Delhi High Court
Surendra Singh vs The Manager, Haryana Shakti Sr. Sec. ... on 18 September, 2001
Equivalent citations: 95(2002)DLT135, 2002(64)DRJ355
Author: Vikramajit Sen
Bench: Vikramajit Sen
ORDER Vikramajit Sen, J.
1. Rule.
2. An adjournment is prayed for on behalf of Respondent-School on the grounds that Mr. R.S. Tomar is out of station. I have perused the previous proceedings and find that Mr. Tomar has not appeared in this case at all. The prayer for adjournment is declined. In any event since the Selection was carried out by the Selection Committee under Rule 96(3)(b) of the Delhi School Education Rules, 1973 (hereinafter referred to as 'the Rules'), it seems paradoxical for its Management to resist the writ petition. The adversaries in reality are the Petitioner and the School on the side and the Department of Education on the other. If this is not so there appears to be good reason to maintain that all recruitment is aided schools should be through the aegis of the Education Department which pays 95 per cent of the salaries.
3. There is much wisdom in the proverb that the person who pays the piper calls the tune. In aided school since the Government defrays 95 percent of the expenses through grants-in-aid it must be given the unfettered prerogative to lay down conditions which in their opinion are conducive for the proper administration of the School, and the systematic imparting of quality education. It is obviously for this reason that even in the case of private recognised schools which are receiving grants-in-aid, in the matter of appointment of teachers one Educationist (to be nominated by the Director) and one Representative of the Director must be included in the Selection Committee. This is prescribed in Rule 96(3)(b) of the Rules. In the present case there is no dispute that these two persons were part of the composition of the composition of the Selection Committee. The Petitioner had responded to advertisement published in the 'Jan Satta' dated 4.6.1999. On 16.6.1999 the Petitioner appeared in the interview before the Selection Committee of the Respondent-School. He was selected by the Selection Committee and was taken on duty from 1.7.1999. It appears that he continued to perform his duties for four months, even though salaries were not paid to him. Learned counsel appearing on behalf of Respondents states that the salary had been tendered to the Petitioner but has not been accepted by him. Be that as it may, it appears that the services of the Petitioner were discontinued with effect from November 1999. A letter of termination issued to him is dated 4.11.1999. It has been stated in this letter by the Manager of the Respondent-School that since the Petitioners were found to be overage at the time of appointment and relaxation had not been granted by the Competent Authority, the Petitioner were relieved from their services in the School.
4. Reliance has been placed learned counsel for all the parties on the Notification dated 21.12.1998 of the Government of India, Ministry of Personnel, Public Grievances and Pensions. It is by virtue of this Notification that the Petitioner can claim two year relaxation. Since this is so he must be bound by the Notification in its entirety, it would be anomalous and hence impermissible for him to claim the advantage of the age relaxation and simultaneously dispute the application of the Notification thereto. Paragraph three of the Notification reads as follows:
"3. Increase in the upper age limit:-
The upper age-limit for recruitment by the method of Direct Open Competitive Examination to the Central Civil services and civil posts specified in the relevant Service/recruitment rules on the date of commencement of the Central Civil Services and Civil posts (Upper Age-limit for Direct Recruitment) Rules 1998, shall be increased by two years.
Note:- "Direct Open Competitive Examination" for the purpose of these rules shall mean direct recruitment by Open Competitive Examination Conducted by the Union of Public Service Commission or the Staff Selection Commission or any other authority under the Central Government and it shall not include recruitment through Limited Departmental Examination or through shortlisting or by interview or by contract or by absorption or transfer or deputation."
5. On 16.6.1999, the date when the Selection Committee had met, at least the nominees appointed by the Direct of Education ought to have been aware or made aware of the requirement of this Notification. The Selection Committee after due deliberations had granted relaxation of not more than two years in the case of Petitioner. Learned counsel for Respondents have also relied on a Circular issued by the Additional Director of Education dated 17.10.1999, which reads as under:
" CIRCULAR The Govt. of India vide its notification No. 15012/6/98-Estt.(D) dated 31.12.98 notified Central Civil Services and Civil Services and Civil posts (upper age limit for direct recruitment) the rules 1993 which inter-alia provided that the upper age limit for recruitment by the method of direct open competitive examination to the Central Civil Services and Civil posts shall be increased by two years. The said notification was endorsed by the Dy. Secretary Services and was further circulated by the JDE(Admn) vide circular dated 17.5.99, It has come to the notice that in some of the aided school the recruitment of employees is being done keeping in view the increased age limit of two years. It is hereby clarified that:
"Direct Open Competitive Examination" shall mean direct recruitment by open competitive examination conducted by UPSC or SSC and shall not included recruitment through limited departmental examination or by interview or by contract or shall listing.
