Delhi High Court
Government Of Nct Of Delhi vs Binata Naha on 27 March, 2015
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on : March 27, 2015.
+ W.P.(C) 3405/2014 & CM APPL. NO.7016/2014
GOVERNMENT OF NCT OF DELHI ..... Petitioner
Through: Mr. Sushil Dutt Salwan & Ms.
Latika Dutta, Advocates
versus
BINATA NAHA ..... Respondent
Through: Ms. Indrani Ghosh, Advocate
AND
+ W.P.(C) 3426/2014 & CM APPL. NO.7044/2014
GOVERNMENT OF NCT OF DELHI ..... Petitioner
Through: Mr. Sushil Dutt Salwan & Ms.
Latika Dutta, Advocates
versus
ANITA BHATIA ..... Respondent
Through: Ms. Indrani Ghosh, Advocate
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MR. JUSTICE I.S.MEHTA
JUDGMENT
%
KAILASH GAMBHIR, J.
1. By this common order, we propose to decide these two writ
petitions separately preferred by the petitioner/Government of NCT of
Delhi assailing the order dated 27.03.2014 passed by the learned Central
Administrative Tribunal, Principal Bench, New Delhi (hereinafter
referred to as the 'CAT') in Original Application (in short 'OA') Nos.
2130 & 2131/ 2013 respectively, whereby the learned CAT has allowed
these OAs preferred by these respondents.
2. Both these respondents were occupying the post of Supervisor
Physical Education (in short 'SPE') at the time of their supeannuation.
Before reaching to their superannuation, both these respondents gave
their representations for re-employment for another period of two years in
terms of the Notification dated 29.01.2007 read with Notification dated
27.01.2012 issued by the Directorate of Education, Govt. of NCT of
Delhi and General Administration Department, Govt. of NCT of Delhi.
This request of the respondents was declined by the Competent Authority
and feeling aggrieved by the decision taken by the Competent Authority,
the respondents approached the learned CAT to seek direction for their
re-employment as per the Notifications dated 29.01.2007 and 27.01.2012.
3. The learned CAT after placing reliance on the decision of this
Court in Sheila Puri v. M.C.D., (1985) 9 DRJ 180 (DB) and Sushma
Nayar v. Managing Committee Delhi Public School, Mathura Road &
Ors., AD (VII) Delhi 246 and some other decisions of this Court on the
subject, reached the conclusion that various judgments of this Court have
already settled the issue that a supervisory level post within the teaching
community will also include the post of a teacher and hence the benefits
of extension of two years should also be accorded to these respondents.
Allowing the OAs filed by these respondents, the learned CAT directed
the petitioner to grant re-employment to them as per Notifications dated
29.01.2007 and 27.01.2012 and issue necessary orders accordingly within
a period of 15 days from the date of receipt of the order. Feeling
aggrieved by the said common order dated 27.03.2014, the petitioner has
filed the instant two writ petitions.
4. Assailing the legality, validity and correctness of the order dated
27.03.2014, Mr. Sushil Salwan, the learned counsel for the petitioner-
Government of NCT of Delhi straneously contended that the learned
CAT without meticulously examining the facts and circumstances of the
cases of these respondents, found them entitled to get the benefits of re-
employment in terms of Notifications dated 29.01.2007 and 27.01.2012,
and based on the legal issue settled in this regard in some of the
judgments of this Court with special emphasis on the decisions of this
Court in the two cases of Sheila Puri (supra) and Sushma Nayar
(supra). Mr. Salwan further argued that the learned CAT failed to
appreciate the fact that both these respondents retired from the post on
31.03.2013 and the same being an administrative post was not covered in
the said Notifications dated 29.01.2007 and 21.01.2012 therefore, the
benefits of the same can not be extended to such post to grant re-
employement for another period of two years. The learned counsel further
argued that once the cadre itself changed from teaching to administrative
cadre, then by mere fact that before entering the administrative cadre the
incumbent was a teacher, the benefits of the Notification dated
29.01.2007 could not be extended to such administrative post. The
learned counsel also submits that the respondents have not disputed the
fact that on the said post they were not discharging any duties of a teacher
whether full time or part time or at some intervals. The learned counsel
also submitted that as per the definition of a 'teacher' provided under
Section 2(w) of the Delhi School Education Act, 1973, the same includes
the head of the School and not any administrative post. The learned
counsel also placed reliance on Rule 59 (2) (xxv) of the Delhi School
Education Rules, 1973 which clearly provides devotion of at least 12
periods in a week for a teacher to teach the pupils. The learned counsel
also invited attention of this Court to Rule 4 of F.R 9, where the 'cadre'
has been defined as the strength or a service or a part of a service
sanctioned as a separate unit.
5. On the applicability of the decision in the case of Sheila Puri
(supra) and Sushma Nayar (supra), Mr. Salwan submitted that the
decision of the Division Bench of this Court in the case of Sheila Puri
(supra) was challenged by the MCD by filing a Special Leave Petition
before the Hon'ble Supreme Court and the Hon'ble Supreme Court kept
the legal issue open and alive. The Hon'ble Supreme Court in the said
SLP had decided the case only on the basis of the stand taken by the Joint
Secterary, Administration, Delhi Education in his affidavit to the extend
concession given in the case of the respondents therein. The learned
counsel thus submitted that the legal issue whether job of an Inspector
was akin thereof to a teacher or whether a teacher on being promoted to
the cadre of Supervisory Staff of Inspector will continue to remain a
teacher was not accorded any approval by the Hon'ble Supreme Court in
the said SLP preferred by the MCD rather the question remained open
and alive.
