Mrs. Sushma Banga vs Delhi Administration And Ors.
2003 Latest Caselaw 286 Del

JUDGMENT

S.K. Mahajan, J.

1. Petitioner was appointed as a TGT on 26.7.1969 in the respondent No. 5-School. She was a post-graduate in History. In 1986, she was the senior most Domestic Science teacher serving with the school. A post of TGT (History) fell vacant in the school in 1986. In terms of the Circular dated 21.4.1970 issued by the Directorate of Education to all the Managers and Principals of the schools regarding selection/promotion of principals and teachers, it was directed that all the posts in aided schools will be considered as non-selection posts and if any post in the higher grade fell vacant and a teacher having required qualification was available in the same school, senior most teacher be promoted to this higher post. For such promotion, the work of the teacher should be satisfactory as per the inspection report of the last two years and confidential record should be good and the teacher should have three years teaching experience in his grade. It was observed in the Circular that in case the teacher fulfillls the above condition, he can be promoted subject to the approval of the Directorate of Education. It was further observed in the Circulate that for the appointments/promotion of teacher the presence of the Government nominee in the Selection Committee was essential. It was also directed that only when the teacher having the required qualification was not available in the school and the selection was to be made from outside that the Manager of the school was to call the names from the employment exchange.

2. The aforesaid circular makes it clear that in cases of promotion to the higher post, the school must first consider the senior most teacher with the required qualifications and it is only in cases when teacher with the required qualification is not available in the school that the school could call for names from the employment exchange. In the present case, the Selection Committee was constituted by the school in accordance with the Rules for considering the names of the eligible teachers. The nominee of the Directorate of Education was also called to be present in the Selection Committee and in the meeting of the Selection Committee held in the school, the nominee of the Directorate of Education was also present. Petitioner was having Post Graduate degree in History and as the post to be filled was PGT (History) her name was also considered by the Selection Committee. After considering the names of the candidates for promotion to the post of PGT, the Selection Committee recommended the petitioner's name for such post. On 2.9.1986, the Manager of the school informed the petitioner that as per recommendations of the DPC held on 2.9.1986, she was being promoted to the post of PGT (History) with immediate effect and she was asked to join duties as PGT (History) immediately. Since 2.9.1986, the petitioner is performing the duties as PGT (History).

3. Though in terms of Rule 98 of the Delhi School Education Rules in case the nominee of the Directorate of Education is present in the Selection Committee/DPC, the approval of the Director is not required, however, the Managing Committee of the school by way of abundant caution wrote to the Directorate of Education to grant approval to the appointment of the petitioner as PGT (History. When no reply was received from the Directorate of Education for sometime, a letter was written by the petitioner on 8.9.1987 to the Directorate of Education to grant necessary approval to the promotion of the petitioner to the post of Post-Graduate Teacher in History w.e.f. 3.9.1986. On 14.4.1988, the Directorate of Education wrote to the Manager of the school, with reference to his letter dated 1.2.1987, conveying its approval to the promotion of the petitioner to the post of PGT (History) w.e.f. 3.9.1986, the date on which she resumed duties as PGT.

4. The Directorate of Education it appears was contemplating to withdraw its approval to the promotion of the petitioner as PGT (History) and the petitioner, therefore, filed the present petition for issue of necessary directions to the Directorate of Education not to withdraw the approval already granted to the promotion of the petitioner as PGT. By an interim order passed by the Court on 29th March, 1989, the parties were directed to maintain status-quo till the decision in the writ petition. The petitioner by virtue of the order of status-quo passed by the Court has continued to work as PGT (History) in the school till date. On notice being issued the Directorate of Education has filed the counter affidavit and the stand taken by the Directorate of Education is that since the petitioner was not eligible to be promoted to the post of PGT (History), she was not entitled to be promoted as such and the approval, therefore, having been granted by over-sight was recommended to be withdrawn. It is submitted in the counter affidavit that the senior most Domestic Science Teacher could not be promoted as PGT (History) as the channel of promotion for Domestic Science Teacher is different from the channel of promotion of TGTs (General). The entire case, therefore, of the respondents is that the petitioner being not eligible for promotion to the post of PGT (History) the order granting approval to her promotion as PGT was void and the Directorate could withdraw such approval at any time.

5. The school has also filed the counter affidavit and it has supported the stand taken by the petitioner. It is also stated that even prior to the promotion of the petitioner as PGT (History) another candidate, namely, Mrs. K. Sawhney who was also a Domestic Science Teacher was promoted as PGT (Economics) and the respondent- Directorate of Education had duly granted approval to her promotion. It was, therefore, submitted that the Directorate of Education could not turn around and say that the petitioner was not eligible for promotion as PGT even when it had earlier approved the promotion of Mrs. K. Sawhney who was also a Domestic Science Teacher to the post of PGT (Economics).

