REPORTED
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% DATE OF RESERVE: January 25, 2010
DATE OF DECISION: February 22, 2010
+ RFA No.519/2005 and CM No.9978/2005
DELHI SIKH GURUDWARA MANAGEMENT
COMMITTEE ..... Appellant
Through: Mr. T.S. Doabia, Sr. Advocate with
Mr. Jagjit Singh Chhabra, Advocate
versus
MRS. HARVINDER KAUR BAJAJ ..... Respondent
Through: Mr. P.P. Khurana, Sr. Advocate with
Mr. Sachin Sood and Mr. Birander Singh
Rawat, Advocates
CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?
: REVA KHETRAPAL, J.
1. This appeal is directed against the judgment and decree of the learned
Additional District Judge dated 11th March, 2005.
2. The relevant facts leading to the filing of the appeal are as under.
3. The appellant, the Delhi Sikh Gurudwara Management Committee is a
body corporate constituted under the provisions of the Delhi Sikh Gurudwara
Management Act, 1971, which runs a number of educational institutions,
including Guru Harkishan Public School. The said school is admittedly an
RFA 519/2005 Page No. 1 of 26
unaided minority school within the meaning of that expression as used in the
Delhi School Education Act, 1973. The respondent was working as a Vice
Principal in Guru Harkishan Public School, Kalkaji, New Delhi when she was
offered the job of Principal of Mata Sundari Public School for Girls, which
was a school also run under the control and management of the appellant
Managing Committee. The said job was for a fixed term of five years. The
respondent accepted the offer of the appellant and accordingly the appellant
issued an appointment order dated 09.07.1996. The said appointment order,
being apposite, is reproduced hereunder:
"Delhi Sikh Gurdwara Management Committee
Gurudwara Mata Sundari Lane, New Delhi-110001
Ref.No.4933 Dated 9-7-1996
Mrs. Ravinder Kaur Bajaj
434, Mathura Road,
New Delhi - 110014
Subject: Offer of Appointment.
Madam,
With reference to your interview held on 10.6.96 we
are pleased to inform you that on the recommendation
of the Selection Committee Delhi Sikh Gurdwara
Management Committee, you are hereby offered the
post of Principal for Mata Sundri Public School, New
Delhi, in the Pay Scale of Rs.4000-200-6000 with
usual allowance as per Delhi Administration and other
perks similar to those which are allowed to other
Principals of Guru Harkishan Public School in Delhi:-
1. You appointment will be for period of five
RFA 519/2005 Page No. 2 of 26
years.
2. Your duties will be to effectively and efficiently
manage the School, with particular emphasis
on continuous improvement and up gradation
of the educational, religious and social
standards of the students.
3. You would have to abide by all Rules and
Regulations of Delhi Sikh Gurdwara
Management Committee and orders issued
thereafter from time to time.
4. You are required to adhere the basic tenets of
Sikhism.
You are requested to report for duty before 15th July,
1996 failing which this offer will be treated as
Cancelled.
Thanking you,
Yours faithfully,
-Sd/- -Sd/-
(PARAMJIT SINGH SARNA) (Dr. Jaspal Singh)
PRESIDENT GENERAL SECRETARY
Delhi Sikh Gurdwara Management Committee"
4. The respondent was thus appointed as the Principal of Mata Sundari
Public School for a period of five years. On their part, the appellant
Committee relieved her from her post of the Vice Principal, Guru Harkishan
Public School, Kalkaji by a memorandum dated 12.07.1996, which, inter alia,
reads as under:
"Ref. No.KLK/096/96-97 Dated 12.7.96
MEMORANDUM
This is with reference to your appointment
orders as Principal of Mata Sundri Public School vide
RFA 519/2005 Page No. 3 of 26
letter No.4988/2-1 dated 9.7.96 issued by Delhi Sikh
Gurudwara Management Committee and as per the
instructions of the Chairman, GHPS Kalkaji, you are
hereby relieved w.e.f. 12.7.96 (F.N.).
(Mrs. Harpreet Kaur)
Princiapl
Mrs. H.K. Bajaj
Vice Principal
C.C.
Accounts Section
Personal file"
5. By a subsequent general order dated 17.01.1997, the respondent was
transferred as Principal of Guru Harkishan Public School, Nanak Piao, Delhi.
