*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 27th May, 2011.
+ W.P.(C) 1835/2011
DR. SHIVA DITTA JUNEJA ..... Petitioner
Through: Mr. Joginder Sukhija, Adv.
Versus
DIRECTOR OF EDUCATION AND ANR ..... Respondents
Through: Mr. Shariq Mohammad, Adv. for
R-1
Mr. K.K. Selopal, Adv. for R-2.
Ms. Madhumita Bhattacharjee, Adv.
for applicant in CM No.5348/2011.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may No
be allowed to see the judgment?
2. To be referred to the reporter or not? No
3. Whether the judgment should be reported No
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The petitioner having joined the respondent no.2 Sant Nirankari
Senior Secondary School, Pahar Ganj, Delhi – 110 055, a Government
W.P.(C)1835/2011 Page 1 of 15
aided school, as a Post Graduate Teacher (PGT) on 16th March, 1981 was
on 7th March, 2008 promoted as the Principal of the said school, due to
retire on attaining the age of superannuation on 31st March, 2011 of 60
years as prescribed in Rule 110 of the Delhi School Education Rules, 1973.
The petitioner relies on Notification No.F.30-3(28)/III/Coord/07(Part
file)/3426-3439 dated 31st December, 2007 of the respondent no.1
Directorate of Education (DOE) of Govt. of NCT of Delhi to claim
automatic re-employment till he attains the age of 62 years. The said
Notification is as under:-
“Notification
The Hon’ble Lt. Governor, Government of National
Capital Territory of Delhi is pleased to allow the automatic re-
employment of all retiring teachers in Government Aided
schools upto PGT level, subject to fitness and vigilance
clearance, till they attain the age of 62 years or till clearance
from Government of India for extended retirement age is
received, whichever is earlier, and subject to the following
conditions:-
1. This shall be effected only in those Aided schools wherever a
request is received in the Directorate of Education from the
Managing Committee for re-employment of teachers, clearly
indicating the Management’s willingness to meet the respectiveW.P.(C)1835/2011 Page 2 of 15
additional proportionate expenditure on the salary of the
teachers concerned.
The terms and conditions of re-employment are being
issued separately.”
2. The petitioner also relies on another Order No. F.30-
3(28)/III/Coord/07/Pt. file/180-220 dated 15th February, 2008 of the DOE
of Govt. of NCT of Delhi issued in pursuance to the Notification aforesaid
and conveying the instructions/guidelines of re-employment and which
also inter alia provides as under:-
“The teachers upto PGT level of the Government Aided
schools, GNCT of Delhi, who have retired on or after
31.01.2007, shall be eligible for consideration for re-
employment against clear vacancy upto his/her attaining
the age of 62 years.”
3. The petitioner on 24th December, 2010 accordingly applied for re-
employment and the Managing Committee of the respondent no.2 School
in the meeting held on 17th February, 2011 expressed willingness to bear
the respective additional proportionate expenditure (5%) on the salary of
the petitioner “for a period of one year on contract basis after approval of
the said proposal by the DOE” and conveyed the same to the petitioner
W.P.(C)1835/2011 Page 3 of 15
vide letter dated 21st February, 2011 and vide another letter dated 21st
February, 2011 sought approval from the respondent no.1 DOE to re-
employ the petitioner on contract basis w.e.f. 1st April, 2011 for one year.
4. The respondent no.1 DOE however vide its letter dated 10th March,
2011 declined to grant approval for re-employment of the petitioner for the
reason of the petitioner being “not eligible” for re-employment “as per the
Notification No. F-30-3(28)/III/Coord/07/1036-1053 dated 16th July,
2008”. The respondent no.2 accordingly vide its letter dated 14th March,
2011 to the petitioner withdrew its earlier letter dated 21st February, 2011
accepting the request of the petitioner for re-employment.
5. The present petition has been filed impugning the letter dated 10 th
March, 2011 of the respondent no.1 DOE and seeking directions for re-
employment. The writ petition was accompanied with an application for an
interim relief to restrain the respondent no.2 School from enforcing its
letter dated 14th March, 2011 issued on the basis of the order dated 10th
March, 2011 of the DOE. Notice of the petition and of the application for
W.P.(C)1835/2011 Page 4 of 15
interim relief was issued and it was further provided that appointment if
any made in place of the petitioner after 31 st March, 2011 would be subject
to further orders in this writ petition. In an intra court appeal being LPA
No.302/2011 preferred by the petitioner, the Division Bench vide order
dated 29th March, 2011 directed expeditious disposal of the writ petition.
Counter affidavits have been filed by the respondent no.1 DOE as well as
the respondent no.2 School. CM No.5348/2011 has been filed by Shri A.K.
