Ram Avtar Sharma vs The Administrator Govt. Of ...
2002 Latest Caselaw 165 Del

JUDGMENT

Madan B. Lokur, J.

1. The Appellant, in this appeal under Clause X of the Letters Patent, is the Vice Principal of Jan Kalyan Senior Secondary School. He is aggrieved by an order dated 24th May, 2001 passed by a learned Single Judge of this Court in CW 4978/1994.

2. The Appellant had filed the aforesaid writ petition challenging an order dated 6th December, 1994 issued under the orders of the Director of Education in the Government of the National Capital Territory of Delhi. By this order, an earlier order dated 8th November, 1994 promoting the Appellant to the post of vice principal was cancelled.

3. Along with the writ petition filed by the Appellant, two other writ petitions were heard by the learned Single Judge. These were CW 4384/1995 (L.C. Gupta v. Administrator and Ors.) and CW 4342/1999 (Udai Veer Singh and Anr. v. Administrator and Ors.). In these two connected writ petitions, the order dated 8th November, 1994 promoting the Appellant as Vice Principal was challenged. It was the contention of the petitioners in the connected writ petitions that they ought to have been considered for promotion to the post of Vice Principal but they were illegally not considered and the Appellant was improperly promoted. They, therefore, sought quashing of the promotion order dated 8th November, 1994.

4. The writ petition filed by the Appellant (CW 4978/1994) was dismissed by the learned Single Judge while the connected writ petitions being CW 4384/1995 and CW 4342/1999 were allowed by the impugned order. For reasons which are not clear, the Appellant has challenged only the dismissal of his writ petition and not the order passed in the connected writ petitions whereby his promotion itself was set aside.

5. The facts not in dispute are that the Appellant is placed lower in the seniority list than the petitioners in the connected writ petitions. When the post of Vice Principal of Jan kalyan Senior Secondary School fell vacant in 1994, a Selection Committee was constituted for promotion to the post of Vice Principal. As per the recruitment rules, promotion to the post of Vice Principal was to be made, inter alia, from among post Graduate Teachers (PGT)/ Head Masters of the same school with at least five years experience as PGT/Head Master. The Competent Authority was entitled to relax the essential qualification in an exceptional case of a candidate of the same school after recording reasons therefore.

6. Neither the Appellant nor the petitioners in the connected writ petitions had five years experience as PGTs in the same school having been appointed as PGT on 13th May, 1993.

7. The Appellant, had, however, produced a certificate that he had worked ass Head Mater and officiating Principal for three years tow months and eleven days in Kisan Mazdoor Inter College, Atarara (U.P.). This period was taken into account for considering the Appellant for promotion. However, notwithstanding this, the Appellant still fell short by about four months in meeting the required eligibility criterion. Nevertheless, the Appellant was considered for promotion and selected. The petitioners in the connected writ petitions were not even considered by the Selection Committee. It is because of their non-consideration that the petitioners in the connected writ petitions challenged the promotion of the Appellant.

8. Two questions arose before the learned Single Judge who decided all the three cases. The first question was whether the Appellant could have been promoted to the post of Vice Principal and the petitioners in the connected writ petitions excluded from consideration. The second question was whether the Appellant's promotion could have been cancelled.

9. The learned Single Judge examined the records of the case produced by the Director of Education and concluded that persons how were senior to the Appellant had not even been considered for promotion and, therefore, an illegality had crept into the deliberations of the Selection Committee. The learned Single Judge noted the view of the Director of Education that the past services of the Appellant could be taken into consideration only for pensionary benefits and not for promotion. The records revealed that relaxation of experience of abut four months had initially been given to the Appellant by an officer of the Directorate of Education other than the Competent Authority postulated by the recruitment rules. The learned Single Judge concluded that this junior functionary had suppressed material facts from the Competent Authority and had opened a part-file to mislead the Competent Authority into giving relaxation of experience. It was held that in the absence of all the records being placed before the Competent Authority, the promotion of the appellant to the post of Vice Principal was vitiated.

10. The learned Single Judge was also of the view that no prior approval of the Director of Education had been taken for relaxation of the eligibility criterion and as such Rules 97 and 103 of the Delhi School Education Rules, 1973 had not been adhered to. These Rules read as follows:-

"97. Relaxation to be made with the approval of the director - Where the relaxation of any essential qualification for the recruitment of any employee is recommended by the appropriate selection committee, the managing committee of the school shall not give effect to such recommendation unless such recommendation has been previously approved by the Director.

103. Power to relax qualifications - (1) The Affiliating Board, or in the case of primary or middle schools, the appropriate authority, may, in case of non-availability of trained or qualified teachers in a particular subject, relax the minimum qualifications for such period as it may think fit:

Provided that no such relaxation shall be made except with the previous approval of the Director.

(2) The minimum qualifications may also be relaxed by the Affiliating Board or the appropriate authority, as the case may be, in the case of candidates belonging to the Scheduled Castes or Scheduled Tribes:

Provided that such relaxation shall be made in accordance with the orders on the subject made by the Central Government form time to time."