In aided school, all the appointments are to be finalised by Staff Selection Board under rule 96 through an interview. Therefore, upper age limit of two years shall not be extended to the existing upper age limit of recruitment for non teaching staff of 25 years and for teaching staff in case of Assistant Teachers and TGTs 30 years and for PGT's 35 year.
This issue with the prior approval of the Director of Education.
(N.S. TOLIA) ADDL. DIRECtor OF EDUCATION (ACT) SCHOOLS"
6. I am unable to appreciate why a clarification was required when the Notification of the Central Government was itself quite explicit. perhaps it was issued keeping in perspective the fact that a number of persons had been appointed by Selection Committees of various Private Aided Schools by granting age relaxation. Such persons' services have already been regularised, or not objected to. It is also explained by Shri Kamaldeep, and not without reason, that this Circular was necessitated because of the vast number of persons who are involved in the various Schools receiving grant-in-aid by the Respondents. One aspect which is borne out of the Circular is the admission contained in paragraph 2 thereof to the effect that in some of the Aided School the recruitment of employees is being done keeping in view the increased age limit of two years. This palpably refers even to the Petitioner and the Respondents. It is not in dispute that an employment has already been received by a number of persons on a misunderstanding or wrong interpretation of the two year relaxation. There must be very strong reason to treat the Petitioner differently to other persons similarly placed.
7. The identical question came up for consideration in C.W.P. 6626/99 in which Hon'ble Mr. Justice A.K. Sikri had, in almost identical circumstances, declared that the Petitioner before his Lordship was eligible to be considered for the post of L.D.C. and that he was rightly considered. In that case, by granting the benefit of two years, the age limit stood increased from 25 to 27 years. In the present case of the Petitioner, since he was appointed to the post of T.G.T., the effect of the relaxation was to increase the upper limit from 30 to 32 years. The impact of the Notification and of the Circular was fully considered in the previous writ petition and it was only thereafter that my Learned Brother A.K. Sikri, J. had directed that the appointment letter be issued to the Petitioner within two weeks. That writ petition had been allowed.
8. Learned counsel for the Respondent has drawn my attention to the fact that an L.P.A. No. 408/2000 had been filed against the said Order. The fact remains that the Appeals was dismissed with the observation that the Hon'ble Division Bench did not find any ground to interfere in the Order passed by the Learned Single Judge. There is also an observation that those Orders will not be treated as a precedent but it is nebulous as to whether this refers to the Orders of the Hon'ble Division Bench or to that of single Judge. In any case, I am in agreement with the reasoning of the Learned Single Judge. I am fortified by the consideration of Rule 104 of the Delhi School Education Rules which stipulate that the minimum and maximum of age of the limit for recruitment to a recognised private school, whether aided or not, shall be the limits specified by the Administrator for appointment to corresponding posts in Government schools. Applying this the Rule it appears that there may be no justification for laying down the distinction of two years being applicable to those candidates who have been selected by the U.P.S.C./D.S.S.S.B. and those appointed by the Selection Committees of the individual Schools. In the former case, the candidates are ordinarily appointed in Government Schools. Faith and discretion should be completely vested in the Selection Committee of the private school. The Notification and Circulars cannot go beyond the scope and ambit of the Delhi School Education Act and Rules. Although there is no prayer for declaring the Notification and the Circulars as ultra vires the Act and Rules, it is advisable that a construction be given to the Notification and Circulars which would save them from being declared ultra vires. If this exercise is followed the only construction possible is to apply Rule 104 of the Rules strictly. If so done then the appointment of the Petitioner by the Respondent-School would be fully legal. Although there appears to be considerable weight in the argument of learned counsel for the Petitioner that the Selection Committee in the present case was constituted under Rule 96 of the Rules, which would partake of the character of a Government Selection Board, I do not find the need to pursue the argument further. In the case in hand the Petitioner had already been appointed, all be it provisionally. Under Rule 98(4) of Delhi School Education Act, 1973 the approval of the appointment by the Director can be deemed to have been granted if not objected to within 15 days. This is a salutary provision intended to obviate the impasse of a person commencing his employment and later being told that his appointment was irregular and therefore non est. The Petitioner has already worked for four months, an aspect which cannot be lost sight of.
9. In these circumstances the Order whereby the Petitioner's services were terminated/dispensed with is quashed. The Petitioner is directed to report for duty within five days. He shall be entitled to salary from the date on which he will report for duty. The Petitioner may receive his salary from July 1999 to October 1999.
10. The petition stands disposed off. In the circumstances of the case there shall be no order as to costs.
11. The copy of this order be given dusty to the parties on payment of usual charges.