Smt. Ravinder Kaur vs The Lt. Governor Of Delhi & Ors.
2011 Latest Caselaw 5342 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of decision: 4th November, 2011.

+                          W.P.(C) 4771/2008

%      SMT. RAVINDER KAUR                                  .......Petitioner
                    Through:            Mr. Pradeep Kumar, Advocate.

                                     Versus

    THE LT. GOVERNOR OF DELHI & ORS.           ..... Respondents
                  Through: Mr. Ms. Sujata Kashyap with Mr.
                           A.K. Singh, Advocates for R-1 to 3.
                           Mr. Jasmeet Singh & Mr. Saurabh
                           Tiwari, Advocates for R-4.
                           Mr. Sanjay Kumar, Adv. for R-5.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.     Whether reporters of Local papers may          Not necessary
       be allowed to see the judgment?

2.     To be referred to the reporter or not?         Not necessary

3.     Whether the judgment should be reported               Not necessary
       in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner, in the writ petition claims the following reliefs:-

"(i) To quash the impugned order dated 3.10.07 in respect of declaring the petitioner as surplus staff as TGT (Science) from

the Sri Guru Teg Bahadur Khalsa Boys Sr. Sec. School, Dev Nagar, New Delhi (Respondent No.4 School) and transferring her to C.L. Bhalla DAV Sr. Sec. School, Jhandewalan, New Delhi (Respondent No.5 School) as TGT (Science) vide order dt. 3.10.07 issued by the Dy. Director of Education, Central Distt., New Delhi;

(ii) To direct the respondents to restore the petitioner to the post of PGT (Punjabi) teacher as already ordered vide orders dated 1.8.07 issued by the Managing Committee of Respondent No.4 School with all consequential benefits including deemed promotion w.e.f. 1.8.07 and fixing her pay in the pay scale of the promotional post i.e., `6500/ - `10,500/- and pay the arrears w.e.f. 1.8.07;"

2. Notice of the petition was issued. Counter affidavits have been filed

by the respondents no.1 to 3 Director of Education (DoE) and by the

respondent no.4 Sri Guru Teg Bahadur Khalsa Boys Sr. Sec. School, Dev

Nagar, New Delhi and to which rejoinders have been filed by the petitioner.

The counsels have been heard.

3. The case of the petitioner as set out in the petition is that she was

appointed as TGT (Science) in the respondent no.4 School on 5th July, 1999;

that she was then having the qualification of B.Sc. (G), B.Ed. and had

studied Chemistry, Botony, Zoology, Punjabi, English and Hindi as

compulsory subjects in her graduation; that she was issued „NOC‟ by the

respondent no.4 School in the year 2001 to add to her qualification by doing

M.A. (Punjabi) and on completion of the said course, the said qualification

was added in her service records; that in 2005 one post of PGT (Punjabi) fell

vacant in the respondent no.4 School and the petitioner applied therefor and

the Departmental Promotion Committee (DPC) constituted for said purpose,

in the meeting held on 16th May, 2007 recommended her candidature for the

said post; that the respondent no.4 School on 1st August, 2007 promoted her

to the post of PGT (Punjabi) with effect from the same date; that however

since she was not being paid the pay scale of PGT (Punjabi), she made

representations in this regard and which were recommended by the

respondent no.4 School; however, rather than paying her the pay scale of

PGT (Punjabi), she was vide order dated 3rd October, 2007 of the respondent

DoE declared surplus staff in the post of TGT (Science) in the respondent

no.4 School and transferred to the respondent no.5 C.L. Bhalla DAV Sr. Sec.

School, Jhandewalan, New Delhi; that she was relieved from the respondent

no.4 School on 3rd November, 2007 and joined the respondent no.5 School

as TGT (Science) to her embarrassment and humiliation. Upon the

representations of the petitioner not meeting with any success, the present

writ petition was filed.

4. It is the contention of the petitioner that her declaration as surplus on

the post of TGT (Science) from which she had been promoted to PGT

(Punjabi) is illegal; that no notice to show cause was given to her before her

such reversion; that she was eligible for the post of PGT (Punjabi); that the

respondent no.4 School being a minority educational institution, the decision

of the Managing Committee of the respondent no.4 School to promote the

petitioner is final and binding. Reliance is placed on judgment dated 30 th

March, 2001 of a Single Judge of this Court in Civil Writ No.4037/1995

titled Mrs. Apinder Kaur Vs. Delhi Administration.

