Victoria Girls Sr. Sec. School, Delhi vs Director Of Education

,,,,

V. Kameswar Rao, J",,,,

CM. Nos. 7444/2021 & 7445/2021,,,,

These two applications have been filed by the respondents seeking condonation of 20 days delay in filing the counter-affidavit to the petition.,,,,

For the reasons stated in the application, delay of 20 days is condoned. Counter-affidavit is taken on record.",,,,

Applications stand disposed of.,,,,

W.P.(C) 6712/2020,,,,

The present petition has been filed by the petitioners with the following prayers:,,,,

“In view of the above-mentioned facts and circumstances, it is therefore prayed that this Hon'ble Court may be pleased to:",,,,

(a) Issue a writ of certiorari or any other writ, direction or order quashing the impugned order dated 10.09.2020 issued by Respondent",,,,

No.1 as ultra vires and unconstitutional.,,,,

(b) Allow the Petitioners No. 2 to 4 to continue in reemployment till they attain the age of 62 years as approved by the Respondent No. 1.,,,,

(c) Pass any other order(s) in view of aforesaid facts and circumstances to meet the end of justice.â€​,,,,

In substance, the challenge in this writ petition is to the order dated September 10, 2020 bearing No/PS/DE/2020/ (“impugned orderâ€, for short)",,,,

issued by the Office of Director of Education, Government of NCT of Delhi / respondent No.1. The impugned order reads as under:",,,,

“OFFICE OF DIRECTOR OF EUDCATION GOVT. OF NCT OF DELHI OLD SECRETARIAT, DELHI-110054",,,,

No/Ps/DE/2020/ ORDER Dated:-10.09.2020,,,,

SUBJECT: DISCONTINUING THE PROVISION OF RE-EMPLOYMENT IN R/O TEACHERS/VICE,,,,

PRINCIPALS/PRINCIPALS,,,,

Whereas the system for Re-employment of Teachers was notified and later extended to Vice Principals and Principals in view of the large,,,,

number of vacancies which existed at that time in the Directorate of Education.,,,,

And Whereas the Department has recently been able to fill a large number of vacant posts through Direct Recruitments.,,,,

As such the system of Re-Employment of Teachers/Vice Principals/Principals is no longer required.,,,,

Now, therefore, the provision of Re-Employment of Teachers/Vice Principals/Principals is discontinued with immediate effect. Accordingly,",,,,

all types of Re-employment granted for the session 2020-21 in govt. and govt. aided schools shall cease to be in force with immediate effect,,,,

and no re-employment shall be granted to the Teachers/Vice Principals/principals in govt. and govt. aided schools, henceforth.",,,,

UDIT PRAKASH RAI,,,,

DIRECTOR (EDUCATION),,,,

xxx xxxxâ€​,,,,

The petitioner No.1 herein is a senior secondary school established in the year 1868 at Delhi for the education of Christian minorities and it was,,,,

affiliated to Central Board of Secondary Education in 1966. The petitioner No.1 school was granted minority status on September 03, 2008. The",,,,

petitioner Nos.2, 3 and 4 are teachers working with the petitioner No.1 school who have been re-employed after attaining the age the superannuation",,,,

in terms of Rule 110 of the Delhi School Education Rules, 1973 (“DSE Rulesâ€​, for short). Relevant portion of Rule 110 reads as under:",,,,

“110. Retirement age,,,,

(1) Except where an existing 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 tor 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:,,,,

(2) Notwithstanding anything contained in sub-rule (1), every teacher, laboratory assistant, Librarian, Principal or Vice-Principal employed",,,,

in such school shall continue to hold office until he attains the age of 60 years:,,,,

……,,,,

xxx xxx xxx â€​,,,,

It is the case of the petitioners and as contended by Mr. Romy Chacko, learned counsel for the petitioners that vide the impugned order the",,,,

