Delhi High Court
Birpal Singh vs Lt. Governor (Administrator) ... on 1 November, 2013
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 502/2012 & WP(C) No. 7562/2012
% 1st November, 2013
+ W.P.(C) 502/2012 (item no.18)
BIRPAL SINGH ..... Petitioner
Through: Mr. M.G.Kapoor, Adv.
Versus
LT. GOVERNOR (ADMINISTRATOR) DELHI AND ORS
.....Respondents
Through: Mr. Sanjeev Sahay and Mr. Jhum
Jhum Sarkar, Advocates for R-
2/DOE.
Mr. K.K.Sharma, Sr. Adv. with Mr.
Rajiv Bakshi and Ms. Bh anita
Patowary, Advocates for R-4.
+ W.P.(C) 7562/2012 (item no.19)
BINU CHAUDHARY ..... Petitioner
Through: Mr. K.K.Sharma, Sr. Adv. with Mr.
Rajiv Bakshi and Ms. Bhanita
Patowary, Advocates.
versus
LT. GOVERNOR OF DELHI (ADMIN.) & ORS ..... Respondents
WPC 502/2012 & 7562/2012 Page 1 of 23
Through: Ms. Zubeda Begum, Standing counsel
of GNCTD with Ms. Sana Ansari,
Advocate for R-1 and 2.
Mr. M.G.Kapoor, Advocate for
applicant/non-petitioner.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? Yes
VALMIKI J. MEHTA, J (ORAL)
1. Both these writ petitions are being disposed of by this common
judgment inasmuch as effectively one is counter to other, i.e either the
petitioner-Ms. Binu Chaudhary in WP(C) No. 7562/2012 succeeds in her
claim for continuation to the post of vice-principal pursuant to her
appointment by the DPC of the school (Nutan Marathi Senior Secondary
School) dated 27.1.2012 or Ms. Binu Chaudhary‟s claim will be dismissed
as those minutes of the DPC will be illegal, and as so stated by the Director
of Education in its communications including the last communication dated
16.11.2012 (and which is impugned by the petitioner in W.P.(C) No.
7562/2012). This order dated 16.11.2012 of the Director of Education reads
as under:-
"No. F/28/2012/Aided/09/1980-1989 Dated: 16.11.12
ORDER
Promotion and Appointment of Ms. Binu Chaudhary, PGT
to the post of Vice Principal in Nutan Marathi Sr. Sec. School, Pahar
Ganj, New Delhi not being in accordance with the Recruitment Rule
and being in the violation of Rule 97 of DSEAR 1973 is hereby
rejected with retrospective effective from the date of her joining.
This issues with prior approval of Worthy Director of
Education vide U.O. No. 10550/DE dated 14/11/2012
Review DPC be conducted to fill up the post.
D.D.E.(C/ND)
Plot No.5, Jhandewalan"
2. Petitioner in W.P.(C) No. 502/2012 Sh. Birpal Singh was one
other candidate who was considered in DPC meeting of the school dated
27.1.2012, but Ms. Binu Chaudhary, the petitioner in W.P.(C) No.
7562/2012 was preferred over him.
3. At this stage, it would be also useful to refer to the Minutes of
the DPC Meeting dated 27.1.2012, inasmuch as certain arguments have been
addressed in this regard by the counsel appearing for Ms. Binu Chaudhary
the petitioner in W.P.(C) No. 7562/2012, and accordingly, the same is
reproduced as under:-
MINUTES OF THE D.P.C.MEETING HELD ON 27.01.2012 IN THE
SOCIETY'S OFFICE TO FILL THE VACANT POST OF VICE
PRINCIPAL IN THE SCHOOL.
A meeting of D.P.C. constituted vide letter No. z-28/2011/461 dated
14.07.2011 was held on 27th January, 2012 at 12.30 P.M. in the Society‟s
Office to fill the vacant post of Vice Principal fell vacant due to promotion
of Sh. S.K.Sharma, Vice Principal on 10.12.2009. The Departmental
Promotion Committee was conducted on the basis of 2009-10 since, the
post of Vice Principal fell vacant.
