Ms. Kirti Jain vs Kulachi Hansraj Model School & ...
2017 Latest Caselaw 1130 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No.3573/2015

%                                                      1st March, 2017

MS. KIRTI JAIN                                           ..... Petitioner
                          Through:       Mr. Ashok Aggarwal, Advocate
                                         with Ms. Aarushi Aggarwal,
                                         Advocate.
                          versus

KULACHI HANSRAJ MODEL SCHOOL & ORS. ..... Respondents

                 Through: Ms.    Jyoti   Singh, Senior
                          Advocate with Mr. Tanuj
                          Khurana,     Advocate     for
                          respondent No.1.
                          Ms. Isha Khanna, Advocate for
                          respondent No.3.

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 claims the relief of being granted monetary

emoluments in terms of 6th Pay Commission Report which became

applicable to Schools in Delhi by virtue of the order of dated 11.2.2009

of the respondent no.3/Director of Education (DOE). Petitioner pleads

that she was appointed as a Nursery Teacher with the respondent

no.1/Kulachi Hansraj Model School vide appointment letter dated

23.6.1997. Petitioner was appointed on probation and petitioner was

confirmed in her post by virtue of the communication dated 16.3.1999

of the respondent no.1/school. The letters of appointment and

confirmation dated 23.6.1997 and 16.3.1999 respectively read as

under:-

"Letter dated 23.6.1997 Ref. No.11183/97 Dated 23-6-97 To Ms. Kirti Jain B-27, Vandana Apartments, Sec-13, Rohini, Delhi-85 Sub: APPOINTMENT OF TEACHING/NON-TEACHING STAFF (FOR REGULAR APPOINTMENTS) Dear Sir/Madam, With reference to your application & consequent interview for the post of Nsy. Teacher in Kulachi Hansraj Model School, Ashok Vihar, Delhi, you are hereby informed that you have been selected for the post of Nsy. Teacher on basic pay of Rs.1200/- in the pay-scale of Rs.1200-2040 plus admissible allowance in the school under the rules of D.A.V. College Managing Committee, New Delhi.

This appointment is subject to the terms and conditions given below:

1. PERIOD:

You will be on probation initially for a period of one year w.e.f. the date of your joining the post. On completion of your probation you will be considered for confirmation in case your work and conduct are found to be satisfactory.

2. PROBATION:

Your probation period may be extended by one year and your services may be terminated without assigning any reason whatsoever during the probationary period or the extended probationary period. During this period of probation, your services may be terminated by giving one month notice or on payment of one month salary in lieu of the notice period by either the employer or the employee.

3. CONFIRMATION:

After confirming your services may be terminated by giving three months notice or on payment of salary in lieu of notice period by either side.

4. INCREMENT:

Your annual increment will fall due on completion of one year's continuous and satisfactory service.

5. PROVIDENT FUND:

You will be allowed to contribute 10% of your pay plus allowances to P.F. Trust of D.A.V. College Managing Committee and the share of the Managing Committee will be made regularly in accordance with P.F. rules of the said committee.

6. LEAVE:

You will be entitled to such leave only as is applicable to similar employees of the Public Schools under the D.A.V. College Managing Committee in accordance with the Rules framed by the D.A.V. College Managing Committee.

7. SUPERANNUATION:

The age of superannuation shall be sixty years unless changed by the D.A.V. College Managing Committee.

8. APPLICATION FOR OTHER EMPLOYMENT:

a) During the period of your employment with the D.A.V. College Managing Committee, if you want to apply for a post of elsewhere, you shall have to send your application through the Manager/Regional Director.

b) Application for improvement in qualifications: If you wish to appear for any public examination or any other examination for improving qualifications, you shall apply for it through the Principal/Regional Director and will have to abide by the instructions issued by him from time to time.

9. TRANSFER OF SERVICE:

Your service is liable to be transferred to any D.A.V. Public/Model School in any part of the country which may be existing or may come into existence hereafter at the discretion of the D.A.V. College Managing Committee.

