Delhi High Court

Smt. Sharmila Bhateja vs Directorate Of Education & Ors. on 1 March, 2011

Author: Manmohan Singh

*         HIGH COURT OF DELHI : NEW DELHI

+       W.P.(C) No. 3659/2007 & CM 9167/2007


%                                Judgment decided on: 01.03.2011


SMT. SHARMILA BHATEJA                          ......Petitioner
                 Through: Mr. K.C. Mittal with Mr Tarunesh
                          Kumar, Advocate.

                        Versus


DIRECTORATE OF EDUCATION & ORS.               .....Respondents
                Through: Mr. Amiet Andlay with Mr. Arun
                         Sharma, Advocate for R-1.
                         Mr. Mayank Yadav, Advocate for R-
                         2.
                         Mr. Baljit Singh, Advocate for the
                         Applicant in CM. No. 9167/2007.



Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                  Yes

2. To be referred to Reporter or not?               Yes

3. Whether the judgment should be reported          Yes
   in the Digest?


MANMOHAN SINGH, J.

1. The present writ petition has been filed by the petitioner

seeking direction to set aside the appointment of candidate Ms.

Archana and quashing the clarification part (b) and (c) of the office

order No. DE/15/Act/2004/175-374 dated 28.01.2005 and to count

the experience of the petitioner as TGT in Tagore Public School

from July, 1999 uptil 14.03.2007 and in case the petitioner is found

suitable in the merit list, after giving due benefit of her past

experience, she may be ordered to be appointed by the School.

2. Brief facts of the case relevant for the disposal of the

present writ petition are that on 05.09.2006, the respondent No.2

published an advertisement in the Hindustan Times regarding

requirement of TGT (Natural Science) amongst other posts of

teachers.

3. Pursuant to the said advertisement, the petitioner on

06.09.2006 applied for the post of TGT (Natural Science) along

with her curriculum vitae. Later on the petitioner also sent an

experience certificate dated 20.09.2006 issued by Tagore Public

School, D Block, Naraina Vihar, New Delhi, which was certified by

the Education Officer, Zone-20, District South-West A, Vasant

Vihar, New Delhi-110057. However, the details of the pay-scale

were not mentioned in it.

4. The respondent No.2, thereafter, issued the letter for

interview in which it was specifically mentioned that the petitioner

was to bring the original certificates/degrees/experience

certificate/cast certificate and no objection certificate at the time

of interview which was fixed for 30.03.2007 at 12:00 PM. It is

averred in the writ petition that the petitioner, on 28.03.2007, that

is before the date of interview, delivered the relieving and

experience certificate dated 14.03.2007 to one Mr. Babu Lal,

gardner of the school. However, it is not in dispute that the said

experience certificate, in which the pay-scale was mentioned, was

not certified by the respondent No.1/Director of Education.

5. The contention of the respondent No.2 is that on the

date of interview the letter dated 28.03.2007 sent by the

petitioner along with experience certificate was not on record.

However, at the time of interview it was mentioned by the

petitioner that no appointment letter was issued to her by the

previous school. She had written her consolidated salary as

Rs.10,000/- per month in her earlier experience certificate. She

was asked to submit the no objection certificate but she neither

produced the same nor was she able to produce a copy of the

letter wherein the details of her pay-scale were mentioned.

6. After the interview, the petitioner was informed that

since the experience certificate did not contain her pay scale, she

would not be given the benefit of eight years experience in Tagore

Public School and one year earlier experience at John Baptist

School and, therefore, she was not eligible for the said post. A list

of selected candidates was prepared by the school awarding marks

at different levels as per order dated 28.01.2005 issued by the

respondent No.1. The final list on merit was displayed on the

notice board of the school on 30.03.2007 which was signed by the

SCC members. The minutes of the Selection Committee prepared

and Resolution was passed on 28.05.2007.

7. The following are the grievance of the petitioner in the

present writ petition:

A) That the attested copies of the documents

were with the school on 28.03.2007 which were

submitted in pursuance to the interview letter. The

certificate indicates eight years experience as well as

relieving issued to her by Tagore Public School which

was counter signed by the Education Officer of the

concerned zone wherein the pay scale was also

mentioned but the Selection Committee did not

consider the same at the time of interview and it was

informed that she was not eligible for the post as her

experience letter did not contain her pay scale.

B) That the mentioning about the pay scale was

irrelevant for the purpose of experience of the

petitioner and it was not within the competence of the

Selection Committee to go into the issue of

appointment letter. The Selection Committee could

not have refused to give benefit of eight years

experience in Tagore Public School and one year

earlier experience at St. John Baptist School to the

petitioner.

C) That her experience certificate dated

20.09.2006 was signed by Education Officer of the

concerned zone which itself proves that the petitioner

was a permanent teacher at Tagore Public School as

the Education Officer sign certificate of only those

teachers whose records are sent to him, which are only

of teacher of regular pay scale.

