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 4-6-98 Mrs. Ravinder Kaur Bajaj Principal GHPS NANAK PIAO SUB: 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 26
8. 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.
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. He submitted 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 should RFA 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 the post 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 and RFA 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, contributory RFA 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 MINORITY SCHOOLS" 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 own
procedure, 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 the RFA 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 RFA 519/2005 Page No. 21 of 26 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 RFA 519/2005 Page No. 22 of 26 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 RFA 519/2005 Page No. 23 of 26 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 RFA 519/2005 Page No. 24 of 26 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 RFA 519/2005 Page No. 25 of 26 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 km RFA 519/2005 Page No. 26 of 26