6. To buttress the above submissions, Mr. Salwan placed reliance on
the judgment of this Court in the case of P.S. Tomar v. M.C.D., 66
(1997), wherein the Division Bench of this Court while dealing with a
similar issue in depth examined the decision of the Supreme Court in
Sheila Puri (supra) and after placing reliance on the decision of the
Hon'ble Supreme Court, took a view that the Supreme Court left the legal
issue open and alive. The learned counsel also invited attention of this
Court to para 15 of the said judgment in P.S. Tomar (supra), wherein the
reference has been made to the common order in three similar SLPs being
MCD v. Lakshmi Verma, Hari Krishan Sharma and Banwari Lal
Sharma, whereby the Apex Court held that the decision in Sheila Puri
(supra) should not be held against the management in all such cases and
the question may be left open without expressing any opinion. The
learned counsel thus strongly urged that these respondents cannot get any
benefit of the decision of this Court either in the case of Sheila Puri
(supra) or Sushma Nayar (supra), as indisputably, these respondents
were occupying the administrative post of SPE which is a non teaching
post and is in a different cadre. The learned counsel also invited attention
of this Court to Circular dated June 09, 1975 issued by the Directorate of
Education, SPE Branch, Delhi delineating the nature of duties to be
performed by SPE. Based on the above submissions, the learned counsel
submitted that these respondents, prior to reaching the age of
superannuation were occupying the post of SPE, and therefore, the
services rendered by them were purely of administrative nature and of a
different cadre, and the same cannot be equated with the job of a teacher
and therefore, they are not entitled to the benefit of the said two
notifications whereunder the benefits of re-employment has been
extended by the Government only to teachers and Vice Principal/
Principal and not any other category. Reliance was also placed by the
leaned counsel on the following judgments:
i. P.S Tomar v. Municipal Corporation of Delhi1997 (66) DLT
ii. Sushma Nayar v. Managing Committee, Delhi public Schol,
Mathura Road & Ors. 2009(7)AD(D)246
iii. Sheila Puri v. Municipal Corporation of Delhi 1985(9)
DRJ180(DB)
iv. Charanjit Singh Nischal v. Municipal Corporation of Delhi
2003 (106) DLT 691
v. MCD v. Giri raj Sharma 2010(10)AD(D)1
vi. Dr. Shiva Ditta Juneja v. Dir. Of Edu. & Anr. W.P(C)
1835/2011 decided on 27.05.2011.
vii. Jawahar Singh Tomar v. Dir. Of Edu. & Anr. W.P(C)
4017/2010 decided on 23.12.2011
viii. in the case of State of West Bengal & Ors. v. Gopal Chandra
Paul & Ors., 1995 Supp. (3) SCC 327.
ix. Amrit Kumar Sarin & Ors. v. State GNCTD W.P(C) 7792/2010
decided on 23.12.2011
x. Dharam Singh v. Chief Secretary & Ors. W.P(C) 4703/2011
decided on 08.07.2011
xi. GNCTD & Ors. v. Mithilesh Swami W.P(C)2677/2012 decided
on 08.04.2013.
7. Opposing these contentions, Ms. Indrani Ghosh, the learned
counsel for the respondents submitted that the decision in Sheila Puri
(supra) and Sushma Nayar (supra) cases, was upheld by this Court vide
its judgment dated 28.08.2009 in LPA No.415/2009, dismissing the
challenge raised against the decision. The learned counsel thus submitted
that the legal issue is no more res integra and therefore, the learned CAT
has rightly placed reliance on various decisions of this Court including
the cases of Sheila Puri (supra) and Sushma Nayar (supra) to extend
the benefit of the said two notifications in favour of the respondents. The
learned counsel further argued that the respondents had started their
career as a teacher and even their existing post involved supervision of
Schools and therefore, they would remain teacher even if they were not
teaching students. The learned counsel also argued that the post of Vice
Principal in Government School is analogous to the post of SPE as can be
seen from the Recruitment Rules for the post of Vice Principal which
clearly excludes PGT (Physical Education) or PGT (Administrative
Cadre) for promotion to the said post. The learned counsel also argued
that for promotion to the post of SPE, all other categories of teachers have
been excluded except the Post Graduate Teahcers (Physical Eduation)
while maintaining the same Recruitment Rules on all other aspects. The
learned counsel thus argued that having placed this sub post analogous to
the post of Vice Principal, it cannot be said that they cannot draw parity
with the post of Vice Principal in Government School. Based on these
submissions, the learned counsel argued that these respondents are
entitled to the benefit of Notifications dated 29.01.2007 and 27.01.2012
and the same cannot be denied to them simply because from the feeder
cadre they were promoted to the post of Supervisor (Physical Education).
In support of her submissions, the learned counsel placed reliance on the
judgments:
i. Raghubir Singh Sharma v. Municipal Corporation of
Delhi 1992(48) DLT 47
ii. Charanjit Singh Nischal v. Municipal Corporation of
Delhi 2003 (106) DLT 691
iii. Suraj Bhan Chauhan v. Municipal Corporation of Delhi
2004 (109) DLT 633
iv. Dr. Jagpal Singh Dalal v. State of Punjab CWP No.
20258 0f 2008.
v. Municipal Corporation of Delhi v. Smt. Sheila Puri
(1989) 1 SCC 227
8. We have heard learned counsel for the parties at considerable
length and given our thoughtful consideration to the arguments advanced
by them. We have also perused the impugned order, judgments cited by
both the sides and the material placed on record.
9. Respondent - Anita Bhatia was initially appointed as LDC in the
year 1974 in Rattan Devi Arya Senior Secondary School, Krishna Nagar,
Delhi - 110051 (Government Aided School) and was promoted to the
post of Junior Physical Education Teacher w.e.f. 6.10.1979 in the same
school. She worked as a Senior Physical Education Teacher w.e.f.
1.12.1980 to 27.3.1997 at Government Girls Senior Secondary School,
Bhola Nath Nagar, Shahdara, Delhi. She was thereafter promoted to the
post of Post Graduate Teacher, Physical Education w.e.f. 27.3.1997 to
23.6.2008 at Govt. Girls Senior Secondary School No.1, Kalkaji, New
Delhi. From here she was promoted to the post of Supervisor, Physical
Education (Gazetted Post) with effect from 23.6.2008 to 31.3.2013 in the
Directorate of Education, District South, C Block, Defence Colony, New
Delhi.
10. The other respondent - Ms. Binata Naha in W.P. (C) No.
3405/2014 was initially appointed as Senior Physical Education Teacher
on 31.12.1979 and was promoted as PGT (Physical Education) on
16.8.1996 and thereafter to the post of Supervisor (Physical Education)
w.e.f. 13.3.2007. She worked on this post till her superannuation on 30th
November 2012.
