Delhi High Court
Chhavi Grover And Ors. vs Navyug School Educational ... on 11 December, 2014
Author: Suresh Kait
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: December11, 2014
+ W.P.(C) 3808/2012 & CM Nos. 7984/2012 & 3474/2013,
W.P.(C) 3809/2012 & CM Nos.7985/2012, 3480/2013, W.P.(C)
3810/2012 & CM Nos. 3478/2013, 11079/2012, 7986/2012 , W.P.(C)
3811/2012 & CM Nos. 7987/2012, 3483/2013, W.P.(C) 3812/2012 &
CM Nos. 7988/2012, 3479/2013, W.P.(C) 3813/2012 & CM
Nos.7989/2012, 11108/2012, 3475/2013, W.P.(C) 3814/2012 & CM
Nos. 7990/2012, 3477/2013, W.P.(C) 3815/2012 & CM
Nos.3481/2013, 7991/2012, W.P.(C) 3816/2012 & CM
Nos.7992/2012, 3482/2013, W.P.(C) 3818/2012 & 3476/2013,
8000/2012 & W.P.(C) 3969/2012 & 8313/2012
CHHAVI GROVER AND ORS. ..... Petitioners
in W.P.(C) No. 3808/2012
MEERA DAWAR AND ORS. ..... Petitioners
in W.P.(C) No. 3809/2012
VIKAS PALIWAL AND ORS. ..... Petitioners
in W.P.(C) No. 3810/2012
MADHU BHANDARI AND ORS. ..... Petitioners
in W.P.(C) No. 3811/2012
RASHMI JS THAPA AND ORS. ..... Petitioners
in W.P.(C) No. 3812/2012
KUSUM SINGH AND ORS. ..... Petitioners
in W.P.(C) No. 3813/2012
SUNIL KUMAR CHHILLAR AND ORS. ..... Petitioners
in W.P.(C) No. 3814/2012
W.P (C) No.3808-16, 3818 & 3969 of 2012 Page 1 of 32
RITU MEHRA AND ORS. ..... Petitioners
in W.P.(C) No. 3815/2012
REKHA AND ORS. ..... Petitioners
in W.P.(C) No. 3816/2012
ARCHANA TANWAR & ORS. ..... Petitioners
in W.P.(C) No. 3818/2012
HARJEET KAUR DADIALA ..... Petitioner
in W.P.(C) No. 3969/2012
Represented by: Ms. Rekha Palli, Ms. Punam
Singh, Mr. Aftab Ali Khan, Ms.
Shruti Munjal, Ms. Ankita
Patnaik and Ms. Garima
Sachdeva, Advocates.
Versus
NAVYUG SCHOOL EDUCATIONAL SOCIETY & ANR.
..... Respondents
Represented by: Mr. B.B.Gupta and Mr. Udyan
Srivastava, Advocates for
Respondent No.1.
Mr.Arun Bhardwaj, ASC for
Respondent No.2/NDMC.
Mr.Anurag Ahluwalia, CGSC
with Mr. M.P.Singh, Advocates
for Union of India.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J.
1. Vide these petitions, the petitioners seek setting aside of the
order dated 22.06.2012, whereby in view of the report of the Inquiring
Authority and decision taken by the respondent No.3/Ministry of
Home Affairs (for short „MHA‟), Recruitment Drive of 2008 (for short
„RD-2008‟) was cancelled. Consequently, the appointments of the
petitioners as teachers have been cancelled.
2. The petitioners are aggrieved by the aforesaid order, therefore,
all the petitions are being disposed of by this common judgment.
3. Facts in brief are that the respondent No.1/Navyug School
Educational Society (for short „School‟) made regular appointments of
the teachers during the years 1999 to 2009 and thereby promoted 45
PGTs and 75 TGTs. As stated by the respondent No.1/School, about
170 teachers were engaged on contractual basis time-to-time from the
year 2001 onwards apart from the regular appointments made by direct
recruitment and departmental promotions. In the years, 2005, 2006
and 2007, the respondent No.1/School advertised in order to fill up the
vacant posts of teachers on contractual basis. The said contractual
appointments were advertised under the caption "Special Recruitment
Drive for SC/ST/OBC", which was exclusively for reserved candidates
for engagement on contractual terms, pending regular recruitment and
promotions. Accordingly, the applications were invited on plain
papers and the remuneration was mentioned as „a consolidation salary‟,
but not as per regular scale of pay. Like many others, few former
contractual teachers also applied afresh for the said posts and were also
engaged on a purely contract basis on the specific condition that the
period of engagement would be up to the end of a particular academic
session or till the regular appointments against the posts occupied by
the contract teachers were made, whichever is earlier. That was,
purely a stop gap arrangement so that the studies of the students did not
suffer.
4. The details of the contractual reserved category teachers
engaged during the year 2005, 2006 and 2007 are as under:-
Year PGT TGT Primary Teachers
2005 06 (SC-02, OBC-04) 20(SC-09, OBC- 17 (SC-04, ST-01,
10, ST-01) OBC-12)
2006 Nil 05 (SC-03, ST- 08 (OBC-03, SC-
02) 05)
2007 01 (SC-01) 01(SC-01) 13 (SC-03, ST-04,
OBC-06)
5. Thereafter, vide an advertisement dated 17.06.2008, the
respondent No.1/School had advertised for filling up 55 posts of TGTs
and Primary Teachers (Academics & Activity) on regular basis. In
response thereto, large number of applications were received. After
scrutinizing the applications, a written test was conducted with the help
of an independent agency, namely, SCERT, to select the applicants for
the interview. The candidates who qualified the written test were
called for interview. For final selection, weightage was given for
performance in the written test, educational qualification and
experience, more than prescribed in RRs and performance in interview.
