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24th January, 2017 SHAIL BALA CHAUHAN ..... Petitioner
Through: Ms. Sonia A. Menon, Adv.
Through: Mr. Naushad Ahmed Khan, ASC (Civil), GNCTD with Mr. Ramesh Chander, DEO Zone-IX for R-1.
To be referred to the Reporter or not? VALMIKI J. MEHTA, J (ORAL)
JUDGMENT
1. By this writ petition under Article 226 of the Constitution of India, the petitioner/Smt. Shail Bala Chauhan, a person working as an Assistant Librarian with the respondent no.2/school when the writ petition was filed in the year 2005, seeks three reliefs. The first relief is that the petitioner should be taken as appointed not as a Library Assistant but as an Assistant Librarian when petitioner was first given appointment although the letter of appointment of the petitioner with the respondent no.2/school dated 20.5.1991 gives appointment to the petitioner as a Library Assistant. The second relief which is claimed is that petitioner’s appointment as 2017:DHC:435 Assistant Librarian by the respondent no.2/school in 1997 is in fact only a correction of the wrong designation earlier given of Library Assistant and in 1997 petitioner got the correct designation of Assistant Librarian which was wrongly not given in 1991 when the petitioner was appointed by the respondent no.2/school. The third relief which is claimed by the petitioner is that since the petitioner has completed 12 years of service, petitioner hence is entitled to benefit of ACP Scheme whereby petitioner must get pay-scale of the higher post of Assistant Librarian in view of the ACP Scheme dated 25.8.2004 read with Section 10 of the Delhi School Education Act, 1973 which provides that the monetary benefits which are granted to teachers/employees in private schools must be the same as those given to teachers/employees in government schools.
2. So far as the first issue is concerned, let me at this stage reproduce the letter of appointment of the petitioner dated 20.5.1991 issued by the respondent no.2/school and which letter reads as under:- “ D.A.V College Managing Committee CHITRA GUPTA ROAD NEW DELHI- 110055 Ref. No.... Dated: 20th May, 1991 To Miss Shail Bala Thakur 2900 Gali Pipal Wali Old Sabzi Mandi, Delhi-7 Sir/Madam With reference to your application and interview for the post of Library Asstt. for D.A.V.Model Senior Secondary School, Shalimar Bagh Delhi I hereby offer you an appointment as Library Assistant on the basic pay of Rs.950/-1500 p.m. plus admissible allowance in the Pay-scale of Rs.950-1500 on probation for a period of twelve months from the date of your joining on the following terms & conditions.
1. On the expiry of the probationary period, you may be confirmed in the post if your work is found to be satisfactory. Your next increment will fall due from the date of your confirmation. In case, however, probationary period is extended for a year or so you will be entitled to the increment.
2. During the period of probation your services may be terminated by giving One Month’s notice on either side. After confirmation your services can be terminated by three months notice on either side.
3. In the matter of leave and general conditions of service, you will be governed by the rules & regulations of the D.A.V. College Managing Committee, Chitra Gupta Road, New Delhi.
4. During the period of your employment if you wish to apply for a post elsewhere, you must get your application forwarded through the Principal of the School.
5. As a whole time employee you are expected to carry out the instructions of the Principal implicitly and devote your whole time to the service of the institution where you are employed. You may not engage yourself in any private trade or undertake additional work outside which may interfere with your normal duties in the School without permission of the D.A.V. College Managing Committee. If you propose to take up any tuition work, you will have to obtained the Principal’s permission in writing, and in case you propose to take an examination, you will obtain the committee’s permission therefore.
6. After your confirmation you will join as a Member of the Provident Fund. Deductions from your salary and Managing Committee’s contributions will be made regularly in accordance with the Provident Fund Rules of the D.A.V. College Managing Committee.
7. Increment will be granted to you in the normal course if your work continues to be satisfactory. It may be with-held in case of adverse report.