11. Both these respondents, who had reached the age of superannuation
on the respective posts, through their respective representations sought re-
employment till they attain the age of 62 years in terms of notifications
Nos. F.30-3(28)/Co-ord/2006/689-753 and F.32(8)/2011/SB/Edn.136-155
dated 29.01.2007 and 27.01.2012 respectively, issued by the Government
of NCT of Delhi, Directorate of Education. The said representations filed
by these respondents were rejected by the petitioners on the premise that
these two notifications have been issued by the Directorate of Education,
GNCT of Delhi for re-employment of teachers up to the level of PGT and
Vice Principal and Principal, respectively, up to the age of 62 years and
there are no orders to give benefit of the same on the post of Supervisor
(Petitioner) on attaining the age of superannuation at 58 years.
12. Feeling aggrieved by the said decision taken by the petitioners, the
respondents herein approached the learned CAT by preferring two
separate OAs. Vide order dated 27th March 2014, the learned CAT took a
view that various decisions of this court have already settled the issue that
a supervisor level post within the teaching community will also be
counted as the post of a teacher and hence the benefit of extension of two
years should be accorded to these respondents as well. The learned
Tribunal thus allowed the Original Applications filed by these
respondents and directed the petitioners to grant re-employment to these
respondents in terms of notifications dated 29.1.2007 and 27.1.2012,
respectively, within a period of 15 days from the date of receipt of this
order. Aggrieved by the decision of the learned CAT, the petitioners have
filed the instant petitions.
13. Before we deal with the various contentions raised by counsel
representing both the parties, let us first reproduce the aforesaid two
notifications, benefit of which the respondents seek to claim. The extract
of Notification No.F.30-3(28)/Co-Ord/2006/689-753 dated 29.01.2007
read as under:-
"GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF
DELHI, DIRECOTRATE OF EDUCATION, OLD
SECRETARIATE, DELHI
No. F.30-3(28)/Co-ord/2006/686-753 Dated: 29th January
NOTIFICATION
In pursuance to Cabinet Decision No.113, dated 4.9.2006
conveyed vide letter No. F.3/3/2004-GAD/CN/20491-502,
dated 8.9.2006, the Leutenant Governor, Government of
National Capital Territory of Delhi is pleased to allow
automatic re-employment of all retiring teachers upto PGT
level, subject to fitness and vigilance clearance, till they attain
the age of 62 years or till clearance from Government of India
for extending retirement age is received, whichever is earlier.
The terms and conditions of re-employment are beign notified
separately.
By order and in the name of
The Lt. Governor of the National Capital Territory of Delhi.
Sd/-
(MADHUP VYAS)
Joint Secretary (Education)"
14. The extract of Notification No. F.32(8)/2011/SB/Edn.136-155
dated 27.01.2012 read as under:-
"GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF
DELHI, GENERAL ADMINISTRATION DEPARTMENT
(SECRETARIATE EDUCATION, BRANCH) ROOM NO. 223,
OLD SECTT. DELHI
No. F.32(8)/2011/SB/Edn.136-155
Dated: 27.01.2012
ORDER
The Hon'ble Lt. Governor, Government of National
Capital Territory of Delhi is pleased to allow re-employment to
those Vice-Principals/Principals, Principals of Government
Aided Schools under the Directorate of Education who have
approached the various Hon'ble Courts and got the judgment
in their favour with immediate effect.
The Hon'ble Lt. Governor, Delhi is also pleased to
allow the re-employment to all the retired Vice-
Principals/Principals of Government and Government Aided
Schools, who have not gone to the Hon'ble Courts but have
retired and applied for re-employment to the department after
the judgment dated 08.07.2011 in W.P. (C) No. 4703/2011
titled Dharam Singh vs. Govt. of NCT of Delhi.
The said re-employment is for a period of one year and
extendable for another one year based on the performance and
subject to fitness and vigilance clearance, till they attain the
age of 62 years, whichever is earlier. They will get the financial
benefit with effect from the date of assumption of work.
The terms and conditions of automatic re-employment
and other aspects of re-employment in respect of retired Vice
Principals/Principals of Government schools will remain same
as issued by this Directorate vide Notification N.F.30-
3(28)/Co-ord.2006/689-703 dated 29.01.2007, order No.F.30-
3(28)/Co-ord/2006/4637-72 dated 28.02.2007, Order No. 30-
3(28)/Co-ord/2006/5982-6012 dated 22.03.2007, and in respect
of Govt. aided schools vide order No.30-3(28)/III/Co-ord/07
(Part File/3426-3439 dated 31.12.2007 and F.30-
3(28)/III/Coord/07/Pt file/180-220 dated 15.02.2008
respectively.
However, this order is issued subject to the outcome of
any appeal filed against the said judgment/order before
anyhigher forum or courts of law. Further, it is also subject to
the final outcome of any SLP likely tobe filed in the Hon'ble
Supreme Court of India against the above said judgment.
This issues with the prior approval of the competent
authority.
Sd/-
(Shashi Kaushal)
Addl. Director (Sectt.BR)"
15. The Notification dated 29th January 2007 was the subject matter of
consideration in a case titled as Sushma Nayar vs. Managing Committee,
Delhi Public School, Mathura Road, reported in 2009 AD (VII) Delhi
246. In the aforesaid case, the petitioner - Sushma Nayar had filed a writ
petition seeking quashing of re-employment granted to the respondent on
the post of Vice Principal. The plea taken by the petitioner therein was
that in terms of Notification dated 29th January 2007, the benefit of
relaxation has been extended only to teachers and not to Vice
Principal/Principals. In the absence of any challenge raised by the
petitioner to the said Notification dated 29.1.2007, the learned Single
Judge after placing reliance on the ratio of decision in the case of Sheila
Puri vs. MCD, 1985 (9) DRJ 180 (DB), which was followed in many
other cases also, took a view that the respondent remained teacher even
though she was appointed as Vice Principal of the school and as such was
entitled to the benefit of the Notification dated 29th January 2007, which
allowed automatic re-employment till the age of 62 years to all retiring
teachers up to PGT teachers.
16. With the authoritative pronouncements of this court, right from the
judgment of Sheila Puri case (supra), Charanjit Singh Nischal case
(supra), Sushma Nayar case (supra), and many other cases including
Vice Principals/Principals, Head Masters of MCD Schools and the
Schools run by GNCT of Delhi and Govt. Aided School under the
Directorate of Education were granted the same benefit of re-employment
in terms of the Notification dated 29th January 2007. In fact, taking into
consideration the said decisions of this court, Lt. Governor /Govt. of NCT
of Delhi had issued another Notification dated 27.1.2012 (reproduced
herein above) to specifically allow re-employment of all the retired Vice
Principals/Principals of Government and Government Aided Schools,
who had not gone to the court, but have retired and had applied for re-
employment to the department after judgment dated 8.7.2011 in W.P. (C)
No. 4703/2011 titled as Dharam Singh vs. GNCT of Delhi. By this
notification of 2012, the Government of NCT of Delhi itself extended the
benefit of re-employment to the Vice Principals/Principals, although this
category was not specifically included by the Government in earlier
Notification dated 29th January 2007.
