A.K. Sukheja vs Indian Institute Of Technology ...
1988 Latest Caselaw 8 Del

JUDGMENT

N. Kirpal, J.

(1) The challenge in this writ petition is to order dated 28th July, 1988 whereby respondent No. 3 Mrs. Krishna Devi Yadav has been appointed as the Acting Head Mistress in place of the petitioner.

(2) Briefly stated the facts are that respondent No. 1 opened a Nursery School sometime in the year 1967. One Mrs. U. Banerji was appointed as its Head Mistress. According to the respondents the Head Mistress had bean provided by N.C.E.R.T. The case of the petitioner is that on 26th February, 1970' the selection committee recommended four persons for appointment to the post. of Nursery Teachers at the initial starting salary of Rs. 126 p.m. The name of the petitioner was at Serial No. 3 and that of the respondent No. 3 was placed at Serial No. 4. The first two candidates who were selected did not join and the petitioner and the respondent No. 3 joined the said Nursery School. It is an admitted case that the name of the petitioner was placed above that of respondent No. 3 in this selection which was made for appointment of Nursery Teachers on a regular basis.

(3) According to the petitioner she was the senior-most Nurses Teacher and during the absence of Mrs. U. Banerji she was always required to officiate as Head Mistress. This is evident from the order dated 18th July, 1983 issued under the signatures of Mrs. U. Banerji and countersigned by the Chairperson of the School in which it is stated that when Mrs. Banerji will be going out of Delhi "Mrs. A. Sukheja will be officiating as Head Mistress". There are other orders on the record in which it has been stated that in the absence of Mrs. U. Banerji the petitioner will look after the duties of the Head Mistress.

(4) On 31st October, 1986 Mrs. U. Banerji retired from service. On 11th November, 1986 an office order was issued wherein it was stated that the petitioner will look after the work of the Head Mistress up to 31st December, 1986 or till a person joins on deputation. This was followed by a Setter dated 13th November, 1986 written by the Chairperson of the School to the Branch Manager, State Bank of India, I.I.T., New Delhi, in which it was stated that the petitioner had been appointed as an Acting Head Mistress vide office order dated, 11th November 1986 and she will be entitled to operate the bank account.

(5) It seems that an exercise was undertaken by respondent No. 1 for appointment to the post of Acting Head Mistress and this connection a meeting was scheduled to be held on 4th November, 1986. This meeting was postponed and a letter dated 9tn February, 1987 was issued asking the candidates to appear on 16th February, 1987 in the office of the Deputy Director (Admn) of respondent No. 1. It seem', that nothing took place on that day and on 18th February, 1987 another letter was issued requiring the candidates to appear on 27th February. 1987 for assessment of their candidature for the post of Acting Head Mistress at I.I.T. Nursery School for a period of six months. According to the petitioner, and this is not disputed by the respondents, the interviews were held on 27th February. 1987. Thereafter, the only order which was passed is the office order dated 17th July, 1987 in which it is stated that in continuation of the earlier office order dated 11th November. 1986 "Mrs. A. K. Sukheja, may Jock after the work of Head Mistress. Nursery School till further orders".

(6) It appears that respondent No. 3 made a representation dated 16th July, 1988 to the Deputy Director of respondent No. 1. inter alia, contending that the officiating arrangement for the post of Head Mistress should be by rotation, and since the petitioner had been holding the charge of Acting Head Mistress after the retirement of Mrs. Banerji, respondent No. 3 should be given an opportunity to act as the Head Mistress. This led to the issuance of the imputed order dated 28th July, 1988 in which it was stated that respondent No. 3 "is hereby appointed as Acting Head Mistress to Nursery School in place of Mrs. A.K. Sukheja, Nursery Teacher (SG) for the year beginning from 1st August, 1988 to 31st July, 1989".

(7) The petitioner thereafter filed the present writ petition challenging the impugned order dated 28th July, 1988.

(8) A common reply has been filed on behalf of the respondents. It has been contended by the respondents that the experience of respondent No. 3 as a teacher was longer than that of petitioner. It has further been slated that it is the normal practice in the "Universities that the Heads of Departments and ie Deans are appointed by rotation term wise from amongst the teachers and as the teachers of this School were holding equal rank, therefore, respondent No. 3 was appointed as the Acting Head Mistress. It has further been contended by the learned counsel for the respondents that a regular Head Mistress is likely to be appointed within 4 or 5 days and, therefore, no order should be passed in this writ petition.

(9) The first question to be decided is as to who is the senior of the two, whether it is the petitioner or respondent No. 3 ? answer to this is provided by the documents on record. it is that respondent No. 3 had joined as a Nursery Teacher earlier than 1970, but as admitted by the respondents in their counter affidavit, that appointment was purely on an ad-hoc basis. The regular appointment was made for the first time in 1970, when as already indicated hereinabove, four candidates selected and the petitioner was placed at S. No. 3 and respondent No. 3 was placed at S. No. 4. When a selection is made of the candidates and a select panel is prepared, it is normally presumed that the person who is last in the list would be junior the others. In this case respondent No. 3 was placed No. 4 whereas petitioner was placed at S. No. 3 This being. the petitioner has to be regarded as senior. Moreover, as agenda item dated 2nd November, 1987 (Annexure 'X' to the pitition) it has been stated that "Mrs. A. K. Sukheja Nursery Teacher being the senior most has been asked to look after the day to day working of Iit Nursery School, since the day Mrs. Banerjee retired in October, 1986". This shows that the petitioner was regarded as the seniormost Nursery Teacher, i.e. Senior to respondent No. 3.

