Sh. A. Sundara Rajan vs Govt. Of Nct Of Delhi (Through The ...
2010 Latest Caselaw 3019 Del

               *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            W.P.(C) 14642/2004

%                                              Date of decision: 1st July, 2010

SH. A. SUNDARA RAJAN                                           ..... Petitioner
                   Through:                Mr. G.C. Sharma, Advocate.

                                      Versus

GOVT. OF NCT OF DELHI (THROUGH THE DIRECTOR OF
EDUCATION) & ANR.                              .... Respondents
                   Through: Mr. Ms. Zubeda Begum & Ms. Sana
                            Ansari, Advocates for R-1/DoE.
                            Mr. Ravi Gupta, Sr. Advocate with
                            Ms. Reena Kalra, Advocate for R-2.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.      Whether 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.

RAJIV SAHAI ENDLAW, J.

1. The petitioner, earlier employed as a Post Graduate Teacher in the

respondent no.2 school, seeks a declaration qua public notice dated 14th August,

2004 issued by the respondent no.1 Directorate of Education (DOE) and owing

whereto the respondent no.2 school terminated the services of the petitioner; the

petitioner also seeks a writ of certiorari quashing the order of his termination and

a writ of mandamus seeking his reinstatement. It is not in dispute that the

petitioner prior to the termination had been teaching Mathematics in the

respondent no.2 school for 18 years; the "minimum qualification" required under

The Delhi School Education Act, 1973 and the Rules framed thereunder and so

prescribed by the DOE for the said post is M.A./ M.Sc. with B.Ed.; the petitioner

does not have the qualification of B.Ed. The DOE vide Public Notice dated 14th

August, 2004 (supra) directed all the recognized unaided schools to verify and

ensure that no unqualified teacher is employed in the school and further directed

the said schools to, within 30 days thereof, send a certificate in this respect to the

DOE. It was further notified that if any teacher is found unqualified, his/her

services should be dispensed with immediately and a request should be sent to

the DOE for formal approval. The respondent no.2 school vide order dated 24th

August, 2004 relieved the petitioner for the reason of being non-B.Ed. and so

"professionally unqualified".

2. Though the Public Notice aforesaid required the unaided recognized

schools to dispense with the services of the unqualified teachers and send a

request for formal approval to the DOE but the Division Bench of this Court has

since in Kathuria Public School Vs. Director of Education 123 (2005) DLT 89

held that no such approval is required by unaided recognized schools.

3. Yet another development has taken place since the institution of this writ

petition. The Division Bench in Kathuria Public School (supra) also expanded

the scope / jurisdiction of appeal to the Tribunal constituted under Section 11 of

the School Act. The Supreme Court, earlier in Shashi Gaur Vs. NCT of Delhi

(2001) 10 SCC 445, had already clarified that under Section 8(3) of the School

Act the remedy of appeal to the Tribunal is available against all orders of

removal / termination of service except where the service itself comes to an end

by efflux time. This Court in Anju Vs. Managing Committee, Shri S.D. Co.Ed.

Sec. School MANU/DE/0526/2008 has held that in view of the existence of the

alternative remedy of appeal, the remedy of writ is not available. The writ

petition is, therefore liable to be dismissed as not maintainable on this ground

alone. However, since the parties had confined their arguments only to the merits

of the matter and not on the said aspect, it is deemed appropriate to deal with the

merits also.

4. The contention of the counsel for the petitioner is that the petitioner

having taught Mathematics in the respondent no.2 school for a long span of 18

years and without any complaint and with brilliant results, his being non-B.Ed. is

irrelevant; his long standing experience is a substitute for his not possessing the

qualification of B.Ed. Reliance in this regard is placed on:-

(a) H.C. Puttaswamy Vs. The Hon'ble Chief Justice of Karnataka

High Court 1991 Supp (2) SCC 421. The petitioners in this case

were selected in violation of the statutory rules of selection and in

disregard of the authority of Public Service Commission and had

served for over 10 years and had crossed the upper age limit and

were ineligible for appointment elsewhere in Government. The

Supreme Court in the said circumstances held that humanitarian

approach is to be adopted and appointment was directed to be

regularized without conditions as to the age limit or the passing of

written test and viva-voce test. The counsel for the petitioner in the

instant case contends that the petitioner also is now about 59 years

of age and the said judgment applies to him with full force.

