Smt. Harvinder Kaur vs Lt. Governor And Ors.
2006 Latest Caselaw 1291 Del

JUDGMENT

S. Ravindra Bhat, J.

1. In these writ proceedings the petitioner calls into question an order promoting the fourth respondent as Post Graduate Teacher (PGT) in History, in the third Respondent-School (hereafter referred to as 'the School').

2. The writ petition was heard and disposed off on 13.7.1999 when this Court quashed the impugned promotion order dated 12.4.1997 and declared that the petitioner was entitled to be appointed as PGT (History) with effect from 12.2.1997. The fourth respondent apparently carried the matter in appeal; the Division Bench by its judgment and order dated 13.5.2002, allowed the appeal primarily on the ground that the respondents in these proceedings had not been heard, and directed a fresh disposal on the merits after hearing all the parties.

3. During the course of these proceedings the parties filed additional pleadings by way of affidavits, replies and rejoinder. The matter was heard for final disposal on 16.5.2006.

4. The factual matrix is narrow and by and large undisputed. The petitioner joined the school as TGT-General on 4.9.1978. In the course of her duties she has been teaching (up to Class 10th leven) various subjects, including History. The fourth respondent, on the other hand, joined the school on 4.10.1969 as a TGT in Science.

5. One Shri Bhupinder Singh, PGT in History retired from the post on 30.4.1996. The School, is an added Institution to the extent of 95%; the first two respondents have considerable control over it in terms of the Delhi School Education Act, 1973 and Rules framed under the Act (hereafter referred to as 'the Act' and 'the Rules' respectively). The petitioner alleges that even though the post fell vacant on 30.4.1996, and the Directorate gave the necessary clearance to fill it up on 3.5.1996, nevertheless the school management did not take steps to hold a DPC and promote the petitioner, the sole eligible candidate at that stage because it had the intention to deprive her of that benefit. It is also alleged that Departmental Promotion Committee Meetings were convened to fill-up vacancies on 1.7.1996 and again on 15.7.1996, nevertheless the petitioner's candidature was not considered and she was not promoted as PGT (History). In this background, the petitioner avers that to her dismay on 1.3.1997, she became aware that the fourth respondent, who had been working as a Science Teacher and acquired M.A. qualification in History in August, 1996, (i.e. after the vacancy occurred) was promoted with effect from 1.7.1997 as PGT.

6. The petitioner claims to have unavailingly and represented against the action of the Management, subsequently she approached the Court. In support of the writ petition it has been averred that the respondents were bound to consider the candidature of those eligible as on the date of occurrence of the vacancy and not on the date when the DPC was held. If the Management had followed this rule in that perspective, the fourth respondent was ineligible as on 1.5.1996 because he acquired the qualifications only in August, 1996.

7. The fourth respondent has averred that the DPC Meeting held on 12.2.1997 cannot be found fault with ; it considered the candidature of the petitioner as well as the fourth respondent who were both eligible as per their qualification for promotion to the post of PGT (History). The School and the Directorate urged that the basis of promoting the fourth respondent were the Annual Confidential Reports and the relative performance of the students, observed for a five year period. It was claimed that upon a fair consideration of these materials, the respondents concluded that the fourth respondent was better suited and, therefore, entitled to be promoted.

8. As far as the issue of eligibility of the fourth respondent is concerned, reliance has been placed upon the Recruitment Rules for the post of PGT issued by the Directorate on 10.7.1975. According to these rules the essential qualification for the post of PGT (excluding PGT Drawings, Mechanical and Geometrical Drawings, Home Science, Domestic Science and Music) is Post Graduation i.e. being holder of a Master's degree in the subject concerned, from a recognized University along with Degree/ Diploma in Training/Education. The fourth respondent in addition places reliance upon a note appended to the Rules which reads as follows:

Note: For the posts of PGT in Hindi, Sanskrit, Punjabi etc. only Trained Graduate Teachers in Sanskrit and in Modern Indian Language concerned will be consolidated for promotion in respective subjects. For the posts of PGT in other subject only Trained Graduate Teacher (Science 'A' Science 'B', commerce, Agriculture and General will be concerned.

