Kavita Mishra v. Directorate of Education & Ors.

1. By this writ petition, petitioner prays for basically two reliefs. First relief is for quashing the letters by which the petitioner’s services were to be terminated on the ground that petitioner was over-age. The second relief which is claimed by the petitioner is that petitioner must be paid arrears of salary as per recommendations of the 6th Pay Commission Report.

2. I may note that since the respondent no.2-school took up a stand that the petitioner’s services had to be terminated on account of directions of the 2013:DHC:6394 Director of Education which pointed out that petitioner was over-age at the time of appointment. Interim orders passed by this Court were vacated and the petitioner’s services now stand terminated w.e.f 18.7.2013. The relief prayed for in this case therefore with respect to issuing of directions not to terminate the services of the petitioner becomes infructuous, more so because petitioner has already rightly challenged the termination order by filing an appeal before the Delhi School Tribunal in view of the judgment of the Supreme Court in the case of Shashi Gaur vs. NCT of Delhi & Ors., 2001 (10) SCC 445. Accordingly, so far as the first relief is concerned, the issue of validity of termination of the petitioner will be decided by the Delhi School Tribunal and nothing contained in today’s order is a reflection on merits of the case for or against any of the parties.

3. That takes us to the second relief claimed by the petitioner for implementation by the school of the recommendations of the 6th Pay Commission Report for the period from 1.1.2006 to 31.1.2009. Counsel for the petitioner states that this period in fact be extended till the petitioner’s services were terminated till 18.7.2013. By invoking principle akin to Order

7 Rule 7 CPC for taking note of subsequent events, I allow the modification of prayer clause to be considered that petitioner must be paid her salary in terms of the recommendations of the 6th Pay Commission Report from[1].1.2006 till 18.7.2013 in view of the fact that the Director of Education has directed implementation of the 6th Pay Commission Report for the schools in terms of its notification dated 11.2.2009.

4. That takes us to the issue that what is the amount which will now be payable to the petitioner for the period from 1.1.2006 till 18.7.2013, being the period for which petitioner has worked for the respondent no.2-school. I note that it is not the case of the respondent no.2-school that petitioner was in any manner guilty of concealing facts for taking appointment with respondent no.2-school by concealing her age. Therefore once the petitioner has worked with the school-respondent no.2, which has taken services of the petitioner for the period she has worked, therefore respondent no.2 is liable to pay petitioner recompense, remuneration and salary benefits for the period for which the petitioner worked with the respondent no.2-school and respondent no.2-school has taken the services of the petitioner as a teacher. I cannot agree with the arguments urged on behalf of respondent no.2 that since the petitioner was over-age, petitioner cannot be paid the monetary emoluments/benefits which are claimed by her. Surely, it is not open to the respondent no.2-school which has taken the services of the petitioner with open eyes to contend that the petitioner will not be paid the necessary monetary emoluments, more so because the respondent no.2 is bound by principles comprised in Section 70 of the Contract Act, 1872 which specifies that unless a thing understood to be done gratuitously, the same is not done gratuitously i.e it is done for remuneration.

5. Now on the issue as to the calculations of the amount due. This aspect in the opinion of this Court instead of being dealt with by the Court, can be done by the Director of Education, and I have passed various orders in this regard and one such order is passed in connected writ petitions with lead case being W.P.(C) No. 1119/2011 titled as Meena Singh Vs. Director of Education & Anr. decided on 4.7.2013 wherein I have directed that an employee must make a detailed representation to the Director of Education supported by documents and to which reply is given by the respondentschool, and the Director of Education after hearing the parties should pass speaking orders.

6. Accordingly, so far as the monetary emoluments claimed by the petitioner are concerned, the writ petition is disposed of by directing the petitioner to make a detailed representation supported by documents to the Director of Education within a period of four weeks from today. The respondent no.2-school will give reply to this representation within a period of four weeks alongwith a copy to the petitioner. Director of Education is requested to pass speaking order as to if any amounts are due to the petitioner, if so what amounts, and what would be the monetary reliefs including interest which have to be granted to the petitioner by the respondent no.2-school. If the Director of Education directs the payment of amounts to the petitioner, it is only the respondent no.2 which will be required to comply with such order, and compliance will be made within a period of four weeks of receipt of the same by the school.

7. On the Director of Education passing the speaking order, if any of the parties are aggrieved with respect to the issue of the calculations or the amounts paid or not paid, then, parties are at liberty to file appropriate independent proceedings with respect to the disputed amounts. The writ petition is accordingly disposed of, leaving the parties to bear their own costs. All interim applications which are pending stand disposed of and merged in terms of this judgment passed today.

DECEMBER 11, 2013 VALMIKI J. MEHTA, J. ib