The transfer order dated 17.01.1997 (Exhibit DW-1/3) reads as under:
"Ref No.498/11-13 Dated:-17.1.1997
ORDER
The following transfers have been made with
immediate effect
1. Mrs. H.K. Bajaj Transferred to G.H.P.
School, Nanak Piao, Delhi.
2. Mrs. Kamaljeet Kaur, Transferred from G.H.P.
School, Nanak Piao to
G.H.P. School, Fateh
Nagar, New Delhi
3. S. Jaswinder Singh May be relieved from his
duties till further orders
4. S. Ravinder Singh Transferred from G.H.P.
School, Tilak Nagar to
G.H.P. School, Karol Bagh,
New Delhi.
-Sd- -Sd-
(MOHINDER SINGH MATHAROO) (IQBAL SINGH)
PRESIDENT GENERAL
SECRETARY
Delhi Sikh Gurdwara Management Committee.”
RFA 519/2005 Page No. 4 of 26
6. The respondent, however, continued to work on the post of Principal,
Mata Sundari Public School till 25.01.1997 when she was relieved from the
said post and was directed to report for duty at Guru Harkishan Public School,
Nanak Piao, Delhi by a memorandum dated 25.01.1997, which is as under:
"Ref. No.673/11-13 Dated 25.1.97
MEMORANDUM
In pursuance to the orders of the President &
General Secretary – Delhi Sikh Gurdwara
Management Committee, vide their letter No.498/11-
14, dated 17.01.1997, Mrs. H.K. Bajaj, Principal,
Mata Sundri Public School is hereby relieved of her
duties from the 31st January, 1997 (A.N.) to join duty
on the next working day i.e. The 3rd February, 1997
(F.N.).
She is directed to report for duty at Guru Harkishan
Public School Nanak Piao, Delhi accordingly.
(IQBAL SINGH)
General Secretary
Delhi Sikh Gurdwara Management Committee”
7. The respondent, in pursuance of the aforesaid memorandum, took over
as Principal, Guru Harkishan Public School, Nanak Piao on 03.02.1997 by a
letter Exhibit DW-7. It is the admitted case of the parties that since not many
students could be admitted to the newly opened Mata Sundari Public School,
New Delhi, the appellant Committee took a conscious decision to close the
said school and utilise the services of the respondent as Principal, Guru
RFA 519/2005 Page No. 5 of 26
Harkishan Public School, Nanak Piao. While the respondent was serving as
such in Guru Harkishan Public School, she was served with a letter dated
04.06.1998 (Exhibit D-8) informing her that she would be retired from service
with effect from 30.06.1998 on her attaining the age of 60 years. The said
letter (Exhibit D-8) reads as under:
“Delhi Sikh Gurdwara Management Committee
Guru Gobind Singh Bhawan, Gurdwara Rikab Ganj,
New Delhi-110001
Ref.No.3709/11-13 Dated 4-6-98Mrs. Ravinder Kaur Bajaj
Principal
GHPS NANAK PIAOSUB: RETIREMENT FROM SERVICES
Madam,
In accordance with the rules and regulations as
well as the terms and conditions of your services, you
are hereby informed that you will be retiring from
service with effect from 30.6.98 (afternoon) because of
your having attained the age of 60 years.
