Shail Bala Chauhan vs Director Of Education & Ors.
2017 Latest Caselaw 411 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No. 8941/2005
%                                                         24th January, 2017

SHAIL BALA CHAUHAN                                            ..... Petitioner
                 Through:                Ms. Sonia A. Menon, Adv.
                          versus

DIRECTOR OF EDUCATION & ORS.                ..... Respondents

Through: Mr. Naushad Ahmed Khan, ASC (Civil), GNCTD with Mr. Ramesh Chander, DEO Zone-IX for R-1.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. By this writ petition under Article 226 of the Constitution of

India, the petitioner/Smt. Shail Bala Chauhan, a person working as an

Assistant Librarian with the respondent no.2/school when the writ petition

was filed in the year 2005, seeks three reliefs. The first relief is that the

petitioner should be taken as appointed not as a Library Assistant but as an

Assistant Librarian when petitioner was first given appointment although

the letter of appointment of the petitioner with the respondent no.2/school

dated 20.5.1991 gives appointment to the petitioner as a Library Assistant.

The second relief which is claimed is that petitioner's appointment as

Assistant Librarian by the respondent no.2/school in 1997 is in fact only a

correction of the wrong designation earlier given of Library Assistant and in

1997 petitioner got the correct designation of Assistant Librarian which was

wrongly not given in 1991 when the petitioner was appointed by the

respondent no.2/school. The third relief which is claimed by the petitioner is

that since the petitioner has completed 12 years of service, petitioner hence

is entitled to benefit of ACP Scheme whereby petitioner must get pay-scale

of the higher post of Assistant Librarian in view of the ACP Scheme dated

25.8.2004 read with Section 10 of the Delhi School Education Act, 1973

which provides that the monetary benefits which are granted to

teachers/employees in private schools must be the same as those given to

teachers/employees in government schools.

2. So far as the first issue is concerned, let me at this stage

reproduce the letter of appointment of the petitioner dated 20.5.1991 issued

by the respondent no.2/school and which letter reads as under:-

" D.A.V College Managing Committee CHITRA GUPTA ROAD NEW DELHI- 110055 Ref. No.... Dated: 20th May, 1991 To Miss Shail Bala Thakur 2900 Gali Pipal Wali Old Sabzi Mandi, Delhi-7

Sir/Madam With reference to your application and interview for the post of Library Asstt. for D.A.V.Model Senior Secondary School, Shalimar Bagh Delhi I hereby offer

you an appointment as Library Assistant on the basic pay of Rs.950/-1500 p.m. plus admissible allowance in the Pay-scale of Rs.950-1500 on probation for a period of twelve months from the date of your joining on the following terms & conditions.

1. On the expiry of the probationary period, you may be confirmed in the post if your work is found to be satisfactory. Your next increment will fall due from the date of your confirmation. In case, however, probationary period is extended for a year or so you will be entitled to the increment.

2. During the period of probation your services may be terminated by giving One Month's notice on either side. After confirmation your services can be terminated by three months notice on either side.

3. In the matter of leave and general conditions of service, you will be governed by the rules & regulations of the D.A.V. College Managing Committee, Chitra Gupta Road, New Delhi.

4. During the period of your employment if you wish to apply for a post elsewhere, you must get your application forwarded through the Principal of the School.

5. As a whole time employee you are expected to carry out the instructions of the Principal implicitly and devote your whole time to the service of the institution where you are employed. You may not engage yourself in any private trade or undertake additional work outside which may interfere with your normal duties in the School without permission of the D.A.V. College Managing Committee. If you propose to take up any tuition work, you will have to obtained the Principal's permission in writing, and in case you propose to take an examination, you will obtain the committee's permission therefore.

6. After your confirmation you will join as a Member of the Provident Fund. Deductions from your salary and Managing Committee's contributions will be made regularly in accordance with the Provident Fund Rules of the D.A.V. College Managing Committee.

7. Increment will be granted to you in the normal course if your work continues to be satisfactory. It may be with-held in case of adverse report.

8. The Managing Committee has the right to transfer you from one institution to another as and when if considers necessary.