17. There can be no cavil that in terms of the said two notifications, the
Government of NCT of Delhi had been pleased to allow automatic re-
employment of all retiring teachers up to PGT level and also to the Vice
Principals/Principals of the schools run by Government of NCT of Delhi
and Government Aided Schools till they attain the age of 62 years,
subject to their fitness and vigilance clearance. But the issue which we
are confronted in these two cases is as to whether the benefit of these two
notifications can be extended to these respondents, who were working on
the post of Supervisor (Physical Education ) which has not been
specifically covered in the said two notifications.
18. As per the respondents, the issue is no more res-integra in the light
of the decision of Division Bench of this court in Sheila Puri vs. MCD
(supra) while the stand taken by the petitioners is that the decision in
Sheila Puri (supra) case never attained finality as the legal issues were
left open by the Supreme Court when the challenge was laid by the MCD
in SLP No.5051 of 1985 preferred by them.
19. The case of Sheila Puri (supra), is one of the earliest cases decided
by a Division Bench of this Court on 22.05.1985 where the Court was
dealing with an issue of retirement age of the petitioner who joined the
MCD as a teacher then became Head Mistress of the School and finally
became a School Inspectress and the question arose was whether such a
person would still remain a teacher even after promotion to the post of
Inspectress and would get the benefit of retirement at the age of 60 years
and not at 58 years. As per the relevant resolution of MCD, the age limit
for retirement of officers and other employees was 58 years and in case of
teachers and class 4th servants, it was 60 years. The issue arose before the
Court was whether the petitioner would cease to be a teacher after she is
promoted to the post of Senior School Inspector. Answering the question
in the background of relevant resolution passed by the MCD, the Court
held that it would be a strange result that a Head Mistress promoted to the
post of School Inspectress should have a lower retirement age whereas if
she remained Head Mistress then she would retire at the age of 60 years.
The Court also held that a very concept of an Inspector is to see that the
teaching is conducted in accordance with some standard practice and the
progress of students is as desired. It also held that there is a difference
between the administrative line in the corporation and the teaching line.
The relevant paras of the said judgment are reproduced as under:-
14. We think that this problem cannot be solved by mere
reference to the affidavit. The petitioner was a teacher. She
was a Headmistress of a school, then she became a School
Inspectress, then became a Senior School Inspectress. If she is
a Senior School Inspectress, does she cease to be a teacher ?
Does she become an officer and not a teacher ? It seems to us
that if you are a teacher to start with, you remain a teacher
even if you are promoted to a post which involves supervision
of the schools rather than teaching in the schools It would be a
strange result that a Headmistress promoted to the post of
School Inspectress should have a lower retirement age. The
position set out in the Resolution of 1970, i.e.. Resolution No.
127 did not make any distinction between teachers and School
Inspectresses. We fail to understand how two sets of persons
belonging to the same class should have different retiring ages
if they are promoted or not promoted. Also, when some persons
of that class are transferred to the Delhi Administration on the
understanding that they would retain their retiring age of 60,
we fail to understand why the remaining persons should not
retain the same retiring age of 60. Also, there seems to be some
confusion as to who is a teacher? If the interpretation of the
Municipal Corporation is accepted it leads to a number of
awkward complications. The ruination post of Headmistress is
that of School Inspectress. Normally, seniors are promoted and
they are not far from the age of retirement. So, it would be a
strange result that when a Headmistress is promoted, she
would immediately retire whereas if she remained
Headmistress, she would retire at 60. This result could not
have been desired. Furthermore, the word 'teacher' means a
person in the teaching profession. The entry of such persons
into service would normally be in lower grades. They would be
promoted from say Assistant Teacher to Teacher and then
Vice-Principal, Principal or Headmistress, and so on. They
would then be promoted to the port of Inspector and there may
be further posts like Senior Inspectors and so on. We cannot
imagine an Inspector of Schools not being a teacher. A very
concept of an Inspector is to see that the teaching is
conducted in accordance with some standard practice and the
progress of students is as desired. An Inspector or Inspectress
must, therefore, be a teacher. Such a person does not cease to
be a teacher by becoming an Inspector. An Inspector's job is
not that of looking after the up-keep of the school, but to see
that the teaching is done properly. We are of the view that such
a person would remain a teacher even after promotion. No
doubt, the Resolution states that officers would retire at 58 and
teachers at 60, presumably by officers are meant non-teachers
employed in other branches of the Corporation. There is a
difference between the administrative line in the Corporation
and the teaching line. We would prefer to hold that the
petitioner continues to be a teacher in spite of being promoted
to the post of School Inspectress. The real meaning of the
Resolution is that persons employed on the teaching side. or
educational department of the Municipal Corporation have a
retiring age of 60, whereas others have a retiring age of 58.
Referring again to the judgment cited at the Bar, Shri B. N.
Chaudhary v. The Commissioner, Municipal Corporation of
Delhi and others.wherein it seems to have been accepted that
the retiring age was 58, we think that is not a precedent,
because the petition was dismissed in liming without a careful
examination of the Resolutions No. 127 of 1970 and 666 of
1978. We do not think that we are bound by a petition
dismissed in liming.
15. In addition, it must be stated that if there is any doubt
in the matter, it has to be resolved in favor of the petitioner on
the application of Article 14 of the Constitution. The petitioner
was identically placed to the other School Inspectresses in the
Department. Those Inspectresses who have been transferred to
the Delhi Administration were informed by Resolution No. 127
of 1970 that they would retain their retiring age of 60. This
was an admission by the Municipal Corporation that the
petitioner's retirement age was also 60. We cannot read the
Resolution No. 666 of 1978 as a change in that retiring age
because it does not clearly state anything about School
Inspectresses. As we have interpreted School Inspectresses to
be 'teacher's, they will continue to retire at the age of 60, but if
there is any doubt, we think that the petitioner has to get the
equal protection of law under Article 14 of the Constitution
and, therefore, cannot have a different retiring age from the
other School Inspectresses who were transferred to the Delhi
Administration. Undoubtedly, these schools and some of the
teachers have from time to time been transferred either from
the Delhi Administration to the Municipal Corporation or from
the Municipal Corporation to the Delhi Administration. They
all seem to be the same and are doing identical jobs in relation
to similar schools. Being equally placed, Article 14 of the
Constitution is certainly attracted, so the retirement age of the
petitioner cannot be less than 60."
