Government of NCT of Delhi v. Anita Bhatia

13. Before we deal with the various contentions raised by counsel representing both the parties, let us first reproduce the aforesaid two notifications, benefit of which the respondents seek to claim. The extract "GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI DIRECOTRATE OF EDUCATION OLD SECRETARIATE, DELHI No. F.30-3(28)/Co-ord/2006/686-753 Dated: 29'^' January NOTIFICATION In pursuance to Cabinet Decision No. 113, dated 4.9.2006 conveyed vide letter No. F.3/3/2004-GAD/CN/2049I-502, dated 8.9.2006, the Leulenant 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 andvigilance clearance, tillthey attain the age of62 years or rill clearancefrom Government ofIndia for extending.retirement age is received, whichever is earlier. The terms and conditions of re-employment are beign notified separately. By order and in the name of The Lt. Governor ofthe National Capital Territory ofDelhi. Sd/- (MADLIUP VYAS) Joint Secretary (Education) "

14. The extract of Notification No. F.32(8)/201 l/SB/Edn.136-155 dated 27.01.2012 read as under:- "GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI GENERjiL ADMINISTRATION DEPARTMENT (SECRETARIATE EDUCATION, BRANCH) ROOMNO. 223, OLD SECTT.

DELHI ' No. F.32(8)/201I/SB/Edn.I36-I55 Dated: 27.01.2012 ORDER The Hon'hle Lt. Governor, Government of National Capital Territory ofDelhi ispleased to allow re-employment to those Vice-Principals/Principals, Principals of Government Aided Schools under the Directorate of Education who have approached the various Lion 'ble Courts and got the judgment in theirfavour with immediate effect. The Lion'ble Lt. Governor, Delhi is also pleased to alloM' the re-employment to all the retired Vicethe judgment dated 08.07.2011 in W.P. (C) No. 4703/2011 titled Dhararn Singh vs. Govt. ofNOT ofDelhi. The said re-employment isfor aperiod ofone year and extendablefor another one year based on the performance and subject to fitness and vigilance clearance, till they attain the age of62 years, whichever is earlier. They will get thefinancial benefit with effectfrom the date ofassumption ofwork. The terms and conditions ofautomatic re-employment and other aspects ofre-employment in respe.ct ofretired Vice Principals/Principals ofGovernment schools will remain same as issued by this Directorate vide Notification N.F.30- 3(28)/Co-ord.2006/689-703 dated 29.01.2007, order No.F.30- 3(28)/Co-ord/2006/4637-72 dated 28.02.2007, Order No. 30- 3(28)/Co-ord/2006/5982-6012 dated 22.03.2007, and in respect of Govt. aided schools vide order No.30-3(28)/lII/Co-ord/07 (Part File/3426-3439 dated 31.12.2007 and F.30- 3(28)/IlI/Coord/07/Pt file/180-220 dated 15.02.2008 respectively. Plowever, this order is issued subject to the outcome of any appeal filed against the said judgment/order before anyhigherforum or courts oflaw. Further, it is also subject to the final outcome of any SLP] likely tobe filed in the Hon 'ble Supreme Court ofIndia against the above saidjudgment. This issues with the prior approval of the competent authority. Sd/- (Shashi Kaushal) Addl. Director (Sectt.BR)"

15. The Notification dated 29^'' January 2007 was the subject matter of consideration in acase titled as Sushma Nayar vs. Managing Committee, Delhi Public School, Mathura Road, reported in 2009 AD (VII) Delhi

246. In the aforesaid case, the petitioner - Sushma Nayar had filed a writ petition seeking quashing ofre-employment granted to the respondent on the post of Vice Principal. The plea taken by the petitioner therein was relaxation has been extended only to teachers and not to Vice Principal/Principals. In the absence of any challenge raised by the petitioner to the said Notification dated 29.1.2007, the learned Single Judge after placing reliance on the ratio of decision in the case of Sheila Puri vs. MCD, 1985 (9) DRJ 180 (DB), which was followed in many other cases also, took a view that the respondent remained teacher even though she was appointed as Vice Principal ofthe school and as such was entitled to the benefit ofthe Notification dated 29^'' January 2007, which allowed automatic re-employment till the age of 62 years to all retiring teachers up to PGT teachers.

