HENA DUTTA vs THE DIRECTOR OF EDUCATION AND ORS

$~12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 27.03.2024
+ W.P.(C) 7356/2012
HENA DUTTA ….. Petitioner

versus

THE DIRECTOR OF EDUCATION AND ORS …. Respondent

Advocates who appeared in this case:

For the Petitioner : Mr. S. Vijay Kanth and Mr. S. Krishna Murthy, Advocates

For the Respondent : Mr. N.K. Singh, Advocate for R-1/DoE.
Mr. Sachin Narwal and Mr. Nagender Saini, Advocates for R-2.

CORAM:
HON’BLE MR. JUSTICE TUSHAR RAO GEDELA

JUDGMENT

TUSHAR RAO GEDELA, J. (ORAL)

[ The proceeding has been conducted through Hybrid mode ]
1. This is a writ petition under Article 226 of the Constitution of India inter alia seeking the following prayers:-
“(a) A Writ of Certiorari calling for the records of the case and peruse the same;

(b) A Writ of Certiorari quashing the stipulation made by the respondents in the order dated 30.8.2012 (Annexure P-12), restricting the financial benefits on re-employment of the Petitioner for a period of two years after superannuation, w.e.f the date of assumption of work/duty being illegal, arbitrary, discriminatory, malafide, unjust and without jurisdiction and in violation of the Principles of Equity, Justice and Good Conscience;

(c) A Writ of Mandamus Directing the Respondents to pay to the petitioner arrears of salary, and all other allowances and benefits, treating her to be in service on re-employment, with retrospective effect i.e. the date when she attained the age of superannuation/60 years and was retired from service i.e. 30.4.2011;

(d) A Writ of mandamus commanding the Respondent to pay the costs of this petition to the Petitioner;

(e) Any other writ, order or direction which may be deemed fit and proper in the facts and circumstances of the case and in the interest of justice.”

2. It is the case of the petitioner that she was appointed as a Physical Education Teacher in respondent no.2-school on 15.07.1982 and worked as such for the next 29 years without any blemish, adverse report or any disciplinary action against her.
3. On 29.01.2007, the Directorate of Education, GNCT of Delhi had issued a notification, inter alia, stating that in pursuance of the Cabinet decision dated 04.09.2006, the Lt. Governor, GNCT of Delhi was pleased to allow automatic re-employment of all retiring teachers upto PGT level till they attain the age of 62 years or till clearance from the Government of India, whichever was earlier. Certain conditions were stipulated as an attachment thereto.
4. Vide the notification dated 31.12.2007, it was further clarified that the automatic re-employment of teachers upto the age of 62 years were also applicable to the teachers of aided school, subject to the fulfillment of the conditions that such a proposal/request in this regard is received from the Managing Committee of the School, clearly indicating its willingness to meet the respective additional proportionate expenditure on the salary of the teacher concerned.
5. On 28.01.2011, about 3-4 months before the petitioner was to reach the age of superannuation, the petitioner had filed a formal request with respondent no.2 for re-employment in terms of the aforesaid notification. Despite such request, the respondent no.2 did not forward the case with an approval to the Directorate of Education/respondent no.1.
6. Consequently, by the order dated 28.03.2011, the Managing Committee of respondent no.2 rejected the said request. The petitioner was constrained thereafter to approach the Directorate of Education. Since there was no further response or action on behalf of the Directorate of Education, the petitioner was constrained to file the writ petition bearing W.P.(C) No. 4853/2011 on 11.07.2011.
7. Vide the order dated 21.11.2011, the petitioner’s writ petition bearing W.P.(C) 4853/2011 alongwith the other batch was allowed by this Court with the following directions:-
“In the circumstances the present Petitions are allowed and a mandamus is issued to the Respondents directing that the Petitioners shall be entitled to benefit of the Notification dated 29th January, 2007 of automatic re-employment for a period of two years subject to the terms and conditions as set out in the Notification.

