- (1.) Issue rule. Issue notice to the respondent. Mr. Sushil Salwan accepts notice on behalf of the respondents. He shall file a counter affidavit within four weeks from today. Learned counsel for the petitioner prays for and is permitted to add Shri Ghasi Lal Meena, the beneficiary of the impugned orders dated 25.11.2006 and 03.09.2007 as respondent No.4. He shall file an amended memo of parties within one week. Notice shall thereafter issue to the newly added respondent, returnable before the Registrar on 26.11.2007. Post for hearing along with the appeal said to be pending in this Court against the order of the Single Judge of this Court dated 23.05.2005 in WP(C) No. 18077-79/2004 CM No. 13156/2007 Heard. Shri Ghasi Lal Meena was, it appears, employed as a peon in Girls Senior Secondary School, Bazar Sita Ram, Delhi. He was declared surplus by the said school and readjusted as a peon in A.E.S, Senior Secondary School, Rouse Avenue, New Delhi. By an order dated 25.11.2006 passed by the Education Officer, Shri Ghasi Lal Meena has now been readjusted in St. Antony's Boys Secondary School, Paharganj, New Delhi. This school is also admittedly an aided school and is drawing 95% aid representing wage bill and other expenses under the relevant rules. The school which claims to be a Christian minority institution has, however, declined to absorb Shri Meena on readjustment on the ground that the institution is a minority institution and would make appointments of the staff by following its own selection process. Relying upon a decision of a Single Bench of this Court in WP(C) No. 18077-79/2004 the school appears to have written to the Director of Education that it is prepared to absorb the candidate, Shri Ghasi Lal Meena provided he goes through the selection process and satisfies the test of compatibility with the ideals, aims and aspirations of the institution. The Director has by an order dated 03.09.2007 declined to accept that position and informed the petitioner school that since it is also being aided by the Government it was for purposes of Rule 64(1) of Delhi School Education Rules, 1973 immaterial whether the readjustment was being ordered against a vacancy in the minority institution or a non minority institution. The present writ petition filed by the school, therefore, challenges the validity of the orders passed by the Directorate of Education and also the vires of Rules 64(1) of the Rules mentioned above. The validity of Rule 47 of DSE Rule mentioned above has also been assailed. The same reads as under:- 47. Absorption of surplus employee etc. -- (1) Where as a result of -- (a) the closure of an aided school or any class or classes in any aided school; or (b) withdrawal of recognition from an aided school; or (c) withdrawal of aid from an aided school, Any student or employee becomes surplus, such student or employee, as the case may be, may be absorbed as far as practicable, in such Government school or aided school as the Administrator may specify : Provided that the absorption in Government service of any employee who has become surplus shall be subject to the availability of a vacancy and shall be subject further to the condition that the concerned employee possesses the requisite qualifications for the post and has not been retrenched by the management of the aided school on any ground other than the ground of closure of the school or any class or classes of the school, or withdrawal of recognition or aid from the school: Provided further that where any such surplus employee is absorbed in a Government school, he shall be treated as junior to all the persons of the same category employed in the Government Schools on the date immediately preceding the date on which he is so absorbed, and where such surplus employee is absorbed in an aided school, he shall rank as junior to all the persons of the same category employed in that school on the date immediately preceding the date on which he is so absorbed.
(2.) Where any surplus employee is absorbed under sub-rule (1) :- (a) the salary and other allowance last drawn by him at the school from which he has become surplus shall be protected; (b) his provident fund account shall be transferred to the school in which he is so absorbed, and thereupon such provident fund shall be governed in accordance with the rules and regulations in force in that school in relation to provident fund; and (c) the period of his qualifying service in the school in which he had worked before such absorption and any previous period of qualifying service, if any, in any recognised aided school in Delhi shall be taken into account for the purpose of computing his pension and other retirement benefits.
(3.) Without prejudice to the provisions of sub-rules (1) and (2), where an employee becomes surplus by reason of the closure of any class or section thereof or the discontinuance of the teaching of any subject, such employee may be absorbed in the first instance, as far as practicable, in such Government or aided school as the Administrator may specify, and if the class or section which was closed is reopened by the former school or if any new class or section thereof is opened by such school or if the subject, the teaching of which was discontinued, is re-introduced by such school, or strength of the staff of the former school is increased, such employee shall be reabsorbed in the former school; but if such re-absorption does not take place within a period of five years from the date of absorption of such employee in the Government or aided school, such employee shall be regularly absorbed in such Government or aided school, as the case may be.;