8. The Managing Committee has the right to transfer you from one institution to another as and when if considers necessary. If you accept the appointment on the terms and conditions stated above, your acceptance may be communicated immediately in the proforma given below. Yours faithfully Sd/- (Organising Secretary) ACCEPTANCE I accept the appointment on the terms & conditions given above Signature- Sd/- Full Name- Miss Shail Bala Thakur Address- 2900 Gali Pipal Wali Old Sabzi Mandi, Delhi-7”
3. Admittedly, the petitioner has been specifically given the appointment letter for the post of Library Assistant and not as an Assistant Librarian. Petitioner has acted upon this appointment letter, and once petitioner took appointment from respondent no.2/school as Library Assistant, subsequently, thereafter the petitioner cannot turn around to claim that though petitioner’s appointment letter gave appointment as a Library Assistant, but in view of the higher qualifications of the petitioner, petitioner should not be taken as appointed as a Library Assistant but should be treated as having been appointed as an Assistant Librarian.
4. Petitioner though has claimed in the writ petition that advertisement was issued for the post of Assistant Librarian by the respondent no.2/school in 1991 and not for the post of Library Assistant, however, respondent no.2/school along with its counter-affidavit has filed the advertisement in question and this advertisement in question clearly shows that advertisement was issued by the respondent no.2/school, not for the post of Assistant Librarian but for the post of Library Assistant. This advertisement filed as Annexure R-2/1 to the counter-affidavit of respondent no.2/school reads as under:- “D.A.V.MODEL SR. SEC.
SCHOOL SR. SEC.
SCHOOL BN BLOCK SHALIMAR BAGH, DELHI-110052, PHONE-7213634, 7110278 Wanted well QUALIFIED TRAINED TEACHERS with Public-school background and proficiency in English, preferably females, for the following posts. Special consideration possible for exceptionally qualified, experienced and dedicated candidates. Atleast(i) 3-years experience in an English Medium Public School and (ii) 2nd Class Degree/Diploma essential:- * P.G.T.:-Grade-Rs. 1640-60-2600-EB-75-2900 plus admissible allowance (Total Rs. 3101/-p.m,) for English, Chemistry, Commerce, Accountancy, History, Geography, Political Science, Engineering Drawing & P.E.T.- Qualifications M.A./M.Com, M.Sc.& B.Ed. * T.G.T.:- Grade-Rs.1400-40-1600-50-2300-EB-40-2040 (Plus admissible allowances (Total Rs.2509/- p.m) for English, Hindi, Physics, Sanskrit, Electronics and Social Studies - Qualifications M.A./M.Sc./B.P.E.Ed/M.P.E.Ed/B.A/B.Sc/B.Ed. * Primary Teachers:-Grade Rs.1200-30-1560-EB-40-2600 plus admissible allowance (Total Rs.2207 p.m) for English, Hindi, Maths, Sanskrit, Arts, Music, Social studies and General Science. * Lab. Attendants:- Grade Rs.750-12-870-EB-14-940 plus admissible allowances (Total Rs.1313/-p.m). Qualifications Matric /10+2 with science subjects and with 2 years experience. * Library Assistant:-Grade Rs.800-15-1010-EB-20-1150 plus admissible allowance (Total Rs. 1388/- p.m) Qualification B.A with experience of Library Assistant. * Nurse:- Grade Rs.800-15-1010-EB-20-1150 plus admissible allowance (Total Rs. 1388/- p.m) Qualification Qualified Nurse with experience. Apply on prescribed forms available in the office of the School on all working days between 9.00 A.M and 12.00 noon, on payment of Rs.20/- per form. Last date for the submission of the Applications is 21st May, 1991.” (underlining added)
5. Accordingly, the contention of the petitioner is misconceived that advertisement was given by the respondent no.2/school for the post of Assistant Librarian, inasmuch as and in fact advertisement was given for the post of Library Assistant. Therefore, petitioner has committed perjury in stating that advertisement for the post in 1991 was for Assistant Librarian whereas in fact the advertisement was for the post of a Library Assistant only. Also, if the petitioner was appointed at the post of Assistant Librarian, and not as a Library Assistant as claimed, then petitioner immediately after the appointment letter dated 20.5.1991 would have started corresponding and seeking correction of her appointment rightly to be Assistant Librarian and not as Library Assistant, but the petitioner before 1997 has not filed any correspondence of her with the respondent no.2/school whereby petitioner claimed that petitioner was wrongly appointed as a Library Assistant instead of Assistant Librarian. In 1997 petitioner got promotion to the post of Assistant Librarian as stated below. Obviously, petitioner did not enter into such correspondence after appointment in 1991 and till 1997 because the advertisement in 1991 was for the post of Library Assistant and the appointment letter dated 20.5.1991 accordingly issued to the petitioner was for a Library Assistant, and petitioner therefore could never have sought any appointment of Assistant Librarian from the original date of her appointment in May, 1991.
