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2018 Supreme(Del) 1941
IN THE HIGH COURT OF DELHI AT NEW DELHI
C. HARI SHANKAR, J.
Simmi Kathpal – Petitioner
Versus
Hanuman Mandir Public School And Ors. – Respondents
W.P. (C) 6840 of 2017
Decided On : 28-08-2018
For the Petitioner: Mr. Anuj Aggarwal, Mr. Ashutosh Dixit and Mr. Kshitij Arora, Advs.
For the Respondent: Mr. Shiv Charan Garg, Mr. Imran Khan and Ms. Akshay Pathak, Advs.
The central legal point established in the judgment is the entitlement of suspended employees to subsistence allowance and the school's obligation to comply with court orders for such payments.
Headnote:
Subsistence Allowance - Compliance with Court Order - Delhi School Education Act & Rules, 1973 - Rule 116(1)(c)
Fact of the Case:
The petitioner, a suspended assistant teacher, sought payment of subsistence allowance from the school. The school failed to comply with the court order to pay the allowance, leading to the present writ petition.
Finding of the Court:
The court found that the school had not complied with the order to pay the subsistence allowance, which is a natural entitlement of every suspended employee. The court also addressed the legal arguments regarding the school's amenability to Article 226 of the Constitution and the requirement of furnishing a certificate for the allowance.
Issues: Non-compliance with court order, amenability of private schools to Article 226, requirement of certificate for subsistence allowance
Ratio Decidendi: The court held that the school's failure to pay the subsistence allowance was unjustifiable and directed immediate compliance. It also clarified the legal position regarding the school's amenability to Article 226 and the sufficiency of the petitioner's declaration as a certificate for the allowance.
Final Decision: The writ petition was allowed, and the school was directed to comply with the court order to disburse the subsistence allowance to the petitioner. The petitioner was also instructed to furnish the amount of subsistence allowance payable for the specified period to the school.
1. The prayer in this writ petition is essentially for issuance of a direction, to the Respondent No.1-School (hereinafter referred to as “the School”) to comply with the directions contained in the order, dated 29th April, 2017, passed by the Deputy Director of Education (hereinafter referred to as “the DDE”).
2. Paras 2.1 to 2.8 of the writ petition are completely irrelevant, in so far as the controversy in issue is concerned. The relevant facts, which commence from para 2.9, may be culled out as under:
3. On 24th August, 2015, the petitioner who, at that time, was working as Assistant Teacher in the school, was suspended from service. This was followed by issuance, to the petitioner, of a show cause notice, and, thereafter, a charge-sheet.
4. Aggrieved at the fact that, despite her being suspended, she was not being disbursed any subsistence allowance, the petitioner issued a legal notice dated 15th December, 2015, through counsel, to the respondent. There is a categorical assertion, in the said legal notice, to the effect that, since the date of the suspension from service, the petitioner was completely unemployed, and that, despite her best efforts, she had not been able to procure any employment whatsoever.
5. On the petitioner’s entreaties for payment of subsistence allowance falling on deaf ears, the petitioner moved this court by way of WP(C) 10795/2016, for issuance of a direction, to the school, to pay her subsistence allowance. The said writ petition was disposed of, by this court, with an order dated 24th November, 2016, noting that the petitioner had an efficacious alternative remedy in the form of an appeal to the Director of Education (hereinafter referred to as the “DOE”) and, accordingly, granting liberty to her to approach the DOE “who after hearing the petitioner will pass appropriate orders”. Liberty was reserved, to the petitioner, to re-approach this court in appropriate proceedings, if she continued to remain dissatisfied. The DOE was directed to dispose of the appeal, preferred by the petitioner, under Rule 116 (2) of the Delhi School Education Rules, 1973 (hereinafter referred to as the “DOE Rules”) within a period of six weeks.
6. The petitioner, accordingly, submitted an appeal, to the DOE, on 29th November, 2016, which was disposed of, by the DDE in the office of the DOE, by order dated 29th April, 2017 (supra), wherefrom the present writ petition emanates.
7. The DDE, while disposing of the appeal, entered an observation, in para 7 of the order, to the effect that the appropriate authority, to decide the appeal, was the Municipal Corporation of Delhi. Even so, however, the DDE proceeded to decide the appeal in view of the directions issued by this court, in its judgment dated 24th November, 2016 (supra).
8. The school was directed, in the aforementioned order dated 29th April, 2017 to “adhere to rules mentioned in Delhi School Education Act & Rules, 1973 and pay the petitioner/Ms. Simmi Kathpal, subsistence allowance for the period of suspension”.
9. Aggrieved at their having been no compliance with the aforementioned order dated 29th April, 2017, the petitioner has approached this court once again by means of the present writ petition, exhorting this court to direct the School to comply with para 8 of the said order.
10. Mr. Shiv Charan Garg, appearing for the respondent, has raised several objections, both preliminary and substantive, to the claim of the petitioner. These may be enumerated thus :
(i) It is first contended, by Mr. Garg that private schools such as the respondent-School, are outside the shadow of Article 226 of the Constitution of India, not being “State”. Reliance is placed for this purpose, on the judgment in Committee of Management, Delhi Public School v. M.K. Gandhi, (2015) 17 SCC 353.
(ii) Rule 116(1)(c) of the DSE Rules prescribes, as a sine qua non for grant of subsistence allowance, furnishing of a certificate, by the concerned employee, to the effect that he/she is not eng
