L.R. SHARMA Vs. DELHI ADMINISTRATION AND OTHERS

JUDGEMENT

(1.) The main question which arises for determination in the present appeal is whether a petition under Art. 226 of the Constitution is maintainable against the managing committee of a private recognised school in the Union Territory of Delhi. A subsidiary question that may arise for consideration is whether there would be any difference in the case of a private recognised aided school and a private recognised unaided school.

(2.) Briefly stated, the facts of the case are as under. The appellant joined Shri Mahavir Jain Higher Secondary School in 1951 as a Post Graduate Teacher in English. He was promoted as Acting Principal in 1966 and continued in that post until Feb. 1968. As a result of a selection for appointment to the post of Principal the appellant was so selected and appointed as Principal of the said school in Aug. 1971. During the relevant period he was working in that capacity. In 1973 the Parliament enacted the Delhi School Education Act. It received the assent of the President on Apr. 10,1973 and was published in the Gazette of that date. The Delhi School Education Rules, 1973 were promulgated on Dec. 31, 1973. The aforesaid School became a recognised school under the Delhi School Education Act (hereinafter referred to as the Act) and the Delhi School Education Rules) 1973 (hereinafter referred to as the Rules) on the enforcement and promulgation of the said Act and the Rules. Prior to the enforcement and promulgation of the aforesaid Act and the Rules the Delhi Education Code, 1965 used to govern recognition and certain conditions of service of employees of recognised schools. It is the common case of the parties that the age of retirement of the appellant in terms of the Delhi Education Code was 60 years and this condition of service of the appellant was preserved by the first proviso to S. 8( 1) of the Act, inasmuch as the appellant did not opt for different terms and conditions of service with regard to retirement; Rule 110(1) provides the age of retirement of employees of recognised schools as 58 years but also lays down that consistent with the provisions of S. 8(1) of the Act the right of existing employees to a higher age of retirement on attaining the age of 60 years could not be varied except with their consent. Neither the Act nor the Rules nor any provision in the Delhi Education Code provides for voluntary retirement of existing employees before the age of superannuation.

(3.) The appellant, it seems, was not very happy with the management of the school. He, therefore, sought voluntary retirement from service by his letter dated Mar. 8, 1978. He gave three months' notice to the management of his intention to quit the service of the school. In the letter the appellant referred to provisions of Central Civil Services (Pension Rules). At that point of time the appellant claimed to have put in 27 years of service in school and contended that his service rendered elsewhere should be taken into account for the purpose of pensionary benefits. This is indicated in the appellant's letter dated Feb. 24, 1978 to the Deputy Director of Education. The managing committee of the school claims that it considered the request of the petitioner, for permission to retire voluntarily from service, in the meeting held on Apr. 26, 1978 and decided to accept the request and to allow the appellant to voluntarily retire on Aug. 7, 1978 in terms of his letter dated Mar. 8,1978. It is contended on behalf of the managing committee that the appellant attended this meeting held on Apr. 26,1978. The appellant admits having signed the minutes book but says he signed it before the meeting started but did not stay back to attend it. By a letter dt. May 30, 1978 the manager of the school informed the appellant that he had been permitted to retire voluntarily on Aug. 7, 1978 on the expiry of three months' notice. An intimation of this was also sent to the Education Officer. The appellant appears to have had second thoughts, possibly because of the pressure brought on him by Parents and Teachers Association and his friends. He, accordingly, addressed a letter dated May 29, 1978 to the managing committee requesting that it may consider the earlier letter dated Mar. 8, 1978 as withdrawn. The managing committee of the school by its letter dt. May 30,1978 informed the appellant that it has decided not to allow him to withdraw his earlier letter. The appellant challenged his being relieved of duties in accordance with the resolution of the managing committee dated Apr. 26,1978. As the matter could not be settled amicably between the parties, the appellant filed a petition under Art. 226 of the Constitution claiming that an appropriate writ, order or direction be issued declaring that he was entitled to continue in service till he attained the age of 60 years and any orders, resolutions etc. passed which result in the appellant being compelled to voluntarily retire on Aug. 7, 1978 be quashed. Pending the hearing of the writ petition the appellant had applied for an interim stay of the operation of the decision of the managing committee which would permit him to continue to act as the Principal of the school. The prayer was not granted.