Janardan Sharma v. GNCT of Delhi

1. The present petition has been filed by the petitioner with the following prayers: “In view of the aforementioned facts and circumstances it is most respectfully prayed that this Hon'ble Court may be pleased to: a) Issue an appropriate writ, order, or direction to the Respondent No.1 & 2 for the implementation of the Payment of Gratuity (Amendment) Act, 2009 (No. 47 of 2009) with retrospective effect from 03/04/1997 and extending benefits for Payment of Gratuity to the Vocational Part-Time Teachers' working under the Govt. Schools of the GNCT of Delhi. b) Issue an appropriate writ, order, or direction to the Respondent No.2 & 3 to release the payment of the Gratuity to the Petitioner and/or Vocational Part Time Teachers' after their superannuation or 2021:DHC:2288 W.P.(C)11154/2019 Page 2 retirement or relieving from the service after attaining the age of 60 years. c) Pass such order or further order(s) including order in respect of costs of the petition as may be deemed fit and proper in the facts and circumstances of the present case.”

2. The facts as noted from the petition are that in the year 1977-78 the respondent No.2 / Directorate of Education, Govt. of NCT of Delhi had introduced Vocational Stream in +2 stage of the school education. The Directorate created various posts for Vocational Teachers on temporary basis which have been continued on year-to-year basis by the subsequent orders issued by it. The petitioner was appointed as a Part Time Vocational Teacher in the course of Banking by the respondent No.2 on December 02, 1991.

3. Vide notification dated August 07, 1995, the respondents have framed Recruitment Rules for the posts of Post Graduate Teachers (Vocational) in various Vocational Courses. In the year 2009, the Parliament amended the definition of the word ‘employee’ as defined in Section 2(e) of the Payment of Gratuity Act, 1972 (‘Act of 1972’, for short) with retrospective effect, from April 03, 1997. Pursuant thereto, the teachers were entitled to the Gratuity under the Act of 1972 from their employer w.e.f. April 03, 1997. The petitioner continued to work as a Part Time Vocational Teacher with the respondents and has retired on attaining the age of superannuation on March 26, 2020.

4. Mr.Varun Mudgil, learned counsel for the petitioner in support of the petitioner’s case has reiterated the stand taken in W.P.(C)11154/2019 Page 3 the petition. That apart, he stated that the teachers having been covered under the Act of 1972, could not have been denied the same. In support of his submission, he has relied upon the judgment of a Coordinate Bench of this Court in the case of National Bal Bhawan v. Vandana, W.P.(C) 10027/2019 and other connected petitions decided on November 27, 2019 to contend, even a part time employee is eligible for gratuity as held by the Court in the said judgment.

5. On the other hand, Mr.Santosh Kumar Tripathy, learned Standing Counsel appearing for the respondents would submit that the petitioner’s appointment was temporary on contingent basis with the condition that his services are liable to be terminated at any time. Approval for Vocational Teachers continuation was issued every academic / financial year by the department with prior concurrence of Hon’ble Lieutenant Governor Delhi and their wages are being paid from contingency fund. They are paid on the basis of periods taken by them subject to a maximum of 32 periods per week and the payment is made on the basis of actual periods taught by them. It is conceded that the work of training and skill training to students is being imparted in terms of National Skill Qualification Framework as introduced by the CBSE in 2018 through Vocational Trainers in the Government Schools and are outsourced through Vocational Training Partners i.e. private agencies. The nomenclature of the post was changed from Vocational Teacher to Vocational Trainer. The subjects cannot be introduced on permanent basis as the subjects are introduced W.P.(C)11154/2019 Page 4 on market demand and utility basis. The Recruitment Rules for appointment of Teachers, under the newly introduced NSQF are yet to be revised.

6. Mr. Tripathy during submissions has sought time to take instructions. The Court did not grant time, as he had earlier also sought time, but could not get any instructions. As the issue which falls for consideration is a very short one, I proceed to decide the same.

7. Having heard the learned counsel for the parties, there is no dispute that the teachers have been included within the definition of the word ‘employee’ under Section 2(e) of the Act of 1972 in the year 2009 w.e.f. April 03, 1997. For all purposes, a teacher is entitled to gratuity. The Supreme Court has also in its judgment in the case of Birla Institute of Technology v. The State of Jharkhand and Ors., MANU/SC/0337/2019, has dismissed the appeal filed by the appellant Institute by relying upon the amendment, in the proceedings initiated by a teacher before appropriate authority for grant of gratuity under the Act of 1972. The Supreme Court has in paras 29 and 30 held as under:

8. Having said that the plea of the learned Standing Counsel for the respondents is that the petitioner was working as Part Time Vocational Teacher and as such not entitled to gratuity. I am afraid the said plea is unmerited in view of the definition of the word ‘wages’ in Section 2(s) of the Act of 1972. A similar plea was taken on behalf of the petitioner in National Bal Bhawan (supra) which was rejected by a Coordinate Bench of this Court by holding as under: