Dr. Mithilesh Swami Vs. Government of Nct of Delhi Through Chief Secretary, Delhi Secretariat, New Delhi and Others - Court Judgment

V.K. BALI, CHAIRMAN:

1. Dr. Mithilesh Swami, the applicant herein, through present Original Application filed by her under Section 19 of the Administrative Tribunals Act, 1985, seeks to quash and set aside order dated 04.08.2011 (Annexure A-1), vide which her case for automatic re-employment after retirement, pursuant to directions issued by this Tribunal, has been rejected. In consequence of setting aside the order aforesaid, the applicant obviously seeks direction to be issued to the respondents to give her all benefits, like salary, seniority etc.

2. Notice in this case was issued on 28.09.2011 for 21.10.2011. No one appeared on behalf of the respondents despite service on the date aforesaid, but on our asking, Ms. Harvinder Oberoi accepted notice and sought time to have instructions in the matter. The case was adjourned to 24.10.2011, on which date again, enabling the counsel defending the respondents to have instructions in the matter, it was adjourned to 31.10.2011. No reply has been filed. Counsel defending the respondents has been asking for time to have instructions to state whether the case herein would be covered in favour of the applicant by the decision of this Tribunal which has been upheld by the High Court, as also some such cases which came to be heard and disposed of by the High Court directly. Surely, if it was to be the case of the respondents that the case is not covered, reply could be filed. On 31.10.2011, when we required the counsel for respondents to state as to whether the matter would be covered or not, she would contend that there are reasons mentioned in the impugned order on which there has been no discussion, nor any adjudication, either by this Tribunal or by the Hon’ble High Court, and, therefore only the matter may not be covered. When we put it to her that in such a situation, reply ought to have been filed, and there would not be any justification to further adjourn the matter, the counsel would contend that she would support the order which in itself contains variety of reasons which were not taken into consideration either by this Tribunal or the Hon’ble High Court of Delhi.

3. We have heard the learned counsel representing the parties and with their assistance examined the records of the case.

4. Undisputed facts of the case reveal that the applicant is a retired Principal from Directorate of Education, Government of NCT of Delhi. She reached the age 0f 60 years and thus superannuated with effect from 01.05.2011. Government of NCT of Delhi had issued notification dated 29.01.2007 (Annexure A-2) permitting automatic re-employment of retiring teachers up to PGT level subject to fitness and vigilance clearance till the age of 62 years. It is the case of the applicant that based on the notification aforesaid, order dated 23.02.2007 (Annexure A-3) was issued extending the said benefit to all retiring teachers of the Directorate of Education, Government of NCT of Delhi. Inasmuch as, the applicant was going to complete 60 years in the month of April, 2010 and was required to superannuate on 30.04.2011, well before that date, i.e., on 29.03.2011, she applied with the office of the 2nd respondent for re-employment with effect from 01.05.2011. Copy of the said representation was sent to the 2nd respondent directly and through proper channel. When even after retirement of the applicant she did not get any response to her representation, she sent a reminder and sought directions in terms thereof. She also requested Secretary (Education) for considering her case for re-employment through representation dated 07.05.2011. When nothing was heard in the matter and her RTI application also was of no meaning and consequence, the applicant filed an Original Application bearing OA No.2467/2011, which came to be disposed of by this Tribunal vide order dated 13.07.2011, by recording the following order:

“Applicant under the extant rules seeks automatic re-employment. For the relief as asked for, applicant made repeated representations. This Tribunal is given to understand that no order on any of the representations of the applicant has been passed. Applicant, on the relief as asked for, placed reliance on judgment of this Tribunal in OA-1834/2010 decided on 9.12.2010 in the matter of T.P.S. Malik and Others Vs. Govt. of NCT of Delhi and anr., the judgment of Hon’ble High Court in WP(C) No.5808/2010 decided on 23.11.2010 in the matter of MCD Vs. Giri Raj Sharma and Ors. and also the judgment of the Hon’ble High Court in WP(C) No.1835/2011 decided on 25.5.2011 in the matter of Dr. Shiva Ditta Juneja Vs. Director of Education and anr.