If you accept the appointment on the terms and conditions stated above, your acceptance may be communicated immediately in the proforma given below.

Yours faithfully Sd/-

(Organising Secretary) ACCEPTANCE I accept the appointment on the terms & conditions given above

Signature- Sd/-

Full Name- Miss Shail Bala Thakur Address- 2900 Gali Pipal Wali Old Sabzi Mandi, Delhi-7"

3. Admittedly, the petitioner has been specifically given the

appointment letter for the post of Library Assistant and not as an Assistant

Librarian. Petitioner has acted upon this appointment letter, and once

petitioner took appointment from respondent no.2/school as Library

Assistant, subsequently, thereafter the petitioner cannot turn around to claim

that though petitioner's appointment letter gave appointment as a Library

Assistant, but in view of the higher qualifications of the petitioner, petitioner

should not be taken as appointed as a Library Assistant but should be treated

as having been appointed as an Assistant Librarian.

4. Petitioner though has claimed in the writ petition that

advertisement was issued for the post of Assistant Librarian by the

respondent no.2/school in 1991 and not for the post of Library Assistant,

however, respondent no.2/school along with its counter-affidavit has filed

the advertisement in question and this advertisement in question clearly

shows that advertisement was issued by the respondent no.2/school, not for

the post of Assistant Librarian but for the post of Library Assistant. This

advertisement filed as Annexure R-2/1 to the counter-affidavit of respondent

no.2/school reads as under:-

"D.A.V.MODEL SR. SEC. SCHOOL SR. SEC. SCHOOL BN BLOCK SHALIMAR BAGH, DELHI-110052, PHONE-7213634, 7110278 Wanted well QUALIFIED TRAINED TEACHERS with Public-school background and proficiency in English, preferably females, for the following posts. Special consideration possible for exceptionally qualified, experienced and dedicated candidates. Atleast(i) 3-years experience in an English Medium Public School and (ii) 2nd Class Degree/Diploma essential:-

* P.G.T.:-Grade-Rs. 1640-60-2600-EB-75-2900 plus admissible allowance (Total Rs. 3101/-p.m,) for English, Chemistry, Commerce, Accountancy, History, Geography, Political Science, Engineering Drawing & P.E.T.- Qualifications M.A./M.Com, M.Sc.& B.Ed.

* T.G.T.:- Grade-Rs.1400-40-1600-50-2300-EB-40-2040 (Plus admissible allowances (Total Rs.2509/- p.m) for English, Hindi, Physics, Sanskrit, Electronics and Social Studies - Qualifications M.A./M.Sc./B.P.E.Ed/M.P.E.Ed/B.A/B.Sc/B.Ed.

* Primary Teachers:-Grade Rs.1200-30-1560-EB-40-2600 plus admissible allowance (Total Rs.2207 p.m) for English, Hindi, Maths, Sanskrit, Arts, Music, Social studies and General Science.

* Lab. Attendants:- Grade Rs.750-12-870-EB-14-940 plus admissible allowances (Total Rs.1313/-p.m). Qualifications Matric /10+2 with science subjects and with 2 years experience.

* Library Assistant:-Grade Rs.800-15-1010-EB-20-1150 plus admissible allowance (Total Rs. 1388/- p.m) Qualification B.A with experience of Library Assistant.

* Nurse:- Grade Rs.800-15-1010-EB-20-1150 plus admissible allowance (Total Rs. 1388/- p.m) Qualification Qualified Nurse with experience.

Apply on prescribed forms available in the office of the School on all working days between 9.00 A.M and 12.00 noon, on payment of Rs.20/- per form. Last date for the submission of the Applications is 21st May, 1991."