5. The respondents no.1 to 3 DoE in their counter affidavit have pleaded

that the recommendation of the DPC for promotion of the petitioner (and

which was not filed by the petitioner) was "subject to the clarification

regarding promotion of T.G.T. (N.Sc.) to P.G.T. (Punjabi) as per

Recruitment Rules is obtained before taking a final decision"; that upon the

respondent no.4 School seeking clarification in this regard, the respondent

DoE had in its letter dated 18th February, 2008 to the respondent no.4 School

rejected the DPC recommendation. It is thus denied that the petitioner was

promoted to PGT (Punjabi) or could be so promoted.

6. The respondent no.4 School in its counter affidavit has raised a

preliminary objection as to the maintainability of the writ petition. It is

contended that under Section 8 of the Delhi School Education Act, 1973

reduction in rank as alleged by the petitioner, is appealable before the Delhi

School Educational Tribunal and in the face of availability of alternative

remedy, the writ petition is not maintainable. Reliance in this regard is

placed on the judgment of this Court in Sonica Jaggi Vs. Lt. Governor 152

(2008) DLT 601.

7. The respondent no.4 School in its counter affidavit has also pleaded

that the petitioner did not have the language subject of Punjabi at her

graduation level; that she was appointed as TGT (Science) on the basis of

her qualification of graduation in B.Sc. (G); that the petitioner has also

suppressed from this Court that the recommendation dated 16th May, 2007 of

the DPC was subject to clarification from the respondent DoE; that no

decision regarding her promotion to the post of PGT (Punjabi) was taken or

could be taken; that the respondent no.4 School vide letter dated 25 th May,

2007 and reminder dated 28th September, 2007 had sought clarification from

the respondent DoE in this regard and in reply whereto the respondent DoE

had vide letter dated 18th February, 2008 rejected the said recommendation.

The plea of the petitioner of having been promoted or having joined as PGT

(Punjabi) with effect from 1st August, 2007 is also denied. It is pleaded that

the petitioner continued to work on the post of TGT (Science) till she was

declared surplus and relieved from the respondent no.4 School. It is thus

denied that she has been demoted as alleged by her.

8. The petitioner in her rejoinders has reiterated her case.

9. The petitioner in support of her plea of having been promoted as PGT

(Punjabi) has relied on a document dated 1st August, 2007 on the letterhead

of the respondent no.4 School as under:-

"On the recommendation of D.P.C. held on 16-05-2007 the management committee Shri. Guru Tegh Bahadur Khalsa Boys Sr. Sec. School, Dev Nagar is pleased to promote Mrs. Ravinder Kaur Walia TGT (Natural Science) to the post of PGT (Punjabi) in the pay scale of `6500/- - `10,500/- w.e.f. 1st August, 2007.

The promotion is made after asking for clarification vide letter no.194 date 25.05.2007.

       Sd.                                                 Sd.
       Manager                                             Chairman"

10. The respondent no.4 School in its counter affidavit has not denied the

said document but pleaded that the same also as per its tenor, is conditional

upon clarification sought from the respondent DoE.

11. The counsel for the petitioner in response to the preliminary objection

of the respondent no.4 School as to the maintainability of the writ petition

has contended that since no order of reduction in rank has been

communicated to the petitioner, the remedy of appeal was not available to

her. No merit is however found in the said defence to the preliminary

objection. The case set up by the petitioner before this Court is in essence of

challenge to the reduction in rank and even if no order of reduction in rank is

served, it is open to the petitioner to impugn the reduction in rank otherwise

effected, in appeal. This Court in the matter of appeals to the Appellate

Tribunal, NDMC / MCD / DDA has repeatedly held that the remedy of

appeal cannot be avoided merely by contending that no order of demolition

has been obtained, as long as the cause of action is of threatened demolition.

Reference in this regard can be made to ANZ Grindlays Bank Plc. Vs.

Commissioner, MCD 1995 (34) DRJ 492 as also to Sheo Murti Shukla Vs.

GNCTD MANU/DE/3765/2011. Further though the Full Bench of this

Court in Presiding Officer, Delhi School Tribunal Vs. Govt. of NCT of

Delhi 2011 (124) DRJ 513 has set aside the judgment of the Division Bench

of this Court in Kathuria Public School Vs. Directorate of Education 123

(2005) DLT 89 in so far as holding the remedy of appeal to be not limited by

provisions of Section 8(3) of the Delhi School Education Act but cases of

reduction in rank are expressly covered by the said provision and I see no

reason for the petitioner to have not sought the remedy of appeal. However,

considering that the rule of alternative remedy is not an absolute rule and

further considering that the petition was entertained by this Court and has

remained pending in this Court for nearly three years, it is not deemed

expedient to proceed on the said ground alone and I proceed to deal with the

case on merits.