With the above directions the Writ Petitions are disposed of.”
8. Consequent thereto, the petitioner submits that she was re-employed on 11.09.2012. According to the petitioner this was in pursuance of the order dated 30.08.2012 passed by the Directorate of Education.
9. Learned counsel appearing for the petitioner submits that once the order passed by this Court was implemented by respondent no.2/school on 11.09.2012, there was no reason why the petitioner would not have been entitled to the pay and allowances and other benefits accruing to her w.e.f. 30.04.2011 when she had superannuated.
10. He submits that having regard to the direction passed on 21.11.2011 by this Court the petitioner would have been automatically entitled for re-employment from the date of superannuation. He submits that the petitioner shall be entitled to such arrears alongwith all the consequential benefits for the period w.e.f. 01.05.2011 till 10.09.2012 alongwith interest.
11. Learned counsel appearing for the respondent no.2 submits that the order dated 30.08.2012 passed by the Directorate of Education was complied with by respondent no.2/school on 11.09.2012. He submits that even in the order dated 30.08.2012 of the Directorate of Education, the direction was only to give financial benefit w.e.f. the date of assumption of work/duty. He submits that in compliance of such directions, the petitioner was re-employed and the payment of salary and other emoluments as entitled was regularly paid subsequently.
12. He submits that so far as the period w.e.f. 30.04.2011 till 11.09.2012 is concerned, since the petitioner had not performed any duty, the petitioner would not be entitled to any emoluments or pay etc, much less the arrears thereon.
13. That apart, learned counsel relied upon the judgment of the learned Division Bench of this Court in Directorate of Education & Ors vs. Ajit Kumar in W.P.(C) 6450/2011 pronounced on 29.03.2012, to submits that in almost similar circumstances, the learned Division Bench had held that the respondent therein, who was seeking arrears before the date of re-employment would not be entitled so, on the principle that the respondent therein had not worked for that particular period and as such on the same principle the petitioner too would not be entitled for any relief.
14. Learned Division Bench also took note of the fact that in that case the respondent was also paid pension for the period in dispute and consequently it found that there was no justification for payment of full back wages or any other amount over and above the pension paid. As such, learned counsel submits that the petitioner too being in the similar situation would not be entitled to any arrears.
15. This Court has heard the arguments of learned counsel for the petitioner as also the respondent no.2 and perused the documents on record and considered the judgments relied upon.
16. There is no dispute to the fact that the petitioner was to superannuate on 30.04.2011. It is also not doubted by the respondents that she had infact made a representation on 28.01.2011, three months prior to her date of superannuation requesting that her services be extended for a period of two years uptil the age of 62 in accordance with the rules of the GNCT of Delhi.
17. Since neither the respondent no.2 nor respondent no.1/DoE had taken any action in the affirmative, the petitioner was constrained to file the writ petition bearing W.P.(C)4852/2011 on 13.07.2011 after her superannuation. The said writ petition alongwith batch of similar writ petitions was disposed of by the learned Single Judge of this Court on 21.11.2011 allowing the same and passing a writ of Mandamus holding that the petitioners would be entitled to benefit of Notification dated 29.01.2007 of automatic re-employment for a period of two years subject to the terms and conditions as set out in the Notification.
18. Since the said judgment passed was a short one, the same is recapitulated hereunder:-
“The present nine Petitions are filed by retired teachers seeking automatic re-employment in terms of the Notification issued by the Government of National Capital Territory of Delhi, Directorate of Education, Old Secretariat, Delhi, dated 29th January, 2007. Since they raise a common issue they are disposed of by this common order.

The Notification dated 29th January, 2007 reads as follows:-

“Government of National Capital Territory of Delhi Directorate of Education Old Secretariat, Delhi No.F.30-3(28)/Co-ord./2006/689-703
Dated:29th Jan, 2007

NOTIFICATTON

In pursuance of Cabinet Decision No.1113 dated 04.09.2006 conveyed vide letter No.F.3/3/2004-GAD/CN/20491-502 dated 08.09.2006, 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 the Government of India for extending retirement age is received, whichever is earlier. The terms and conditions of re-employment. are being notified separately.
By order and in the name of The Ld. Governor of the National Capital Territory of Delhi
SD/-
Dated: 29.01.2007”

The issue of automatic re-employment is no longer res Integra and has been decided by this Court in earlier Judgments in Sheila Puri v. MCD, 1985 (9) DRJ 180 and Sushma Nayar v. Managing Committee, Delhi Public School Mathura Road, 2009 VII AD (DELHI) 146.

