Delhi High Court
Dr. Ramanath Pandey vs Director, Directorate Of Education & ... on 7 September, 2011
Author: S. Muralidhar
Bench: S. Muralidhar
IN THE HIGH COURT OF DELHI AT NEW DELHI
W. P. (C) 40 of 1994 & CM 61/94, 719/99, 3162/01 & 7790/01
Reserved on: August 19, 2011
Decision on: September 7, 2011
DR. RAMANATH PANDEY ..... Petitioner
Through: Mr. Krishna Kant Shukla, Advocate.
versus
DIRECTOR, DIRECTORATE OF EDUCATION
& ORS. ..... Respondents
Through: Ms. Latika Chaudhary, Advocate for
Ms. Avnish Ahlawat, Advocate
for R-1 & R-2.
Mr. Mithun Barsaley, Advocate for R-3.
Mr. Puneet Agrawal, Advocate for R-4.
CORAM: JUSTICE S. MURALIDHAR
1. Whether Reporters of local papers may be
allowed to see the judgment? No
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in Digest? Yes
JUDGMENT
07.09.2011
1. The Petitioner who was employed as a Trained Graduate Teacher („TGT‟) in Sanskrit in Greenfields Public School („GPS‟), Vivek Vihar, Respondent No. 4, filed this writ petition on 15th December, 1993 challenging an order dated 30th July, 1993 passed by the Manager of the GPS Vivek Vihar informing him that he had been rendered surplus in the existing academic program and that his services were no more required with immediate effect.
2. The background facts are that the Petitioner was appointed as TGT Sanskrit in the GPS initially at Shahdara run by Greenfields Public Society („Society‟), Respondent No. 3, by a letter dated 16th April 1984. After completion of probation the Petitioner was confirmed as TGT in Sanskrit in April 1986. GPS was allotted land at Vivek Vihar and shifted there. It was also accorded recognition under the Delhi School Education Act, 1973 („DSEA‟). The Petitioner states that he was elected as a representative of the employees on the Provident Fund Trust of GPS Vivek Vihar and raised issues about W. P. (C) No. 40 of 1994 Page 1 of 8 mismanagement and irregularities. In 1992 he was elected as the Secretary of the GPS Teachers‟ Welfare Association. According to the Petitioner this annoyed the school authorities. On 22nd May 1993 he submitted a representation to the school authorities praying for release of the increment due to him. He submitted a further representation on 15th July, 1993 and was threatened by the school authorities that his services would be terminated. Consequently the Petitioner filed a civil suit for a permanent injunction to restrain GPS Vivek Vihar from terminating his services. In the written statement filed in the said suit, GPS Vivek Vihar informed the court that it had already terminated the services of the Petitioner on 30th July 1993 on the ground of his having been found surplus. Consequently on 14th September 1993 the Petitioner withdrew the said suit. Thereafter the present writ petition was filed.
3. It is submitted by the Petitioner that the GPS Vivek Vihar had acted arbitrarily and illegally in terminating his services. As a recognised school it had to mandatorily seek prior permission of the Director of Education („DoE‟), Respondent No.1, in terms of Section 8 (2) DSEA. It also had to comply with Rule 120 of the Delhi School Education Rules, 1973 („DSER‟). The Petitioner submitted that despite a representation made by him on 1st September 1993 to the DoE complaining about the illegal actions of Respondents 3 and 4, no action was taken against them.
4. The GPS Vivek Vihar and the Society, Respondents 3 and 4 respectively, filed a reply on 23rd March 1994 raising an objection to the maintainability of the writ petition. It was submitted that neither the Society nor GPS Vivek Vihar was „State‟ within the meaning of Article 12 of the Constitution and therefore no writ petition would lie against either of them. The Petitioner had earlier filed a suit for a similar relief which suit was later dismissed as withdrawn without reserving any liberty to the Petitioner to file a fresh petition. Lastly it was contended that the GPS Vivek Vihar was not a recognised school and therefore was not bound to follow the statutory requirements under the DSEA and DSER.