Ser

No.",Name,"Date of

Retirement","Re-emp Approved

by Resp. No.1","Time still left for

Re-emp

(a),"Mrs. J Solomon

PGT (English)",31.07.2019,"01.08.2019-

31.07.2021",About 11 months

(b),"Mrs. Veena

Mishra PGT (Geography)",31.10.2019,"01.11.2019-

30.10.2021",01 years 02 months

(c),"Mrs. G F

Sampson (Principal)",31.03.2020,"01.04.2020-

01.03.2022",01 year 06 months

on the one hand has not taken any steps to fill up the posts lying vacant through promotion or otherwise and is illegally supporting the teachers to,,,,

continue in reemployment denying the chance for the other eligible candidates.,,,,

It is submitted by Ms. Ahlawat the retirement age of teachers as per the DSE Rules is 60 years. The intent of the scheme for re-employment of,,,,

Teachers / Vice Principals / Principals, initially introduced in government schools and later in aided schools subject to managing committee justifying",,,,

the need of reemployment, was in view of large number of posts lying vacant with no recruitment. However, currently in schools under the respondent",,,,

No.1, substantial number of teachers on all posts have been appointed through DSSSB direct recruitment/ promotion/ UPSC selection. It is against this",,,,

backdrop that the administration / respondent No.1 has taken a policy decision to do away with the reemployment with the retired teachers in,,,,

government and aided schools vide the impugned order.,,,,

She also stated that here in petitioner No.1/ school there are sufficient number of teachers and as such the “system of re-employment of,,,,

Teachers / Vice Principals / Principals is no longer requiredâ€​.,,,,

It is stated by Ms. Ahlawat that the impugned order was initially challenged before the Central Administrative Tribunal, Principal Bench, New",,,,

Delhi (“CATâ€, for short) in OA No.1436/2020 which OA stands dismissed vide judgment dated October 07, 2020. An appeal against the same",,,,

being W.P.(C) 9085/2020 is pending before the Division Bench. However, I may note here that on this Mr. Chacko has taken a plea and in fact he",,,,

filed an application being C.M.No. 34429/2020 (seeking modification of the order passed by this Court on November 24, 2020), wherein, by relying",,,,

upon the judgment of CAT in O.A No. 1328/2020 it was stated, that the petitioner Nos.2-4 in the instant case stand on a different footing from the",,,,

petitioners in W. P. (C) No. 9085/2020. He stated that petitioners in W.P.(C) No. 9085/2020 were government teachers who were working in,,,,

government schools and that they are not governed by Rule 110 of DSE Rules.,,,,

Ms. Ahlawat on the aspect of vested / accrued right of the petitioner Nos.2 to 4 stated that they did have existing right till the date of withdrawal,,,,

of policy i.e. September 10, 2020 and such right cannot be treated as “vested right†or immune from legislative intervention or interference. In this",,,,

regard, she has relied upon the Apex Court judgment in Shri Bakul Oil Industries v. State of Gujarat, 1987 (1) SCC 31 wherein the Court repelled the",,,,

contention that tax exemption granted by the State Government gives rise to a vested right. Further, it was inter alia held that such exemption was a",,,,

kind of concession and a concession can be withdrawn at any time and “no time- limit can be insisted upon before concession is withdrawnâ€​.,,,,

Further, reliance has been placed by Ms. Ahlawat on the Supreme Court judgment in Dr. S.K. Kacker v. AIIMS & Ors., 1996 (10) SCC 734,",,,,

wherein it was inter alia held that Administrative Resolution cannot override statutory Resolution nor can they have any legal efficiency. Policy,,,,

decision in any case does not give any vested right.,,,,

On the reliance placed by the petitioners on the Judgement in Andhra Pradesh Diary Development Corporation Confederation (supra) she stated,,,,

that the same is not applicable as the expression ""vested right"" has been used in a general sense and none of those decisions really considered whether",,,,

doctrine of vested right can be applied against legislative enactment or, administrative policy.",,,,

