Tabita Chand vs Director Of Education And Ors
2013 Latest Caselaw 1399 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Judgment reserved on: 19.03.2013
                               Judgment pronounced on: 21.03.2013

+      LPA 165/2013 and CM No. 4627/2012 (stay)


       TABITA CHAND                                   ..... Appellant
                         Through: Mr Romy Chacko, Adv.


                         versus


       DIRECTOR OF EDUCATION AND ORS              ..... Respondents
                    Through: Mr Feroze Khan, Adv for
                    respondents 2 and 3, Mr Robin Ratnakar David
                    and Mr Azeem Samuel, Advocates for
                    respondent No. 4


       CORAM:
       HON'BLE THE CHIEF JUSTICE
       HON'BLE MR. JUSTICE V.K. JAIN


V.K. JAIN, J.

1. The appellant/writ petitioner was working as a PGT in B.M.Gange

Girls Senior Secondary School, which is under the management and

control of respondents No.2 and 3. The case of the appellant is that in a

meeting of the Departmental Promotion Committee, held on 1st July,

2008, a recommendation was made to the Managing Committee of the

school to promote her to the post of Principal and the Managing

Committee, in its meeting held on 3rd July, 2008, taking into

consideration the recommendation made by the DPC, resolved to accept

the aforesaid recommendation and appoint her as the Principal of the said

school with effect from 1st July, 2008. The appellant joined as Principal

of the school with effect from 1st July, 2008. A communication was sent

by the Manager of the school to the Directorate of Education, seeking

approval of the said Directorate, to the promotion of the appellant to the

post of Principal. Vide communication dated 15th July, 2008, Directorate

of Education informed the Manager of the school that the decision of the

Managing Committee to promote the appellant to the post of Principal in

the DPC held on 1st July, 2008, had been disapproved by the Competent

Authority. WP(C) No.7585/2008 was then filed by the appellant seeking

quashing of the aforesaid communication dated 15 th July, 2008. She also

sought a direction fixing her new pay scale as the Principal of the school.

Yet another direction sought by her was to restrain the respondents in the

writ petition from removing her from the post of Principal.

2. Respondents No.2 and 3 filed reply contesting the writ petition.

They, inter alia, alleged that the appellant had misrepresented to the

Managing Committee that the other senior teachers had given their No

Objections, which subsequently turned out to be incorrect, since the No

Objections were obtained under duress and were subsequently withdrawn

by those teachers and therefore the Managing Committee appointed

respondent No.4 Mrs. M.M.Philip as the Officiating Principal and she

continues to officiate as the Principal of the school. This was also the

case of respondents No.2 and 3 that the earlier Resolution was withdrawn

by them by way of a subsequent Resolution dated 27th August, 2009 and

therefore the process of recommending the name of the appellant stood

annulled.

3. The learned Single Judge, vide impugned order dated 26 th

February, 2013 took the view that the dispute was, in fact, between the

appellant and the school, in which Directorate of Education had no role to

play and therefore the appropriate remedy for the appellant was to file an

appeal before the Delhi School Tribunal constituted under Delhi School

Education Rules 1973. Being aggrieved, the appellant/writ petitioner is

before us by way of this appeal.

4. Rule 98 of Delhi School Education Rules 1973 does mandate prior

approval of Directorate of Education to every appointment made by the

Managing Committee of an unaided school, but the second proviso to the

said Rule expressly excludes from its ambit, a minority aided school. It is

not in dispute that the school in which the appellant was working as a

minority aided school, therefore, no approval of the Directorate of

Education was required for appointment of the appellant as Principal of

the said school. Consequently, the communication seeking such an

approval as well as rejection of approval by the Directorate, both being

misconceived in law are liable to be excluded from consideration.

5. It would be seen from a perusal of the reply to the writ petition

filed by respondents No.2 and 3 that they did not dispute either the

Minutes of the meeting of the DPC held on 1 st July, 2008 or the Minutes

of the meeting of the Managing Committee held on 3 rd July, 2008. The

respondents No.2 and 3 also did not dispute that they had sent a

communication to the Directorate of Education seeking approval for

appointment of the appellant as the Principal of the school.