9. In the affidavit of the petitioner filed in the course of these proceedings it has been averred that after the judgment disposing off the petition initially, the Management had accepted the order and promoted the petitioner her as PGT (History) by order dated 11.8.1999. The Division Bench, however, by its order dated 13.5.2002 disposed off the Letters Patent Appeal preferred by the fourth respondent in the following terms:

The Ld. Single Judge shall hear the matter afresh. It will be open to the parties to file additional affidavit before the Ld. Single Judge bring out the consequent event, if any. Parties to appear before the Ld. Single Judge on 18.7.2002.

10. Mr. Bisaria, learned Counsel submitted that with the acceptance of the judgment by the Management and consequential order of promotion nothing further survives in these proceedings. Alternatively he submitted that the hearing pursuant to the order of the Division Bench would have to be in the context of the subsequent event which is not denied by any parties in these proceedings. It is contended by counsel for the petitioner that the DPC in this case was intentionally not held but instead delayed in order to ensure that the fourth respondent became eligible and fell within the zone of consideration. It was submitted that the respondents were duty bound to consider the eligibility of candidates as on the date when the vacancy arose; in this case the date was 30th of April, 1996. The fourth respondent was clearly ineligible and did not hold a Master's Degree and, therefore, could not be promoted.

11. It was next urged that as per the decision of a Full Bench of the Punjab and Haryana High Court reported as Punjab State Electricity Board v. Ashok Kumar Sehgal , mere seniority in the feeder category was insufficient if the post was a Selection one. In the present case the promotional post namely, PGT(History) had to be filled only on the basis of selection i.e. the relative merits of the candidates. The petitioner's experience as a teacher in History could not have been sidelined or overlooked as was done in the case of the respondent who had never taught history but right through had been only teaching science subjects while working as TGT.

12. Mr. Chawla, learned Counsel for the fourth respondent and Ms. Ahlawat counsel for the Directorate submitted that there was no infirmity in the impugned selection. It was urged that there is no compulsion either under the rules or any guidelines, freezing the eligibility of the candidates as on the date of vacancy. It was submitted that being a selection post inherent in the concept of merit was the consideration of selecting and appointment of best available talent. It was submitted that though the school was an aided Institution, nevertheless it had sufficient autonomy in accordance with the rules to determine who among the eligible candidates was more suited to fill the post. Counsel submitted that the Minutes of the DPC indicate that not only were the ACRs of the petitioner and the fourth respondent considered but other materials such as the relative performance of students weighed with the DPC. In these circumstances, it was submitted that the Court ought not to interdict and set aside the selection duly held in the absence of any illegality or malafides.

13. Counsel for the fourth respondent relied upon the note to the Recruitment rules and alleged that this clearly gave an indication that the fourth respondent was eligible in spite of his having not taught History previously. He further submitted that the fourth respondent had about 20-26 years of teaching experience and that could not be lightly discounted. 14. The Minutes of the DPC proceedings dated 12.2.1997 read as follows : The D.P.C. held a meeting on 12.02.97 at 10.00 AM, in the School premises under the Chairmanship of Sh. N.S. Sistani, Manager, to consider the case of promotion to S. Santosh Singh TGT and Mrs. Harvinder Kaur TGT of this School.

The members of the DPC were as under:

1. Dr. R.K. Sharma : A.D.E. (T.B.B.)

2. Mrs. Rita Sharma : Education Officer Zone S-25

3. Mrs. S. Mehta : D.E.O. Zone S-24 (Subject Expert)

4. Sh. N.S. Sistani : Manager

5. S. Amrit Singh : Offtg. Principal

It was reported by the Chairman of DPC that the following candidates namely 1. S. Santosh Singh and Mrs. Harvinder Kaur are eligible as per their qualifications for the promotion to the post of PGT (History). For screeing purpose the DPC unanimously decided to promote the candidate on the basis of merit. The criteria to finalise the merit as adopted by Directorate of Education for selection of teachers be adopted and the candidate who obtains higher marks as per the criteria of Education Deptt. be considered for promotion for this post.