The meeting was prescribed over by Dr. S.P.Gawande, Chairman
School Management Committee.
The following members were on the panel of D.P.C. meeting:-
1. Dr. S.P.Gawande, Chairman, DME&CS
2. Mr. S.C.Gupta, Asstt. Director of Education (Estate) D.E.Nominee
3. Mr. S.K.Mimmi, Dy. Education Officer, Zone-28.
4. Mr. R.P.S.Gautam, Principal, S.B.V., Pahar Ganj, New Delhi
(H.O.S)
5. Smt. Rani Devi, Principal, S.K.V.Zeenat Mahal, No. 1, Kamla
Mkt. N.D.( Subject Expert)
6. Mr. V.G.Mantute, General Secretary, DME&CS
7. Dr. Makrand Joshi, Education Secretary, DME&CS
D.P.C. considered the names of the following eligible candidates
under zone of consideration.
1. Ms. Binu Chaudhary, P.G.T. (Painting)
2. Mr. Birpal Singh, P.G.T.(Maths)
3. Mrs. Shubhanda Bapat, P.G.T.(Hindi)
4. Mr. Gulshan Nagpal, P.G.T.(Physics)
5. Mrs. Aruna Pathak, P.G.T.(Biology)
The Committee reviewed Seniority List, Five Year A.C.R‟s,
Result, Work and conduct report, integrity Certificate, Extra Ordinary
Leaves Certificates required for promotion of the eligible candidates and
found no court case/vigilance case pending against candidates/post in the
school.
The society received W.P.(C) No. 502/2012 & C.M. No. 1064 in
W.P.(C) No. 502/2012-Birpal Singh Vs. Lt. Governor (Administrator),
Delhi & Others in Hon‟ble High Court of Delhi at New Delhi, approved
by the Hon‟ble High Court asking to reply the petition by 17th July, 2012.
Accordingly, reply will be sent to the Hon‟ble High Court and directed by
The Directorate of Education in Post fixation Sanction letter No.
DE.22/11/PFC/Aided/2009-10/969-972 dated 25.06.2010, the post of Vice
Principal was abolished. However, the post was allowed/restored with
restrospective effect, i.e. 2009-10 Vide Post Fixation Sanction letter No.
DE.22/11/PFC/Aided/2009-10/70-75 dated 21.03.2011.
The School Management Committee meeting held on 21.01.2012
also resolved that recruitment rules for the post of Vice Principal were
relaxed as per the Recruitment Rules of the Directorate of Education in the
case of candidate belonging to the same school i.e. B.Ed. Degree. After
evaluating the A.C.R.‟s and overall performance of all the five candidates
recommend the name of Miss Bindu Choudhary for the post of Vice
Principal in the Nutan Marathi Senior Secondary School, Pahar Ganj, New
Delhi-110055. No Financial Benefit will be allowed for the selected
candidate till the date of joining."
4. The issue in the present case turns upon entitlement for
appointment as a vice-principal of the school, and the eligibility criteria
with respect thereto. The eligibility criteria which is in issue is of
whether there is required or not a qualification of B.Ed degree for being
appointed as a vice principal. Whereas petitioner in W.P.(C) No.
7562/2012 Ms. Binu Chaudhary states that this qualification is not
required, however, the Director of Education as also the petitioner in
W.P.(C) No. 502/2012 Sh. Birpal Singh states that it is required.
5. I may also state that the eligibility criteria for appointment as
vice-principal of the school has to be seen in terms of the letter of the
Director of Education dated 16.5.2011 as of December, 2009, and which
position as of today is final. This letter of the Director of Education dated
16.5.2011 reads as under:-
"OFFICE OF THE D.D.E., DISTRICT CENTRAL/NEW
DELHI PLOT NO.5, JHANDEWALAN, NEW DELHI
Ref. No.Z/28/2011/Aided/NM-2/278 Dated: 16-05-2011
To,
The Chairman/Manager/HOS,
Nutan Marathi, Senior Secondary, School,
Pahar Ganj, New Delhi-110055.
