Delhi High Court
Victoria Girls Sr. Sec. School, ... vs Director Of Education on 31 May, 2021
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: May 31, 2021
+ W.P.(C) 6712/2020, CM APPLs. 23321/2020, 34429/2020, 7444/2021
& 7445/2021
VICTORIA GIRLS SR. SEC. SCHOOL, DELHI ..... Petitioner
Through: Mr. Romy Chacko and
Ms. Shakthi Chand Jaidwal, Advs.
versus
DIRECTOR OF EDUCATION ..... Respondent
Through: Mrs. Avnish Ahlawat, SC for GNCTD
(Service) with Mr. Nitesh Kumar
Singh, Adv. for DoE
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
JUDGMENT
V. KAMESWAR RAO, J
CM. Nos. 7444/2021 & 7445/2021
These two applications have been filed by the
respondents seeking condonation of 20 days delay in filing the
counter-affidavit to the petition.
For the reasons stated in the application, delay of 20 days
is condoned. Counter-affidavit is taken on record.
Applications stand disposed of.
W.P.(C) 6712/2020
1. The present petition has been filed by the petitioners with
the following prayers:
"In view of the above-mentioned facts and
circumstances, it is therefore prayed that this
Hon'ble Court may be pleased to:
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(a) Issue a writ of certiorari or any other writ,
direction or order quashing the impugned order
dated 10.09.2020 issued by Respondent No.1 as
ultra vires and unconstitutional.
(b) Allow the Petitioners No. 2 to 4 to continue in
reemployment till they attain the age of 62 years as
approved by the Respondent No. 1.
(c) Pass any other order(s) in view of aforesaid
facts and circumstances to meet the end of justice."
2. In substance, the challenge in this writ petition is to the
order dated September 10, 2020 bearing No/PS/DE/2020/
(„impugned order‟, for short) issued by the Office of Director of
Education, Government of NCT of Delhi / respondent No.1. The
impugned order reads as under:
"OFFICE OF DIRECTOR OF EUDCATION
GOVT. OF NCT OF DELHI
OLD SECRETARIAT, DELHI-110054
No/Ps/DE/2020/ ORDER Dated:-10.09.2020
SUBJECT: DISCONTINUING THE PROVISION OF
RE-EMPLOYMENT IN R/O TEACHERS/VICE
PRINCIPALS/PRINCIPALS
Whereas the system for Re-employment of
Teachers was notified and later extended to Vice
Principals and Principals in view of the large number
of vacancies which existed at that time in the
Directorate of Education.
And Whereas the Department has recently been
able to fill a large number of vacant posts through
Direct Recruitments.
As such the system of Re-Employment of
Teachers/Vice Principals/Principals is no longer
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required.
Now, therefore, the provision of Re-Employment of
Teachers/Vice Principals/Principals is discontinued
with immediate effect. Accordingly, all types of Re-
employment granted for the session 2020-21 in govt.
and govt. aided schools shall cease to be in force with
immediate effect and no re-employment shall be
granted to the Teachers/Vice Principals/principals in
govt. and govt. aided schools, henceforth.
UDIT PRAKASH RAI
DIRECTOR (EDUCATION)
xxx xxxx"
3. The petitioner No.1 herein is a senior secondary school
established in the year 1868 at Delhi for the education of
Christian minorities and it was affiliated to Central Board of
Secondary Education in 1966. The petitioner No.1 school was
granted minority status on September 03, 2008. The petitioner
Nos.2, 3 and 4 are teachers working with the petitioner No.1
school who have been re-employed after attaining the age the
superannuation in terms of Rule 110 of the Delhi School
Education Rules, 1973 („DSE Rules‟, for short). Relevant portion
of Rule 110 reads as under:
"110. Retirement age
(1) Except where an existing employee is entitled to have a
higher age of retirement, every employee of a recognised
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 tor such extension and has no mortal or
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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:
......
xxx xxx xxx "
4. It is the case of the petitioners and as contended by Mr.
Romy Chacko, learned counsel for the petitioners that vide the
impugned order the respondents have discontinued the provision
for re-employment of Teachers / Vice Principals / Principals after
superannuation and made applicable the order to those, who have
already been granted re-employment (petitioner Nos. 2, 3 and 4).