2. In view of the facts and circumstances of this case, instead of issuing notice, we dispose of this Original Application at the admission stage itself directing the respondents to deal with the representation of the applicant made for automatic re-employment and pass orders thereon in accordance with law as expeditiously as possible and preferably within a period of three weeks from the date of receipt of a certified copy of this order. Surely, while deciding the representation, the respondents shall consider the applicability of the judgments relied upon by the learned counsel for applicant.

Order DASTI.”

Pursuant to directions given by this Tribunal, the respondents have passed the impugned order rejecting representation of the applicant, as mentioned above.

5. Learned counsel representing the applicant would vehemently contend that the present case is covered on all fours in favour of the applicant by number of judicial precedents, both of this Tribunal and the Hon’ble High Court of Delhi. In that regard, the learned counsel would first refer to judgment of a Division Bench of the High Court in WP(C) No.5808/2010 in the matter of MCD v Giri Raj Sharma and others, decided on 23.11.2010. The writ decided by the Division Bench was filed against the orders passed by this Tribunal allowing same relief as has been asked for by the present applicant. Contest in the matter was primarily as to whether vice-principal and principal would be covered under the term “teacher” mentioned in the notification and various orders for automatic re-employment. In the case aforesaid, however, the applicants before the Tribunal were head masters. The Hon’ble Division Bench in para 9 of its order observed that the issue in hand is apparently covered by a decision of this Court dismissing LPA No.415/2009 and upholding the judgment and order dated 17.7.2009 passed by a learned Single Judge of this Court which is reported as 2009 (VII) AD (Delhi) 246 Sushma Nayar vs. Managing Committee, Delhi Public School, Mathura Road and ors. We may refer to the relevant part of para 9, which reads as follows:

“The learned Single Judge as also the Division Bench has decided the question: Whether the Cabinet Decision notified on 29.1.2007 pertaining to Senior Secondary Schools would encompass within its fold a Vice Principal or a Principal. The answer was in favour of the Vice Principals and Principals. In brief, the learned Single Judge noted the definition of “Teacher” as defined under Section 2(w) of the Delhi School Education Act 1973 which defined a “Teacher” to include the Head of School. The learned Single Judge noted that as per Rule 110 of the Delhi School Education Rules 1973, Ministerial Staff in a School would retire on attaining the age of 58 years and sub-rule (2) of Rule 110 specifically provided that Teachers, Laboratory Assistants, Librarian, Principal or Vice Principal shall retire at the age of 60 years. It was opined that in view of the definition of “Teacher”, Head of a School would have to be treated as a Teacher. The Division Bench concurred.”

Counsel would also place reliance on yet another decision of a learned single Judge of the High Court in WP(C) No.1835/2011 in the matter of Dr. Shiva Ditta Juneja v Director of Education and another, decided on 27.05.2011. This was case of a post graduate teacher (PGT) who was promoted as principal of the school, and was due to retire on attaining the age of superannuation on 31.03.2011. Petitioner in the case aforesaid was held entitled to automatic re-employment, even though he was a principal. It appears that the Letters Patent Appeal filed against the order of the learned single Judge was dismissed. Counsel also places reliance upon decision of a Division Bench of the High Court in WP(C) No.4703/2011 decided on 08.07.2011. Relevant part of the order reads, thus:

“The matter in issue is no more res integra in view of the various judgments of this Court, which have been affirmed right till the Supreme Court. A Division Bench of this Court in Sheila Puri v. MCD: 1985 (9) DRJ 180 dealt with the issue of a Headmistress of a municipal school seeking extension of service under a resolution in terms whereof benefit was made available of such extended service to a teacher. It was held that merely be reason of promotion from that post does not mean that the teacher ceases to be a teacher and thus was held entitled to the extended service. A special leave petition preferred against this order was dismissed by the Supreme Court in Municipal Corporation of Delhi vs Sheila Puri: AIR 1989 SC 356.