6. Petitioner has thereafter sought to manipulate facts by claiming that respondent no.2/school realized its mistake of the petitioner being appointed as a Library Assistant instead of really petitioner having to be appointed as Assistant Librarian, because petitioner claims that petitioner was given the post of Assistant Librarian by correction of designation in 1997 as stated in para 6 of the writ petition, however, it is seen that the respondent no.2/school has filed a copy of its office order dated 7.1.1998 showing that the petitioner was in fact promoted to the post of Assistant Librarian and not that the petitioner’s designation was corrected from Library Assistant to Assistant Librarian. This order dated 7.1.1998 filed as Annexure R-2/4 to the counter-affidavit of respondent no.2/school reads as under:- “D.A.V. COLLEGE MANAGING COMMITTEE CHITRA GUPTA ROAD, NEW DELHI-110055 Ph: (Admn.) 7525335, 739357, 524304 Ph: (P.S.) 7521284, 3557384, 3040557 Ref No. P.S./Shalimar Bagh/G-5 Dated:7.1.98 OFFICE ORDER Mrs. Shail Bala, Library Assistant working with Darbari Lal DAV Model School, Shalimar Bagh, Delhi in the scale of Rs.950-1500 has been promoted in the scale of Rs.1200-2040 w.e.f. 1.12.97 as Assistant Librarian.” Sd/- (SHEETAL SHARMA) Director (PS-I) Copy to:
1. Mrs. Shail Bala, Darbari Lal DAVModel School, Shalimar Bagh, Delhi-
110052.
2. Principal, Darbari Lal DAVModel School, Shalimar Bagh, Delhi-110052.
3. Accounts Section (P.S.) Sd/- (SHEETAL SHARMA) Director (PS-I)”
7. Therefore, there remains no manner of doubt that advertisement was for the post of Library Assistant, petitioner was appointed as Library Assistant in terms of the appointment letter dated 20.5.1991, petitioner acted as a Library Assistant pursuant to the appointment letter dated 20.5.1991 inasmuch as the petitioner never corresponded before 1997 for seeking correction of her allegedly being given wrong designation of Library Assistant instead of Assistant Librarian, and that petitioner’s case of correct designation being given in 1997 is false for the reason that petitioner was in fact promoted to the post of Assistant Librarian by the order of the respondent no.2/school dated 7.1.1998. Petitioner therefore is found guilty of repeated perjury committed before this Court and coming up to this Court with a totally false and frivolous case.
