Delhi High Court
Raj Chaudhary vs Dir. Of Education & Ors. on 7 August, 2009
Author: Manmohan
#R-4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 4314/1998 & CMs 498/2009 & 5186/2009
RAJ CHAUDHARY ..... Petitioner
Through: Mr. U.S. Chaudhary with Mr. Y.P.
Singh, Advocates
versus
DIR. OF EDUCATION &
ORS. ..... Respondents
Through: Ms. Akanksha Sharma, Advocate for
Ms. Ruchi Sindhwani, Advocate for
R-1
Ms. Beenashaw N. Soni with Mr.
Tarun Walia, Advocate for R-2.
Mr. S.S. Dahiya with Mr. L.K.
Dahiya and Ms. Ritu Batra, Advocate
for R-3.
Mr. Pankaj Agarwal, Advocate for
Mr. S.K. Luthra, Advocate for R-4.
% Date of Decision : 07th August , 2009
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
1. Whether the Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
JUDGMENT
MANMOHAN, J: (ORAL)
1. Present writ petition has been filed for setting aside the appointment
of respondent no. 3 as Headmistress of CIE, Experimental Basic School,
which is administered and managed by the Department of Education under
the Delhi University.
2. On 5th December, 2008 I had restrained respondent no. 3 from
functioning as Headmistress on the ground that respondent no. 4-Delhi
University in its counter affidavit had stated that quorum of Managing
Committee in which respondent no. 3 had been selected was not complete
and further that promotion of respondent no. 3 as Headmistress had been
confirmed despite the fact that petitioner's representation had not been
disposed of.
3. However, subsequent to the order dated 5th December, 2008,
respondent no. 2 i.e. Managing Committee of School has appeared and the
order dated 12th January, 2000 whereby they were proceeded ex-parte was
set aside. Subsequently, respondent no. 2 filed a detailed affidavit, which
has now been adopted by respondent no. 4-Delhi University vide its affidavit
dated 28th February, 2009. In fact, Delhi University/respondent No.4, has
regretted that its earlier counter affidavit was filed, "on account of
erroneous impression of law as well as on account of non-communication
and non-cooperation on the part of the school authorities." In this new
affidavit, respondent No.4 has prayed that the matter be disposed of in
accordance with the stand taken by the respondent No.2 school and the
earlier affidavit filed by University be ignored.
4. I may mention that instead of taking up the application for vacation of
stay, with consent of parties, the matter is taken up for final hearing.
5. Mr. U.S. Chaudhary, learned counsel for petitioner has primarily
argued that respondent no. 3 was not qualified to be appointed as
Headmistress inasmuch as she did not possess the necessary qualifications as
prescribed by Recruitment Rules. In this connection, Mr. Chaudhary drew
my attention to Recruitment Rules dated 19th May, 1976 which read as
under:-
"9. In case of recruitment by Promotion:
Promotion Deputation, Trained Graduate
transfer grades from which Teacher/Language Trs.
promotion transfer/deputation In the Scale of Rs.440-
to be made. 750 having five years
regulars service in the
grade who are graduate
having degree/Diploma
in Teaching/Education."
6. He also drew my attention to a Circular dated 3 rd November, 1987
with regard to revision of pay scales of school teachers. The relevant
portion of the said Circular is reproduced hereinbelow :-
"Subject:- Revision of pay scales of school teachers."
xxxxxx xxxxxx xxxxx
"10) The Headmasters of It would be necessary for
primary schools are equated these headmasters to
with the trained graduate have the same academic
teachers and headmasters of qualifications as are
middle schools with post required for the post with
graduate teachers. It is which they are equated.
therefore, to be clarified as
to whether these headmasters
will be required to acquire the
same education qualifications.
7. According to Mr. Chaudhary, in view of the 1987 Circular, 1976
Recruitment Rules stood amended and respondent No.3 could not be
appointed to the post of Headmistress as she was not qualified to be
appointed as a Trained Graduate Teacher to which the post of Headmistress
had subsequently been equated to.
8. Mr. Chaudhary further argued that the DPC which had recommended
the appointment of respondent no. 3 as Headmistress was not constituted in
accordance with Rule 96 of Delhi School Education Act and Rules, 1973
(hereinafter referred to as "Act and Rules, 1973").
9. Mr. Chaudhary also stated that the quorum of the Managing
Committee was not complete on 27th September, 1996 as even though eight
Members attended the meeting, only five participated in the agenda item
relating to appointment of Headmistress as three out of the eight Members
were themselves interested parties as they were candidates for the job of
Headmistress.
10. Mr. Chaudhary further submitted that the order appointing the
respondent no. 3 as Headmistress was issued without complying with the
mandatory direction passed by a learned Single Judge of this Court on 27th
April, 1998 while disposing of petitioner's earlier writ petition being CWP
No. 2044/1998. By virtue of the said order learned Single Judge had
directed that petitioner's representation with regard to seniority should be
disposed of as expeditiously as possible preferably within four weeks of
receipt of the order, if not disposed of earlier. Mr. Chaudhary argued that
without disposing of petitioner's representation, respondent no. 3 has been
appointed as Headmistress vide order dated 28th April, 1998.
11. As far as the issue of essential eligibility qualifications are concerned,
I find that the Recruitment Rules for the post of Headmaster/Headmistress
(middle) had been renotified vide Circular dated 27th October, 1993. The
qualifications prescribed in the said Circular are as under :-
"9. In case of recruitment by Promotion:
promotion deputation, transfer Trained Graduate
Grades from which promotion/ Teacher Language
deputation/transfer to be made. Teachers in the Scale of
Rs.440-750 having five
years regulars service in
the grade who are
graduates having
Degree/Diploma in
Teaching/Education."
