Delhi High Court
Shri Ahatsham Ali vs Govt. Of Nct Of Delhi & Ors. on 22 July, 2008
Author: S.N. Aggarwal
REPORTABLE
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : July 22, 2008
+ WP(C) No. 2622/2006
# SHRI AFAQ AHMAD ... Petitioner
! Mr. S.K. Duggal, Advocate
Versus
$ GOVT. OF NCT OF DELHI & ORS. ... Respondents.
^ Mr. Arvind Nayar, Advocate for
respondents No. 1 & 2 with
Mr.R.D. Thomas (D.E.O.)
Mr. Diwan Singh Chauhan, Advocate
for respondents No. 3 to 5.
Mr. G.D. Gupta, Sr. Advocate with
Mr. S.K. Gupta for respondent No. 6.
AND
+ WP(C) No.2675/1999
# SHRI AHATSHAM ALI ... Petitioner.
! Mr. G.D. Gupta, Sr. Advocate with
Mr. S.K. Gupta, Advocate
Versus
$ GOVT. OF NCT OF DELHI & ORS. ... Respondents
^ Mr. Arvind Nayar, Advocate for
respondents No. 1 & 2.with
Mr.R.D. Thomas (D.E.O.)
Mr. Diwan Singh Chauhan, Advocate
for respondent No. 3.
CORAM :
HON'BLE MR. JUSTICE S.N. AGGARWAL
WP(C) Nos2675/1999 & 2622/2006 Page No.1 of 11
1. Whether reporters of Local paper may be allowed to see the
judgment?
2. To be referred to the reporter or not?
3. Whether the judgment should be reported in the Digest?
S.N. Aggarwal, J. (Oral)
Both these writ petitions are proposed to be decided by this
common judgment because question of facts and law involved in both of
them are identical.
2 These are two petitions filed by two persons who are both teaching
in Quami Senior Secondary School, respondent No. 3 herein. The names
of these two persons who have filed two separate petitions are Sh.
Ahatsham Ali and Sh. Afaq Ahmad. The number of writ petition filed by
Sh. Ahatsham Ali is WP(C) No. 2675/1999 and the number of writ petition
filed by Sh. Afaq Ahmad is WP(C) No.2622/2006.
3 Sh. Ahatsham Ali is M.A. (History), Senior Anglo Vernacular (SAV)
equivalent to B. Ed. and DP Ed. He was appointed in respondent No. 3
school on 01.02.1971 as an Assistant Teacher. He was promoted to the
post of Physical Education Teacher (in short PET) w.e.f 01.09.1984.
4 Mr. Afaq Ahmad is M.A. History & Hindi and B. Ed. He was appointed
as Assistant Teacher in respondent No. 3 school on 18.12.1997 and was
promoted to the post of T.G.T. (Social Science) w.e.f. 12.10.1992.
5 A post of P.G.T. (History) was lying vacant in respondent No. 3
school since 1990. Temporary arrangements were made by the School for
teaching History to the Senior Secondary classes in the school by those
teachers who possessed requisite qualification for teaching History. A
Departmental Promotion Committee (in short DPC) was held on
09.02.1996 to consider appointment of a teacher as P.G.T (History)
against a vacant post lying vacant since 1990. The DPC was held in the
office of the Assistance Director (Education) and the minutes containing
the recommendations of the DPC held on 09.02.1996 are at pages 31-32
(Annexure P-4 to the writ petition filed by Sh. Ahatsham Ali being WP(C)
No. 2675/1999). The DPC recommended Sh. Ahatsham Ali who is the
petitioner in WP(C) No. 2675/1999 and respondent No. 6 in WP(C) No.