A comprehensive selection process was adopted while recruiting
candidates on regular basis. The Director (Liason) of respondent
No.2/New Delhi Municipal Council (for short „NDMC‟), being a
representative of SC/ST, was an integral part of the constituted
Selection Board.
6. Ms.Rekha Palli, learned counsel appearing on behalf of the
petitioners submitted that originally 55 vacancies (TGT-24, Primary
Teachers (Academics)-18), Primary Teachers (Activities)-13) were
advertised on 17.06.2008, while reserving the right with respondent
No.1/School to increase or decrease the same for the reasons
considered appropriate by it. The posts occupied by the contractual
teachers at the time of aforementioned advertisement were not taken
into account as these were not actually vacant. However, as requested,
59 posts occupied by the contractual teachers were also added to be
filled up through direct recruitment. At the time of advertisement, 59
contractual teachers were working in different schools of the
respondent No.1. Out of 59, 58 contractual teachers (SC-18, ST-04,
OBC-18 and UR-18) had applied against the aforementioned
advertisement dated 17.06.2008, however, one SC contractual teacher
did not apply for any post. Out of aforementioned 58 contractual
teachers, 36 teachers (SC-09, ST-04, OBC-14 and UR-09) were finally
selected.
7. Thereafter, 10 ex-contractual teachers, who could not get
selected in the aforementioned regular recruitment process represented
and filed complaints before several authorities including National
Commission for Scheduled Casts (for short „Commission‟), a
Constitutional Body set up under Article 338 of the Constitution of
India. However, there was no complaint of any irregularity till those
ex-contractual teachers failed to qualify for regular appointments. The
said ex-contractual teachers have been representing that their
contractual service should be treated as „regular‟ as they had been
recruited on contractual basis against „Special Recruitment Drive‟,
even if it was on contractual terms. However, the aforesaid Drive was
launched against the vacant posts, both in direct and promotion quota
in 2005, 2006 and 2007 on purely contractual basis for the reserved
category candidates.
8. Since the ex-contractual teachers, who could not get selected in
RD-2008 on regular basis, had made representations, therefore the
Commission enquired into the matter. Vide its order dated 24.05.2010,
the Commission disposed of the representations of ex-contractual
teachers observing, inter alia, that the respondent No.1/School had
followed the reservation policy of the Government of India in letter
and spirit.
9. Subsequently, the aforestated ex-contractual teachers again
approached the Commission and the matter is pending. The last
communication vide letter dated 02.03.2012 was made by the
Commission to the respondent No.1/School. The aforesaid ex-
contractual teachers also filed complaints before the Central Vigilance
Commission, Government of India, (for short „CVC‟), which after
examining the case, decided to close the matter vide its order dated
27.01.2010.
10. It is important to note here that issue of regularization of
contractual appointees was agitated before the Principal Bench of
Central Administrative Tribunal. On dismissal of their applications, 09
ex-contractual teachers (05-SC, 01-OBC and 03-General Category)
filed writ petitions before this Court, which are pending for
adjudication.
11. The ex-contractual teachers filed various representations dated
09.11.2010, 18.11.2010, 01.12.2010, 02.12.2010 and 07.12.2010
before the Parliamentary Committee on Welfare of SCs and STs.
Pursuant to reply filed by the respondent No.1/School, the
aforementioned Parliamentary Committee recorded evidence of the
representations of the Ministry of Home Affairs, Ministry of Personnel,
Public Grievance and Pension (Department of Personnel and Training)
and New Delhi Municipal Council on 15.12.1010 and 07.01.2011.
12. Thereafter, the Parliamentary Standing Committee examined the
matter and submitted various recommendations contained in its 13th
Report. The MHA vide its letter dated 20.07.2011 forwarded a copy of
13th Report of the Parliamentary Committee on the Welfare of SC/ST
to the Chief Secretary, Govt. of National Capital Territory of Delhi (for
short „GNCTD‟). As per the said letter, MHA had requested GNCTD
to take action on its behalf in consultation with MHA, specifically in
respect of recommendations No. 6 and 7 and requested to take
appropriate action regarding the discrepancies pointed out by the
Parliamentary Committee in para 6 of its recommendations relating to
the recruitment procedure in the respondent No.1/School in 2008-2009
and discrepancies noticed during the verification of rosters, cases of
regularization of contract/ad-hoc teachers since the inception of
respondent No.1/School and also the alleged irregularities in RD-2008.
MHA also requested that the GNCTD might designate an officer of
appropriate rank to regulate/supervise the affairs related to SCs/STs in
the respondent No.2/NDMC, including the respondent No.1/School in
terms of para-7 of the recommendations of the Report of the
Parliamentary Committee.
