Vir Bala vs Directorate Of Education And Anr.
2015 Latest Caselaw 2242 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      W.P.(C) No.2479/2015 and C.M. No.4443/2015

%                                                        17th March, 2015

VIR BALA                                                    ..... Petitioner
                            Through:     Ms. Jyoti Dutt Sharma, Advocate.

                            versus

DIRECTORATE OF EDUCATION AND ANR.            ..... Respondents

Through: Ms. Ruchi Sindhwani, Advocate for respondent No.1.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. Petitioner, who is presently working with the Delhi University

Social Centre School, Maurice Nagar, Delhi, seeks the following reliefs in

this writ petition:-

"(i) Issue a Writ of Mandamus directing the Respondents to record the date of joining/regularization of the petitioner as 1.9.1987 instead of 2.1.2006, as has been directed by this Hon'ble Court vide its order dated 5.12.2005 in WPC no 5573/1999;

(ii) Issue a Writ of Mandamus directing the Respondents to grant the Petitioner continuity in service from 1.9.1987, as per the orders of this Hon'ble Court vide its Order dated 5.12.2005 in WPC no 5573/1999.

(iii) Issue a Writ of Mandamus directing the Respondents to place the Petitioner in the old pension scheme considering her date of regularization is 1.9.1987;

(iv) Issue a Writ of Mandamus directing the Respondents to grant benefit of the 1st financial upgradation and 2nd financial upgradation under and as per the terms of the MACP scheme w.e.f 1997 and 2007 respectively;

(v) Issue a Writ of Mandamus directing the Respondents to promote the petitioner to the post of TGT (Hindi) w.e.f. 30.4.2008;

(vi) Issue a Writ of Mandamus directing the Respondents to transfer/bring the Petitioner back her parental respondent no 2 school;

(vii) Issue of writ of mandamus directing the respondents to keep one post of TGT vacant in the Respondent no2 school till the final disposal of the Writ Petition;

(viii) pass such further order/orders as this Hon'ble Court may deem fit and proper in the circumstances of the present case."

2. In sum and substance, the effect of the aforesaid prayer clauses

is that the petitioner claims that she should be granted seniority w.e.f

1.9.1987; petitioner should be granted promotion accordingly taking her

seniority from 1.9.1987; that petitioner must be granted benefits of the old

pension scheme prevalent on 1.9.1987, and that the MACP benefits be

granted taking the petitioner's seniority/appointment from 1.9.1987.

Petitioner also seeks the relief that she should be transferred back to the

respondent no.2/School namely Sh. Hanuman Mandir Middle School, Shakti

Nagar, Delhi from where she is presently working in Delhi University Social

Centre School, Maurice Nagar, Delhi.

3. In order to understand and appreciate the reliefs claimed by the

petitioner, para 11 of the order dated 5.12.2005 passed by the learned Single

Judge of this Court in a writ petition filed by the petitioner being W.P.(C)

No.5573/1999 titled as Vir Bala Vs. Directorate of Education & Anr. is

required to be referred to and this para reads as under:-

"11. Having regard to the above facts, and the contentions raised, I am of the opinion that the Respondent Directorate has not acted in a fair and reasonable manner. If there was any doubt the Respondents to have sorted out the issues inter se. Instead, the Respondent school is stating that the particulars were submitted to the Directorate whereas the Directorate is likewise pointing figures at the Respondent Institution. In the above conspectus of facts, I am of the opinion that the Directorate should process the Petitioner's case and after considering the qualifications regularise her services in the existing post of Assistant Teacher. The Petitioner is also entitled to be continuity (without any further consequential benefits) from the date the other teachers were granted benefit of regularization by virtue of an Order dated 18.9.1987. This order shall be passed by the Directorate within a period of eight weeks from today. It is made clear that the Petitioner shall not claim any back wages or arrears of salary having regard to the fact that she approached this Court in the year 1999. In the event of any promotion all vacancy arising to the post of TGT, the Respondents shall consider the case of the Petitioner on merits in the light of the benefit granted to her in this petition.

