis that the respondents had discharged duties of TGTs would unfairly discriminate against the said latter category.

25.During the hearing, learned counsel for the Board had requested the Court to desist from making directions which would impinge on its functioning having regard to the appellate nature of the present proceedings. He had relied upon certain decisions of the Supreme Court reported as Sanjay Kumar and Ors. v. Narinder Verma and Ors. 2006 (6) SCC 467 and Shanbhagakannu Bhattar v. Muthu Bhattar and Anr 1972 (4) SCC 685. He also relied upon the decision reported as S. Sumnyan and Ors. v. Limi Niri and Ors. 2010 (6) SCC 791 and invoked the principle of laches and delay. It was argued that the Court should desist from going into matter that falls purely in the domain of the executive Board, particularly in regard to the up- gradation and sanction of posts.

26.Learned counsel urged that since all the 9 respondents had challenged the sanction granted in 2005, any directions issued by this Court in appeal would result in granting relief that had never been sought.

27.This Court is of the opinion that although the Board can plausibly argue that certain matters fall within its exclusive domain in matters of administration, at the same time, what was claimed initially by the respondents in 1995, in the writ petition, cannot be lost sight of. The first relief sought by them was that they should be promoted to the post of TGT on the basis of seniority as was being done in the case of other schools run by the Board in the country, or in the alternative consider them for promotion as TGTs on the basis of the 72% quota for the post of Assistant Teachers in terms of recruitment rules LPA Nos.434/09, 403/10 & WP(C) No.614/10 Page 13 framed under the Act by the Administrator. The other relief sought was to fix the pay scales in the grade of TGT with effect from 10.08.1989 and grant arrears. The last effective relief sought was a direction to restrain the Board from resorting to direct recruitment from amongst outsiders.

28.The writ petitioners, i.e. the respondents had also relied upon the rules framed by the Administrator on 11.12.1991, with respect to the method of recruitment and qualifications necessary for appointment to the post of TGTs. These rules classified TGTs as Group-C, Non-ministerial posts which were to be filled by promotion through selection, from Assistant Teachers with minimum five years' regular service failing which by promotion to the post of 20%; 47% were to be promoted from Assistant Teachers with 5 years' regular service in the grade on the basis of seniority-cum-merit and 5% were to be promoted from the cadre of Laboratory Assistants with 5 years' regular service. Direct recruitment was to be resorted to only to the extent of 28%.

29.In the writ petition, the following averments were made by the respondents with regard to the norms applicable for promotion.

"8. That even otherwise as per the conditions of service and the Recruitment Rules for the post of TGT in Schools run by the Delhi Administration, the post of TGT is to be filled on the basis of promotion to the extent of 72 percent from the Assistant Teachers with five years service as Assistant Teachers either in Delhi Administration or in the Delhi Municipal Corporation. A copy of the Recruitment Rules for the post of TGT is annexure herewith as Annexure P-2.

9. That the Delhi Cantonment Board has previously been ignoring and flouting the provisions of 1973 Act and the 1973 Rules and the provisions of Articles 14 and 16 of the Constitution and have been acting in an arbitrary manner while dealing with the Assistant Teachers employed in the Cantonment Board........"

LPA Nos.434/09, 403/10 & WP(C) No.614/10 Page 14

30.In the counter affidavit filed by the Board, to the above averments, in W.P.(C) 758/1995 - almost 12 years after the inception of the writ petition (on 24.07.2007), this is what the Board said in reply:

"8. That Para 8 of the writ petition is matter of record.

9. That in reply to Para 9 of the Writ Petition, it is submitted that the Teachers in Cantonment are governed by the Cantonment funds Servant Rules and the applicability of provisions of Delhi Education School Act, 1973 & Rules framed thereunder for limited applicability...."

31.The above averments clearly demonstrate that the Board was alive to the applicability of the Act and the rules with respect to qualifications to be held by teachers, norms for determination of the cadre-strength in each school, categorization of teachers and filling-up of posts. There was no specific denial about the 1991 Rules or that a 72 promotion quota had been provided for promotion to the TGT cadre. Equally, the Board did not deny that every recognized school - even in the Board's schools in Delhi- had to employ the TGTs/PGTs and other categories of teachers, in the ratio prescribed by the DoE in Delhi. In these circumstances, the argument made by the Board that even though up-gradation in terms of the Act took place in 1992, no rights accrued to the teachers because the sanction for the upgraded posts was granted 13 years later in 2005, is unacceptable. Whilst there may be some merit in the argument that those who discharge the post of TGT as being qualified upon their being in the upgraded schools alone cannot be singled- out for favourable treatment, that alone cannot be dispositive of these appeals. The Board necessarily had to, after up-gradation took place and sanction of posts were granted in 2005, work-out the necessary seniority and other attendant benefits that such teachers were to be given on the basis of

LPA Nos.434/09, 403/10 & WP(C) No.614/10 Page 15 existing norms which prescribed the cadre's representation - TGTs/PGTs in each school.

32.This Court was informed during the course of hearing that in view of the subsequent development whereby up-gradation of the existing middle schools to secondary levels took place in 2003, consequently step of upgrading some TGT posts to those of PGTs is ongoing and that such exercise should not be gone into by this Court.