5. It is stated by Mr. Chacko that the reasoning provided for
the issuance of the impugned order is that large number of vacant
posts have been filled up by the respondents through direct
recruitment and as such the system of re-employment is no longer
required. It is stated by him, that the impugned order does not
state whether the vacancies in aided schools or minority aided
schools have been filled up or whether eligible applicants have
been denied employment in those schools.
6. Mr. Chacko submitted that the petitioner Nos.2 to 4 were
granted re-employment by management of petitioner No.1 after
obtaining prior approval of the competent authority/respondent
No.1 in terms of policy / order dated January 29, 2007 and that
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the re-employment of the said petitioners was not subject to any
terms and conditions that their services would be dispensed with
to accommodate direct recruits or eligible candidates. According
to Mr. Chacko, the petitioner Nos.2 to 4 have joined duties after
superannuation in terms of re-employment and are working since
then. Regarding their present status of re-employment, Mr.
Chacko has drawn my attention to a table as appended below:
Ser Name Date of Re-emp Approved Time still left for
No. Retirement by Resp. No.1 Re-emp
(a) Mrs. J Solomon 31.07.2019 01.08.2019- About 11 months
PGT (English) 31.07.2021
(b) Mrs. Veena 31.10.2019 01.11.2019- 01 years 02 months
Mishra PGT 30.10.2021
(Geography)
(c) Mrs. G F 31.03.2020 01.04.2020- 01 year 06 months
Sampson 01.03.2022
(Principal)
7. Mr. Chacko has also drawn my attention to orders issued
by the Office of Deputy Director Education dated July 30, 2019,
November 01, 2019 and March 20, 2020 (Annexure P-7)
whereby the requests for re-employment of the petitioner Nos.2
to 4 were approved by the Dy. Director. It is submitted by him,
that the stand of the respondents that the incumbents have no
right to continue once policy granting re-employment is revoked,
is nothing but arbitrary and violative of Article 14. He also stated
that petitioner Nos.2-4 can be terminated from service only in
accordance with the provisions of Delhi School Education Act,
1973(„Act‟, for short) and the DSE Rules framed thereunder in
the same manner in which services of other regular employees
can be terminated. Hence, the impugned order to the extent it
does away with the service of existing employees, who have
already been re-employed is also arbitrary and violative of Article
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14 of the Constitution.
8. Further, it is submitted by him, that the management /
petitioner No.1 having chosen to re-employ petitioner Nos.2 to 4
for two years after obtaining approval from competent authority,
the impugned order issued thereafter, interferes with the right to
administer vested in the management of petitioner No.1 in terms
of Article 30 of the Constitution.
9. Mr. Chacko submitted that Rule 110 of the DSE Rules
permits continuance of services of the petitioner Nos.2 to 4 till
the age of 62. Therefore, their re-employment by the
management in accordance with the procedure prescribed clothes
them with the vested right to continue till the age of 62. He
anchored his submission on the Apex Court judgment in Andhra
Pradesh Diary Development Corporation Confederation v.
Narasimha Reddy and Ors., 2011 (9) SCC 286, wherein it was
inter-alia held by the Court that any subordinate legislation
which takes away existing benefits with retrospective effect is
violative of Article 14 and 16 of the Constitution. The Court also
went to hold what constitutes a vested right.
10. He also submitted that the impugned order to the extent it
terminates the services of the petitioners without notice and
without granting a chance for the incumbents to be heard is
further, violative of principles of natural justice. (Ref: Pradeep
Phosphates Limited v. State of Orissa and Ors., (2018) 6 SCC
195).
11. It is submitted by Mr. Chacko that it is a settled law that
retrospective effect cannot be given to a subordinate legislation
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unless the statute confers power on the rule making authority to
enact any rule with retrospective effect (Ref: The State of
Madhya Pradesh and Ors. v. Tikamdas, (1975) 2 SCC 100). On
the impugned order, it is his stand that Section 29 of the Act does
not confer any such power on the respondent No.1 to grant
retrospective effect to the impugned order, and to that extent the
same is void ab initio.
