Full Judgment Text
REPORTABLE
2024 INSC 635
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). 7440-7441 OF 2012
NEW DELHI MUNICIPAL COUNCIL
AND ANOTHER .…APPELLANT(S)
VERSUS
MANJU TOMAR AND OTHERS ..RESPONDENT(S)
WITH
CIVIL APPEAL NO(S). 7442-7444 OF 2012
J U D G M E N T
Mehta, J.
1. Heard.
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2. These appeals filed by New Delhi Municipal Council
(hereinafter being referred to as ‘NDMC’) and Delhi Sikh Gurdwara
2
Management Committee (hereinafter being referred to as
th
‘DSGMC’) arise out of a common judgment dated 9 December,
2009 passed by the High Court of Delhi in Letters Patent Appeal
Signature Not Verified
Digitally signed by
KAVITA PAHUJA
Date: 2024.08.28
15:03:30 IST
Reason:
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Civil Appeal No(s). 7440-7441 of 2012
2
Civil Appeal No(s). 7442-7444 of 2012
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Nos. 441 and 442 of 2009 and hence, they have been heard and
are being decided together.
Civil Appeal Nos. 7442-7444 of 2012
3.
Facts in a nutshell relevant and essential for disposal of the
appeals are noted hereinbelow.
4. The appellant-DSGMC was managing and operating a school,
namely, Khalsa Boys Primary School (in short ‘school’),
constructed by it in the premises of the Gurudwara Bangla Sahib,
New Delhi. The school was initially started with 130 students, five
teachers including the Headmistress, 2 peons and one helper. The
school was receiving 95% grant from the NDMC and remaining 5%
contribution was made by the appellant-DSGMC towards the
budget of the school. Respondents No. 1, 5, 6, 7 and 8 were
employed as the Headmistress, Assistant Teacher, Water Women,
Sweeper-cum-Chowkidar, Chowkidar, respectively in the school.
5. It is claimed that over a period of time, the building of the
school became old and dilapidated and also, considering the
growing number of devotees visiting the Gurudwara, the appellant-
DSGMC was finding it difficult to run the school on a day-to-day
basis. The appellant-DSGMC, therefore, decided to shift the school
from its existing location to a new premises i.e. at Mata Sundari
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College, Old Building, New Delhi. Since the school was receiving
95% grant from the NDMC, the appellant-DSGMC moved the
NDMC seeking permission to shift the school.
6.
Upon receiving information about the proposed shifting of the
school by the appellant-DSGMC, the Headmistress and other staff
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of the school challenged the said proposal by filing Writ Petitions
th
in the High Court of Delhi. An ex-parte stay order dated 30 May,
2005 was passed by the learned Single Judge of High Court of
Delhi, staying the proposed shifting of the school. However, in spite
of the stay order being granted and having been communicated,
the appellant-DSGMC demolished a substantial part of the school
building thereby, making it non-functional. Consequent to the
demolition of the school building, the NDMC stopped the grant-in-
aid under Rule 69 of the Delhi Education Act and Rules, 1973
(hereinafter after being referred to as ‘Delhi Education Rules’) on
the reasoning that it was under an obligation to provide grant-in-
aid to schools which fell within its territorial jurisdiction and that
the alternate location selected by the appellant-DSGMC, i.e., Mata
Sundari College was outside the jurisdiction of the NDMC.
3
WP(C) Nos. 9951-52/2005
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7. The High Court of Delhi disposed of the above writ petitions
th
vide order dated 6 October, 2005 with a direction to the NDMC
to consider and decide within four weeks as to whether ex-post
facto sanction could be granted to the appellant-DSGMC to close
down the school since the same was being shifted to an area which
was outside the jurisdiction of the NDMC, thus, the shifting could
lead to the closure of the school. Following the direction given by
th
the High Court, the NDMC issued an order dated 14 February,
2006 whereby, it invoked Rule 55(1) of the Delhi Education Rules
and noted that ex-post facto sanction could not be granted for
running the school at the Mata Sundari College because it fell
beyond its jurisdiction and consequently, it was decided to
withdraw the recognition and to stop the grant-in-aid to the school
being run by the appellant-DSGMC.
8. The teaching as well as non-teaching staff of the school filed
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fresh writ petitions in the High Court of Delhi, seeking a direction
for absorption in a NDMC/Government aided school and also to
command the appellant-DSGMC to pay them the salaries and
other service benefits.
