Delhi High Court
Shri Dhan Singh vs Municipal Corporation Of Delhi And ... on 21 August, 2001
Author: Mukundakam Sharma
Bench: Mukundakam Sharma
ORDER Dr. Mukundakam Sharma, J.
1. The facts and the issues that arise for consideration in these writ petitions being similar, I propose to dispose of the same by this common judgment/order.
2. The petitioners were initially appointed as Assistant Teachers in DAV Senior Higher Secondary School, Samaypur Badli, Delhi. The petitioners worked in the said school for several years. However, by an order dated 1.8.1975 the primary section of the said school was taken over by respondent No. 1/Municipal Corporation of Delhi, and the services of all the teachers of the said school including that of the petitioners working in the primary section were transferred to Municipal Corporation of Delhi. However, in one of the terms and conditions of the said take over it was stated that the basic pay of the teachers would be protected under Rule 27 but the benefit of the services for seniority shall be admissible from their date of appointment in the Municipal Corporation of Delhi. Relevant portion of the same is extracted below for proper appreciation:
Item No. 568:- Municipalisation of Primary Branch of DAV High Secondary School, Samaypur, Badli:
1. Commissioner's letter dated 1821/C&C dated 30.9.1972. The Managing Committee of the DAV High Secondary School vide its Resolution has decided to hand over the Primary Section of the said school to the Municipal Corporation of Delhi Along with school building and the land.
.....
It is proposed to transfer the services of the teachers in the following conditions:-
1. The basic pay of the teacher shall have to be protected under rule 27 but the benefit of the services for seniority shall be admissible from their date of appointment in the MCD."
3. On 7.4.1976 an office order was issued by the respondents whereby it was informed that as per the decision of the Corporation dated 2.3.1976 the primary section of DAV Higher Secondary School had been sanctioned Corporationisation w.e.f. 1.8.1975. It was further ordered that the staff members of the primary section of the said school were taken over by the Corporation w.e.f. 1.8.1975. Names of the teachers were also shown in the said list wherein the names of the petitioners also appear and that their date of appointments were also shown respectively as 1.9.1967 and 4.12.1967 when they joined the school. A seniority list was also published by the respondents and in the said seniority list names of the petitioners were also shown and their seniority was reckoned from their initial appointment in the said school. A copy of the said seniority list is annexed to the writ petition as Annexure P-4.
4. It is stated in the writ petitions that many schools in Delhi were taken over by Municipal Corporation of Delhi in the like manner and the teachers of all those schools were being denied the benefit of seniority from the date of their initial appointment and were being given the seniority from the date of take over. It is stated that feeling aggrieved, a number of such teachers filed writ petitons in the High Court which were allowed holding that the provision of the resolution in this regard was bad and not binding. Copy of one of the aforesaid judgments is also placed on record as Annexure P-3 which arose out of C.W. 972/1973 titled Hardwari Lal Sharma Vs. MCD and others, disposed of on 5.8.1985. The said judgment refers to and relies upon an earlier judgment of this court in Kamla Devi Gupta Vs. MCD and others, . In the said decisions it has been held by this court that a provision of the resolution in that regard was bad and not binding and that the seniority of the teachers of the schools taken over by the Municipal Corporation of Delhi should be determined from the date of their initial appointment.
5. Somewhere around early part of 2000 a number of vacancies of Headmasters in the Municipal Corporation Primary Schools were available and in a meeting of Headmasters held on 6.2.2000 the Assistant Education Officer directed that the files of all the primary teachers appointed up to 31.12.1967 be sent for consideration of their case for promotion to the post of Headmaster. Pursuant to the said directions the files of the petitioners were also sent to the office of respondent No. 3. On 28.6.2000 the respondent No. 1 vide an office order gave promotion to 155 primary teachers to the posts of Headmasters on the recommendation of the DPC convened on 23.6.2000. But the names of the petitioners did not figure in the said list whereas persons having seniority numbers below the petitioners in the seniority list dated 5.8.1991 which is Annexure P-4 to the writ petition were promoted as Headmasters. On enquiries made by the petitioners in that regard from the office of respondents 2 & 3 they were informed that their services for the period during which they were working in the primary school of DAV before taking over was not being counted and their seniority is being reckoned only from the date the school was taken over by the MCD on 1.8.1975 and therefore, their case was not being considered for promotion. Being aggrieved by the aforesaid action these writ petitions were filed in this court.
