S.L.Dutta & Anr. vs Suresh Srivastava
2010 Latest Caselaw 5772 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                     Judgment Reserved on: 15.12.2010
                     Judgment Delivered on: 20.12.2010

+                    RSA No.78/2001 & C.M.199/2001

S.L.DUTTA & ANR.                             ...........Appellants
              Through:             Ms.C.M.Chopra, Sr. Advocate with
                                   Mr.D.S.Vohra, Advocate

                     Versus

SURESH SRIVASTAVA                            ..........Respondent
             Through:              Mr.Sanjeev Ralli & Mr. Sandeep
                                   Anand, Advocates

       CORAM:
       HON'BLE MS. JUSTICE INDERMEET KAUR

     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

INDERMEET KAUR, J.

1. This appeal has impugned the judgment and decree dated

19.03.2001 which had endorsed the findings of the trial judge

dated 12.01.2000 whereby the suit of the plaintiff Ms.Suresh

Srivastava had been decreed in her favour.

2. Plaintiff had filed a suit for declaration and mandatory

injunction; she was employed as an Upper Divisional Clerk (UDC)

with effect from 02.7.1967; her conditions of services were

governed by the Delhi School Education Act, 1973. She was

academically qualified and fulfilled the requirements for promotion

to the post of Head Clerk. On 14.5.1974 the Education Officer had

sent a letter (Ex.PW-1/1) to the Manager of the school

recommending promotion of the plaintiff who was otherwise

eligible on all grounds w.e.f. 03.7.1974. This communication

recorded that since the C.Rs. of the plaintiff had not been counter

signed by Reviewing Officer, the requirement of the Rules not

having been fulfilled the same could not be considered as adverse

entries against the plaintiff. Her promotion had accordingly been

recommended. Vide a subsequent letter dated 26.9.1975

(Ex.PW-2/R-2), the Education Officer had written to the school that

the UDC i.e. the plaintiff may not be promoted as her case is yet to

be decided by the Disciplinary Authority but the post of Head

Clerk-cum-Assistant should be kept vacant. It is not in dispute that

thereafter in the year 1976 disciplinary proceedings had been

initiated against the plaintiff which had culminated in a minor

penalty of withholding of two increments. The case of the plaintiff

is that in spite of the communication dated 14.5.1974 to the school

management, the school management failed to promote the

plaintiff to the post of Head Clerk. She had fulfilled all the requisite

criteria; she was fit, qualified and had a satisfactory record since

the last five preceding years; she had been made a victim because

of the ulterior designs of the management. Her request for

promotion was not adhered to. In these circumstances, suit for

declaration and mandatory injunction had been filed by the plaintiff

seeking the aforenoted relief i.e. the relief that she be promoted

from the post of UDC to Head Clerk as she had fulfilled all

requisites criteria.

3. As already aforenoted both the two fact finding Courts below

had decreed the suit in favour of the plaintiff. It was held that the

plaintiff was entitled to the requisite promotion. The contention of

the defendant that the services of the defendant were

dissatisfactory had been rejected; adverse entry or the adverse

record sought to be proved against the plaintiff was not adduced in

evidence before the trial judge. Provisions of Rule 112(4) of the

Delhi School Education Act, 1973 had not been adhered to as the

purported adverse entries had neither been communicated to the

plaintiff nor the same had been counter signed by the Reviewing

Officer; they had also not seen the light of the day before the trial

judge.

4. This is a second appeal. Record shows that it was admitted

but question of law were not formulated. On 18.10.2010 this court

after hearing arguments on behalf of the respondent, since the

appellant had chosen not to appear had dismissed this appeal.

Thereafter on an application seeking recall of the order dated

18.10.2010, this Court considered it fit to hear the case of the

appellant afresh. Arguments have thereafter been addressed.

5. On behalf of the appellant, it has been urged that the suit in

the present form was not maintainable. The plaintiff has no vested

right of promotion to any promotional post which was a selection

post. The services of the plaintiff were dissatisfactory and she had

not fulfilled the criteria which is requisite for such a selection post.

The relief as granted by the two Courts below was an illegality.