4
WP(C) Nos. 13044-55/2006
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9. The said writ petitions were later amended and the order of
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the NDMC dated 14 February, 2006 was also assailed by the
teaching as well as non-teaching staff of the school. The writ
petitions were disposed of by the learned Single Judge vide order
th
dated 13 July, 2009 in the following manner:-
i) NDMC was directed to pass a speaking order afresh within
four weeks from the date of receipt of the decision
reflecting as to whether ex-post facto sanction in terms of
Rule 46 of Delhi Education Rules could be granted to the
appellant-DSGMC to close down the school and if not why;
ii) The appellant-DSGMC would continue to pay the salaries
to the serving staff and pensionary benefits to petitioners
No. 6 to 12(respondents No. 8 to 14 herein) w.e.f. March,
2006, till the NDMC passed a fresh order in terms of the
decision.
10. The above order of the learned Single Judge was assailed by
the then serving teachers/staff and the retired teachers of the
school before the Division Bench of the High Court by filing two
5 th
Letters Patent Appeals , which were allowed vide order dated 9
December 2009, with the following directions:
5
LPA No. 441 of 2009 in Ms. Manju Tomar & Ors. v. NCT & Ors. & LPA No. 442 of 2009 in Ms. Santosh Kaur
& Ors. v. NCT & Ors.
5
(i) Pay the arrears of salary;
(ii) Employ the petitioners No. 1-5(respondents No. 1-5 herein)
in a Government or Government-aided school within
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twelve weeks of the order dated 9 December, 2009 i.e. by
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8 March, 2010;
(iii) Otherwise, the DSGMC would be required to pay the
petitioners No. 1-5(respondents No. 1-5 herein) the full pay
th
and all perquisites from 4 March, 2010 onwards;
(iv) NDMC was directed to pay to petitioners No. 6 to
12(respondents No. 8 to 14 herein) the entire arrears of
salary/retiral benefits with simple interest @ 9% per
annum within twelve weeks. NDMC was further directed
to regularly transfer pensionary amounts directly to the
bank accounts of the petitioners No. 6 to 12(respondents
No. 8 to 14 herein). However, NDMC was given liberty to
seek reimbursement of the entire amount, as directed
above, from the appellant-DSGMC which had closed the
school without prior approval of the appropriate authority;
(v) After re-employment, the tenure, seniority, pay scales and
perquisites of the in-service staff i.e. the petitioners No. 1
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to 5(respondents No. 1 to 5 herein) would not be adversely
affected just because of closure of the school;
(vi) Since the petitioners No. 1 to 5(respondents No. 1 to 5
herein) had not worked during the period 2006-2009, they
would be entitled to receive only 50% of their pay and
perquisites but this period would be counted for the
purposes of their seniority and for computing their
pensionary and other statutory benefits.
11. The said common order of the Division Bench of the High
Court is assailed in these appeals preferred by the NDMC and the
appellant-DSGMC, respectively.
12. We have heard and considered the submissions advanced by
learned counsel for the parties and have gone through the
impugned judgments and the material placed on record.
13. The following facts as emerging from the record are not in
dispute:-
(i) That appellant-DSGMC demolished a substantial part of
the school building without seeking permission from the
competent authority, i.e., NDMC, leading to the closure of
the school.
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(ii) That the demolition was undertaken in spite of an interim
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stay order passed by the High Court of Delhi on 30 May,
2005 in Writ Petition(Civil) Nos. 9951-52 of 2005, staying
the proposed shifting of the school.
(iii) The recognition and grant extended to the school was
th
withdrawn by the NDMC vide order dated 14 February,
2006, and as a corollary thereto, the appellant-DSGMC
was no longer entitled to receive 95% grant which was
provided by the NDMC for running the school in the
premises of the Gurudwara. Thus, the obligation to
reimburse the pay and other service benefits accruing to
the teaching and non-teaching staff of the school fell upon
the appellant-DSGMC.
(iv) That the appellant-DSGMC did not challenge the decision
th
of the NDMC dated 14 February, 2006, withdrawing the
recognition and the grant-in-aid, before any forum.
(v) That the employees of the school have filed a Contempt
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Petition before the High Court of Delhi wherein, the
st
learned Single Judge vide order dated 1 October, 2019
observed as below: -
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Contempt Petition (Civil) No. 805 of 2016 in Manju Tomar & Ors. v. Manjit Singh GK & Ors.
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“In effect, the respondent no. 4 in the LPA namely:
Delhi Sikh Gurdwara Management Committee, Guru
Gobind Singh Bhawan, Gurdwara Rakabganj, New
Delhi-110001, was required to do the following:
i) pay the arrears of salary;
ii) employ the petitioners in a Government
or Government-aided school within twelve
weeks of the order dated 09.12.2009 i.e. by
08.03.2010.
iii) otherwise, the DSGMC would be
required to pay the petitioners the full pay
and all perquisites from 04.03.2010
onwards.