There has also been a subsequent judgment of a learned Single Judge of this Court in Shshma Nayar v. Managing Committee, Delhi Public School, Mathura Road and Ors: 2009 VII AD (Delhi) 246 where the notification in question was examined and it was held that a Vice Principal, who had been a PGT earlier, would be entitled to the benefit. This judgment was upheld by a Division Bench of this Court in LPA No.415/2009 decided on 28.08.2009. In WP(C) No.1835/2011 Dr. Shiva Ditta Juneja v. Director of Education and Anr.: decided on 27.05.2011 where the abovementioned and other judgments have been considered and once again the benefit has been granted to a Principal, who was a PGT

The basic principle is that if the notification refers to automatic re-employment of a retiring teacher up to PGT level, the said teacher does not cease to be a teacher merely because he also happens to hold the post of a Vice Principal or a Principal. The irony of the matter is that despite the aforesaid settled legal position, officers of the respondents continue to take a decision like in the present case to deny the benefit compelling the parties to approach this Curt. A litigant has a right to agitate the matter in issue till the highest court, but once the legal principle is settled, the litigant is duty-bound to implement the same uniformly without compelling a citizen to approach the Court, spend money and further waste judicial time. It is more so for a public authority as otherwise it would be a contemptuous conduct.”

The High Court, it appears, feeling thoroughly dissatisfied with the attitude of the respondents in persisting with the matter which had attained finality, allowed the writ petition with costs quantified at Rs.25000/- and observed that “We have imposed the nominal costs because the respondents did not seek time to file the counter affidavit and make it clear that if in future any such further cases come up, despite the settled legal position, we will be constrained to burden the respondents with exemplary costs apart from taking action against the officer concerned who continue to take decisions contrary to settled legal position”.

6. Despite the clear enunciation in law reiterated on number of occasions, and with observations and directions as mentioned above, the counsel representing the applicant contends that the respondents would stick to their stand and would have no respect either for this Tribunal or for the High Court. Ms. Harvinder Oberoi, counsel representing the respondents, on the other hand, would contend that there are reasons mentioned in the order which were not subject matter of decision either by this Tribunal or by the High Court, and, therefore, the respondents were free to take a decision by rejecting the representation of the applicant. We are absolutely amazed at the attitude of the respondents, who, in our view, have defied the orders of this Tribunal and the Hon’ble High Court, and have rather assumed the role of a court superior even to the High Court. The conduct of the respondents, in our view, is contumacious. It also reflects no respect for the Tribunal and Courts constituted by the Statute and the Constitution. There was no occasion whatsoever for the respondents to have given reasons to blow their own trumpet despite a positive finding given repeatedly by the Hon’ble High Court that the term “teacher” would include vice principal and principal as well. The only choice with the respondents was to challenge the orders of the High Court before the Hon’ble Supreme Court. We are not commenting upon the reasons given by the respondents in the impugned order, but are just making a mention of the same herein, as we are of the considered view that once a matter is concluded by an authoritative pronouncement of the Tribunal and the High Court, the respondents are bound by it, and they are not entitled to deviate from it even for such reasons as may not have been mentioned, discussed and adjudicated upon by the Tribunal and the High Court. Only step that the respondent could take was to challenge the orders of the High Court before the Supreme Court. Reasons for rejecting representation of the applicant as mentioned in the impugned order are as follows:

“WHEREAS, Dte. of Education, GNCTD had preferred an appeal in the Hon’ble High Court of Delhi against the Hon’ble Tribunal’s order dated 09.12.2010 in O.A. No. 1834/2010 titled T.P.S. Malik and Others Vs. GNCTD and anr., and the Division Bench of the Hon’ble High Court in WPC No.2402/2011 in the matter of GNCTD and Ors. Vs. T.P.S. Malik has granted stay against the said order of the Ld. Central Administrative Tribunal.