20. In another case of Charanjit Singh Nischal (supra), the learned
Single Judge of this Court was again dealing with a petitioner who from
the post of Headmaster was promoted to the post of School Inspector and
following the ratio of Sheila Puri (supra) the Court held that the
petitioner would be entitled to retire at the age of 60 years and not at the
age of 58 years.
21. Both these cases referred to above were not dealing with the
notifications dated 29.01.2007 and 27.01.2012. The said notification of
29.01.2007 was a subject matter of consideration before the learned
Single Judge of this Court in Sushma Nayar (supra), wherein the
challenge was raised by the petitioner therein to seek quashing of re-
employment of the respondent to the post of Vice Principal on the ground
that the age relaxation in terms of the said notification is intended only
for PGT and TGT Teachers upto 62 years of age and not for Vice
Principal/ Principal. The learned Single Judge following the ratio of the
decisions of this Court in Sheila Puri (supra), Charanjit Singh Nischal
(supra) and after drawing support from the definition of teacher given
under Section 2(w) of the Delhi School Education Act, 1973 and Rule
110 of the Delhi School Education Rules, 1973, took a view that the
respondent would remain a teacher even though he was promoted to the
post of Vice Principal of School and as such would be entitled to the
benefit of the notification dated 29.01.2007. Thereafter, many such
identically placed Teachers, Principals and Vice Principals claimed
extension of their retirement age and in view of the dicta of the Division
Bench of this Court in Sheila Puri (supra), the decision of the learned
Single Judge in Charanjit Singh Nischal (supra) and Sushma Nayar
(supra), there was a reiteration of the same view by various Benches of
this Court.
22. To our surprise in none of thse judgments, there is a reference to
another important decision of the Division Bench holding the feild, which
is in the case of P.S. Tomar (supra). This case was decided by the
Division Bench of this Court on 07.02.1997. In this case the Court was
considering the legality and validity of the Circular dated 06.07.1992
issued by the MCD pursuant to the decision of this Court in Sheila Puri
(supra). The Circular issued by the MCD envisaged that a teacher would
retire at the age of 60 years but in case of promotion to separate and
different cadre of an Inspector like other officers of the Corporation, he
will retire on attaining the age of 58 years as provided in FR 56(a) of the
Fundamental Rules. In the Circular, an option was also given which could
be exercised six months prior to attaining the age of 58 years by a
teacher, if promoted to the cadre of Inspector and it is only on exercise of
such an option, he would continue till the age of 60 years but in such
cases he will have to revert back and hold the post last occupied in the
teaching line namely either as a Headmaster or Physical Education
Teacher as the case may be. In this judgment, the Division Bench of this
Court made a reference that the decision of this Court in Sheila Puri
(supra) was challenged by filing a Special Leave Petition before the
Hon'ble Supreme Court and on leave being granted by the Supreme
Court, the case was not decided on merits but on concession. The Court
further held that a bare reading of the judgment of the Hon'ble Supreme
Court, would suggest that reasoning of this Court that a teacher on
promotion to the post of Inspector will continue to be termed as a teacher
or that the post of Inspector is also akin to a teacher were neither
approved nor gone into by the Hon'ble Supreme Court and the Hon'ble
Supreme Court decided the case only on the stand taken in the affidavit
and the concession given and this question was remained open and alive.
Relevant paras of the decision of P.S. Tomar (Supra) are produced as
under:
"Decision of this Court in Smt. Sheila Pun's case was
challenged by the respondent by filing Special Leave Petition
to Supreme Court. On leave being granted the case was not
decide do nmerits but on concession.The submission made on
behalf of the Counsel for the petitioners that the decision of
this Court was approved cannot be accepted. Decision of the
Supreme Court is reported as Municipal Corporation of Delhi
v. Smt. Sheila Puri, . An application for intervention was also
filed by ten employees of the Education Department of the
Delhi Administration seeking leave to support the judgment of
this Court, during the pendency of the appeal in Smt. Sheila
Pun's case. By the time the decision was taken by the Supreme
Court, Smt. Sheila Puri had already retired from service on
attaining the age of 60 years. Undertaking was given on behalf
of the Municipal Corporation of Delhi in the Supreme Court
that irrespective of the result of the appeal. Municipal
Corporation will extend the benefit of upper age of retirement
of 60 years to Smt. Sheila Puri, as directed by the High Court.
It was subject to this reservation that leave was granted to
clarify the legal position, not with reference to Smt. Sheila
Puri, but at large so as to provide guidelines to the employers
and employees. The Supreme Court, taking note of the affidavit
filed in Smt. Sheila Puri's case by the Joint Secretary
(Education) of the Delhi Administration on 25th November,
1988, took decision on such concession and not on merits. In
the affidavit position, which was clarified was that the original
age of retirement of teacher and supervisory staff of Delhi
Administration was 58 years but the same had been raised to
60 years and since there was no posts of Inspector in the
Education Department of the Delhi Administration, the age of
employees transferred from the Municipal Corporation was
kept, according to Clause (7), indicated to be 60 years, as the
age of retirement. In view of this concession the Supreme Court
disposed of the matter. In para 6 the Court observed :
"IN view of the conceded position the age of retirement of
teachers and supervisory staff of the Delhi Administration is 60
years; for those who came on transfer from the Municipal
Corporation to the Delhi Administration it is also 60 years in
view of the resolution of the Corporation as accepted by the
Government of India in its letter dated 18th of January, 1973.
This being the position the High Court was right in holding
that the respondent was entitled to continue in service till she
attained the age of 60 years."
(13) In view of the above position, on the scope of the dispute
between the parties as to what was the proper age of
retirement, the Supreme Court declined to allow the
application for intervention filed on behalf of the employees of
the Education Department of Delhi Administration.
