Amar Singh Chauhan. vs Govt. Of Nct Delhi & Ors.
2016 Latest Caselaw 1379 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+      WP(C)360/2016 and CM.1510/2016


%                          Reserved on : 05th February, 2016
                          Date of decision : 22nd February, 2016


       AMAR SINGH CHAUHAN.                   ...Appellants
          Through    Mr.S.N. Tripathi and Ms.Ankita
          Pandey, Advocates

                    Versus

       GOVT. OF NCT OF DELHI & ORS.        ...Respondent
           Through   Mr.Satyakam, ASC for GNCTD

CORAM:
       HON'BLE MR. JUSTICE SANJIV KHANNA
       HON'BLE MR. JUSTICE NAJMI WAZIRI

SANJIV KHANNA, J.

1. Amar Singh Chauhan, in this writ petition has impugned the order dated 28th September, 2015, passed by the Principal Bench of the Central Administrative Tribunal („Tribunal‟ for short) in O.A.No.1977/2014, inter alia, holding that the petitioner, a laboratory assistant, was not entitled to re-employment for a period of two years post his retirement on 31st May, 2014. The reason being that a laboratory assistant was not at par and cannot be equated with teachers/ teaching staff, who were / are entitled to post retirement re- employment.

2. It is an undisputed position that teachers (primary, trained graduate and post graduate teachers etc.) including Vice-Principals, Principals, Head-Masters/ Head-Mistress, are entitled to re-employment in terms

of the cabinet decision no.113 dated 4.9.2006 conveyed by letter no.F.3/3/2004-GAD/CN/20491-502 dated 8.9.2006 issued by the Lieutenant Governor, Government of NCT of Delhi. Re-employment is subject to fitness and vigilance clearance. The short question is whether a Laboratory Assistant, can be equated, and is a teacher.

3. We do not think that the petitioner, who is working as a laboratory assistant, can be equated with and claim parity with teachers. The Delhi School Education Act, 1973 in sub-section (h) to Section 2 defines the expression „employee‟ as a teacher and every other employee working in a recognized school. The expression "teacher" as defined in Section 2 clause (w) includes head of school. Laboratory assistants are not included by deemed fiction or equated with teachers under the aforesaid definition clause. From a scrutiny and analysis of the Recruitment Rules, eligibility requirements, pay scale, cadre, channel of promotion etc., it is apparent and illuminant that laboratory assistants cannot be identified with and treated as equivalent to teachers. They fall in a different cadre and class of employees.

4. Teachers, sub-categorized as Primary School Teachers, Trained Graduated Teachers, Post Graduate Teachers etc. form separate and distinct cadres, whereas the cadre of the Laboratory Assistants is independent.

5. On several occasions this court has rejected similar pleas of laboratory assistants claiming equivalence and parity with teachers. A Division Bench of this court in Siya Ram Rai & Ors. Vs. The Chairperson, Navyug School [LPA No.131/2006 decided on 17th May, 2007], in the context of Navyug Schools had observed:

"6. There is no dispute to the fact that both the Primary Teachers and Lab Assistants belong to distinct, different and separate cadres. The pay scale which was given to the Primary Teachers was 1400-2600 whereas the pay scale that was being given to the Lab Assistant was Rs.1200-2040. It was also clearly established that the minimum educational qualification to be appointed as Lab Assistant is Intermediate or Senior Secondary whereas for being appointed as Primary Teacher, a candidate must possess the qualification of Graduation with B.Ed. Degree/ Diploma. Therefore, there is difference in the two cadres so far as the criteria for appointment is concerned. The fact that the appellants were Graduates at the time of their appointment would be totally irrelevant and therefore no comparison can be made as to the nature and character of duties of the two posts. It is also established that in Navyug Schools there is no promotion quota for Lab Assistants to the post of TGT. Therefore there is difference between the case of Primary Teachers and Lab Assistants as their educational qualifications as prescribed as well as nature and responsibilities of their service are quite different."

6. Similar view was taken in Vimal Prasad and Ors. Vs. UOI and Ors.

[LPA No.321/1999 decided on 1st February, 2008], wherein the laboratory assistant had sought pay parity with primary teachers, contending inter alia that they perform identical work, discharge almost similar duties, and therefore, there should not be any difference in their pay-scales. This decision relates to laboratory assistants who were working in the schools run by the Directorate of Education, Government of National Capital Territory of Delhi. The prayer and contention was rejected.

7. An identical plea was rejected by a Division Bench of this court in Sat Narain Vs. Directorate of Education and Ors., [WP(C)No.5374/2013 decided on 29th August, 2013]. The laboratory assistant in this case had relied upon the notification dated 29th

January, 2007 and circular issued by the Government of NCT of Delhi, granting special pay to librarians and teachers. The Division Bench rejected the equivalence and equality argument, observing that special allowances were being paid to a different category of employees and this would not mean that for all purposes the employees have to be treated equally as species of the same genus. Laboratory assistants do not teach students in class rooms. The work of a laboratory assistant is to set up apparatus, mix solutions and salts for students and help them in conducting experiments etc. The laboratory assistant not being a teacher, would not be entitled to the benefit of the notification dated 29th January, 2007.

