Govt. of NCT of Delhi v. Anita Bhatia

KAILASH GAMBHIR, J. JUDGMENT L For orders, see W.P. (C) No. 3405/2014, titled as Government of NCT of Delhi vs. Binata Naha. MARCH 27, 2015 v/pkb W.P. (C) Nos. 3405/2014 & 3426/2014

KAILASH GAMBHIR, J. ^fMEHTA, J. Page 1 ofl Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. * IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on : March 27, 2015. + W.P.(C) 3405/2014 & CM APPL. NO.7016/2014 GOVERNMENT OF NCT OF DELI-II Petitioner Tlirougli; Mr. Sushil Dutt Salwan & Ms. Latika Dutta, Advocates versus BINATANAFIA Respondent Through: Ms. Indrani Ghosh, Advocate AND + W.P.(C) 3426/2014 & CM APPL. NO.7044/2014 , GOVERNMENT OF NCT OF DELFII Petitioner Through: Mr. Sushil Dutt Salwan & Ms. Latika Dutta, Advocates versus ANITABFIATIA Respondent Through: Ms. Indrani Ghosh, Advocate CORAM: HON'BLE MR. JUSTICE I<A.ILASH GAMBHIR HON'BLE MR. JUSTICE LS.MEHTA JUDGMENT % KAILASI-I GAMBHIR. J.

¶1By this common order, we propose to decide these two writ petitions separatelyprefeixed by the petitioner/Governmentof NCT of Delhi assailingthe order dated 27.03.2014passed by the learnedCentral Administrative Tribunal, Principal Bench, New Delhi (hereinafter referredto as the 'CAT') in Original Application[in short 'OA) Nos-W.P. (C) Nos. 340.5/2014&3426/2014 ^^^3^ 2130 & 2131/ 2013 respectively, whereby the learned CAT has allowed these OAs prefen-edby these respondents.

¶2Both these respondents were occupying the post of Supervisor PhysicalEducation (in short 'SPE) at the time of their supeannuation. Before reaching to their superannuation,both these respondents gave theirrepresentationsfor re-employmentfor anotherperiodoftwo yearsin terms of the Notification dated 29.01.2007 read with Notification dated

27.01.2012 issued by the Directorate of Education, Govt. of NCT of Delhi and General AdministrationDepartment,Govt. of NCT of Delhi. This requestofthe respondentswas declinedby the CompetentAuthority and feelingaggrievedby the decisiontaken by the CompetentAuthority, > the respondents approachedthe learned CAT to seek direction for their re-employmentas perthe Notificationsdated29.01.2007and 27.01.2012.

¶3The learned CAT after placing reliance on the decision of this Court in SheilaPuri v. M.CD., (1985) 9 DRJ 180 (BB) and Sushma Nayar v. ManagingCommitteeDelhiPublicSchool,MathuraRoad & Ors., AD (VII) Delhi246 and some other decisionsofthis Court on the subject,reachedthe conclusionthat variousjudgmentsofthis Courthave alreadysettledthe issue that asupervisorylevel post withinthe teaching communitywill also includethe post ofa teacherand hence the benefits W.P.(C)Nos.3405/2014&3426/2014 • dPage 2 of36 n. of extensionof two years should also be accordedto these respondents. Allowing the OAs filed by these respondents, the learned CAT directed the petitioner to grant re-employmentto them as per Notifications dated

29.01.2007 and 27.01.2012 and issue necessary orders accordinglywithin a period of 15 days from the date of receipt of the order. Feeling aggrievedby the said commonorder dated 27.03.2014,the petitionerhas filed the instant two writ petitions.

¶4Assailing the legality, validity and correctness of the order dated

27.03.2014,Mr. Sushil Salwan, the learned counsel for the petitioner-Government of NCT of Delhi straneously contended that the learned CAT without meticulouslyexaminingthe facts and circumstancesof the cases of these respondents,found them entitledto get the benefitsof re-employmentin terms of Notificationsdated 29.01.2007and 27.01.2012, and based on the legal issue settled in this regard in some of the judgmentsof this Court with special emphasis on the decisionsof this Court in the two cases of Sheila Puri (supra) and Sushma Nayar (supra). Mr. Salwan further argued that ,the learned CAT failed to appreciatethe fact that both these respondentsretired from the post on

31.03.2013and the same being an administrativepost was not coveredin the said Notificationsdated 29.01.2007 and 21.01.2012 therefore, the W.P. (C) Nos. 3405/2014&3426/2014 Page30^3^ ir benefits of the same can not be extended to such post to grant re-employementfor anotherperiodof two years.The learnedcounselfurther arguedthat once the cadre itselfchangedfrom teachingto administrative cadre,then by mere fact that before enteringthe administrativecadrethe incumbent was a teacher, the benefits of the Notification dated

29.01.2007 could not be extended to such administrativepost. The learned counsel also submitsthat the respondentshave not disputedthe fact that on the said postthey were not dischargingany dutiesofateacher whetherfull time or part time or at some intervals.The learned counsel also submittedthat as per the definitionof a 'teacher' provided under Section2(w) ofthe Delhi SchoolEducationAct, 1973,the same includes the head of the School and not any administrativepost. The learned counsel also placed reliance on Rule 59 (2) (xxv) of the Delhi School Education Rules, 1973 v/hich clearly provides devotion of at least 12 periods in a week for a teacherto teach the pupils. The learned counsel also invitedattentionofthis Courtto Rule 4of F.R 9, wherethe 'cadre' has been defined as the strength or a service or a part of a service sanctioned as a separate unit.

¶5On the applicabilityof the decision in the case of Sheila Puri (supra) and Sushma Nayar (supra), Mr. Salwan submitted that the W.P.(C)Nos. 3405/2014& 3426/2014 Page 4 of36 decision of the Division Bench of this Court in the case of Sheila Puri (supra) was challenged by the MCD by filing a Special Leave Petition before the Hon'ble SupremeCourt and the Hon'ble SupremeCourt kept the legal issue open and alive. The Hon'ble Supreme Court in the said SLP had decided the case only on the basis of the stand taken by the Joint Secterary, AdmJnistration, Delhi Education in his affidavit to the extend concession given in the case of the respondents therein. The learned counsel thus submittedthat the legal issue whetherjob of an Inspector was akin thereof to a teacher or whethera teacher on being promotedto the cadre of Supervisoiy Staff of Inspector will continue to remain a teacherwas not accordedany approvalby the Hon'ble SupremeCourtin the said SLP preferredby the MCD rather the questionremainedopen and alive.

