SERVANTS OF PEOPLE SOCIETY Vs. SUDESH OBEROI

JUDGEMENT

(1.) The present appeal, filed by the appellants, defendants No.1 to 4 in the suit, is directed against the judgment and decree dated 17th November, 2001 passed by the learned Additional District Judge whereunder respondents No.1 and 2, plaintiffs in the suit were declared to be entitled to the benefits of the 5th Pay Commission for the posts held by them as Assistant Teachers, with effect from 1st January, 1996. The appellants were also directed to pay to both respondents No.1 and 2, a sum of Rs. 1,71,000/- each (comprising of Rs. 1,50,000/- as principal amount alongwith interest accrued thereon @ 9% p.a. till the filing of the suit) and pendente lite interest and future interest with proportionate costs.

(2.) Briefly stated, facts of the case are as follows:- Appellant No.3 (hereinafter referred to as `the said school'), is a school run by the appellant No.1, a registered society. The said school is a Senior Secondary School, in which there are two sections, one is the Senior Secondary School and the other is the Primary Section. Both the schools are recognized by the Directorate of Education, respondent No.3. While the primary section is unaided, the senior secondary school is an aided one. Respondents No.1 and 2 were initially working with the said school as teachers for more than the last 38 years and lastly, they were working as Assistant teachers. Respondents No.1 and 2 stated that they were appointed against the certificate which they had obtained from the Indian Council for Child Welfare, Bal Sevika Training Course, which was duly recognized by the Government of India, Delhi State and after their appointment, they received all benefits against their post including the benefits as per the Fourth Pay Commission recommendations, but the appellants refused to grant them the benefits of the 5th Pay Commission despite various requests made by them, as also letter dated 25th October, 2000 issued to the school by the Additional Director of Education. Having failed to receive any positive reply from the appellants, respondents No.1 and 2 filed a civil suit for declaration, mandatory injunction and recovery of Rs. 3,80,000/- against the appellants, while impleading Director of Education as defendant No.5 therein, (respondent No.3 herein), who was proceeded against ex parte. The appellants filed their written statement wherein they raised certain preliminary objections on the grounds that the respondents No.1 and 2 did not possess the minimum qualifications as prescribed by the Department of Education vide its letters dated 8th September, 1998 and 16th April, 1999 read with Rule 100 of the Delhi School Education Rules, 1973 (in short `the Rules') which shows that only those employees were entitled to the benefits of the 5th Pay Commission who possessed the minimum qualifications as prescribed at the time of their initial appointment. An objection was also taken as regards the jurisdiction of the civil court, by referring to the provisions of Section 28 read with Section 25 of the Delhi School Education Act, 1973 (hereinafter referred to as `the Act'). However, negativing the aforesaid two contentions of the appellants, the impugned judgment and decree was passed thereby declaring that respondents No.1 and 2 were entitled to all the benefits of the 5th Pay Commission and the appellants were directed to pay to respondents No.1 and 2, a sum of Rs. 1,71,000/- each with interest thereon, as also pendente lite and future interest with proportionate costs. Aggrieved by the aforesaid judgment and decree, the appellants have filed the present appeal.

(3.) During the course of arguments, learned counsel for the appellants submitted that since respondents No.1 and 2 did not possess the minimum requisite qualification for the post of Assistant Teacher, they were not entitled to the benefits under the 5th Pay Commission. It was stated that Rule 100 of the Rules prescribed minimum qualifications for appointment of teachers, and that at the relevant time, as per notification issued by the Department of Education, the prescribed qualification for the post of Assistant Teachers was that of Matric and JBT/BTC, while respondents No.1 and 2 were merely matric pass and held certificates issued by the Indian Council for Child Welfare, Bal Sevika Training Course, which were not equivalent to any other minimum requisite teaching degree for appointment to the post of Assistant Teacher. It was further submitted that inspite of having been advised by the appellants both orally and in writing, respondents No.1 and 2 did not upgrade their qualifications at least to the minimum qualifications required for an Assistant Teacher at the time of their initial appointment, for which reason also, they were not entitled to be granted the benefits under the 5th Pay Commission and that they were not even legally entitled to benefits under the Fourth Pay Commission, but these were released to them as a gesture of goodwill only on account of their long association with the school and their assurance that they would upgrade their educational qualifications. In support of his contention, learned counsel for the appellants relied on a judgment of this court in the case of Prem Lata Datta Vs. Union of India and Ors. reported as 2004 (3) All India Services Law Journal 274, wherein the petitioner was appointed as an Assistant Teacher at a time when the school was unrecognized. Later, while recognizing the school, minimum education qualification of JBT was made compulsory, about which the petitioner was duly informed and was asked to acquire JBT. The petitioner, however, insisted that her certificate of Bal Sevika was equivalent to JBT. But the Director of Education did not accept it as a recognized qualification and consequently her services were terminated by the management of the school. It was in this context that it was held by this court that since the petitioner did not qualify for the post of Assistant Teacher, therefore, it was not a case of termination for misconduct etc. so as to be covered under Section 8 of the Act, but it was merely a case of non- confirmation for lack of qualifications and accordingly the petition was dismissed.