N.N. Goswamy, J.
(1) This judgment will also dispose of Civil Writ Petition Nos. 1724/79, 1835/79, 1836/79 and 1837/79. The short point that requires consideration in all these petitioners is : whether the seniority of the petitioners is to be reckoned from the date of their initial appointments in the Schools or from the date of take over of said Schools by the Municipal Corporation of Delhi.
(2) The petitioner, Smt. Kamla Devi Gupta was appointed as Asstt. Teacher in Gandhi Kanya Mahavidyalaya, Sarai Rohilla Delhi on 1-9-54. She was confirmed as such by order dt. 15-3-65. The School fell into certain financial difficulties and there were reports of mis-management and as such it was taken over Along with the staff on 1-5-66 by the Municipal Corporation of Delhi. The petitioner was paid salary according to existing pay-scale as before. 1970, the seniority list of Assistant Teachers was calculated and the petitioner was given seniority with reference to the date of her initial appointment i.e 1-9-54. In 1969 applications are invited for the post of Head Mistress of the School. The petitioner submitted her application wherein she had mentioned her date of joining service as 1-9-54. By order dt. 3-11-70, the petitioner was promoted as Head Mistress. The seniority of petitioner was maintained in the list of Head Mistress right up to 1976. Meanwhile the order dt. 18-1-73, the petitioner was given the selection grade with effect from 5-1-71. The problem .started from Memo dt. 7-7-75 issued by the Education Officer of Municipal Corporation of Delhi to the petitioner. In the said Memo, it was stated that on scrutiny it has been found that her date of appointment was wrongly taken to be 1-9-54 while the correct date should be 1-5-66. She was intimated that it had been decided to withdraw the selection grade granted to her and to recover the amount paid to her in this behalf and also to revert to the substantive post of Assistant Teacher in the pay-scale of Rs. 165-550 with immediate effect. She was directed to hand over the charge of the post of Head-Mistress to Parkash Kapur who was being posted as such is further directed to report for duty to Shakti Girls School as Assistant Teacher.
(3) The aforesaid order was challenged by the petitioner by a petition under section 226 of Constitution of India in this Court. The said petition after notice to respondents came up for hearing before S. Chawla J. on 8-9-75. The learned counsel for the respondent-corporation made a statement in Court that the seniority of the petitioner will be disbursed without giving her an opportunity now cause against the proposed change of her position in the seniority list. It was further stated that the petitioner had to be reverted from post of Headmistress to the post of Assistant Teacher. It will be done only after considering her answer to show cause notice and the position and status of the petitioner including the grant of selection grade will not be disturbed without first deciding the question of her seniority. In view of this statement of the counsel for the Corporation, the petition was allowed and it was left open to the Corporation to proceed again in such manner as may be permissible under law.
(4) As a consequence of the aforesaid order passed by this Court, a show cause notice was issued by defendant No. 2 to the petitioner. Reliance was placed on the Fundamental Rule 130 and Rule 47 of Delhi School Education Rules for changing the seniority of the petitioner. It will be useful to reproduce the show-cause notice in extense. The notice is as under :
'WHEREAS Smt. Kamla Devi Gupta, Head Mistress, M.C. Girls Primary School, Sangam Park, Delhi had been originally appointed as Asstt., Teacher in the Gandhi Kanya Maha Vidyalaya. Sarai Rohilla Delhi w.e.f 1-9-1954. which was aided and recognized school, over which the Delhi Municipal Corporation had been exercising its full control and supervision. And Whereas consequent upon taking over the aforesaid school by-the Delhi Municipal Corporation, her service.inter-alia, were also transferred and taken over by the Corporation w.e.f. 1-5-1966. And Whereas in pursuance of the provisions of F.R 130 read with Rule 47 of Delhi School Education Rules 1973 framed under the Delhi Education Act 1973 and further read with Resolution No. 752 dt. 22-12-1971 of the Corporation governing the terms & conditions of service of the staff of the recognized aided schools taken over by the Corporation on account of their closure by their respective management, the seniority of the teachers and other staff also are thus taken over shall count with effect from the date of their joining the Municipal Services. And Whereas, contrary to the well established provision of the Law, rules and regulations as referred to in para (3) above, the seniority of the said Smt. Kamla Devi Gupta has been inadvertently counted by the Department with effect from the date of her appointment in the aforesaid school i.e 1-9-1954 instead of from the date of her joining the service of the Corporation i.e 1-5-1966. And Whereas, consequent upon wrong and inadvertent counting of her seniority from the date of her original appointment in the school, she had been placed at S. No. 466 of the combined seniority list of Asstt., Teachers. And Whereas, by virtue of rectification of wrong counting and determining of seniority, she sought to have had been placed at S. No. 3067. The combined seniority list of Assistant Teachers, taking into consideration the date of her first joining the Municipal service i.e 1-5-1966. And thereforee, in view of the above, the said Smt. Kamla Devi Gupta is hereby called upon show cause within 30 days of the receipt of this notice as to why her seniority should not be counted w.e.f 1-4-1966 i.e the date of her joining the Municipal Corporation , and her correct seniority determined at S. No. 3067A is the seniority list of Assistant Teachers and service benefits as settled accordingly. Please note that on failure to submit reply, if any, to the instant notice within the stipulated period, the case shall be decided ex parte without further notice in this behalf.'