(14) A bare reading of the judgment of the Supreme Court
suggests that the reasonings of this Court that a Teacher on
promotion to the post of Inspector will continue to be termed as
Teacher or that the post of Inspector is also akin to a Teacher
were neither approved, nor gone into. The Supreme Court
decided the case only on the stand taken in the affidavit and on
the basis of the concession given. Thus, it cannot be said that
the decision of this Court that whether an Inspector's job was
akin to a Teacher or that a Teacher on being promoted to the
cadre of the supervisory staff of an Inspector will continue to
remain as a Teacher, was approved by the Supreme Court. The
question remained open and alive.
(15) After decision in Smt. Sheila Puri's case the respondent-
corporation continued issuing orders, retiring all those, who
were in the teaching line and had been promoted as Inspector,
at the age of 58 years and not the age of 60 years. The result of
the same was that such orders, on being challenged by filing
petitions in this Court were set aside by this Court on following
the decision in Smt. Sheila Puri's case. Banwari Lal Sharma
and two others had also filed such petitions.The same were
disposed of by a common order passed on 27.2.1989 in Cw
1880/86, Banwari Lal Sharma v. M.C.D. All of them had been
working as Teachers and had been promoted as Inspectors.
They were sought to be retired at the age of 58 years and had
challenged the action of the respondent. Following the ratio in
Smt. Sheila Puri's case that a School Inspector or Inspector
was a teacher, relief was granted. This decision was
challenged by the respondent by filing Special Leave Petitions
(C) Nos. 5719,5766 and 7946/89. The Supreme Court on
18.7.1989 disposed of the three . petitions for Special Leave to
Appeal by a common order in Municipal Corporation of Delhi
v. Lakshmi Verma, Hari Krishan Sharma and Banwari Lal
Sharma, with the following observations:
"COUNSEL for the petitioners states that the respondents in
each of these appeals have since retired at the age of 60 years
and, therefore, the question of superannuation whether it is 58
or 60 need not be gone into. We, however, feel that the
question may be left open and the decision in Sheila Pun's case
should not be held against the management in all such cases.
We accept the submission of the learned Counsel and keep the
question open without expressing any opinion. With these
observations, the petitions are dismissed."
(16) Yet in another petition Km. Kanta Sharma v. Municipal
Corporation of Delhi, Cw 2270/88 decided on 3.7.1989, relief
was granted by this Court to the petitioner therein, who had
been promoted from the post of Headmaster to that of a School
Inspector on relying upon the decisions of this Court in Smt.
Sheila Pun's case and also in Banwari Lal Sharma's case.
Municipal Corporation of Delhi challenged the said decision
by filing Special Leave Petition (Civil) 13386/8On 17.7.1990
the Special Leave Petition was dismissed observing that no
ground is found for reconsideration of the decision in Smt.
Sheila Pun's case.
(17) The cumulative effect of the above narration suggests that
the Supreme Court left the question open without expressing
any opinion on merit and further observing that the decision in
Sheila Pun's case should not be held against the respondent."
23. It can be thus seen from the above discussion that the legal issue
settled in Sheila Puri (supra), was left open and alive by the Hon'ble
Supreme Court and therefore, the learned Tribunal fell in grave error to
place reliance on the decision of this Court in Sheila Puri (supra) to give
the benefit of re-employment to the respondents upto the age of 62 years
without appreciating another decision of this Court in P.S. Tomar (supra)
and also the contents of the above two notifications dated 29.01.2007 and
27.01.2012.
24. We have already noticed that the above two notifications were not
the subject matter of discussion either in Sheila Puri (supra), Sushma
Nayar (supra) or even P.S. Tomar (supra), as these notifications came to
be issued much later in time than the decisions given in the said cases.
We will thus confine ourselves to the contents of the above two
notifications to ascertain the fact whether these respondents who were
occupying the post of Supervisor Physical Education, are entitled to get
the benefit of re-employment till the age of 62 years. It is an admitted fact
between the parties that these respondents were not occupying the post of
Teacher, or Vice Principals/ Principals and their post was that of
Supervisor Physical Education. Whether this post is an administrative
post or a teaching post or a post combined of teaching and administrative
duties, is broadly the issue for determination. To decide this question, it
would be relevant to refer to the relevant recruitment rules for the post of
Supervisor (Physical Education) and also the chart of duties assigned to
this post and are supposed to be performed by the holders of this post in
the sphere of physicial education/ development of schools and games in
schools. The same are reproduced as under:-
"Recruitment Rules for the post of Supervisor (Physical Education)
1. Name of the post : Supervisor (Physical Education)
2. No. of posts : 24 (subject to variation dependent on
work load)
3. Classification : CGS, Group 'B', Gazetted, Non-
ministerial
4. Scale of Pay : Rs.2000-60-2300-EB-75-3200-100-3500
(Pre-revised) 7,500-12,000 (Revised as
per V C.P.C.)
5. Whether selection : Selection
post or non-selection
posts
6. Age limit for direct : Not exceeding 30 years (Relaxable from
recruits Government servants upto 5 years in
accordance with the instructions or orders
issued by the Central Government)
7. Whether benefit of : No
added years of
service admissible
8. Educational and other : Essential:
qualifications i) Master Degree in Physical
Education from a recognised
University or equivalent.
ii) 5 years experience in the field of
Physical education, such as
organising games, camps, sports,
activities, sports, camps, welfare
youth camps, etc.
Or
5 years experience of working as a
Physical Education teacher in a
recognised/Aided High or Higher
Sec. School or in a recognised
intermediate college.
Desirable:
i) Doctors degree in Physical
Education or Master's Degree in a
subject other than Physical
Education from a recognised
University or equivalent.
ii) Administrative Experience.
9. Whether age and : Age - No.
qualifications Educatinal Qualification - Yes.
(Educational)
prescribed for direct
recruits will apply in
the case of promotes.
10. Period of probation, Two years.
if any. :
11. Method of : Promotion failing which by transfer on
recruitment whether deputation, failing both by direct
by direct rectt or by recruitment.
promotion or by
deputation/transfer
and percentage of the
vacancies to be filled
by various methods.
12. In case of rectt by : Promotion:
promotion/ Post Graduate Teachers (Physical
deputation/ transfer, Education) under the Directorate of
grades from which Education, Delhi Administration with
promotion/ three years' regular service in the grade.
deputation/ transfer to Promotion will be made from the feeder
be made. grade on the basis of a combined seniority
list of Male and female.