It is also submitted by Ms. Ahlawat by relying upon Shree Sidhabali Steels Ltd. v. State of U.P., (2011) 3 SCC 193, that where public interest",,,,

warrants, principles of promissory estoppel cannot be invoked. Government can change policy in public interest and doctrine of promissory estoppel",,,,

cannot be invoked for enforcement of a promise made contrary to law because none can act against notifications which are in the nature of,,,,

legislation. Reliance is also placed on the Apex Court judgment in Kothari Industrial Corporation Limited v. Tamil Nadu Electricity Board & Anr.,",,,,

(2016) 4 SCC 134, that it is for the State to determine what should be the policy for grant/ refusal of concessional power at different points of time and",,,,

not for the Court.,,,,

Having heard the learned counsel for the parties and perused the record, the issue which arises for consideration is whether the order dated",,,,

September 10, 2020 issued by the respondent Directorate is ultra-vires and unconstitutional and the petitioner Nos.2 to 4 need to be allowed to",,,,

continue on re-employment till they attain the age of 62 years.,,,,

Vide the impugned order; the respondents have decided to discontinue the provision of re-employment of Teachers / Vice Principals / Principals,,,,

with immediate effect. Further the re-employment granted for the session 2020-21 in government and government aided schools shall cease to be in,,,,

force with immediate effect.,,,,

The provision for re-employment was introduced by the Directorate of Education by issuing notifications dated January 29, 2007 and February 28,",,,,

2007 whereby it was decided to allow re-employment of all retiring Teachers of the Directorate up-to PGT level till they attain the age of 62 years,,,,

subject to fitness and vigilance clearance. There is no dispute that this scheme was made applicable to the Teachers in the aided schools as well. The,,,,

petitioner No.1 is an aided school and the same was made applicable to petitioner No.1 school as well.,,,,

I may clarify here, Rule 110 of the DSE Rules recognises the concept of re-employment but that is only when Teachers / Vice Principals /",,,,

Principals attain the age of superannuation on or after first day of November of any year, they shall be re-employed upto 30t h day of April of the year",,,,

immediately following. The above notifications which contemplates re-employment till 62 years is a departure from the provision of re-employment,,,,

stipulated in Rule 110 of DSE Rules. It can be said that the notifications have been issued in exercise of executive power by the Lieutenant Governor,,,,

after a decision of the Cabinet.,,,,

Having said that in the case in hand, the petitioner Nos.2 to 4 who are working as Teachers / Principal in petitioner No.1 school had retired on July",,,,

30, 2019 (petitioner No.2), October 31, 2019 (petitioner No.3) and March 31, 2020 (petitioner No.4) respectively. But on their application for re-",,,,

employment, the same was granted to them upon approval conveyed by the Directorate till they attain the age of 62 years. The details of their date of",,,,

retirement and re-employment is already reflected in para 6 above.,,,,

Mr. Chacko had made submissions with regard to the minority status of the petitioner No.1 school and privileges that are enjoyed. The submissions,,,,

are the following; (i) the petitioner No.1 being a minority aided school cannot be roped in the impugned order, inasmuch as the respondents nominee",,,,

has no role in the selection and appointment of an employee in the minority educational institution; (ii) the State cannot compel the minority institution,,,,

to accept policy decision which will infringe the fundamental rights; (iii) in view of the decision of the Supreme Court in TMA Pai (supra), it is",,,,

permissible for the State and its educational authorities to prescribe qualifications of a teacher but once the teacher possessing the requisite,,,,

qualifications is selected by the minorities for their educational institution, the State would have no right to veto the selection of teachers; (iv) the re-",,,,

employment of petitioner Nos.2 to 4 granted by the petitioner No.1 cannot be interfered with by the Government in the context of filling up of several,,,,

vacant posts by it which is in relation of public employment not applicable to minority institutions.,,,,

