Mrs. Uma Mitra vs Dy. Director (Education)
1999 Latest Caselaw 414 Del

JUDGMENT

K. Ramamoorthy, J.

1. The petitioner is a Maths Teacher in the fourth respondent School. She became eligible to be promoted as PGT on the post of PGT (Maths) which fell vacant on the 1st of April, 1995. The DPC of the school made the selection and from the 10th of July, 1995, the petitioner has been working as PGT (Maths) in the School. Seeking the approval, the fourth respondent, management, wrote to the Education Officer, Zone 26, New Delhi in the following terms:-

"I am directed to inform you, as per instruction of the Chairman of the Managing Committee of the School that the order of vacancies as mentioned in our previous letter No. SPV/42/1995-90 dated 23.6.95 may be amended to record according to the date of creation of vacancies as mentioned below:-

1.The post of PGT(Hist) from the 5th Jan.' 95.

2. The post of PGT(Econ) from the .1st Feb.'95.

3. The post of PGT(Maths) from the 1st April'95.

It may also be stated that according to your views for keeping reservation 40 point roster for promotions also will not be applicable to the post of PGT(Maths) which is a general category vacancy.

The vacancies for 1 & 2 cannot be filled up by promotion as there is no candidate available in the school in the TGT grade. We have already advertised for direct recruitment. The post of PGT (Maths) which is in general category will be filled up by promotion by DPC for which the question of reservation does not arise.

Accordingly, the DPC which met on 12.10.95 may record the promotion of Mrs.Uma Mitra, TGT(Maths) (the senior candidate in the category)

for the post of PGT(Maths) be promoted with effect from the date she has taken over charge i.e. the 10th July, 1995 to the post of PGT(Maths).

We shall be obliged for your urgent decision."

2. There was no reply from the Education Officer and the petitioner had to file this writ petition and the writ petition was instituted on the 15th of December, 1995 for the following reliefs:-

"ON THE PREMISES SET FORTH ABOVE, the petitioner most respectfully prays that this Hon'ble Court may be pleased to:

(a) issue a writ or order directing in the nature of writ of mandamus directing the respondents to treat the petitioner as having been promoted to the post of PGT (Maths) against unreserved vacancy;

(b) issue a writ or direction in the nature of mandamus directing the respondent to refrain from holding the interview on 19.12.1995 for selecting candidate for the appointment to the post of PGT (Economics) & PGT (History)."

3. The relief prayed for in paragraph (b), it is stated by Mr. R.K. Saini, has become infructuous as nobody has been appointed and no interview was held on 19.12.1995.

4. In the counter affidavit, the Education, Officer, without specifying as to how the post of PGT(Maths) came into reserved category, had dealt with the subject of reservation in a general way. It is stated in paragraph 4 of the counter:

"That the approval was conveyed to fill up the post of PGT History & PGT Economics through recruitment, out of which PGT History was reserved for SC. The other post of PGT Maths was to be filled through promotion, which was reserve for SC, since no appointment of SC candidate was made in the past. This is as per roaster register entries supplied by the school."

5. In paragraph 6, while elaborating the point on reservation, it is stated:

"That the approval was conveyed to fill up the post of PGT Economics and PGT History through direct recruitment out of which PGT History was reserved for SC. The other post of PGT Maths was to be filled through promotion which was reserved for SC as per roaster register entries supplied by the school no previous appointment of SC candidate has been made by the school. It is submitted that reservation is applicable for SC/ST in promotion also as circulated by the Delhi administration vide letter No. 2/8/89 SI dated 31.5.89. Treating unequals as equals would amount to denial of Article 14 of the Constitution to the SC/ST. Denial of reservation for SC/ST candidate for promotion would violate Article 15 and Article 16 of the Constitution as amount to denial of equal opportunity PGT Maths is to be appointed by promotion on basis of selection among SC candidates.