13. Accordingly, vide letter dated 29.06.2012, the respondent
No.2/NDMC furnished the action taken replies to 8 out of the 10
recommendations of the Parliamentary Committee to MHA. As a
follow-up action on the aforementioned Report of the Parliamentary
Committee, submitted to the Hon‟ble Speaker, Lok Sabha, on
01.06.2011. Thereafter, MHA vide its letter dated 30.11.2011 had
designated Shri R. Chandramohan, Principal Secretary-cum-
Commissioner (Transport), GNCTD, as the Inquiring Authority for the
purpose of undertaking a verification drive to check the present
recruitment procedure in vogue in respondent No.1/School and report
to the Committee about the discrepancies noticed during the
verification of the rosters, cases of regularization of contract/ad-hoc
teachers since the inception of respondent No.1/School as also the
alleged irregularities in RD-2008. This was conveyed by MHA to the
Inquiring Authority and the respondent No.2/NDMC vide its letter
dated 13.12.2011.
14. The Inquiring Authority after inquiring the matter submitted its
report to MHA in the month of April, 2012, which in turn forwarded
the same to the respondent No.2/NDMC vide its letter dated
18.04.2012, to furnish the comments on the report of the Inquiring
Authority and other seven specific issues in the matter. Vide letter
dated 10.05.2012, the respondent No.1/School submitted its comments
to MHA, which read as under:-
"i) As regards the conclusion drawn by the Inquiring
Authority in respect of verification of Roster, decided to
first seek the advice of DoP&T before NDMC takes
necessary action in this regard. The MHA will give
necessary directions, if any, to NDMC only after
obtaining the advice of DoP&T.
ii) As regards the conclusions drawn by the I.A. in
respect of Regularization of Contract/ad-hoc teachers, it
is felt that there is no such thing as "regularization". An
irregular appointment remains irregular. If the
advertisement is made for contractual appointment, then
the appointees cannot later be regularized, as the
presumption is that if the advertisement would have been
for regular appointment, more and better candidates
would have applied.
iii) The Inquiring Authority's conclusion in respect of
the irregularities in the Recruitment Drive of 2008 has
been carefully examined in this Ministry and it has been
decided that considering the glaring irregularities in
2008 recruitment process, it may be cancelled. Rules for
recruitment may be made and published, to be amended
subsequently only after giving reasons for the same, and
only if there are very strong reasons."
15. Vide letter dated 20.06.2012, MHA communicated the aforesaid
decision to the respondent No.2/NDMC with the directions to take the
action as above under the intimation to MHA. Accordingly, in
compliance of the above directions, the impugned order dated
22.06.2012 was issued by the respondent No.1/School, whereby the
RD-2008 was cancelled. Hence, the petitioners, being aggrieved, filed
the present petitions.
16. Ms.Rekha Palli, learned counsel submitted that Shri
R.Chandramohan, the Inquiring Authority, submitted its report on the
subject of "Termination of SC Ex-Teachers appointed by respondent
No.1 on contract basis during Special Recruitment Drive 2005 and
2007", as under:-
"1. The Reservation Roasters need to be recast by
NSES and reservation points noted post wise and subject
wise as the vacancy arises;
2. The backlog in unfilled reserved vacancies in a
Recruitment Year should be carried over to the next
Recruitment Year as per rules and the same cannot be
cancelled/erased by amending the Recruitment Rules
prospectively;
3. The contractual appointees of 2005 against
backlog reserved vacancies only should be regularized as
the Selection Process was elaborate and as per the
approved RR's and established practice followed while
making regular appointment'
4. The backlog in reserved vacancies in respect of
PGT's against the Direct Recruitment Quota should be
readvertised subject wise as per the relevant RR's and
filled up. The unfilled reserved vacancies against
Departmental Quota should also be got filled up by
Direct Recruitment;
5. In respect of regularization of ad-hoc/contract
employees the policy of BOG should be uniform without
any distinction between Non-Teaching and Teaching
staff;
6. In the recruitment made in 2008, the selection and
appointment of candidates should be limited to the
number of vacancies notified in the press and the
appointment of Non SC/ST candidates against reserved
vacancies for SCs and STs should be got rectified."
17. It is pertinent to mention here that all the above mentioned 10
candidates approached this Court vide W.P.(C) Nos.5592/2010 and
5738/2011, however, the said candidates, including one OBC and one
General Category candidate, withdrew their petitions with liberty to
approach the respondents. Accordingly, the abovementioned petitions
were dismissed as withdrawn vide order dated 09.01.2013.
18. Thereafter, the respondent No.2/NDMC submitted the reply to
the report of Inquiring Authority that the basis of regularisation
proposed in the year 2007 was not finally accepted and approved by
the Competent Authority as the Recruitment Rules (for short „RRs)
were amended on 24.03.2008 and the posts of TGTs were not taken
into consideration for being advertised as per the modified RRs.
However, there has been no change in reservation points for SCs/STs
in overall Cadre. Accordingly, the respondent No.1/School had made
departmental promotions on 23.06.2009 and promoted two SC
candidates. However, efforts were made to fill up the vacant posts in
reserved category in May, 2010 when respondent No.1/School had
advertised 04-SC and 02-ST posts in PGT Cadre to be filled up on
regular basis by direct recruitment as a „Special Recruitment Drive‟. In
TGT Cadre as on 31.12.2008, there were vacancies of 02-SC and 02-
ST in the direct quota. Accordingly, the respondent No.1/School had
selected 09-SC and 05-ST candidates by direct recruitment in RD-
2008, which also included the posts mentioned for the Department
Recruitment Quota, in terms of provisions of RRs which provided for
direct recruitment if the departmental candidates are not available.
19. As per the Roster in the direct quota, 05-SC and 02-ST points
are in excess and in future these excess points will be adjusted against
the departmental quota in terms of DOPT orders.