2622/2006 for his promotion to the post of P.G.T. (History) and sent the
case for approval to the Directorate of Education. Subsequent to the
recommendations of the DPC of 09.02.1996, the Government of NCT of
Delhi issued a Notification dated 26.02.1996 to include Language
teachers/ Yoga teachers/Work Experience teachers/Music
teachers/Physical Education teachers/ Drawing teachers/Domestic/Home
Science teachers also in the zone of consideration for promotion to the
post of P.G.T. The said Notification dated 26.02.1996 issued by the
Government of NCT of Delhi is Annexure P-2 at page 26 of the paper book
of WP(C) No. 2675/1999. After the above referred Notification was issued
by the Government of NCT of Delhi, a fresh DPC was held in respondent
No. 3 school on 06.11.1996 which reconsidered the recommendations of
the DPC held on 09.02.1996 and reiterated its decision to promote
Sh.Ahatsham Ali (the petitioner in WP(C) No. 2675/1999 and respondent
No. 6 in WP(C) No. 2622/2006) to the post of P.G.T. (History) in
respondent No. 3 school. However, Sh. Afaq Ahmad was aggrieved by the
recommendations of the DPC recommending promotion of Sh. Ahatsham
Ali and he therefore made repeated representations to the Directorate of
Education alleging that Sh. Ahatsham Ali could not have been
recommended for his promotion to the post of P.G.T. (History) since he
did not fall in the feeder cadre for his promotion to the said post. Be that
as it may the approval was not accorded by the Directorate of Education
for promoting Sh. Ahatsham Ali to the post of P.G.T. (History) as
recommended by the DPC in its meeting held on 09.02.1996 and
reiterated in subsequent meeting of DPC held on 06.11.1996,
Sh.Ahatsham Ali filed the writ petition being WP(C) No. 2675/1999 and
prayed for directions against the respondents that he be declared eligible
for promotion to the post of P.G.T. (History) and further direct the
respondents to promote him to the post of P.G.T. (History) in terms of
recommendations of the DPCs held on 09.02.1996 and 06.11.1996 with
all consequential benefits.
6 Strangely enough Sh. Afaq Ahmad who is the petitioner in WP(C)
No.2622/2006 did not take any action in the matter till he filed the writ
petition in the year 2006 wherein he prayed for directions to respondents
No. 1 to 5 to hold a meeting of the DPC and to promote him to the post of
P.G.T. (History) as soon as possible i.e. from the date he became eligible
for promotion to the said post and give him seniority with all
consequential benefits.
7 It is not disputed by Mr. Arvind Nayar, learned counsel appearing on
behalf of the Directorate of Education (Respondents No. 1 & 2) that
Mr.Ahatsham Ali (petitioner in WP(C) No. 2675/1999 and respondent No. 6
in WP(C) No.2622/2006) was recommended by the DPC held on
09.02.1996 and also in the DPC held on 06.11.1996 for his promotion to
the post of P.G.T. (History). He has also not disputed the fact that the
petitioner is M.A. (History) in addition to SAV and DP Ed. It is further not
disputed that Mr. Ahatsham Ali had joined respondent No. 3 school as
Assistant Teacher in the year 1971 and he was promoted to the post of
Physical Education Teacher in 1984. It is also an admitted fact on record
that Mr. Ahatsham Ali was teaching History to senior secondary classes in
respondent No. 3 school since 1990 and the result of his classes was
excellent. Mr. Ahatsham Ali has specifically pleaded in para 5 of his
petition as under:-
"5. That the post next higher to the post of PET is
that of Post-Graduate Teacher (PGT for short). In fact,
he has been teaching History to 11th and 12th Classes
right from 1990. The result of the classes he taught
has always been very excellent. For example, the
result of Class XII was 100% in 1993 and 100% in 1994.
Even in subsequent years i.e., 1995, 1996, 1997 and
1998 the result has been 100%."
8 Respondent No. 3 who is the school in which Mr. Ahatsham Ali was
teaching has filed it counter affidavit. The reply of respondent No. 3 is at
page 96 of the paper book of WP(C) No. 2675/1999. Respondent No. 3
has admitted what is pleaded by Mr. Ahatsham Ali in para 5 of his petition
that he had been teaching History to senior secondary classes since 1990
and that the result of his classes remained excellent all throughout. All
these facts were duly taken into account by the DPC that met on
09.02.1996 and again on 06.11.1996. Mr. Afaq Ahmad was not even
eligible for consideration for his promotion to the post of P.G.T. (History)
when DPC met on 09.02.1996/ 06.11.1996 because he has not completed
five years of regular service in the cadre of T.G.T. on that day, he having
been promoted as T.G.T. w.e.f. 12.10.1992. It was under these
circumstances that the DPC recommended to promote Mr. Ahatsham Ali
to the post of P.G.T. (History) vide its minutes of 09.02.1996/ 06.11.1996.