Attention has been drawn to a letter dated 13.7.1973 which was a

Circular of the Assistant Director of Education circulating

information that the post of Head Clerk-cum-Assistant in

Government aided Higher Secondary Schools would be a selection

post and would be filled up by promotion from amongst the U.D.Cs

provided they are fit and qualified for the post and that their

record of service has been satisfactory for the last five years. The

contention of the appellant is that this being a selection post, the

plaintiff could not automatically seek a promotion. For this

proposition reliance has been placed upon a judgment by the Apex

Court reported in JT 2009 914) SC 252 Rajendra Kumar Srivastava

& Ors. Vs. Samyut Kshetriya Gramin Bank & Ors. It is submitted

that the principle of „seniority-cum-merit, for promotion, is

different from the principle of „seniority‟ and for the applicability of

the principle of „merit-cum-seniority‟; merit plays a significant role;

which in the instant case was absent. Reliance has also been

placed upon a judgment reported in AIR (31) 1944 Lahore 110

Ahmad Yar Khan Vs. Haji Khan & Anr. to support a submission that

the relief of declaration is a discretionary relief and it should not

ordinarily be granted when there is no such right made out in

favour of such a litigant.

6. Arguments have been countered. It is submitted that the

findings of the two Courts below do not suffer from any infirmity.

7. Record shows that the trial judge had framed three issues.

Issue no.1 is relevant it reproduced as follows:

"1. Whether the plaintiff is entitled to the equitable relief of declaration, mandatory injunction and consequential relief as prayed for? OPP"

The relevant extract of the findings of the trial judge qua this

issue reads as follows:

"It is the admitted case of the parties that the disciplinary proceedings against the plaintiff was constituted only subsequent to the letter dated 26.9.1975 of the then Education Officer, namely, Smt. C. Grover and that the disciplinary proceedings commenced only in the year 1976. It is also the admitted case of the parties that the claim of plaintiff for promotion to the post of Head Clerk-cum- Assistant in the defendant school had become due in the year 1974 and more specifically on the basis of letter dated 14.5.1974 of the then Education Officer, namely Shri V.P.Singh. It is also not the case of the defendant that any disciplinary proceedings were conducted against the plaintiff either prior to 1974 or even during 1974. The defendant school though submitted that the previous service record of the plaintiff, i.e. for the years prior to 1974 was not satisfactory in as much as the Annual Confidential Reports carried adverse entries but it failed to place on record even a single C.R. of any of the year prior to

1974. Whatever is ascertainable about the said C.Rs is only from the letter dated 14.5.1974 of Shri V.P. Singh the then Education Officer. However, the said letter, the authenticity of which has not been disputed by the defendants is self explanatory in nature. The Education Officer clearly held that as the adverse entries in the impugned C.Rs were not counter- signed by the Reviewing Officer as required under the rules so the said reports cannot be considered as adverse reports against the individual concerned under the eyes of law. He also stated about his having considered the extension of the probationary period of the plaintiff by one year before finding the plaintiff to be fit and eligible for promotion to the post of Head Clerk-cum-Assistant.

It is not the case of the defendants that even subsequently the said C.Rs were got counter-signed from the Reviewing Officer or as to what were the final remarks of the Reviewing Officer. Moreover, as per Rule 112 (14) of the Delhi School Education Rules 1973 the C.R of the employees working in a school except in the case of the head of the school shall be recorded by the head of the school under whom the employee is working and every such C.R. shall be reviewed by the Managing Committee. Sub Rule 6 further provides that every adverse entry in the C.R shall be communicated to the employee concerned by the Chairman of the Managing Committee and as per Sub Rule 7, the employee aggrieved from any adverse entry in his C.R. may within 30 days of the communication to him prefer an appeal against such entry to the Director. The Director may after giving an opportunity to the concerned employee and the Managing Committee makes such alteration in the entries in the C.R as he may think fit. Sub Rule 8 further provides that the C.R in respect of an employee except that of the head of the school shall be kept in the safe custody of the head of the school.

Thus from a bare reading of Rule 112 of the Delhi School Education Rules, 1973, it is clear that the Managing Committee was also an under obligation to communicate to the defendant the adverse entries having been made in her Annual C.R. The defendants have thus not only failed in placing on record the impugned C.Rs of the plaintiff, nor any record of communication of the adverse entries to the plaintiff having been made has been produced. Under these circumstances when it was the defendants only who could have produced the impugned C.Rs of the plaintiff, this court is left with no other option but to draw an adverse inference against the School Management U/S 114 of the Indian Evidence Act, 1872 that the said C.Rs of the plaintiff if produced would have gone against the case of the defendant.

Moreover, I may also state that the initiation of any disciplinary proceedings against the plaintiff in the year 1976 or the process having been started in the year 1975 could not have any bearing on the promotion of the plaintiff to the post of Head Clerk-cum-Assistant which had become due in the year 1974 itself. In the case law cited above, i.e. AIR 1991 SC 2011 (Supra) the Hon‟ble Supreme Court clearly held that the promotion of an employee can not be with held merely because some disciplinary/criminal proceedings are pending against the employee. The employee was also found to be entitled to the grant of retrospective promotion and for fixation of his pay and for grant of arrears of his salary. Moreover in the other case cited by ld.counsel for the plaintiff, i.e. SLR 1994 (5) 34 P & H (Supra) the petitioner was held to be entitled to the arrears of pay and other consequential benefits from the due date of promotion notwithstanding the fact that he did not actually work on the promoted post. In another case Bir Singh and

other v/s State of Haryana & Others SLR 1994(4) 424 (DB). In similar circumstances it was held that the petitioner was entitled to refixation and arrears of pay and that he should normally be deemed to have held and worked on higher post.