12. The gravamen of the case of the petitioner, as aforesaid, is her

demotion. However to claim demotion, the petitioner is to first prove

promotion. The document relied upon by the petitioner in support of her

promotion and as set out hereinabove is not unequivocal. As per the

rejoinder of the petitioner herself to the counter affidavit of respondent no.4

School, there are disputes as to the management of the respondent no.4

School. Merely because the petitioner has succeeded in obtaining the

document aforesaid from the Manager and Chairman of the School, does not

establish the case of the petitioner of having been promoted when the

persons now in management of respondent no.4 School and who have filed

the counter affidavit are denying the factum of promotion. Had the

petitioner been promoted, it is inexplicable as to why the petitioner would

not have received the corresponding increase in emoluments.

13. On the contrary from the documents before this Court, it is abundantly

clear that the recommendation of the DPC for promotion of the petitioner

was subject to the clarification sought. Clarification was so sought by the

respondent no.4 School from the respondent DoE and the respondent DoE

had rejected the said recommendation. Though Rule 98 of the Delhi School

Education Rules, 1973 provides for deemed approval of appointment by

Managing Committee of an aided school if nominee of DoE was present in

the DPC and such representative is stated to have been present, but in the

present case the DPC itself was doubtful of eligibility of petitioner and had

made its recommendation subject to clarification from DoE. Thus, the said

provision will not come to the rescue of the petitioner.

14. The claim of the petitioner of having performed the duties of the

promoted post is also disputed by the respondent no.4 School. There is no

unequivocal document before this Court to show that the petitioner was so

performing her duties. Moreover, even if it were to be believed that the

respondent no.4 School allowed the petitioner to perform the duties of the

promoted post, in my view, the same would be immaterial. Significantly,

the respondents no.1 to 3 DoE in their counter affidavit have pleaded that

they will be taking appropriate action against the respondent no.4 School, if

found to have promoted the petitioner illegally.

15. Once the claim of the petitioner of having been promoted fails, the

grievance made by her of demotion disappears.

16. The counsel for the petitioner during the arguments sought to make

out a case of challenge to the rejection by the respondent DoE of the

recommendation of the DPC. However, that is not the case with which the

petitioner approached this Court. The petitioner even if believed to have

been earlier not in the know of the same (though in the circumstances, it is

found to be highly improbable), the petitioner even after knowledge thereof

did not choose to challenge the same. Thus, the said controversy, strictly

speaking is not before this Court.

17. Reliance by the petitioner on the judgment of this Court in Apinder

Kaur also is in the said context. This Court in the said judgment held the

petitioner in that case who was TGT (Language) to be eligible to the post of

PGT (Economics) upon completing M.A. in Economics. Reliance was also

placed on Rule 98(4) of the Delhi School Education Rules, 1973 to hold that

in the absence of disapproval of the appointment, approval has to be

presumed. It was yet further held that administration of minority School

must be left in the hands of the Managing Committee.

18. The judgment in Apinder Kaur would not apply because of the

conditional recommendation of DPC in the present case. Similarly, even if

the plea of the respondent no.4 School (the same school was subject matter

of Apinder Kaur also), being a minority School were to be accepted the

Managing Committee of the respondent no.4 School in the present case is

itself disputing the claim of promotion / appointment as PGT (Punjabi) of

the petitioner. The said judgment thus has no application.

19. The counsel for the respondents no.1 to 3 DoE has placed before this

Court the Recruitment Rules for the post of PGT as notified vide

Notification F.(41)/72-S.II, dated 10th July, 1975 amended vide Notification

F.27(3)/94-Edn./387, dated 26th February, 1996 further amended vide

Notification F.27(3)/94-Edn./1068-1076, dated 4th November, 1999 to

contend that only a TGT/Language Teacher with five years regular service

in the grade was eligible to be promoted as PGT (Language). Reliance is

placed on Suresh Kumar Vs. Lt. Governor 139 (2007) DLT 47, Govt. of

NCT of Delhi Vs. Arvind Kumar 126 (2006) DLT 461 (DB) and Chander

Pal Jain Vs. Delhi Administration Etc. 61 (1996) DLT 464.

20. It is not the case of petitioner that she had five years experience as

TGT (Punjabi). As aforesaid, the petitioner did not approach this Court

challenging the rejection of the recommendation of DPC or seeking a

declaration of her eligibility. Thus, this Court is unable to return any finding

as to the eligibility of the petitioner for the post of PGT (Punjabi). All that

can be said is that as per the Recruitment Rules relied upon by the

respondent DoE, the petitioner is not so eligible. The petitioner has not

shown any Rules to show that she is eligible.

21. There is thus no merit in the petition; the same is dismissed. No order

as to costs.

RAJIV SAHAI ENDLAW (JUDGE) NOVEMBER 04, 2011 bs