Ms. Marpu Shekina Priya vs Andhra Education Society (Regd.) ...
2011 Latest Caselaw 3082 Del

              *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                              Date of decision: 4th July, 2011
 +                                                  W.P.(C) 2149/2010

          SRI YENNI SRINIVASA RAO                    ..... Petitioner
                        Through: Mr. Navin Chawla & Mr. Gaurav
                                 Kaushik, Advocates.
                                                     Versus
          ANDHRA EDUCATION SOCIETY (REGD.)
          & ANR.                               ....Respondents
                     Through: Mr. B.K. Sood & Mr. Vipul Sharda,
                              Advs. for R-1.
                              Mr. Vinod Wadhwa, Advocate for
                              R-2.
                                                      AND
 +                                           W.P.(C) 2189/2010

          MS. MARPU SHEKINA PRIYA                   ..... Petitioner
                       Through: Mr. Navin Chawla & Mr. Gaurav
                                Kaushik, Advocates.
                                                     Versus
          ANDHRA EDUCATION SOCIETY (REGD.)
          & ANR.                               ....Respondents
                     Through: Mr. B.K. Sood & Mr. Vipul Sharda,
                              Advs. for R-1.
                              Mr. Vinod Wadhwa, Advocate for
                              R-2.

                                                      AND


W.P.(C) 2149, 2189, 2257, 2259 & 8157 all of 2010                                    Page 1 of 22
  +                                       W.P.(C) 2257/2010

          MARRAPU VENUGOPALA RAO                  ..... Petitioner
                     Through: Mr. Navin Chawla & Mr. Gaurav
                              Kaushik, Advocates.

                                                    Versus

          ANDHRA EDUCATION SOCIETY (REGD.)
          & ANR.                               ....Respondents
                     Through: Mr. B.K. Sood & Mr. Vipul Sharda,
                              Advs. for R-1.
                              Mr. Vinod Wadhwa, Advocate for
                              R-2.
                                                    AND
 +                                           W.P.(C) 2259/2010

          KUNA RAMANAYYA                                                   ..... Petitioner
                     Through:                          Mr. Navin Chawla & Mr. Gaurav
                                                       Kaushik, Advocates.

                                                    Versus
          ANDHRA EDUCATION SOCIETY (REGD.)
          & ANR.                               ....Respondents
                     Through: Mr. B.K. Sood & Mr. Vipul Sharda,
                              Advs. for R-1.
                              Mr. Vinod Wadhwa, Advocate for
                              R-2.

                                                    AND




W.P.(C) 2149, 2189, 2257, 2259 & 8157 all of 2010                                 Page 2 of 22
  +                                        W.P.(C) 8157/2010

          P. URMILA DEVI                                                  ..... Petitioner
                       Through:                        Mr. Vikrant Yadav & Ms. Monica
                                                       Nagi, Advocates.

                                                    Versus
    DIRECTOR (EDUCATION), GOVT. OF NCT OF DELHI
    & ORS                                    ..... Respondents
                 Through: Mr. Vinod Wadhwa, Advocate for
                           R-1 & 2.
                           Mr. V.S.R. Krishna, Adv. for R-3
                           to 7.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.        Whether reporters of Local papers may                                No
          be allowed to see the judgment?

2.        To be referred to the reporter or not?                         No

3.        Whether the judgment should be reported                        No
          in the Digest?

RAJIV SAHAI ENDLAW, J.

1. W.P.(C) 2149, 2189, 2257 & 2259 all of 2010 impugn the order

dated 4th / 17th March, 2010 of the respondent no.1 Andhra Education

Society (Regd.) (hereinafter called the Society) discharging the petitioner

in each case from the service as Assistant Teacher (OBC) / PGT

(Chemistry) (OBC) / PGT (Economics) (OBC) in the schools run by the

said Society.

2. Each of the said petitioners had, in pursuance to the advertisement

issued by the Society in December, 2007, applied for the post of Assistant

Teacher/PGT in the OBC category and pursuant to the selection in March,

2008 had joined the schools as Assistant Teacher/PGT on 31st March,

2008. It is further their claim that they had for about two years prior to

being discharged as aforesaid been performing their duties diligently and

with all sincerity and had also undergone programmes/courses meant for

Assistant Teachers and for PGTs.