12. That apart, Mr. Chacko submitted that in terms of the
decision of the Supreme Court in TMA Pai Foundation v. State
of Karnataka, (2002) 8 SCC 481, it is permissible for the State
and its educational authorities to prescribe qualifications of a
teacher but once the teachers possessing requisite qualification
were selected by the minorities for their educational institutions,
the State would have no right to veto the selection of teachers
13. It is submitted by him, that the employment in the
minority educational institution is absolute prerogative of the
management and the government cannot induct anyone in such an
institution. More so, the re-employment of the petitioner Nos.2
to 4 granted by the management cannot be interfered with by the
Government in the context of filling up several vacant posts by it
which is in the realm of public employment not applicable to
minority institution. He supported his contention by relying upon
Sindhi Education Society and Anr. (supra) wherein the Supreme
Court while interpreting Rule 64(1)b of the DSE Rules held that
roster wise reservation can be enforced against general or
majority category of government aided schools but not against
minority schools. It was also inter alia held that service in a
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minority institution is not a public employment. Reliance is also
placed on Secretary, Malankara Syprian Catholic College v. T.
Jose and Ors., (2007) 1 SCC 386, wherein the Supreme Court
inter alia held that minority management is free to choose its
staff based on their outlook and philosophy and the career
advancement prospects of the existing staff and the members of
the community has to yield to the management‟s freedom of
choice under Article 30.
14. That apart, it is stated vide an Additional Affidavit filed
by petitioner No.1 and submitted by Mr. Chacko that the
petitioner No.1 sought clearance for filling up 39 vacancies on
April 20, 2017 and respondent No.1 granted clearance only after
two years on May 20, 2019. Subsequent thereto, eight vacancies
have arisen in the petitioner No.1 school and therefore the stand
of the respondents that the petitioner No.1 school is not filling up
vacancies or that all vacancies are filled up, is bellied. According
to Mr. Chacko, the impugned order provides for ceasing of
reemployment granted for 2020-21 with immediate effect and the
effect that follows requires fresh recruitment which is a tedious
and time-consuming procedure. This will also cause huge
hardship and inconvenience to students as petitioner Nos.2 to 4
are currently taking classes in the petitioner No.1 school.
15. On the other hand, it is the case of the respondent and
contended by Ms. Avnish Ahlawat, learned Standing Counsel
appearing for the Directorate of Education that the present
petition is not maintainable. According to her, the petitioner
No.1/ School Management in connivance with the Teachers have
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filed the present writ petition on behalf of the teachers and they
have no right to continue as re-employed Teachers. The petitioner
No.1/school on the one hand has not taken any steps to fill up the
posts lying vacant through promotion or otherwise and is illegally
supporting the teachers to continue in reemployment denying the
chance for the other eligible candidates.
16. It is submitted by Ms. Ahlawat the retirement age of
teachers as per the DSE Rules is 60 years. The intent of the
scheme for re-employment of Teachers / Vice Principals /
Principals, initially introduced in government schools and later in
aided schools subject to managing committee justifying the need
of reemployment, was in view of large number of posts lying
vacant with no recruitment. However, currently in schools under
the respondent No.1, substantial number of teachers on all posts
have been appointed through DSSSB direct recruitment/
promotion/ UPSC selection. It is against this backdrop that the
administration / respondent No.1 has taken a policy decision to
do away with the reemployment with the retired teachers in
government and aided schools vide the impugned order.
17. She also stated that here in petitioner No.1/ school there
are sufficient number of teachers and as such the „system of re-
employment of Teachers / Vice Principals / Principals is no
longer required‟.
18. It is stated by Ms. Ahlawat that the impugned order was
initially challenged before the Central Administrative Tribunal,
Principal Bench, New Delhi („CAT‟, for short) in OA
No.1436/2020 which OA stands dismissed vide judgment dated
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October 07, 2020. An appeal against the same being W.P.(C)
9085/2020 is pending before the Division Bench. However, I may
note here that on this Mr. Chacko has taken a plea and in fact he
filed an application being C.M.No. 34429/2020 (seeking
modification of the order passed by this Court on November 24,
2020), wherein, by relying upon the judgment of CAT in O.A No.