Subject: D.P.C. for the post of Vice Principal
Sir,
Please refer our letter vide No.Z-28/252 dated 4-05-2011
in reference to representation of Shri Birpal Singh. The
Management of your school has failed to give any reply
explaining the ground and reasons for non conduction of D.P.C
for the post of Vice Principal since December, 2009 when the
post fell vacant, despite several representation of Shri Birpal
Singh continuously since December, 2009 as per rule enclosed.
It is apparent that Management has not only ignored the
disposal of representation of Shri Birpal Singh since December
2009 but also the Management has failed to fulfill the claim of
employees and violated the Rule 64(1) (i) and 64(1) (g) of
D.S.E.A.R 1973 which further constraint to invoke action
against Management which may be reduction of Grant-in-Aid
as per Proviso of D.S.E.A.R‟1973.
Now therefore the Management of Nutan Marathi Senior
Secondary School is hereby directed to conduct the D.P.C for
the post of Vice-Principal w.e.f. December, 2009 to avoid
further contravention of Rule 64(1)(i) and 64(1) (g) and nullify
the grievances of employees in terms of
embarrassment/harassment.
It is issued as per approval of D.D.E (C & N.D). With
issuance of this letter all the representations of Shri Birpal
Singh stand disposed of.
Sd/-
Education Officer"
6(i) Therefore, let us now examine that whether there was the
requirement/eligibility criteria of having a B.Ed degree for being appointed
to the post of vice-principal in the school as in December, 2009. I may put
on record at this stage that the school is an aided school i.e 95% of the
finances of the school are provided by the Govt. of NCT of Delhi through
the Director of Education.
(ii) There are a total of four statutory notifications of the Director
of Education which have been relied upon by the respective parties and
therefore I am reproducing the relevant portions of each of them hereinafter.
The first notification in this regard of the Director of Education is dated
19.4.1977. The second is dated 7.4.1980. The third is dated 29.1.1991, and
the fourth is dated 19.2.1991.
7(i) The relevant portion of the notification dated 19.4.1977 with
respect to the appointment of vice-principal reads as under:-
2.(i) Vice III General 650-30-740-35-810 Selection Not Not Applica
Principal. Central EB 35-880-40- applicable ble
Govt. Hr. Services 1000-EB 40-1200
Secondary Group „B‟
Schools Gazetted
Male-48
Female-53
(ii) Vice
Principal,
Teachers
Training
Institute for
Male
Candidates-
One Post.
(iii)
Headmaster,
Government
Adult(Eveni
ng) Schools;
for Male
Candidates-
9 Posts
Note: Male
or female
candidates
will be
considered
for
appointment
to the posts
meant for
such
candidates
only.
Not 2 years By Promotion: Group „B‟ D.P.C. Consultatio
applicable promotion (The seniormost n with the
1.(a) Post Graduate officer will U.P.S.C not
Teachers (Special preside over the necessary
Cadre.) DPC and the unless it is
remaining will be intended to
(b) Post Graduate Members): relax, at
Teachers any time,
(Administration (i) Finance the
Cadre). Secretary, Delhi provisions
Administration, of the
2.Headmasters, Delhi. recruitment
Middle Schools. rules.
(ii)
3.Assistant District Administrative
Inspectors of Secretary or
Schools. Labour
Commissioner, or
4. Assistant Social both.
Education Officers
with 5 years‟ (iii) Shri s.
regular service in Mulaichamy,
the respective Joint Director
grade and holding Transport., Delhi
Master‟s Degree of Admn. Delhi.
a recognized
University or (iv) Deputy
equivalent. Secretary
(Service), Delhi
Note: The Admn. Delhi
promotion quota
for promotion to
the post f Vice
Principal etc. from
Post Graduate
Teachers (Special
Cadre) and Head-
masters, Middle
Schools vis-a vis
Post-graduate
Teachers
(Administration
Cadre) will be
fixed
proportionately as
calculated on the
last day of the last
academic session.