¶6To buttressthe above submissions,Mr. Salwanplacedrelianceon the judgment/ofthis Court in the case of RS. Tomar v. M.CD., 66

(1997), wherein the DivisionBench of this Court while dealing with a similar issue in depth examinedthe decision of the Supreme Court in Sheila Purl (supra) and after placing reliance on the decision of the Hon ble SupremeCourt,tookaviewthatthe SupremeCourtleftthe legal issue open and alive. The learned counsel also invited attentionof this W.P.(C)Nos.3405/2014&3426/2014 Page5of36 Courtto para 15 ofthe saidjudgmentinRS. Tomar(supra),whereinthe referencehas been made to the commonorderinthreesimilarSLPs being MCD R Lakshmi Verma, Hari Krishan Sharma and Sammri Lai Sharma, whereby the Apex Court held that the decision in Sheila Puri (supra) shouldnot be held againstthe managementin all such cases and the question may be left open without expressing any opinion. The learnedcounselthus stronglyurged that theserespondentscannotget any benefit of the decision of this Court either in the case of Sheila Puri (supra) or Sushma Nayar (supra), as indisputably,these respondents were occupyingthe administrativepost of SPE which is a non teaching post and is in a different cadre. The learned counsel also invited attention ofthis Court to CirculardatedJune 09, 1975 issuedby the Directorateof Education, SPE Branch, Delhi delineatingthe nature of duties to be performedby SPE. Based on the above submissions,the learnedcounsel submitted that these respondents, prior to reaching the age of superamiuationwere occupying the post of SPE, and therefore, the servicesrenderedby them were purely of administrativenature and of a differentcadre, and the same cannotbe equatedwith the job ofateacher and therefore, they are not entitled to the benefit of the said two notifications whereunder the benefits of re-employment has been W.P. (C) Nos. 3405/2014&3426/2014 ^ extended by the Government only to teachers and Vice Principal/ Principal and not any other category. Reliance was also placed by the leaned counsel on the following judgments: i. P.S Tomar v. Municipal Corporation of Delhil997 (66) DLT a. Siishma Nayar v. Managing Committee, Delhi public Schol, Mathura Road & Ors. 2009(7)AD(D)246 Hi. Sheila Piiri v. Municipal Corporation of Delhi 1985(9) DRJ180(DB) iv. Charanjit Singh Nischal v. Municipal Corporation of Delhi 2003 (106) DLT 691 V. MCD V. Giri raj Sharma 2010(10)AD(D)1 vi. Dr. Shiva Ditta Juneja v. Dir. Of Edu. & Anr. W.P(C) 1835/2011 decided on 27.05.2011. vii. Jawahar Singh Tomar v. Dir. Of Edu: & Anr. W.P(C) 4017/2010 decided on 23.12.2011 via. in the case ofState of West Bengal & Ors. v. Gopal Chandra Paul cfe Ors., 1995 Supp. (3) SCC 327. ix. AmritKumarSarin & Ors. v. State GNCTD W.P(C) 7792/2010 decided on 23.12.2011 X. Dharam Singh v. ChiefSecretary & Ors. W.P(C) 4703/2011 decided on 08.07.2011 xi. GNCTD & Ors. v. MithileshSM>ami W.P(C)2677/2012decided on 08.04.2013.

¶1Opposing these contentions, Ms. Indrani Ghosh, the learned counsel for the respondents submitted that the decision in Sheila Furl (supra)and SusStmaNayar (supra)cases,was upheldby this Courtvide its judgment dated 28.08.2009 in LPA No.415/2009, dismissing the challengeraisedagainstthe decision.The learnedcounselthus submitted that the legal issueis no more res integraand therefore,the learnedCAT has rightly placed reliance on various decisionsof this Court including W.P. (C) Nos. 3405/2014&3426/2014 Page7 3^ the cases of Sheila Puri (supra) and Sushma Nayar (supra) to extend the benefit of the said two notifications in favour of the respondents. The learned counsel further argued that the respondents had started their career as a teacher and even their existing post involved supervision of Schools and therefore, they would remain teacher even if they were not teaching students. The learned counsel also argued that the post of Vice Principal in Government School is analogousto the post of SPE as can be seen from the Recruitment Rules for the post of Vice Principal which clearly excludes PGT (Physical Education) or PGT (Administrative Cadre) for promotion to the said post. The learned counsel also argued that for promotion to the post of SPE, all other categories of teachers have been excluded except the Post Graduate Teahcers (Physical Eduation) while maintainingthe same RecruitmentRules on all other aspects.The learnedcounselthus arguedthat havingplacedthis sub post analogousto the post of Vice Principal,it cannotbe said that they cannotdraw parity with the post of Vice Principal in Government School. Based on these submissions, the learned counsel argued that these respondents are entitled to the benefit of Notifications dated 29.01.2007 and 27.01.2012 and the same camiotbe denied to them simply becausefrom the feeder cadrethey were promotedto the postofSupervisor(PhysicalEducation). W.P.(C)Nos.3405/2014&3426/2014 Page8of36 In support of her submissions, the learned counsel placed reliance on the judgments: i. Raghitbir Singh Sharma v. Municipal Corporation of Delhi 1992(48) DLT 47 a. Charanjit Singh Nischal v. Municipal Corporation of Delhi 2003 (106) DLT 691 Hi. Siiraj Bhan Chauhan v. Municipal Corporation ofDelhi 2004 (109) DLT 633 iv. Dr. Jagpal Singh Dalai v. State of Punjab CWP No. 20258 Of2008. V. Municipal Corporation of Delhi v. Smt. Sheila Puri

(1989) 1 see 227

¶8We have heard learned counsel for the jDarties at considerable length and given our thoughtful consideration to the arguments advanced by them. We have also perused the impugned order, judgments cited by both the sides and the material placed on record.

¶9Respondent - Anita Bhatia was initially appointed as LDC in the year 1974 in Rattan Devi Arya Senior Secondary School, Krishna Nagar, Delhi - 110051 (Government Aided School) and was promoted to the post of Junior Physical Education Teacher w.e.f. 6.10.1979 in the same school. She worked as a Senior Physical Education Teacher, w.e.f.

1.12.1980 to 27.3.1997 at Government Girls Senior Secondary School, Bhola Nath Nagar, Shahdara, Delhi. She was thereafter promoted to the post of Post Graduate Teacher, Physical Education w.e.f. 27.3.1997 to

23.6.2008 at Govt. Girls Senior Secondary School No.l, Kalkaji, New W.P. (C) Nos. 3405/2014&3426/2014 Page9 of36 Delhi. From here she was promoted to the post of Supervisor, Physical Education (Gazetted Post) with effect from 23.6.2008 to 31.3.2013 in the Directorate of Education, District South, C Block, Defence Colony, New Delhi.

¶10The other respondent - Ms. Binata Naha in W.P.

(C) No. 3405/2014 was initially appointed as Senior Physical Education Teacher on 31.12.1979 and was promoted as PGT (Physical Education) on

16.8.1996 and thereafter to the post of Supervisor (Physical Education) w.e.f. 13.3.2007. She workedon this post till her superannuationon 30^'' November 2012.