10. GENERAL CONDITIONS OF SERVICE:

a) In the matter of other general conditions of service you will be governed by the Rules and Regulations of the D.A.V. College Managing Committee which will be read and followed by you.

b) You shall execute loyally and faithfully the policies laid down by the Management in-so-far as the school programme and Administration is concerned and that you shall work under the directions and instructions of the Manager/Regional Director and the D.A.V. College Managing Committee.

c) As a whole time employee of the D.A.V. College Managing Committee you shall have to carry out the instructions of the said committee and devote your whole time to the service of the institution where you are employed. You shall not engage yourself in any private trade or undertake publication of books or any other work which is likely to interfere with the discharge of your normal duties without prior permission of the D.A.V. College Managing Committee nor will you be entitled to take up any private coaching or tuitions without prior permission of the Manager/Regional Director.

d) During your service career, you shall not take part in the politics nor indulge in activities prejudicial to the interest of the school

or the D.A.V. College Managing Committee or the Government. You shall maintain cordial relations with all members of the school community and also set highest standard of discipline in the school.

11. ACCEPTANCE:

If you accept the terms and conditions of appointment, please sign the duplicate copy in token of your acceptance and send the same to this office immediately but not later than 10 days of the receipt of this appointment letter, failing which it shall be deemed that you are not interested in the post and it shall be offered to another person. If any information given by you is found in-correct later on at any stage of your service, your services are liable to be terminated.

Sd/-

For & on behalf of the D.A.V.

College Managing Committee

I ACCEPT THE TERMS AND CONDITIONS OF SERVICE AS MENTIONED ABOVE AND I AM WILLING TO ACCEPT THE POST.

     COUNTERSIGNED
     MANAGER                              FULL NAME AND SIGNATURE
     WITH DATE.                          OF APPOINTMENT WITH DATE

     Letter dated 16.3.1999

     Ref. No.13036/99                                        DATE:16-3-99
     MS. KIRTI JAIN
     NURSERY TEACHER(DAY CARE)

This is to inform you that you have been confirmed in your post w.e.f. 4- 7-98 as per approval of D.A.V. College Managing Committee, New Delhi communicated vide their letter no. KHRMS/ASHOK VIHAR/11795 dated 14-12-98.

Sd/-

PRINCIPAL"

2. Petitioner pleads that since she has not been granted

benefits of the monetary emoluments as per 6th Pay Commission

Report, and which have to be paid in view of the order of the DOE

dated 11.2.2009, hence the petitioner be paid her monetary

emoluments in accordance with law and till 25.3.2015 when the

petitioner states that she resigned from her services with the respondent

no.1/school.

3. Respondent no.1/school has filed its counter affidavit

denying that petitioner was a teacher with the respondent no.1/school.

The contention of the respondent no.1/school is that petitioner was in

fact appointed as a teacher not with the respondent no.1/school but

with the Kulachi Hansvatika Day-Boarding School. On behalf of the

respondent no.1/school, reliance is placed upon the provident fund

form signed by the petitioner wherein petitioner is shown to be the

teacher not in the respondent no.1/school but in Kulachi Hansvatika

Day-Boarding School. Reliance is also placed upon three letters, first

undated, second dated 8.8.2005 and the third dated 29.6.2006 to argue

that these letters show that petitioner was not an employee of the

respondent no.1/school but of the Kulachi Hansvatika Day-Boarding

School. These three letters relied upon by the respondent no.1/school

read as under:-

"UNDATED LETTER To, The Principal Kulachi Hansraj Model School Ashok Vihar Delhi-110052 Subject: Marksheet of my B.Ed Examinations

Respected Madam, I am currently teaching in "Hans Vatika" branch of Kulachi Hansraj Model School and had appeared for the Examinations of B.Ed (Bachelor

of Education) in session 2006-07 at Ch. Charan Singh University, Meerut.

By this letter, I am pleased to inform you that I have cleared aforesaid examinations with 72% marks. I am attaching a copy of my marksheet for your reference with a request to put the same in my file and update school records as appropriate. A copy of my degree shall be submitted to the school upon receipt from University. This has been possible due to your continued blessings, support and guidance for which I am most indebted to you. My association with KHRMS under your able leadership for over thirteen years has been most wonderful, enjoyable and enriching. I assure that I will put in my extra efforts to utilize the knowledge gained from aforesaid education in my zeal for imparting better education to the school children.

Yours faithfully Sd/-

Kirti Jain Primary Teacher Hans Vatika, G Block, Phase I, Ashok Vihar, Delhi.