The Chairman GHPS Nanak Piao has been requested
to make arrangements for making payment of all dues
to which you are entitled.As per the order of the Hon’ble High Court dated
26.5.98, you are required to attend the Departmental
Inquiry proceeding going on against you, as and when
you are called in this regard.Thanking you, Yours sincerely, -Sd/- -Sd/- (JASWANT SINGH SETHI) (BHARAT SINGHALIA) PRESIDENT GENERAL SECRETARY" RFA 519/2005 Page No. 6 of 268. The respondent was thus retired from the post of Principal, Guru
Harkishan Public School, Nanak Piao by the appellant Managing Committee
on the assumption that she had attained superannuation at the age of 60 years
and her services could not continue for any further period of time. The
respondent filed a suit claiming that she was entitled to continue till she
completed her five years tenure in terms of the offer made to her on
09.07.1996. The respondent alleged that the appellant had illegally and with
malafide intent sought to retire her from service with effect from 30.06.1998
contrary to the terms of her appointment, to which she had protested by her
letter dated 25.06.1998. The respondent claimed that she was entitled to
continue as Principal of a school under the appellant Management till
12.07.2001 and the appellant Management had no right to terminate her
services prior to the said date, as by then she had served as Principal for about
two years only while the remaining term of her service had yet to expire. The
respondent, therefore, stated that she was entitled to be reinstated in service
with all the service benefits till 12.07.2001. The respondent also alleged that
the appellant Management owed her a sum of Rs.1,19,439/-, the details of
which were mentioned in paragraph 10 of her plaint. She also claimed that she
was entitled to the benefits granted by the Vth Pay Commission as well as to
gratuity, leave encashment, etc. She further claimed a decree in the sum of
RFA 519/2005 Page No. 7 of 26
Rs.15,25,998/- from the appellant.9. The suit filed by the respondent was contested on merits by the
appellant. Certain preliminary objections were also taken to the
maintainability of the suit as being without any cause of action and that it was
bad for non-joinder of necessary parties. On merits, the essential facts were
not disputed. Thus, the appellant admitted that the respondent was appointed
as Principal of Mata Sundari Public School for Girls by a letter of appointment
dated 09.07.1996. It was, however, stated that due to the closing of the said
school, the respondent was accommodated in a new senior secondary school as
Principal, viz., Guru Harkishan Public School, Nanak Piao. It was, however,
denied that the respondent was entitled to continue as the Principal of a school
till 12th July, 2001 and, therefore, to be reinstated into service. It was stated
that as per service rules the respondent was due to retire on 30.06.1998, as she
had attained the age of superannuation on 26.06.1998. The appellant also
denied that the respondent was entitled to a money decree as prayed for in the
suit and claimed that the benefits of the Vth Pay Commission had already been
granted to her up-to-the date of her retirement, i.e., 30th June, 1998. The suit,
therefore, was misconceived and liable to be dismissed.
10. After the replication to the written statement was filed, the following
issues were framed by the learned trial court for adjudication:
RFA 519/2005 Page No. 8 of 26
“i. Whether the suit is not maintainable in its
present form? OPD.ii. What amount of reimbursement or of the
expenses and arrears of salary, the plaintiff is
entitled upto June, 1998? OPP.iii. Whether the services of the Plaintiff were validly
terminated before July, 2001? OPP.iv. If not, what emoluments, perquisites and
privileges, plaintiff is entitled to draw upto the
date of super annuation in July, 2001? OPP.
v. Whether the plaintiff is entitled to interest for
delay in payment of her dues? OPP.vi. Whether the plaintiff is entitled to the arrears of
pay as per the recommendation of the 5th Pay
Commission in the circumstances when the
serving employees of the defendant have not
been paid yet? OPP.vii. Whether the plaintiff is entitled to interest, if so,
at what rate, amount for which period ? OPP.
viii. Whether the suit is bad for mis-joinder of
necessary parties? OPD.ix. Relief.”
11. Arguments were advanced by Shri T.S. Doabia, Senior Advocate on
behalf of the appellant and by Shri P.P. Khurana, Senior Advocate on behalf of
the respondent.
12. At the outset, it was submitted by Mr. T.S. Doabia, the learned senior
counsel for the appellant that the only issue which arose for determination in
this appeal was whether the respondent was entitled to continue to act as
Principal for a period of five years when the school to which she was posted
had been closed. According to Mr. Doabia, in such an eventuality, no right to
RFA 519/2005 Page No. 9 of 26
sue accrued to the respondent and the suit was, therefore, not maintainable. Hesubmitted that the age of retirement in all other schools run by the appellant
Management was 60 years and, therefore, it was not open to the respondent to
claim that she be allowed to continue in service notwithstanding the fact that
she had attained the age of 60 years. It was also contended by Mr. Doabia that
the offer to the respondent on 09.07.1996 was a fresh appointment and on the
closure of the school the post on which she had been appointed would be
deemed to have been abolished.