Admittedly, the employment was not done till
30.01.2018. There is a delay of roughly eight
years, short of 36 days. Respondent no. 4-DSGMC
had offered employment to the petitioners by its
letter dated 17.08.2010 calling upon them to join
Guru Tegh Bahadur International School,
Fatehabad, Haryana. The petitioners declined to
join the said school, because the said offer was not
in accordance with the directions of this Court i.e.
the school was neither Government owned nor
Government-aided. Furthermore, it was situated
in Haryana and not in Delhi.
Keeping the said response in mind, the DSGMC
offered yet another employment at their various
schools in Delhi, however, yet again none of these
schools were either Government owned or
Government-aided. Hence, the petitioners expressed
their reservations in joining the said schools. Their
concern primarily was that their service conditions
and employment benefits should not be affected,
which indeed, had been secured by the order of the
Division Bench dated 09.12.2009 and 08.02.2010.
The petitioners replied to the DSGMC on the same
date on which they received the offer i.e. 28.08.2010.
Their reply reads as under:
“The job offered to us is not as per the
judgment of the Delhi High Court dt.
9/12/09 & 8/2/10, in which Para 15, 17 &
20 clearly says that job should be on same
terms & conditions on which they were
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employed when Primary school was owning
in the NDMC area. So Please give us job in
Govt/Govt-Aided School as per High Court
judgement to avoid contempt of Supreme
Court dt 9/8/10. We have also filed
Affidavit in this connection. In The
Supreme Court dt 27/8/10.”
Subsequent to this reply, there was no
communication to any of the petitioners by DSGMC.
In the absence of such communication, the offer from
the DSGMC did not exist. Hence, DSGMC is in breach
of the orders of the Division Bench and the orders
which had directed that all the five petitioners be re-
employed within twelve weeks of the order dated
09.12.2009. The said time got over on 08.03.2010.
Due to the non-compliance the second limb of the
order becomes operative. Resultantly, the petitioners
are entitled to full pay and all perquisites from
04.03.2010 onwards till 30.01.2018. Respondent no.
4-DSGMC shall, therefore, pay the petitioner nos. 1
to 5 their full pay and all perquisites in terms of the
order of the Division Bench dated 08.02.2010. The
said monies shall be paid to them within four weeks
from the date of receipt of this order. The interest on
the delay will be considered thereafter.
The due amounts shall be credited directly into the
bank accounts of the petitioners, who shall supply
their respective bank account details, to Respondent
no.4-DSGMC directly as well as through counsel.
Respondent no. 4 shall furnish the computation of the
amounts due to each of the petitioners within the next
two weeks and shall pay the due amounts by
13.12.2019.”
(emphasis added)
14. The appellant-DSGMC assailed the aforesaid order passed by
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the learned Single Judge by filing a Letters Patent Appeal which
th
was dismissed vide order dated 15 March, 2023 for want of
7
LPA No. 732 of 2019 in Majinder Singh Sora & Anr. v. Manju Tomar & Ors.
10
st
prosecution. Hence, the order dated 1 October, 2019 has
attained finality.
15. A bare perusal of the above order would clearly indicate that
the offer of re-employment made by the appellant-DSGMC to the
teaching and non-teaching staff of the school was not found to be
bona fide as the same was not in conformity with the directions
given by the High Court.
16. Thus, in the present appeals, the only issue which requires
adjudication is as to whether the appellant-DSGMC has any valid
ground so as to assail the impugned judgment of the High Court
th
dated 9 December, 2009, whereby the NDMC was directed to
reimburse the pay and perquisites including the pension and other
benefits accruing to the staff of the school and “then to recover
the same from the appellant-DSGMC”.
17. Shri Ritesh Khatri, learned counsel representing the
appellant-DSGMC, while referring to Rule 47 of the Delhi
Education Rules, urged that where as a result of closure of a
recognised school, or withdrawal of the recognition, the staff of the
school becomes surplus, they may be absorbed as far as possible
in a Government school or aided school. As per learned counsel,
the teachers and other staff of the school who became surplus on
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account of closure of the school would be entitled to the benefit
under Rule 47 of the Delhi Education Rules. Thus, in sum and
substance, the contention of learned counsel representing the
appellant-DSGMC is that the NDMC and the Director (Education),
NDMC are primarily responsible for absorption and payment of
salary and other service benefits to the staff, which became
surplus on account of closure of the school. However, we find it
difficult to sustain this argument which is fallacious on the face of
record. The closure which is contemplated in Rule 47 of the Delhi
Education Rules has to be a valid closure, i.e., having been carried
out with the prior approval of the Director as provided under Rule
46 of the Delhi Education Rules which reads as under:-
“Rule 46. Closing down of a school or any class in a school-
No managing committee shall close down a recognised school,
not being an unaided minority school, or an existing class in
such school without giving full justification and without the
prior approval of the Director, who shall, before giving such an
approval, consult the Advisory Board.”
