Sushma Nayar vs Director Of Education And Others
2009 Latest Caselaw 4423 Del

                                                    REPORTABLE


*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                         W.P. (C) No.12159/2009


                               Date of Decision: October 30, 2009


       SUSHMA NAYAR                           ..... Petitioner
                         Through Ms. Indrani Ghosh, Advocate

                         versus


       DIRECTOR OF EDUCATION AND OTHERS .... Respondents
                     Through Mr. Anjum Javed, Advocate for
                     respondents No.1 & 2.
                     Mr. Punit Mittal, Advocate with
                     Mr. S.P.Gautam, Advocate for respondents
                     No.3 & 4.

       CORAM:
       HON'BLE MISS JUSTICE REKHA SHARMA

1.     Whether the reporters of local papers may be allowed to see the
       judgment? Yes
2.     To be referred to the reporter or not? Yes
3.     Whether the judgment should be reported in the „Digest‟? Yes

REKHA SHARMA, J.

The petitioner is a post-graduate teacher in Mathematics in

Delhi Public School, Mathura Road. She has raised challenge to the

appointment and continuance of respondent No.4 as Principal of the

said school, on the ground that as on the date of selection, he did not

possess the requisite qualification as he was 48 years of age whereas,

the upper age limit for being considered to the post was 45 years.

The fact that respondent No.4 was over 45 years of age at the

time of his selection is not in dispute. However, consequent upon his

selection and confirmation, a communication was addressed by the

Chairman of the Delhi Public School Society to the Directorate of

Education requesting for grant of ex-post facto relaxation in his age.

The ground taken was that he had remained in the employment of

DPS Society in his capacity as teacher and head of the department in

a School at Bhilai and that the upper age limit of 45 years should not

be made applicable to him as he had 23 years of teaching and

administrative experience to his credit. The request so made did not

find favour with the Director of Education. Hence, it was declined

and the school was called upon to take remedial action. It appears

that no action to remedy the situation was taken inviting in its wake a

notice to the school to show-cause why the recognition of the school

be not withdrawn. In response to the notice, a detailed reply was filed

by the school and upon consideration of that reply, the Director of

Education reversed its earlier order and granted age relaxation to

respondent No.4.

The main submission of learned counsel for the petitioner is that

the Director of Education does not possess the power to review its

own order. Hence, it is contended that the earlier order passed by the

Director holding the appointment of respondent No.4 as violative of

the Delhi School Education Rules, 1973 still holds the field and

consequently, the subsequent order reviewing the earlier order is

liable to be quashed.

The learned counsel for the school has disputed the submission

that the Director of Education has no power to review his own order

but his main submission is that the writ petition is liable to be

dismissed at the threshold without going into the factual matrix of the

case and the legal submissions made on behalf of the petitioner, on

the sole ground that it suffers from delay and laches.

Admittedly, respondent No.4 was appointed to the post of

Principal in December, 1998. The order of the Director of Education

declining the request of the Chairman of the DPS Society for relaxing

the age in respect of respondent No.4 was passed on

December 11, 2000 and the so-called review order on April 16, 2001.

The petitioner thus is challenging the appointment of respondent No.4

after 11 years of his selection and the order of the Director of

Education dated April 16, 2001 after more than 8 years. On being

asked as to why the writ petition should be entertained after a lapse

of so many years, it is submitted by learned counsel for the

petitioner that in a case where a party seeks a writ of quo warranto

challenging the illegal appointment of a person to a public office,

delay and laches should not come in the way of the relief sought. In

support, reliance was placed upon a judgment of the Apex Court in

the case of Dr. Kashinath G. Jalmi and another Versus The

Speaker and others reported in (1993) 2 Supreme Court Cases 703.

It is also stated that the petitioner came to know about the ineligibility

of respondent No.4 to the post only recently while she was

representing for consideration of her case for promotion as

Vice-Principal. However, before filing the writ petition, she wanted to

verify the facts and so, she moved an application under the Right to

Information Act and after she received the information, she filed the

present writ petition.

As against the judgment relied upon by learned counsel for the

petitioner, learned counsel for the respondents has placed reliance

upon another judgment of the Apex Court in the case of Dr. M.S.

Mudhol and another Versus S.D.Halegkar and others reported in

(1993) 3 Supreme Court Cases 591.

It will be appropriate at this stage to refer to the

aforementioned two judgments. The facts of Dr. Kashinath‟s case

relied upon by learned counsel for the petitioner were as under:-

Three persons in short referred to as R, C and B were elected as

members of the Goa Legislative Assembly in the elections held in

November, 1989. R assumed the office of Chief Minister of the State

and C & B were included in his Council of Ministers. The appellants

applied to the then Speaker seeking disqualification of R, C and B as

MLA on ground of defection. The Speaker passed order dated

December 13, 1990 disqualifying C and B and order dated February

15, 1991 disqualifying R under para-6 of the Tenth Schedule of the

Constitution. Writ petitions were filed by R, C and B challenging the

orders of disqualification. After the then Speaker was removed from

his office on March 04, 1991, the Deputy Speaker functioning as

Acting Speaker, allowed applications filed by R, C and B for review of

the earlier orders of disqualifications and made orders dated

March 7 & 8, 1991 in purported exercise of the power of review under

the Tenth Schedule setting-aside the orders of disqualification. The

writ petition of R thereupon was dismissed as not pressed by him but

the writ petitions of C and B remained pending. This led to filing of

writ petitions on January 7 & 8, 1992 by the appellants challenging

the orders of review on ground that the Speaker had no power under

Schedule X to review the earlier order. The writ petitions were

summarily dismissed by the High Court upholding the preliminary

objection that writ petitions filed long after the dates of the impugned

orders were liable to be dismissed at the admission stage on ground

of laches.