16. With the authoritative pronouncements of this court, right from the judgment of Sheila Piiri case (supra), Charanjii Singh Nischai case (supra), Sushma Nayar case (supra), and many other cases including Vice Principals/Principals, Head Masters of MCD Schools and the Schools run by GNCT of Delhi and Govt. Aided School under the Directorate of Education were granted the same benefit of re-employment in terms ofthe Notification dated 29"'' January 2007. In fact, taking into consideration the said decisions of this court, Lt. Governor /Govt. ofNCT cn Principals/Principals of Government and Government Aided Schools, who had not gone to the court, but have retired and had apphed for reemployment to the department after judgment dated 8.7.2011 in W.P. (C) No. 4703/2011 titled as Dharam Singh vs, GNCT of Delhi. By this notification of 2012, the Government of NCT of Delhi itself extended the benefit of re-employment to the Vice Principals/Principals, although this category was not specifically included by the Government in earlier Notification dated 29"" January 2007.

17. There can be no cavil that in terms ofthe said two notifications, the Government of NCT of Delhi had been pleased to allow automatic reemployment of all retiring teachers up to PGT level and also to the Vice Principals/Principals of the schools run by Government of NCT of Delhi and Government Aided Schools till they attain the age of 62 years, subject to their fitness and vigilance clearance. But the issue which we are confronted in these two cases is as to whether the benefit of these two notifications can be extended to these respondents, who were working on the post of Supervisor (Physical Education ) which has not been specifically covered in the said two notifications. ' (supra) while the stand taken by the petitioners is that the decision in Sheild Piifi (supra) case never attained finality as the legal issues were left open by the Supreme Court when the challenge was laid by the MCD in SLP No.5051 of 1985 prefeiTed by them.

19. The case ofSheila Piiri (supra), is one ofthe earliest cases decided by a Division Bench of this Court on 22.05.1985 where the Court was dealing with an issue ofretirement age ofthe petitioner who joined the MCD as a teacher then became Head Mistress ofthe School and finally became a School Inspectress and the question arose VN'as whether such a person would still remain a teacher even after promotion to the post of Inspectress and would get the benefit ofretirement atthe age of 60 years and notat 58 years. As per the relevant resolution of MCD, the age limit for retirement of officers and other employees was 58 years and in case of teachers and class 4"^'^ servants, itwas 60 years. The issue arose before the Court was whether the petitioner would cease to be a teacher after she is promoted to the post of Senior School Inspector. Answering the question in the background of relevant resolution passed by the MCD, the Court held that it would be a strange resultthat a Head Mistress promotedto the The Court also held that a very concept of an Inspector is to see that the teaching is conducted in accordance with some standard practice and the progress of students is as desired. It also held that there is a difference between the administrative line in the coiporation and the teaching line. The relevant paras ofthe said judgment are reproduced as under:-

