Seema Chaturvedi vs Navyug School Educational ...
2013 Latest Caselaw 136 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           WP(C) Nos. 5592/2010& 5738/2010

%                                           Reserved on: 04th January, 2013
                                            Pronounced on: 9th January, 2013

+     W.P.(C) 5592/2010
SEEMA CHATURVEDI                                         ..... Petitioner
                   Through:      Mr.K.Venkatraman & Mr.S.Seth, Advs.
                   versus
NAVYUG SCHOOL EDUCATIONAL SOCIETY & ORS
                                                        ..... Respondents

Through: Mr. B.B.Gupta with Mr. Anshul Mittal, Advs. for R-1.

Mr. Ajandra Sisodiya, Adv. for R-3 and 5.

Ms. Maninder Acharya, Adv. for Union of India. Mr. N.D.Kaushik for Mr. Arun Bhardwaj, Adv.for R-2.

                   &
+     W.P.(C) 5738/2010
SHAILY SAPRA                                            ..... Petitioner
                   Through:      Mr.K.Venkatraman & Mr. S.Seth, Advs.
                   versus
NAVYUG SCHOOL EDUCATIONAL SOCIETY & ORS
                                                        ..... Respondents
                   Through:      Mr. B.B.Gupta with Mr. Anshul Mittal, Advs. for
                                 R-1.
                                 Mr. Ajandra Sisodiya, Adv. for R-3 and 38.

Ms. Maninder Acharya, Adv. for Union of India.

Mr. N.D.Kaushik for Mr. Arun Bhardwaj, Adv.for R-2.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not? Yes.

VALMIKI J. MEHTA, J

1. Both the aforesaid writ petitions are being disposed of by this

common judgment as facts are more or less identical and the issues are identical.

There are two main issues which arise in the writ petitions by which the petitioners

seek appointment to the post of primary teacher (Humanities) and which are firstly

according to the petitioners they qualified in the recruitment process entitling them

to appointment, and, secondly that the petitioners are entitled to be regularized as

they have worked on contractual basis for a long period of time.

W.P(C) No. 5592/2010

2. The petitioner was appointed as a primary teacher (Humanities) on

contract basis in the respondent no.1-school on 2.7.2002 which is managed by

respondent no.2-NDMC. The contract period of the petitioner was extended from

time to time when in the year 2008, the respondents decided to initiate regular

recruitment process for employment of the primary school teachers in the

respondent no.1 The petitioner applied for being appointed as per the regular

recruitment process but respondent no.1 declared the petitioner unsuccessful in the

recruitment process on the ground that the petitioner did not fulfill the requirement

of being a graduate in the requisite subjects as prescribed by the recruitment rules.

3. The reliefs which have been prayed for in the present writ petition read as

under:-

"(a) To quash and set aside the selection list dated 26.5.2009, 31.7.2009 and 28.10.2009 and consequent appointments to the post of PRT(Humanities) made in terms of advertisement dated 17 th June 2008 by Respondent No.1 and 2.

(b) Direct the Respondent No.1 to regularize the Petitioner‟s service against the post on which she was appointed as PRT (Humanities) by Respondent No.1 in 2002 and continued working till 2009."

4. Taking prayer (b) first of the claim of the petitioner to seek

regularization as she was working as a PRT (Humanities) for a long period of time

and also thus had legitimate expectations of being regularized, it may be said that

this issue is no longer res integra and has been decided against the petitioner by the

Constitution Bench judgment of the Supreme Court in the case of Secretary, State

of Karnataka & Ors Vs. Umadevi & Ors. 2006(4)SCC 1 . The Supreme Court in

the case of Umadevi's (supra) has laid down the following ratio:-

(i) The questions to be asked before regularization are:-

(a) Was there a sanctioned post (court cannot order creation of posts because finances of the state may go haywire), (ii) is there a vacancy,

(iii) are the persons qualified persons and (iv) are the appointments through regular recruitment process of calling all possible persons and which process involves inter-se competition among the candidates

(b) A court can condone an irregularity in the appointment procedure only if the irregularity does not go to the root of the matter.