The aforesaid submissions of Mr. Chacko have no applicability in the facts of this case. This I say so for two reasons; (i) in view of the judgment,,,,

of the Supreme Court in TMA Pai (supra), the State can provide the conditions of service of teachers in aided minority schools; (ii) the selection of",,,,

petitioner Nos.2 to 4 for employment / re-employment had already taken place based on the notifications issued by the Directorate, upon approval by",,,,

the Directorate which process has never been objected to by the petitioner No.1 / School.,,,,

It is the conceded case of the petitioners and also submitted by Mr. Chacko that the State is within its right to prescribe the service conditions in,,,,

aided minority schools. So, it follows Rule 110 of the DSE Rules which governs the age of superannuation in recognised private schools shall be",,,,

applicable to the petitioner No.1 School. The notifications for re-employment after retirement were equally applicable to the petitioner No.1 / School,,,,

and also implemented. The re-employment of petitioner Nos.2 to 4 being in terms of the decision of the Directorate, its withdrawal vide the impugned",,,,

order shall be equally binding. Mr. Chacko is not correct to contend that the impugned decision cannot be implemented against the minority institutions,,,,

like the petitioner No.1 School as it infringes the fundamental right under Article 30 of the Constitution. If the plea is accepted, it would be in violation",,,,

of the Judgment of the Supreme Court in TMA Pai (supra), which clearly held that the Regulations framed by the State governing service conditions",,,,

for teaching and other staff shall prevail. This power of the State to frame regulations include the power to stipulate the provision of re-employment,,,,

and withdrawing the same. It is also not the case of the petitioner No.1 that the Directorate had raised any objection with regard to the appointment /,,,,

re-employment of petitioner Nos.2 to 4 both on eligibility, and suitability. The rights of petitioner No. 1 as an aided minority institution have not been",,,,

interfered with nor the Directorate has vetoed the appointments / re-employment of petitioner Nos. 2 to 4. The petitioner No.1 is required to follow the,,,,

decision to withdraw the provision of re-employment, though an aided minority institution. It cannot state that it will resort to re-employment and shall",,,,

not make appointments through Recruitment Rules. The submissions of Mr. Chacko in that regard are liable to be rejected.,,,,

In support of his submission, Mr. Chacko had relied upon the judgment of the Supreme Court in the case of Sindhi Education Society and Anr.",,,,

(supra). Suffice to state that the said judgment has no applicability on the issue which falls for consideration in this case, inasmuch as the Supreme",,,,

Court was dealing with the provisions of Rule 64 (1) (b) of DSE Rules and the question in Sindhi Education Society (supra) was whether Rule 64 (1),,,,

(b) of DSE Rules violate the rights of aided minority institution. Chapter IV of the Act (stipulating terms and conditions of service of employees of,,,,

recognized private school) or Chapter VIII of DSE Rules (stipulating recruitment and terms and conditions of service of employees of the private,,,,

schools other than unaided minority schools) never fell for consideration in that case. Mr. Chacko had also relied upon the judgment in the case of,,,,

Secretary, Malankara Syprian Catholic College (supra) which is also distinguishable on similar reasoning.",,,,

The other pleas of Mr. Chacko are that; (i) the impugned order sought to be implemented against the petitioner Nos.2 to 4 who have already been,,,,

granted re-employment; (ii) that the order states that large number of vacant posts have been filled up through direct recruitment and as such re-,,,,

employment is no longer required but the order does not state whether vacancy in aided minority schools have been filled up; (iii) the re-employment,,,,

given to petitioner Nos.2 to 4 was without any condition that their services shall be dispensed with on the appointment being made through direct,,,,

recruitment, therefore, re-employment cannot be curtailed; (iv) the re-employment having been granted till 62 years in favour of the petitioners a",,,,

vested right has accrued to continue till that age; (v) retrospective effect cannot be given to a subordinate legislation unless the statute confers powers,,,,

on the rule making authority to enact a rule in that manner; (vi) the petitioner had sought clearance for filling up of 39 vacancies on April 20, 2017 and",,,,

the respondent No.1 granted clearance only after two years on May 20, 2019 and subsequent thereto, 8 vacancies have arisen and hence the stand of",,,,

the Directorate that the School is not filling up the vacancies is untenable.,,,,