Upadhyay, Vice-Principal of the respondent no.2 School and who upon
retirement of the petitioner on 31st March, 2011 has been officiating also as
the Principal of the school and claims to be eligible for appointment to the
post of the Principal, for impleadment and intervention. Though no formal
order has been made on the said application but counsel for Shri Upadhyay
as well as the counsels for the parties have been heard.
6. The question for consideration is whether the Notification/Order
aforesaid relied on by the petitioner and naming “all retiring teachers in
Government aided schools up to PGT level” would include the Principal
also; while the petitioner contends that it would, the counsel for the
W.P.(C)1835/2011 Page 5 of 15
respondent No.1 DOE and the counsel for Shri Upadhyay contend
otherwise. The counsel for the respondent no.2 School has chosen not to
address and rightly so, being caught between two warring employees. In
the counter affidavit of the respondent no.2 School also it is merely stated
that the acceptance of the proposal of the petitioner for re-employment was
withdrawn upon non-obtaining approval from the respondent no.1 DOE.
7. The counsel for the respondent no.1 DOE has invited attention to
another Order No. F.30-3(28)/Coord/2006/3398-3411 also dated 31st
December, 2007 of the respondent no.1 DOE as under:-
“The Hon’ble Lt. Governor, Government of National
Capital Territory of Delhi is pleased to allow the
appointment on contract basis of those Principals and
Vice Principals in schools under the Directorate of
Education, Government of Delhi who have attained the
age of 60 years and are retiring/have retired during the
academic year 2007-08, for a period of one year and
extendable for another one year based on performance
and subject to fitness and vigilance clearance. The terms
and conditions of such appointment are being issued
separately.”
W.P.(C)1835/2011 Page 6 of 15
8. It is the contention of the counsel for the respondent no.1 DOE that a
separate Notification having been issued qua Principals, Vice-Principals,
the Notification qua “teachers” would not extend to Principals/Vice-
Principals and it is for the said reason that approval to the proposal of
re-employment of the petitioner was declined. It is further contended with
reference to the Order dated 31st December, 2007 (supra) that the extension
of retirement age to Principals/Vice-Principals was limited to those retiring
during the academic year 2007-08 only.
9. The counsel for Shri Upadhyay besides reiterating the said argument
also relies upon the reply dated 24th December, 2010 of the DOE obtained
through the medium of Right to Information Act to the effect that there is
“no re-employment rule in Government aided schools of Delhi
Government for the post of Principal and Vice Principal”.
10. The question of extension of retirement age of teachers, Principals &
Vice Principals in the schools has been the subject matter of several dicta
W.P.(C)1835/2011 Page 7 of 15
and a number of which were also cited during the course of hearing and
which may be listed herein below:-
a) The Division Bench of this Court in Sheila Puri v. MCD
1985 (9) DRJ 180 was concerned with the
Headmistress of a Municipal School who had become the
School Inspectress and subsequently Senior Inspectress.
The question for consideration was whether the Resolution
extending the retirement age of teachers from 58 years to
60 years would apply to her. The Division Bench posed the
question as to whether she on becoming a Senior School
Inspectress ceases to be a teacher; does she become an
officer and not a teacher. It was held that if one is a teacher
to start with, she remains a teacher even if promoted to a
post which involves supervision of the school rather than
teaching in the schools. It was further held that it would be
a strange result that a Headmistress promoted to the post of
School Inspectress should have a lower retirement age. It
W.P.(C)1835/2011 Page 8 of 15
was further held that two sets of persons belonging to thesame class could not have different retiring age, whether
they are promoted or not. It was further held that an
Inspectress “must be a teacher” and does not cease to be a
teacher by becoming an Inspectress and merely because the
Resolution stated that the officers would retire at 58 years
of age and teachers at 60 years of age would not exclude
teachers performing administrative duties from being
teachers;
b) MCD preferred an appeal to the Apex Court against the
aforesaid judgment of the Division Bench and the Supreme
Court in the judgment reported in AIR 1989 SC 356 upheld
the judgment of the Division Bench of this Court;
c) A Single Judge of this Court in Sushma Nayar v.
Managing Committee, Delhi Public School Mathura
Road 2009 VII AD (Delhi) 246 was concerned with
W.P.(C)1835/2011 Page 9 of 15
another Notification dated 29th January, 2007 of DOEproviding for automatic re-employment up to the age of 62
years of all retiring teachers up to PGT level. The question
there also was whether the Notification qua teachers up to
PGT level would apply to Vice Principal of the school also.
