Smt. Shashi Prabha Agnihotri vs The Director Of Education And Ors.
2013 Latest Caselaw 1713 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI


+                         WP(C) No.1923/1996

%                                                          April 16, 2013

SMT. SHASHI PRABHA AGNIHOTRI               ..... Petitioner
                  Through: Mr. Aashish Mohan, Advocate.


                          versus

THE DIRECTOR OF EDUCATION AND ORS. ..... Respondents

Through: Mr. Raj Birbal, Senior Advocate with Ms. Raavi Birbal, Advocate for respondent/school.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J. MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This writ petition is filed by Ms. Shashi Prabha Agnihotri in

which various reliefs were claimed but ultimately at the time of admission,

the first two reliefs were only to be considered at the time of disposal of the

petition. These two reliefs are as under:-

"(i) That this Hon‟ble Court should issue a writ of Mandamus upon the Respondents in the matter of grant of Selection Scale to the Petitioner with effect from 1.1.1986, grant the same and release all arrears of Selection Scale totalling Rs.50,000/- as per Annexure 57 forthwith.

(ii) The Petitioner being the senior most post Graduate Teacher in the school be promoted to the post of Principal of the school and in the meantime Mrs. Kshma Mani (respondent No.6) who is illegally performing the functions of the Principal Incharge of the school be stopped from functioning as such pending the abovementioned writ petition in this Court and make the above orders of injunction in this regard absolute on the return of the Notice of Motion."

2. Counsel for the petitioner states that effectively the petitioner

claims two reliefs; one of promotion, and the second of entitlement of the

petitioner to senior scale.

3. So far as the relief claimed of promotion of the petitioner to the

Principal is concerned, it could not be disputed on behalf of the petitioner

that the post of Principal is a selection post. Once the post of promotion was

a selection post at best the right of the petitioner was to be considered for the

post of Principal and there is thus no automatic entitlement to the promotion.

Since the petitioner has in the meanwhile retired, this relief has become

infructuous. In fact, I may note that the petitioner was appointed as an

officiating Principal and the post of officiating Principal included therewith

the duties of a drawing and disbursing officer, and since the petitioner

requested that duties of a drawing and disbursing officer be withdrawn from

her, petitioner was thereafter removed from the post of officiating Principal

and another person, namely respondent No.4, was appointed. Therefore,

looking into all aspects of the matter the relief claimed by the petitioner for

being appointed as a Principal cannot be granted and therefore I reject the

prayer that at least nominal promotion be granted to the petitioner for the

post of a Principal.

4. So far as the claim for senior scale of the petitioner is

concerned, all that is stated in the writ petition is that the petitioner has

completed 12 years in the selection grade and hence petitioner was entitled

to the selection scale. A reading of the writ petition shows that petitioner

had certain adverse ACRs against her, and probably this is the reason why

the petitioner was not considered either for the post of the Principal or for

the selection grade scale. I however need not further comment on this aspect

of ACRs as counsel for the petitioner states that a writ petition challenging

the adverse entries made against the petitioner in the ACRs has been filed

and is pending.

5. The issue before this Court is that whether selection scale is an

automatic entitlement on completion of 12 years of service in the selection

grade. That this is not the position becomes clear from the following

averments showing the grant of selection scale is not automatic, and which

have been made by the respondent Nos.5 and 6/school in their counter

affidavit:-

"d)The award of Selection Scale w.e.f. 1.1.1986 is a matter of promotion. Its grant is on merit of performance/screening by an appropriate D.P.C. & not by passage of time alone. Outstanding candidates have to be placed on Top. In any case the process has always been initiated.

     xxxx                     xxxx                      xxxx           xxxx
     (vi)       It is evident from the copies of the orders enclosed by the
     petitioner herself with the Civil Writ that:-
         a)     "Selection Scale is not being granted as a matter of routine

on the basis of Seniority but is to be given after screening regarding their satisfactory performance by an appropriate D.P.C."

b) "Appointment to the Selection Grade post has to be made on the basis of merit-cum-seniority as indicated below":

c) "The zone of consideration should be limited to twice the number of vacancies expected to be filled in the year."

d) "Officers in the zone of consideration should be graded as "Outstanding" good & unfit on the basis of records. Those categorized as unfit are not to find a place in the select list."

e) Those who are graded „Outstanding‟ should be placed on block at the top of the select list. Those graded good should be placed below the outstanding officers."

f) "Selection for appointment should be made by a Selection Committee to be constituted."