(ii) The relevant portion of the notification dated 7.4.1980 with
respect to appointment of a vice -principal reads as under:-
Name of the post Scale of pay Whether Age limit for direct Educational Qualifications
Selection post or recruits
non-selection
Vice Principal Rs.650-30- Selection (a) Not exceeding 45 Essential:-
740-35-810- years (relaxable by 5
EB-35-880- years for a candidate (a) Master‟s Degree with at least second
40-1000- belonging to Scheduled Division from a recognized University or
EB-40-1200 Caste/Scheduled Tribes. equivalent.
Age relaxable in case of
the candidates belonging (b) Degree in Teaching/Education from a
to the same school recognised University or equivalent.
(c) 10 years experience of teaching as TGT or
5 years experience of teaching as PGT.
*Condition of second division relaxable in case
of candidates belonging to the same school and
also in case of Scheduled Caste/Scheduled
Tribes
Desirable:
(i) Experience in administrative charge of a
recognised High/Hr. Sec. School/Intermediate
College.
(ii) Doctorate Degree-
(iii) M.Ed. Degree from a recognised
University.
(iii) The notification dated 29.1.1991 reads as under:-
R.R.for the post of Vice-Principal
Notification F.32/1/84/Gen./78-80/3721-4161, dt.25-02-1980 and
Amended Vide No.F.32/1/84/Gen./91/98-400, dt. 29-01-1991
1.Name of thepost :Vice-Principal
2. Scale of Pay : Rs.650-30-740-35-810 EB 35-880-40-1000
EB-40-1200(Pre-revised)Rs.7,500-12,000 (Revised as per V
C.P.C)
3. Whether selection post or non- : Selection
selection
4. Age limit for direct : (a) Not exceeding 45 years relaxable by 5 years for a
recruitment candidate belonging to Scheduled Caste/Scheduled Tribes.
(b) Age relaxable in case of the candidate belonging to the
same school.
Note: The crucial date for determining the age limit shall be
the closing date for receipt of application from the candidates.
5.Educational Qualification : (a) Master Degree with at least IInd Division from a
recognised University or equivalent.
Condition of second division relaxable in the case of
candidates belonging to the same school and also in case of
Scheduled Castes, Scheduled Tribes
(b) Degree in Teaching/Education from a Recognised
University or equivalent.
(c) 10 years experience of teaching as TGT or 5 years
experience of teaching as PGT.
Desirables:
(i) Experience in Administrative charge of a recognised
High/Hr. Sec. School, Intermediate College.
(ii) Doctorate degree.
(iii) M.Ed. degree from a recognised University.
6. Whether age and educational : (i) Age: No.
qualifications prescribed for Qualification: Yes except/indicated in as Col. No.5
direct recruits will be apply in Note: Competent Authority may relax any of the essential
the case of promotion. qualifications in case of candidate belonging to the same
school after recording reasons therefore.
7. Period of probation if any : One year
8. Method of recruitment : By promotion failing which by direct recruitment.
9. In case of : Promotion out of
promotion/deputation/transfer (i) PGT/HM of the same school will at least 5 years
grades from which experience as PGT/HM.
deputation/promotion to be (ii) PGT with at least 10 years experience as TGT in
made. case of Secondary Schools.
10. If a Selection committee : The Selection Committee as prescribed under the Delhi
exists, what is its composition School Education Act & Rules.