12. I find that the 1993 Recruitment Rules are identical to the Recruitment
Rules dated 19th May, 1976. Consequently, Mr. Chaudhary's argument that
respondent no.3 did not possess necessary qualifications is not correct.
13. In fact, Circular dated 3rd November, 1987 does not pertain to
essential eligibility criteria for appointment to the post of Headmistress but
pertains to revision of pay scales of school teachers. Therefore, in my view,
Circular dated 3rd November, 1987 has no relevance to the present
proceedings. Even with regard to the aforesaid 1987 revision of pay scales
Circular, Ministry of Human Resource Development has clarified that
persons who have been promoted, even though they have lower qualification
under the existing promotion rules, would continue to remain in their
existing grades. The query as well as the clarification of the Ministry of
Human Resource Development is reproduced hereinbelow:
"Point Raised 11: What will be the manner of pay
fixation and grant of appropriate scale in respect of
persons with lower qualifications than the ones
prescribed for direct entrants?
Clarification: Persons who have been promoted even
though they have lower qualification under the existing
promotion rules will continue to remain in their existing
grades. The requirement of acquiring the requisite
qualification will be enforced for such persons when they
are considered for promotion to the selection scale or
next higher post."
14. As far as the issue of constitution of Selection Committee is
concerned, I may refer to Rule 96 of Act and Rules, 1973. The said Rule is
reproduced hereinbelow for ready reference :-
CHAPTER VIII
RECRUITMENT AND TERMS AND CONDITIONS OF
SERVICE OF EMPLOYEES OF THE PRIVATE SCHOOLS
OTHER THAN UNAIDED MINIORITY SCHOOLS
96. Recruitment
(1) Nothing contained in this Chapter shall apply to an
unaided minority school.
(2) Recruitment of employees in each recognised private
school shall be made on the recommendation of the
Selection Committee.
(3) The Selection Committee shall consist of:-
(a) in the case of recruitment of the head of the school,--
(i) the Chairman of the managing committee.
(ii) in the case of an unaided school, an educationist
nominated by the managing committee, and an
educationist nominated by the Director;
(iii) in the case of an aided school, two educationist nominated
by the Director, out of whom at least one shall be a person
having experience of school education;
(iv) a person having experience of the administration of
schools, to be nominated, in the case of an unaided school
by the managing committee or in the case of an aided
school, by the Director.
The Minutes of DPC dated 8th November, 1996 read as under:-
DEPARTMENT OF EDUCATION
UNIVERISYT OF DELHI
DELHI-110007
8th November, 1996
A meeting of the D.P.C. was held at 10.00 hrs. (A.M.)
in the Department of Education (CIE) under the
Chairmanship of Prof. K.K. Jain and the following members
of the D.P.C. were present:-
1. Prof. K.K. Jain - Chairman of the Committee
2. Prof. U.S. Sharma - Department of Education
University of Delhi, Delhi.
3. Dr. Usha Lamba - Principal, Govt. Model
Composite School, (Member
Managing Committee)
4. Sh. K. Burman - Joint Director Finance,
Directorate of Education,
(Director's nominee)
The Committee reviewed the C.R.'s and records of the
four teachers eligible for promotion to the post of
Headmaster of the School and decided to recommend:
That Ms. Harsh Kumari may be promoted to the post
of Head Mistress of CIE Basic School on regular basis."
15. Consequently, in my view, Selection Committee/DPC was properly
constituted in accordance with Rule 96 of Act and Rules, 1973 inasmuch as
it comprised a Chairman of Managing Committee, a person having
experience of administration of schools and two educationists (one
nominated by the Managing Committee and other by Directorate of
Education).
16. As far as the Minutes of the Managing Committee are concerned, I am
of the view that the quorum was complete inasmuch as eight out of the nine
Members had attended the meeting. Though three Members did not
participate in the agenda relating to appointment of Headmistress as they
were interested parties, in my opinion, it would make no difference as the
quorum of the entire meeting has to be seen and not of each agenda item. In
any event, as the petitioner was a member of the said Managing Committee
and did not protest at that stage, she is estopped from raising this plea.
17. As far as non-compliance of this Court's order dated 27th April, 1998
is concerned, I am of the view that petitioner cannot draw any mileage out of
the same inasmuch as petitioner had communicated this order for the first
time to respondent no. 2 School on 18th May, 1998. It is pertinent to
mention that respondent school did not appear before this Court on 27th
April, 1998 when the petitioner's writ petition was disposed of on the first
date of hearing itself, without any notice to the respondents. In any event,
from the Minutes of the meeting of the Managing Committee dated 28th
April, 1998 of respondent School, I find that Chairperson had informed the
Managing Committee that petitioner's representation had been disposed of at
the level of Pro-Vice Chancellor and that the said decision would be
informed to petitioner. From the said minutes, it is apparent that petitioner's
representation had actually been disposed of by the concerned authority
before respondent No. 3 was confirmed on 28th April, 1998 as
Headmistress.
18. Consequently, present writ petition and pending applications being
devoid of merits are dismissed and the interim order dated 5th December,
2008 passed by this Court is vacated with immediate effect.
MANMOHAN, J
AUGUST 07, 2009
rn/js