In view of my aforesaid discussion, it is thus clear that the plaintiff was found to be fit and eligible for promotion to the post of Head Clerk-cum-Assistant by the then Education Officer who was acting on behalf of the Director of Education i.e. the appropriate authority under the Delhi School Education Act, 1973. No doubt, the final decision was to be that of the Managing Committee of the school but the said decision could hot have been taken on arbitrary or illegal grounds. It was not a matter of discretion to be exercised by the Managing Committee on the basis of their whims and fancies but on well- settled principles of law as described under the Delhi School Education Act 1973 and in consonance with the administrative directions of the office of Director of Education. The non- production of the impugned C.Rs of the plaintiff during the trial of the suit by the defendant has given a further severe blow to the case of the defendants. No presumption on the basis of conjectures and surmises can be drawn as regards the unsatisfactory service record of plaintiff. The plaintiff is thus found to have become entitled for promotion to the post of Head Clerk-cum-Assistant on 14.5.1974 upon having fulfilled the mandatory conditions as required vide letter dated 18.6.1973 of the Director of Education. Plaintiff is thus held to be entitled for promotion to the post of Head Clerk-cum- Assistant in the pay scale of Rs.425-700 w.e.f. 14.5.1974."

8. The contention of the counsel for the respondent is that a

party cannot be left remediless. In the instant case where the

plaintiff was being victimized and she was made a prey to the

ulterior designs of the management for no fault of hers; she had no

other remedy but to file a suit for declaration as prayed for by her.

9. Record clearly shows that there was no adverse entry proved

against the plaintiff. On 14.5.1974 vide Ex.PW-1/1 promotion of

the plaintiff had been recommended. Vide a subsequent letter

dated 26.9.1975 the Education Officer wrote to the management to

keep the promotion of the plaintiff in abeyance; this was for the

reason that they were contemplating disciplinary proceedings

against her. These proceedings started in the year 1976 i.e. after

she was recommended for promotion and ended with a minor

penalty. Thereafter in spite of representations and requests made

by the plaintiff and she admittedly being a departmental candidate

was not promoted from the post of UDC to Head Clerk. It is an

admitted position that there was one vacancy at that time; this is

clear from the communication Ex.PW-1/1 and Ex.PW-2/R-2.

Plaintiff filed the present suit in the year 1984. In 1986-87 a

second enquiry was initiated against her which had culminated in

her termination in the year 1987. The contention of the appellant

that this second enquiry which had ended in a major penalty

clearly shows that the record of the plaintiff was dissatisfactory is

an argument to be noted and only to be rejected. Admittedly this

second enquiry had commenced only in 1986-87; the plaintiff‟s

promotion had been directed to be kept in abeyance vide letter

dated 26.9.1975 as enquiry was being contemplated which enquiry

had ended in 1982 with a minor penalty. This second enquiry

which had started in the year 1986 was never in contemplation at

the time when her promotion had been recommended and

thereafter stalled only for the reason that in 1975 an enquiry was

being contemplated.

10. The record also show that the second enquiry which had

culminated in the termination of the plaintiff had been agitated by

the Department right up to the Supreme Court; the termination

order of the plaintiff has been set aside by the Tribunal and the

appeals filed before the High court and the Supreme Court by the

School had been dismissed. These proceedings culminated in July

2006. Meanwhile in 2005, the plaintiff had superannuated. The

relief which is to fall in the hands of the plaintiff/respondent would

only be financial benefits.

11. Attention has also been drawn to Section 8 Chapter IV of

Delhi School Education Act 1973 which deals with with "Terms and

Conditions of Service of Employees of Recognized Private Schools".

Section 8 (3) specifically postulates that any employee of a

recognized private school who is dismissed, removed or reduced in

rank may appeal against such order to the Tribunal. It does not

deal with the issue of promotion which was the contention raised

by the plaintiff. In these circumstances, the only remedy available

to the plaintiff was to file a suit for the enforcement of her legal

right.

12. No question of law much less any substantial question of law

has arisen in this appeal. There is no merit in the same; appeal as

also the pending application is dismissed.

INDERMEET KAUR, J.

DECEMBER 20, 2010 nandan