20. It is further submitted that originally 55 vacancies were notified
vide advertisement dated 17.06.2008 by the respondent No.1/School.
However, it was decided subsequently to fill up another 59 posts also
on regular basis through the same selection process. Hence, inclusion
of 59 posts to the earlier advertised posts of 55, totalling 114 posts, was
well within the condition of the Employment Notice, which stipulates
that the number of posts be increased/decreased at any time during the
process. The reasons for increasing 59 posts subsequently for regular
selection were that:-
(a) Vacancies arose due to the promotion of departmental
candidates in the TGT and PGT Cadres.
(b) To fill up the posts on which the contractual teachers were
earlier working.
21. Thereafter, vide communication dated 20.06.2012 to the
respondent No.2/School, MHA stated that as regards the conclusion
drawn by the Inquiring Authority in respect of regularization of
direct/ad-hoc teachers, it is felt that there is no such thing as
"regularization". An irregular appointment remains irregular. If the
advertisement is made for contractual appointment, then the appointees
cannot later be regularized, as the presumption is that if the
advertisement would have been for regular appointment, more and
better candidates would have applied. The Inquiring Authority‟s
conclusion in respect of the irregularities in RD-2008 has been
carefully examined by MHA, which in turn decided that considering
the glaring irregularities in RD-2008, the same may be cancelled. It is
further stated that Rules for recruitment may be made and published; to
be amended subsequently only after giving reasons for the same, and
only if there are very strong reasons. Accordingly, the respondent
No.1/School cancelled the RD-2008 vide impugned order dated
22.06.2012.
22. Thereafter, vide letter dated 07.08.2012, the respondent
No.2/NDMC requested to fix the responsibility in respect of
irregularities in RD-2008 and initiate action against the delinquent
officials/persons as per law.
23. Ms.Palli learned counsel for the petitioners submitted that in
reply filed by the respondent No.3/MHA, it is specifically stated in
para 10 that it is the duty of the respondents No. 1 and 2 to follow the
requisite Provisions/Rules/Regulations applicable to their educational
institutions and the provisions of reservation policy as well. Also
stated that the respondents No. 1 and 2 are the main respondents in this
case and the respondent No.3/MHA is only a proforma party.
24. Ms. Palli further submitted that though the respondent
No.3/MHA has stated that there were glaring irregularities in RD-2008,
however, it has not indicated as to what were the irregularities therein.
Since the respondent No.1/School has powers to lay down service rules
of the teachers and staff of the schools working under it, therefore, the
MHA had nothing to do to issue the said letter directing the respondent
No.2/NDMC to cancel the RD-2008, which in turn directed the
respondent No.1/School to cancel the process. Accordingly, the
respondent No.1/School passed the impugned order dated 22.06.2012.
25. Ms. Palli submitted that the selection of the petitioners, being
based upon the written test and interview and was a regular selection
against the reserved vacancies. They all completed probation period
successfully, thus, they were the regular teachers. However, their
selection has been cancelled by the respondent No.1/School without
putting them on notice or giving an opportunity of hearing, which is in
violation of principles of natural justice. The respondent No.1/School
is an autonomous body, hence, the decision of the respondents No. 2
and 3 cannot be thrust upon the respondent No.1/School. The
respondents have not pointed out any of the irregularity allegedly
committed in RD-2008.
26. Moreover, respondent No.3/MHA has specifically stated that the
decision ought to have been taken by the respondent No.1/School as
the respondent No.3/MHA is a proforma party and it has nothing to do
with the recruitment of teachers and application of reservation policy
for the teachers in the respondent No.1/School.
27. In support of her case, on the issue of principles of violation of
natural justice, learned counsel for the petitioners has relied upon a
case of Kamal Nayan Mishra Vs. State of Madhya Pradesh & Ors.
(2010) 2 SCC 169, wherein the Apex Court held, that the termination
of a regular employee without an inquiry or affording an opportunity of
hearing is illegal and invalid.
28. On the issue that vacancies available upto date of interview can
be filled by the undergoing recruitment process, Ms.Palli has relied
upon a case of Sandeep Singh Vs. State of Haryana and Anr.(2002)
10 SCC 549, wherein the Apex Court held that the vacancies available
in any particular service till the date of interview can be filled up from
the very same examination unless there is any statutory embargo for
the same.
29. On the issue of Further relied upon a case of Inderpreet Singh
Kahlon and Ors. Vs. State of Punjab and Ors. 2006 11 SCC 356, the
Apex Court held if principles of natural justice are given go by while
terminating services, such order cannot be sustained.
30. Mr.B.B. Gupta, learned counsel appearing on behalf of the
respondent No.1/School has supported the case of the petitioners and
submitted that the detailed report apprising the approved vacancy
position from the year 1997 till 01.08.2012 of all the teachers in
question was filed before the Parliamentary Committee on Welfare of
SCs and STs and before the Inquiring Authority. The same is part of
the counter-affidavit filed by the respondent No.1/School.