To consider the above submissions of Mr.Chacko, it is necessary to reproduce the relevant features of the impugned order:",,,,

(i) The department has been able to fill a large number of vacant posts through direct recruitment;,,,,

(ii) The provisions of re-employment of Teachers / Vice Principals / Principals is discontinued with immediate effect;,,,,

(iii) All types of re-employment granted for session 2020-21 in government and government aided schools shall cease to be in force with immediate,,,,

effect.,,,,

The decision of the Directorate to provide, provision for re-employment is outside the DSE Rules. It is a policy decision taken in the larger interest",,,,

of the students that their studies are not affected for want of regularly appointed Teachers / Vice Principals / Principals.,,,,

There cannot be any dispute that a policy decision can be reviewed from time to time. The impugned decision of the respondents is to recall its,,,,

earlier decision to provide re-employment. It is implied in such a decision that retired Teachers / Vice Principals / Principals shall give way to regularly,,,,

appointed Teachers / Vice Principals / Principals. The scope of judicial review with regard to change in policy is well settled. The Court can interfere,,,,

with the change in policy on being satisfied that it is irrational or perverse keeping in view the Wednesbury principle. (Ref: Punjab Communications,,,,

Ltd. v. Union of India & Ors., (1997) 4 SCC 727).",,,,

The Wednesbury principle postulates the Courts while considering whether the authority having so unlimited power has acted unreasonably. The,,,,

Court is entitled to investigate the action of the authority with a view to see if it has taken into account any matters that ought not to be disregarded.,,,,

I have already spelt out the reasons for the respondents to withdraw the provision of re-employment in government and government aided schools.,,,,

That is, they have filled up the posts of Teachers / Vice Principals / Principals through direct recruitment and promotion and there is no necessity to",,,,

continue the retired Teachers on re-employment. In effect the respondents have decided to resort to the recruitment rules for making appointment,,,,

which were not invoked / implemented for so many years. It is settled law that appointment should be made strictly in accordance with statutory,,,,

provisions and a candidate who is entitled for appointment should not be denied the same on any pretext whatsoever as usurpation of the post by,,,,

somebody else in any circumstance is not possible. (Ref: Purushottam v. Chairman, M.S.E.B. and Anr., (1996) 6 SCC 49). There is justifiable reason",,,,

for the respondents to withdraw its earlier decision to grant re-employment to retired teachers. The decision is not unreasonable, I see no infirmity in",,,,

the decision.,,,,

The plea of Mr. Chacko was, that re-employment given to petitioner Nos.2 to 4 was unconditional till 62 years and a vested right has accrued to",,,,

them to continue till that age. The said submission is unmerited for the reason that the respondents have appointed / filled up the very posts on which,,,,

the retirees were / are working. In such a situation the continuation of retirees on re-employment is not possible. Rather, it would be against public",,,,

interest to employ two persons on the same post burdening the exchequer. If the plea is accepted then the selection made through direct recruitment /,,,,

promotion cannot be given effect to till such time the period of re-employment of the retired Teachers expires. It is in larger public interest that,,,,

services of the re-employed Teachers need to be dispensed with. This I say so, a retired employee does not have any right to be re-employed. Even if",,,,

re-employed, it is for a fixed period and it is settled law that an appointment for a fixed period can be curtailed for good and valid reasons by following",,,,

principles of natural justice. (Ref: Venugopal v. AIIMS) 2008 (5) SCC 1 (Para 36). But in a case of this nature when large number of retired,,,,

Teachers have been re-employed, there is an exception to the rule of hearing to be given to such re-employed teachers, when their exits overriding",,,,

public interest for withdrawing the provision of re-employment to retired Teachers. In this regard, I may refer to the judgment of the Supreme Court in",,,,

the case of Kerala State and Ors. v. Managing Director, Kerala State Beverages (M and M) Corporation Limited and Ors. and connected matters,",,,,