18. A bare perusal of the above Rule concludes beyond the pale
of doubt that no recognised school or an existing class in the
school, except an unaided minority school, shall be closed without
offering full justification and without the prior approval of the
Director.
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19. Admittedly, the school in question being run by the
appellant-DSGMC was receiving 95% grant from NDMC, and the
same was closed down without due approval of the Director
(Education), NDMC. As a consequence, the appellant-DSGMC
cannot be allowed to take the shield of Rule 47 of the Delhi
Education Rules so as to claim that the burden of re-employment
and payment of salaries of the surplus teachers and the non-
teaching staff upon closure of the school would be that of the
NDMC. The question of absorption only arises when the closure of
the school is done in accordance with law, which requires a full
justification and prior approval of the Director as per Rule 46
supra . Since the closure of the school in question was undertaken
de hors Rule 46, the argument advanced on behalf of the appellant-
DSGMC that the onus to absorb the surplus teaching and non-
teaching staff would be that of the NDMC, has no legal sanction
and cannot be sustained.
20. As a result, we do not find any merit in Civil Appeal Nos.
7442-7444 of 2012 preferred by the appellant-DSGMC, which are
hereby dismissed. No costs.
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Civil Appeal Nos. 7440-7441 of 2012
21. The NDMC, being the appellant in these appeals, is primarily
aggrieved of the direction given by the Division Bench in the
th
impugned judgment dated 9 December, 2009, that it should bear
the burden of the pay and other service benefits accruing to the
surplus school staff including the pension pursuant to the illegal
closure of the school by the DSGMC. However, we may note that a
clear direction was given by the High Court in the impugned
judgment that the appellant-NDMC would be entitled to seek
reimbursement of the entire amount from the DSGMC, because it
illegally closed the school without prior approval of the appropriate
authority.
22. This Court, while entertaining the special leave petitions, vide
order dated 7th July, 2010 had directed the appellant-NDMC to
make payment of the entire arrears of the salary/pension and
other retiral benefits to the respondents, i.e., staff of the school
within three weeks. During the course of submissions, learned
counsel representing the appellant-NDMC apprised the Court that
the NDMC has already paid the principal amount to the staff of the
school and now the only issue which survives is regarding the
interest component which was kept open for further consideration.
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23. During the course of his submissions, learned counsel for the
appellant-NDMC urged that since the reimbursement was made in
the year 2010, DSGMC might take a defence of the recovery being
barred by limitation. However, we are of the firm view that since
th
this Court, while passing the order dated 7 July, 2010 has left
the question of reimbursement of the amount being paid by the
appellant-NDMC open, the apprehension expressed by the learned
counsel representing the appellant-NDMC that its endeavour to
seek reimbursement of the amount may be opposed with a plea of
being barred by limitation, is unfounded by this Court. Since the
issue of seeking reimbursement was left open with a specific
th
observation being made in this regard in the order dated 7 July,
2010, the bar of limitation would not come in the way of the
appellant-NDMC in seeking reimbursement of the amounts paid to
the staff of the school from the DSGMC.
24. Since the principal amount has already been paid by the
appellant-NDMC, there is no reason for this Court to interfere with
the direction given by the Delhi High Court for payment of interest
to the respondents, i.e., staff of the school, in terms of the
impugned judgment.
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25. Hence, we direct that appellant-NDMC shall pay all
remaining dues including interest to the respondents-staff of the
school, within a period of eight weeks from today.
26.
It is clarified and reiterated that the appellant-NDMC shall be
entitled to take recourse of the appropriate remedy for
reimbursement of the amounts paid to respondents-staff of the
school from the DSGMC, in case the DSGMC voluntarily fails to
reimburse the said amount.
27. We also grant leave to the appellant-NDMC to seek
impleadment in the pending Contempt Petition No. 805 of 2016
before the High Court of Delhi so as to seek a direction for
reimbursement of these amounts.
28. The Civil Appeal Nos. 7440-7441 of 2012 are accordingly
disposed of in the above terms. No costs.
29. Pending application(s), if any, shall stand disposed of.
………………….……….J.
(HIMA KOHLI)
………………………….J.
(SANDEEP MEHTA)
New Delhi;
August 28, 2024
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