WHEREAS, WPC No.5808/2010 titled MCD Vs. Giri Raj Sharma and Ors. deals with the grant of re-employment to teachers who have not reached the PGT level and retired as Head-masters/Head-mistress has no relevance in this context as the Notification dated 29.01.2007 issued by the Dte. of Education provides for the grant of automatic re-employment to the teachers upto PGT level.

WHEREAS, the judgment of the Ld. Single Judge of the Hon’ble High Court in WPC No. 1835/2011 in the matter of Dr. Shiva Ditta Juneja Vs. Directorate of Education and Anr. Decided on 27th May 2011 is also being challenged by filing the LPA before the Hon’ble Court as that case pertains to Vice Principals of Aided School for whom there was a separate set of order to engage them on contract basis only in the year 2007-08.

WHEREAS, in the case of Sushma Bhatia Vs NDMC, the Central Administrative Tribunal has also not allowed the re-employment of the Vice-Principal. In other matter Shakuntala Verma Vs. GNCTD, the Tribunal accepted the principle of Law that Principals and Vice-Principals are not entitled to automatic re-employment but granted the relief on other issue that individual having not availed benefit of promotion as Vice-Principal is still PGT, the same is also challenged before the Hon’ble High Court of Delhi.

WHEREAS, it has been found on record that Smt. Mithlesh Swami had represented on 29.03.2011, 02.05.2011 and 09.05.2011 to the Directorate of Education regarding automatic re-employment extendable to 2 years after retirement.

WHEREAS, the provisions of the notification issued vide No. F.30-3(28)/Co-ord/2006/689-703 dated 29.01.2007 in r/o the re-employment of teachers is reproduced below:-

“The lieutenant Governor, Government of National Capital Territory of Delhi is pleased to allow automatic re-employment of all retiring teachers 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 extending retirement age is received, whichever is earlier.”

As per the Notification dated 29.01.2007 above, it is clear that automatic re-employment scheme is applicable and meant for all retiring teachers up to PGT level, subject to fitness and vigilance clearance till they attain the age of 62 years. This Notification was issued as an administrative measure after assessing the acute shortage of teachers upto PGT level and Vice-Principal and Principal’s posts were excluded from the said Notification accordingly.

WHERERAS, the reasons for not giving extension to the Principals and Vice-Principals after sixty year of service after superannuation was (i) that Principals/Vice-Principals cannot claim parity with other categories of teachers, (ii) that if Principals/Vice-Principals are given re-employment after their superannuation then they badly affect the promotion chances of the other aspiring candidates waiting for the post of Principals/Vice Principals as these posts are very limited i.e. only one in one school, (iii) the Principal/Vice Principal act as head of school, enjoy the financial powers as per rules/law which is not the case of the teachers, (iv) the Principal/Vice Principal who functions as Head of School are non-vacation staff and thus they enjoy different leave entitlements whereas other category of teachers are vacation staff and do not enjoy the same benefit so that they could not be compared.

WHEREAS, the teachers upto PGT level are the main teaching staff of the department and due to administrative reasons they are only engaged in re-employment for the benefit of the students. This is done so also to tide over the vacant posts, so that the student may not suffer. This automatic re-employment is not a matter of right, because as per Rules the retirement age is 60 years only.

WHEREAS, it was a policy decision taken by the Government for allowing automatic re-employment upto PGT level taking in view the shortage of teachers upto PGT level.

WHEREAS, at present, there is no such scheme in existence under the Directorate of Education for grant of automatic re-employment extendable to 2 years after retirement as Vice Principals and Principals of Directorate of Education.”

7. For the reasons as mentioned above, we allow this Original Application with costs quantified at Rs.10000/- (Rupees ten thousand). The applicant would be forthwith re-employed for a period of two years and shall also be entitled to salary which she would have drawn on her re-employment from the very next day on which she superannuated. The costs, in the first instance, would be paid by the Government, which in turn would have every right to recover it from the salary of Shashi Kaushal, Addl. Director of Edn. (Sectt. Branch), General Administration Department, Government of NCT of Delhi, who passed the impugned order dated 04.08.2011.