6. Similar averments have been made by the Director of

Education, namely respondent Nos.1 to 4 in their counter affidavit and the

same reads as under:

"D) That in reply to paras No.3(iv), (v) & (vi), it is stated that so far as the allegations of the petitioner with respect to victimization etc. are concerned, the same do not relate to the replying respondents and hence are denied. It is submitted that as per records of the respondents, the selection scale was not granted to the petitioner by the School Management. It may be stated that the selection scale is not granted as

a matter of right on the basis of seniority, as otherwise alleged by the petitioner. Rather the selection grade is given to a candidate by an appropriate Departmental Promotion Committee after due screening regarding his/her satisfactory performance and knowledge, conduct to manage the affairs of the school etc. The Officers in the zone of consideration are graded "Outstanding" and are to be placed on the block at the top of the select list, while the officers graded "Good" are to be placed below the category of "Outstanding" officers. Since the petitioner was only below the category of outstanding officers, she was not considered for the selection scale.

For the sake of brevity, it is submitted that the petitioner having been appointed as Principal Incharge, was found to be inefficient and unsuitable for the post of Principal. Rather the petitioner herself expressed her inability to carry out the responsibilities of D.D.O., which she refused to perform. It is mandatory for the Head of the school to comply with the duties of the D.D.O. Having failed to do so, the petitioner herself requested the Management to be relieved of her duties."

7. The petitioner had an opportunity to rebut the requirements of a

DPC being held and the ACRs of „outstanding‟ and „good‟ for being

considered for grant of senior scale, however, the petitioner did not file any

rejoinder affidavit to the counter affidavit which was filed by respondent

Nos.1 to 4. So far as the counter affidavit filed by the respondent Nos.5 and

6 are concerned, petitioner did file a rejoinder affidavit, however, no

response was given in the rejoinder affidavit to the averments made in the

counter affidavit that the grant of selection scale is not a matter of automatic

promotion but it is based on merit and screening by an appropriate DPC.

8. In view of the above, the following position emerges:

(i) Grant of selection scale is not automatic on completion of 12 years in

the selection grade. No such document has been filed in this Court to show

that the selection scale is granted automatically and simply because of

completion of 12 years of service in the selection grade.

(ii) There was a requirement of conducting of a DPC and ACRs of the

petitioner being considered before selection scale could be granted. ACRs

only of „outstanding‟ were considered by the DPC, or at best of „good‟ were

to be considered, however, there is no case set out in the writ petition that

the petitioner had in her past ACRs for the relevant years‟ assessment as

outstanding or good for being considered for the selection scale.

(iii) Once the grant of selection scale is not an automatic selection based

on completion of a particular number of years of services in the selection

grade, the petitioner cannot be granted such selection scale merely because

she claims to have completed 12 years of service in the selection grade.

9. At this stage, I must also point out that on behalf of the

petitioner at one stage benefit was sought to be taken of a response given to

an RTI query, and which is dated 27.10.2007, and by which it was as if the

school had given selection scale to the petitioner w.e.f 1.1.1986, however,

counsel appearing for the respondent Nos.5 and 6 have clarified that in the

minute book this aspect is missing and the error occurred because of the fact

that the Manager was 85 years old person. In any case, I need not go into

the aspect of whether there is or is not a resolution of the managing

committee of the granting of senior scale to the petitioner inasmuch as grant

of senior scale could only have been made if the petitioner had gone through

the selection process through a constituted DPC, but it is not even the case of

the petitioner that she participated in any DPC and that the DPC held the

petitioner entitled to grant of selection scale.

10. In view of the above, I do not find any merit in the petition by

which petitioner can claim that she was entitled to the selection scale. The

relief of claiming selection scale of the petitioner is therefore misconceived

and rejected.

11. The writ petition is therefore dismissed, leaving the parties to

bear their own costs.

VALMIKI J. MEHTA, J APRIL 16, 2013 Ne