5. The DoE filed a reply stating that the GPS Vivek Vihar was a recognised school under the DSEA prior to it being shifted to a new site at Dilshad Garden in Delhi. It is submitted that after the construction of a new building at the new site at Dilshad Garden and the shifting of the school to the new site, the school "which existed at Vivek Vihar, W. P. (C) No. 40 of 1994 Page 2 of 8 Delhi, ceased to enjoy the status of a recognised school." However, the teachers continued to be those of a recognised school irrespective of the place to which they had been transferred. It is categorically stated that since the appointment of the Petitioner was in a recognised school, it was subject to the DSEA and DSER and therefore the removal of the Petitioner from service "must conform" to the statutory provisions. It is stated that the Petitioner had become surplus due to the partial shifting of a few sections from the GPS Vivek Vihar to GPS Dilshad Garden and that had the shifting been in full, the Petitioner would not have been declared surplus. The DoE claimed not to have been furnished with a copy of the impugned letter dated 30th July 1993 of the GPS Vivek Vihar to the Petitioner and explained that this was why the DoE was unable to take action.
6. As it transpired soon thereafter, the Petitioner's case was not an isolated one. Several other teachers of the GPS either at Vivek Vihar or at Dilshad Garden had been arbitrarily retrenched by the school authorities and had filed writ petitions in this Court challenging such retrenchment. A batch of eight such writ petitions was disposed of by a learned Single Judge of this Court by a judgement dated 15th October 1998 in C. W. P. No. 1923 of 1995 (Mrs. Athar Bano v. Lt. Governor & Ors.). A copy of the said judgment was enclosed with the Petitioner‟s application CM No. 719 of 1999 filed on 14th January 1999 seeking an early hearing.
7. The said judgment dealt with the background facts as emanating from a report submitted on 1st February 1995 by an inspection panel constituted by the Education Department on 4th January 1995. The report stated that GPS was started as a recognised school at Shahdara and was later allotted land at Vivek Vihar. Even after shifting to Vivek Vihar, the school at Shahdara continued to function as an unrecognised school. Also while most of the staff shifted to Vivek Vihar, some continued working at Shahdara. This was presumably done under an assurance that the teachers would enjoy the status of working in a recognised school. Later the GPS also got land allotted at Dilshad Garden. They then shifted some of the classes to Dilshad Garden. For the schools at Vivek Vihar and Dilshad Garden there was only one Principal, Mrs Barsaley. The problem was that under one recognition two schools were being run: one at Vivek Vihar and the other at Dilshad Garden. The Managing Committee („MC‟) of the GPS was directed by an order dated 17th November 1988 to shift the entire school, from W. P. (C) No. 40 of 1994 Page 3 of 8 Class I to Class XII, from Vivek Vihar to Dilshad Garden from the academic session 1989-90. The DoE directed that all teachers appointed in the recognised school initially at Shahdara and later on at Vivek Vihar be transferred to the only recognised school running at Dilshad Garden from Class I to Class XII by 1st April, 1989. The inspection panel constituted by the DoE on 4th January 1995 visited the schools and found that the above directions issued by the DoE on 17th November 1988 were not complied with and there were still teachers and staff at Vivek Vihar. The panel recommended that Mrs. Barsaley should not function as Principal of both schools but only of the one at Dilshad Garden. After 1st April 1995 there was to be no recognised school at Vivek Vihar.
8. Accepting the panel‟s report, the DoE on 20th February 1995 passed an order under Section 24 (3) DSEA directing the MC of GPS Dilshad Garden to immediately remove the defects and deficiencies pointed out, shift the employees in all the classes of the schools to GPS Dilshad Garden with effect from 1st April, 1995 and submit a compliance report within a period of thirty days. However, this Court found that even this order was not complied with. The learned Single Judge noticed in the judgment dated 15th October 1998 that the school at Naveen Shahdara was under the control of Mr. B. Kumar while the schools at Vivek Vihar and Dilshad Garden were under the control of Mrs. Barsaley. This Court held that "persons in management had with impunity flouted the orders passed the Education Authority. Funds have been siphoned off, teachers are not being paid their salaries. The persons and management think that they can do anything they like without any concern for the teaching staff and other members of the staff and also the students." The Court therefore directed the DoE to take over the management and assets of GPS Dilshad Garden and appoint a Principal in place of Mrs M. Barsaley. The DoE was to administer the school for a period of three years.
