Ms.Avnish Ahlawat, Advocate. v. JAG MOriAN LAL VARSHNEY

3. Inter alia the written agreement dated September 12, 1996, vide Clause No.3, obliged Delhi Administration to bear all habilities accruing' In futui'e relating to the service conditions of the employees of the school. Videsub-para (b) of clause-4of the agreement it was mandated:- ^ "The service rendered by the employee shall be taken into account for the purposes of pay, pension, gratuity, provident fund etc."

4. Clause No.6 of the agreement stipulated as under:- "The school shall be named as 'Raghubar Dayal Jan Kalyan Govt. Sr.Secondary School' and shall be referred so in all fiiture correspondences. The School after the execution of this deed shall run as anv other Govt School and shall be entitled for various facilities provided by the Govt to other Govt Schools." f Government of India introduced an Assured Career Progression Scheme (ACP Scheme) for Central Govermnent employees which was adopted by the Delhi Government and as regards the Directorate of Education vide Circular dated August 25, 2003 the scheme was made applicable to the teaching and non-teaching staff in Government Schools with retrospective effect from August 09, 1999 inasmuch as this was the date from which the Central Government had introduced the ACP Scheme. On July 18, 2001 the Department of Personnel & Training clarified that the ACP Scheme notified with effect from August 09, 1999 would apply to only those employees who were in regular service and service rendered with autonomous bodies other than of the Central Govermiient would be ignored.

6. Thus, in conformity witli the decision of the Central Government, Condition No.12 ofthe Scheme as per the Circular dated August 25, 2003 clarified that service rendered by any employee in any autonomous body cxcept under the Government of NCT Delhi would not be taken into account for puiposes of granting benefit under the ACP Scheme and hkewise any promotion earned while in service in any autonomous body would be ignored for purposes of the ACP Scheme. The reason for the same being, to remove stagnation, ACP Scheme envisaged an in situ promotion in the next above grade in the hierarchical post after 12 years service and another in situ promotion after 24 years service provided that no promotion was earned within the first 12 years service and no second promotion earned within 24 years service. For non hierarchical posts the next above pay-scale being applicable. of the ACP Scheme, provided for three in situ promotions after 10 years, 20 years and 30 years service upon promotions not being otherwise granted. The said Modified Assured Career Progression Scheme was adopted by the Government of Delhi and as regards the Directorate of Education a circular was issued on August 19, 2009.

8. Issue arose as to how the period of 12 years and 24 years under the ACP Scheme would be reckoned for the employees of the 'Jan Kalyan Madhyamilc Vidyalaya' renamed as 'Jan ICalyan Co-Education Sr. Secondary School'.

9. Whereas the Directorate of Education took the stand that the employees of the school would acquire the status of a Delhi Government employee with effect from September 12, 1996, the employees took the stand that since the Management of the School was talcen over on June 04, 1976, computation of length of service for purposes of ACP Scheme had to be with effect from June 04, 1976 or when they joined after June 04, 1976.

10. The employees pitched their stand on sub-rule (2) of Rule 47 of the Delhi School Education Rules 1973 which reads as under:- "(2) Where any surplus employee is absorbed under subrule (1):— (a) The salaiy and other allowance last drawn by him at the school from which he has become surplus shall be protected; (b) his provident fund account shall be transferred to the school in which he is so absorbed, and thereupon such

(c) the period of his quaUfying service in the school in which he had worked before such absorption and any previous period of qualifying sei"vice, if any, in any recognised aided school in Delhi shall be taken into account for the purpose of computing his pension and other retirement benefits."

11. The Government of Delhi took the stand that the status of employees of a Government School was accorded to. the staff of the school only on September 12, 1996.

12. Vide judgment and order dated April 21, 2011 allowing OA No.1761/2010 filed by the nine respondents of WP(C) No.6959/2011 the Tribunal held that the staff would be entitled to the benefit of sub-rule (2) of Rule 47 of the Delhi School Education Rules 1973 and as regards the reliance by the Government of Delhi upon the office memorandums issued by it, the Tribunal held that executive instructions could not override a statutory rule. Allowing OA No.4359/2010 filed by the respondent of WP(C) No.3650/2012, similar view was taken by another bench of the Tribunal.

13. The first fault committed by the Tribunal is to try and reconcile the ACP Scheme which was introduced by an executive policy with Rule 47 of the Delhi School Education Rules 1973.

14. The reason is that tlie grant of Assured Career Progression is not governed by any Rules and thus the policy under which the Assured Career Progression Scheme was notified could have stipulated any condition for its applicability including the date wherefrom length of employee of a private recognized aided school which faces closure and the employee is absorbed in Government service as also the service rendered, but limited to purpose of computing pension and other retirement benefits. In other words, the service protected by sub-rule (2) is limited for purjDOses of computing pension and other retirement benefits and no more. The Tribunal has overloolced the self limiting span of sub-rule (2).

16. In the decisions reported as AIR 1995 SC 85 State of Punjab & Ors. v^. Dev Putt Kaiishal and 1996 (8) SCC 448 State ofPunjab & Ors.

V. Tara Sinsh Shahi the" Supreme Court had declared that when the

Management of an institution established by a private body is taken over by the Government, the service of the employees would be subject to the terms and conditions of the takeover.

17. We have already highlighted herein above para (b) of Condition No.4 of the Takeover Agreement dated September 12, 1996 as also Condition No.6 thereof The former gives effect to sub-rule (2) of Rule 47 of the Delhi School Education Rules 1973 and the latter clearly records that the school acquires the status of a Government School only on September 12, 1996.