Ms. Manju vs The Director, Department Of ...
2010 Latest Caselaw 5 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          W.P.(C.) No. 8202/2009

%                  Date of Decision: 06th JANUARY,2010


#     MS. MANJU                                               .....PETITIONER

!                  Through:      Mr. Manohar Lal, Advocate.

                                      VERSUS

$     THE DIRECTOR, DEPARTMENT OF EDUCATION & ANOTHER
                                               .....RESPONDENTS

^                  Through:      Ms. Ruchi Sindhwani, Advocate for the
                                 respondent No. 1.
                                 Mr. Ruchir Gupta, Advocate for the
                                 respondent No. 2.


CORAM:
Hon'ble MR. JUSTICE S.N. AGGARWAL

1. Whether reporters of Local paper 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

S.N.AGGARWAL, J (ORAL)

The respondent No. 2 is a private aided school recognised by the

Directorate of Education (DOE) and is governed by the provisions of Delhi

School Education Act, 1973 and the Rules framed thereunder.

2. There was one post of Trained Graduate Teacher (Sanskrit) lying

vacant in respondent No. 2 school which was reserved for Scheduled

Caste candidate. The selection process for recruitment of a suitable

candidate was held by respondent No. 2 school on 03.07.2008. The

Selection Committee was comprised of the Chairman of respondent No. 2

school besides two nominees of Directorate of Education namely Sh.

Marcel Ekka, A.D.E.(Exam) and Sh. O.P. Singh, D.E.O. (Zone 28) besides a

subject expert Ms. Devyani Burman, Vice-Principle, S.K.V. Sr. Secondary

School, Rajouri Garden Main, New Delhi and the Principle of respondent

No. 2 school Mrs. Nandini Luthra.

3. Twelve candidates, all belonging to reserved category, had

participated in the selection process held by respondent No. 2 school for

filling up of one vacant post of TGT (Sanskrit) on 03.07.2008. The

petitioner ranked third in order of merit in the selection process.

However, since there was only one post of TGT (Sanskrit) which was to be

filled by respondent No. 2 school, the respondent No. 2 school prepared a

select panel of only one candidate namely Ms. Manju Munkhiya who

ranked first in the selection process and kept the second candidate

namely Ms. Geeta Singh in the wait list as she has ranked second in the

selection process. The Minutes of the Selection Committee are Annexure

'A' at pages 13-16 of the Paper Book. The respondent No. 2 school gave

an offer of appointment to the selected candidate who ranked first in the

selection process but the said candidate refused the offer and did not join

the service in respondent No. 2 school. The offer was then sent by

respondent No. 2 to the candidate who ranked second and was kept in

the wait list. Even the second wait list candidate refused the offer and

did not join the service of respondent No. 2 school. The offer then went

from respondent No. 2 school to the petitioner as she has ranked third in

the selection process and consequent to the said offer given to her, she

joined the service of respondent No. 2 school as TGT (Sanskrit) on

21.08.2008. Simultaneously, the respondent No. 2 school vide its

communication dated 06.10.2008 informed the Directorate of Education

also about the offer of appointment to the post of TGT (Sanskrit) given to

the petitioner. This communication dated 06.10.2008 sent by respondent

No. 2 school to the Directorate of Education is at page 18 of the Paper

Book. It is pursuant to this communication sent by respondent No. 2

school to the Directorate of Education, the Directorate of Education

informed the respondent No. 2 school vide its letter dated 17.03.2009

(which is at page 20 of the Paper Book) that the offer of appointment

given to the petitioner was in violation of Rule 96 (2) of Delhi School

Education Rules, 1973 and, therefore, asked the respondent No. 2 school

to discontinue the services of the petitioner with immediate effect and

bear the burden of payment of her salary to the extent of 100% out of

the management's share. Pursuant to the said communication dated

17.03.2009, received by respondent No. 2 school from the Directorate of

Education, the services of the petitioner were dispensed with by

respondent No. 2 school w.e.f. 18.03.2009. Aggrieved by her

termination, the petitioner has filed the present writ petition seeking a

writ of mandamus directing respondent No. 1 to withdraw its letter dated

17.03.2009 or in the alternative to quash the said order of respondent

No. 1 dated 17.03.2009 and direct the respondents to reinstate her in

service with all consequential benefits.

4. Ms. Ruchi Sindhwani, learned counsel appearing on behalf of the

respondent No. 1 (Directorate of Education) has argued that since the

name of the petitioner did not figure in the select list prepared by the

Staff Selection Committee, the offer of appointment could not have been

given to the petitioner in terms of provisions contained in Rule 96 (2) of

the Delhi School Education Rules, 1973.