8. Learned counsel for the petitioner sought to place reliance upon two documents, one letter dated 21.5.1991 of the respondent no.2/school and a Provident Fund statement of 1994-95 of the respondent no.2/school where the petitioner has been shown as an Assistant Librarian before 1.12.1997, however, merely because the document dated 21.5.1991 being the call letter wrongly describes petitioner being called for Assistant Librarian, and that the petitioner is referred to as an Assistant Librarian in some Provident Fund statement, these cannot take away the fact that the advertisement of 1991 and the appointment letter issued to the petitioner was only as a Library Assistant and not as an Assistant Librarian, and petitioner not only acted upon the same, but also that the petitioner never corresponded with respondent no.2/school that she has wrongly been given the post/designation of Library Assistant instead of Assistant Librarian. I have already reproduced above the advertisement in question pursuant to which petitioner applied for and was appointed, and which was for the post of Library Assistant, and which aspect has to be taken with the fact that the order dated 7.1.1998 issued by the respondent no.2/school is for promotion of the petitioner to the post of Assistant Librarian w.e.f 1.12.1997 i.e there is promotion of the petitioner and not allegedly correction of designation of the petitioner to Assistant Librarian and which is sought to be alleged by the petitioner.
9. The next aspect in this writ petition is the claim of entitlement of the petitioner for a higher scale of pay of the higher post of Librarian after completion of 12 years of service as an Assistant Librarian, and no doubt the ACP Scheme will apply for the benefit of the petitioner for being granted pay-scale of the higher post, after 12 years of completion of service as an Assistant Librarian, provided otherwise the petitioner complies with the eligibility criteria and qualifications for the higher post, yet entitlement of the petitioner for the ACP Scheme would be after 12 years from 1.12.1997 i.e after 1.12.2009, and which is a date after filing of this writ petition on 20.5.2005, and therefore, as on 20.5.2005 when the writ petition was filed, petitioner had not completed 12 years of service in the post as Assistant Librarian for being granted higher pay-scale of the post of Librarian when this writ petition was filed. Since petitioner has not completed the period of 12 years when the writ petition was filed, I am not examining the merits of the case of the petitioner with respect to the entitlement of the ACP Scheme on the petitioner complying with the requirements and eligibility criteria as per the ACP Scheme of the higher post of Librarian, and with respect to which liberty is given to the petitioner to seek the same in accordance with law in case petitioner is otherwise entitled to seek ACP benefits on compliance of the ACP Scheme, and which ACP Scheme will apply to private schools such as the respondent no.2/school in view of Section 10 of the Delhi School Education Act.
10. Counsel for the petitioner argues that as per the counter affidavit filed by the Director of Education in this case there is no sanctioned post of Assistant Librarian with the respondent no.2/school in Delhi, however, it is seen that respondent no.2/school is a completely unaided private school, and therefore, such unaided private school which does not receive any grant from the Director of Education is entitled to have posts fixation de hors designated posts in government schools and government aided schools in Delhi. Obviously, with respect to such posts which do not find mention in the posts carved out by the Director of Education for government schools or government aided schools some parity or similarity will apply with respect to similar posts as in private schools or in government schools/government aided schools for monetary emoluments, however, that is not a ground to allow a writ petition in the present case when the aforesaid facts are seen where petitioner not only has resorted to repeated perjury and that the petitioner was appointed and acted upon the appointment to the post of a Library Assistant and not as an Assistant Librarian. Further, it is also noted that this aspect now argued by the petitioner is not even pleaded in the writ petition as a cause of action for grant of relief, and even if such cause of action was pleaded, I have failed to understand the logic and rationale of such a cause of action because petitioner claims appointment not to the post of Library Assistant but as an Assistant Librarian, and therefore, how can the petitioner raise an argument that Director of Education has not created a post of an Assistant Librarian to which petitioner claims she was originally appointed in 1991.
11. In view of the above, there is no merit in this writ petition and the same is therefore dismissed. In view of the repeated perjury committed by the petitioner I was inclined to impose heavy costs to serve as a reminder to litigants for not setting up false cases, and I had intended to impose costs of at least Rs.25,000/-, but considering that petitioner is a retired employee of a school, I am not imposing costs, with the caution to the petitioner that in case any frivolous litigation is initiated by the petitioner, then the aspect of costs would be considered at that stage.
12. The writ petition is accordingly dismissed and disposed of with the aforesaid observations.
JANUARY 24, 2017 VALMIKI J. MEHTA, J ib