1328/2020 it was stated, that the petitioner Nos.2-4 in the instant
case stand on a different footing from the petitioners in W. P. (C)
No. 9085/2020. He stated that petitioners in W.P.(C) No.
9085/2020 were government teachers who were working in
government schools and that they are not governed by Rule 110
of DSE Rules.
19. Ms. Ahlawat on the aspect of vested / accrued right of the
petitioner Nos.2 to 4 stated that they did have existing right till
the date of withdrawal of policy i.e. September 10, 2020 and such
right cannot be treated as "vested right" or immune from
legislative intervention or interference. In this regard, she has
relied upon the Apex Court judgment in Shri Bakul Oil
Industries v. State of Gujarat, 1987 (1) SCC 31 wherein the
Court repelled the contention that tax exemption granted by the
State Government gives rise to a vested right. Further, it was
inter alia held that such exemption was a kind of concession and
a concession can be withdrawn at any time and "no time- limit
can be insisted upon before concession is withdrawn".
20. Further, reliance has been placed by Ms. Ahlawat on the
Supreme Court judgment in Dr. S.K. Kacker v. AIIMS & Ors.,
1996 (10) SCC 734, wherein it was inter alia held that
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Administrative Resolution cannot override statutory Resolution
nor can they have any legal efficiency. Policy decision in any
case does not give any vested right.
21. On the reliance placed by the petitioners on the
Judgement in Andhra Pradesh Diary Development Corporation
Confederation (supra) she stated that the same is not applicable
as the expression "vested right" has been used in a general sense
and none of those decisions really considered whether doctrine of
vested right can be applied against legislative enactment or,
administrative policy.
22. It is also submitted by Ms. Ahlawat by relying upon
Shree Sidhabali Steels Ltd. v. State of U.P., (2011) 3 SCC 193,
that where public interest warrants, principles of promissory
estoppel cannot be invoked. Government can change policy in
public interest and doctrine of promissory estoppel cannot be
invoked for enforcement of a promise made contrary to law
because none can act against notifications which are in the nature
of legislation. Reliance is also placed on the Apex Court
judgment in Kothari Industrial Corporation Limited v. Tamil
Nadu Electricity Board & Anr., (2016) 4 SCC 134, that it is for
the State to determine what should be the policy for grant/ refusal
of concessional power at different points of time and not for the
Court.
23. Having heard the learned counsel for the parties and
perused the record, the issue which arises for consideration is
whether the order dated September 10, 2020 issued by the
respondent Directorate is ultra-vires and unconstitutional and the
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petitioner Nos.2 to 4 need to be allowed to continue on re-
employment till they attain the age of 62 years.
24. Vide the impugned order; the respondents have decided
to discontinue the provision of re-employment of Teachers / Vice
Principals / Principals with immediate effect. Further the re-
employment granted for the session 2020-21 in government and
government aided schools shall cease to be in force with
immediate effect.
25. The provision for re-employment was introduced by the
Directorate of Education by issuing notifications dated January
29, 2007 and February 28, 2007 whereby it was decided to allow
re-employment of all retiring Teachers of the Directorate up-to
PGT level till they attain the age of 62 years subject to fitness and
vigilance clearance. There is no dispute that this scheme was
made applicable to the Teachers in the aided schools as well. The
petitioner No.1 is an aided school and the same was made
applicable to petitioner No.1 school as well.
26. I may clarify here, Rule 110 of the DSE Rules recognises
the concept of re-employment but that is only when Teachers /
Vice Principals / Principals attain the age of superannuation on or
after first day of November of any year, they shall be re-
employed upto 30th day of April of the year immediately
following. The above notifications which contemplates re-
employment till 62 years is a departure from the provision of re-
employment stipulated in Rule 110 of DSE Rules. It can be said
that the notifications have been issued in exercise of executive
power by the Lieutenant Governor after a decision of the Cabinet.
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27. Having said that in the case in hand, the petitioner Nos.2
to 4 who are working as Teachers / Principal in petitioner No.1
school had retired on July 30, 2019 (petitioner No.2), October 31,
2019 (petitioner No.3) and March 31, 2020 (petitioner No.4)
respectively. But on their application for re-employment, the
same was granted to them upon approval conveyed by the
Directorate till they attain the age of 62 years. The details of
their date of retirement and re-employment is already reflected in
para 6 above.
