Column: Who Helped Kashmiri Migrant Teachers, Delhi Government Or The Judiciary?

The opposition claimed that it was the Delhi High Court that regularized the services of the teachers, despite the opposition of the Delhi government.

An MLA of the Aam Admi Party produced before the media an order of the Delhi High Court recording submission of the Delhi government that its cabinet has decided to regularize services of Kashmiri migrant teachers. This is however was countered by the opposition, stating that the Delhi government then went back on its stand and opposed regularization.

The Delhi government has also claimed that it was the Lieutenant Governor who opposed the regularization, being in control of the service department of the Delhi administration.

Sequence of Events

In June, 2010 the Government School Teachers' Association (Migrant) and 199 of its member teachers filed a writ petition before the Delhi High Court seeking regularization of employment and parity of pay with permanent teachers.

In July, 2014, the Court passed an interim order issuing notice to "the Learned Attorney General of India, for assisting this Court, and to know the stand of the Government of India, as on today, as regards the issue articulated in the writ petition".

In December, 2014, the Court recorded the submission on behalf of the Central Government that it "would have no objection if the Govt. Of NCT of Delhi were to absorb members of the petitioner No.1 association, on a regular basis".

In February, 2015, Arvind Kejriwal became the Chief Minister of Delhi.

In May, 2015, The Bench of Justice Rajiv Shakdher heard and allowed the Writ Petition. In the judgment, three-fold objections of the Delhi government are recorded. The Delhi government argued that contractual employees cannot be regular employees in the matter of pay, allowances and other benefits, that the Kashmiri migrants knew what they are getting into when they accepted the contractual employment and that granting regularization of employment or parity of pay to the migrant teachers will violate the judgment of the Supreme Court in Uma Devi's case(2006). During the hearing, another submission was made that a writ petition at the instance of the petitioner association is not maintainable.

The judgment records the plight of the migrant teachers thus:-

"As would be evident from the terms and conditions stipulated in the letter of appointment, the petitioners were required to undertake a full teaching load as prescribed in the curriculum without being accorded the usual benefits such as medical facilities, HRA and provident fund. The disparity in engagement extended to, even, failure to accord paid leave during summer vacations. The petitioners were in fact expected to undertake remedial classes and other administrative works, if they wished to earn their wages for the period when, schools, ordinarily remained closed."

The Court took judicial notice of the situation in Kashmir to hold that there is no likelihood of the petitioners being sent back to Kashmir.

The Court passed three directions, firstly to give the migrant teachers the same pay and benefits as regular teachers, secondly to regularize their employment within three months by creating posts, if necessary, and thirdly to treat those teachers who were removed from service or died during the pendency of the petition as regular employees for payment of consequential benefits.

The Court passed the Judgment despite another Single Bench's earlier decision denying such benefits to similarly placed teachers.

On September 11, 2015, the Delhi government obtained a stay on the Judgment by filing an intra court appeal before the Division Bench of Delhi High Court.

On March 16, 2016, the Delhi government informed the Court that it was considering whether to regularize the services of the teachers.

In May, 2016 the Division Bench noted in an order that the demand of the teachers for similar terms and conditions as regular teachers is "not only acceptable but entirely justified".

On July 14, 2017 the Division Bench records the submission of the Delhi government thus, "Counsel for the Government of NCT states that the Cabinet has decided to regularize the services of all teachers who have been working for long period in Delhi, on account of disturbances in Kashmir which led to their displacement. He submits that an appropriate order for regularization would be made."

This is the order being cited in the media to argue that the Delhi government had taken a decision to regularize the services of the teachers.

In April, 2018, the Division Bench heard the appeal. The Delhi government argued that the principle of equal pay for equal work will not apply to the Kashmiri teachers and they cannot claim parity with other teachers. It was argued that Kashmiri teachers cannot be regularized. The Counsel for the Delhi government made the following submission:-

"It was pointed out that at one stage of the proceeding, the court had recorded an assurance on behalf of the NCT that the teachers' services would be regularized. However, that assurance was contrary to the record, since no executive decision had been taken; moreover, no appropriate authorization to hold out such assurance was given."

The Delhi government even argued that the Court should not substitute its wisdom for that of the Government of NCT in not regularizing the services of the teachers.

In May, 2018, the Division Bench pronounced its Judgment dismissing the appeal of the Delhi government while allowing an appeal filed by some Kashmiri teachers, whose writ petition had been dismissed prior to dismissal of the writ petition filed by the association.

In October, 2018, the appeal filed by the Delhi and the Union governments before the Supreme Court against the judgment of the Division Bench of the High Court were dismissed.

It has been said in the media that the Education Minister of the Delhi government had written a letter in August, 2018 to withdraw the appeal filed before the Supreme Court, but that the Lieutenant Governor proceeded with the appeal.

Was it the High Court or Delhi Government?

It was after the AAP government came to power in Delhi (February, 2015) that the Writ Petition was opposed by the Delhi Government (May, 2015) before the Single Bench. Prior to that (December, 2014), the Central government had informed the Court that it has no objection to regularization of the teachers. It was while the AAP government was in power that the Delhi government obtained a stay (September, 2015) of the Single Bench's order from the Division Bench. The Delhi government then informed Division Bench that it was considering regularization of the teachers (March, 2016) and then that the cabinet has already taken a decision (July, 2017) to regularize the teachers. During the hearing of the appeal before the Division Bench (April, 2018), the Delhi government argued that the earlier submission regarding the decision to regularize was contrary to the record and that no such executive decision was taken. It was thereafter that Judgment of the Division Bench was challenged before the Supreme Court, which appeal was dismissed.

It is clear from the above that the Delhi High Court's judgments and the Supreme Court's dismissal of the appeal paved way for regularization of services of the Kashmiri migrant teachers.

If the decisions regarding service under the Delhi government were being taken by the Lieutenant Governor and not the Delhi government, it is not clear how, on two occasions, on behalf of the same respondents in the party array, submissions were made before the Division Bench regarding the decision to regularize the services of the teachers.

If all throughout it was the Lieutenant Governor who opposed the regularization since he alone has the power to take decisions on the matter, the Delhi government cannot have anything to do with the regularization done, whether on account of the directions of Courts or otherwise. Moreover, in the order of regularization of the teachers issued by the Delhi administration, it is clearly mentioned that the order was issued in compliance with the Judgment of the Division Bench of the Delhi High Court.

It is clear from the above that the Kashmiri migrant teachers got relief from the judiciary, not the Delhi government or the Lieutenant Governor.

[The opinions expressed in this article are those of the author. Verdictum does not assume any responsibility or liability for the contents of the article.]