(iv) The relevant portion of the notification dated 19.2.1991 reads as
under:-
"No.F.27(7)/88-Edn./295-In exercise of the powers conferred by the proviso
to article 309 of the Constitution of India, read with the Government of India,
Ministry of Home Affairs, Notification No. F.24/78/68-DH(S), dated 24-9-
1968, the Administrator of the Union Territory of Delhi, after previous
consultation with the Union Public Service Commission, New Delhi, is
pleased to make the following amendments in the Schedule annexed to this
Administration Notification No. F 2(6)/70-S.II/Part dated 20th April, 1977,
containing the rules regarding he method of recruitment and qualification
necessary for appointment to the post of (i) Vice-Principal, Government
Higher Secondary Schools(Male or Female), (ii) Vice-Principal, Teachers
Training Institutes (for Male candidates) (iii) Head Master, Government
Adult (Evening) Schools (for male candidates) in the Directorate of
Education, Delhi Administration, Delhi, namely:-
AMENDMENT
In the said Schedule, for the existing entries under columns 1(Name of post),
2(No. of post), 3 (Classification), 4(Scale of Pay). 7(Whether benefit of
added year of service admissible under rule 30) of the C.C.S (Pension) Rules,
1972, 12(In case of rectt. By promotion/deputation/transfer, grades from
which promotion/deputation/transfer to be made) and 13(If a DPC exists,
what is its composition, the following shall be substituted, namely:-
"Column 1-(i) Vice-Principal, Government and Senior Secondary Schools,
Male-337. Female-315.
(ii) Vice-Principal, Teachers Training Institute (For Males-1).
(iii) Headmaster. Government Adult (Evening) Schools (For Male-12).
Column 1-665. (1990) Subject to variation dependent on work load.
Column 3-GCS Group „B‟ Gazetted Non-Ministerial.
Column 4- Rs.2000-60-2300-75-2375-EB-75-2825-EB 75-3200-3300-EB-
100-3500.
Column7.- Not applicable
Column 12- Promotion:
1. (a) Post Graduation Teachers(Spl. Cadre) excluding PGT
Physical Education: or
(b) Post Graduate Teachers (Admn. Cadre) excluding PGT Physical
Education: or
(c) Post-Graduate Teachers (Tech. Education) or
2. Head Master, Middle Schools.
with 3 years regular service in the posts under the Delhi
Administration and possession at least :Master‟s Degree from a
recognised University or equivalent.
Column 13- Group „B‟ D.P.C (for promotion)
The senior most officers will preside over the DPC and the remaining
will be Members):
(i) Finance Secretary, Delhi Administration, Delhi.
(ii) Administrative Secretary or Labour Commissioner or both.
(iii) Joint Director (Transport), Delhi Administration , Delhi.
(iv) Dy. Secretary (Transporrt), Delhi Administration Delhi."
8. On behalf of Ms. Binu Chaudhary, petitioner in W.P.(C) No.
7562/2012, the following arguments are urged before this Court:-
(i) In view of the recommendation of the DPC of the school dated
27.1.2012, Ms. Binu Chaudhary gets a right to be appointed and to continue
as a vice-principal of the school as per Rule 97 of the Delhi School
Education Rules, 1973 and the judgment of a Division Bench of this Court
in the case of Chandra Mohan Gururani Vs. Director of Education & Ors.
137(2007) DLT 323 (DB). It is argued further as regards this aspect that
presence of the nominee of the Director of Education in the DPC dated
27.1.2012 has the effect of granting deemed relaxation/approval under Rule
97 of the Director of Education.
(ii) The circular of 29.1.1991 is argued to be applicable, and which, does
not require the eligibility criteria of a B.Ed degree for appointment to a post
of vice-principal. The notification dated 19.2.1991 is argued to be
applicable not only as providing for qualifications for appointment to the
post of vice-principal in government schools, but also for each and every
senior secondary school including aided schools, and therefore it is argued
that no requirement exists of a person to have B.Ed qualification for being
appointed as a vice-principal as per this notification.
(iii) As per Rule 100(c) read with Rule 102 of the Delhi Education Rules,
1973, what are the requirements for appointment as a vice-principal in the
government schools will apply to appointment to the post of vice-principal
even in schools which are not government schools but are aided schools
such as the subject school.
