Sunita Nayyar v. Jhabban Lal D A V Senior Secondary Public School & Ors.

1. Petitioner by this writ petition prays for being appointed to the post of Trained Graduate Teacher (TGT) since July 1990 and for granting her consequential benefits thereof, pay and allowances etc. admissible to the post of TGT.

2. Basic claim of the petitioner is that petitioner though was appointed only as a Nursery/Primary Teacher, she was asked to take TGT classes continuously for 17 years and, therefore, the petitioner is entitled to get the pay-scale of TGT and for being appointed as TGT. 2013:DHC:4368

3. In my opinion, the contention, as raised on behalf of the petitioner, is misconceived because if a person is wrongly asked to perform duties of higher classes then the legal entitlement is to refuse to teach in the higher classes and which would be legally justified as teaching of higher classes would be beyond the scope of duties which the petitioner could have been legally asked to perform. If a person, however, teaches higher class that does not mean that such a person is entitled to promotion to the higher post of TGT and also entitled to get all consequential benefits which are paid to the TGT. I may state that the appointment to a higher post is governed by a different set of qualifications i. e the qualifications as required for appointment to the post of Primary Teacher and TGT are different. Of course, what the respondent No. 1-school may be doing would be illegal and immoral, however, this Court can only enforce legal right and which would have been directing the school not to allot higher classes for teaching to the petitioner, but this relief the petitioner does not seek.

4. Reliance is placed by the petitioner on the judgment of the Supreme Court in the case of Secretary-cum-Chief Engineer, Chandigarh vs. Hari Om Sharma and Ors., (1998) 5 SCC 587 is misconceived because in that case issue was of a promotion and the concerned person was working on the promotion post after being given promotion as a stop-gap arrangement but without being appointed on a regular basis, and hence the employee was asked to be paid the salary for the promotion post. The issue in the present case is not of promotion and, therefore, the judgment cited on behalf of the petitioner cannot apply.

5. I have had an occasion to consider this aspect in the case of Dayanand Sharma & Ors. vs. Govt. of NCT of Delhi and Ors. (W.P.(C) 1339/1997 decided on 17.04.2013) wherein I have held that if a teacher is wrongly asked to teach higher classes, then, such a Teacher can validly refuse to teach higher classes, however, such person cannot get a pay-scale of the higher post for which services were utilized by a school. Para 11 of the said judgment reads as under: “11. So far as the claim of the petitioner no.1 is concerned for the pay-scale of a TGT as the petitioner no.1 was stated to have been taking not only classes of Primary School but also of Middle Level, in my opinion, this claim is totally misconceived for two reasons. Firstly, the respondent-school in the counter-affidavit has stated that petitioner no.1 who was teaching “Dharam Shiksha” was only taking two classes per week and therefore he cannot be equated to other teachers who are taking many more classes in the subjects being taught by the other teachers. Secondly, in any case, if the petitioner no.1 is appointed to a particular post and is being made payment of the scale of that post, petitioner no.1 cannot complain by seeking higher payment of scale of higher post, and the only entitlement of the petitioner no.1 was that he could have refused to teach higher classes. In fact, the petitioner no.1 did so, and this is so stated in the counter-affidavit of the respondent-school in paragraph-5 and whereafter petitioner No.1 did not teach Middle Level classes. In any case, if illegal duties beyond the scope of work of the petitioner no.1 were being taken from the petitioner no.1 by the respondent-school, the petitioner could have either filed proceedings to restrain the school from taking the additional duties or should have refused to perform the duties, however, that is not a ground to make a legal claim for salary of a TGT, more so, because the petitioners job does not involve taking of as many number of classes as was being done by the teachers of the other subjects.” (underlining added)

6. Learned counsel for the petitioner states that petitioner was qualified to become TGT because petitioner got the B.Ed. qualification in 1989, and therefore she was asked to teach higher classes as a TGT Teacher. However, even this argument cannot help the petitioner because at best a formal process of appointment to the post of TGT could have been sought by the petitioner but she cannot claim automatic promotion from a PRT to a TGT and claim monetary package of a TGT. Appointment to any post in a school can only be by a proper appointing authority in terms of Rule 98 of the Delhi School Education Rules, 1973 and without following the procedure and provisions of Delhi School Education Act and Rules, 1973, there cannot be any appointment to a higher post and getting consequential benefits of the higher post. This argument on behalf of the petitioner is also thus rejected.

7. In view of the above observations, the writ petition is dismissed, leaving the parties to bear their own costs.

VALMIKI J. MEHTA, J SEPTEMBER 03, 2013 godara