Para 2.3.2.(ii & iii) wherein the reservation is applicable in promotion made by selection in group C service also. Roaster prescribed in Annexure I to Office Memorandum No. 1/11/69-Est SCT dated 22.4.70 in which points 1,8,14,22,28 and 36 are reserved for SC is applicable. The

post being reserved one as no previous appointment was made of SC candidate. Since there was no qualified candidate from SC category is available in the feeder cadre the procedure of dereservation is to be followed. Dereservation has to taken in accordance to O.M.No. 36011/25/79 Est SCT dated 16.11.79 subject to the reservation being carried forward to three subsequent years of recruitment and subject to exchange of vacancies between SC and ST candidates in the last year to which reserved vacancies are carried forward. No steps has been taken by this department for dereservation. As per rules for dereservation a copy of the proposal in the prescribed proforma should be sent to the Department of Personnel and Training and Commissioner for SC and ST by the department/Ministry concerned and not by any attached or subordinates offices. After sending such proposal the Ministry or Department concerned should wait for two weeks for comments of Department of Personnel and Commissioner, if any, before the reserved vacancies are dereserved by them. As per letter No. 15038/35/76/PLG dated 20th Dec. 1976 written by Home Ministry to Union Territory Administrations dereservation in Group C service has to be made by the Chief Secretary, the copies of orders dereserving vacancies by the aforesaid authority be endorsed by Commissioner for SC & ST. The answering defendant relies on paragraph 4 of this reply the contents of the same are not repeated for the sake of brevity. It is denied that out of the three posts of PGT only one was reserved for SC. A copy of letter dated 13.9.95 send by education officer is annexed as Annex.A. It is stated that the post of PGT Maths is to be filled following the procedure of reservation or dereservation. It is denied that post of PGT maths was not a reserved post."

6. It is also admitted by the Education Officer that when candidates were not available, the process of de-reservation was not done. In the light of the counter filed by the first respondent, it is clear that the case of the management that the PGT(Maths) would come within the general category and the action of the management in promoting the petitioner as PGT(Maths) is in accordance with law.

7. On the 13th of September, 1995, the Education Officer, Zone-26, wrote to the fourth respondent in the following terms:-

"With reference to your letter No. SPV/29/95-96 dated 19.5.1995, on the subject cited above, I am directed to convey the approval of the Dy. Director of Education, District New Delhi to fill up the following vacant posts.

Sr. No. Category No. of Post Allowed SC/ST/Gen Remarks

1. PGT (History) One) 02 One reserved By direct recruitment

PGT (Econ).

One) for SC and other unreserved

PGT (Maths) One By promotion Following the procedure for reservation/dereservation.

2. Asstt. Tr.

One Reserved for SC By direct recruitment

(i) The above clearance is subject to the following conditions that the post will be filled up strictly in accordance with the 40 point Roster for the promotion cases and 200 point for the direct recruitment as prescribed by the Government of India in respect of reservation of posts for SC/ST/OBC.

(ii) Only the eligible persons are to be considered for recruitment/promotion against this clearance.

(iii) The posts are covered under the Post Fixation Sanction. This clearance sanction is valid for a period of 45 days from the date of issue." It is clearly mentioned that the post of PGT(Maths) is to be filled only on promotion.

9. The learned counsel for the first respondent, Mr. Rajeev Mehta, submitted that a memorandum had been issued by the Government of India on the 2nd of July, 1997 with reference to the implementation of the judgment of the Supreme Court in the case of "R.K. Sabharwal Vs. State of Punjab" and the entire process of appointment/promotion has to be in accordance with the dictum laid down by the Supreme Court and the petitioner cannot claim the approval and the management can seek approval only after the Government has complied with process as per the memorandum issued on the 2nd of July, 1997.

10. It is not disputed that the post fell vacant on the 1st of April, 1995. Therefore, whatever be the position as on that day, that would apply and the memorandum issued on the 2nd of July, 1997 would have only prospective operation. The first respondent, as a public authority, is bound to act in accordance with law and ought to have granted the approval when the fourth respondent, management, had acted in accordance with letter issued by the office of the Dy. Director of Education. The stand taken by the first respondent in the counter is not at all sustainable. The first respondent is bound to grant approval.

11. In the DPC held by the fourth respondent, the representative of the first respondent was present. Therefore, it is hereby declared that the approval is deemed to have been granted by the first respondent and the petitioner is deemed to have been promoted as PGT(Maths) w.e.f 10.7.1995 and the petitioner shall be entitled to all consequential benefits.

12. The respondents are directed to pay the salary to the petitioner in the scale of PGT. The arrear of pay and allowances and other consequential benefits shall be given to the petitioner on or before the 31st of August, 1999.

13. The writ petition stands allowed.

14. There shall be no order as to costs.