¶11Both these respondents,who had reachedthe age of superannuation onthe respectiveposts,throughtheirrespectiverepresentationssoughtre-employmenttill they attainthe age of 62 years in terms of notifications Nos. F.30-3(28)/Co-ord/2006/689-753and F.32(8)/2011/SB/Edn.136-155 dated 29.01.2007 and 27.01.2012 respectively, issued by the Government of NCT of Delhi, Directorateof Education.The said representationsfiled by theserespondentswere rejectedby the petitionerson the premisethat these two notificationshave been issued by the Directorate of Education, GNCT ofDelhi for re-employmentofteachersup to the levelofPGT and Vice Principaland Principal,respectively,up to the age of62 years and W.P. (C) Nos. 3405/2014&3426/2014 Page10 of36 9-1 there are no ordersto give benefitof the same on the post of Supervisor (Petitioner)on attainingthe age of superannuationat 58 years.

¶12Feelingaggrievedby the said decisiontakenby the petitioners,the respondents herein approached the learned CAT by preferring two separateOAs. Vide orderdated 27'^ March2014, the learnedCAT took a viewthat variousdecisionsof this courthave alreadysettledthe issuethat a supervisor level post within the teaching community will also be counted as the post of a teacher and hence the benefit of extension of two years should be accorded to these respondents as well. The learned Tribunal thus allowed the Original Applications filed by these respondentsand directedthe petitionersto grant re-employmentto these respondents in terms of notificationsdated 29.1.2007 and 27.1.2012, respectively,within a period of 15 days from the date of receiptof this order.Aggrievedby the decisionofthe learnedCAT, the petitionershave filed the instant petitions.

¶13Before we deal with the various contentions raised by counsel representingboth the parties, let us first reproduce the aforesaid two notifications,benefitof which the respondentsseek to claim. The extract of Notification No.F.30-3(28)/Co-Ord/2006/689-753dated 29.01.2007 read as under:- W.P.(C)Nos.3405/2014&3426/2014 ' Page 11 of36 "GOVERNMENTOF NATIONALCAPITAL TERRITORYOF DELHI DIRECOTRATEOF EDUCATION OLD SECRETARIATE, DELHI No. F.30-3(28)/Co-ord/2006/686-753 Dated: 29'^' January 2007 NOTIFICATION In pursuance to Cabinet Decision No.113, dated 4.9.2006 conveyed vide letter No. F.3/3/2004-GAD/CN/2049I-502, dated 8.9.2006, the Leulenant Governor, Government of National Capital Territory of Delhi is pleased to allow automatic re-employmentof all retiring teachers upto PGT level, subjecttofitnessandvigilanceclearance,till they attain the age of 62 years or rill clearancefrom GovernmentofIndia for extending.retirement age is received, whichever is earlier. The terms and conditionsof re-employmentare beign notified separately. By order and in the name of The Lt. Governorofthe NationalCapitalTerritoryofDelhi. Sd/- (MADLIUP VYAS) Joint Secretary (Education) "

¶14The extract of Notification No. F.32(8)/201l/SB/Edn.136-155 dated 27.01.2012 read as under:- "GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI GENERjiL ADMINISTRATION DEPARTMENT (SECRETARIATEEDUCATION,BRANCH)ROOMNO. 223, OLD SECTT. DELHI ' No. F.32(8)/201I/SB/Edn.I36-I55 Dated: 27.01.2012 ORDER The Hon'hle Lt. Governor, Government of National Capital TerritoryofDelhi ispleased to allowre-employmentto those Vice-Principals/Principals,Principals of Government Aided Schools under the Directorate of Education who have approachedthe various Lion'ble Courts and got the judgment in theirfavour with immediateeffect. The Lion'ble Lt. Governor, Delhi is also pleased to alloM' the re-employment to all the retired Vice-Principals/Principals of Government and Government Aided Schools, who have not gone to the Llon'ble Courts but have retiredand appliedfor re-employmentto the departmentafter W.P. (C)Nos.3405/2014&3426/2014 Page 12 of36 the judgment dated 08.07.2011 in W.P. (C) No. 4703/2011 titledDhararnSinghvs. Govt. ofNOTofDelhi. The saidre-employmentisfor aperiodofoneyear and extendablefor anotheroneyear basedon theperformanceand subject to fitness and vigilance clearance, till they attain the age of62years, whicheveris earlier.Theywillgetthefinancial benefitwith effectfrom the date ofassumptionofwork. The terms and conditionsofautomaticre-employment and other aspects ofre-employmentin respe.ctofretired Vice Principals/PrincipalsofGovernmentschoolswill remainsame as issued by this Directorate vide Notification N.F.30-3(28)/Co-ord.2006/689-703dated 29.01.2007, order No.F.30-3(28)/Co-ord/2006/4637-72dated 28.02.2007, Order No. 30-3(28)/Co-ord/2006/5982-6012dated22.03.2007,and in respect of Govt. aided schools vide order No.30-3(28)/lII/Co-ord/07 (Part File/3426-3439 dated

31.12.2007 and F.30-3(28)/IlI/Coord/07/Pt file/180-220 dated

15.02.2008 respectively. Plowever, this order is issuedsubjectto the outcomeof any appeal filed against the said judgment/order before anyhigherforum or courtsoflaw. Further, it is also subjectto the final outcome of any SLP] likely tobefiled in the Hon'ble SupremeCourtofIndiaagainstthe abovesaidjudgment. This issues with the prior approval of the competent authority. Sd/- (Shashi Kaushal) Addl. Director (Sectt.BR)"

¶15The Notificationdated 29^'' January2007 was the subjectmatterof considerationin a casetitledas SushmaNayarvs. ManagingCommittee, DelhiPublicSchool,MathuraRoad, reported in 2009 AD (VII) Delhi

¶246In the aforesaidcase,the petitioner-SushmaNayarhad fileda writ petitionseekingquashingofre-employmentgrantedto the respondenton the post of Vice Principal.The plea taken by the petitionertherein was that in terms of Notificationdated 29"^ January 2007, the benefit of W.P. (C)Nos.3405/2014&3426/2014 Page 13 of36 relaxation has been extended only to teachers and not to Vice Principal/Principals.In the absence of any challenge raised by the petitionerto the said Notificationdated 29.1.2007, the learned Single Judge afterplacingrelianceon the ratio of decisionin the case of Sheila Puri vs. MCD, 1985 (9) DRJ 180 (DB), which was followed in many other cases also, took a view that the respondentremainedteacher even thoughshe was appointedas Vice Principalofthe schooland as such was entitledto the benefitofthe Notificationdated 29^'' January2007, which allowed automaticre-employmenttill the age of 62 years to all retiring teachers up to PGT teachers.