"Note: Where juniors who have
completed their qualifying/ eligibility
service by more than one year and have
successfully completed their probation
period if prescribed."
Transfer on Deputation:
(a) Officers of the Central/ State
Government.
i) Holding analogous post on
regular basis or
ii) With 3 years regular
service in the post in the
pay scale of Rs.1640-2900
or equivalent and
(b) Possessing the educational
qualifications and experience
prescribed for direct recruits
under column 8.
The Departmental officers in the feeder
category who are in the direct line of
promotion will not be eligible for
consideration for appointment on
deputation. Similarly, deputationists shall
not be eligible for consideration for
appointment by promotion.
Period of deputation including period of
deputation in another ex-cadre post held
immediately proceeding this appointment
in the same or some other organisation/
department of the Central Government
shall ordinarily not to exceed thre eyeras.
The maximum age limit for appointment
by transfer ondeputation shall be, not
exceeding 56 years, as on the closing date
of receipt of applications.
13. If a DPC exists, what : Group 'B' - DPC as notified.
is its composition Note: The proceeding of the DPC relating
to confirmation of direct recruit shall be
sent to the Commission for approval. If
however, these are not approved by the
Commission a fresh meeting of the DPC
to be presided over by the Chairman or a
Member of UPSC shall be held.
14. Circumstances in Consultatin with UPSC necessary while
which UPSC is to be : making direct recruitment and appointing
consulted in making an officer on deputation.
recruitment.
"Chart of duties assigned to Supervisor (Physical
Education)
DIRECTORATE OF EDUCATION DELHI
(PHYSICAL EDUCATION BRANCH)
The Supervisors/School Inspectors (Physical Education)
working in the Directorate of Education, Delhi are supposed to
perform the following duties in the sphere of Physical
Education, development of sports and games in schools as well
as in public sectors. They may be assigned other duties from
time to time under instructions of the Director of Education.
Their duties are divided in three heads besides other
official, instructions of the immediate head of the branch from
time to time.
SUPERVISION
1. To supervise the activities of Physical Education, games
sports and allied activities in schools and in public
sectors if and when it is necessary.
2. To suggest ways and wears to improve the existing
conditions in Physical Education.
3. Periodical supervision and surprise checking of all the
activities and routine classes in Physical Education and
sports & games and the syllabus adopted in schools.
Submission of report thereof to the EO/Principal/and
DDE (Sports) with specific suggestions and inviting
attention at the zonal, district and all Headquarter level.
4. Super visit of playing fields, courts, gymnasium and
sports material etc. And necessary instructions for their
improvements.
5. Supervision of healthy condition in schools for game
and sports and Physical Education activities with a good
emphasis on sanitation and hygienic conditions in the
schools.
6. Supervision of mid day meal and payment hawkers if
and when it be required.
7. Supervision and surprise visits of sports coaching
centres, vyamshalas, swimming pools and report tobe
submitted to pe Branch.
8. To check the diaries of Physical Education Teachers
and other regards regarding Physical Education, games
and sports and to guide them in this regard.
9. To make a good supervision of sports purchases inthe
schools in respect of quantity, quality and its
maintenance.
ORGANISATION
1. To arrange Zonal forum of Physical Education Teachers
and their meetings from time to time.
2. To arrange meetings of the Heads of the institutions for
certain organizational purposes.
3. To organise the Tournaments inter-schools and inter-
zone competition in games and sports and multifarious
co curricular activites in consultation with zonal
conveners and to render any assistance required by
them.
4. To appoint officials for various
competitions/Tournaments.
5. To organise coaching of talented students, clinics and
Refresher courses for Physical Education Teachers.
6. To organise and make preparations for all the activities
assigned byt he Headquarter on occasion such as
independence day celebrations, children's day, republic
day, EPED, DSS & AB activites and the programmes of
council of sports, seminars, conferences and rallies.
ADMINISTRATION
1. To make a good liaison with the Heads of the
Institutions and the officers at the Headquarter (Phy.
Edn. Branch)
2. Follow up of the administrative action at the zonal,
district and Headquarter level on the reports of the visits
and surprise checking made in schools for Phy. Edn.,
sports and games and other allied activities.
3. Tobe a member of the Condemnation Board for sports
purposes.
APPROVED
BY THE
DIRECTOR OF EDUCATION, DELHI
(H. SAREEN)
DY.DIRECTOR OF EDUCATION (SPORTS)
DELHI
SP/J (ED)/75-PE/ Dated: 9th June 1975
Copy forwarded forinformation and necessary action to:
1. Allthe D.D.Es (Districts)
2. All Education Officers.
3. All the Supervisors/School Inspectors (Phy. Edu)
(H. SAREEN)
DY.DIRECTOR OF EDUCATION (SPORTS)
DELHI"
25. It would also be necessary here to mention that the Delhi School
Education Act, 1973, does not provide any meaning to the word 'teacher'.
It only gives an inclusive definition under Section 2(w) which provides
that "teacher" includes the Head of school. The same is reproduced as
follows:
(2) Definitions- In this Act, unless the context otherwise
requires :-
.....
(w) "teacher" includes the Head of school;
Further Rule 59 (2) (h) (xxv) of the Delhi School Education Rules, 1973
provides as follows:
59. Scheme of management of recognised schools (h) the
duties, powers and responsibilities of the head of the school,
which shall provide that he shall :--
....
(2) The scheme of management shall also provide for the
following, namely:--
......
(xxv) devote at least twelve periods in a week to teaching of the
pupils;
Rule 110 of the Delhi School Education Rules, 1973 deals with
retirement age and provides as under:
"Rule 110 of the Delhi School Education Rules, 1973 reads as
under:- Retirement age -
Except where an existing employee is entitled to have a higher
age of retirement, every employee of a recognized private
school, whether aided or not, shall hold office until he attains
the age of 58 years.
Provided that the managing committee may grant extension to
a teacher for a period not exceeding two years in the
aggregate, if in the opinion of the managing committee such
teacher is fit for such extension and has no mortal or physical
incapacity which would disentitle him to get such extension.
Provided further that no such extension shall be granted in the
case of a teacher of an aided school except with the previous
approval of the Director.
