Ram Tirath Sharma And Anr. vs The Administrator And Ors.
1995 Latest Caselaw 70 Del

JUDGMENT

C.M. Nayar, J.

(1) The present writ petition has been filed by the petitioners for issuance of an appropriate writ/order/direction for quashing the notification dated 25.2.1980 issued by respondent I and the orders dated 1.1.92 and 29.5.92 appointing respondent 5 as Vice Principal and subsequently as Principal and the order dated 21.7.92 appointing respondent 6 as Vice Principal and for further directions to the respondents for appointing the petitioners to the post of Principal and Vice Principal respectively.

(2) The brief facts of the case are that the petitioners have been working with M.B.D.A.V. Sr. Secondary School, Usaf Sarai, New Delhi as Post Graduate Teachers (for short PGTs) since the year 1965 and 1966 respectively. Earlier they had been working since 1958 and 1964 as language teachers before their promotion as PGTs. The petitioners further state that the constitution of respondent 3 which is the concerned school is controlled by respondents 1, 2 and 4 under Rule 59 of the Delhi School Education Rules 1973 (hereinafter referred to as the Rules) read with Section 5 of Delhi School Education Act (hereinafter referred to as the Act). This point is not in dispute that 95% of the salary of the employees of the school and other expenses are contributed by respondents 1 and 4. Therefore, it is contended that respondent 3 is in authority within the meaning of Article 12 of the Constitution of India and as such all its actions are subject to guarantees as provided in the relevant provisions of the Constitution of India. The petitioners next state that Section 28 of the Act gives rule making power to the Administrator who is respondent I herein and under that section the Administrator is empowered to make rules laying down minimum qualifications, method of recruitment and terms and conditions of service of employees. This power may be exercised under Rule 28 with the previous approval of the Central Government and subsequent laying down of the rules before each House of Parliament. The Administration vide notification dated 25.2.80 allegedly exercising powers under Section 8(1) and Section 13 of the Act read with Rule 100 laid down recruitment rules for the post of Principal and Vice Principal for recognised schools in Delhi. The said notification is filed as Annexure A to the writ petition. The petitioners contend that the notification of 1980 is bad in law and void abinitio as the same has provided the filling of the posts of Vice Principal and Principal by selection which was not the earlier position and the petitioners have suffered on account of the same. The notification is also attacked on the ground that there was no power with the Administration under Section 8(1) and 13 of the Act and Rule 100 of the Rules for recruitment and the power is so provided in Section 28 which may be exercised by the Administrator with the previous approval of the Central Government and subsequent laying of the same before each-House of Parliament. The Administrator is only competent to make rules of recruitment under that provision and he is not guided by any other authority as has been purported to be done while issuing notification dated 25.2.80. Therefore, the notification of 25.2.80 is bad and the appointment of respondents 5 and 6 on the basis of selection as contemplated by the notification is liable to be set aside. The petitioners I and 2 are the senior most and, in fact, they rank senior to respondents 5 and 6 and their selection has to be based on the circular dated 10.5.93 which implies that the same has to be on the basis of seniority-cum-fitness. The circular dated 10.5.93 may be reproduced as follows: "I have the honour to state that the Directorate of Education has been receiving complaints from teachers regarding their promotion to higher posts. It has, therefore, been decided that the promotion of 50:50 for direct recruitment and departmental promotions will be quite reasonable. As regards the post of H.M., Head Mistress/Principal, it is stated that the same may please be filled by Departmental promotions. However, in case there is no suitable departmental candidates in the next lower grade, the same may please be filled by direct recruitment."

The petitioners further reiterate that they have been making continuous representations to the respondents for undoing the wrong done to them but there has been no response and they have been left with no option but to approach this court by means of this writ petition.