3. The petitioners were discharged from service for the reason of the

OBC certificate produced by each of them at the time of appointment

having not been issued by a Competent Authority of the Govt. of NCT of

Delhi and in terms of letters dated 19th February, 2010 and 10th March,

2010 of the Director of Education of Government of NCT of Delhi (DOE).

4. When the petitions came up before this Court first, it was the

contention of the counsel for the petitioners that though they had been

appointed on the basis of the OBC certificate issued by the Competent

Authorities of the State of Andhra Pradesh but they belonged to the OBC

category as applicable to Delhi also and had applied to the Competent

Authority at Delhi also for issuance of the OBC certificate(s) and which

was/were likely to be issued shortly. On the said submission, vide interim

orders in the writ petitions, the communications dated 4th March, 2010

were directed to be kept in abeyance. The said order has continued till date

and the petitioner in each of the said four petitions has continued in the

employment of the schools of the Society till now.

5. Counter affidavits have been filed on behalf of the Society and DOE.

Rejoinder has been filed by the petitioners to the counter affidavit of the

Society.

6. The contentions of the counsel for the petitioners in the said four

petitions may be encapsulated as under:-

A. That as per the selection procedure only short listed

candidates were called for the interview; once the respondents

had short listed the petitioners and called the petitioners for

interview, they are deemed to have considered the petitioners

to be eligible for appointment in the OBC category on the

basis of the OBC certificate issued by the authorities of the

State of Andhra Pradesh;

B. that the appointment of each of the petitioners was not subject

to the production of certificate, of belonging to the OBC

category issued by the Competent Authority at Delhi;

C. that the petitioners have not only joined the employment of

the schools but also worked for over two years and have been

treated as regular teachers;

D. that even though the appointment of each of the petitioners

was "subject to the approval of Director of Education, Delhi

Administration, Govt. of NCT of Delhi" but since the

Selection Committee which had selected the petitioners

included nominees of DOE, under Rule 98 of the Delhi

School Education Rules, 1973 no approval was required

and/or approval is deemed to have been granted;

E. that respondent School though being an aided school but

nevertheless being a Minority Aided School, the appointments

made by the Managing Committee of the Society, as per the

second proviso to Rule 98(2) did not require the approval of

DOE;

F. That the respondents by their action having made the

petitioners believe and presume that the petitioners have been

regularly employed with the schools of the Society and owing

to which belief the petitioners having not availed of other

opportunities and being now overage therefor, the respondents

are estopped from discharging the petitioners from service;

G. that other Minority Aided Institutions similarly placed as the

respondent viz. Delhi Tamil Education Association have been

making appointments of teachers in OBC category on the

basis of OBC certificates issued by the authorities in the State

of Tamil Nadu without objection thereto by the DOE and thus

DOE is not entitled to object to the employment of the

petitioners also for the reason of the OBC certificate(s) having

not been issued by the Competent Authority of the Govt. of

NCT of Delhi;

H. that the Society being a Minority Educational Institution is not

bound by the policy of the Govt. of NCT of Delhi of

reservation for OBC category and thus the requirement of the

DOE of the OBC certificate issued by the Competent

Authority of the Govt. of NCT of Delhi is not really attracted.

7. Per contra, the counsel for the Society has contended:-

a.) that the petitioners obtained the interim order on the

representation that they had applied for the OBC certificate to

the Competent Authority of the Govt. of NCT of Delhi also

and the same was likely to be issued shortly; that inspite of the

petitions having remained pending for over one year, no such

certificate has been produced till date; the same leads to only

one inference i.e. that the petitioners do not belong to the

OBC category in Delhi and have wrongfully obtained

employment;

b.) that another teacher namely Sh. Nitesh Kumari similarly

placed as the petitioners who was able to produce a certificate

issued by the Competent Authority at Delhi of belonging to

the OBC category was retained in employment;

c.) that the aid to the Society and its schools is provided by the

Govt. of NCT of Delhi and thus the Govt. of NCT of Delhi is

entitled to lay down the condition of reservation in

employment and of the certificate of belonging to the

Reserved category being of the Competent Authority of the

Govt. of NCT of Delhi.