28. Mr. Chacko had made submissions with regard to the
minority status of the petitioner No.1 school and privileges that
are enjoyed. The submissions are the following; (i) the petitioner
No.1 being a minority aided school cannot be roped in the
impugned order, inasmuch as the respondents nominee has no
role in the selection and appointment of an employee in the
minority educational institution; (ii) the State cannot compel the
minority institution to accept policy decision which will infringe
the fundamental rights; (iii) in view of the decision of the
Supreme Court in TMA Pai (supra), it is permissible for the State
and its educational authorities to prescribe qualifications of a
teacher but once the teacher possessing the requisite
qualifications is selected by the minorities for their educational
institution, the State would have no right to veto the selection of
teachers; (iv) the re-employment of petitioner Nos.2 to 4 granted
by the petitioner No.1 cannot be interfered with by the
Government in the context of filling up of several vacant posts by
it which is in relation of public employment not applicable to
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minority institutions.
29. The aforesaid submissions of Mr. Chacko have no
applicability in the facts of this case. This I say so for two
reasons; (i) in view of the judgment of the Supreme Court in
TMA Pai (supra), the State can provide the conditions of service
of teachers in aided minority schools; (ii) the selection of
petitioner Nos.2 to 4 for employment / re-employment had
already taken place based on the notifications issued by the
Directorate, upon approval by the Directorate which process has
never been objected to by the petitioner No.1 / School.
30. It is the conceded case of the petitioners and also
submitted by Mr. Chacko that the State is within its right to
prescribe the service conditions in aided minority schools. So, it
follows Rule 110 of the DSE Rules which governs the age of
superannuation in recognised private schools shall be applicable
to the petitioner No.1 School. The notifications for re-
employment after retirement were equally applicable to the
petitioner No.1 / School and also implemented. The re-
employment of petitioner Nos.2 to 4 being in terms of the
decision of the Directorate, its withdrawal vide the impugned
order shall be equally binding. Mr. Chacko is not correct to
contend that the impugned decision cannot be implemented
against the minority institutions like the petitioner No.1 School as
it infringes the fundamental right under Article 30 of the
Constitution. If the plea is accepted, it would be in violation of
the Judgment of the Supreme Court in TMA Pai (supra), which
clearly held that the Regulations framed by the State governing
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service conditions for teaching and other staff shall prevail. This
power of the State to frame regulations include the power to
stipulate the provision of re-employment and withdrawing the
same. It is also not the case of the petitioner No.1 that the
Directorate had raised any objection with regard to the
appointment / re-employment of petitioner Nos.2 to 4 both on
eligibility, and suitability. The rights of petitioner No. 1 as an
aided minority institution have not been interfered with nor the
Directorate has vetoed the appointments / re-employment of
petitioner Nos. 2 to 4. The petitioner No.1 is required to follow
the decision to withdraw the provision of re-employment, though
an aided minority institution. It cannot state that it will resort to
re-employment and shall not make appointments through
Recruitment Rules. The submissions of Mr. Chacko in that regard
are liable to be rejected.
31. In support of his submission, Mr. Chacko had relied upon
the judgment of the Supreme Court in the case of Sindhi
Education Society and Anr. (supra). Suffice to state that the said
judgment has no applicability on the issue which falls for
consideration in this case, inasmuch as the Supreme Court was
dealing with the provisions of Rule 64 (1) (b) of DSE Rules and
the question in Sindhi Education Society (supra) was whether
Rule 64 (1)(b) of DSE Rules violate the rights of aided minority
institution. Chapter IV of the Act (stipulating terms and
conditions of service of employees of recognized private school)
or Chapter VIII of DSE Rules (stipulating recruitment and terms
and conditions of service of employees of the private schools
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other than unaided minority schools) never fell for consideration
in that case. Mr. Chacko had also relied upon the judgment in the
case of Secretary, Malankara Syprian Catholic College (supra)
which is also distinguishable on similar reasoning.