14. We think that this problem cannot be solved by mere reference to the affidavit. The petitioner was a teacher. She was a Headmistress of a school, then she became a School Inspectress, then became a Senior School Inspectress. Ifshe is a Senior School Inspectress, does she cease to he a teacher ? Does she become an officer and not a teacher ? It seems to iis that if you are a teacher to start with, you remain a teacher even ifyou are promoted to a post which involves supervision of theschools rather than teaching in theschools It would be a strange result that a Headmistress promoted to the post of School Inspectress should have a lower retirement age. The position set out in the Resolution of 1970, i.e.. Resolution NO. 127 did not make any distinction between teachers and School Inspectresses. We fail to understand how two sets ofpersons belonging to the same class should have different retiring ages ifthey arepromoted or notpromoted. Also, when some persons ofthat class are transferred to the Delhi Administration on the understanding that they would retain their retiring age of 60, wefail to understand why the remaining persons should not retain the same retiring age of60. Also, there seems to be some confusion as to who is a teacher? If the interpretation of the Municipal Corporation is accepted it leads to a number of awkward complications. The ruination post ofHeadmistress is that ofSchoolInspectress. Normally, seniors are promoted and they are not far from the age. of retirement. So, it would, be a strange result that when a Headmistress is promoted, she would immediately retire whereas if she remained Headmistress, she would retire at 60. This result could not have been desired. Furthermore, the word 'teacher' means a person in the teaching profession. The entry of such persons into service would normally be in lower grades. They would be be further posts like Senior Inspectors and so on. We cannot imagine an Inspector ofSchools not being a teacher. A very concept of an Inspector is to see that the teaching is conducted in accordance with some standardpractice and the progress ofstudents is as desired. An Inspector orInspectress must, therefore, be a teacher. Such aperson does not cease to be a teacher by becoming an Inspector. An Inspector's job is not that oflooking after the up-keep ofthe school, but to see that the teaching is done properly. We are ofthe view that such a person woidd remain a teacher even after promotion. No doubt, the Resolution states that officers M'oidd retire at58 and teachers at 60, presumably by officers are meant non-teachers employed in other branches of the Corporation. There is a. difference between the administrative line in the Corporation and the teaching line. We M'oidd prefer to hold that the petitioner continues to be a teacher in spite ofbeingpromoted to the post ofSchool Inspectress. The real meaning ofthe Resolution is that persons employed on the teaching side, or educational department ofthe Municipal Corporation have a retiring age of60, whereas others have a retiring age of58. Referring again to the judgment cited at the Bar, Shri B. N. Chaudhary v. The Commissioner, Municipal Corporation of Delhi and others.^'herein it seems to have been accepted that the retiring age was 58, we think that is not a precedent, because the petition M>as dismissed in liming without a careful examination ofthe Resolutions No. 127 of1970 and 666 of

1978. We do not think that we are bound by a petition dismissed in liming.

15. In addition, it must be stated that ifthere is any doubt in the matter, ithas to be resolved infavor ofthe petitioner on the application ofArticle 14 ofthe Constitution. The petitioner was identically placed to the other School Inspectresses in the Department. Those Inspectresses who have been trcmsferred to the Delhi Administration were informed by Resolution No. 127 of1970 that they would retain their retiring age of 60. This was an admission by the Municipal Corporation that the petitioner s retirement age was cdso 60. We cannot read the Resolution No. 666 of1978 as a change in that retiring age because it does not clearly state anything about School Inspectresses. As M^e have interpreted School Inspectresses to be 'teacher's, they will continue to retire at the age of60, but if there is any doubt, we think that the petitioner has to get the /./ Administration. Undoubtedly, these schools and some of the teachers have from time to time been transferred either from the Delhi Administration to the Municipal Corporation orfrom the Municipal Corporation to the Delhi Administration. They all seem to be the same andare doing identicaljobs in relation to similar schools. Being equally placed, Article 14 of the Constitution is certainly attracted, so the retirement age ofthe petitioner cannot be less than 60. "

20. In another case of Charanjit Singh Nischal (supra), the learned Single Judge ofthis Court was again dealing with a petitioner who from the post ofHeadmaster was promoted to the post ofSchool Inspector and following the ratio of Sheila Piiri (supra) the Court held that the petitioner would be entitled to retire at the age of 60 years and not at the age of 58 years.

21. Both these cases referred to above were not dealing with the notifications dated,29.01.2007 and 27.01.2012. The said notification of 29.01.2007 was a subject matter of consideration before the. learned Single Judge of this Court in Sushma Nayar (supra), wherein the challenge was raised by the petitioner therein to seek quashing of reemployment, of the respondent to the postof Vice Principal, on the ground that the age relaxation in terms of the said notification is intended only for PGT and TGT Teachers upto 62 years of age and not for Vice (supra) and after drawing support from the definition of teacher given under Section 2(w) of the Delhi School Education Act, 1973 and Rule 110 of the Delhi School Education Rules, 1973, took a view that the lespondent would remain a teacher even though he was promoted to the post of Vice Principal of School and as such would be entitled to the benefit of the notification dated 29.01.2007'. Thereafter, many such identically placed Teachers, Principals and Vice Principals claimed extension of their retirement age and in view of the dicta of the Division Bench of this Court in Sheila Puri (supra), the decision of the learned Single Judge in Charanjit Singh Nisckal (supra) and Sushma Nayar (supra), there was a reiteration ofthe same view by various Benches of this Court.