The above said two decisions were relied upon by a Division Bench of this Court in WP(C) No.4703/2011, Dharam Singh. The Chief Secretary & Ors. vide Judgment/Order dated 8th July, 2011.

The basic principle that has been settled in the aforesaid decisions is that the Notification refers to automatic reemployment of a retiring teacher up to PGT level and that 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.

In the circumstances the present Petitions are allowed and a mandamus is issued to the Respondents directing that the Petitioners shall be entitled to benefit of the Notification dated 29th January, 2007 of automatic re-employment for a period of two years subject to the terms and conditions as set out in the Notification.

With the above directions the Writ Petitions are disposed of.”

19. Admittedly, the respondent no.2-school had not taken any steps to file any appeal or any further proceeding challenging the order dated 21.11.2011 which had become final and binding upon the said respondents. That apart, from 21.11.2011 till 11.09.2012, the respondent no.2 school also did not take any steps to implement the said judgment.
20. Mr. N.K. Singh, learned counsel appearing for respondent no.1/DoE invites attention of this Court to the counter affidavit filed on its behalf, particularly to paras 4 to 6 which are extracted hereunder:-
“4. That the Respondent school submitted the file with a covering letter dated 18.04.2012 for re-employment of the petitioner on 19/04/2022. Copy of the same is annexed as Annexure R-l. After examining the file, it was observed that the Chairman of the Managing Committee of respondent school conveyed that as per resolution of Managing Committee dated 03/03/2012, the Managing Committee has no willingness to make management share for salary for reemployment of Smt. Hena Dutta, Retd. PTE (Petitioner). It is pertinent to mention that vide notification dated 31112/2007 it has been specifically mentioned that in government aided schools, where the request has been received in the Directorate of Education from the Managing Committee for the re-employment of the teachers, in which willingness of the Managing Committee to fulfil the additional proportionate expenditure on the salary of the teacher has to be clearly given. In view of the above vide letter dated 16/07/2012 the Manager of respondent school was requested to amend the resolution of managing committee.

5. That thereafter, the Managing Committee issued a fresh resolution dated 04/08/2012. Copy of the same is annexed as Annexure R-2. The same was conveyed to E.O. Zone – 07 vide letter dated 06/08/2012. Copy of the same is annexed as Annexure R-3. After receipt of the amended resolution, an order dated 30/08/2012 was issued vide which the approval of re-employment of Ms. Rena Dutta Retd PET was conveyed to HOS, Bengali Sr. Sec. School. It is pertinent to mention that in the said order it was expressly mentioned that “Ms. Hena Dutta, PET (Retired) will get the financial benefits with effect from the date of
assumption of work/duty.

6. That since, it is a case of not automatic re-employment, but re-employment only upto the age of 62 years, an individual will get his pay and allowances only from the date they actually performed the duty and will be only upto 62 years of age, on the principle of “no work no pay”. The Division Bench of this Hon’ble Court in W.P. (C) No. 822 of 2014 – CKP Naidu Vs. Govt. of NCT of Delhi &Ors. and W.P. (C) No. 756 of 2014 Govt of NCT of Delhi &Ors. Vs. CKP Naidu, dealt with the order of the Central Administrative Tribunal wherein, the Hon’ble Tribunal declined the prayer of arrears and benefits while allowing the prayer for grant of e-employment as Principal upto the age of 62 years. The Petitioner in the above said case filed a Writ Petition claiming arrears from the date he had retired, claiming to be eligible for re-employment from that date and GNCTD also challenged the order of Hon’ble CAT granting re-employment. The Hon’ble CAT in its judgment granted the benefit of re-employment from the date of joining service on re-employment upto the date of 62 years but rejected the prayer that all arrears and benefits from 01.06.2012 should be granted as he did not discharge any duties from 01.06.2012 onwards. The Hon’ble Central Administrative Tribunal categorically held that he will be eligible for the benefits of the re-employment only from the date of joining service on re-employment.”