6. Under the Delhi School Education Act and the Rules framed there under, there is nothing to show that the Domestic Science Teachers forms a separate cadre or that this alleged cadre is different from TGT. In terms of the Circular dated 21.4.1970, all the posts in the aided schools are non-selection posts and if any post in the higher grade falls vacant and the teacher having required qualification is available in the same school, the senior most teacher is to be promoted to that higher post. There is nothing in Circular which shows that a Domestic Science Teacher cannot be promoted as PGT. All that is required is that the teacher who is seeking to be promoted must have the required qualification for promotion to the post of PGT. It is not in dispute that the petitioner is having Post Graduate degree in History which is the minimum educational qualification required for promotion to the post of PGT. That being the position, in my view, the respondents could not turn around and say that she was not eligible to be promoted as PGT (History). Moreover, it is admitted case of the parties that another teacher, namely, Mrs. K. Sawhney who was also a Domestic Science Teacher was promoted as PGT (Economics) and the Directorate of Education had granted approval to such promotion. The stand of the Directorate of Education is that at the relevant time there was no other eligible TGT teacher who could claim the post of PGT (Economics) and Mrs. K. Sawhney was, therefore, permitted to be promoted as PGT (Economics). If the stand of the Directorate of Education that a Domestic Science Teacher cannot be promoted as PGT in any other discipline is correct, there was no question of granting approval to the promotion of Mrs. K. Sawhney as PGT (Economics) as, according to the case of the Directorate, she was not even eligible to be promoted. Directorate could not grant approval to the promotion of Mrs. K. Sawhney only on the ground that no other eligible TGT teacher was available in the school for promotion. If a teacher is ineligible, he/she is ineligible for all purposes and she could not be promoted on any ground. The fact that the respondent themselves had granted approval to the promotion of Mrs. K. Sawhney, another senior Domestic Science Teacher as PGT (Economics) clearly show that even Domestic Science Teachers were eligible for promotion as PGT in other discipline. There is otherwise also no bar either in the aforesaid Circular or in the Act or the Rules whereby a TGT in one discipline cannot be promoted as PGT in another discipline. As already mentioned above, all that is required is that the TGT who is to be considered for promotion must be having the required qualification for promotion as PGT in that discipline.

7. As already mentioned above, under Rule 98 of the Rules framed under Delhi School Education Act, the appointment of every employee of a school is to be made by the Managing Committee and the same is required to be approved by the Directorate of Education. Provided, however, that the approval of the Director will be required only where the Director's nominee was not present in the Selection Committee/DPC or in case there was difference of opinion amongst the members of the Selection Committee. In the present case admittedly, the nominee of the Directorate of Education was present in the Selection Committee when the name of the petitioner was considered for promotion as PGT (History). There was no difference of opinion amongst the members of the Selection Committee for her promotion as PGT. In this situation, the approval of the Director in terms of Rule 98 was not required to be taken. It was only by way of abundant caution that the Managing Committee sent a letter to the Directorate of Education for approval to the promotion of the petitioner. That letter was sent on or about 3/4th September, 1986. A reminder to the same was sent by the petitioner on 8.9.1987. Under Rule 98(4), in case no reply is received from the Directorate of Education within fifteen days of the communication to him about the appointment of a particular teacher, the Director would be deemed to have approved such appointment. In this view of the matter, firstly there being no requirement of seeking approval of the Directorate of Education to the promotion of the petitioner as PGT (History) as nominee of the Director was present in the meeting of the Selection Committee and secondly because of the Directorate having not taken any action within 15 days of the school having written for approval, immediately after 15 days of the sending of the letter by the Managing Committee to the Directorate of Education, there was deemed approval to the promotion of the petitioner.

8. In any case, the Director having approved the promotion of the petitioner by its letter dated 14.4.1998, there was no question of withdrawing such approval without first giving an opportunity of hearing to the petitioner. Even assuming that approval was given by mistake, it was a duty of the Director to first issue a notice to the petitioner to show cause as to why the approval be not withdrawn. It is only after hearing the petitioner and after observing the principles of natural justice, that order might have been withdrawn by the Director. The Director having passed the order allegedly withdrawing the approval already granted in favor of the petitioner without giving an opportunity of hearing has, in my opinion, clearly acted illegally and arbitrarily.

9. For all these reasons, the order of the Directorate of Education dated 28.4.1988 allegedly withdrawing the approval already granted to the promotion of the petitioner to the post of PGT is hereby quashed and the petitioner would be deemed to have been validly promoted to the post of PGT (History) w.e.f. 3.9.1986 and shall be entitled to all benefits of such promotion including the pay and allowances. Petitioner, accordingly, stands disposed of leaving the parties to bear their own costs.