11. In view of the various illegalities noticed and found by the learned Single Judge in the promotion of the Appellant to the post of Vice Principal, he concluded that the promotion of the Appellant stood vitiated and that the promotion order dated 8th November, 1994 deserved to be set aside. The learned Single Judge then directed the post to be filled up as expeditiously as possible and in the meanwhile, the senior-most teacher in the school was asked to hold the charge of Vice Principal. The learned Single Judge also concluded that there was suppression and manipulation of the official records and the Director of Education should conduct an inquiry in respect thereof and proceed against the persons responsible for the suppression and manipulation.

12. Submission in the appeal were made by learned counsel for the parties on 11th January, 2002 when judgment was reserved. The record of the case with the Director of Education was also produced by learned counsel for the Respondents and shown to us.

13. Before, us, learned counsel for the Appellant raised only one contention, namely, that the Appellant should have been given a show cause notice and a hearing before his promotion was cancelled by the order dated 6th December, 1994. Reliance was placed by learned counsel for the Appellant on Shrawan Kumar Jha and Ors. v. State of Bihar and Ors., 1991 Lab.IC 1317, S.L. Kapoor v. Jagmohan and Ors., , Janardan dubey v. State of Bihar and Ors., , Dr. M.S. Mudhol and Anr. v. S.D. Halegkar and Ors., , Anil Katiyar (Mrs.) v. UOI and Ors., , Anil Kumar Gupta and Ors. v. Municipal Corporation of Delhi and Ors., , and R. Prabha Devi and Ors. v. Government of India and Ors., .

14. The first question that had arisen was whether the promotion of the Appellant was in accordance with law. If the answer to this question is in the affirmative, then the second question would arise, namely, whether the cancellation of the promotion by the order dated 6th December, 1994 was violative of the principles of natural justice.

15. The first question mentioned above was answered in the negative by the learned Single Judge while deciding the connected writ petitions. the decision of the learned Single Judge in this regard has not been challenged by the Appellant and has, therefore, attained finality. Consequently, if the promotion of the Appellant to the post of Vice principal is itself vitiated, there if no occasion to consider the validity or otherwise of the cancellation order dated 6th December, 1994. Learned counsel for the Appellant has, consequently, raised only an academic issue before us, the second question not arising since the first question is answered in the negative.

16. Without basing our decision only on this aspect of the matter, we find that even otherwise, it was not at all necessary to give the Appellant a hearing before cancelling his promotion, in the facts of the present case. This is because the recommendation made by the Selection Committee recorded in its minutes of the meeting held on 27th October, 1994 for promotion of the Appellant was only provisional. The Appellant, therefore, did not have any right to hold the post of Vice Principal. The recommendation for a provisional promotion was made because even after considering the period served by the Appellant in some other school in U.P. as PGT, he still fell short of four months experience, which was required to be relaxed by the Director of Education. There is nothing to show that it was after considering the entire record that the Director of Education had relaxed the essential qualification in favor of the Appellant. In fact, the entire record had not been placed before the Director of Education - only a part-file had been placed before him. This was the finding of the learned Single Judge and we affirm the same.

17. The cases relied upon by learned counsel for the appellant to the effect that her client was entitled to a hearing in accordance with the principles of natural justice are not applicable to the facts of the present case. This is because, as already mentioned earlier, the promotion of the Appellant was provisional and subject to the prior approval of the Director of Education, who was required to consider the entire record and not merely a part-file. The promotion of the Appellant itself being vitiated ab initio, there were no option to the Respondents but to accept the hard facts and resultantly cancel the promoting of the Appellant.

18. It was not the case of learned counsel for the Appellant that the promotion of the Appellant was legally sustainable. Indeed, this argument could not have been advanced because no appeal had been filed against the order of the learned Single Judge holding the promotion of the Appellant as vitiated. the order dated 6th December, 1994 cancelling the promotion of the Appellant was dependent upon the validity of the promotion of the Appellant. The promotion itself having been set aside, there is, now, no occasion to consider whether the order cancelling the promotion is valid or not.

19. There is a positive finding by the learned Single Judge (with which we entirely agree) that there was a manipulation of the official records and suppression of the material facts. There was absolutely no reason why a part file should have been opened to consider he question of relaxation in favor of the Appellant. The entire selection process should have been carried out with reference to the available file which showed that the petitioners in the connected writ petitions were also entitled to be considered for promotion. The very fact that persons senior to the Appellant were not considered for promotion goes to show that there was something drastically wrong with the selection process. The learned Single Judge rightly concluded that no case was made out for the continuation of the Appellant in the post of Vice principal of Jan kalyan Senior Secondary School.

20. For the above reasons, we dismiss the appeal and affirm the direction of the learned Single Judge to the effect that a fresh selection process be carried out for promotion to the post of Vice Principal in Jan Kalyan Senior Secondary School after considering all the eligible persons as on the date the Selection Committee met, that is, 27th October, 1994. In the event the successful candidate has superannuated in the meanwhile, the next person in the select list should be appointed as the Vice Principal of the school. The selection process should be completed within three months and till then, the senior-most teacher in the school shall hold the charge of Vice Principal.

21. We also agree that the Director of Education should conduct an inquiry into the suppression and manipulation of the official records and take action against the persons responsible for the misdemeanour.

22. The appeal is dismissed with costs of Rs. 3,000/- which shall be deposited in the Delhi Legal Services Authority.