22. To our surprise in none of thse judgments, there is a reference to another important decision ofthe Division Bench holding the feild, which is in the case of PS. Tomar (supra). This case was decided by the Division Bench of this Court on 01.02.1991. In this case the Court was considering the legality and validity of the Circular dated 06.07.1992 issued by the MCD pursuant to the decision of this Court in Sheila Puri different cadre of an Inspector like other officers of the Corporation, he will retire on attaining the'age of 58 years as provided in FR56(a) ofthe Fundamental Rules. Inthe Circular, an option was also given which could be exercised six months prior to attaining the age of 58 years by a teacher, if promoted to the cadre ofInspector and it is only on exercise of such an option, he would continue till the age of 60 years but in such cases he will have to revert back and hold the post, last occupied in the teaching line namely either as a Fleadmaster or Physical Education Teacher as the case may be. In this judgment, the Division Bench of this Court made a reference that the decision of this Court in Sheila Puri (supra) v/as challenged by filing a Special Leave Petition before the Hon'ble Supreme Court and on leave being granted by the Supreme Court, the case was not decided on merits but on concession. The Court further held that a bare reading of the judgment of the Hon'ble Supreme Court, would suggest that reasoning of this Court that a teacher on promotion to the post of Inspector will continue to be termed as a teacher or that the post of Inspector is also akin to a teacher were neither approved nor gone into by the Hon'ble Supreme Court and the Hon'ble Relevant paras of the decision ofRS, Tomar (Supra) are produced as under: "Decision of this Court in Smt. Sheila Pun's case yms challenged by the respondent by filing Special Leave Petition to Supreme Court. On leave being granted the case was not decide do nmerits but on concession.The submission made on behalf ofthe Counselfor the petitioners that the decision of this Court was approved ccmnot be accepted. Decision ofthe Supreme Court is reported asMunicipal Corporation ofDelhi

V. Smt. Sheila Puri,. An application for intervention was also filed by ten employees of the Education Department of the Delhi Administration seeking leave to support the judgment of this Court, during the pendency of the appeal in Smt. Sheila Pun's case. By the time the decision was taken by the Supreme Court, Smt. Sheila Puri had already retired from service on attaining the age of60 years. Undertaking was given on behalf ofthe Municipal Corporation ofDelhi in the Supreme Court that irrespective of the result of the appeal. Municipal Corporation will extend the benefit ofupper age ofretirement of60 years to Smt. Sheila Puri, as directed by the High Court. It M'as subject to this reservation that leave was granted to clarify the legal position, not with reference to Smt. Sheila Puri, but at large so as to provide guidelines to the employers andemployees. The Supreme Court, taking note ofthe affidavit filed in Smt. Sheila Puri's case by the Joint Secretary (Education) of the Delhi Administration on 25th November, 1988, took decision on such concession and not on merits. In the affidavit position, which was clarified was that the original age of retirement of teacher and supervisory staff of Delhi Administration 58 years but the same had been raised to 60 years and since there was no posts of Inspector in the Education Department ofthe Delhi Administration, the age of employees transferred from the Municipal Corporation M'as kept, according to Clause (7), indicated to be 60years, as the age ofretirement. In view ofthis concession the Supreme Court disposed ofthe matter. Inpara 6 the Court observed: "IN view of the conceded position the age of retirement of teachers and supervisory staffofthe Delhi Administration is 60 years; for those who came on transfer from the Municipal that the respondent was entitled to continue in service till she attained the age of60 years." (13) In view of the above position, on the scope of the dispute betM'een the parties as to what was the proper age of retirement, the Supreme Court declined to allow the applicationfor intervention filed on behalfofthe employees of the Education Department ofDelhi Administration. (14) A bare reading of the judgment of the Supreme Court suggests that the reasonings of this Court that a Teacher on promotion to the post ofInspector will continue to be termed as Teacher or that the post ofInspector is also akin to a Teacher were neither approved, nor gone into. The Supreme Court decidedthe case only on thestand taken in the affidavit and on the basis of the concession given. Thus, it cannot be said that the decision of this Court that M'hether an Inspector's job M>as akin to a Teacher or that a Teacher on being promoted to the cadre of the supervisory staffof an Inspector will continue to remain as a Teacher, M'as approved by the Supreme Court. The question remained open and alive. (15) After decision in Smt. Sheila Puri's case the respondentcorporation continued issuing orders, retiring all those, who were in the teachingline and had been promoted as Inspector, at the age of58years and not the age of60years. The result of the same was that such orders, on being challenged byfiling petitions in this Court wereset aside bythis Court onfollowing the decision in Smt. Sheila Puri's case. Banwari Lai Sharma and two others had also filed such petitions.The same were disposed of by a common order passed on 27.2.1989 in Cw 1880/86, Banwari Lai Sharma v. M.C.D. All ofthem had been working as Teachers and had been promoted as Inspectors. They were sought to be retired at the age of 58 years and had challenged the action of the respondent. Following the ratio in Smt. Sheila Puri's case that a School Inspector or Inspector was a teacher, relief was granted. This decision challenged by the respondent byfiling Special Leave Petitions