(ii). For sanctioned posts having vacancies, such posts have to be filled by regular recruitment process of prescribed procedure otherwise, the constitutional mandate flowing from Articles 14,16,309, 315, 320 etc is violated.

(iii). In case of existence of necessary circumstances the government has a right to appoint contract employees or casual labour or employees for a project, but, such persons form a class in themselves and they cannot claim equality(except possibly for equal pay for equal work) with regular employees who form a separate class. Such temporary employees cannot claim legitimate expectation of absorption/regularization as they knew when they were appointed that they were temporary inasmuch as the government did not give and nor could have given an assurance of regularization without the regular recruitment process being followed. Such irregularly appointed persons cannot claim to be regularized alleging violation of Article 21. Also the equity in favour of the millions who await public employment through the regular recruitment process outweighs the equity in favour of the limited number of irregularly appointed persons who claim regularization.

(iv) Once there are vacancies in sanctioned posts such vacancies cannot be filled in except without regular recruitment process, and thus neither the court nor the executive can frame a scheme to absorb or regularize persons appointed to such posts without following the regular recruitment process.

(v) At the instance of persons irregularly appointed the process of regular recruitment shall not be stopped. Courts should not pass interim orders to continue employment of such irregularly appointed persons because the same will result in stoppage of recruitment through regular appointment procedure.

(vi) If there are sanctioned posts with vacancies, and qualified persons were appointed without a regular recruitment process, then, such persons who when the judgment of Uma Devi is passed have worked for over 10 years without court orders, such persons be regularized under schemes to be framed by the concerned organization.

(vii). The aforesaid law which applies to the Union and the States will also apply to all instrumentalities of the State governed by Article 12 of the Constitution.

5. Therefore, the claim of the petitioner to seek regularization or

permanence in employment on the ground of having worked as a contractual

teacher for a number of years is hit by the ratio of Umadevi's case (supra) and has

to be rejected. The contention of the petitioner that the respondent no.2 had

framed a scheme for regularization to the post of contractual teachers such as the

petitioner is also hit by the ratio of Umadevi's case wherein the Constitution Bench

of the Supreme Court has specifically said that no scheme can be framed by the

Union/State/instrumentalities of the State which will violate the constitutional

mandate of employment by the Government/State through the regular recruitment

process. I may note that the respondent no.1 has denied that any such decision was

taken of regularizing contractual teachers by the committee constituted by the

respondent no.2, however, even assuming that the committee of the respondent

no.2 took such decision of regularizing contractual teachers, the said decision

would be quite clearly illegal in view of the ratio in Umadevi's case.

6. The relief claimed by the petitioner of regularization on the basis of

continuous service and legitimate expectation is therefore misconceived and

rejected.

7. The second issue requiring decision in the present case is as to

whether the petitioner was qualified in terms of the recruitment rules for being

appointed inasmuch as the petitioner claims that she was qualified whereas the

respondent no.1 denies the fact.

8. The relevant recruitment rules in this regard read as under:-

RECRUITMENT RULES FOR THE POST OF PRIMARY TEACHERS(Humanities)

1. Name of post Primary Teacher (Humanities)

2. No. Of Posts

3. Classification Group „C‟

4. Scale of Pay 5500-175-9000

5. Whether selection of non-selection post Selection

6. Age limit for direct recruitment Below 30 years for female candidates below 40 years and relaxable in case of SC/ST as

per Govt. Rules

7.

a) Direct Recruitment a. High School Bachelor's Degree having not less than 55% marks in any of the following:

English, Hindi, Geography, Political Science, Mathematics, History

b. Teacher's Training degree

2 years experience of teaching in concerned subject in Primary/Higher Classes from a Govt./recognized school

OR

B.E. Ed. Having not less than 55% marks alongwith 2 years experience of teaching in concerned subject in Primary/Higher classes from a govt./recognized school

Note: 5% relaxation will be given to SC/ST candidates in percentage of marks

b) For departmental recruitment Not applicable

8. Whether age/qualification prescribed for direct Not applicable recruitment will apply in case of promotions

9. Period of Promotion 1 year

10. Method of recruitment whether by direct or by Direct recruitment.

promotion/deputation/transfer. Number of vacancies to be filled up by various methods.