13. The learned senior counsel for the appellant further submitted that the
age of retirement in the schools run by the appellant was 60 years under the
Delhi School Education Rules, 1973, which applied uniformly to aided as well
as unaided schools. It had been so held in Raj Soni vs. Air Officer Incharge
Administration and Anr., (1990) 3 SCC 261. Paragraph 11 of the judgment
had emphatically laid down that:
“11. The recognised private schools in Delhi
whether aided or otherwise are governed by the
provisions of the Act and the Rules. The respondent-
management is under a statutory obligation to
uniformly apply the provisions of the Act and the Rules
to the teachers employed in the school. When an
authority is required to act in a particular manner
under a statute it has no option but to follow the
statute. The authority cannot defy the statute on the
pretext that it is neither a State nor an “authority”
under Article 12 of the Constitution of India.”RFA 519/2005 Page No. 10 of 26
14. Next, reliance was placed by the learned senior counsel for the appellant
on the judgment of the Supreme Court in S.K. Rathi vs. Prem Hari Sharma
and Ors., (2001) 9 SCC 377, wherein it was laid down that the Government
order provided that the age of superannuation was 60 years for the post of
Principal and there being no decision of the Government giving extension to
the Principal, the permission granted by the High Court to the respondent to
continue to function as Principal, was liable to be set aside.
15. Reference was next made on behalf of the appellant to the judgment
rendered in the case of Joyachan M. Sebastian vs. Director General and Ors.,
(1996) 10 SCC 291, where the Supreme Court held that when the post to
which the appellant was holding came to be abolished and another post was
offered to the appellant, it must be deemed to be a fresh appointment.
16. It was also contended by Mr. T.S. Doabia, the learned senior counsel for
the appellant that the power of the employer to abolish the post was well
recognised as held by the Supreme Court in Godde Venkateswara Rao vs.
Government of Andhra Pradesh and Ors., (1966) 2 SCR 172 and in State of
Haryana vs. Shri Des Raj Sangar and Anr, (1976) 2 SCC 844. Mr.Doabia
pointed out that in Sangar’s case (supra), in paragraph 8, it was also held:
“There appears to be however, considerable force in
the second contention advanced on behalf of the
respondent that on the abolition of the post of
Panchayati Raj Election Officer, his services shouldRFA 519/2005 Page No. 11 of 26
not have been terminated. According to clause (a) (2)
of rule 3.14 of Punjab Civil Services Rules Vol. I Part
I as applicable to Haryana State, a competent
authority shall suspend the lien of a Government
servant on a permanent post which he holds
substantively if he is appointed in a substantive
capacity to a permanent post outside the cadre on
which he is borne. According to clause (e) of that
rule, a Government servant’s lien which has been
suspended under Clause (a) of that rule shall revive as
soon as he ceases to hold a lien on the post of the
nature specified in Sub-clauses (1), (2) or (3) of that
clause. The above provisions were considered by us in
the case of T. R. Sharma v. Prithvi Singh Civil
Appeals Nos.354 and 355 of 1971 decided on 17-11-
1975 reported in (1976) 2 SCR 716 and it was held
that in the absence of a written request by the
employee concerned, the lien on the post permanently
held by him cannot be terminated. It is nobody’s case
that any written request was made by the respondent
for terminating his lien on the post of Head Assistant.
As such, the lien of the respondent on the post of
Head Assistant should be held to have immediately
revived as soon as the post of Panchayati Raj Election
Officer was abolished.”17. Mr. Doabia adverted to the Delhi School Education Rules, 1973
(hereinafter referred to as the Rules) to contend that Rule 110 of the said Rules
prescribes the age of retirement of a Principal of a school to be 60 years, and
thereby the Rules prohibit the continuance of a person on the post of a
Principal beyond the age of 60 years. He contended that the appellant’s letter
dated 09.07.1996, which permitted the respondent to work as Principal beyond
the age of 60 years was in contravention of Rule 110 of the Rules and void ab
RFA 519/2005 Page No. 12 of 26
initio to that extent. The respondent was, therefore, rightly retired from thepost of Principal on her attaining the age of superannuation, i.e., 60 years in
accordance with Rule 110.