31. Learned counsel submitted that regarding the TGT direct
recruitment quota, due to change in RRs in 1998, it was modified to
75% by departmental promotion and 25% by direct recruitment. As on
31.12.2008, there was a short fall of 15 SC points (DR2 + DP13) and
09 ST points (DR2 + DP7) against which the respondent No.1/School
had selected 09 SC candidates and 05 ST candidates by direct
recruitment in 2009 in order to fill up the vacant posts of SC/ST in
terms of provisions in RRs which provide, for direct recruitment if the
departmental candidates are not available. Thus, sanctioned strength of
SC had increased from 05 to 12 and of ST from 02 to 05. There were
02 SC candidates from the TGT Cadre, who were promoted to the post
of PGT in June, 2009, thereby bringing down the filled up SC points to
10. Similarly, the respondent No.1/School had selected 05 ST
candidates by direct recruitment in 2009 but due to the fact that 01 SC
candidate selected on regular basis did not join, hence, the filled ST
points brought down to 04. In terms of DOPT orders, excess points
filled under direct recruitment quota will be adjusted against the
departmental promotion quota in future.
32. Regarding TGT departmental promotion quota, Mr. Gupta,
learned counsel submitted that as on 31.12.2008, there was a shortfall
of 15 SC points (DR2 + DP13) and 09 ST points (DR2 + DP7), against
which, the respondent No.1/School had selected 09 SC and 05 ST
candidates by direct recruitment in 2009 in order to fill up the vacant
posts of SC/ST in terms of provisions in RRs which provide for direct
recruitment if the departmental candidates are not available. Thus,
sanctioned strength of SC had decreased from 15 to 08 and of ST from
07 to 04.
33. Learned counsel submitted that as per the approved RRs, the
posts of Primary Teachers (Academics) are filled up 100% by direct
recruitment. The details from 02.07.1997 to 01.08.2012 are part of the
counter-affidavit filed by the respondent No.1.
34. As per the approved RRs, the posts of Primary Teachers
(Activity) are filled up 100% by direct recruitment.
35. Mr. Gupta further submitted that the vacancy position as on
31.12.2011 in respect of PGT, TGT and Primary Teachers in different
Schools of respondent No.1 was as under:-
(A) Direct Recruitment Quota
Posts Vacancies SC ST OBC General
T.G.T. NIL NIL NIL NIL NIL
Primary Teachers 13 04 02 07 NIL
(Academics)
Primary Teachers 11 01 01 04 05
(Activity)
Total 24 05 03 11 05
(B) Departmental Promotion Quota
Posts Vacancies SC ST General
Vacancy position as on 01.08.2012 was as under:-
(A) Direct Recruitment Quota
Posts Vacancies SC ST OBC General
T.G.T. 01 NIL NIL 01 NIL
Primary Teachers 11** 03 02 06 (02)**
(Academics)
Primary Teachers 11 01 01 04 05
(Activity)
Total 23 04 03 11 05
36. Mr. Gupta submitted that as on 01.08.2012, there were 87
sanctioned posts. Against which, 78 persons have been working which
includes excess of 02 persons in the General category. As per roster,
there was a shortfall of 03-SC, 02-ST and 06-OBC points (total 11).
Once the two senior most PRT (UR category) got promotion, the
excess of two were not there and the vacancies remained as 11 (SC-03,
ST-02, OBC-06).
37. Learned counsel further submitted that after adjusting three
surplus points existing in direct quota to the departmental promotion,
position was as under:-
(B) Departmental Promotion Quota
Posts Vacancies SC ST General
T.G.T. 11 04 04 03*
38. Learned counsel submitted that regarding the subject-wise
vacancy position of TGTs (mode of recruitment: 25% by Direct
Recruitment and 75% by Departmental Promotion failing which by
Direct Recruitment) was as under:-
Subject Total Remarks
S E V SR
Hindi 16 15 1 0
Sanskrit 11 7 4 0
English 20 20 0 0
Social 14 17 0 3 3 Surplus teachers will be
Studies adjusted in future requirement on
account of promotions to be
made by the NSES.
Mathematics 18 11 7 0
Natural 14 16 0 2 3 Surplus teachers will be
Science adjusted in future requirement on
account of promotions to be
made by the NSES.
Drawing 8 6 2 0
Music 7 6 1 0
Physical 6 6 0 0
Education
Work 8 7 1 0
Experience
Domestic 1 1 0 0
Science
Computer 8 7 1 0
Science
Total 131 119 17 *5
(Note:- S=Sanctioned, E=Existing, V=Vacant, SR=Surplus)
39. Learned counsel further submitted that in case of PGTs points in
TGT Cadre, there has been no subjectwise reservation in the
respondent No.1/School, being the small number of sanctioned posts in
various subjects. The Government of India O.M.1/4/70-Estt.(SCT)
dated 11.11.1971 stipulates that to secure adequate representation for
SCs/STs in isolated posts or in small cadre posts or posts of similar
status and salary may be grouped for the purpose of implementation of
orders providing for SCs/STs.
40. He submitted that taking into consideration the aforerecorded
background, it is manifest that the action impugned by the petitioners
in these writ petitions was for the reasons stated above and more
particularly because of the Directives of the Government of India,
which are binding on respondents No. 1 and 2.
41. Learned counsel submitted that despite the fact that the
impugned order specifically records that the Directives of the
Government of India and the reports preceding thereto, which were
specifically known to the petitioners, neither Government of India is a
party to the present proceedings nor the said Directives or the reports
of the Government of India are challenged before this Court. He
submitted that in absence thereof, it is to be presumed in law as also on
facts that the same are not disputed by the petitioners. It may also not
be disputed by the petitioners that the said Directives of the
Government of India are binding upon the respondents No. 1 and 2.
Therefore, no fault or illegality can be found in the impugned action of
the respondent No.1/School.