6. Counsel appearing for the petitioners submitted before me that the respondents could not have denied the benefit of the past service rendered by petitioners prior to the take over of the school by MCD. According to him the terms of the take over that the petitioners would be given their seniority only from the date of the take over of the school was not given effect to and was not adhered to at any point of time as would be apparent from the seniority list published by the respondents themselves wherein the names of the petitioners have been shown correctly and they have been given seniority from the date of their initial appointment. He also relies upon the ratio of the decision in Kamla Devi Gupta (supra) in support of his contention that the petitioners are entitled to count their past service also for the purpose of their seniority.
7. Counsel appearing for the respondents however, submitted that since it was a specific term of the takeover that the petitioners would not be given their seniority prior to the date of take over by MCD the petitioners cannot claim the said benefit, in view of the specific terms on which their services were taken over by the respondents. He further submitted that the aforesaid seniority list which was published in 1991 was incorrect and that the names of the petitioners appear wrongly in the said seniority list. He also stated that the case of the petitioners could not be considered for promotion as the petitioners were absorbed in MCD on 1.8.1975 and therefore, their seniority could be counted only from the said date in terms of the specific stipulation in the terms of take over and also in view of rule 47 of Delhi School Education Rules which categorically provides that such teachers would be placed as juniors in the same category.
8. In the light of the aforesaid submissions I have considered the records as also the provisions of the Act to which reference was made during the course of arguments. A perusal of the terms of municipalisation of the primary branch of DAV Higher Secondary School would indicate and make it crystal clear that the services of the teachers of primary branch of DAV Higher Secondary School were transferred to Municipal Corporation of Delhi, for it is categorically stated therein that the proposal to transfer the services of the teachers of the primary branch of the said school was approved by the Municipal Corporation of Delhi. By the aforesaid terms even the basic pay of the teachers had been protected under rule 27. However, the benefit of the past services of the petitions for the purpose of seniority was denied to them and the same is made admissible only from the date of appointment in MCD. It is pointed out by the counsel appearing for the respondent that the petitioner has not specifically challenged the said clause of the terms in the writ petition.
9. It is true that in the reliefs sought for in the writ petition the petitioners have not specifically challenged the validity of the said part of the clause but sufficient pleadings have been incorporated in the writ petitions wherein the petitioners have stated that such denial of the benefit of past service is illegal and discriminatory. the parties are fully aware that such a plea is raised and they have argued on the said issue. If a relief is otherwise available to the petitioners, the same cannot be denied only because the petitioners have not specifically challenged the legality of the said part of the clause in the writ petition. Pleadings of the parties deal with legality or otherwise of the said part of the clause and arguments have also been advanced by the counsel appearing for the parties on the aforesaid aspect. Pleadings in a writ petition are also to be liberally construed in the sense that if on a construction of the pleadings it is found that a particular issue is raised, although may not be direct, but sufficient material has been placed on record in support of such a plea parties should not be precluded and debarred from raising the same before the court. When it is a case of transfer of service of the teachers from the school run by other authorities to the Municipal Corporation of Delhi, the benefit of past service could not have been denied to such persons whose services stand transferred. The said denial of the past services rendered by the petitioners in the school prior to take over and municipalisation is contrary to and contradictory to the stipulation that the basic pay of the teacher was protected by the respondents. Therefore, the respondents could not have treated the petitioners as a new case of appointment in the Municipal Corporation of Delhi and their cases were not the cases of fresh appointment but their services were transferred from the school run by another authority to Municipal Corporation of Delhi and when such transfers are made benefit of past service could not be denied.