9 Mr. Nayar, learned counsel appearing on behalf of the Directorate of
Education (Respondents No. 1 & 2) as well as Mr. S.K. Duggal, learned
counsel appearing on behalf of Sh. Ahatsham Ali (the petitioner in WP(C)
No. 2622/2006) have contended that approval for promotion of
Mr.Ahatsham Ali to the post of P.G.T (History) was not granted because
he did not fall in the feeder cadre for his such promotion when DPC met
for the first time on 09.02.1996. The main bone of contention between
the parties is whether Mr. Ahatsham Ali who was recommended by the
DPC for promotion to the post of P.G.T. (History) fall in the feeder cadre or
not and in order to appreciate this contention, it would be necessary to go
into the recruitment rules pre and post 26.02.1996.
10 The recruitment rules for the post of P.G.T. in the Directorate of
Education, Delhi Administration, Delhi notified vide Notification No.
F.(41)/72-S.II/Dated 10.07.1975 is Annexure P-1 at page 22 of WP(C)
No.2675/1999 and a perusal of the said recruitment rules would show
that all TGTs in the scale of Rs.440-750/- possessing qualification
prescribed for direct recruits with five years regular service were eligible
to be considered for their promotions to the post of PGTs. It is not in
dispute that the post of Physical Education Teacher (PET) for all intents
and purposes is treated as post equivalent to a Trained Graduate Teacher
(TGT). A combined seniority list of all TGTs which includes PETs is
maintained in respondent No. 3 school. Mr. G.D. Gupta, learned senior
counsel who appeared on behalf of Mr. Ahatsham Ali has contended that
Notification dated 26.02.1996 which specifically included Language
teachers/ Yoga teachers/Work Experience teachers/Music
teachers/Physical Education teachers/ Drawing teachers/Domestic/Home
Science teachers is only clarificatory in nature and it has not changed the
earlier recruitment rules relating to the post of TGT in any manner. He
has supported his argument by relying upon approval granted by
Directorate of Education for promotion of teachers in other schools who
were strictly speaking not working as TGTs while they were
recommended for promotion as PGT. Mr. Gupta has referred to Annexures
P-5, P-6, P-7 and P-10 at pages 33, 34, 35 & 39 of paper book of WP(C)
No. 2675/1999. Relying on the same, Mr. Gupta has argued that the
Directorate of Education has granted approval to Shafiq Memorial Senior
Secondary School for promotion of Sh. Naseem Ahmed to the post of PGT
(Physical) w.e.f. 02.02.1995 and for promotion of Mohd. Irshad, Language
Teacher (Persian) to the post of PGT (Urdu) also w.e.f 02.02.1995. Mr.
Gupta relying upon Annexure P-7 at page 35 has further contended that
the Directorate of Education has granted approval for promotion of Miss
Rabia Abbasi, TGT, Shafiq Memorial Senior Secondary School to the post
of PGT (Psychology) w.e.f. 20.02.1989. Sh. Ahatsham Ali in fact has
pleaded in para 11 at pages 9-10 of his petition as under:-
"11. That the said stand was not correct as in the
case of one Shri Naseem Ahmed of Shafiq Memorial
School the promotion to the post of P.G.T. (Physics)
from the post of W.E.T. was approved with effect
from 2-2-1995 i.e a date by which date the
amendment had not been made in the Recruitment
Rules providing promotion to the post of P.G.T.
(Physics) from the post of W.E.T. as the amendment
was promulgated vide Notification dated 26-2-1996.
The said promotion was approved by the Director of
Education vide letter dated 7-5-1996, a copy of
which is attached herewith and marked as Annexure
P-6. Similarly one Miss Rubia Abbasi, TGT Home
Science of Shafiq Memorial School was promoted as
P.G.T. (Psychology) with effect from 20-2-1989 in
the said School, even though at that time there was
no provision for promotion to the post of P.G.T.