42. To strengthen his arguments, learned counsel has relied upon a
case bearing W.P.(C) No. 5544/2011, titled as "MCD Represented By
Its Commissioner Vs. Dr. Ved Prakash Kanoji & Anr.", decided on
25.02.2013 by this Court, wherein held that:-
"39. That leaves the third question to be answered:
Whether the Lt. Governor can issue the directions to the
Corporation to initiate disciplinary proceedings against
Dr.Ved Prakash and Dr.Jai Raj. As noted above, the
proceedings were defended before the Tribunal by
placing reliance upon Regulation 16 of the DMC Service
(Control & Appeal) Regulations, 1959 and the view taken
by the Tribunal is that unless a disciplinary action is
taken, said power cannot be exercised, a view with which
we agree. But, the view taken by the Tribunal that the
power of the Central Government under Section 487
which can be exercised by the Lt. Governor by virtue of
Section 490A cannot be exercised qua service matters
and would only relate to municipal governance is
patently incorrect and runs contrary to the Full Bench
decision of this Court reported as 1982 MCC 254 Satish
Chandra Khendalwal v UOI & Ors. Vide an order dated
April 11, 1980, the Central Government superseded the
Corporation. A writ petition was filed in this Court
challenging said supersession. The supersession was
preceded by a notice to show cause issued by the Central
Government. The said notice enumerated various
defaults of the Corporation and also set out instances of
abuse of powers by it. One of the instances of abuse of
powers, which was enumerated, was as follows:-
"The Corporation passed a resolution to sell the
staff quarters in Nimri Colony to the
occupants/allotters ignoring the fact that the
quarters were meant to serve as an amenity to
serving staff."
xxxx xxxx xxxx
44. Since our opinion is a little lengthy, we summarize
our findings:-
(1) Without determining the category in which the
posts were held by Dr.Ved Prakash and Dr.Jai
Singh it cannot be found as to who would be the
disciplinary authority and for this the matter is
remanded to the Commissioner to decide the issue.
(2) If it is found that the Commissioner is the
disciplinary authority, the fact that the
Corporation has taken a decision to the contrary
has to be ignored for the reason the appellate
authority cannot usurp the jurisdiction of the
disciplinary authority.
(3) If the Corporation is found to be disciplinary
authority, it would be bound by the directive issued
by the Lt. Governor and would act according to
the said directive for which the matter would be
placed before the Corporation for necessary
sanction."
43. While concluding the arguments, Mr.Gupta, learned counsel
submitted that the respondent No.1/School has passed the impugned
order dated 22.06.2012 pursuant to directions issued by the respondent
No.3/MHA and subsequent directions of respondent No.2/NDMC.
Thus, the illegality cannot be held against the respondent No.1/School.
44. Mr.Arun Bhardwaj, learned counsel appearing on behalf of the
respondent No.2/NDMC submitted that the respondent No.2 is a
proforma party and since the Inquiring Authority found that there were
irregularities in RD-2008 and that the respondent No.2/NDMC
received directions from the respondent No.3/MHA, accordingly, the
same were conveyed to the respondent No.1/School, who passed the
impugned order dated 22.06.2012, thereby quashing the RD-2008.
45. Mr.Anurag Ahluwalia, learned counsel appearing on behalf of
the respondent No.3/MHA submitted that based upon the report filed
by the Inquiring Authority, the respondent No.3/MHA directed the
respondent No.2 to quash RD-2008. Moreover, the respondents No. 1
and 2 are the main contesting party in this petition and the respondent
No.3/MHA is only a proforma party. He further submitted that vide
13th Report of the Parliamentary Committee on Welfare of SCs and
STs, the said Committee reported that there have been some
irregularities in RD-2008 initiated by the respondent No.1/School.
Accordingly, respondent No.3 issued directions which have been
complied with by the respondents No. 1 and 2.
46. I have heard the learned counsel for the parties.
47. The petitioners are aggrieved by the order dated 22.06.2012,
whereby in view of the report of the Inquiring Authority and decision
taken by the respondent No.3/MHA, Recruitment Drive of 2008 has
been cancelled. Consequently, the appointments of the petitioners as
teachers have been withdrawn. The issue before this Court for
consideration is whether the respondents have rightly taken the
aforesaid decision without putting the petitioners to show-cause notice
and by violating the principles of natural justice.
48. It is pertinent to mention here that vide order dated 02.07.2012
passed by this Court, the impugned order dated 22.06.2012 has been
stayed, thus, the petitioners are in service by the order of this Court.
The petitioners have undergone through the written test and interview
and thereafter selected as teachers in the respondent No.1/School.
None of the candidate challenged the RD-2008 before the exam and
interview conducted by the respondents. However, after declaration of
the result, some of the candidates, who failed to get berth, challenged
the same by making complaints to the Scheduled Castes Commission
and Central Vigilance Commission as well.
49. It is pertinent to mention here that both the aforesaid
Commissions filed the complaint finding no basis therein. Thereafter,
10 candidates again made the complaints before the aforementioned
Commission, which are still pending with the Commission. It seems
that the Commission did not find any substance in their complaints.
50. Since the issue raised by the said candidates was decided by the
Parliamentary Committee on the Welfare of SCs/STs and that was of
the view that some irregularities have been committed by the
respondent No.1, therefore, the said Committee recommended that the
matter should be inquired in depth by an independent authority.