d.) that the case argued is beyond pleadings and it has not been

pleaded that reservation did not apply to the Society;

e.) that the Society has been acting at the behest of DOE and has

not discharged the services of the petitioners of its own;

f.) that the petitioners have the alternative remedy of appeal

before the Delhi School Tribunal thus the present writ

petitions are not maintainable;

8. The counsel for the petitioners in rejoinder has contended that the

appointment of the petitioners is under the Union of India and therefore the

Central List would apply and the petitioners being OBCs as per the Central

List, the certificate issued by the authorities of the State of Andhra Pradesh

is valid; that the alternative remedy of appeal before the Delhi School

Tribunal is not available since the order of discharge is not of own

initiative of the Society but at the behest of DOE; that the order of

discharge is a void order; that the rule of exclusion of jurisdiction of writ

remedy by alternative remedy is a rule of discretion and the question

involved being a question of Constitutional Law, the alternative remedy of

appeal before the Delhi School Tribunal is not an efficacious remedy.

9. The counsel for the petitioners has referred to:-

a) The Principal v. The Presiding Officer AIR 1978 SC 344;

b) Management of M.S. Ramaiah Medical College & Hospital v. Dr. M. Somashekar MANU/KA/0672/2003;

c) Dr. Sahdeo Singh Solanki v. Govt. of NCT of Delhi 65(1997) DLT 390 (DB);

d) Dr. (Smt.) Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, Sitapur (UP) (1987) 4 SCC 525;

e) Whirlpool Corporation v. Registrar of Trade Marks AIR 1999 SC 22;

f) State of U.P. v. M/s. Indian Hume Pipe Co. Ltd. AIR 1977 SC 1132;

g) Union of India v. Classic Credit Ltd. 154 (2008) DLT 538 (DB) &

h) Chemical Sales Corporation v. NDMC 64(1996) DLT 160 (DB)

on the aspect of alternative remedy, and to:-

i. Surendra Singh v. Manager, Haryana Shakti Sr. Sec.

School 95 (2002) DLT 135 where approval of the DOE

under Rule 98(4) to the appointment was deemed to have

been granted for the reason of no objection to the

appointment having been made within 15 days;

ii. Promila Dixit v. Govt. of NCT of Delhi 2011 (121) DRJ

177 where the challenge to the rejection of appointment on

the ground of overage succeeded for the reason of relaxation

having been allowed to others;

iii. Sindhi Education Society v. Chief Secretary, Govt. of NCT

of Delhi (2010) 8 SCC 49 laying down that merely receiving

grant-in-aid per se would not make such school or institution

"State" within the meaning of Article 12 of the Constitution

of India without there being deep and pervasive control over

the working of the institution. On the basis of the said

judgment, it was contended that the Linguistic Minority

Institution as the Society is and its schools are not bound by

the policy of reservation;

iv. Delhi Tamil Education Association (DTEA) v. Directorate

of Education 153 (2008) DLT 261 holding that DTEA being

a Minority Aided School was not required to take approval

under Rule 98(2) from the DOE in making appointments in

the school and also for the reason of the presence of the

nominees of the DOE in the Selection Committee.

10. The counsel for the respondent Society has referred to:-

a) Action Committee on issue of Caste Certificate to Scheduled

Castes and Scheduled Tribes in the State of Maharashtra

v. Union of India (1994) 5 SCC 244 laying down that a

person belonging to SC/ST in relation to his original State of

which he is permanent or ordinary resident cannot be deemed

to be so in relation to any other State on his migration to that

State for the purpose of employment, education etc.;

b) MCD v. Veena (2001) 6 SCC 571 where the certificates of

belonging to backward classes in States other than Delhi

were held to be not good for the purpose of recruitment to the

posts of primary and nursery teachers in MCD schools in the

National Capital Territory of Delhi;

c) Sunita Yadav v. MCD 2006 VI AD (Delhi) 113 where the

aforesaid judgment was followed;