33.Having considered the above circumstances, this Court is of the opinion that failure of the Board to secure or grant sanctions for the posts immediately after up-gradation or within reasonable time after 1992 has resulted in arbitrary and unfair consequences to all categories of teachers. This has been further compounded by the second up-gradation made in 2003. The sanction given by the 2005 orders is only in respect of 41 posts of TGTs. As to which of the teachers, existing as of 1992 were entitled to hold these posts cannot be decided in these circumstances. Having regard to these peculiar facts, the Court is of the opinion that a comprehensive exercise firstly involving analysis of the number of teachers existing in all the six schools as of 1992, determining who of them were entitled to be treated as TGTs having regard to the norms in the Acts and Rules have to be first undertaken. This would be best done with the involvement and consultation of the DoE. The second step would be to draw the seniority list of TGTs not merely based upon their length of continuous service but the eligibility of those entitled to be considered as TGTs (crucial and determinative cut-off date being 14.09.1992, i.e. the date of up-gradation of three schools). If on that date, having regard to the number of posts of TGTs required by the norms is less than those entitled and eligible to hold such posts, the seniority would be determined in accordance with the date of first entry into the Board's service LPA Nos.434/09, 403/10 & WP(C) No.614/10 Page 16 regardless of whichever school the incumbent is employed in. While doing so, the Board and the DoE shall keep in mind that for the post of TGT if the incumbent was qualified as on 14.09.1992, and had the requisite seniority, then alone would he or she would be entitled to be treated as such. If the teachers concerned had necessary seniority but not the educational qualification she or he would not be treated as a TGT but would continue to be borne in the cadre of Assistant Teachers. The third exercise would be notionally fix-up the scale of all those entitled to be considered as TGTs in that grade and pay the benefits from a date to be later determined by the Board. This direction is being issued having regard to the fact that a limited number of employees and teachers had, i.e. the respondents had approached the Court and others approached the Court much later in 2010. In the circumstances, even if the fixation and fitment (of salary) is made with effect from much anterior date, arrears of pay and allowances would be given only from the date the writ petition, W.P.(C) 614/2010 was filed. Thus, as regards those respondents (in the appeals preferred by the Board) who had approached this Court earlier, their entitlement to arrears, according to the impugned judgment, is left undisturbed. Finally, the Court also directs the DoE and the Board to carry-out a similar exercise in respect of determination of posts with regard to the cadre of PGTs, decide the seniority and entitled to hold such posts, having regard to the rules for filling-up such posts, framed by the Administrator under the Act and Rules.

34.This Court hereby directs that at the stage of deciding the allocation of posts and seniority, a draft list be prepared inviting comments and objections of all concerned. Thereafter, the necessary final orders, in compliance with the above directions should be made.

LPA Nos.434/09, 403/10 & WP(C) No.614/10 Page 17

35.This Court is of the opinion that having regard to the vital role played by the teachers, especially in the light of the Fundamental Right to Education guaranteed under Article 21A of the Constitution of India, and the newly enacted Right to Education Act, the delay by the executive agencies, including the Board in regard to settling the terms of employment of teachers or even delaying the recruitment of teachers cannot but have grave and adverse impact upon the quality of education. Whilst the executive agencies, such as the Board are bound by Articles 14 and 16 of the Constitution and do grant pay scales that are prescribed by law or rules, at the same time, it is essential that equal importance is given to the further conditions of service of such of the teachers who continue to discharge their duties and functions as in the present case, for more than two decades. The unsettled nature of their service conditions - evidenced by the grant of sanction for the posts 13 years after the scales were upgraded is a telling and regrettable circumstance. If the Board had given due priority to these aspects and determined all the conditions, such as allocation of the cadre, sanction of posts, allocation of posts to those eligible and entitled, fixation of pay scales within reasonable time of an year or 2-3 years, this litigation would not have continued to linger and engage the Courts for the last 18 years. Yeats said that "education is not the filling of a pail but the lighting of a fire." We ignore, at our peril, that teachers are professionals, who are to play a pivotal role in the inherent dynamism which manifests every generation, which dictates change on a day to day basis and compels transformation in the way we lead our lives. The Board appears to have done that all this while. We hope this is a wake-up call, to remedy the situation, so that teachers go about their job, unworried about their career prospects and secure about their employment.

LPA Nos.434/09, 403/10 & WP(C) No.614/10 Page 18

36.The appeals are accordingly partly allowed in the light of the above directions which shall be complied with by the Board in consultation with the DoE, within a period of three months. The respondents' entitlement to the arrears of salary directed by the impugned judgment is not in any manner disturbed, and those directions are hereby affirmed. The two letters patent appeals, LPA 434/2009, LPA 403/2010 and the writ petition, W.P.(C) 614/2010 are disposed off in terms of the above directions.There shall be no order as to costs.

S. RAVINDRA BHAT (JUDGE)

NAJMI WAZIRI (JUDGE)

January 15, 2014

LPA Nos.434/09, 403/10 & WP(C) No.614/10 Page 19