(underlining added)

5. Accordingly, the contention of the petitioner is misconceived

that advertisement was given by the respondent no.2/school for the post of

Assistant Librarian, inasmuch as and in fact advertisement was given for the

post of Library Assistant. Therefore, petitioner has committed perjury in

stating that advertisement for the post in 1991 was for Assistant Librarian

whereas in fact the advertisement was for the post of a Library Assistant

only. Also, if the petitioner was appointed at the post of Assistant Librarian,

and not as a Library Assistant as claimed, then petitioner immediately after

the appointment letter dated 20.5.1991 would have started corresponding

and seeking correction of her appointment rightly to be Assistant Librarian

and not as Library Assistant, but the petitioner before 1997 has not filed any

correspondence of her with the respondent no.2/school whereby petitioner

claimed that petitioner was wrongly appointed as a Library Assistant instead

of Assistant Librarian. In 1997 petitioner got promotion to the post of

Assistant Librarian as stated below. Obviously, petitioner did not enter into

such correspondence after appointment in 1991 and till 1997 because the

advertisement in 1991 was for the post of Library Assistant and the

appointment letter dated 20.5.1991 accordingly issued to the petitioner was

for a Library Assistant, and petitioner therefore could never have sought any

appointment of Assistant Librarian from the original date of her

appointment in May, 1991.

6. Petitioner has thereafter sought to manipulate facts by claiming

that respondent no.2/school realized its mistake of the petitioner being

appointed as a Library Assistant instead of really petitioner having to be

appointed as Assistant Librarian, because petitioner claims that petitioner

was given the post of Assistant Librarian by correction of designation in

1997 as stated in para 6 of the writ petition, however, it is seen that the

respondent no.2/school has filed a copy of its office order dated 7.1.1998

showing that the petitioner was in fact promoted to the post of Assistant

Librarian and not that the petitioner's designation was corrected from

Library Assistant to Assistant Librarian. This order dated 7.1.1998 filed as

Annexure R-2/4 to the counter-affidavit of respondent no.2/school reads as

under:-

"D.A.V. COLLEGE MANAGING COMMITTEE CHITRA GUPTA ROAD, NEW DELHI-110055 Ph: (Admn.) 7525335, 739357, 524304 Ph: (P.S.) 7521284, 3557384, 3040557

Ref No. P.S./Shalimar Bagh/G-5 Dated:7.1.98 OFFICE ORDER Mrs. Shail Bala, Library Assistant working with Darbari Lal DAV Model School, Shalimar Bagh, Delhi in the scale of Rs.950-1500 has been promoted in the scale of Rs.1200-2040 w.e.f. 1.12.97 as Assistant Librarian."

Sd/-

(SHEETAL SHARMA) Director (PS-I) Copy to:

1. Mrs. Shail Bala, Darbari Lal DAVModel School, Shalimar Bagh, Delhi-

110052.

2. Principal, Darbari Lal DAVModel School, Shalimar Bagh, Delhi-110052.

3. Accounts Section (P.S.) Sd/-

(SHEETAL SHARMA) Director (PS-I)"

7. Therefore, there remains no manner of doubt that

advertisement was for the post of Library Assistant, petitioner was

appointed as Library Assistant in terms of the appointment letter dated

20.5.1991, petitioner acted as a Library Assistant pursuant to the

appointment letter dated 20.5.1991 inasmuch as the petitioner never

corresponded before 1997 for seeking correction of her allegedly being

given wrong designation of Library Assistant instead of Assistant Librarian,

and that petitioner's case of correct designation being given in 1997 is false

for the reason that petitioner was in fact promoted to the post of Assistant

Librarian by the order of the respondent no.2/school dated 7.1.1998.

Petitioner therefore is found guilty of repeated perjury committed before

this Court and coming up to this Court with a totally false and frivolous

case.

8. Learned counsel for the petitioner sought to place reliance upon

two documents, one letter dated 21.5.1991 of the respondent no.2/school

and a Provident Fund statement of 1994-95 of the respondent no.2/school

where the petitioner has been shown as an Assistant Librarian before

1.12.1997, however, merely because the document dated 21.5.1991 being

the call letter wrongly describes petitioner being called for Assistant

Librarian, and that the petitioner is referred to as an Assistant Librarian in

some Provident Fund statement, these cannot take away the fact that the

advertisement of 1991 and the appointment letter issued to the petitioner

was only as a Library Assistant and not as an Assistant Librarian, and

petitioner not only acted upon the same, but also that the petitioner never

corresponded with respondent no.2/school that she has wrongly been given

the post/designation of Library Assistant instead of Assistant Librarian. I

have already reproduced above the advertisement in question pursuant to

which petitioner applied for and was appointed, and which was for the post

of Library Assistant, and which aspect has to be taken with the fact that the

order dated 7.1.1998 issued by the respondent no.2/school is for promotion

of the petitioner to the post of Assistant Librarian w.e.f 1.12.1997 i.e there is