(iv) Ms. Binu Chaudhary in the year 2010, and before conduct of the DPC
on 27.1.2012, had already obtained B.Ed degree and therefore, it cannot be
said that she was not eligible for being appointed as a vice-principal.
(v) It is argued that Ms. Binu Chaudhary cannot be prejudiced at her
advanced stage of her career because when she was appointed as PGT
(Painting), on the date of her appointment as PGT, there was no requirement
that she should have a B.Ed degree for being appointed as a PGT.
9. On behalf of the petitioner, in W.P.(C) No. 502/2012 the
aforesaid arguments are rebutted, and his stand is supported by similar
arguments urged on behalf of the Director of Education, and both of whom
pray for dismissal of the writ petition of Ms. Binu Chaudhary and for
upholding the communications of the Director of Education ending with the
communication dated 16.11.2012 rejecting with retrospective effect the
appointment of Ms. Binu Chaudhary as vice-principal of the school.
10. In my opinion, the arguments urged on behalf of the petitioner
in W.P(C) No. 7562/2012 namely Ms. Binu Chaudhary carry no weight and
the writ petition filed by her is liable to be dismissed. The petition of Sh.
Birpal Singh is allowed to the extent stated hereinafter. I would now take up
each of the arguments urged on Ms. Binu Chaudhary‟s behalf and deal with
the same alongwith the responses given to the same by the counsels for Mr.
Birpal Singh and the Director of Education.
11(i). The first argument urged on behalf of Ms. Binu Chaudhary was
that she by virtue of the ratio in Chandra Mohan's case (supra) taken with
the recommendations of DPC meeting dated 27.1.2012 would stand
appointed as the vice-principal by giving of deemed relaxation by the
Director of Education in terms of Rule 97. This argument in my opinion
does not have any merit because the facts of Chandra Mohan's case (supra)
show that all that was observed and held in the said judgment was that a
person who is not eligible can be considered by the selection committee of
the school, and it is wrong for a single judge of this Court to deny to a
candidate consideration by a DPC for appointment inasmuch as the Director
of Education can always in terms of Rule 97 subsequently grant relaxation.
In the facts of the present case, however, those observations in Chandra
Mohan's case (supra) cannot apply for two main reasons. Firstly, the DPC
dated 27.1.2012 did not select Ms. Binu Chaudhary as vice-principal and
thereafter recommended for relaxation in the qualification criteria so far as
Ms. Binu Chaudhary not having B.Ed qualification and in fact DPC
incorporated the relevant notifications of Director of Education to say that
qualification of B.Ed degree was not required. This understanding of the
DPC is legally incorrect and the reasons for the same will be given
hereinafter.
(ii) The second reason is that even assuming that DPC
recommended that relaxation be given so far as Ms. Binu Chaudhary is
concerned, however, consistent stand of the Director of Education with
respect to its various communications over different periods and of many
years is that appointment of Ms. Binu Chaudhary to the post of vice-
principal is bad in view of the applicable notifications and thus effectively
denying any relaxation of not having B.Ed degree by Ms. Binu Chaudhary.
I have already referred to the various communications in this regard by the
Director of Education to the school rejecting the stand of the school for
appointing Ms. Binu Chaudhary as vice-principal and which ended with the
order dated 16.11.2012 which has been reproduced above. Therefore, in my
opinion, it is not permissible on behalf of Ms. Binu Chaudhary to urge that
ratio of Chandra Mohan's case (supra) supports her or that there should be
deemed approval by virtue of Rule 97 in the facts of the present case. I may
also note that even by the plain language of Rule 97 there is no question of
deemed approval of relaxation being granted merely and simply because of
presence of Director of Education‟s nominee, and in fact specific approval is
required by the Director of Education as per the language of Rule 97and I
thus refuse to interpret Rule 97 as entitling a deemed approval by simple
presence of the Director of Education in the DPC because after all we are
concerned of standards of education in schools and standards of education
will have a direct bearing with the qualification criteria of appointment of
teachers including vice-principal in this case. Accordingly, the first
argument urged on behalf of Ms. Binu Chaudhary is rejected.