¶16With the authoritativepronouncementsof this court,right from the judgment of Sheila Piiri case (supra), Charanjii Singh Nischai case (supra), Sushma Nayar case (supra), and many other cases including Vice Principals/Principals, Head Masters of MCD Schools and the Schools run by GNCT of Delhi and Govt. Aided School under the Directorateof Educationwere grantedthe same benefitof re-employment in terms ofthe Notificationdated 29"'' January2007. In fact, takinginto consideration the said decisions of this court, Lt. Governor /Govt. of NCT of Delhi had issued another Notification dated 27.1.2012 (reproduced herein above) to specifically allow re-employment of all the retired Vice W.P.(C)Nos.3405/2014&3426/2014 ' Page 14 of36 cn Principals/Principals of Government and Government Aided Schools, who had not gone to the court, but have retired and had apphed for re-employmentto the departmentafterjudgmentdated8.7.2011in W.P. (C) No. 4703/2011 titled as Dharam Singh vs, GNCT of Delhi. By this notification of 2012, the Government of NCT of Delhi itself extended the benefitof re-employmentto the Vice Principals/Principals,althoughthis category was not specifically included by the Government in earlier Notificationdated29"" January2007.

¶17There can be no cavil that in terms of the said two notifications, the Government of NCT of Delhi had been pleased to allow automatic re-employment of all retiring teachers up to PGT level and also to the Vice Principals/Principals of the schools run by Government of NCT of Delhi and Government Aided Schools till they attain the age of 62 years, subject to their fitness and vigilance clearance. But the issue which we are confronted in these two cases is as to whether the benefit of these two notifications can be extended to these respondents, who were working on the post of Supervisor (Physical Education ) which has not been specifically covered in the said two notifications. '

¶18As per the respondents, the issue is no more res-integra in the light of the decision of Division Bench of this court in Sheila Puri vs. MCD W.P. (C) Nos. 3405/2014 & 3426/2014 (supra) while the stand taken by the petitionersis that the decision in SheildPiifi (supra) case never attainedfinalityas the legal issues were left open by the SupremeCourtwhen the challengewas laid by the MCD in SLP No.5051 of 1985 prefeiTedby them.

¶19The case ofSheila Piiri (supra),is one ofthe earliestcases decided by a Division Bench of this Court on 22.05.1985where the Court was dealingwith an issue of retirementage ofthe petitionerwho joinedthe MCD as a teacherthen became Head Mistressofthe School and finally became a School Inspectressand the questionarose VN'as whethersuch a person would still remain a teacher even after promotionto the post of Inspectressand would get the benefitofretirementat the age of 60 years and notat 58 years. As per the relevantresolutionof MCD, the age limit for retirementof officersand otheremployeeswas 58 years and in case of teachersand class 4"^'^ servants,itwas 60 years.The issue arose beforethe Court was whether the petitioner would cease to be a teacher after she is promotedto the post of SeniorSchoolInspector.Answeringthe question in the background of relevant resolution passed by the MCD, the Court held that it would be a strangeresultthat a Head Mistress promotedto the post of School Inspectress should have a.lower retirement age whereas if she remained Head Mistress then she would retire at the age of 60 years. W.P. (C)Nos. 3405/2014& 3426/2014 The Court also held that a very conceptof an Inspectoris to see that the teachingis conductedin accordancewith some standardpracticeand the progress of students is as desired. It also held that there is a difference betweenthe administrativeline in the coiporationand the teachingline. The relevantparasofthe saidjudgmentare reproducedas under:-

¶14We think that this problem cannot be solved by mere reference to the affidavit. The petitioner was a teacher. She was a Headmistress of a school, then she became a School Inspectress,then became a SeniorSchoolInspectress.Ifshe is a Senior School Inspectress, does she cease to he a teacher ? Does she become an officer and not a teacher ? It seems to iis that if you are a teacher to start with, you remain a teacher even ifyou are promotedto a post which involvessupervision of theschoolsrather than teachingin theschoolsIt wouldbe a strange result that a Headmistresspromoted to the post of School Inspectressshould have a lower retirement age. The position set out in the Resolution of 1970, i.e.. Resolution No. 127 did not make any distinction between teachers and School Inspectresses. We fail to understandhow two sets ofpersons belongingto the same classshouldhave differentretiringages ifthey arepromotedor notpromoted.Also, whensomepersons of that class are transferred to the Delhi Administration on the understandingthat they would retain their retiring age of 60, wefail to understand why the remaining persons should not retain the same retiring age of 60. Also, there seems to be some confusionas to who is a teacher? If the interpretation of the Municipal Corporation is accepted it leads to a number of awkward complications.The ruination post ofHeadmistress is that ofSchoolInspectress.Normally,seniors are promoted and they are notfar from the age. of retirement. So, it would,be a strange result that when a Headmistress is promoted, she would immediately retire whereas if she remained Headmistress, she would retire at 60. This result could not have been desired. Furthermore, the word 'teacher' means a person in the teaching profession. The entry of such persons into service would normally be in lower grades. They would be promoted from say Assistant Teacher to Teacher and then Vice-Principal, Principal or Headmistress, and so on. They would then he promoted to the port ofInspector and there may W.P. (C) Nos. 3405/2014 & 3426/2014 be furtherposts like Senior Inspectorsand so on. We cannot imagine an InspectorofSchools not being a teacher.A very concept of an Inspector is to see that the teaching is conductedin accordancewith somestandardpracticeandthe progressofstudentsis as desired.An InspectororInspectress must, therefore,be a teacher.Such apersondoes not cease to be a teacher by becomingan Inspector.An Inspector'sjob is not that oflookingafter the up-keep ofthe school, but to see that the teachingis doneproperly. We are ofthe view thatsuch a person woidd remain a teacher even after promotion. No doubt, the Resolutionstatesthat officersM'oiddretireat 58 and teachersat 60, presumablyby officersare meantnon-teachers employed in other branches of the Corporation. There is a. differencebetween the administrativeline in the Corporation and the teaching line. We M'oidd prefer to hold that the petitionercontinuesto be a teacherin spite ofbeingpromoted to the post ofSchool Inspectress. The real meaning ofthe Resolutionis thatpersonsemployedon the teachingside, or educationaldepartmentofthe MunicipalCorporationhave a retiringage of60, whereas others have a retiringage of58. Referringagain to the judgmentcited at the Bar, Shri B. N. Chaudhary v. The Commissioner,Municipal Corporationof Delhi and others.^'hereinit seems to have been acceptedthat the retiring age was 58, we think that is not a precedent, becausethe petitionM>as dismissedin limingwithouta careful examinationof the ResolutionsNo. 127 of 1970 and 666 of 1978. We do not think that we are bound by a petition dismissed in liming.