(C) Nos. 5719,5766 and 7946/89. The Supreme Court on

V. Lakshrni Verma, Hari Krishan Sharma and Banwari Lai

Sharma, with thefollowing observations: "COUNSEL for the petitioners stales that the respondents in each of these appeals have since retired at the age of 60years We accept the submission of the learned Counsel and keep the question open without expressing any opinion. With these observations, thepetitions are dismissed." (16) Yet- in another petition Km. Kanta Sharma v. Municipal Corporation of Delhi. Cw 2270/88 decided on 3.7.1989, relief was granted by this Court to the petitioner therein, who had been promotedfrom the post ofHeadmaster to that ofa School Inspector on relying upon the decisions of this Court in Smt. Sheila Pun's case and also in Banwari Lai Sharma's case. Mimicipal Corporation of Delhi challenged the said decision byfiling Special Leave Petition (Civil) 13386/80n 17.7.1990 the Special Leave Petition was dismissed observing that no ground is found for reconsideration of the decision in Smt. Sheila Pun's case. (17) The cumulative effect of the above narration suggests that the Supreme Court left the question open without expressing any opinion on merit cmdfurther observing that the decision in SheilaPun's caseshouldnot be heldagainst the respondent. "

23. It can be thus seen from the above discussion that the legal issue settled in Sheila Puri (supra), was left open and alive by the Hon'ble Supreme Court and therefore, the learned Tribunal fell in grave error to place reliance on the decision of this Court inSheila Puri (supra) to give the benefit of re-employment to the respondents upto the age of 62 years without appreciating another decision of this CourtinPS. Tomar (supra) and also the contents of the above two notifications dated 29.01.2007 and 27.01.2012.

24. We have already noticed that the above two notifications were not the subject matter of discussion either in Sheila Puri (supra), Sushma We will thus confine ourselves to the contents of the above two notifications to ascertain the fact whether these respondents who were occupying the post of Supervisor Physical Education, are entitled to get the benefit of re-employment till the age of 62 years. It is an admitted fact between the parties that these respondents were not occupying the post of Teacher, or Vice Principals/ Principals and their post was that of Supervisor Physical Education. Whether this post is an administrative post or a teaching post or a post combined of teaching and administrative duties, is broadly the issue for determination. To decide this question, it would be relevant to refer to the relevant recruitment rules for the post of Supervisor (Physical Education) and also the chart of duties assigned to this post and are supposed to be performed by the holders of this post in the sphere of physicial education/ development of schools and games in schools. The same are reproduced as under:- "Recruitment Rules for the post of Supervisor (Physical Education)

1. Name ofthe post: Supervisor (Physical Education)

2. No. of posts; 24 (subject to variation dependent on work load)

3. Classification: CGS, Group 'B', Gazetted, Nonministerial

4. Scale of Pay: Rs.2000-60-2300-EB-75-3200-100-3500 (Pre-revised) 7,500-12,000 (Revised as 6.

7.

8.

9.

10.