Letter dated 8.8.2005 August 8, 2005 The Principal, Kulachi Hansraj Model School, Phase-III, Ashok Vihar, Delhi-110052

Respected Madam, I am Kirti Jain, Nursery Teacher at Kulachi Day care (G-Block, Ashok Vihar). As you would know, I was recently blessed with a baby boy on 27th June 2005 and am now availing my Maternity Leaves granted by the school to facilitate proper care of the new-born baby. I would like to share with you that my husband is temporarily posted in Shanghai, China and he intends to take all of us with him during his current assignment. I would, therefore, like to apply for special leave, without pay for a period starting 14th November, 2005 (My maternity leave started on 28th June and will last till 11th November, 12th and 13th November are holidays-II Saturday & Sunday respectively) and up to 30th April, 2006 or up to the last day before summer vacations. I will join school on the 1st Day of reopening of school after summer vacations. I am sure that this exposure to a foreign country will add to my exposure and I will be able to contribute to my job even more after my return from China.

Thanking you and assuring you of my continued commitment and loyalty to you personally and the institution.

Yours faithfully Sd/-

     Kirti Jain
     Nursery Teacher

     Delhi Address:                                       China Address:
     H-3/52, Sector-18                   Apartment T-101 B, Seasons Villas
     Rohini, Delhi-110085                           No.1983 Hua Mu Road
     Ph.:27854286                                    Pudang, New District
                                                         Shanghai-201204
                                                            P.R.O. CHINA
                                               Phone:008 6138 1780 7525


     Letter dated 29.6.2006
                                                              June 29, 2006
     The Principal
     Kulachi Hansraj Model School
     Phase-III, Ashok Vihar
     Delhi-110052

Subject: Request for extension of Special Leave.

Respected Madam, I am Kirti Jain, Nursery Teacher at Hans Vatika (Kulachi Day Care-G Block, Ashok Vihar). Currently I am on Special Leave up to last day before 2006 summer vacation owing to my husband's temporary posting in Shanghai, China.

As per current indications received from my husband's office, his assignment here will continue up to middle of 2007. Therefore, I request you to kindly extend my special leave (without pay) up to 30th June 2007 and oblige.

Thanking you in anticipation of your kind consideration and assuring you of my continued commitment and loyalty to you and the institution.

Yours faithfully Sd/-

     Kirti Jain
     Nursery Teacher
     Hans Vatika-Ashok Vihar

     Delhi Address:                                    China Address:
     H-3/52, Sector-18                             Apartment 9C, Tower 3
     Rohini, Delhi-110085                 Seasons Villa, 1983, Huamu Road
     Ph.:27854286                         Pudong, Shanghai-201204 CHINA
                                                       Tel:86 21 68562441"

4. Learned counsel for the respondent no.1/school also

argues that there is a disputed question of fact as to whether petitioner

is an employee of the respondent no.1/school or of Kulachi Hansvatika

Day-Boarding School, and therefore, this Court should not exercise

powers under Article 226 of the Constitution of India and petitioner be

relegated to the remedy of civil court wherein such disputed question

of fact will be decided.

5. It is also seen from the record that some disciplinary

proceedings were initiated against the petitioner on account of the

petitioner not being a qualified person having B.Ed degree for

appointment as a teacher and on conclusion of disciplinary

proceedings, petitioner was removed from the services by the

respondent no.2/Managing Committee DAV College as per the

statement made on behalf of respondent no.1/school. Petitioner claims

in her defence that for appointment as a nursery teacher no B.Ed

degree was required. The issue of removal of the petitioner is now the

subject matter of the appeal filed by the petitioner before the Delhi

School Tribunal. I am stating these facts only for the purpose of

narration because it is to be noted that the order of removal from

services of the petitioner allegedly with Kulachi Hansvatika Day-

Boarding School is dated 2.11.2015, but the petitioner only claims

monetary emoluments till 25.3.2015 when petitioner is said to have

resigned from services with the respondent no.1/school.