Order Dasti." (underlining added)

4. A reading of the aforesaid para makes it abundantly clear that

the petitioner only gets seniority from 1.9.1987 by virtue of order dated

8.9.1987 of the Directorate of Education (wrongly typed as 18.9.1987 in the

order dated 5.12.2005) but the same was to be without any consequential

benefits. Once a person is given regularization from a back date without any

consequential benefits, the effect would be that no consequential monetary

benefits of any nature would be granted to a person except the fact that the

concerned employee gets notional seniority from the earlier date i.e 1.9.1987

in this case. In view of the categorical language in para 11 of the order dated

5.12.2005, it is not open to the petitioner to claim any consequential benefits

viz any consequential monetary benefits taking the date of the original

appointment of the petitioner as 1.9.1987 and whatever monetary benefits

which will be available to the petitioner would be only on her regularization

pursuant to the order dated 5.12.2005 i.e after 5.12.2005 and not w.e.f

1.9.1987 as is prayed in this writ petition. In fact, by this writ petition

petitioner in effect seeks to file an appeal against the order dated 5.12.2005

in W.P.(C) No.5573/1999 which has become final and which judgment

categorically states that the petitioner only gets benefit of regularization

w.e.f 1.9.1987 without any consequential benefits viz the petitioner only gets

notional seniority and no monetary benefits. Accordingly, the petitioner

cannot claim the third relief of her being granted pension as per the old

pension scheme inasmuch as which will amount to giving monetary benefits

to the petitioner for the period of service commencing from 1.9.1987 and

which has not been granted to the petitioner by the order dated 5.12.2005.

Petitioner also accordingly cannot be granted first and second financial

upgradation from 1997 (sic:1999) and 2007 as claimed because this relief is

predicated on the petitioner being entitled to monetary benefits taking her

appointment from 1.9.1987. However, so far as the case of the grant of the

MACP benefits from the year 2007 is concerned, it is possible that the

petitioner may be entitled to such benefits, but since the writ petition is

totally bereft of particulars as regards the eligibility criteria which the

petitioner satisfies for being granted the MACP benefits from the year 2007,

therefore, in this writ petition no relief can be granted and which is

accordingly dismissed for the relief claimed of the MACP benefits with

liberty to the petitioner to claim the MACP benefits if the petitioner is

entitled to by showing her meeting the eligibility criteria for grant of the

MACP benefits of first or second financial upgradation w.e.f the year 2007,

making it clear that no monetary benefits till regularization of the petitioner

pursuant to the order dated 5.12.2005 can be claimed by the petitioner.

5(i) That takes us to the claim of the petitioner whereby petitioner

seeks promotion to the post of TGT (Hindi) w.e.f 30.4.2008. Even this relief

is misconceived and liable to be dismissed for the reason that in the year

2015, petitioner cannot claim promotion which as per the petitioner she

should have got in the year 2008. It has been held by the Supreme Court

consistently that delay and laches defeat any claim on merits and assuming

that the petitioner was entitled to promotion to TGT (Hindi) w.e.f 30.4.2008

and which is also doubted in view of the discussion in the later part of this

judgment.

(ii) The second reason for not granting the relief of promotion to

the petitioner is that entitlement of the petitioner is only for being considered

for promotion and not for grant of promotion. If the petitioner meets the

eligibility criteria, petitioner would be considered for promotion in

accordance with the law but entitlement of the petitioner to promotion can

only be in terms of the applicable criteria and petitioner meeting the same

including of having the necessary seniority, and accordingly the only relief

which can be granted to the petitioner is that the petitioner will be

considered by the respondent no.1 for promotion taking her date of

appointment as 1.9.1987 and her consequent seniority, of course making it

clear that this Court is not making any observations as to the entitlement or

otherwise of the petitioner for promotion and which would be considered by

the appropriate authority in case in future any post falls vacant to which

petitioner claims to have met the necessary eligibility criteria for being

considered for promotion to such post. Further and in fact the respondents

need not consider the seniority of the petitioner w.e.f 01.9.1987 in view of

Rule 47 of the Delhi School Education Rules, 1973 (hereinafter referred to

as 'the Rules') and which aspect has been dealt with below. Petitioner in the

parent school at Maurice Nagar can only get seniority w.e.f 07.4.2011.