It was again held that a Vice Principal remained a teacher
and hence was entitled to the benefit of the Notification
providing for re-employment up to the age of 62 years.
d) The said judgment of the Single Judge was also upheld by
the Division Bench in Judgment dated 28th August, 2009 in
LPA No.415/2009. Dealing with arguments of Article 14 of
the Constitution it was held that if a teacher qualified to be
promoted as Vice Principal would be denied the benefit of
automatic re-employment of two years whereas a teacher
who has not been found fit to be promoted would get the
benefit of re-employment, the same would violate Article
14.
W.P.(C)1835/2011 Page 10 of 15
11. Though in my opinion the aforesaid judgments are sufficient to
allow this writ petition but reference may also be made to some other
judgments cited at the Bar.
i) Judgment dated 23rd November, 2010 of another Division
Bench of this Court in W.P.(C) No.5808/2010 titled MCD
v. Giri Raj Sharma holding that even a Headmistress was
entitled to the benefit of the Notification extending the age.
ii) Maya Mathew v. State of Kerala (2010) 4 SCC 498 on the
general rules of interpretation;
iii) Shri Vidya Ram Misra v. Managing Committee, Shri
Jain Narain College (1972) 1 SCC 623 laying down that
even a wrongful dismissal is effective termination of the
contract of employment;
(iv) State Bank of India Vs. S.N. Goyal (2008) 8 SCC 92 on
the aspect of a contract of employment being not
W.P.(C)1835/2011 Page 11 of 15
specifically enforceable except when it is statutory or
governed by a statute.;
(v) Judgment dated 6th August, 2009 in W.P.(C)
No.7142/2008 titled Ms. Maya Prasad Vs. Govt. of NCT
of Delhi where referring to definition of “teacher” in
Section 2(w) of the Delhi School Education Act, 1973 as
including the Head of the School, it was held that the
Principal of the School would also be entitled to the benefit
of the Notification providing for re-employment of the
teachers;
(vi) Neeta Aggarwal Vs. Dr. (Mrs) Raj Wadhwa 52 (1993)
DLT 273 relating to re-employment of the Principal as the
Principal only;
(vii) Karnataka Power Transmission Corporation Ltd. Vs.
Ashok Iron Works Pvt. Ltd. AIR 2009 SC 1905 laying
W.P.(C)1835/2011 Page 12 of 15
down that the use of the word “includes” enlarges the
meaning of the expression defined unless the context
shows otherwise;
(viii) Satheedevi Vs. Prasanna (2010) 5 SCC 622 also on the
general principles of interpretation;
(ix) Usha Saini Vs. Govt. of NCT of Delhi 142 (2007) DLT
397 on the Recruitment Rules for the post of Principal i.e.
by way of promotion failing which by direct recruitment;
(x) Order dated 29th May, 2008 of the Delhi School Tribunal
in Appeal No.22/2008 titled Ms. Veena Aneja Vs. Lt.
Governor, Delhi holding the Principals to be not covered
by the Notification (supra) for re-employment of teachers;
(xi) Order dated 29th May, 2008 of the Delhi School Tribunal
in Appeal No.21/2008 titled Mrs. Chhaya Sukhija Vs. Lt.
Governor, Delhi to the same effect as aforesaid;
W.P.(C)1835/2011 Page 13 of 15
12. The counsel for the respondent no.1 DOE has argued that the
Notification providing for re-employment of the Principals for the year
2007-08 was not carried forwarded because of non-approval of the
Financial Department; that the judgments aforesaid are qua MCD Schools
where even a TGT can be a Principal; that the position is different qua
Schools of DOE; that the Principal is an administrative post above PGT;
that DOE is the guardian of school education and no case for interference
with its decision is made out; that no extensions have been granted to the
Principals of the aided schools after the year 2008.
13. The counsel for the respondent Shri Upadhyay has also contended
that the various cadres in a School comprise of TGT/PGT/Vice-
Principal/Principal and those in the higher cadre cannot take advantage of
Notification initiated for the benefit of the lower cadre; that Maya Prasad
(supra) was the case of a Headmaster who is different from the Principal.
14. In view of the dicta of the Division Bench of this Court noticed in
paragraph 10 hereinabove, none of the aforesaid arguments of the counsels
for the respondent no.1 DOE and/or Shri Upadhyay cut any ice.
W.P.(C)1835/2011 Page 14 of 15
15. The writ petition is therefore allowed. The order/direction of the
respondent no.1 DOE contained in its letter dated 10th March, 2011 is
quashed/set aside. The respondents are directed to in terms of the
Notification aforesaid, consider the case of the petitioner for re-
employment as the Principal of the respondent no.2 School and upon being
found fit, to re-employ the petitioner as the Principal of the respondent
no.2 School.
The writ petition is disposed of. No order as to costs.
RAJIV SAHAI ENDLAW
(JUDGE)
MAY 27, 2011
pp/bs
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