32. The other pleas of Mr. Chacko are that; (i) the impugned
order sought to be implemented against the petitioner Nos.2 to 4
who have already been granted re-employment; (ii) that the order
states that large number of vacant posts have been filled up
through direct recruitment and as such re-employment is no
longer required but the order does not state whether vacancy in
aided minority schools have been filled up; (iii) the re-
employment given to petitioner Nos.2 to 4 was without any
condition that their services shall be dispensed with on the
appointment being made through direct recruitment, therefore, re-
employment cannot be curtailed; (iv) the re-employment having
been granted till 62 years in favour of the petitioners a vested
right has accrued to continue till that age; (v) retrospective effect
cannot be given to a subordinate legislation unless the statute
confers powers on the rule making authority to enact a rule in that
manner; (vi) the petitioner had sought clearance for filling up of
39 vacancies on April 20, 2017 and the respondent No.1 granted
clearance only after two years on May 20, 2019 and subsequent
thereto, 8 vacancies have arisen and hence the stand of the
Directorate that the School is not filling up the vacancies is
untenable.
33. To consider the above submissions of Mr.Chacko, it is
necessary to reproduce the relevant features of the impugned
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order:
(i) The department has been able to fill a large number
of vacant posts through direct recruitment;
(ii) The provisions of re-employment of Teachers /
Vice Principals / Principals is discontinued with
immediate effect;
(iii) All types of re-employment granted for session
2020-21 in government and government aided
schools shall cease to be in force with immediate
effect.
34. The decision of the Directorate to provide, provision for
re-employment is outside the DSE Rules. It is a policy decision
taken in the larger interest of the students that their studies are not
affected for want of regularly appointed Teachers / Vice
Principals / Principals.
35. There cannot be any dispute that a policy decision can be
reviewed from time to time. The impugned decision of the
respondents is to recall its earlier decision to provide re-
employment. It is implied in such a decision that retired Teachers
/ Vice Principals / Principals shall give way to regularly
appointed Teachers / Vice Principals / Principals. The scope of
judicial review with regard to change in policy is well settled.
The Court can interfere with the change in policy on being
satisfied that it is irrational or perverse keeping in view the
Wednesbury principle. (Ref: Punjab Communications Ltd. v.
Union of India & Ors., (1997) 4 SCC 727).
36. The Wednesbury principle postulates the Courts while
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considering whether the authority having so unlimited power has
acted unreasonably. The Court is entitled to investigate the action
of the authority with a view to see if it has taken into account any
matters that ought not to be disregarded.
37. I have already spelt out the reasons for the respondents to
withdraw the provision of re-employment in government and
government aided schools. That is, they have filled up the posts
of Teachers / Vice Principals / Principals through direct
recruitment and promotion and there is no necessity to continue
the retired Teachers on re-employment. In effect the respondents
have decided to resort to the recruitment rules for making
appointment which were not invoked / implemented for so many
years. It is settled law that appointment should be made strictly
in accordance with statutory provisions and a candidate who is
entitled for appointment should not be denied the same on any
pretext whatsoever as usurpation of the post by somebody else in
any circumstance is not possible. (Ref: Purushottam v.
Chairman, M.S.E.B. and Anr., (1996) 6 SCC 49). There is
justifiable reason for the respondents to withdraw its earlier
decision to grant re-employment to retired teachers. The decision
is not unreasonable, I see no infirmity in the decision.
38. The plea of Mr. Chacko was, that re-employment given to
petitioner Nos.2 to 4 was unconditional till 62 years and a vested
right has accrued to them to continue till that age. The said
submission is unmerited for the reason that the respondents have
appointed / filled up the very posts on which the retirees were /
are working. In such a situation the continuation of retirees on re-
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employment is not possible. Rather, it would be against public
interest to employ two persons on the same post burdening the
exchequer. If the plea is accepted then the selection made through
direct recruitment / promotion cannot be given effect to till such
time the period of re-employment of the retired Teachers expires.