9. The learned Single Judge then proceeded to dispose of the individual writ petitions before it by the same common judgment dated 15th October 1998. C.W. P. No. 4716 of 1995 was by an Assistant Teacher of GPS who had been retrenched on 30 th August, 1993. While quashing the memorandum terminating her services, a direction was issued by the learned Single Judge to the Respondents to reinstate her in service at GPS Dilshad Garden with all consequential benefits. Other petitions by similarly placed teachers and staff were disposed of in like terms.
W. P. (C) No. 40 of 1994 Page 4 of 810. The judgement dated 15th October 1998 of the learned Single Judge was taken up in appeal by GPS by way of LPA No. 512 of 1998. The record of LPA No. 512 of 1998 has been examined by this Court. It is seen that in the said appeal, on 15th December 1998, the Division Bench passed the following interim order:
"Having regard to the facts and circumstances of the case, we stay operation of the judgment under appeal. At the same time, we also direct that the status quo regarding teachers as was prevalent before the judgment was pronounced would continue till the disposal of the appeal. Further, we direct that the interim orders that were passed in the writ petitions and were continuing when the impugned judgment was passed, would continue till the decision of this and other connected appeals. Having regard to the nature of the controversy and prima facie considering the manner in which schools at Dilshad Garden and Naveen Shahdara are being managed, as an interim measure, we deem it fit and proper to direct that these schools shall be managed under the overall supervision of an independent person and the teachers are also paid under the supervision of the said person. Accordingly, we direct the Director of Education to nominate within three days one or two officers not below the rank of Deputy Directors of Education, to supervise the management of the aforesaid schools and also to supervise the payment of salary to the teachers in terms of this order. We further direct that payment of arrears of salary shall be made to the teachers not later than two weeks from today. In case any teacher has grievance regarding non- payment, the nominee of the Director of Education who may be appointed in terms of this order may be approached. This interim arrangement would continue till the disposal of the appeal."
11. Thereafter on 12th October 1999, GPS Dilshad Garden informed the Division Bench that it was prepared to pay the aggrieved teachers salaries as well as the arrears if the Chairman of the GPS Society, and the Headmistress of GPS Naveen Shahdara undertook not to interfere in the financial and administrative affairs of GPS Dilshad Garden. The Headmistress further undertook to abide by the directions of the nominee of the Director of Education and handover over the records of the teachers and any other record as and when called for by the nominee. The Division Bench in its order dated 12th October 1999 further noted the statement of counsel for GPS, Dilshad Garden that:
W. P. (C) No. 40 of 1994 Page 5 of 8"The management of the Green Field Public School, Dilshad Garden shall absorb and give employment to all the teachers earlier working in Navin Shahdara as well as in Vivek Vihar school of the Society. They shall be paid salaries as well as the arrears within one month from today."
12. LPA No. 512 of 1998 was disposed of finally on 10th February 2004 by the Division, inter alia, observing as under:
"Much water has flowed since 1995 and it is not known whether the action of take over of the school was still warranted. The Writ Court direction had, therefore, become outdated by efflux of time and it is not possible to hold it valid in changed circumstances. We are convinced that any direction for taking over of the school could be now passed only on the basis of any new material which could establish any deficiency in mismanagement of the school and its being run in breach of the provisions of Delhi School Education Act and its rules."
13. The Court then issued a series of directions, inter alia, setting aside the order of the learned Single Judge directing taking over of GPS Dilshad Garden. It is directed that "status quo as on today in respect of running and management of their school and deployment of teachers and staff shall be maintained. The Director of Education shall however take steps to conduct a fresh inspection of the schools within 15 days from receipt of this order after notice and in presence of the parties concerned and formulate his report within two months thereafter and take appropriate follow up action in the on the basis of such report under law." Further, the DoE was to decide the issue of back wages and present wages of teachers. Importantly, the remaining position of the judgment of the learned Single Judge were maintained by the Division Bench.
