Excerpt
The Petitioner has filed the writ petition, in the nature of mandamus, directing the Respondents to act in accordance with and not in contravention of the Delhi School Education Act & Rules 1973 and therefore pass orders granting re-employment to the Petitioner.
Issues before the Court
Whether the petitioner, who has retired on December 31, 2020, is to be re-employed as a matter of right till April 30, 2021?
Facts of the Case
Ranbir Singh Malik, the petitioner, was appointed as T.G.T. (Geography), Social Science Department on July 15, 1988, in the Greenfields Public School which is a private unaided recognized School. The petitioner retired on December 31, 2020, after serving for 32 years. He filed representations for re-employment under Rule 110 (2) of the Delhi School Education Rules, 1973 but received no response from the other side. Hence, the petitioner has filed the writ petition, in the nature of mandamus to grant re-employment of the petitioner.
Arguments before the Court
The counsel for the petitioner submitted that the petitioner is entitled to re-employment till April 30, 2021, according to the said Rules of 1973. the rule has been intended to avoid disturbance caused due to the retirement and the difficulties faced by the students to adjust with the new teacher as well as to complete the syllabus in a timely manner.
The learned counsel for the respondent submitted that the School has two teachers who are teaching the students the very same subject that the petitioner was teaching and most of the syllabus has already been completed. Further adding to it, the council said that the word “shall” under Rule 110(2), has to be read as “may” and hence, the same is not mandatory but the only directory in nature otherwise it would lead to various absurdities and illegalities. The only right it confers is of consideration to be re-employed and not to be conferred as an absolute right of re-employment. The consideration of a teacher for re-employment must be left to the discretion of the Management of an Unaided Recognized School.
The provisions of a statute are not absolute or unexceptionable so it is not “mandatory” but can be read as ‘directory” in nature. The Proviso to Rule 110(2) of Rules of 1973 does not provide for any contingency in case of its non-compliance or result of non-grant of re-employment or in case of it being construed as “directory” instead of “mandatory”.
Observation of the Court
The plea that under the Rules of 1973 to give re-employment to a Teacher / Principal or Vice-Principal, who retires after 1st November of a calendar year, (the) word “shall” must be read as “may” and should be read down to mean that the discretion lies with the School to consider the case of a teacher for re-employment post superannuation, is not appealing in view of the settled position of law and in turn denotes an obligation on the part of the schools.
The provisions of the said rule (are) mandatory in nature and hence the plea that the subject is being taught by two other teachers and there is no requirement of re-employment is also not appealing in view of the mandatory nature of the said provision.
Court’s Decision
The court didn’t find the arguments from the respondents appealing enough and hence declared that the present writ petition is liable to be allowed and directed the School to re-employ the petitioner within a period of one week. The court held that the petitioner shall be entitled to back wages from January 01, 2021, and his re-employment shall continue till April 30, 2021. The writ petition is disposed of at no cost.
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