promotion of the petitioner and not allegedly correction of designation of

the petitioner to Assistant Librarian and which is sought to be alleged by the

petitioner.

9. The next aspect in this writ petition is the claim of entitlement

of the petitioner for a higher scale of pay of the higher post of Librarian

after completion of 12 years of service as an Assistant Librarian, and no

doubt the ACP Scheme will apply for the benefit of the petitioner for being

granted pay-scale of the higher post, after 12 years of completion of service

as an Assistant Librarian, provided otherwise the petitioner complies with

the eligibility criteria and qualifications for the higher post, yet entitlement

of the petitioner for the ACP Scheme would be after 12 years from

1.12.1997 i.e after 1.12.2009, and which is a date after filing of this writ

petition on 20.5.2005, and therefore, as on 20.5.2005 when the writ petition

was filed, petitioner had not completed 12 years of service in the post as

Assistant Librarian for being granted higher pay-scale of the post of

Librarian when this writ petition was filed. Since petitioner has not

completed the period of 12 years when the writ petition was filed, I am not

examining the merits of the case of the petitioner with respect to the

entitlement of the ACP Scheme on the petitioner complying with the

requirements and eligibility criteria as per the ACP Scheme of the higher

post of Librarian, and with respect to which liberty is given to the petitioner

to seek the same in accordance with law in case petitioner is otherwise

entitled to seek ACP benefits on compliance of the ACP Scheme, and which

ACP Scheme will apply to private schools such as the respondent

no.2/school in view of Section 10 of the Delhi School Education Act.

10. Counsel for the petitioner argues that as per the counter

affidavit filed by the Director of Education in this case there is no

sanctioned post of Assistant Librarian with the respondent no.2/school in

Delhi, however, it is seen that respondent no.2/school is a completely

unaided private school, and therefore, such unaided private school which

does not receive any grant from the Director of Education is entitled to have

posts fixation de hors designated posts in government schools and

government aided schools in Delhi. Obviously, with respect to such posts

which do not find mention in the posts carved out by the Director of

Education for government schools or government aided schools some parity

or similarity will apply with respect to similar posts as in private schools or

in government schools/government aided schools for monetary emoluments,

however, that is not a ground to allow a writ petition in the present case

when the aforesaid facts are seen where petitioner not only has resorted to

repeated perjury and that the petitioner was appointed and acted upon the

appointment to the post of a Library Assistant and not as an Assistant

Librarian. Further, it is also noted that this aspect now argued by the

petitioner is not even pleaded in the writ petition as a cause of action for

grant of relief, and even if such cause of action was pleaded, I have failed to

understand the logic and rationale of such a cause of action because

petitioner claims appointment not to the post of Library Assistant but as an

Assistant Librarian, and therefore, how can the petitioner raise an argument

that Director of Education has not created a post of an Assistant Librarian to

which petitioner claims she was originally appointed in 1991.

11. In view of the above, there is no merit in this writ petition and

the same is therefore dismissed. In view of the repeated perjury committed

by the petitioner I was inclined to impose heavy costs to serve as a reminder

to litigants for not setting up false cases, and I had intended to impose costs

of at least Rs.25,000/-, but considering that petitioner is a retired employee

of a school, I am not imposing costs, with the caution to the petitioner that

in case any frivolous litigation is initiated by the petitioner, then the aspect

of costs would be considered at that stage.

12. The writ petition is accordingly dismissed and disposed of with

the aforesaid observations.

JANUARY 24, 2017                                    VALMIKI J. MEHTA, J
ib