18. Mr. P.P. Khurana, the learned senior counsel for the respondent, on the
other hand, contended that the appellant had entered into an agreement with the
respondent by virtue of which she was entitled to work as Principal upto
12.07.2001, and as such the appellant had no right to terminate the services of
the respondent before the expiry of the five years as mentioned in the letter of
appointment dated 09.07.1996. The respondent’s termination on 30.06.1998
was in breach of the contract of service and, therefore, illegal and unwarranted.
He submitted that Rule 110, which was heavily relied upon by the learned
senior counsel for the appellant, was inapplicable in the instant case. The
learned senior counsel for the respondent also contended that the management
of minority unaided schools had unlimited powers in respect of the
employment of persons in the educational institutions run by them. In this
regard, he referred to the judgment of the Hon’ble Supreme Court in T.M.A.
Pai Foundation & Ors. vs. State of Karnataka & Ors., (2002) 8 SCC 481 and
in particular to the following paragraph:
“So far as the statutory provisions regulating the
facets of administration are concerned, in case of an
unaided minority educational institution, the
regulatory measure of control should be minimal andRFA 519/2005 Page No. 13 of 26
the conditions of the recognition as well as conditions
of affiliation to a university or board have to be
complied with, but in the matter of day-to-day
management, like appointment of staff, teaching and
non-teaching and administrative control over them, the
management should have the freedom and there should
not be any external controlling agency. However, a
rational procedure for selection of teaching staff and
for taking disciplinary action has to be evolved by the
management itself. For redressing the grievances of
such employees who are subjected to punishment or
termination from service, a mechanism will have to be
evolved and in our opinion, appropriate tribunals
could be constituted, and till then, such tribunal could
be presided over by a judicial officer of the rank of
District Judge. The state or other controlling
authorities, however, can always prescribe the
minimum qualifications, salaries, experience and other
conditions bearing on the merits of an individual for
being appointed as a teacher of an educational
institution.”19. After hearing the rival contentions of the parties and going through the
provisions of law and the precedents cited at the bar, I am of the view that the
contention of the appellant that by virtue of Rule 110 of the Rules, the
respondent would have to retire as Principal on her attaining the age of
superannuation, is not tenable. Rule 110 falls in Chapter VIII of the Rules,
which deals with RECRUITMENT AND TERMS AND CONDITIONS OF
SERVICE OF EMPLOYEES OF THE PRIVATE SCHOOLS OTHER THAN
UNAIDED MINORITY SCHOOLS, and reads as follows:
“110. Retirement age- (1) Except where an existing
RFA 519/2005 Page No. 14 of 26
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 for such
extension and has no mortal or 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.…………………………………………………………”
20. It cannot be lost sight of that it is the admitted case of the parties that the
schools under the management and control of the appellant are UNAIDED
MINORITY SCHOOLS. Section 2 of the Delhi School Education Act, 1973
defines the difference between an aided school, a minority school and an
unaided minority school. Section 2(d) defines “aided school” as follows:
“(d) “Aided School” means a recognised private
school which is receiving aid in the form of
maintenance grant from the Central Government,
Administrator or a local authority or any other
authority designated by the Central Government,
Administrator or a local authority.”A “minority school” is defined under Section 2(o) as follows:
“(o) “minority school” means a school established
and administered by a minority having the right to do
so under clause (1) of article 30 of the Constitution.”Section 2(x) defines an “unaided minority school” as under:
RFA 519/2005 Page No. 15 of 26
“(x) “unaided minority school” means a recognised
minority school which does not receive any aid.”21. Chapter V of the Act relates to PROVISIONS APPLICABLE TO
UNAIDED MINORITY SCHOOLS as is clear from the heading of the said
Chapter. Section 15 of Chapter V, significantly, provides for a written contract
of service and for the sake of ready reference is reproduced hereunder:
“15. Contract of service- (1) The managing
committee of every unaided minority school shall enter
into a written contract of service with every employee
of such school:Provided that if, at the commencement of this
Act, there is no written contract of service in relation
to any existing employee of an unaided minority
school, the managing committee of such school shall
enter into such contract within a period of three
months from such commencement:Provided further that no contract referred to in
the foregoing proviso shall vary to the disadvantage of