It is in larger public interest that services of the re-employed
Teachers need to be dispensed with. This I say so, a retired
employee does not have any right to be re-employed. Even if re-
employed, it is for a fixed period and it is settled law that an
appointment for a fixed period can be curtailed for good and valid
reasons by following principles of natural justice. (Ref:
Venugopal v. AIIMS) 2008 (5) SCC 1 (Para 36). But in a case of
this nature when large number of retired Teachers have been re-
employed, there is an exception to the rule of hearing to be given
to such re-employed teachers, when their exits overriding public
interest for withdrawing the provision of re-employment to
retired Teachers. In this regard, I may refer to the judgment of
the Supreme Court in the case of Kerala State and Ors. v.
Managing Director, Kerala State Beverages (M and M)
Corporation Limited and Ors. and connected matters, (2019) 9
SCC 710, wherein in para 25 has held as under:
"25. The principle of procedural legitimate
expectation would apply to cases where a promise
is made and is withdrawn without affording an
opportunity to the person affected. The imminent
requirement of fairness in administrative action is
to give an opportunity to the person who is
deprived of a past benefit. In our opinion, there is
an exception to the said rule. If an announcement is
made by the Government of a policy conferring
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benefit on a large number of people, but
subsequently, due to overriding public interest, the
benefits that were announced earlier are
withdrawn, it is not expedient to provide individual
opportunities to such innominate number of
persons. In other words, in such cases, an
opportunity to each individual to explain the
circumstances of his case need not be given.
In Union of India v. Hindustan Development
Corpn. [Union of India v. Hindustan Development
Corpn., (1993) 3 SCC 499] it was held that in
cases involving an interest based on legitimate
expectation, the Court will not interfere on grounds
of procedural fairness and natural justice, if the
deciding authority has been allotted a full range of
choice and the decision is taken fairly and
objectively."
39. The reliance placed by Mr. Chacko on the Judgment of
the Supreme Court in the case of Paradeep Phosphates (supra) is
misplaced. It is not applicable in the facts as the issue in that case
was with regard to change in the retirement age of regular
employees, which is governed by service rules and certified
standing orders. The Court by holding the same to be service
conditions and also by referring to section 9A of the Industrial
Disputes Act, 1947, held the retirement age cannot be changed
without hearing the employees. Whereas, in the case at hand the
petitioners 2 to 4 are not regular employees; the re-employment
is not governed by Service Rules and Certified Standing Orders
and it is not a service condition.
40. The plea of Mr. Chacko that a subordinate legislation,
unless the statute confers power, cannot be enacted with
retrospective effect, is not appealing as the provision of re-
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employment was not introduced by way of amendment to the
statute or the rules. It was a policy decision which has been
withdrawn through executive order, that too prospectively, that is
from the date the order is issued. The benefits earned during the
re-employment are not being taken away. The reliance on the
Judgment of Tikamdas (supra) is misplaced. The same is not
applicable in the facts.
41. I am also of the view that even the principle of legitimate
expectation shall not be applicable in view of the nature of
appointment, i.e., re-employment for a fixed period and also for
the reasons to revoke the policy of re-employment as detailed
above. During the course of his submissions, Mr. Chacko would
submit that pursuant to the communication dated April 20, 2017
of the petitioner No.1 to the Directorate seeking its approval for
filling up 37 vacant posts, the same was received on May 20,
2019 after a period of two years. Pursuant thereto, after the
approval of the advertisement and constitution of selection
Committee, 37 vacancies have been filled up in September 2019.
The petitioner Nos.2 to 4 having superannuated between July,
2019 to March, 2020, i.e., after the approval was granted by the
Directorate for filling up 37 vacant posts, the petitioner No.1
School could not take necessary steps to fill up the subsequent
vacancies due to lockdown arising from COVID-19. So, no fresh
appointment / promotion has been made by the petitioner No.1
school on the posts on which the petitioner Nos. 2 to 4 are
working. The petitioner Nos.2 to 4 should be allowed to continue
in the larger interest of the students.
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42. I say nothing on the said submission. It is for the
Directorate to consider the said aspect and convey to the school
its decision preferably within four weeks from today. The
impugned order dated September 10, 2020 is intra-vires and
constitutional. The relief prayed for cannot be granted by this
Court. The petition is dismissed with the observation above for
compliance by the respondents.
No cost.
CM APPLs. 23321/2020 & 34429/2020
Dismissed as infructuous.
V. KAMESWAR RAO, J
MAY 31, 2021/aky/ak/jg
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