11. In case of recruitment by Not Applicable promotion/deputation/transfer grades from which promotion/deputation/transfer to be made

12. If DPC exists, what is its composition Not Applicable

13. Remarks, if any

9. A reference to the recruitment rules shows that candidate must have a

bachelor degree. The bachelor‟s degree must be in any of the subjects being

English, Hindi, Geography, Political Science, Mathematics and History. The

candidate must have 55% marks or more in the bachelor‟s degree of the concerned

subject.

10. The petitioner admittedly has a bachelor‟s degree in Philosophy i.e a

subject which is not included in the recruitment rules which only provides for a

bachelor‟s degree in English, Hindi, Geography, Political Science, Mathematics

and History. Though it was sought to be canvassed on behalf of the petitioner that

any bachelor‟s degree is enough provided a candidate has 55% marks in any of the

subjects during bachelor‟s degree of Hindi, English, Geography, Political Science,

Mathematics or History, but the contention is misplaced inasmuch as, the

recruitment rules require two years experience of teaching in "concerned subject"

and which therefore removes any doubt with regard to the fact that the bachelor‟s

degree must be in the concerned subject of English or Hindi or Geography or

Political Science or Mathematics or History. Admittedly, the petitioner has a

bachelor‟s degree in Philosophy which is not a subject under the relevant

recruitment rules and therefore, the petitioner would not be qualified under the

recruitment rules.

11. Petitioner has also raised a contention that respondent No.8-Smt.

Poonam Mathur is not qualified for the post but was appointed and therefore the

petitioner should also be appointed. It may be noted that respondent No.8-Smt.

Poonam Mathur has a graduation degree in Humanities. If that be so, the

respondent No.8 would fall under either Political Science or History because the

course of B.A. (Humanities) is a general course with respect to Humanities

subjects and the post in question is Primary Teacher (Humanities). In any case, I

need not go in detail on this aspect inasmuch as if otherwise the petitioner had

qualified according to the recruitment rules and she was not being appointed and

the respondent No.8-Smt. Poonam Mathur was illegally appointed, then, I would

be required to go into this aspect in detail, however, I express no opinion one way

or the other on the appointment of respondent No.8-Smt. Poonam Mathur and such

an issue can only be examined in case the candidate who was otherwise first on the

merit list for being employed after Smt. Poonam Mathur but was not appointed,

and such candidate had come to this Court by filing a petition.

12. Therefore, the petitioner did not qualify according to the recruitment

rules inasmuch as she did not have a Bachelor‟s degree in either English or Hindi

or Geography or Political Science or Mathematics or History. Once the petitioner

did not have the necessary qualifications, there does not arise any question of

granting relief to the petitioner for seeking a direction for an employment with

respondent No.1 as this direction claimed would be in violation of the recruitment

rules.

13. The writ petition of the petitioner-Ms. Seema Chaturvedi being

W.P.(C) No. 5592/2010 is accordingly dismissed, leaving the parties to bear their

own costs.

W.P.(C) No.5738/2010

14. The legal issues in the present case would stand decided against the

petitioner in view of the reasoning given while dismissing W.P.(C) No.5592/2010.

So far as the factual aspect of qualification as per the

recruitment rules is concerned, admittedly the petitioner only has a degree in

B.Com and a degree in B.Com is not a degree either in English or Hindi or

Geography or Political Science or Mathematics or History and in either of which

subjects, a graduation degree was required before a person could be said to be

qualified for being appointed as a Primary Teacher (Humanities). The petitioner

Ms. Shaily Sapra therefore neither can claim regularization on the basis of her past

contractual employment in view of the ratio in the case of Umadevi (supra) and

nor can she claim employment as per the recruitment process inasmuch as she was

not qualified as per the recruitment rules as applicable.

15. The writ petition of the petitioner Ms. Shaily Sapra being W.P.(C)

No.5738/2010 is also therefore dismissed, leaving the parties to bear their own

costs.

JANUARY 09, 2013                                     VALMIKI J. MEHTA, J.
ib/Ne