11. Age limit for direct recruits Whether benefit of added years of service admissible Educational and other qualifications Whether age and qualifications (Educational) prescribed for direct recruits will apply in the case of promotes. Period of probation, if any. Method of recruitment whether by direct rectt or by promotion or by deputation/transfer Not exceeding 30 years (Relaxable from Government servants upto 5 years in accordance with the instructions or orders issued bythe Central Government) No Essential: i) Master Degree in Physical Education from a recognised University or equivalent. ii) 5 years experience in the field of Physical education, such as organising games, camps, sports, activities, sports, camps, welfare youth camps, etc. Or 5 years experience of working as a Physical Education teacher in a recognised/Aided High or Higher Sec. School or in a recognised intermediate college. Desirable: i) Doctors degree in Physical Education or Master's Degree in a subject other than Physical Education from a recognised University or equivalent. ii) Administrative Experience. Age-No. Educatinal Qualification - Yes. Two years. Promotion failing which by transfer on deputation, failing both by direct recruitment. promotion/ deputation/ transfer, grades from wliich promotion/ deputation/ transfer to be made. Post Graduate Teachers (Physical Education) under the Directorate of Education, Delhi Administration with three years' regular service in the grade. Promotion will be made from the feeder grade on the basis of a combined seniority list of Male and female. "Note; Where juniors who have completed their qualifying/ eligibility service by more than one year and have successfully completed their probation period if prescribed." Transfer on Deputation; (a) Officers of the Central/ State Government. i) Holding analogous post on regular basis or ii) With 3 years regular service in the post in the pay scale of Rs. 1640-2900 or equivalent and (b) Possessing the eduicational qualifications and experience prescribed for direct recruits under column 8. The Departmental officers in the feeder category who are in the direct line of promotion will not be eligible for consideration for appointment on deputation. Similarly, deputationists shall not be eligible for consideration for appointment by promotion. Period of deputation including period of deputation in another ex-cadre post held immediately proceeding this appointment in the same or some other organisation/ department of the Central Government shall ordinarily not to exceed thre eyeras. The maximum age limit for appointment by transfer ondeputation shall be, not exceeding 56 years, as on the closing date of receipt of applications.

14. Circumstances in which UPSC is to be consuhed in making recruitment. however, these are not approved by the Commission a fresh meeting of the DPC to be presided over by the Chairman or a Member of UPSC shall be held. Consultatin with UPSC necessary while making direct recruitment and appointing an officer on deputation. "Chart of duties assigned to Supervisor. (Physical Education)

DIRECTORATE OF EDUCATION DELHI (PHYSICALEDUCATION BRANCH) The Supervisors/School Inspectors (Physical Education) working in the Directorate of Education, Delhi are supposed to perform the following duties in the sphere of Physical Education, development of sports and games in schools as well as in public sectors. They may be assigned other duties from time to time under instructions of the Director of Education. Their duties are divided in three heads besides other official, instructions of the immediate head of the branch from time to time.

SUPERVISION

1. To supervise the activities of Physical Education, games sports and allied activities in schools and in public sectors if and when it is necessary.

2. To suggest ways and wears to improve the existing conditions in Physical Education.

3. Periodical supervision and surprise checking of all the activities and routine classes in Physical Education and sports & games and the syllabus adopted in schools. Submission of report thereof to the EO/Principal/and DDE (Sports) with specific suggestions and inviting attention at the zonal, district and all Headquarter level.

4. Super visit of playing fields, courts, gymnasium and sports material etc. And necessary instructions for their improvements. •

5. Supervision of healthy, condition in schools for game andsports and Physical Education activities witha good emphasis on sanitation and hygienic conditions in the schools. submitted to pe Brancli.

8. To check the diaries of Pliysical Education Teachers and other regards regarding Physical Education, games and sports and to guide them in this regard.

9. To make a good supervision of sports purchases inthe schools in respect of quantity, quality and its maintenance.

ORGANISATION

1. To arrange Zonal forum of Physical Education Teachers and their meetings from time to time.

2. To arrange meetings of the Heads of the institutions for certain organizational purposes.

3. To organise the Tournaments inter-schools and interzone competition in games and sports and multifarious CO cuiTicular activites in consuhation with zonal conveners and to render any assistance required by them.