Accordingly, the GNCTD appointed Shri R.Chandramohan as the
Inquiring Authority, who after calling the record and recording
evidence, submitted its report, whereby stated that the Reservation
Roasters need to be recast by the respondent No.1/School and
reservation points should be noted post wise and subject wise as the
vacancy arises. The backlog in the reserved vacancies in a
Recruitment Year should be carried over to the next Recruitment Year
as per rules; the same cannot be cancelled/erased by amending the
Recruitment Rules prospectively.
51. As noted above, the aforementioned Inquiring Authority did not
point out what were the faults in the vacancies advertised in RD-2008.
52. The Inquiring Authority further recorded that the contractual
appointees of 2005 against backlog reserved vacancies only should be
regularized as the Selection Process was elaborate and as per the
approved RR‟s and established practice followed while making regular
appointment. The backlog in reserved vacancies in respect of PGT‟s
against the Direct Recruitment Quota should be re-advertised subject
wise as per the RR‟s and filled up. The unfilled reserved vacancies
against the Departmental Quota should also be got filled up by Direct
Recruitment. It is further noted that in respect of regularization of an
ad-hoc/contract employees, the policy of BOG should be uniform
without any distinction between Non-Teaching and Teaching staff. In
the recruitment made in 2008, the selection and appointment of
candidates should be limited to the number of vacancies notified in the
press and the appointment of Non SC/ST candidates against reserved
vacancies for SCs and STs should be got rectified.
53. Fact remains that initially 55 vacancies (TGT-24, Primary
Teachers (Academics)-18), Primary Teachers (Activities)-13) were
advertised on 17.06.2008, while reserving the right with respondent
No.1/School to increase or decrease the same for the reasons
considered appropriate by it. The posts occupied by the contractual
teachers at the time of aforesaid advertisement were not taken into
account as these were not actually vacant. However, as requested, 59
posts occupied by the contractual teachers were also added to be filled
up through direct recruitment. At the time of advertisement, 59
contractual teachers were working in different schools of the
respondent No.1. Out of 59, 58 contractual teachers (SC-18, ST-04,
OBC-18 and UR-18) had applied against the aforementioned
advertisement dated 17.06.2008, however, one SC contractual teacher
did not apply for any post. Out of aforementioned 58 contractual
teachers, 36 teachers (SC-09, ST-04, OBC-14 and UR-09) were finally
selected. Thereafter, 10 ex-contractual teachers, who could not get
selected in the aforementioned regular recruitment process represented
and filed complaints before several authorities as mentioned above.
However, there was no complaint of any irregularity till those ex-
contractual teachers failed to qualify for regular appointments.
54. It is pertinent to mention here that the said 10 ex-contractual
teachers challenged the appointment process before this Court vide
W.P.(C) Nos.5592/2010 and 5738/2011, however, the said candidates,
including one OBC and one General Category candidate, withdrew
their petitions with liberty to approach the respondents. Accordingly,
the abovementioned petitions were dismissed as withdrawn vide order
dated 09.01.2013.
55. It is pertinent to mention here that 8 out of 10 mentioned above
have been given appointments on their representation. One OBC
candidate has been appointed on contractual basis, who is still in
service and another unreserved candidate could not get berth despite
representation. However, both the candidates mentioned above are not
party to these petitions. Their representations with the respondent
No.1/School is pending for considering their appointments against
regular vacancies.
56. It is pertinent to mention here that vide order dated 24.05.2010,
the Scheduled Castes Commission disposed of the representations of
the ex-contractual teachers observing, inter alia, that the respondent
No.1/School had followed the reservation policy of the Government of
India in letter and spirit. Moreover, the Central Vigilance
Commission, Government of India, after examining the case, decided
to close the matter vide its order dated 27.01.2010.
57. It is important to note here that issue of regularization of
contractual appointees was agitated before the Principal Bench of
Central Administrative Tribunal. On dismissal of their applications, 09
ex-contractual teachers (05-SC, 01-OBC and 03-General Category),
filed writ petitions before this Court, which are pending for
adjudication.
58. The Ministry of Home Affairs had requested GNCTD that
respondents No. 1 and 2 might seek reply in terms of para-7 of the
recommendations of the Report of the Parliamentary Committee.
Accordingly, vide letter dated 29.06.2012, the respondent No.2/NDMC
furnished the action taken replies to 8 out of the 10 recommendations
of the Parliamentary Committee to MHA. As a follow-up action on the
aforementioned Report of the Parliamentary Committee, submitted to
the Hon‟ble Speaker, Lok Sabha on 01.06.2011. Thereafter, MHA
vide its letter dated 30.11.2011 had designated Shri R. Chandramohan,
Principal Secretary-cum-Commissioner (Transport), GNCTD, as the
Inquiring Authority for the purpose of undertaking a verification drive
to check the present recruitment procedure in vogue in respondent
No.1/School. Accordingly, he found the irregularities in RD-2008 as
noted above.
59. Vide letter dated 10.05.2012, the respondent No.1/School
submitted its comments to MHA, whereby stated that the conclusion
drawn by the Inquiring Authority in respect of verification of Roster,
decided to first seek the advice of DOPT before respondent
No.2/NDMC takes necessary action in this regard. The MHA will give
necessary directions, if any, to respondent No.2/NDMC only after
obtaining the advice of DOPT. As regards the conclusions drawn by
the Inquiring Authority in respect of Regularization of Contract/ad-hoc
teachers, it is felt that there is no such thing as "regularization". An
irregular appointment remains irregular. If the advertisement is made
for contractual appointment, then the appointees cannot later be
regularized, as the presumption is that if the advertisement would have
been for regular appointment, more and better candidates would have
applied.