(Psychology) from TGT Home Science. The provision
for promotion to the post of PGT (Psychology) was
provided by amendment of the Recruitment Rules
vide Notification dated 26-2-1996 already referred
to above. In this connection a copy of letter dated
16-7-1990 containing approval of the Deputy
Director of Education to the promotion of Miss Rubia
Abbasi, TGT to the post of PGT (Psychology) with
effect from 20-2-1989 is attached herewith and
marked as Annexure P-7."
11 The Directorate of Education in its counter affidavit filed to the
petition of Sh. Ahatsham Ali has not denied the pleadings of Sh.
Ahatsham Ali contained in para 11 of his petition extracted above. The
reply of Directorate of Education (respondents No. 1 & 2) is at pages
76-77 wherein a stand has been taken by the Directorate of Education
that certain teachers not falling in the feeder cadre were promoted to the
post of PGTs even before 26.02.1996 but their cases were approved after
going through details of the individual cases. The detail of those
individual cases which were approved by the Directorate of Education
prior to 26.02.1996 are neither given in the counter affidavit filed by
respondents No. 1 & 2 nor the same have been produced before the
Court at the time of hearing of this petition. This Court wonders how the
instrumentality of a State being the Directorate of Education can be
allowed to discriminate between person to person who are all similarly
situated. The recommendations for promotion of Mr. Ahtasham Ali was
sent by respondent No. 3 school to the Directorate of Education in early
1996 but there was no response from the Directorate of Education to the
said recommendations till the filing of the present writ petition. The stand
of Directorate of Education that approval for promotion of teachers not
falling in the feeder cadre was granted prior to 26.02.1996 on the basis of
the merits of the individual cases cannot stand the test of judicial
scrutiny. The Directorate of Education being the instrumentality of a State
is expected to work reasonably and in a transparent manner. It could not
have ignored the recommendations of the DPC sent to it for approval of
promotion of Sh. Ahatsham Ali to the post of P.G.T. (History), more so
when a post of P.G.T. (History) was lying vacant in the school since 1990
and the interests of the students of the school were at stake.
12 It can be seen from the pleadings of the parties that the Directorate
of Education had granted approval for promotion of teachers who were
included in the Notification dated 26.02.1996 to the post of PGTs both pre
and post 26.02.1996 and from this, it can only be implied that the
Notification dated 26.02.1996 was only clarificatory in nature and cannot
be said to be an amendment to the earlier recruitment rules. In the facts
and circumstances of the case, I do not find any difficulty in holding that
Mr. Ahatsham Ali was very well in the feeder cadre and within the zone of
consideration at the time he was considered by the DPC on
09.02.1996/06.11.1996 for his promotion to the post of P.G.T. (History).
Since the Directorate of Education has proceeded on wrong premises in
not granting approval for promotion of Sh. Ahatsham Ali to the post of
P.G.T. (History), the petitioner Sh. Ahatsham Ali is deemed to have been
promoted to the post of P.G.T. (History) w.e.f. the date of second DPC
held on 06.11.1996 with all consequential benefits. Accordingly, the
respondents are hereby directed to immediately issue a formal letter of
approval approving the promotion of Sh. Ahatsham Ali to the post of
P.G.T.(History) in respondent No.3 school w.e.f. 06.11.1996 with all
consequential benefits on the basis of recommendations of the DPC held
on 09.02.1996/06.11.1996. The respondents are further directed to pay
the arrears of salary to Sh. Ahatsham Ali within a period of three months
WP(C) Nos2675/1999 & 2622/2006 Page No.10 of 11
from today.
13 Since the case of Sh. Afaq Ahmad is concerned, it may be noted
that he was not in the eligibility zone on the date DPC was held on
09.02.1996/06.11.1996 and therefore, this Court cannot issue a
mandamus to the respondents directing his promotion to the said post.
The respondents may consider the case of the petitioner for his
promotion to the post of P.G.T. (History) in terms of their policy and rules
applicable for promotion as and when next DPC for promotion is held by
them.
14 In view of the above, both these writ petitions are disposed of
leaving the parties to bear their own costs.
July 22, 2008 S.N.AGGARWAL
'a' [JUDGE]
WP(C) Nos2675/1999 & 2622/2006 Page No.11 of 11