d) Judgement dated 28th October, 2010 in W.P.(C)5205/2010

titled Ms. Akanksha Dokania v. Netaji Subhas Institute of

Technology laying down that for admission to Educational

Institutions in Delhi in OBC category, production of OBC

certificate issued by Competent Authority of the Govt. of

NCT of Delhi was essential;

e) Tej Singh v. FCI 152(2008) DLT 243 laying down that the

person invoking the writ jurisdiction without exhausting the

alternative remedy has to make out a strong case as to why

available alternative remedy has not been exhausted;

f) Govt. of Andhra Pradesh v. P. Chandra Mouli (2009) 13

SCC 272 also laying down that owing to availability of

alternative remedy the writ petition ought not to have been

entertained;

g) Internsil P. Ltd. v. UOI 2006 VIII AD (Delhi) 332 (DB)

wherealso the writ petition was held to be not maintainable

owing to availability of effective statutory remedy;

h) Brahmo Samaj Education Society v. State of West Bengal

(2004) 6 SCC 224 laying down that the right to establish and

administer an educational institution does not prevent the

State from prescribing basic qualifications for appointment of

teachers but selection and appointment of teachers from

amongst the qualified teachers is the exclusive right of

educational institutions;

i) Subhash Chandra v. Delhi Subordinate Services Selection

Board (2009) 15 SCC 458 laying down that Article 16(4)

cannot be made applicable to grant of benefit of reservation

for SCs/STs who have migrated to another State or Union

Territory.

11. The counsel for the petitioners has sought to distinguish the

judgment in Veena (supra) by contending that the same dealt with MCD

schools and/or schools of Delhi Govt. while the schools in the present case

are of a Linguistic Minority. It is also contended that in Veena also, though

holding the appointment to be invalid but for the reason of the petitioners

therein having worked in the schools for long, the schools were directed to

accommodate the petitioners in the general quota.

12. I will first take up the aspect of maintainability of the writ petitions

owing to the availability of the alternative remedy of appeal before the

Delhi School Tribunal. Section 8(3) of the Delhi School Education Act,

1973 provides for the remedy of appeal to any employee of a recognized

private school who is dismissed, removed or reduced in rank. Though the

Division Bench of this Court in Kathuria Public School v. Director of

Education 123 (2005) DLT 89 (DB) had held that the said remedy of

appeal is available against all grievances of the employees but the Full

Bench of this Court in O.REF.1/2010 titled Presiding Officer Delhi

School Tribunal v. Govt. of NCT of Delhi decided on 27th August, 2010

has held that the remedy of appeal to the Tribunal under Section 8(3)

(supra) is available only to employees who are dismissed, removed or

reduced in rank.

13. The petitioners in the present case have been discharged from

service for the reason of being not eligible for appointment and/or their

appointment being erroneous and/or under a mistaken belief. That being

the stand of the respondents and which is to be adjudicated, strictly

speaking the petitioners cannot be said to be employees of a school who

have been dismissed or removed, for the remedy of appeal to be available

to them. Even otherwise, I am of the opinion that the writ petitions having

been entertained and the interim relief having been granted and arguments

on merits having been heard and entailing questions of reservation , it is

not deemed expedient to football the petitioners to the Delhi School

Tribunal. Thus it is deemed expedient to entertain the writ petitions.

14. As far as the reliance by the petitioners on Rule 98 is concerned,

DOE in its counter affidavit has stated that the petitioners having failed to

meet the eligibility criteria and/or having failed to submit the document

required to be submitted for appointment, cannot be said to have been

validly appointed for the deeming provision in Rule 98(4) to come into

operation; else it is not disputed that the Selection Committee which

selected the petitioners did include the nominee of the DOE.

15. I find this Court to have in U.R. Arya Vs. Director of Education 80

(1999) DLT 203 and in N. Usha Vs. Director of Education

MANU/DE/3421/2010 and the Supreme Court in Bank of India v.

Avinash D. Mandivikar (2005) 7 SCC 690 to have held that where the

very foundation of appointment collapses, the same is no appointment in

the eyes of law and Rule 98 cannot be relied upon to continue in

employment. I am of the opinion that the petitioners cannot claim a right of

appointment and/or of remaining in employment against a post belonging

to the OBC category if found to be not belonging to the said category.