any existing employee the term of any contract
subsisting at the commencement of this Act between
him and the school.(2) A copy of every contract of service referred to
in sub-section (1) shall be forwarded by the managing
committee of the concerned unaided minority school to
the Administrator who shall, on receipt of such copy,
register it in such manner as may be prescribed.(3) Every contract of service referred to in sub-
section (1) shall provide for the following matters,
namely:(a) the terms and conditions of service of the
employee, including the scale of pay and
other allowances to which he shall be
entitled ;(b) the leave of absence, age of retirement,
pension and gratuity, or, contributoryRFA 519/2005 Page No. 16 of 26
provident fund in lieu of pension and
gratuity, and medical and other benefits to
which the employee shall be entitled;(c) the penalties which may be imposed on the
employee for the violation of any Code of
Conduct or the breach of any term of the
contract entered into by him;(d) the manner in which disciplinary
proceedings in relation to the employee
shall be conducted and the procedure which
shall be followed before any employee is
dismissed, removed from service or
reduced in rank;(e) arbitration of any dispute arising out of any
breach of contract between the employee
and the managing committee with regard
to-(i) the scales of pay and other
allowances,(ii) leave of absence, age of retirement,
pension, gratuity, provident fund,
medical and other benefits,(iii) any disciplinary action leading to the
dismissal or removal from service or
reduction in rank of the employee;(f) any other matter which, in the opinion of
the managing committee, ought to be, or
may be, specified in such contract.”22. Chapter VIII of the Act, which deals with Miscellaneous provisions,
contains Section 28 which empowers the Administrator with the previous
approval of the Central Government to make rules to carry out the provisions
of the Act. The said Rules, being the Delhi School Education Rules, 1973, are
split into 18 Chapters. Chapter VIII, which is captioned “RECRUITMENT
AND TERMS AND CONDITIONS OF SERVICE OF EMPLOYEES OF
RFA 519/2005 Page No. 17 of 26
THE PRIVATE SCHOOLS OTHER THAN UNAIDED MINORITYSCHOOLS” contains Rule 110 which has been heavily relied upon by the
learned senior counsel for the appellant. As is clear from the heading of the
Chapter itself, the said Chapter is inapplicable to unaided minority schools.
The schools run by the appellant admittedly fall in the category of unaided
minority schools, which are specifically dealt with in Chapter XI of the Rules,
which bears the heading “UNAIDED MINORITY SCHOOLS”. Rules 127 to
130 are contained in the said Chapter, all of which relate to unaided minority
schools. Rule 127 under this Chapter relates to “recruitment” and being
apposite is reproduced as under:
“127. Recruitment- (1) Recruitment of employees
in each recognised unaided minority school shall be
made on the recommendation of a Selection
Committee to be constituted by the managing
committee of that school.(2) The Selection Committee shall include:-
(a) in the case of recruitment of the head of the
school,-(i) the Chairman of the managing committee; (ii) an educationist, nominated by the managing committee; and (iii) a person having experience of administration of schools, nominated by the managing committee;(b) in the case of recruitment of any teacher
other than the head of the school-(i) the Chairman of the managing committee; (ii) the head of the school; and RFA 519/2005 Page No. 18 of 26 (iii) an educationist, nominated by the managing committee; (c) in the case of recruitment of any other employee:- (i) The Chairman of the managing committee or any member of the managing committee nominated by the Chairman; (ii) the head of the school. (3) The Selection Committee shall regulate its ownprocedure, and, in the case of any difference of
opinion amongst the members of the Selection
Committee on any matter, it shall be decided by the
trust or society running the school.
(4) Where a candidate for recruitment to any post
in an unaided minority school is related to any
member of the Selection Committee, the member to
whom he is related, shall not participate in the
selection and a new member shall be nominated in his
place by the managing committee of the school.
(5) The appointment of every employee of a school
shall be made by its managing committee.
(6) Where any selection made by the Selection
Committee is not acceptable to the managing
committee of the school the managing committee shall
record its reasons for such non-acceptance and refer
the matter to the trust or society running the school
and the trust or society, as the case may be, shall
decide the same.”
Rule 130 relates to “contract of service” and reads as under:
“130. Contract of Service- (1) Every contract of
service, referred to in sub-section (1) of section 15,
shall be entered into in the form specified in the
scheme of management before the employee is called
upon to join his duties.