4. To appoint officials "for, various competitions/Tournaments.

5. To organise coaching of talented students, clinics and Refresher courses for Physical Education Teachers.

6. To organise and make preparations for all the activities assigned byt he Headquarter on occasion such as independence day celebrations, children's day, republic day, EPED, DSS & AB activites and the programmes of council of sports, seminars, conferences and rallies.

ADMINISTRATION

1. To make a good liaison with the Heads of the Institutions and the officers at the Headquarter (Phy. Edn. Branch)

2. Follow up of the administrative action at the zonal, district and Headquarter level on the reports ofthe visits and surprise checking made in schools for Phy. Edn., sports and games and other allied activities.

3. Tobe a member of the Condemnation Board for sports purposes.

APPROVED BY THE DIRECTOR OF EDUCATION, DELHI SP/J(ED)/75-PE/ Dated: 9"^ June 1975 Copy forwarded forinformation and necessary action to:

1. Allthe D.D.Es (Districts)

2. All Education Officers.

3. All the Supervisors/School Inspectors (Phy. Edu) (H. SAREEN) DY.DIRECTOR OF EDUCATION (SPORTS) DELHI" -25. It would also be necessary here to mention that the Delhi School Education Act, 1973, does not provide any meaning to the word 'teacher'. It only gives an inclusive definition under Section 2(w) which provides that "teacher" includes the Head of school. The same is reproduced as follows:, (2) Definitions- In this Act, unless the context otherwise requires fw) "teacher" includes the Head ofschool; Further Rule 59 (2) (h) (xxv) of the Delhi School Education Rules, 1973 provides as follows:

59. Scheme of management of recognised schools (h) the duties, powers and responsibilities of the head of the school, which shallprovide that he shall:— (2) The scheme of management shall also provide for the following, namely:— Rule 110 of the Delhi School Education Rules, 1973 deals with retirement age and provides as under: "Rule 110 ofthe Delhi School Education Rules, 1973 reads as under:- Retirement age - Except where an existing employee is entitled to have a higher age of retirement, every employee of a recognized private school, whether aided or not, shall hold office until he attains the age of58 years. Provided that the managing committee may grant extension to a teacher for a period not exceeding t\vo years in the if in the opinion of the managing committee such teacher isfit for such extension and has no mortal or physical incapacity which would disentitle him to get such extension. Providedfurther that no such extension shall he granted in the case of a teacher of an aided school except with theprevious approval ofthe Director. (2) Notwithstanding anything contained in sub-rule (1), every teacher, laboratory assistant, Librarian, Principal or Vice- Principal employed in such school shall continue to hold office until he attains the age of 60 years: Provided thai where a teacher, Principal or Vice Principal attains the age ofsuperannuation on or after the 1st day ofNovember ofany year, such teacher. Principal or Vice Principal shall be reemployed upto the 30th day ofApril of the year immediately following. /3) Notwithstanding anything contained in sub-ride 91) and subride (2), where a teacher, Principal or Vice Principal has obtained National or State Award for rendering meritorious service as a teacher, Principal or Vice Principal or where he has received both the National and State Awards as aforesaid, the period of service of such teacher, Principal or Vice Principal may be extended by such period as the Administrator rnay, bygeneral or special order, specify in this behalf " 26: Indisputably, these respondents are not perfomiing any of the duties of a teacher and their duties are mainly in the administrative feild. V,v(3 occupying administrative post and in fact tlie case set up by these respondents is that they continued to be teacher even though they have been promoted to a higher administrative post.

21. When we loolc at the recruitment rules' for the said post of Supervisor (Physical Education), it can be seen that the same is a selection post and vacancies can be filled by promotion, failing which by transfer on deputation; and failing both, by direct recruitment.