¶15In addition, it must be statedthat ifthere is any doubt in the matter, ithas to be resolvedinfavor ofthepetitioneron the applicationofArticle14 ofthe Constitution.Thepetitioner was identicallyplacedto the otherSchoolInspectressesin the Department.Those Inspectresseswho have been trcmsferredto the DelhiAdministrationwere informedby ResolutionNo. 127 of1970 that they would retain their retiringage of 60. This was an admission by the Municipal Corporation that the petitioner s retirement age was cdso 60. We cannot read the ResolutionNo. 666 of 1978 as a change in that retiringage because it does not clearly state anything about School Inspectresses.As M^e have interpretedSchoolInspectressesto be 'teacher's,they will continueto retireat the age of60, but if there is any doubt, we think that the petitionerhas to get the eqiicdprotectionof law imder Article 14 of the Constitution and, therefore, cannot have a differentretiringage from the other School Inspectresseswho M'ere transferredto the Delhi W.P. (C) Nos. 3405/2014&3426/2014 Page ]8of36 /./ Administration. Undoubtedly, these schools and some of the teachershavefrom time to time been transferredeitherfrom the DelhiAdministrationto the MunicipalCorporationorfrom the MunicipalCorporationto the Delhi Administration.They all seem to be the same andare doingidenticaljobs in relation to similar schools. Being equally placed, Article 14 of the Constitutionis certainlyattracted,so the retirementage ofthe petitioner cannot be less than 60. "

¶20In another case of CharanjitSingh Nischal (supra), the learned SingleJudge ofthis Courtwas again dealingwith a petitionerwho from the postofHeadmasterwas promotedto the post ofSchoolInspectorand following the ratio of Sheila Piiri (supra) the Court held that the petitionerwould be entitledto retire at the age of 60 years and not at the age of 58 years.

¶21Both these cases referred to above were not dealing with the notifications dated,29.01.2007 and 27.01.2012. The said notification of

29.01.2007 was a subject matter of consideration before the. learned Single Judge of this Court in Sushma Nayar (supra), wherein the challenge was raised by the petitionertherein to seek quashing of re-employment,of the respondentto the post of Vice Principal,on the ground that the age relaxationin terms of the said notificationis intendedonly for PGT and TGT Teachers upto 62 years of age and not for Vice Principal/ Principal. The learned Single Judge following the ratio of the decisions of this Court in Sheila Puri (supra), Charanjit Singh Nischal W.P. (C)Nos. 3405/2014 & 3426/2014 (supra) and after drawing support from the definitionof teacher given under Section 2(w) of the Delhi School EducationAct, 1973 and Rule 110 of the Delhi School Education Rules, 1973, took a view that the lespondentwould remain a teachereven though he was promotedto the post of Vice Principal of School and as such would be entitledto the benefit of the notification dated 29.01.2007'. Thereafter, many such identically placed Teachers, Principals and Vice Principals claimed extensionof theirretirementage and in view of the dicta of the Division Bench of this Court in SheilaPuri (supra),the decisionof the learned Single Judge in CharanjitSingh Nisckal (supra) and Sushma Nayar (supra),there was a reiterationofthe same view by variousBenchesof this Court.

¶22To our surprisein none of thse judgments,there is a referenceto anotherimportantdecisionofthe DivisionBenchholdingthe feild, which is in the case of PS. Tomar (supra). This case was decided by the Division Bench of this Court on 01.02.1991.In this case the Court was considering the legality and validity of the Circular dated 06.07.1992 issued by the MCD pursuant to the decision of this Court in Sheila Puri (supra).The Circularissued by the MCD envisagedthat a teacherwould retire at the age of 60 years but in case of promotion to separate and W.P. (C) Nos. 3405/2014&3426/2014 Page20 of36 differentcadre of an Inspectorlike other officersof the Corporation,he will retireon attainingthe'ageof 58 years as providedin FR56(a) ofthe FundamentalRules.Inthe Circular,an optionwas also givenwhichcould be exercised six months prior to attaining the age of 58 years by a teacher,if promotedto the cadreofInspectorand it is only on exerciseof such an option, he would continue till the age of 60 years but in such cases he will have to revert back and hold the post,last occupiedin the teaching line namely either as a Fleadmaster or Physical Education Teacher as the case may be. In this judgment, the Division Bench of this Court made a reference that the decision of this Court in Sheila Puri (supra) v/as challenged by filing a Special Leave Petition before the Hon'ble Supreme Court and on leave being granted by the Supreme Court, the case was not decided on merits but on concession. The Court furtherheld that a bare readingof the judgmentof the Hon'ble Supreme Court, would suggest that reasoning of this Court that a teacher on promotion to the post of Inspector will continue to be termed as a teacher or that the post of Inspector is also akin to a teacher were neither approved nor gone into by the Hon'ble Supreme Court and the Hon'ble Supreme Court decided the case only on the stand taken in the affidavit and the concession given and this question was remained open and alive. W.P.(C)Nos. 3405/2014 & 3426/2014 Page 2i of 36 Relevantparas of the decision ofRS, Tomar (Supra) are producedas under: "Decision of this Court in Smt. Sheila Pun's case yms challengedby the respondentbyfilingSpecialLeave Petition to Supreme Court. On leave being granted the case was not decide do nmerits but on concession.Thesubmissionmade on behalfofthe Counselfor the petitionersthat the decision of this Court was approvedccmnot be accepted. Decisionofthe Supreme Court is reportedasMunicipalCorporationofDelhi V. Smt. SheilaPuri, . An applicationfor interventionwas also filed by ten employees of the Education Departmentof the DelhiAdministrationseekingleave to supportthejudgmentof this Court, during the pendencyof the appeal in Smt. Sheila Pun's case. By the time the decisionwas taken by the Supreme Court, Smt. Sheila Puri had already retiredfrom service on attainingthe age of60years. Undertakingwas given on behalf of the MunicipalCorporationofDelhi in the Supreme Court that irrespective of the result of the appeal. Municipal Corporationwill extendthe benefitofupper age ofretirement of60 years to Smt. SheilaPuri, as directedby the High Court. It M'as subject to this reservationthat leave was granted to clarify the legal position, not with reference to Smt. Sheila Puri, but at largeso as to provideguidelinesto the employers andemployees.The SupremeCourt, takingnote ofthe affidavit filed in Smt. Sheila Puri's case by the Joint Secretary (Education) of the Delhi Administrationon 25th November, 1988, took decision on such concession and not on merits. In the affidavitposition,which was clarifiedwas that the original age of retirementof teacher and supervisorystaff of Delhi Administration 58 years but the same had been raised to 60 years and since there was no posts of Inspector in the EducationDepartmentofthe DelhiAdministration,the age of employees transferredfrom the Municipal Corporation M'as kept, accordingto Clause (7), indicatedto be 60years, as the age ofretirement.In view ofthis concessionthe SupremeCourt disposed ofthe matter. Inpara 6 the Court observed: "IN view of the concededposition the age of retirement of teachers and supervisory staff ofthe Delhi Administration is 60 years; for those who came on transferfrom the Municipal Corporationto the DelhiAdministrationit is also 60years in view of the resolution of the Corporation as accepted by the Governmentof India in its letter dated 18th of January, 1973. This being the position the High Court M'as right in holding W.P.{C)Nos.3405/2014&3426/2014 Page22 of36 that the respondent was entitled to continue in service till she attained the age of 60 years."

(13) In view of the aboveposition, on the scope of the dispute betM'een the parties as to what was the proper age of retirement, the Supreme Court declined to allow the applicationfor interventionfiledon behalfofthe employeesof the Education Department ofDelhi Administration.