(2019) 9 SCC 710, wherein in para 25 has held as under:",,,,

“25. The principle of procedural legitimate expectation would apply to cases where a promise is made and is withdrawn without,,,,

affording an opportunity to the person affected. The imminent requirement of fairness in administrative action is to give an opportunity to,,,,

the person who is deprived of a past benefit. In our opinion, there is an exception to the said rule. If an announcement is made by the",,,,

Government of a policy conferring benefit on a large number of people, but subsequently, due to overriding public interest, the benefits that",,,,

were announced earlier are withdrawn, it is not expedient to provide individual opportunities to such innominate number of persons. In",,,,

other words, in such cases, an opportunity to each individual to explain the circumstances of his case need not be given.",,,,

In Union of India v. Hindustan Development Corpn. [Union of India v. Hindustan Development Corpn., (1993) 3 SCC 499] it was held that",,,,

in cases involving an interest based on legitimate expectation, the Court will not interfere on grounds of procedural fairness and natural",,,,

justice, if the deciding authority has been allotted a full range of choice and the decision is taken fairly and objectively.â€​",,,,

The reliance placed by Mr. Chacko on the Judgment of the Supreme Court in the case of Paradeep Phosphates (supra) is misplaced. It is not,,,,

applicable in the facts as the issue in that case was with regard to change in the retirement age of regular employees, which is governed by service",,,,

rules and certified standing orders. The Court by holding the same to be service conditions and also by referring to section 9A of the Industrial,,,,

Disputes Act, 1947, held the retirement age cannot be changed without hearing the employees. Whereas, in the case at hand the petitioners 2 to 4 are",,,,

not regular employees; the re-employment is not governed by Service Rules and Certified Standing Orders and it is not a service condition.,,,,

The plea of Mr. Chacko that a subordinate legislation, unless the statute confers power, cannot be enacted with retrospective effect, is not",,,,

appealing as the provision of re-employment was not introduced by way of amendment to the statute or the rules. It was a policy decision which has,,,,

been withdrawn through executive order, that too prospectively, that is from the date the order is issued. The benefits earned during the re-",,,,

employment are not being taken away. The reliance on the Judgment of Tikamdas (supra) is misplaced. The same is not applicable in the facts.,,,,

I am also of the view that even the principle of legitimate expectation shall not be applicable in view of the nature of appointment, i.e., re-",,,,

employment for a fixed period and also for the reasons to revoke the policy of re-employment as detailed above. During the course of his submissions,",,,,

Mr. Chacko would submit that pursuant to the communication dated April 20, 2017 of the petitioner No.1 to the Directorate seeking its approval for",,,,

filling up 37 vacant posts, the same was received on May 20, 2019 after a period of two years. Pursuant thereto, after the approval of the",,,,

advertisement and constitution of selection Committee, 37 vacancies have been filled up in September 2019. The petitioner Nos.2 to 4 having",,,,

superannuated between July, 2019 to March, 2020, i.e., after the approval was granted by the Directorate for filling up 37 vacant posts, the petitioner",,,,

No.1 School could not take necessary steps to fill up the subsequent vacancies due to lockdown arising from COVID-19. So, no fresh appointment /",,,,

promotion has been made by the petitioner No.1 school on the posts on which the petitioner Nos. 2 to 4 are working. The petitioner Nos.2 to 4 should,,,,

be allowed to continue in the larger interest of the students.,,,,

I say nothing on the said submission. It is for the Directorate to consider the said aspect and convey to the school its decision preferably within,,,,

four weeks from today. The impugned order dated September 10, 2020 is intra-vires and constitutional. The relief prayed for cannot be granted by this",,,,

Court. The petition is dismissed with the observation above for compliance by the respondents.,,,,

No cost.,,,,

CM APPLs. 23321/2020 & 34429/2020,,,,

Dismissed as infructuous.,,,,