On these facts, the Apex Court has held as under:-

"The exercise of discretion by the Court even where the application is delayed, is to be governed by the objective of promoting public interest and good administration; and on that basis, discretion cannot be exercised in favour of interference where it is necessary to prevent continuance of usurpation of public office or perpetuation of an illegality. The fact that the situation continues unaltered, since these persons continue to hold the public offices, to which they are alleged to be disentitled, is sufficient to hold that the writ petitions ought not to have been dismissed merely on the ground of laches at the admission stage, without examining the contention on merits that these offices including that of the Chief Minister of the State, are being held by persons without any lawful authority. The dismissal of the writ petitions by the High Court merely on this ground cannot, therefore, be sustained."

In so far as the case of Dr. M.S.Mudhol (supra) relied upon by

learned counsel for the respondents is concerned, the controversy

therein was similar to the case in hand. It was also with regard to the

eligibility of the respondent therein to the post of Principal. The

respondent in that case was appointed as Principal of Delhi Kannada

Senior Secondary School in the year 1981 and in his case too, it was

alleged that he did not possess the essential qualification for the post

and, therefore, his appointment was in violation of the Rules. What is

of significance is that the Apex Court, on facts, did hold that the

respondent did not possess the requisite educational qualification to

be selected for the post of Principal and yet inspite of having so held

declined to issue a writ of quo warranto ordering his removal from the

post. What impelled the Apex Court to decline the relief is set-out in

the following two paragraphs of the judgment which I hereby

reproduce:-

"6. Since we find that it was the default on the part of the 2nd respondent, Director of Education in illegally approving the appointment of the first respondent in 1981 although he did not have the requisite academic qualifications as a result of which the Ist respondent has continued to hold the said post for the last 12 years now, it would be inadvisable to disturb him from the said post at this late stage particularly when he was not at fault when his selection was made. There is nothing on record to show that he had at that time projected his qualifications other than what he possessed. If, therefore, in spite of placing all his cards before the selection committee, the selection committee for some reason or the other had thought it fit to choose him for the post and the 2nd respondent had chosen to acquiesce in the appointment, it would be inequitous to make him suffer for the same now. Illegality, if any, was committed by the selection committee and the 2nd respondent. They are alone to be blamed for the same.

7. Whatever may be the reasons which were responsible for the non-discovery of the want of qualifications of the Ist respondent for a long time, the fact remains that the Court was moved in the matter after a long lapse of about 9 years. The post of the Principal in a private school though aided, is not of such sensitive public importance that the Court should find itself impelled to interfere with the appointment by a writ of quo warranto even assuming that such a writ is maintainable. This is particularly so when the incumbent has been discharging his functions continuously for over a long period of 9 years when the Court was moved and today about 13 years have elapsed. The infraction of the statutory rule regarding the qualifications of the incumbent pointed out in the present case is also not that grave taking into consideration all other relevant facts. In the circumstances, we deem it unnecessary to go into the question as to whether a writ of quo warranto would lie in the present case or not, and further whether mere laches would disentitle the petitioners to such a writ."

It is evident from what has been noticed above that the facts of

the case in hand and the case before the Apex Court in the case of Dr.

M.S. Mudhol (supra) relied upon by learned counsel for the school are

nearly identical. In that case also as in the present case, the

challenge was to the appointment to the post of Principal on the

ground of ineligibility to hold the post, the only difference being that

whereas in the present case, a period of 11 years have gone by since

the appointment of respondent No.4 as Principal, in the case before

the Apex Court, the challenge was made after 9 years. Similarly as in

the case before the Apex Court, in the present case also, there is no

allegation that respondent No.4 had made any incorrect averments

with regard to his age and, therefore, if inspite of full disclosure on

his part, the selection committee chose to appoint him as the

Principal, he cannot be made to suffer on account thereof, more so

when one of the representatives of the Director of Education was also

present in the selection committee and he also did not point out that

the appointment if made would be in violation of the Rules.

It is true that the Apex Court in the judgment relied upon by the

learned counsel for the petitioner in the case of Dr. Kashinath (supra)

has held that the delay and laches should not come in the way of

entertaining a writ-petition if the object is to promote public interest

and good administration, but that was a case of elected

representatives of the people and the delay was also not much, as the

writ-petitions challenging the impugned order of the Speaker were

filed within two years of the passing of the order. Here in the present

case, the writ-petition has been filed after 11 years. Therefore, the

facts of that case bear no parallel to the present case. The facts of the

case in hand, as already noticed above, largely bear similarity to the

case of Dr. M.S.Mudhol (supra). What may also be taken note of is

that one of the Judges in the case of Dr. Kashinath was

Justice P.B.Sawant and His Lordship was also a party to the judgment

in the case of Dr. M.S.Mudhol which is later in point of time and it

also needs to be emphasized that the Supreme Court in the

subsequent judgment of Dr. M.S.Mudhol has held that "the post of the

Principal in a private school though aided is not of such sensitive

public importance that the Court should find itself impelled to

interfere with the appointment by a writ of quo warranto, even if such

a writ is maintainable."

Having regard to the above discussion, I am not inclined to

entertain the writ petition. I feel it is highly belated. It is too late in

the day for the petitioner to have challenged the appointment of

respondent No.4, whatever may be the reasons which were

responsible for the non-discovery of want of qualification of

respondent No.4 as was stated by the Supreme Court in the case of

Dr. M.S. Mudhol.

The writ petition is, thus, dismissed in limini and as I have not

entertained the same, I am making no comments on whether the

Director of Education could review its decision.

REKHA SHARMA, J.

OCTOBER 30, 2009 ka