(2) Notwithstanding anything contained in sub-rule (1), every
teacher, laboratory assistant, Librarian, Principal or Vice-
Principal employed in such school shall continue to hold
office until he attains the age of 60 years : Provided that
where a teacher, Principal or Vice Principal attains the age
of superannuation on or after the 1st day of November of any
year, such teacher, Principal or Vice Principal shall be re-
employed upto the 30th day of April of the year immediately
following.
(3) Notwithstanding anything contained in sub-rule 91) and sub-
rule (2), where a teacher, Principal or Vice Principal has
obtained National or State Award for rendering meritorious
service as a teacher, Principal or Vice Principal or where he
has received both the National and State Awards as aforesaid,
the period of service of such teacher, Principal or Vice
Principal may be extended by such period as the Administrator
may, by general or special order, specify in this behalf."
26. Indisputably, these respondents are not performing any of the
duties of a teacher and their duties are mainly in the administrative feild.
This fact has also been admitted by the respondents that they had been
occupying administrative post and in fact the case set up by these
respondents is that they continued to be teacher even though they have
been promoted to a higher administrative post.
27. When we look at the recruitment rules for the said post of
Supervisor (Physical Education), it can be seen that the same is a
selection post and vacancies can be filled by promotion, failing which by
transfer on deputation; and failing both, by direct recruitment.
28. In so far as the recruitment by promotion to the said post is
concerned, the Post Graduate Teachers under the Directorate of
Education, Delhi Administration with three years regular service in the
grade will be considered for promotion on the basis of combined seniority
list of male and female candidates and thus, the feeder cadre to seek
promotion to the post of Supervisor (Physical Education) is a cadre of
post graduate teachers (Physical Education). In so far as the appointment
by direct recruitment is concerned, the educational qualification is the
same as required by promotee candidate but so far as the experience is
concerned, for a direct recruit, the same is laid down as five years
experience in the field of Physical Education such as organising games,
camps, sports, etc or five years experience of working as Physical
Education teacher in a Recognised/Aided High or Higher Secondary
School or any Recognised Intermediate College. So far as the direct
recruitment is concerned, the experience of five years can be either as a
Physical Education Teacher or in the field of physical education not
necessary as physical education teacher, but by organising games, camps,
sports activities, welfare youth games, etc.
29. The charter of duties, which the holders on the said post are
required to perform in the sphere of physical education, development of
sports and games are in relation to schools or in relations to the activities
of sports and games in schools and the same are predominantly
administrative in nature. To say that these promotee respondents had
entered in service as teachers or were teachers prior to occupying the said
post of Supervisor Physical Education, would make them entitle to get the
benefit of age relaxation, but this will result in an anamolus situation as
on the said date, the same benefit would not be available to direct recruits
although occupying the same post. In such an eventuality the direct
recruits would be retiring at the age of 60 years while the promotees on
this post would get the benefit of extension in age up to 62 years.
30. It is a settled legal position that the courts should not embark on the
unchartered ocean of questioning the policy decision of the Government
so long as the same does not offend the provision of the any Statute, law
or enactment. The said two notifications of the Government of NCT of
Delhi, gave the benefit of extension of age up to 62 years only in the case
of Teachers, Vice Principals, Principals, Head Maters, etc and it has not
included any other category of posts whether administrative or otherwise.
To give the benefit of the said notifications to the post which is
administrative in nature and particularly where no activities of a teacher
are involved and the cadre of the post has also been changed, would
amount to adding certain other categories of posts in the said
notifications, which is totally impermissible under law through a judicial
decision, as the same exclusively vests within the domain of Executive
Authority.
31. In so far as the reliance placed on certain decisions of this Court,
we have already said above that neither these two notifications nor the
post occupied by these respondents was under consideration in Sheela
Puri (supra) case. It is a settled legal position that a decision is an
authority for what it actually decides and not what logically flows from
the observations made in the judgment.
32. The words of Lord Denning in the matter of applying precedents,
in Union of India vs. Amrit Lal Manchanda and Anr., (2004) 3 SCC 75,
which have become locus classicus:
"Each case depends on its own facts and a close similarity
between one case and another is not enough because even a
single significant detail may alter the entire aspect,in deciding
such cases, one should avoid the temptation to decide cases (as
said by Cordozo) by matching the colour of one case against
the colour of another. To decide therefore, on which side of the
line a case falls, the broad resemblance to another case is not
at all decisive."
33. We may also refer to the decision of the Hon'ble Supreme Court in
Re special reference No. 1 of 2012, wherein it was held as follows:
"Each case entails a different set of facts and a decision is a
precedent on its own facts; not everything said by a Judge
while giving a judgment can be ascribed precedental value.
The essence of a decision that binds the parties to the case is
the principle upon which the case is decided and for this
reason, it is important to analyse a decision and cull out from
it, the ratio decidendi. In the matter of applying precedents, the
erudite Justice Benjamin Cardozo in "The Nature of a
Judicial Process", had said that "if the judge is to pronounce
it wisely, some principles of selection there must be to guide
him along all potential judgments that compete for
recognition" and "almost invariably his first step is to
examine and compare them;" "it is a process of search,
comparison and little more" and ought not to be akin to
matching "the colors of the case at hand against the colors of
many sample cases" because in that case "the man who had
the best card index of the cases would also be the wisest
judge". Warning against comparing precedents with matching
colours of one case with another, he summarized the process,
in case the colours don't match, in the following wise words:-
"It is when the colors do not match, when the references in the
index fail, when there is no decisive precedent, that the serious
business of the judge begins. He must then fashion law for the
litigants before him. In fashioning it for them, he will be
fashioning it for others. The classic statement is Bacon's: "For
many times, the things deduced to judgment may be meum and
tuum, when the reason and consequence thereof may trench to
point of estate. The sentence of today will make the right and
wrong of tomorrow."
34. In the light of the above discussion we allow the present writ
petitions filed by the petitioner holding that the respondents are not
entitled to the benefit of age relaxation up to the age of 62 years in terms
of Notification dated 29.01.2007 read with Notification dated 27.01.2012
issued by the Directorate of Education, Govt. of NCT of Delhi.
Consequently, the impugned order dated 27.03.2014, passed by learned
Central Administrative Tribunal is set aside. Parties are left to bear their
own costs.
KAILASH GAMBHIR, J.
I.S.MEHTA, J.
MARCH 27, 2015
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