(10) On 12th July, 1988 an office order was issued whereby the petitioner and respondent No. 3 were promoted to the higher scales. In this office order again the name of the petitioner was shown at S. No. 1 while that of respondent No. 3 was at S. No. 2. It is true that in a note to this office order it has been stated that "Persons promoted to the next higher post under these rules will have no claim for seniority in the higher post". But it. does not mean that between the petitioner and respondent No. 3 there is no seniority fixed vis-a-vis each other. Amongst the two, it is the petitioner who was the senior and the respondent No. 3 junior.

(11) As is the admitted case of the parties, on 27th February, 1987 interviews were held for assessment of the candidature for the post of Acting Head Mistress. Thereafter, the first Order which was passed was dated 17th July, 1987 whereby the petitioner was asked to look after the work of the Head Mistress of the Nursery School. The record of the respondents as to what transpired in the interviews which were held on 27th February, 1987 has not been placed before me. The sequence of events would suggest that the order dated 17th July, 1987 was passed as a result of the interviews which were held on 27th February, 1987 vide an order dated 18th February, 1987. Both the petitioner and respondent No. 3 had appeared on 27th February. 1987 in the office of the Deputy Director (Admn) along with other candidates and it is thereafter that the office order dated 17th July, 1987 was issued- Respondent No, 3 could not have been regarded as a better candidate than the petitioner for it was the petitioner who vide an office order dated 17th July, 1987 was asked to look after the duties of the Head Mistress till farther orders.

(12) The impugned order dated 28th July, 1988 has been passed pursuant to a representation received from respondent No. 3. In that representation it had been suggested that officiating arrangements should be made by rotation, and this suggestion seems to have been accepted by the Deputy Director (Admn ) of respondent No. 1 and this is what has resulted in the order dated 28th July, 1988 being passed.

(13) Since 1967 the respondents have had a permanent Head Mistress for their Nursery School. The respondents have sought to suggest that it is the normal practice to have the Heads, of Departments and Deans by rotation. Eventhough this may be the normal practice in the I.I.T. and the Universities, for the post of the Head Mistress of the Nursery School this practice has not been followed, and in fact, cannot be followed. A Nursery School would always require a Head Mistress being appointed permanently or for some period of time. No case has been brought to my notice in which a Head Mistress of the Nursery School has been appointed by rotation. In the instant case Mrs. Banerji was appointed as a Head Mistress in 1967 till she retired in 1986. It is upon her retirement that the petitioner was asked to discharge the duties of the Head Mistress. As is evident from the office order dated 18th February, 1987 the candidature of all the eligible teachers was to be assessed on 27th February, 1987 for appointment as an Acting Head Mistress. Thereupon, the order dated 17th July. 1987 was passed in which the petitioner was asked to continue to discharge the functions as the Head Mistress. There is, to my mind, no justification why all of a sudden with a view to accommodate respondent No. 3 new criteria should be adopted. The decision of title respondents to appoint Mrs. K. F. Yadav, respondent No. 3, as the Acting Head Mistress is completely arbitrary and without any basis. An officiating arrangement is always made by appointing the seniormost person unless that person is unfit. In the instant case whenever Mrs. Banerji had gone on leave it is the petitioner who had discharged the duties as Head Mistress. After the retirement of Mrs. Banerji in 1986, it is the petitioner who continued to discharge the said duties. After the interviews were held on 27th February, 1987 it was again the petitioner, who vide an order dated 17th July, 1987 was asked to continue to discharge the said duties. Suddenly, and without any apparent reason, the impugned order has been issued asking a teacher junior to the petitioner to function us the Acting Head Mistress. As I have already observed, there is no justification for superseding or recalling the order dated 17th July, 1987.

(14) It is lastly submitted by the learned counsel for the respondents that it is open to the petitioner to have filed an appeal was not filed to the Board of Governors of the I.I.T. this Court should not exercise its jurisdiction under Article 226 of the Constitution of India. I am surprised at this contention being raised. The Statute No. 13 provides for appeals being filed by an aggrieved person, if a penalty is imposed upon that person. The appointment of respondent No. 3 instead of the petitioner as the Acting Head Mistress does not amount to imposing any penalty on the petitioner. Therefore, the said statute does not apply. It was then submitted that at least a representation should have been filed. Merely because no representation was filed, which in any case is not a statutory rights, can be no reason for this Court not exercising its jurisdiction under Article 226 of the Constitution of India especially when the impugned order of the respondents is, on the face of it, arbitrary and unjust.

(15) For the aforesaid reasons, the writ petition is allowed, annd the Writ of Mandamus is issued quashing the impugned order dated 28th July, 1988 whereby the respondent No. 3 was appointed as the Acting Head Mistress.

(16) The petitioner shall be entitled to costs. Counsel's fee Rs. 500.