10. Reference can be made to the decision of this court in Kamla Devi Gupta's case (supra) wherein a similar clause came up for consideration before this court. The clause that was considered in the said case was that the seniority of the teachers who were thus taken over in Municipal service would count w.e.f. the date of their joining the municipal service. The court considered the said clause which is similar to the one in hand and on consideration of the entire facts and circumstances of the case it was held by the Single Judge of this court that such resolution was neither passed nor was acted upon by the respondents. It was also held that there was nothing on record to show that the teachers were apprised of the aforesaid decision. It was also held that according to clause (ii) the teachers are deemed to have been transferred to the Municipal Corporation with their pay and grades protected, while according to clause (iii) their seniority had to be counted from the date of take over of the school. It went on to hold that the word 'transfer' itself indicates that it is not a new appointment and it carries with it the benefit of past service, particularly when pay and grades are also protected. The court further held that the petitioners therein could not be denied seniority for the period during which they were functioning in aided schools which were under the direct supervision of the Corporation. On the basis thereof the impugned order of refusing seniority and reckoning seniority from the date of take over was quashed. While coming the aforesaid conclusions the court also received support from the earlier decision of this court in two writ petitions being C.W.P. 229/1966 titled Yogesh Behari Lal Vs. MCD and C.W.P. No. 1183/1973 titled Chand Kaushik Vs. MCD. The aforesaid two writ petitions were heard by the Division Bench of this court and the order fixing seniority from the date of take over was quashed. In the said cases therefore, the seniority of the teachers had been fixed from the date of their initial appointment in the schools which were taken over. The ratio of the aforesaid decisions of this court in Yogesh Behari Lal (supra), Chand Kaushik (supra) and Kamla Devi Gupta (supra) are squarely applicable to the facts and circumstances of the present case. The clause which came up for interpretation in Kamla Devi Gupta's case is similar to the one that I have in my hand, therefore, there is no reason why the same interpretation should not be give to the same clause as was given in the earlier case by this court.
11. Counsel appearing for the respondent however, sought to rely upon the provisions of rule 47 of Delhi School Education Rules and also sought to distinguish the decision of Kamla Devi Gupta (supra) and the other cases referred to above on the ground that the said decisions were rendered in respect of cases which were not governed by the provisions of Delhi School Education Act and Rules whereas, so far the present case is concerned the said rules are applicable.
12. In order to appreciate the said contention I have looked into the provisions of rule 47 of the Rules also. The said rule 47 deals with the mode and manner of absorption of surplus teachers. Clause (1) thereof specifically lays down that where as a result of (a) the closure of and aided school or any class or classes in any aided school; or (b) withdrawal of recognition from and 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, would be absorbed, as far as practicable, in such Government school or aided school as the Administrator may specify. A proviso is added thereto wherein it is stated that where any such 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, 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 was so absorbed. The aforesaid rule 47 has connection and relevance with that of rule 46 which provides that no managing committee shall close down a recognised school, not being an unaided minority school, or an existing class in such school without giving full justification and without the prior approval of the Director, who would before giving such an approval, consult the Advisory Board. When a recognised school is closed in the aforesaid manner, the mode and the manner in which a student or an employee of the said school becoming surplus would be absorbed is provided in the aforesaid rule 47.
13. So far taking over the management of a school is concerned the same is governed by the provision of section 20 of Delhi School Education Act. Certain pre-conditions are to be satisfied before a school could be taken over by the Municipal Corporation of Delhi. It states that whenever the Administrator is satisfied that the managing committee or manager of any school, whether recognised or not, has neglected to perform any of the duties imposed on it by or under the Act or any rule made there under and that it is expedient in the interests of school education to take over the management of such school, he may, after giving the managing committee or the manager of such school, a reasonable opportunity of showing cause against the proposed action, take over the management of such school for a limited period not exceeding three years. The said period of three years could be extended up to a period of 5 years. It is also provided in sub-section (6) thereof that during the aforesaid period of the school remaining under the management of the authorised officer, the service conditions, as approved by the Administrator, of the employees if the school who were in employment immediately before the date on which the management was taken over, shall not be varied to the disadvantage of the said employees. It is crystal clear therefore, that section 20 & rule 27 operate in mutually exclusive fields and are two separate and distinct provisions having no relevance to each other.