(14) A bare reading of the judgment of the Supreme Court suggests that the reasonings of this Court that a Teacher on promotion to the post ofInspector will continue to be termed as Teacher or that the post of Inspector is also akin to a Teacher were neither approved, nor gone into. The Supreme Court decidedthe case only on thestand taken in the affidavitand on the basis of the concession given. Thus, it cannot be said that the decisionof this Court that M'hetheran Inspector'sjob M>as akin to a Teacheror that a Teacheron beingpromoted to the cadre of the supervisory staff of an Inspector will continue to remain as a Teacher, M'as approved by the Supreme Court. The question remained open and alive.

(15) After decision in Smt. Sheila Puri's case the respondent-corporation continued issuing orders, retiring all those, who were in the teachingline and had beenpromoted as Inspector, at the age of58years and not the age of60years. The result of the same was that such orders, on being challenged byfiling petitions in this Court wereset aside bythis Court onfollowing the decision in Smt. Sheila Puri's case. Banwari Lai Sharma and two others had also filed such petitions.The same were disposed of by a common order passed on 27.2.1989 in Cw 1880/86, Banwari Lai Sharma v. M.C.D. All of them had been working as Teachers and had been promoted as Inspectors. They were sought to be retired at the age of 58 years and had challenged the action of the respondent. Following the ratio in Smt. Sheila Puri's case that a School Inspector or Inspector was a teacher, relief was granted. This decision challenged by the respondent byfiling Special Leave Petitions

(C) Nos. 5719,5766 and 7946/89. The Supreme Court on

18.7.1989disposedof the three . petitionsfor Special Leave to Appeal by a common order in MunicipalCorporation of Delhi V. Lakshrni Verma, Hari Krishan Sharma and Banwari Lai Sharma, with thefollowing observations: "COUNSELfor the petitioners stales that the respondents in each of these appeals have since retired at the age of 60years and, therefore, the question ofsuperannuation whether it is 58 or 60 need not be gone into. We, however, feel that the question may be left open and the decision in Sheila Pun's case should not be held against the management in all such cases. W.P. (C) Nos. 3405/2014&3426/2014 Page 23 of36 We accept the submissionof the learned Counseland keep the question open without expressing any opinion. With these observations, thepetitions are dismissed."

(16) Yet-in anotherpetitionKm. Kanta Sharma v. Municipal Corporationof Delhi. Cw 2270/88decidedon 3.7.1989,relief was granted by this Court to the petitioner therein, who had beenpromotedfrom the post ofHeadmasterto that ofa School Inspector on relying upon the decisions of this Court in Smt. Sheila Pun's case and also in Banwari Lai Sharma's case. Mimicipal Corporation of Delhi challenged the said decision byfiling Special Leave Petition (Civil) 13386/80n 17.7.1990 the Special Leave Petition was dismissedobserving that no ground is found for reconsideration of the decision in Smt. Sheila Pun's case.

(17) The cumulativeeffectof the above narration suggeststhat the Supreme Court left the question open without expressing any opinion on merit cmdfurther observing that the decision in SheilaPun's caseshouldnot be heldagainst the respondent."

¶23It can be thus seen from the above discussionthat the legal issue settled in Sheila Puri (supra), was left open and alive by the Hon'ble SupremeCourt and therefore,the learnedTribunal fell in grave error to placerelianceon the decisionof this Courtin Sheila Puri (supra) to give the benefitof re-employmentto the respondentsupto the age of 62 years withoutappreciatinganotherdecisionof this CourtinPS. Tomar (supra) and also the contents of the above two notifications dated 29.01.2007 and

27.01.2012.

¶24We have already noticed that the above two notifications were not the subject matter of discussion either in Sheila Puri (supra), Sushma Nayar (supra) or even P.S, Tomar (supra), as these notifications came to be issued much later in time than the decisions given in the said cases. W.P. (C) Nos. 3405/2014 & 3426/2014 We will thus confine ourselves to the contents of the above two notificationsto ascertainthe fact whether these respondentswho were occupyingthe post of SupervisorPhysicalEducation,are entitledto get the benefitof re-employmenttill the age of 62 years.It is an admittedfact betweenthe partiesthattheserespondentswere not occupyingthe postof Teacher, or Vice Principals/ Principals and their post was that of SupervisorPhysical Education. Whether this post is an administrative post or a teachingpost or a post combinedof teachingand administrative duties, is broadlythe issue for determination.To decide this question,it wouldbe relevantto referto the relevantrecruitmentrules for the post of Supervisor(PhysicalEducation)and also the chart of duties assignedto this post and are supposedto be performedby the holdersof this post in the sphere of physicialeducation/developmentof schools and games in schools. The same are reproduced as under:- "Recruitment Rules for the post of Supervisor (Physical Education)

¶1Name of the post : Supervisor (Physical Education)

¶2No. of posts ; 24 (subject to variation dependent on work load)

¶3Classification : CGS, Group 'B', Gazetted, Non-ministerial

¶4Scale of Pay : Rs.2000-60-2300-EB-75-3200-100-3500 (Pre-revised) 7,500-12,000 (Revised as per V C.P.C.) .

¶5Whether selection : Selection post or non-selection posts W.P. (C) Nos. 3405/2014 & 3426/2014

6.

7.

8.

9.

10.

11.

¶12Age limit for direct recruits Whether benefit of added years of service admissible Educational and other qualifications Whether age and qualifications (Educational) prescribed for direct recruits will apply in the case of promotes. Period of probation, if any. Method of recruitment whether by direct rectt or by promotion or by deputation/transfer and percentage of the vacancies to be filled by various methods, hi case of rectt by W.P. (C) Nos. 3405/2014 & 3426/2014 Not exceeding 30 years (Relaxable from Government servants upto 5 years in accordance with the instructions or orders issuedbythe CentralGovernment) No Essential:

i) Master Degree in Physical Education from a recognised University or equivalent.

ii) 5 years experience in the field of Physical education, such as organising games, camps, sports, activities, sports, camps, welfare youth camps, etc. Or 5 years experienceof workingas a Physical Education teacher in a recognised/Aided High or Higher Sec. School or in a recognised intermediate college. Desirable:

i) Doctors degree in Physical Education or Master's Degree in a subject other than Physical Education from a recognised University or equivalent.

ii) Administrative Experience. Age-No. Educatinal Qualification - Yes. Two years. Promotion failing which by transfer on deputation, failing both by direct recruitment. promotion/ deputation/ transfer, grades from wliich promotion/ deputation/ transfer to be made.