5. Rule 96(2) of the Delhi School Education Rules, 1973 read as under:

"Recruitment of employees in each recognised private school shall be made on the recommendations of the Selection Committee."

6. In view of the above argument urged on behalf of the respondent

No. 1, the only question that requires consideration in the matter is

whether the offer of appointment to the post of TGT (Sanskrit) given by

respondent No. 2 school to the petitioner was in violation of Rule 96 (2)

referred above.

7. It is not disputed by the learned counsel appearing on behalf of the

respondent No. 1 that the petitioner had participated in the selection

process held by respondent No. 2 school on 03.07.2008 for filling up one

vacant post of TGT (Sanskrit). It is also not disputed by Ms. Ruchi

Sindhwani, learned counsel appearing on behalf of the respondent No. 1,

that the petitioner had ranked third in order of merit in the selection

process held on 03.07.2008. In fact, the minutes of the Staff Selection

Committee, which shows that the petitioner had ranked third in order of

merit in the selection process, was signed by all the members of the

Selection Committee. It is true that the name of the petitioner was not

included either as a selected candidate or in the wait list in the Minutes of

the Staff Selection Committee. That happened because there was only

one post of TGT (Sanskrit) for which selection was to be made. The

candidate who had ranked first in order of merit was placed as the

selected candidate and the candidate who had ranked second in the

selection process was kept in the wait list. There was no occasion for the

Staff Selection Committee to include the name of the petitioner either as

selected candidate or in the wait list because there was only one vacant

post of TGT (Sanskrit) which was to be filled by respondent No. 2 school.

8. It is further not disputed by Ms. Ruchi Sindhwani, learned counsel

appearing on behalf of the respondent No.1 that the candidates who had

ranked first and second in order of merit in the selection process have

refused the offer of appointment and had not joined service with the

respondent No. 2 school. Since the first two candidates in order of merit

did not join the post for which selection process was held, need arose for

giving offer of appointment to the candidate who had ranked third in

order of merit in the selection process.

9. Admittedly, the petitioner who had ranked third in order of merit

belongs to a reserved category. Her name was very much there in the

broad sheet prepared by the Staff Selection Committee which shows her

ranking as third out of the twelve candidates who had participated in the

selection process.

10. In the opinion of this Court, the offer of appointment given by

respondent No. 2 school to the petitioner cannot be treated in violation of

Rule 96 (2) of Delhi School Education Rules, 1973. In case, the

respondent No. 2 school is asked to go for fresh selection process for

filling up the vacant post of TGT (Sanskrit) in its school, then it will cause

a serious prejudice to the interest of the students and will also involve

financial implications. The petitioner was a candidate who was duly

selected by the Staff Selection Committee and had ranked third in order

of merit and she became entitled for appointment since the first two

candidates had refused the offer and had not joined the respondent No. 2

school. The respondent No. 2 school had duly communicated the offer of

appointment given by it to the petitioner vide its communication dated

06.10.2008. This communication was sent by respondent No. 2 school to

the respondent No. 1 after about 1 ½ months of the petitioner joining the

service with the school. Rule 98 (3) requires the school to send

intimation about the appointment within seven days. There appears to

be some procedural lapse on the part of the respondent No. 2 school in

sending the communication of appointment of the petitioner in its school

pursuant to selection process held on 03.07.2008. The petitioner cannot

be faulted with on account of this procedural lapse on the part of

respondent No. 2 school. Her discontinuance from the service ordered by

respondent No. 1 vide its communication dated 17.03.2009 (page 20 of

the Paper Book) seems to be wholly erroneous and cannot stand the test

of judicial scrutiny. The petitioner is, therefore, held entitled for

reinstatement of her service in respondent No. 2 school on the post of

TGT (Sanskrit) forthwith. However, Mr. Manohar Lal, learned counsel

appearing on behalf of the petitioner, on instructions from his client says

that the petitioner will not make any claim for wages for the period

between the date of her termination and the date of her reinstatement

and will be satisfied by reinstatement of her service in respondent No. 2

school.

11. In view of the foregoing, the impugned communication dated

17.03.2009 sent by respondent No. 1 to respondent No. 2 school is

hereby set aside. Directions are given to respondent No. 2 school to

immediately reinstate the petitioner in its service on the post of TGT

(Sanskrit) without any claim for back wages for the period from

18.03.2009 till the date of her reinstatement. The parties are left to bear

their own costs.

JANUARY 06, 2010                                      S.N.AGGARWAL, J
'BSR '