21. According to the averments in the said paragraphs, it is clear that the respondent-school had not implemented the directions passed by this Court in the W.P.(C) 4853/2011. It appears from the contents of the said counter affidavit that after much persuasion, the school had sent an approval letter on 30.04.2012. It appears that there were certain lacuna and finally the DoE had passed an order on 30.08.2012 directing the respondent no.2-school to take back the petitioner in services and that the petitioner would be financial benefits w.e.f. the date of resumption of work/duty.
22. This Court has also perused the judgment relied upon by the learned counsel for respondent no.2 in the matter of Ajit Kumar (supra) which appears to be predicated on similar facts. The reading of the said judgment, particularly the penultimate paragraph 6 indicates that the Court in that case was considering the period where the respondent in that case had not actually worked and included the same would not make the petitioner school liable for any payments of arrears of salary or other allowances etc.
23. However, the learned Division Bench had also pertinently noted that there could be a ground where the respondent therein could seek salary for the period atleast from the date where the Tribunal had passed order in her favour. Applying the same in the present case, it cannot be disputed that if not from 01.05.2011, the petitioner would surely be entitled to arrears of pay and all other emoluments according to her pay scale w.e.f. 21.11.2011, the date when this Court had allowed the previous writ petition directing that the petitioner was entitled for re-employment after superannuation.
24. Another aspect to be considered is that the order 21.11.2011 was never challenged by any of the respondents herein and as such, the same has become final and binding on both the respondents. Having not challenged the said order, today to submit that the petitioner would not be entitled even for the period w.e.f 21.11.2011 would be untenable. In the view of this Court, the said arguments would also be unfair for the reason that having not taken the order dated 21.11.2011 in appeal, the respondent no.2-school cannot be heard to submit that since the petitioner did not perform work, she was not entitled to any pay during that period.
25. It is trite principle that where a person has not worked, such person may not be entitled to any arrears of salary and other emoluments, however, in case where a person is deprived or prevented from rendering services, that period surely creates an entitlement to the person for arrears of pay and other emoluments.
26. This Court finds support in the aforesaid principle based on the judgment of the Supreme Court in Commr., Karnataka Housing Board v. C. Muddaiah reported in (2007) 7 SCC 689 wherein it is held as under:-
“34. We are conscious and mindful that even in absence of statutory provision, normal rule is “no work no pay”. In appropriate cases, however, a court of law may, nay must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. The court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The court may in the circumstances, direct the authority to grant him all benefits considering “as if he had worked”. It, therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a court of law and if such directions are issued by a court, the authority can ignore them even if they had been finally confirmed by the Apex Court of the country (as has been done in the present case). The bald contention of the appellant Board, therefore, has no substance and must be rejected.”

27. In view of the above, it is beyond cavil that the petitioner would atleast be entitled to all arrears of pay and other emoluments as per the entitlement w.e.f. 22.11.2011 through till 10.09.2012 when she was re-employed on 11.09.2012. The deprivation of working environment during the aforesaid period is surely not the fault of the petitioner.
28. In that view of the matter, the petition of the writ petitioner is allowed partly to the extent that she would be entitled to all pay and emoluments as per her entitlement w.e.f. 22.11.2011 through till 10.09.2012 alongwith reasonable interest of 6% per annum.
29. Since it is an aided school, the payment shall be made proportionately by the respondent nos.1 and 2 within a period of eight weeks from today.
30. The respondent no.1 is at liberty to take appropriate steps to recover any sum, if it so feels entitled to after the payments are made to the petitioner from respondent no.2.
31. The petition is disposed of in above terms without any order as to costs.

TUSHAR RAO GEDELA, J.
MARCH 27, 2024
Aj

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