¶13If a DPC exists, what is its composition W.P. (C)Nos. 3405/2014& 3426/2014 Post Graduate Teachers (Physical Education) under the Directorate of Education, Delhi Administration with three years' regular service in the grade. Promotion will be made from the feeder grade on the basis of a combined seniority list of Male and female. "Note; Where juniors who have completed their qualifying/ eligibility service by more than one year and have successfully completed their probation period if prescribed." Transfer on Deputation;

(a) Officers of the Central/ State Government.

i) Holding analogous post on regular basis or

ii) With years regular service in the post in the pay scale of Rs. 1640-2900 or equivalent and

(b) Possessing the eduicational qualifications and experience prescribed for direct recruits under column 8. The Departmental officers in the feeder category who are in the direct line of promotion will not be eligible for consideration for appointment on deputation. Similarly, deputationists shall not be eligible for consideration for appointment by promotion. Period of deputation including period of deputation in another ex-cadre post held immediately proceeding this appointment in the same or some other organisation/ department of the Central Government shall ordinarily not to exceed thre eyeras. The maximum age limit for appointment by transfer ondeputation shall be, not exceeding 56 years, as on the closing date of receipt of applications. Group 'B' - DPC as notified. Note: The proceeding of the DPC relating to confirmation of direct recruit shall be sent to the Commission for approval. If Page 27 of.36

¶14Circumstances in which UPSC is to be consuhed in making recruitment. however, these are not approved by the Commission a fresh meeting of the DPC to be presided over by the Chairman or a Member of UPSC shall be held. Consultatin with UPSC necessary while making direct recruitment and appointing an officer on deputation. "Chart of duties assigned to Supervisor . (Physical Education) DIRECTORATE OF EDUCATION DELHI (PHYSICALEDUCATION BRANCH) The Supervisors/SchoolInspectors(PhysicalEducation) workingin the Directorateof Education,Delhi are supposedto perform the following duties in the sphere of Physical Education, development of sports and games in schools as well as in public sectors. They may be assigned other duties from time to time under instructions of the Director of Education. Their duties are divided in three heads besides other official, instructions of the immediate head of the branch from time to time. SUPERVISION

¶1To supervise the activities of Physical Education, games sports and allied activities in schools and in public sectors if and when it is necessary.

¶2To suggest ways and wears to improve the existing conditions in Physical Education.

¶3Periodical supervision and surprise checking of all the activities and routine classes in Physical Education and sports & games and the syllabus adopted in schools. Submission of report thereof to the EO/Principal/and DDE (Sports) with specific suggestions and inviting attention at the zonal, district and all Headquarter level.

¶4Super visit of playing fields, courts, gymnasium and sports material etc. And necessary instructions for their improvements. •

¶5Supervision of healthy,condition in schools for game andsportsand PhysicalEducationactivitieswitha good emphasis on sanitationand hygienic conditionsin the schools.

¶6Supervisionof mid day meal and payment hawkers if and when it be required.

¶7Supervision and surprise visits of sports coaching centres, vyamshalas,swimming pools and report tobe W.P.(C)Nos.3405/2014&3426/2014 • Page28 of36 submitted to pe Brancli.

¶8To check the diaries of Pliysical Education Teachers and other regards regarding Physical Education, games and sports and to guide them in this regard.

¶9To make a good supervision of sports purchases inthe schools in respect of quantity, quality and its maintenance. ORGANISATION

¶1To arrange Zonal forum of Physical Education Teachers and their meetings from time to time.

¶2To arrange meetings of the Heads of the institutions for certain organizational purposes.

¶3To organise the Tournaments inter-schools and inter-zone competition in games and sports and multifarious CO cuiTicular activites in consuhation with zonal conveners and to render any assistance required by them.

¶4To appoint officials "for, various competitions/Tournaments.

¶5To organise coaching of talented students, clinics and Refresher courses for Physical Education Teachers.

¶6To organise and make preparations for all the activities assigned byt he Headquarter on occasion such as independenceday celebrations,children's day, republic day, EPED, DSS & AB activites and the programmes of council of sports, seminars, conferences and rallies. ADMINISTRATION

¶1To make a good liaison with the Heads of the Institutions and the officers at the Headquarter (Phy. Edn. Branch)

¶2Follow up of the administrative action at the zonal, district and Headquarter level on the reports of the visits and surprise checking made in schools for Phy. Edn., sports and games and other allied activities.

¶3Tobe a member of the Condemnation Board for sports purposes. APPROVED BY THE DIRECTOR OF EDUCATION, DELHI (H. SAREEN) DY.DIRECTOR OF EDUCATION (SPORTS) DELHI W.P. (C) Nos. 3405/2014&3426/2014 Page29 of36 SP/J(ED)/75-PE/ Dated: 9"^ June 1975 Copy forwarded forinformation and necessary action to:

¶1Allthe D.D.Es (Districts)

¶2All Education Officers.

¶3All the Supervisors/SchoolInspectors (Phy. Edu) (H. SAREEN) DY.DIRECTOR OF EDUCATION (SPORTS) DELHI" -25. It would also be necessary here to mention that the Delhi School Education Act, 1973, does not provide any meaning to the word 'teacher'. It only gives an inclusivedefinitionunder Section 2(w) which provides that "teacher" includes the Head of school. The same is reproduced as follows: ,

(2) Definitions-In this Act, unless the context otherwise requires fw) "teacher" includes the Head ofschool; Further Rule 59 (2) (h) (xxv) of the Delhi School Education Rules, 1973 provides as follows:

¶59Scheme of management of recognised schools

(h) the duties, powers and responsibilities of the head of the school, which shall provide that he shall:—

(2) The scheme of management shall also provide for the following, namely:—

(xxv) devoteat least twelveperiods in a weekto teachingofthe pupils; W.P. (C) Nos. 3405/2014&3426/2014 Page30 of36 Rule 110 of the Delhi School Education Rules, 1973 deals with retirement age and provides as under: "Rule 110 of the Delhi School Education Rules, 1973 reads as under:- Retirement age - Except where an existing employee is entitled to have a higher age of retirement, every employee of a recognized private school, whether aided or not, shall hold office until he attains the age of58 years. Provided that the managing committeemay grant extension to a teacher for a period not exceeding t\vo years in the if in the opinion of the managing committeesuch teacher isfit for such extensionand has no mortal or physical incapacity which would disentitle him to get such extension. Providedfurther that no such extensionshall he granted in the case of a teacher of an aided school exceptwith theprevious approval of the Director.

(2) Notwithstanding anything contained in sub-rule (1), every teacher, laboratory assistant, Librarian, Principal or Vice-Principal employed in such school shall continue to hold office until he attains the age of 60 years : Provided thai where a teacher, Principal or Vice Principal attains the age ofsuperannuation on or after the 1st day ofNovember of any year, such teacher. Principal or Vice Principal shall be re-employed upto the 30th day of April of the year immediately following. /3) Notwithstanding anything contained in sub-ride 91) and sub-ride (2), where a teacher, Principal or Vice Principal has obtained National or State Award for rendering meritorious service as a teacher, Principal or Vice Principal or where he has received both the National and State Awards as aforesaid, the period of service of such teacher, Principal or Vice Principal may be extended by such period as the Administrator rnay, bygeneral or special order, specify in this behalf " 26: Indisputably, these respondents are not perfomiing any of the duties of a teacher and their duties are mainly in the administrative feild. This fact has also been admitted by the respondents that they had been W.P. (C) Nos. 3405/2014 & 3426/2014 V,v(3 occupying administrativepost and in fact tlie case set up by these respondentsis that they continuedto be teacher even though they have been promotedto a higheradministrativepost.