12. The second, third and fourth arguments urged on behalf of Ms.
Binu Chaudhary can be taken together because they require interpretation of
the four notifications which have been reproduced above alongwith the
Rules 100(c) and 102 of the Delhi School Education Rules, 1973.
13. On behalf of Ms. Binu Chaudhary, the notification dated
29.1.1991 which is filed and relied upon cannot be relied upon for the simple
reason that the same contains a typing mistake and gives a wrong impression
as if the requirement of B.Ed qualification is not required for appointment of
vice-principal. The correct notification dated 29.1.1991 has been filed on
behalf of the Director of Education, and which I have reproduced above.
When we see this correct notification dated 29.1.1991, it is shown that
appointment to the post of vice-principal is by selection and as per para 5(b)
a B.Ed degree is a necessary educational qualification which is required for
being appointed as the vice-principal. Even with respect to promotion to
the post of vice-principal as per para-6 of the notification dated 29.1.1991,
the age criteria has only been exempted but other qualifications are required
and which are specified in column 5 of the notification dated 29.1.1991 and
which column 5(b) as already stated requires B.Ed qualification for being
appointed as the vice-principal. Any doubt in this regard is also removed
when we refer to the corresponding paras of the Hindi language notification
dated 21.1.1991and which makes it clear that for the promotion post of a
vice-principal the candidate must have the qualifications stated in para 5 of
the notification. I therefore, cannot agree with the arguments urged on
behalf of Ms. Binu Chaudhary that there is no requirement of B.Ed
qualification for being appointed as a vice-principal in terms of this
notification dated 29.1.1991. It may also be stated that reliance placed on
behalf of Ms. Binu Chaudhary upon column 9 of the notification that the
same entitles a person to be appointed as a vice-principal without B.Ed
degree is an argument without merit because column 9 does not deal with
qualifications required for the post of a vice-principal and it only provides
the grade from which promotion is to be made. The required grade is of
PGT/HM for promotion to the post of vice-principal and this column 9
hence cannot be said to be concerned with qualifications and which are the
subject matter of column 5. What should be the feeder cadre or the grade is a
subject matter totally different from the educational qualifications which are
required for being appointed to the post of vice-principal. The argument
urged on behalf of Ms. Binu Chauhary that the notification dated 29.1.1991
does not require a B.Ed degree is thus rejected, and in fact an observation is
made that both the counsels as also the parties must be careful while giving
typed copies to the Court and the counsels must take pain to ensure that
unintentional or negligent typing mistakes do not occur.
14. So far as the argument urged on behalf of Ms. Binu Chaudhary
that as per column 1 of the notification dated 19.2.1991 is concerned, the
appointment as vice principal is mentioned with respect to all vice-principals
whether of government schools or all other senior secondary schools
including aided schools, this argument once again is absolutely hollow for
two reasons. Firstly, this notification dated 20.4.1977 is for making
amendments to the notification dated 20.4.1977 and which notification is
only for appointment of vice-principal in government senior secondary
schools. Therefore an amendment notification has necessarily to be of the
same subject matter as of the main notification and since the main
notification is for appointment of vice-principal in government higher
secondary schools, the notification dated 19.2.1991 also has to be read as
being applicable not to aided schools but only to government schools.
Further, in this regard I agree with the arguments urged on behalf of counsel
for Director of education that even the language of column 1 of the
notification dated 19.2.1991 basically is with respect to the fact that
reference in the same is to government schools up to the senior secondary
school‟s levels and the language of the notification 19.2.1991 is not for the
purpose of applying the same to the government schools and every other
aided or unaided private senior secondary schools.