(b) Krishna Prasad Vs. The State of Bihar 1982 Lab. I.C. 152 (Patna).

In this case an untrained Matric teacher in a school which was

subsequently taken over by the Government was held entitled to an

opportunity to undergo training before her services could be

terminated.

(c) Chhabinath Vs. Principal 1977 (2) SLR 184 (Allahabad); this

deals with the requirement of approval of the Department of

Education before an order of termination of a teacher in an aided

school. However, in view of the Division Bench judgment of this

Court in Kathuria Public School and the respondent no.2 being an

unaided school, the same shall have no application.

5. Per contra the counsel for the respondent no.1 DOE refers to Prem Lata

Datta Vs. Union of India (2004) II AD (Delhi) 377. In this case an order

dispensing with the services of an unqualified teacher was held to be not a case of

termination but a case of non-confirmation of the services of a person who was

employed but does not possess the necessary qualification for being appointed to

the post in question.

6. The senior counsel for the respondent no.2 school invites attention to

Pramod Kumar Vs. U.P. Secondary Education Services Commission AIR 2008

SC 1817 laying down that if the essential educational qualification for

recruitment to a post is not satisfied, ordinarily the same cannot be condoned or

ratified and that the Court is to protect the interest of the students. Attention is

also invited to State of Karnataka Vs. Gadilingappa 2010 (1) SCALE 655 laying

down that even if a wrong is / has been committed in an earlier case, the same

cannot be allowed to be perpetuated. The teachers not possessing the

qualifications were held not entitled to be regularized.

7. It was enquired from the counsel for the petitioner whether the petitioner

in the last 6 years, since when the case is pending in this Court, has obtained the

B.Ed degree as required. The answer is in the negative. The counsel for the

petitioner is also unable to explain any reason therefor. Reliance is however

placed on Rule 97 of the Delhi School Education Rules, 1973 which is as under:-

"97. Relaxation to be made with the approval of the director - Where the relaxation of any essential qualification for the recruitment of any employee is recommended by the appropriate selection committee, the managing committee of the school shall not give effect to such recommendation unless such recommendation has been previously approved by the Director."

It is contended that the respondent no.2 school ought to have applied and

obtained approval for such relaxation from the DOE qua the qualification of the

petitioner owing to his long standing experience. It is also contended that merely

because of the Public Notice aforesaid the respondent no.2 school ought not to

have immediately terminated the services of the petitioner. Reliance is placed on

A.N. Gupta Vs. Public Enterprises Selection Board (2003) V AD (Delhi) 364 to

the effect that services of a permanent employee cannot be terminated otherwise

than by following the principles of natural justice and the management cannot

resort to the policy of "hire and fire".

8. The said Rule appears to apply only at the stage of recruitment.

Relaxation under the said Rule has to be recommended by the Selection

Committee, constitution whereof is prescribed in Rule 96 which is relating to the

stage of recruitment. There does not appear to be any provision for relaxation of

the qualification of the existing staff. However, it appears that the DOE and the

schools were requiring their teachers to obtain the necessary qualifications, as

was the case in Prem Lata Dutta (supra) also. The petitioner ought to have been

aware of the said requirement and ought to have obtained the qualification of

B.Ed.; but as aforesaid has not done anything to obtain the qualification in the

last six years also. In these circumstances, no case for any relaxation is also made

out. Moreover, the discretion to seek relaxation or not is vested in the Selection

Committee of the school and no mandamus can be issued compelling the school

to so apply.

9. The Senior Counsel for the respondent no.2 school has also urged that the

present writ petition has been filed as an afterthought and after the petitioner had

handed over the charge, accepted his terminal benefits and is not maintainable for

this reason. As to the circumstance in which that the petitioner was permitted to

continue with the respondent no.2 school for so long without qualification, it is

contended that the petitioner had represented at the time of joining that he was

about to complete B.Ed. and subsequently that he has done so. However, in view

of the settled legal position aforesaid, need is not felt to go into the said

controversy, which in any case cannot be gone into while exercising writ

jurisdiction.

10. The writ petition is dismissed.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 1st July, 2010 bs