14. It is the common case of the parties herein that the aforesaid school was taken over by Municipal Corporation of Delhi in terms of provisions of section 20 of the Act. Therefore, the service conditions of the petitioners who were working in the said school before the date on which the management was taken over by the Municipal Corporation of Delhi could not be varied to their disadvantage. The petitioners had worked in the said school fro several years and therefore, to deprive them of the benefit of the past service rendered by them would definitely work against their interest and to their disadvantage. So far rule 47 is concerned, in my considered opinion, the same has no application to the facts and circumstances of the case, particularly in view of the fact that the present is a case of take over of the school and not closure. None of the pre-conditions for closure and absorption is attracted in the present case and therefore, rules 46 & 47 have no application to the facts and circumstances of the present case.
15. Counsel appearing for the respondent in support of his contention that rules 46 & 47 would apply to the facts and circumstances of the case also relied upon a decision of the Supreme Court in New Bank of India Employees Union Vs. Union of India & others, . The aforesaid decision was rendered by the Supreme Court in the context of amalgamation of New Bank of India with Punjab National Bank. A scheme was prepared by the Central Government for placement of employees of transferor bank in the transferee bank and for determination of the inter se seniority of the employees of the transferor and transferee bank. It was contended on behalf of the New Bank of India employees Union whose services were amalgamated with Punjab National Bank that both the banks being nationalised banks and recruitment to both the banks being through the same Selection Board, there is no justification for treating the services of the employees of the transferor bank on 2:1 basis after amalgamation for the purpose of promotion. The aforesaid contention was negatived by the Supreme Court holding that the financial loss sustained by the transferor bank had brought the bank to a virtual collapse. It is held that at that point of time the Reserve Bank on taking a sympathetic view of the matter and instead of advising winding up of the bank and its liquidation advised for its merger with a stronger bank and the Government of India ultimately accepted the advised of the Reserve Bank. It was further held that on its amalgamation necessary provisions were required to be made for the placement of the employees of the transferor bank with the employees of the transferee bank and that at that stage the as well as the Union Government considered various factors like the total volume of business of both the banks, the rate of promotion in both the banks, the total number of employees in both the banks, as well as the impact if the entire length of service of the employees of the transferor bank is taken into account or one time reduced level is taken into account and finally evolved the scheme of placement and modalities for promotion. This would make it clear that the said decision was rendered in a different context altogether and has no application to the facts and circumstances of the present case.
16. In that view of the matter, I am of the considered opinion that the present is a case which was a case of transfer of the services of the petitioners to the Municipal Corporation of Delhi and therefore, there is no reasonable ground to deny the benefit of the seniority to the teachers of the school which were functioning as a primary section of the DAV School. The use of the very word 'transfer' itself would indicate that it was not a new appointment and it carries with it the benefit of past service particularly when the basic pay was also protected. The respondents never gave effect to the part of the clause that service would be counted only w.e.f. from the date of take over of the school as would be apparent from the very fact that in the seniority list prepared by the respondents the petitioners were given their due seniority from the date of their initial appointment as teachers. In the circumstances, to deny the seniority to the petitioners from the date of their initial appointment would violate the provisions of Articles 14 & 16 of the Constitution of India. Therefore, the writ petitions are allowed and the impugned action of the respondents in denying seniority and reckoning the same from the date of take over are quashed.
17. The consequence would be that the petitioners would be entitled to their seniority from the date of their initial appointment and consequential benefits thereof shall be granted to the petitioners. In terms thereof the petitioners shall also be considered for the purpose of their promotion to the post of Headmasters giving its effect from the date their juniors in the said seniority list published in 1991 were promoted. Such action shall be initiated immediately and necessary orders thereto shall be passed within three months. In the circumstances, however, there will be no order as to costs.