28. In so far as the recruitment by promotion to the said post is concerned, the Post Graduate Teachers under the Directorate of Education, Delhi Administration with three years regular service in the grade will be considered for promotion on the basis ofcombined seniority list of male and female candidates and thus, the feeder cadre to seek promotion to the post of Supervisor (Physical Education) is a cadre of post graduate teachers (Physical Education). In so far as the appointment by direct recruitment is concerned, the educational qualification is the same as required by promotee candidate but so far as the experience is concerned, for a direct recruit, the same is laid down as five years experience in the field of Physical Education such as organising games, School or any Recognised Intermediate College. So far as the direct recruitment is concerned, the experience of five years can be either as a Physical Education Teacher or in the field of physical education not necessary as physical education teacher, but by organising games, camps, sports activities, welfare youthgames, etc. -

29. The charter of duties, which the holders on the said post are required to perform in the sphere of physical education, development of sports and games are in relation to schools or inrelations to the activities of sports and games in schools and the same are predominantly administrative in nature. To say that these promotee respondents had entered in service as teachers or were teachers prior to occupying the said post ofSupervisor Physical Education, would make them entitle to get the benefit of age relaxation, but this will result in an anamolus situation as on the said date, the same benefit would not be available to direct recruits although occupying the same post. In such an eventuality the direct recruits would be retiring at the age of 60 years while the promotees on this post would get the benefit of extension in age up to 62 years.

30. It is a settled legalposition that the courts shouldnot embarkon the or enactment. The said two notifications of the Government ofNCT of Delhi, gave the benefit ofextension ofage up to 62 years only in the case ofTeachers, Vice Principals, Principals, Head Maters, etc and it has not included any other category ofposts whether administrative or otherwise. To give the benefit of the said notifications to the post which is administrative in nature and particularly where no activities of ateacher are involved and the cadre of the post has also been changed, would amount to adding certain other categories of posts in the said notifications, which is totally impermissible under law through ajudicial decision, as the same exclusively vests within the domain of Executive Authority.

31. In so far as the reliance placed on certain decisions of this Court, we have already said above that neither these two notifications nor the postroccupied by these respondents was under consideration in Sheela Puri (supra) case. It is a settled legal position that a decision is an authority for what it actually decides and not what logically flows from theobservations made inthejudgment.

32. The words ofLord Denning in the matter of applying precedents, Vnion ofIndia vs. AmritLaiManchanda andAm., (2004) 3SCC 75, in H "Each case depends on its own facts and a close similarity between one case and another is not.enough because even a single significant detail may alter the entire aspectjn deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one 'f. the colour ofanother. To decide therefore, on which side ofthe line acasefalls, the broad resemblance to another case is not at all decisive."

33. We may also refer to the decision ofthe Hon'ble Supreme Courtm RespecialreferenceNo. 1of2012, whereinitwas held as follows: • "Each case entails a different set offacts and a decision is a precedent on its own facts; not everything said by aJudge •while giving ajudgment can be ascribed precedental value. The essence ofadecision that binds the parties to J the principle upon which the case is decided and for^is reason, it is important to analyse adecision and it the ratio decidendi.-In the matter ofapplyingprecedents, the ' erudite Justice Benjamin Cardozo in "The. Nature of a Judicial Process", had said that "ifthe judge is to pronounce it wisely, some principles ofselection there must be to guide him along all potential judgments that compete for recognition" and "almost invariably his first step is to examine and compare them;" "U f Zmparmn and IMIe more" and ought no, to be akm to matching "Ihecolors ofthe case athand againstthe color, <,/ many sample cases" became in that ease "the man who had The best card index of the cases would also be the wtsest iudge". Warning against comparingprecedents with matchmg colours ofone case with another, he summarized the process. in case the colours don7match, in thefollowing wise words> "It is when the colors do not match, when the references in the indexfail, when there is no decisiveprecedent, that the se^ - business ofthejudge begins. He must thenfash,on W/or the litigants before him. In fashioning,t for them he wdl be fashioning itfor others. The classic statement is Bacon s. For many times, the things deduced tojudgment may be meum and tZm when the reason and consequence thereofmay trench to^ point ofestate. The sentence oftoday will make the right an wrong oftomorrow. ", 2015:DHC:10993-DB.0 petitions filed by the petitioner holding that the respondents are not entitled to the benefit of age relaxation up to the age of 62 years in terms of Notification dated 29.01.2007 read with Notification dated 27.01.2012 issued by the Directorate of Education, Govt. of NCT of Delhi. Consequently, the impugned order dated 27.03.2014, passed by learned Central Administrative Tribunal is set aside. Parties are left to bear their own costs.

MARCH 27, 2015 v/pkb y 'L^ KAILASH GAMBHIR, 'KMEHTA, J