¶21When we loolc at the recruitment rules' for the said post of Supervisor (Physical Education), it can be seen that the same is a selectionpost and vacanciescan be filled by promotion,failingwhichby transferon deputation;and failingboth,by directrecruitment.

¶28In so far as the recruitment by promotion to the said post is concerned, the Post Graduate Teachers under the Directorate of Education,Delhi Administrationwith three years regular service in the gradewill be consideredfor promotionon the basisofcombinedseniority list of male and female candidates and thus, the feeder cadre to seek promotionto the post of Supervisor(PhysicalEducation)is a cadre of post graduateteachers(PhysicalEducation). In so far as the appointment by direct recruitmentis concerned,the educationalqualificationis the same as requiredby promoteecandidatebut so far as the experienceis concerned, for a direct recruit, the same is laid down as five years experiencein the field of PhysicalEducationsuch as organisinggames, camps, sports, etc or five years experience of working as Physical Education teacher in a Recognised/AidedHigh or Higher Secondary W.P. (C) Nos. 3405/2014&3426/2014 Page 32 of36 School or any Recognised IntermediateCollege. So far as the direct recruitmentis concerned,the experienceof five years can be either as a Physical Education Teacher or in the field of physical education not necessaryas physicaleducationteacher,but by organisinggames, camps, sports activities,welfareyouthgames,etc. -

¶29The charter of duties, which the holders on the said post are requiredto performin the sphere of physicaleducation,developmentof sports and games are in relationto schoolsor inrelationsto the activities of sports and games in schools and the same are predominantly administrative in nature. To say that these promotee respondents had entered in service as teachers or were teachers prior to occupying the said postofSupervisorPhysicalEducation,wouldmakethem entitleto get the benefit of age relaxation, but this will result in an anamolus situation as on the said date, the same benefit would not be available to direct recruits although occupying the same post. In such an eventuality the direct recruits would be retiring at the age of 60 years while the promotees on this post would get the benefit of extensionin age up to 62 years.

¶30It is a settled legalpositionthat the courtsshouldnot embarkon the unchartered ocean of questioning the policy decision of the Government so long as the same does not offendthe provisionofthe any Statute,law W.P. (C)Nos.3405/2014&3426/2014 Page 33 of36 or enactment.The said two notificationsof the GovernmentofNCT of Delhi,gavethe benefitofextensionofage up to 62 yearsonly in the case ofTeachers,Vice Principals,Principals,Head Maters,etc and it has not includedany othercategoryofpostswhetheradministrativeor otherwise. To give the benefit of the said notificationsto the post which is administrativein nature and particularlywhere no activitiesofateacher are involved and the cadre of the post has also been changed, would amount to adding certain other categories of posts in the said notifications,which is totallyimpermissibleunderlaw throughajudicial decision,as the same exclusivelyvests withinthe domain of Executive Authority.

¶31In so far as the relianceplacedon certaindecisionsof this Court, we have already said above that neitherthese two notificationsnor the postroccupiedby these respondentswas under considerationin Sheela Puri (supra) case. It is a settled legal position that a decision is an authorityfor what it actuallydecidesand not what logicallyflows from theobservationsmade inthejudgment.

¶32The words ofLordDenningin the matterof applyingprecedents, VnionofIndiavs. AmritLaiManchandaandAm., (2004)3SCC 75, in whichhavebecomelocusclassicus. W.P. (C) Nos. 3405/2014&3A26I20U Page34 of36 H "Each case depends on its own facts and a close similarity between one case and another is not.enough because even a singlesignificantdetailmay alterthe entireaspectjndeciding such cases, one shouldavoidthe temptationto decidecases (as said by Cordozo) by matchingthe colour ofone 'f . the colourofanother. To decidetherefore,on whichside ofthe line acasefalls, the broadresemblanceto anothercase is not at all decisive."

¶33We may alsoreferto the decisionoftheHon'bleSupremeCourtm Re specialreferenceNo.1of2012,whereinit washeldas follows: • "Each case entailsa differentset offacts and a decisionis a precedenton its own facts; not everythingsaid by aJudge •while givingajudgmentcan be ascribedprecedentalvalue. The essenceofadecisionthat binds the partiesto J the principle upon which the case is decided and for^is reason, it is importantto analysea decisionand it the ratiodecidendi.-In the matterofapplyingprecedents,the ' erudite Justice Benjamin Cardozo in "The.Nature of a JudicialProcess",hadsaidthat "ifthejudgeis to pronounce it wisely,someprinciplesofselectionthere must be to guide him along all potential judgments that compete for recognition" and "almost invariably his first step is to examine and compare them;" "U f Zmparmn and IMIe more" and ought no, to be akm to matching"Ihecolorsofthe caseathandagainstthecolor,<,/ manysamplecases"becamein thatease "the man who had The best card index of the cases would also be the wtsest iudge". Warningagainstcomparingprecedentswith matchmg coloursofone case with another, he summarizedthe process. in case the coloursdon7match, in thefollowingwise words> "It is when the colorsdo not match, when the referencesin the indexfail,whenthereis no decisiveprecedent,thatthese^ - businessofthejudge begins. He must thenfash,onW/orthe litigants before him. In fashioning ,t for them he wdl be fashioningitfor others. The classicstatementis Bacons. For many times, the thingsdeducedtojudgmentmay be meum and tZm when the reasonand consequencethereofmay trench to^ pointofestate. The sentenceoftoday will make the rightan wrongoftomorrow." ,

¶34In the light of the above discussionwe allow the present writ Page35of36 W.P. (C) Nos. 3405/2014&3426/2014 .0 petitions filed by the petitioner holding that the respondents are not entitled to the benefit of age relaxation up to the age of 62 years in terms of Notification dated 29.01.2007 read with Notification dated 27.01.2012 issued by the Directorate of Education, Govt. of NCT of Delhi. Consequently,the impugnedorder dated 27.03.2014,passed by learned Central Administrative Tribunal is set aside. Parties are left to bear their own costs. MARCH 27, 2015 v/pkb W.P. (C)Nos.3405/2014&3426/2014 y 'L^ KAILASH GAMBHIR, 'KMEHTA, J

* IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on : March 27, 2015. + W.P.(C) 3426/2014 & CM APPL. NO.7044/2014 GOVERNMENT OF NCT OF DELHI Petitioner Through; Mr. Sushil Dutt Salwan & Ms. Latika Dutta, Advocates versus ANITA BHATIA Respondent Through: Ms. Indrani Ghosh, Advocate CORAM: HON'BLE MR. JUSTICE KAILASH GAMBHIR HON'BLE MR. JUSTICE I.S.MEHTA %