D) That according to the marking scheme for the

recruitment of teachers of all categories awarding

marks for educational qualifications, the petitioner

should have been given 9 marks for her 9 years of

experience. The basis of denial of these 9 marks was

illegal and arbitrary.

8. The petitioner has challenged that part of the office

order dated 28.01.2005 issued by respondent No. 1 which says

that experience gained by a teacher as an Ad-hoc teacher will not

be counted and the pay scale is required to be mentioned in the

certificate. It is submitted that the respondent No. 2 in an illegal

and arbitrary way, considered the petitioner as an Ad-hoc teacher

only for the reason that the experience certificate dated

20.09.2006 did not mention her pay scale and in fact the petitioner

was induced by the Committee Members of the respondent School

to write on a paper that her salary was Rs. 10,000/- per month

consolidated.

9. It is a matter of fact, that in interview call letter dated

20.03.2007, it was clearly mentioned that the petitioner was

required to bring her experience certificate counter signed by the

Education Officer of the concerned area. However, the experience

certificate dated 14.03.2007 submitted by the petitioner was not

counter signed by the Education Officer.

10. It is also a matter of fact that when the petitioner

applied for the post of TGT on 06.09.2006 she did not submit any

experience certificate along with her application. Later on she

submitted her experience certificate dated 20.09.2006 which did

not mention her pay scale. As alleged by the petitioner, she again

handed over another experience certificate dated 14.03.2007

along with the letter dated 28.03.2007 to one Mr. Babu Lal,

gardner of the respondent school, but the said experience

certificate, even if considered, was not counter signed by the

Education Officer.

11. In the representation made by the petitioner on

31.03.2007 after the result of the interview, she has stated that

the letter of appointment has not been issued / misplaced and that

the salary of the petitioner is Rs. 10,000/- consolidated and later

the petitioner has stated that the word „consolidated‟ has been

written by oversight and it should be treated as „salary in hand‟.

12. It is not in dispute, even by the petitioner that the „No

Objection Certificate‟ from the school where she had been teaching

was not attached with the application, which was a mandatory

condition as per the provisions of Rule 96 Sub-rule 9 of Delhi

School Education Act, 1973.

13. The Selection Committee awarded the marks as per the

scheme provided by the Director of Education. The Selection

Committee has placed the petitioner third in the merit list.

14. In answer to the document dated 20.09.2006 submitted

by the petitioner, it was submitted by the respondent No.2 that no

pay scale was mentioned in it and it was also not stated whether

she was a regular employee of the said school. At the time of

interview she has admitted that she has not been given

appointment letter and her salary is Rs. 10,000/- consolidated.

The respondent No.2 has argued that it was incumbent upon the

petitioner to place the relevant documents in compliance with the

rules.

15. As regards the letter dated 28.03.2007 the petitioner

has submitted that the said letter was allegedly given to Babu Lal

who is a gardner in the school against his initials and the same was

not placed on the date of interview. According to the respondent

No.2 Mr. Babu Lal, being a gardner in the school has no authority

to receive such documents.

16. Admittedly the father of the petitioner was working with

the Managing Committee of the School. Mr. Babu Lal specifically

clarified and admitted in his letter dated 14.05.2007 that the said

document got initialed by him in back date i.e. 28.03.2007 at the

instance of the father of the petitioner in the month of April, 2007

when he was called by Mr. Katyal, father of the petitioner in his

room.

17. I feel that in case the said document was submitted by

the petitioner prior to the date of interview, she could have at least

produced the copies of the same at the time of interview but she

was unable to do that.

18. Rule 96 (9) of the Delhi School Education Act reads as

under:

"(9) No managing committee shall entertain any application for employment from a person who is already serving as teacher in a recognized school, whether aided or not, unless the application from such person is duly forwarded by the manager of the school in which such applicant is serving:

Provided that every application from such person shall be forwarded by the manager, but any application in excess of three in a year shall not be forwarded unless the managing committee, for reasons to be recorded by it in writing, so directs:

Provided further that no such teacher shall be relieved of his duties except after the expiry of a period of :--

(i) Three months, in the case of a permanent teacher, from the date on which notice of intimation to leave the school is given; and

(ii) One month, in the case of a teacher who is not permanent, from the date on which notice of intimation to leave the school is given;

Provided also where the managing committee is in a position to provide for a substitute for such teacher earlier than the respective period specified in the foregoing proviso, the managing committee may relieve the teacher of his duties on the expiry of such earlier period."

19. There is no dispute to the proposition that when a

statute enacts that something shall be deemed to have been done,

which was not done, the court shall give full effect to it, meaning

thereby that when the things are prescribed to be performed in a

particular manner, then the said things must be performed in the

manner prescribed.

20. This Court does not find any force in the arguments of

the petitioner that the mentioning of pay scale in the experience

certificate was irrelevant and it was not within the competence of

the Selection Committee to go into the issue by itself.

21. The petitioner cannot dispute the fact about the non

mentioning of the pay scale and a valid "No Objection Certificate",