Delhi High Court
Vinod Kumar Soran vs The Delhi Public School & Ors. on 3 March, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 1873/2011
% 3rd March, 2017
VINOD KUMAR SORAN ..... Petitioner
Through: None.
versus
THE DELHI PUBLIC SCHOOL & ORS. ..... Respondents
Through: Mr. Puneet Mittal, Ms. Arushi Tangri
and Mr. Sagar Mittal, Advocates for
R-1 and 2.
Mr. Nitish Negi and Mr. Ankur
Chhiber, Advs. for R/GNCTD.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? YES
VALMIKI J. MEHTA, J (ORAL)
1. By this writ petition under Article 226 of the Constitution of
India, the petitioner, who was employed as a teacher/TGT (Maths) with the
respondent no.1/Delhi Public School w.e.f 6.7.2001, seeks the benefit of
ACP Scheme by seeking to combine the services of the petitioner rendered
with the respondent no.1/school with the earlier period of services of the
petitioner from 25.10.1991 to 5.7.2001 with earlier school namely Col.
Satsangi Kiran Memorial Public School, Satbari, Delhi.
2. It is not in dispute that the respondent no.1/school is a private
unaided recognized school. Petitioner seeks the benefit of joining of the
services of the earlier school with the present respondent no.1/school by
contending that the benefit of ACP Scheme is available even for employees
who were declared surplus/transferred and this is stated in para 7 of the writ
petition and which para reads as under:-
"7. The petitioner further submits that as per clause 14 of the ACP Scheme
dated, 09.08.1999, there is provision that service of even those employees is to be
taken into account, for the purpose of the ACP Scheme, who were declared
surplus/were transferred-even if such transfer was on unilateral request of the
employee. Thus it is clear that benefit of financial up-gradation as per the ACP
Scheme is to be given to the petitioner as the petitioner is well within the ambit of
its provisions and his service is well within the ambit of its provisions and his
service is to be construed as continuous with effect from 25.10.1991 as stated
above. It may be also be pertinent to point out, in this context, that the petitioner
joined the service of respondent No.1 school in response to their advertisement
"for experienced teachers" and it was only on acceptance by them, of the
petitioner's condition for protection of his regular service and pay scales, that he
accepted the post/service as of PGT (Math) with respondent No.1 school."
3. The provision with regard to absorption of a surplus employee
of one school in another school, with the seniority in the new
school/transferred school, is in terms of Rule 47 of the Delhi School
Education Rules, 1973. This Rule 47 reads as under:-
47. Absorption of surplus employee, etc. (1) Where as a result of-
(a) the closure of an aided school or any class or classes in any aided school; or
(b) withdrawal of recognition from an aided school; or
(c) withdrawal of aid from an aided school.
any student or employee becomes surplus, such student or employee, as the
case may be, may be absorbed as far as practicable, in such Government school or
aided school as the Administrator may specify:
Provided that the absorption in Government service of any employee who has
become surplus shall be subject to the availability of a vacancy and shall be
subject further to the condition that the concerned employee possesses the
requisite qualifications for the post and has not been retrenched by the
management of the aided school on any ground other than the ground of closure
of the school or any class or classes of the school, or withdrawal of recognition or
aid from the school:
Provided further that where any such surplus employee is absorbed in a
Government school, he shall be treated as junior to all the persons of the same
category employed in the Government Schools on the date immediately preceding
the date on which he is so absorbed, and where such surplus employee is absorbed
in an aided school, he shall rank as junior to all the persons of the same category
employed in that school on the date immediately preceding the date on which he
is so absorbed.
(2) Where any surplus employee is absorbed under sub-rule (1)--
(a) the salary and other allowance last drawn by him at the school from which he
has become surplus shall be protected;
(b) his provident fund account shall be transferred to the school in which he is so
absorbed, and thereupon such provident fund shall be governed in accordance
with the rules and regulations in force in that school in relation to provident fund;
and
(c) the period of his qualifying service in the school in which he had worked
before such absorption and any previous period of qualifying service, if any, in
any recognised aided school in Delhi shall be taken into account for the purpose
of computing his pension and other retirement benefits.
(3) Without prejudice to the provisions of sub-rules (1) and (2), where an
employee becomes surplus by reason of the closure of any class or section thereof
or the discontinuance of the teaching of any subject, such employee may be
absorbed in the first instance, as far as practicable, in such Government or aided
school as the Administrator may specify, and if the class or section which was
closed is reopened by the former school or if any new class or section thereof is
opened by such school or if the subject, the teaching of which was discontinued, is
re-introduced by such school, or strength of the staff of the former school is
increased, such employee shall be reabsorbed in the former school; but if such re-
absorption does not take place within a period of five years from the date of
absorption of such employee in the Government or aided school, such employee
shall be regularly absorbed in such Government or aided school, as the case may
be.
(4) Re-absorption of a employee in a former school shall not affect his continuity
of service or his seniority in relation to that school or his emoluments, provident
fund, gratuity and other retirement benefits.
Explanation:- For the purposes of sub-rules (3) and (4), "former school" means (he
school from which an employee had become surplus." (underlining added)
4. A reading of the aforesaid rule shows that the issue of
continuation of services on being declared surplus by one school and
thereafter being absorbed in another school only applies to aided schools.
Petitioner therefore cannot claim joining of services with the earlier school
namely Col. Satsangi Kiran Memorial Public School, Satbari, Delhi from
25.10.1991 to 5.7.2001 to the services rendered by the petitioner with the
respondent no.1/school which is an unaided and private recognized school
in Delhi. I may note that otherwise also it is settled law that each school in
Delhi is a separate legal entity and services rendered with each separate
legal entity will be only towards that legal entity and cannot be counted as
services to another legal entity unless otherwise provided by the Rule 47 of
the Delhi School Education Rules as stated above.
5. In view of the above, petitioner cannot get the relief as prayed
for in the writ petition by joining his services which was rendered with Col.
Satsangi Kiran Memorial Public School, Satbari, Delhi with the respondent
no.1/school inasmuch as the case of the petitioner is not of being declared
surplus or being transferred from one school to another aided school as per
Rule 47 of the Delhi School Education Rules.
6. The writ petition is accordingly dismissed, leaving the parties
to bear their own costs.
MARCH 03, 2017 VALMIKI J. MEHTA, J
ib