(2) A copy of the contract of service, referred to in
sub-section (1) of section 15, shall be forwarded to the
Administrator by the managing committee of theRFA 519/2005 Page No. 19 of 26
concerned unaided minority school either by
registered post, acknowledgment due, or by a
messenger within thirty days from the date on which
the contract is entered into.
(3) On receipt of a copy of the contract of service,
the Administrator shall cause the particulars of such
contract to be entered in a register to be maintained
for the purpose, to be known as the “Register of
contracts”.
(4) The Administrator shall also cause the copies of
contracts received by him to be preserved in such
manner as he may specify.
(5) If on a scrutiny of the copies of contract
received by him, the Administrator is of opinion that
the contract does not comply with the provisions of
sub-section (3) of section 15, he may draw the
attention of the school concerned to the deficiencies in
the contract and require the school to modify the
contract so as to bring it in conformity with the
provisions of sub-section (3) of section 15, and
thereupon the school shall take urgent steps for the
rectification of the contract.
(6) When a contract has been rectified under sub-
rule (5), a copy of the contract, as so rectified shall be
forwarded to the Administrator for registration and on
receipt of the copy of such contract the Administrator
shall cause the contract to be registered in the manner
specified in sub-rule (3).”
23. In the instant case, clearly, in my view, Rule 110 cannot be pressed into
service by the appellant as the said Rule does not apply to unaided minority
schools. Accordingly, the contention of the appellant’s counsel that the
contract of service entered into between the appellant and the respondent,
which culminated in the issuance of the appellant’s letter dated 09.07.1996,
was in contravention of Rule 110 of the Rules and, therefore, void ab initio is
RFA 519/2005 Page No. 20 of 26
wholly without merit.
24. On facts, it is the admitted case of the parties that the respondent was
appointed as a teacher by the appellant in 1966. During the course of her
employment with the appellant, she was required to work at any of the schools
being run by the appellant. In the year 1994, she was selected for the post of
Vice-Principal and was posted to Guru Harkishan Public School, Kalkaji
Branch. In the year 1996, during her posting as Vice-Principal in the aforesaid
school, she was duly selected by a Selection Committee consisting of the
President, the Vice President, the General Secretary, the Ex Vice Chancellor of
the Delhi University and the Principals of Colleges under the management of
the appellant, for the post of a Principal, and an appointment letter dated
09.07.1996 containing the offer of appointment, which has been reproduced
hereinabove, was issued to her. The said Selection Committee was constituted
in terms of Rule 127 of the Rules and a contract of service referred to in sub-
section (1) of Section 15 was entered into between the parties, which, as per
the Rules, was to be recorded in the “Register of Contracts” maintained by the
Administrator. In Chapter V of the Act as well as in Chapter XI of the Rules,
which relate to unaided minority schools, there is no provision which prohibits
the employment of a person beyond the age of 60 years as Principal, and as a
matter of fact one of the provisions applicable to unaided minority schools as
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contained in Section 15 of the said Chapter is that the Managing Committee of
every unaided minority school shall enter into a written contract of service
with every employee of such school and every such contract of service shall be
forwarded by the Managing Committee of the concerned unaided minority
school to the Administrator, who, on receipt of such copy, shall register the
contract of service in such manner as may be prescribed. It is also a statutory
requirement that every contract of service shall, inter alia, provide for the terms
and conditions of the service of the employee, including the scale of pay and
other allowances to which he shall be entitled; the leave of absence, age of
retirement, pension and gratuity or contributory fund in lieu of pension,
medical and other benefits to which the employee shall be entitled. Rule 130
of the Rules at the risk of repetition, it is stated, provides that such a contract
of service shall be entered in the Register of Contracts to be maintained by the
office of the Administrator.