6. A perusal of the Joining Report submitted by the appellant would

show that in accordance with the recommendations made by the DPC and

the resolution passed by the Managing Committee of the school, she took

charge as the Principal of the school with effect from 01.07.08. The said

Joining Report is counter-signed by the Chairman and the Manager of the

school. The facts that (i) the name of the appellant was recommended by

the DPC for promotion as Principal of the school (ii) the recommendation

was accepted by the Managing Committee of the school with effect from

01.07.2008 (iii) a letter was sent by the school to the Directorate of

Education, seeking permission for appointment of the appellant as the

Principal of the school and (iv) the appellant took charge vide Joining

Report, counter-signed by the Chairman and Manager of the school,

clearly show that the appellant was appointed as the Principal of the

school with effect from 01.07.2008. During the course of arguments, it

was contended by the learned counsel for respondents 2 to 4 that in fact

the appellant was appointed on officiating basis and not on regular basis.

However, the aforesaid contention being contrary to the record,

comprising the recommendations made by the DPC, the resolution passed

by the Managing Committee, the communication sent to the Directorate

of Education and the Joining Report counter-signed by the Chairman and

Manager of the school, is absolutely without any factual basis and is

liable to be rejected. We have no hesitation in holding that the appellant

was regularly appointed as Principal of the school by a resolution passed

by the Managing Committee on the basis of the recommendations made

by the DPC.

7. It was pointed out by the learned counsel for the respondents 2 to 4

from the Minutes of the DPC meeting held on 01.07.2008 that three

members, whose names appear at Serial No. 3 to 5, had observed that the

senior most should have been considered for promotion to the post of

Principal, whereupon, the school authorities informed the DPC that

teachers at serial No. 1 and 2 had refused the promotion in writing,

whereas the teachers at serial No. 3 did not sign. A perusal of the

aforesaid minutes would show that DPC comprised as many as seven

members. Even if it is presumed that three members of the DPC wanted

senior most teachers to be promoted as the Principal, the remaining four

members, who constituted majority of the DPC, had unequivocally

recommended the name of the appellant for appointment to the post of

Principal.

8. It was contended by the learned counsel for the respondents 2 to 4

that the appellant/petitioner having been already been removed from the

post of Principal and respondent No. 4 having appointed as the

Officiating Principal, the only remedy available to the appellant/petitioner

was to approach Delhi School Tribunal. In support of their contention

that the appellant was removed from the post of Principal, the learned

counsel for these respondents relied upon a resolution stated to have been

passed in the meeting of the Managing Committee held on 27.08.2009.

Admittedly, no order was issued by the respondents 2 and 3, removing

the appellant from the post of the Principal of the school. Mere passing a

Resolution in the meeting of the Managing Committee did not constitute

an order removing the appellant from the post of the Principal unless a

communication, informing the appellant of the aforesaid Resolution

removing her from the post of the Principal, was actually issued and

served upon the appellant. Had respondents 2 and 3 issued and served an

order upon the appellant, removing her from the post of Principal of the

school, only then, she could have a cause of action to approach the Delhi

School Tribunal. Therefore, in our opinion, the view taken by the learned

Single Judge that the appellant/writ petitioner was required to approach

the said Tribunal is not correct in law.

9. It was lastly submitted by the learned counsel for the appellant that

since respondent No. 4 is already officiating as the Principal of the

school, the said post is not available. We, however, cannot accept the

contention. In the absence of an order removing the appellant from the

post of Principal to which she was duly appointed on regular basis, the

appointment of respondent No. 4 to the said post even on officiating basis

was null and void and non est in the eyes of law and liable to be

altogether ignored. The appellant/writ petitioner, in our view, has all

along continued to hold the post of the Principal in law, even if she

actually did not perform the functions of the Principal of the school after

a certain date. -

10. For the reasons stated hereinabove, we are of the view that the impugned order dated 26.02.2013 cannot be sustained. The said order is accordingly set aside. The order dated 15.07.2008, issued by the Directorate of Education, being contrary to the provisions of Rule 98 of Delhi School Education Rules is hereby quashed. We hereby direct that the appellant/writ petitioner being the duly appointed Principal of the school shall be entitled to discharge all the functions and duties and exercise all the powers applicable to the post of Principal of the school. She would also be entitled to draw salary in the pay scale applicable to the post of the Principal. We, however, make it clear that the order passed by us shall not come in the way of respondents 2 and 3, initiating any action for

removing the appellant from the post of the Principal of the school in

accordance with the law and on such grounds as are, in law, available to

them in this regard.

The pending application also stands disposed of.

There shall be no order as to costs.

V.K.JAIN, J

CHIEF JUSTICE MARCH 21, 2013 ks/bg