This procedure of selection was adopted by the DPC under the provision of Rule 96(6) of DSER 1973.

In both the cases the marks obtained by S. Santosh Singh and Mrs. Harvinder Kaur were found 44 marks each. The results of both the teachers for the last five years were found satisfactory. Confidential Reports review and work and conduct were also found to be very good. S. Santosh Singh is found to be senior than Mrs. Harvinder Kaur.

Keeping in view all the above merits and the seniority the DPC unanimously decided to recommend the name of S. Santosh Singh for the promotion of PGT (History) against the vacant post in this School with immediate effect.

 Sd/-12.2.97          Sd/-12.2.97
(Dr.R.K. Sharma)  (Mrs. Rita Sharma)

A.D.E (T.B.B) E.O. Zone S-25

Sd/- 12.2.97          Sd/-
(Mrs. S. Mehta)  (Sh. N.S. Sistani)
(Subject Expert)      Manager

Sd/-
(S. Amrit Singh)
Offtg. Principal
 

15. The factual narrative indicated above discloses that the petitioner was admittedly a TGT, teaching general subjects which included history for classes up to 10th Standard level. She had been performing those duties continuously for the period 1978 to 1996. On the other hand, the fourth respondent though working since 1969 i.e. 8-9 years before her, was exclusively teaching in Science subjects. The two issues particularly canvassed were whether the procedure for filling-up of the post on the basis of eligibility of the candidate as on the date of the DPC Meeting can be considered valid and whether the selection of the fourth respondent is, otherwise, legal.

16. As far as the first issue is concerned, no rule, guideline or circular was brought to my notice compelling the authorities to consider the candidature of only those who fulfillled eligibility criteria for the promotional post as on the date of occurrence of the vacancy. It has not been denied that the post namely, PGT (History) is a Selection post and has to be filled on the basis of merit. In the absence of any rule or guideline there is no freezing the eligibility as it were, and confining the zone of consideration to those who possess the prescribed qualification as on a particular date. I am therefore unpersuaded with the submission that the selection and appointment of the fourth respondent was unlawful, on that score.

17. The second point urged is that even if the fourth respondent could be said to have acquired eligibility, he could not have been validly selected. This point has been specifically urged in ground (d) in support of the petition. The answer given by the respondents is that the fourth respondent was perfectly eligible and there was no impediment for his due consideration and selection. A plain reading of the note which has been pressed into service by the respondents undoubtedly lends credence to the submissions made by them. However, I am of the opinion that neither the note nor the rules by themselves can be conclusive in this regard. As between the petitioner and the fourth respondent there is no denial that the former is the only candidate having long experience in teaching humanities subject including history up to 10th Standard level. This experience was for nearly for two decades between 1978-1996. On the other hand, although the fourth respondent had greater teaching experience than the petitioner, that was only in respect of Science subjects. Therefore, the comparison of performance levels of the candidates taught by the two rival candidates cannot be a proper criteria. It would be likening two disperate elements which have no consideration of relevant factors such as aptitude and experience of a teacher, who is able to teach students in one subject. This relevant and material factor cannot be lost-sight- of. The mere circumstance that one teacher acquired qualification in one subject which her or she has been unfamiliar with by itself does not lead to the conclusion that he or she would be better than the existing teacher who has withstood the test of time. The selection of the fourth respondent, who never taught History, is therefore vitiated by non-consideration of such relevant factors and arbitrarily comparing experience of the two candidates. The experience of the fourth respondent was not relateable to the concerned subject connected with the post. Hence, it amounted to giving weightage to an irrelevant factor. In this view of matter I am of the opinion that the petitioner's grievance about the selection and appointment of the fourth respondent being illegal, is well founded.

18. In view of the above reasons, I am of the opinion that the petition deserves to be allowed. As recorded earlier the Management accepted the previous directions of the Court and promoted the petitioner with effect from 11.8.1999. In view of the above findings no separate orders are called for except to confirm the said appointment.

19. Rule made absolute. No costs.