15. The first notification dated 19.4.1977 is with respect to
appointment of vice-principals and the qualifications which were required of
vice-principals were those as per the second notification dated 7.4.1980 and
which applied specifically to all re-cognized private schools. Therefore, this
last notification would apply to the school in question which is an aided
school. Accordingly, I hold that the notifications which will apply in these
cases are notifications dated 7.4.1980 and 29.1.1991 and not the
notifications dated 19.2.1991 and the wrongly typed copy of the notification
dated 29.1.1991 relied upon on behalf of Ms. Binu Chaudhary.
16. The arguments urged on behalf of Ms. Binu Chaudhary by
placing reliance on Rules 100(c) and 102 again have no substance for the
reason that those very rules specify that the criteria as specified in those
rules can be changed by appropriate statutory notifications. In this case the
appropriate statutory notifications have been issued and therefore, the
provision of Rule 100(c) that qualifications of appointment with respect to
vice-principal in the government schools should be the same as a
government aided school is therefore not a correct argument. After all,
specific statutory notifications have been issued with respect to
qualifications required for the post of vice-principal in government aided
schools, which cannot be set at naught and especially because by its very
language Rule 100(c) cannot come into application in the present case and
nor can Rule 102 which is linked to Rule 100(c).
17. The next argument which is urged on behalf of Ms. Binu
Chaudhary was that since she received a B.Ed degree in the year 2010 and
hence was qualified as on the date of DPC being 27.1.2012, and was
therefore rightly appointed, is an argument which does not merit acceptance
in view of the letter of the Director of Education dated 16.5.2011 reproduced
above, and which specifically required appointment of vice principal in the
school w.e.f December, 2009 and therefore qualifications of December,
2009 have to be seen and not acquiring of qualifications subsequent to
December, 2009. I may note that Ms. Binu Chaudhary has in no manner
challenged this communication dated 16.5.2011 which was issued by the
Director of Education to the school. Accordingly, I am to look into the
eligibility qualifications for appointment of a vice-principal of an aided
school being the Nutan Marathi Senior Secondary School only as of
December 2009 and when admittedly Ms. Binu Chaudhary did not have the
qualification of B.Ed degree, and hence she is consequentially disentitled for
being appointed as vice-principal.
18. The last argument which is urged on behalf of Ms. Binu
Chaudhary is that she should not be prejudiced because there was no
requirement of a B.Ed degree originally when she was appointed about 20
years earlier as PGT (painting), and in fact which qualification is not even
required today for being appointed as PGT(painting). This argument has to
be rejected for the reason that we have to look into qualifications for
appointment not for a PGT in the present case but those qualifications which
are required for being appointed as a vice-principal and for which post a
B.Ed degree is required. The fact that even today there is no requirement of
a B.Ed degree for appointment as PGT (painting) only supports the
argument on behalf of Director of Education and Sh. Birpal Singh that there
can be separate qualifications for separate posts and thus separate
qualifications for being appointed as teacher/PGT and a vice-principal.
19. In view of the above discussion, the writ petition being W.P.(C)
No. 7562/2012 will stand dismissed. The communications of the Director
of Education dated 19.10.2012, 8.11.2012, 16.11.2012 are upheld. The
recommendation of the DPC dated 27.1.2012 for appointment of Ms. Binu
Chaudhary as a vice-principal is illegal and hence quashed. The school in
question M/s Nutan Marathi Senior Secondary School should now
immediately conduct a fresh DPC within a period of six weeks from today
for appointment of a vice-principal w.e.f December 2009 in terms of the
Director of Education‟s letter dated 16.5.2011. Accordingly, WP(C) No.
502/2012 of Sh. Birpal Singh is allowed to the extent as stated above by
directing conducting of the fresh DPC of the school and W.P.(C) No.
7562/2012 of Ms. Binu Chaudhary is dismissed and interim orders passed
by this Court in any of these cases will merge in the present judgment.
NOVEMBER 01, 2013 VALMIKI J. MEHTA, J.
ib