(5) The show-cause notice was duly replied by the petitioner and on consideration of the entire matter, the impugned order dt. 17-10-1979 was passed. According to the impugned order, the seniority of the teaching staff of the erstwhile aided Schools absorbed in Municipal Services on the taking over of such schools otherwise from time to time shall be reckoned from the respective date/dates from which each one of them joined Municipal Services. The seniority list was determined accordingly in due course. By a further order dt. 22-11-1979, the petitioner was shown in the seniority list as at No. 3327-A and the Old seniority number which was 466 was cancelled. It is against this order that the present petition had been filed.
(6) It may be noted that similar action was sought to be taken against many other teachers who were similarly situate. Some of the teachers had filed writ petitions in this Court which came up for hearing before H.L. Anand J. on 30-5-1975. The Ld. Judge found that the. action had been taken without notice to the petitioners. The counsel for the Corporation in those petitions also conceded that notice as required will be issued and no action will be taken till the matter was decided after serving of such notice and hearing of the petitioners. Consequently, the petitions were allowed with the following observations:
'IT was, thereforee, frankly conceded by Sh. Marwaha on behalf of the Corporation that having regard to the question and the number of members of the staff involved, the Corporation has decided to examine the whole matter afresh after giving reasonable opportunity to the various petitioners as indeed the other employees of the Corporation who may be affected, of being beard, and that in the course of the said opportunity the petitioners would have the right to submit a reply, inspect the relevant records, which are not considered confidential, to cross examine witnesses who may be produced by the Corporation, to produce both oral and documentary evidence, to make written submissions and to have personal hearing before the authority concerned.........-It thus, appears to me, thereforee, that in view of the concession made by the Corporation, it would be appropriate that without expressing any opinion on the merits of the contentions, I should set aside the orders, and actions by which the several petitioners, who had been given the benefit earlier, were sought to be deprived of that benefit leaving the Corporation free to take such action afresh after giving them a reasonable opportunity of being heard in terms of the aforesaid concession as it may deem fit.'
(7) It was further observed by the Ld. Judge that it was not possible to pronounce on the merits in the absence of proper material on record. g. It is only after the aforesaid judgment that show cause notices were issued to the various teachers, some of which have come before this Court on these writ petitions. The show-cause notices only give two reasons for contemplating revision of the seniority list. One is fundamental rule 130 read with rule 47 of the Delhi School Education Rules 1973 and the other is resolution No. 752 dt. 22-12-1971 passed by the Municipal Corporation. The notice does not mention that the taken over of the school was subject to any such condition. The final resolution passed by the Corporation being resolution No. 245 dt. 19-6-1978, para6oftbe counter-affidavit which traces out the entire history of the take over of various schools by Corporation also, does not mention that any provision had been made at the time of take over regarding the seniority of the teachers to be reckoned from the date of take over. The reliance in this resolution is again placed on fundamental rule 130 rule 47 of Delhi School Education Rules-1973. Rule 130 of Fundmental Rules reads, as under:
'R.130- persons transferred to Government service from a local fund which is not administered by the Government will be treated as joining of first post under Government and their previous service will not count as duty performed. The Central Government may, however, allow previous service in such cases to count as duty performed on such terms as it thinks fit.'
(8) This rule obviously is inapplicable in as much the teachers have not been transferred to government service but have been transferred to the Municipal Service. In any cases, the discretion is again with the Government to provide seniority and other benefits on such terms as it may be thought proper. As regards rule 47 of Delhi School Education Rules 1973, the same came into force much after the take over of the schools and have got no retrospective effect. According to that rule in certain cases, the surplus staff has to be absorbed in Government schools or in other aided school. The proviso provides that where any such surplus employee is absorbed in a Government school he has to be treated as junior to all the persons of the same category employed in the school on the date immediately preceding the date on which be was so absorbed. Same is an aided school. This rule is confined to the absorption of teachers after the coming into force of the Delhi School Education Act and the Rules and has obviously no retrospective effect and cannot possibly affect the teachers who were absorbed more than a decade prior to the coming into force of the said Rules.