25. As held by the learned trial court, the offer of appointment dated
09.07.1996 makes an unambiguous statement that the respondent had been
appointed to the post of Principal for a period of five years. In 1996, when the
respondent was interviewed by the Selection Committee, it was well within the
knowledge of the appellant that the respondent had attained the age of 58 years
and would be attaining the age of 60 years in 1998. The appellant was on the
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look out for an experienced teacher who would be able to run a primary school
which was intended to be started for girls. There was, therefore, a conscious
decision taken by the appellant, after adopting the selection procedure
envisaged by the Act and the Rules, to appoint the appellant. The offer of
appointment dated 09.07.1996 categorically stated that the appointment would
be for a period of five years. The said offer was duly accepted by the
respondent. Resultantly a binding contract came into existence between the
appellant and the respondent, under the terms whereof the respondent was
entitled to serve as Principal till 12.07.2001. If, for reasons of their own, the
appellant chose to close the school, the respondent cannot be made to suffer for
the abolition of the post by the employer. If at all the appellant did not want to
avail the services of the respondent after Mata Sundari School was closed, the
respondent should not have been transferred to Guru Har Kishan Public
School, Nanak Piao, Delhi. The services of the respondent could not have been
terminated before 12.07.2001, and the act of termination of her services with
effect from 30.06.1998 on her attaining the age of 60 years must, therefore, be
viewed by this Court as in breach of the contract of service specifically entered
into between the parties.
26. In view of the aforesaid, the precedents cited at the Bar by the learned
senior counsel for the appellant, including the cases of Raj Soni, S.K. Rathi
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and Joyachan M. Sebastian clearly have no application to the facts of the
instant case. In Raj Soni’s case (supra), the Supreme Court held that
recognised public schools in Delhi, whether aided or otherwise, are governed
by the provisions of the Act and the Rules and the respondent Management in
the said case was, therefore, under an obligation to uniformly apply the
provisions of the Act and the Rules to the teachers employed in the school.
The age of superannuation could not be left to the whims of the employer to
enable him to retire different employees at different ages. The order of the
respondent retiring the petitioner in the said case at the age of 58 years was
quashed and it was held that in view of Rule 110 of the Rules the petitioner
was entitled to be retired at the age of 60 years. The said case, as stated above,
has no application to the instant case.
27. In S.K. Rathi’s case (supra), the question in issue was whether the
respondent was entitled to continue as an acting Principal of the college. A
distinction was made in the case between the post of Principal and the post of
teacher and it was held that since there was no decision of the Government
giving extension beyond the age of 60 years to a Principal, the decision of the
High Court permitting the respondent to function as Principal of the institution
after attaining the age of superannuation was liable to be set aside.
28. In the case of Joyachan M. Sebastian’s case (supra), the question for
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consideration before the Supreme Court was whether the appellant, who was
holding the post of Clerk Grade II, was entitled to seniority on the abolition of
his post, and it was held that the settled legal position was that on abolition of
the post the holder of the post has no right to continue on the post. Instead of
retrenching him as surplus, the Government had accommodated him in the
available vacancy at any other place and, therefore, it must be deemed to be a
fresh appointment for the purposes of seniority. Significantly also, in the
said case, the appellant had given an undertaking in the application that he
would not claim seniority in the transferee-region. In such circumstances, it
was held by the Supreme Court that the Tribunal had not committed any error
of law in not reckoning the seniority of the appellant from the date of his initial
appointment.
29. Likewise, in Des Raj Sangar’s case (supra), it was laid down that the
abolition of the post of Panchayati Raj Election Officer was an executive
policy decision and termination of services of the respondent was also an
executive policy decision, and the abolition did not confer on the person
holding the abolished post any right to hold the post.
30. None of the aforesaid cases, in my view, have any bearing on the issue
which arises in the instant case.
31. In conclusion, I have no hesitation in holding that there is no infirmity
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in the judgment of the learned Additional District Judge. It was rightly held
that the services of the respondent could not have been terminated before
12.07.2001 on the plea that she had attained the age of superannuation at 60
years.
32. No other point was urged by the learned senior counsel for the appellant
before me. I, therefore, hold that the termination of the respondent was illegal
and unwarranted. The respondent shall be entitled to the entire decretal
amount as held in the judgment of the learned Additional District Judge. The
respondent shall be at liberty to file an application for withdrawal of the
amount deposited in this Court, which is stated to be lying in a fixed deposit
and to the balance decretal amount, if any, payable by the appellant.
33. The appeal is dismissed as being devoid of merit. RFA No.519/2005
and CM No.9978/2005 stand disposed of accordingly.
REVA KHETRAPAL, J.
February 22, 2010
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