Allowing the petitioners to continue in the said post would be to the

prejudice and deprivation of a person belonging to the OBC category and

who cannot be condemned unheard. If the same is allowed, it would defeat

the very purpose of reservation and deprive protection to those who under

the Constitution and law of the country are entitled to such protection. The

present is not a case of a mere irregularity in appointment and which

irregularity can be overlooked or to which the deeming provisions of Rule

98 (supra) can be applied. If it were to be held that the petitioners do not

belong to the Reserved category in which they have sought employment,

the same goes to the very root of the matter and the petitioners cannot be

allowed to continue occupying the post for which they are not eligible.

16. However, need is not felt to adjudicate the question of applicability

of Rule 98 to the schools of the Society or the applicability of reservation

to the schools of the Society. The counsel for the Society is right in

contending that the petitioners did not approach this Court with the plea of

reservation being not applicable to the schools of the Society.

17. The Society in the advertisement pursuant to which the petitioners

had applied clearly specified the posts reserved for the OBC category. The

petitioners at that time did not contend that reservation in the schools of the

Society was/is not permissible or was/is bad. They rather took advantage of

the said reservation and applied in the Reserved category. The petitioners

thus instead of competing with the other candidates in the unreserved

category, competed only with those who had also applied in the Reserved

category. The petitioners having benefited from the reservation, cannot

now be heard to contend otherwise. If said arguments of the petitioners

were to be accepted, the same again would strike at the very root of the

selection procedure in which the petitioners had participated and/or

through which they were selected. Had the posts which the petitioners

sought and are seeking to retain been not reserved for the OBC category, a

large number of other persons would have been eligible to apply therefor

and to compete with the petitioners; it is well nigh possible that the

petitioners in such case may not even have been selected. Thus the writ

petitions have to be decided on the premise of the posts being available for

OBC category only.

18. Once it is so found, the matter is squarely covered by the judgments

in Veena and in Subhash Chandra (supra). The counsel for the petitioners

is not correct in contending that the said judgments would not apply. The

aid to the Society and/or its schools is being provided by the Govt. of NCT

of Delhi and the said Govt. providing the said aid/finances is very well

entitled to insist upon the reservation being limited to the categories

reserved in Delhi notwithstanding the petitioners belonging to the

Reserved categories in the State of their origin.

19. There is merit also in the contention of the counsel for the Society

that the petitioners obtained interim order from this Court by representing

that the certificates of belonging to the OBC category were likely to be

issued shortly. No certificates have been produced till date. The necessary

inference is that the petitioners do not belong to OBC so far as Delhi is

concerned. The reservation being only for OBC within Delhi, the

petitioners did not qualify therefor.

20. As far as the arguments of the counsel for the petitioners of

discrimination is concerned, once it is found that the petitioners do not

have a right in law, merely because somebody else has been wrongly

appointed would not entitle the petitioners to claim the same relief. The

Apex Court recently in Union of India Vs. M.K. Sarkar (2010) 2 SCC 59

has held that there can be no claim to negative equality under Article 14 of

the Constitution of India.

21. Thus even though the sympathies of this Court are with the

petitioners but the Court is unable to find any right in the petitioners to be

entitled to the relief. Moreover this Court is wary of on sympathetic

grounds starting a trend which can have repercussions on others not even

before the Court. Thus while dismissing W.P.(C) 2149, 2189, 2257 & 2259

all of 2010, it is only suggested to the Society/Schools to consider whether

the petitioners can be accommodated in any other capacity.

22. The petitioner in W.P.(C) 8157/2010 had sought appointment which

was denied for the reason of having not furnished the OBC certificate

issued by the Competent Authority of the Govt. of NCT of Delhi. He seeks

the relief of appointment and relies upon the appointment granted to the

petitioners in the other aforesaid writ petitions. In view of what has been

held hereinabove, the said petitioner also cannot be granted the relief of

appointment.

23. Accordingly, all the writ petitions are dismissed.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) July 4, 2011 pp