6. I have already reproduced above the letters dated

23.6.1997 and 16.3.1999 which are issued by the respondent

no.1/school and these letters are admitted documents because it is not

the case of the respondent no.1/school that petitioner has forged and

fabricated these documents. The letter dated 23.6.1997 and the

confirmation certificate dated 16.3.1999 show that both these letters

have been issued by the respondent no.1 i.e Kulachi Hansraj Model

School. The first part of the letter dated 23.6.1997 also shows that

petitioner had applied for the post of Nursery Teacher with the

respondent no.1/school and to which post she was appointed i.e as a

Nursery Teacher of the respondent no.1/school. I therefore cannot

agree that there is a disputed question of fact once the letters of the

respondent no.1/school dated 23.6.1997 and 16.3.1999 are admitted by

the respondent no.1/school itself. Petitioner was therefore a teacher

appointed by and to the respondent no.1/school

7. Respondent no.1/school can derive no benefits from the

three letters; one undated, second dated 8.8.2005, and the third dated

29.6.2006 relied upon by it, inasmuch as, all the three letters are

addressed by the petitioner to the respondent no.1/school. If the

petitioner was not an employee of the respondent no.1/school, then,

there was no need to address these letters to the respondent

no.1/school. Of course, petitioner can be said to be teaching as stated

in these letters at Kulachi Hansvatika Da- Boarding School, however,

it is the privilege of the employer to see where the services of the

employee can be utilized, but that would not in any manner derogate

from the fact that petitioner was in fact appointed by and therefore an

employee of the respondent no.1/school. For what purpose respondent

no.1/school took signatures on provident fund form mentioning the

name of the school of the petitioner as Kulachi Hansvatika Day-

Boarding School is not understood by this Court inasmuch as once the

petitioner was appointed to the respondent no.1/school and such

services have statutory protection in view of the Supreme Court

judgment in the case of Management Committee of Montfort Senior

Secondary School Vs. Vijay Kumar and Others, (2005) 7 SCC 472,

respondent no.1/school could not have committed a fraud on statute by

allegedly claiming that petitioner was not a teacher in the respondent

no.1/school but was a teacher with Kulachi Hansvatika Day-Boarding

School. I may also note that petitioner with her rejoinder affidavit has

filed various pay slips for months each of the years 2004 and 2005 and

which show that petitioner received her salary as an employee of the

respondent no.1/school. Therefore, in my opinion, respondent

no.1/school by alleging existence of disputed question of fact only to

suit the respondent no.1's convenience cannot cast a cloud at the status

of the appointment of the petitioner as a Nursery Teacher with the

respondent no.1/school. I therefore reject the argument of the

respondent no.1/school that petitioner was not an employee of the

respondent no.1/school.

8. (i) The fact that schools in Delhi have to pay the teachers'

salaries as per the 6th Pay Commission Report cannot be doubted in

view of the order of the DOE dated 11.2.2009, and therefore, petitioner

will be entitled to her salary from the date when 6th Pay Commission

Report became applicable to private schools in Delhi including the

respondent no.1/school, and therefore the respondent no.1/school is

directed to pay all the arrears which are due and payable to the

petitioner by giving monetary emoluments in terms of 6 th Pay

Commission Report. However, since principles of the Limitation Act,

1963 apply to writ petitions by virtue of the judgment of the Supreme

Court in the case of State of Orissa and Another Vs. Mamta Mohanty

(2011) 3 SCC 436 accordingly petitioner will only be entitled to

amounts of arrears for a period of three years i.e from the date of three

years before filing of the writ petition and which has been filed on

9.4.2015 and till the date of resignation of the petitioner on 25.3.2015.

(ii) I cannot agree with the contention urged on behalf of the counsel

for the petitioner that since representations were made by the petitioner

on 14.2.2011 and 11.5.2012, hence petitioner is entitled to extend the

period of limitation, inasmuch as, mere pendency of the representations

will not extend the period of limitation unless there was an

acknowledgment by the respondent no.1/school that representations

were pending favorable consideration.

9. While calculating the amounts payable to the petitioner

the respondent no.1/school will be entitled to adjust the amounts which

it has paid to the petitioner for the period commencing from the date of

three years before the filing of the petition and till 25.3.2015 when the

petitioner is said to have resigned from the respondent no.1/school.

Petitioner will be entitled to interest @ 12% per annum simple on the

amounts accumulated with respect to arrears for every quarter of each

year from the end of each respective quarter.

10. In view of the above, this writ petition is allowed and

disposed of directing the respondent no.1/school to pay to the

petitioner, as stated above, the monetary emoluments as per the 6th Pay

Commission Report from three years prior to filing of the writ petition

till her resignation along with interest, as stated above. Petitioner will

also be entitled to costs of Rs.20,000/- for this writ petition and which

costs be paid within six weeks along with the amounts payable to the

petitioner by the respondent no.1/school in terms of the present

judgment. Writ petition is allowed and disposed of accordingly as

stated above.

MARCH 01, 2017                                VALMIKI J. MEHTA, J
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