6. The final relief which is claimed by the petitioner is that the

petitioner should be retransferred from the school in which she is presently

working being Delhi University Social Centre School, Maurice Nagar, Delhi

to Sh. Hanuman Mandir Middle School, Shakti Nagar, Delhi where she was

originally employed. Even this relief cannot be granted to the petitioner

because admittedly the respondent no.2/school was an aided school. In

terms of Rule 47 of the Rules, once a school is closed or for any other

reason, a teacher becomes surplus, the Directorate of Education is entitled to

transfer such a teacher to any other aided school. The petitioner was in fact

transferred from respondent no.2/School to the other aided school namely

the Delhi University Social Centre School, Maurice Nagar, Delhi in terms

of the letter of the respondent no.1 dated 5.4.2011, and once the petitioner

has as a matter of fact been absorbed from the respondent no.2/School to

Delhi University Social Centre School, Maurice Nagar, Delhi, petitioner

therefore will now be in the seniority list of the Delhi University Social

Centre School, Maurice Nagar, Delhi in terms of Rule 47(1) second proviso

of the Rules and which provides that a surplus employee absorbed in another

school has to be treated as junior to all the persons of the same category

employed in the transferred aided school on the date immediately preceding

the date on which the surplus employee is absorbed in the transferred school.

Petitioner has admittedly acted upon the letter of transfer dated 5.4.2011 as

the petitioner joined the Delhi University Social Centre School, Maurice

Nagar, Delhi on 7.4.2011, and therefore, petitioner at this stage in the year

2015 (more so in view of the second proviso to Rule 47(1) of the Rules)

cannot challenge the order dated 05.4.2011 and seek re-employment with the

respondent no.2/School and which will have the effect not only of the

petitioner claiming original seniority from 01.9.1987 and which would be

barred as per the second proviso of Rule 47(1) of the Rules, but also because

an employee cannot choose at his/her own fancy which school the employee

wants to serve in inasmuch as these aspects are decided by the Directorate of

Education which gives aid to the aided schools. Petitioner therefore also

cannot be granted the relief of again being employed with the respondent

no.2/School and effect of which will be that the petitioner wants to do away

with the effect of the second proviso to Rule 47(1) of the Rules.

7. Counsel for the petitioner argues that the petitioner is still

shown on the rolls of the respondent no.2/School and therefore the petitioner

is entitled to the benefit of seniority from 1.9.1987 and not in terms of the

second proviso to Rule 47(1) of the Rules, however, this argument is

misconceived inasmuch as Rule 47(1) of the Rules makes it clear that a

surplus employee has to be absorbed only in the school in which he/she is

directed to be absorbed by the respondent no.1 and which in this case is

Delhi University Social Centre School, Maurice Nagar, Delhi and which

aspect has now achieved finality as the petitioner has joined this school way

back in April, 2011. Therefore, administrative mistake or any other mistake

by which petitioner continues to be shown on the rolls of the respondent

no.2/School where she was declared surplus has no meaning and effect.

8. In view of the above, there is no merit in the petition and the

same is therefore dismissed, with the observations that the petitioner's

seniority had to be counted w.e.f 1.9.1987, but which of course has to be

read with the second proviso to Rule 47(1) of the Rules, that, petitioner's

seniority in the school where the petitioner is presently serving namely Delhi

University Social Centre School, Maurice Nagar, Delhi, will be taken not

from 1.9.1987 but from 7.4.2011 and when the petitioner joined the Delhi

University Social Centre School, Maurice Nagar, Delhi.

MARCH 17, 2015                                   VALMIKI J. MEHTA, J
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