(9) Thus, the only other reason is the resolution No. 752 dt. 22-12-1971 passed by the Municipal Corporation. Clause 4 of that resolution reads, as under:
'4. The seniority of the teachers, who are thus taken over in Municipal Service, will count w.e.f. the date of their joining the Municipal service.'
Such a provision was made earlier by the Municipal Corporation when Vedic Hindu Middle School, Kotia Muberikpur, Delhi was taken over by the Corporation in 1958,. In that case, also the Corporation had refixed the seniority of the teachers in accordance with the date of take over of the school. The action was challenged by way of two writ petitions being CW. 229 of 1966 (Yogesh Behari Lal v.M.C.D.)CW. 1183 of 1973 Sh.Chand Kaushikv. M.C.D). Both these writ petitions were heard by two Judges of this Court and the orders fixing the seniority from the date of take over were quashed. The first case Yogesh Behari Lal v. MC.D.also went up in a letters Patent Appeal and the Division Bench of this Court dismissed the said appeal and maintained the judgment passed by the learned Single Judge. In both the cases, the judgments have become final between the parties, and the seniority of the teachers has been fixed from the date of their initial appointment in the school which was taken over.
(10) Even after the resolution passed in 1971 mentioned above, the Municipal Corporation took over Salwan Public School Rajinder Nagar, New Delhi by resolution No. 354 dt. 18-1-73. The seniority of the teachers transferred from the said school was counted from the date of their initial appointment in the Salwan School. By the subsequent resolution passed in 1978 it was resolved to reopen the cases but till date no such action has been taken. To the same effect Northern Railway Men's Union Middle School, Kishan Ganj, Delhi was taken over and the benefit of the past service including seniority was granted to the staff on the basis of their initial appointment. These facts have not been denied in the counter affidavit. In two of the writ petitions before me namely civil writ No: 1723 of 1979 and 1724 of 1979 order/resolution has been annexed with the counter affidavit which, according to the respondent was passed at the time of take over of the school. The said order/resolution annexed is R-1 fo the counter-affidavit, it is mentioned in the resolution :
'IT is proposed that the school along with its staff may be take over w.e.f. 1-5-1966 by the Corporation on the following usual terms and conditions: (i) The management shall be responsible for all assets and liabilities as they stood on 30-4-1966. The department, however, reserves the right to recover dues, if any, of the Corporation from the management. (ii) The teachers and other staff as is covered by the approved fixation of posts as on 30-4-1966 (list enclosed) shall be deemed to have been transferred to the Municipal Corporation with their pay and grades protected. (i.ii) Seniority of the transferred staff shall, however, be taken into account from the date the school is take over by the Corporation.'
(11) After giving my careful consideration to the aforesaid resolution, it is difficult for me, to hold that any such resolution was passed and in any case was acted upon. There is nothing to show that the teachers are apprised of this decision. In any case clauses (ii) & (iii) are self-contradictory. According to clause (ii) the teachers are deemed to have been transferred to the Municipal Corporation with their pay and grades protected, while according to clause (iii) their seniority has to be counted from the date of take over of the school. The word 'transfer' itself indicates that it is not a new appointment and it carries with it the benefit of past service, particularly, when pay and grades are also protected. If any such resolution had been passed and was intended to be acted upon teachers would not have got seniority in 1966 till 1975 when for the first time the case was reopened. Not only the teachers get seniority but some of the petitioners were even given selection grades and were promoted. The seniority lists were also criculated. Moreover no such resolution finds mention in resolution No. 752 of 1971 and 245 of 1978. If the resolution was actually in existence this would have been placed at the forefront in the latter resolutions and would have formed the basis for the show cause notice also.
(12) Taking of the case from the point of view of justice also, I do not find any reason to deny the seniority to the teachers of the schools which were functioning in aided schools and were under the direct supervision of the Corporation. It is also an admitted fact that the teachers had the same qualifications which were prescribed for the Govt. teachers or for the teachers employed in Municipal schools. A statement was made at the bar by the Ld. counsel for the petitioner that some of the teachers of take over schools have since been transferred to Govt. Schools and are enjoying the seniority from the date of their initial appointment. inspire of the opportunity having been given to the counsel for the Municipal Corporation, this statement was not contradicted. In the circumstances, to deny the seniority to the petitioners from date of their initial appointment would amount to violation of articles 14 and 16 of the Constitution of India
(13) For the reasons recorded above, the rule in all the five petitions is made absolute and impugned orders revising the seniority and reckoning the seniority from the date of take over, are hereby quashed. The consequence will be that the petitioners will be entitled- to their seniority and consequential benefits from the date of their initial appointments in the schools which were taken over. The petitioners will also be entitled to their costs. Counsel's fee Rs. 250.00 in each petition.