Ram Tirath Sharma vs Administrator And Ors.
1995 Latest Caselaw 734 Del

JUDGMENT

M. Jagannadha Rao, C.J.

(1) The two appellants filed the writ petition Cwp 2551/92. The writ petition having been dismissed, they have filed this LPA. In the writ petition, they sought issuance of an appropriate writ/order/direction for quashing the notification dated 25.2.1980 issued by respondents 1 and 2(Administrator, Union Territory of Delhi and the Director of Education, Delhi Administration) 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 appellants were working with M.B.D.A.V. Sr. Secondary School, (recognised by the Delhi Administration), Yusuf Sarai, New Delhi. It was submitted by the appellants that they were seniors to respondents 5 and 6 and that they were to be promoted on the basis of the circular dated 10th May,1963 which permitted promotion on the basis of the seniority-cum-fitness. The circular was purely administrative and was in force till the new rules were issued by notification dated 25.2.1980.

(3) The rules could be framed by the Administrator in exercise of his powers under Section 28 of Delhi School Education Act,1973. The Rule 108 of Delhi School Education Rules,1973 was framed laying down minimum qualifications for recruitment and promotion and conditions of the service. The Rules were contained in a Notification dated 25th February,1980, providing in column 10 of the Table that promotion could be by way of selection. The said Rule also provided in column 5 that the candidates should have a master's degree and also a degree in teaching from a recognised University with 10 years experience as Vice-Principal or 5 years experience of teaching SPGT. It was however stated in column 6 of the Table that the age and qualifications of the candidates prescribed under the recruitment rules do not apply for promotional post. That would mean that post graduation and B.Ed were not necessary for promotion. But as stated above, under column 10 promotion was by way of 'selection' after 25.2.80 as opposed to the previous mode, namely seniority-cum- fitness provided in the circular of 10th May,1963.

(4) The appellants who are senior to respondents 5,6 and who failed to get selected in 1991-92, contended that the selection process was ultra vires for the following reasons. They contended that the rules had to be approved by the Central Government under Section 28 whenever made by the Administrator if they laid down minimum qualifications, method of recruitment etc.. If there was no approval for the rules made on 25th February,1980, the promotion could not be by selection as provided in Col. 10 of the new rules but could be by seniority-cum-fitness as per the earlier circular of 10th May,1963. In as much as the appellants' were not promoted by the old rule of seniority-cum-fitness and they were not selected by a Committee as per the new rules, and as the rules were not valid for want of approval by the Central Government, the selection, it was contended, should be held to be ultra vires.

(5) We pointed out to the learned counsel for the appellants that even if the approval was not obtained and the notification of 25th February,1980 did not have the force of a rule, still it could be treated as an administrative order and could replace any earlier administrative order like the one dated 10th May,1963. We pointed out that in the present case, the earlier mode of promotion was also prescribed by a circular in 1963 and there was no impediment for the new notification to operate as an administrative order replacing the old one even if it was not operative as a rule.

(6) The learned counsel had no answer to this proposition. We are, therefore, of the view that the provision for selection in vogue from 25th February,1980 can validly replace the earlier circular dated 10th May,1963. In fact, this notification of 1980 was being followed in all the previous selections. We do not think it appropriate therefore to strike down this notification treating the same as a rule and we accept its validity treating it as a new administrative order.

(7) The learned counsel then wanted to submit that, on facts the case of the appellant was excluded only on the ground that the appellants did not have a B. Ed qualification. But we find that this is not correct.

(8) The Departmental Promotion Committee met on 31st December,1991, 28th May,1992 and 20th July,1992, and considered the eligible candidates and the record shows that the appellants were considered "on the basis of comparative merit" and confidential reports and were still not selected. That is the categorical finding of the learned Single Judge. No doubt the Departmental Promotion Committee had said, so far as the 1st appellant was concerned, that he was also not qualified as per the new rules, but that was only an additional reason. The Departmental Promotion Committee's record shows that comparative merits of both appellants were gone into. The learned Single Judge observed "record which has been produced before me does not show that he (1st appellant) was rejected on that ground" i.e. qualification.

(9) In the above circumstances, we think that it is not a fit case for admission. We therefore dismiss the appeal.