8. The learned counsel for the petitioner, however, submits that there is contrary decision also of a Division Bench dated 8 th April, 2013 passed in WP(C)No.2677/2012 in Govt. of NCT of Delhi Vs. Mithilesh Swami. Our attention was drawn to paragraph 21 of the said judgment, which reads as under:

"20. Facts noted above would reveal that by April 2011 the issue in dispute had been resolved in favour of the respondent by two Division Benches of this Court, and yet in spite thereof the petitioner obstinately took the stand that a teacher would be only she who teaches the 3 R‟s in a classroom, a view which was negated time and again because under the Delhi School Education Act, 1973 a teacher was defined widely and as per Rule 110 of the Delhi School Education Rules, 1973 even personnel engaged with laboratory activities in schools were required to be treated as teachers. The reason being obvious. Practical teaching and theoretical teaching are two sides of the same coin of education. A Chemistry Teacher in class teaches theories about chemicals and how different chemicals react and why do they react. When do two chemicals react to form a salt or an Esther

or release a gas and why? This is taught in the classroom. In the laboratory practical teaching of the theory in its application is done. We highlight that it is not the case of the petitioner that the post held by the respondent, with reference to its nomenclature, would not entitle the respondent to be treated as a Teacher. We highlight that the petitioner was litigating before the Tribunal by pleading that notwithstanding the decisions of two Division Benches of this Court in Sushma Nayar‟s case and Giriraj Sharma‟s case, the matter was under re-consideration, a stand which is factually incorrect.

The attributed divergence is explainable. A judgment of the Court is to be read in the context in which the pronouncement was made. Observations of Courts are not to be read as theorems or interpreted like the statutory provisions. Circumstantial flexibility of one additional or different fact may make a world of difference. Mere similarity may not be sufficient [See State of A.P. Vs. M. Radha Krishna Murthy (2009) 5 SCC 117]. In Mithilesh Swami, the Division Bench had noted that initially the Government of NCT of Delhi had taken the stand that re-employment would be only applicable to teachers who had taught in classes and not to principals, vice-principals, head masters and head-mistress. Albeit, this stand was not accepted and in Sushma Nayar Vs. MCDelhi Public School Mathura Road & Ors. 2009 (VII) AD (Delhi) 246, the Court had referred to section 2(w) of the Delhi School Education Act, which defines the word „teacher‟ to include the head of the school and Rule 110 of the Delhi School Education Rule 1973 which states that principals and vice-principals are treated as teachers. Sushma Nayar (Supra) affirms that the benefit of re-employment would extend to the head master and head-mistress. In Mithilesh (Supra) the Division

Bench in paragraphs 6 to 12 has specifically noted that the respondent therein was a senior science counsellor, who was performing duties and supervising science laboratories in the Government and Government aided schools. It was emphasized that the Tribunal in their order had not recorded a finding that the senior science counsellor was not a teacher. After elucidating on the aforesaid aspect, the Division Bench recorded the short question which had arisen for consideration, whether on the principle of no work no pay, the respondent therein would be denied wages from 1st May, 2011 till she was re-engaged on 7th February, 2012. It was in the aforesaid factual matrix that the pronouncement was made. The issue that the senior science counsellor was a teacher was never in dispute nor under challenge.

9. We do not think that the decision in Mithilesh (Supra) would assist the petitioner, as it proceeds on its own facts. Reference was made to the decision of a Single Judge of this Court dated 3rd September, 2013 in WP(C)No.5536/2013 Samar Chakravarty Vs. Director of Education, Govt. of NCT of Delhi and Anr. In this case, the writ petition was allowed and the petitioner, who was working as a librarian, was directed to be given benefit of the circular and entitled to re-employment up to the age of 62 years. This decision refers to and relies upon the judgment in Shashi Kohli Vs. DOE (2011) 179 DLT 440. The decision in Shashi Kohli's case (Supra) was in respect of a chemistry teacher and not in the case of a librarian. We do not think the aforesaid decision is applicable. In any case, if there is a conflict between this decision of the Single Judge and the decision of the Division Bench in Sat Narain (Supra), the latter would prevail

and is binding. We respectfully agree with the view and ratio propounded in Sat Narain (Supra).

10. The contention that the petitioner at the request of the principal or superior had taken classes, though he was a laboratory assistant is to be only noted and rejected. This lapse or deviation would not result and have the effect of the petitioner being appointed and given status of a teacher for the purpose of re-employment. Recruitment and appointment has to be as per rules. The petitioner was a laboratory assistant and was paid salary as a laboratory assistant. His post and cadre has not undergone any change.

11. In view of the aforesaid discussion, we do not find any merit in the contentions raised and the writ petition is dismissed. All pending applications are disposed of.

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(SANJIV KHANNA) JUDGE

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(NAJMI WAZIRI) JUDGE February 22, 2016 Ssn