14. Reverting to the case on hand, in CM No. 719 of 1999 filed in the present petition, the Petitioner contended that his case is no different from the Petitioner in C. W. P. No. 4716 of 1995 and that the present petition should also be disposed of in the same terms. There was no reply filed by the Respondents to the said application.
15. The present writ petition was dismissed for default on more than one occasion. The last time it was dismissed for default was on 22nd July 2009. It was restored on 25th July 2011 and heard finally on 19th August 2011. The parties were permitted to file a written W. P. (C) No. 40 of 1994 Page 6 of 8 note of their respective submissions. However no written submissions were filed. This Court has gone by the pleadings and documents on record.
16. In light of the judgement dated 15th October 1998 in C. W. P. No. 1923 of 1995 and batch as modified by the Division Bench in LPA No. 512 of 1998, the plea of Respondent Nos. 3 and 4 that the GPS at Vivek Vihar is not a recognised school requires to be rejected. The directions issued by the DoE from time to time as noted hereinbefore have clarified that till 1st April 1995 the recognition accorded to GPS Vivek Vihar continued and this was with a view to ensuring that the teachers at that school continue to be protected by the relevant provisions of the DSEA and DSER. The panel appointed by the DoE found, in its report dated 1st February 1995, that the management had resorted to illegal retrenchment of teachers at GPS Vivek Vihar and GPS Dilshad Garden. It specifically details the illegalities committed by the management of GPS both at Vivek Vihar and Dilshad Garden. On 22 nd April 1996 the Petitioner filed an additional affidavit stating that in 1986 he had been transferred to the GPS Dilshad Garden. Although the classes run at Vivek Vihar were part and parcel of the GPS at Dilshad Garden, both schools had the same Principal. On 5 th July 1991 he was again transferred from Dilshad Garden to Vivek Vihar. The facts being similar, there is no reason why the Petitioner should not be granted the same relief as was granted to other teachers and employees by the judgment dated 15th October, 1998. Further, in light of the statement made by the GPS, Dilshad Garden before the Division Bench in LPA No. 512 of 1998 on 12th October 1999 the teachers at the GPS, Vivek Vihar were to be absorbed in GPS, Dilshad Garden. The Petitioner‟s case would therefore stand covered by the aforementioned orders of the Division Bench in LPA No. 512 of 1998 as well.
17. Consequently it is declared that the letter dated 30th July, 1993 issued by the Manager GPS Vivek Vihar terminating the services of the Petitioner on the ground of his having been rendered surplus is unsustainable in law. It is hereby set aside. It is obvious that the Petitioner has attained the age of superannuation. Therefore there is no question of his being reinstated in service. It would now be up to the DoE to compute the monetary relief that should be paid to the Petitioner for the period during which he was illegally terminated.
W. P. (C) No. 40 of 1994 Page 7 of 818. At this stage it must be pointed out that the Petitioner had filed an affidavit on 1 st December, 1995 stating that after the termination of his services by the impugned order, the Petitioner had not accepted employment elsewhere. On 21st April, 1995 he was awarded a Research Associateship by the University Grants Commission which was for a period of three years and might be extended every year. The nature of the job was purely temporary. It would be for the DoE to require the Petitioner to furnish the full details of the period during which the said associateship continued and then determine what should be the appropriate directions which should be issued regarding payment of arrears of salary as if he was continuing in the school till the date of his superannuation and whether the whole or part of this amount should be paid to the Petitioner. The Petitioner will furnish to the DoE the complete particulars within a period of four weeks from today and the DoE will issue necessary directions in that regard within a further period of eight weeks thereafter which will then be complied with by the Respondents 3 and 4.
19. The writ petition is disposed of in the above terms, but in the circumstances, with no order as to costs. All pending applications are disposed of.
S. MURALIDHAR, J SEPTEMBER 7, 2011 W. P. (C) No. 40 of 1994 Page 8 of 8