(3) There is no dispute that the notification of 1980 envisages that the appointment to the post of Principal and Vice-principal has to be on the basis of selection and by promotion failing by direct recruitment. The ratio continues to be 50:50 for departmental promotions and direct recruitment. The petitioners as well as respondents were considered from the quota of departmental candidates. The posts in any case are the selection posts and it is not denied by the petitioners that all the eligible candidates are to be considered. The meetings of Departmental Promotion Committee (for short DPC) held on 31.12.1991, 28.5.92 and 20.7.92 considered the names of the eligible candidates for the posts of Principal and Vice Principal respectively. The record has been produced before me which indicates that the petitioners have been duly considered on the basis of comparative merit and by perusal of their annual confidential reports. There is no doubt that Dpc in case of petitioner no. I has mentioned that he was not qualified as he did not hold the requisite qualifications as per recruitment rules. However, the record which has been produced before me does not show that he was merely rejected on that ground. He was duly considered by the Dpc held on 31.12.91 as well as on 28.5.92. Similarly, Dpc considered petitioner no. 2 and he was also not considered suitable whereas record of respondents 5 and 6 was assessed better and they were found more suitable.

(4) The admitted position in the case is that the petitioners as well as respondents 5 and 6 come from the same stream. The method of recruitment was promotion 50% and direct recruitment 50%. The relevant rules as formulated by notification dated 25.2.1980 (Annexure A to the writ petition) provide that the posts of Principal as well as Vice Principal are to be filled up by selection. This obviously supersedes the earlier notification of 10.5.63 and the mode of selection has undergone the change. The learned counsel for the petitioners has relied upon the judgment of this court as reported in Nahar Singh Vs. Bijya Nand & Ors. which upheld the validity of the circular dated 10.5.63 issued by the respondents and it has been held that selection was to be made by promotion on the basis of seniority-cum-fitness. This case related to the recruitment made in the year 1979 whereas amendment which was introduced on 25.2.80 categorically held that the posts were to be filled up by selection. This judgment, therefore, will have no application to the facts of the present case and even the learned counsel for the petitioners has not disputed that the posts have to be filled up by selection in accordance with the existing recruitment rules. He has also relied upon the single Bench judgment of this court as reported in Jaswant Rai Gupta Vs. Delhi Administration & Ors. 1980 Labour and Industrial Cases 284. This judgment also was rendered prior to the framing of 1980 Rules and it has been held that the circular of 1963 would regulate the matter in the absence of any Rules or order. The Delhi Education Act, 1973 empowered the Administrator to make rules, inter alia, with regard to the method of recruitment. No such rules had been framed nor had any order been made by the Administrator under Rule 108. Therefore, it was held that the circular of 1963 would hold the field.

(5) The learned counsel for the petitioners has half-heartedly contended that the rules have not been framed in accordance with law and there is no power with the Administrator under Sections 8(1) and 13 of the Act and Rule 100 of the Rules for making method for recruitment for recognised schools as that of the school in question. The exercise of power has not been done with the previous approval of the Central Government and there has been no subsequent laying down of the same before each House of Parliament. The rules were promulgated in the year 1980 and they have stood the test of time. The petitioners did not ever challenge the same although it is contended that they could only challenge when their cases were ripe for consideration for promotion by the Dpc which only were held in the years 1991 and 1992. The learned counsel for respondents no. 5 and 6 has contended that any order made cannot be struck down merely on the ground that the order was made without the concurrence of the Central Government. It has further been argued that courts should not interfere with the notifications light-heartedly without having regard to the public prejudice caused thereby. ( Doburg Lager Breweries Vs. Dhariwal Bottle Trading Co. . The learned counsel for the respondents has also referred to me the orders made by this court in Cw No. 1016/90 (R.M.Gupta Vs. Delhi Administration) decided on 29th March, 1990 and Cw No. 5602/93 (Dr. S.C. Gupta Vs. The Managing Committee, Dav Sr. Secondary School, Darya Ganj, Delhi) decided on 5.12.1994. The said writ petitions were dismissed in liming upholding the settled position that in case the petitioners were considered for selection but somebody junior to them had been selected, no challenge could be made to that selection. The rules have been in existence since the year 1980 which indicated that posts have to be filled up by selection. The various selections in different schools have been made on that basis and it is too late in the day to impugn the settled position, particularly when the petitioners have been duly considered for the posts and have been found to be less merited than respondents 5 and 6. The record has been produced before me which has been carefully examined. I am satisfied that only those persons who had better record and fell into the zone of consideration were selected. Petitioner No. 1 has since retired in October, 1994 and no manifest injustice will be caused to him at this stage.

(6) The writ petition is accordingly dismissed. There will be no order as to costs.