60. The respondent No.2/NDMC clarified in reply to the report of
Inquiring Authority that the basis of regularisation proposed in the year
2007 was not finally accepted and approved by the Competent
Authority as the RRs were amended on 24.03.2008 and the posts of
TGTs were not taken into consideration for being advertised as per the
modified RRs. However, there has been no change in reservation
points for SCs/STs in overall Cadre. Accordingly, the respondent
No.1/School had made departmental promotions on 23.06.2009 and
promoted two SC candidates. However, efforts were made to fill up
the vacant posts in reserved category in May, 2010, when respondent
No.1/School had advertised 04-SC and 02-ST posts in PGT Cadre to
be filled up on regular basis by direct recruitment as a „Special
Recruitment Drive‟. In TGT Cadre as on 31.12.2008, there were
vacancies of 02-SC and 02-ST in the direct quota, accordingly, the
respondent No.1/School had selected 09-SC and 05-ST candidates by
direct recruitment in RD-2008, which also included the posts
mentioned for the Department Recruitment Quota, in terms of
provisions of RRs which provided for direct recruitment if the
departmental candidates are not available.
61. As per the Roster in the direct quota, 05-SC and 02-ST points
are in excess and in future these excess points will be adjusted against
the departmental quota in terms of DOPT orders.
62. Moreover, the respondent No.3/MHA specifically stated in para
10 of its counter-affidavit that it is the duty of the respondents No. 1
and 2 to follow the requisite Provisions/Rules/Regulations applicable
to their educational institutions and the provisions of reservation policy
as well. Though the respondent No.3/MHA has stated that there were
glaring irregularities in RD-2008, however, it has not indicated as to
what were the irregularities therein. The selection of the petitioners,
being based upon the written test and interview and was a regular
selection against the reserved vacancies. They all completed probation
period successfully, thus, they were the regular teachers. However,
their selection has been cancelled by the respondent No.1/School
without putting them on notice or giving an opportunity of hearing,
which is in violation of principles of natural justice.
63. In case of Kamal Nayan Mishra (supra), the Apex Court held
that the termination of a regular employee without an inquiry or
affording an opportunity of hearing is illegal and invalid.
64. In case of Sandeep Singh (supra), the Apex Court held that the
vacancies available in any particular service till the date of interview
can be filled up from the very same examination unless there is any
statutory embargo for the same.
65. Moreover, in case of Inderpreet Singh Kahlon (supra), the
Apex Court held if principles of natural justice are given go by while
terminating services, such order cannot be sustained.
66. It is pertinent to mention here that regarding the TGT direct
recruitment quota, due to change in RRs in 1998, it was modified to
75% by departmental promotion and 25% by direct recruitment. As on
31.12.2008, there was a short fall of 15 SC points (DR2 + DP13) and
09 ST points (DR2 + DP7) against which the respondent No.1/School
had selected 09 SC candidates and 05 ST candidates by direct
recruitment in 2009 in order to fill up the vacant posts of SC/ST in
terms of provisions in RRs which provide for direct recruitment if the
departmental candidates are not available. Thus, sanctioned strength of
SC had increased from 05 to 12 and of ST from 02 to 05. There were
02 SC candidates from the TGT Cadre, who were promoted to the post
of PGT in June, 2009, thereby bringing down the filled up SC points to
10. Similarly, the respondent No.1/School had selected 05 ST
candidates by direct recruitment in 2009 but due to the fact that 01 SC
candidate selected on regular basis did not join, hence, the filled ST
points brought down to 04. In terms of DOPT orders, excess points
filled under direct recruitment quota will be adjusted against the
departmental promotion quota in future.
67. Regarding TGT departmental promotion quota, there was a
shortfall of 15 SC points (DR2 + DP13) and 09 ST points (DR2 +
DP7), against which, the respondent No.1/School had selected 09 SC
and 05 ST candidates by direct recruitment in 2009 in order to fill up
the vacant posts of SC/ST in terms of provisions in RRs which provide
for direct recruitment if the departmental candidates are not available.
The sanctioned strength of SC had decreased from 15 to 08 and of ST
from 07 to 04.
68. As per the approved RRs, the posts of Primary Teachers
(Academics) and Primary Teachers (Activity) are filled up 100% by
direct recruitment.
69. Thus, as on 01.08.2012, there were 87 sanctioned posts. Against
which, 78 persons have been working which includes excess of 02
persons in the General category. As per roster, there was a shortfall of
03-SC, 02-ST and 06-OBC points (total 11). Once the two senior most
PRT (UR category) got promotion, the excess of two were not there
and the vacancies remained as 11 (SC-03, ST-02, OBC-06).
70. Regarding the subject wise vacancy position of TGTs (mode of
recruitment 25% by Direct Recruitment and 75% by Departmental
Promotion failing which by Direct Recruitment) was filled up as noted
above.
71. In case of PGT, there has been no subject-wise reservation in the
respondent No.1/School, being the small number of sanctioned posts in
various subjects. The Government of India O.M.1/4/70-Estt.(SCT)
dated 11.11.1971 stipulates that to secure adequate representation for
SCs/STs in isolated posts or in small cadre posts or posts of similar
status and salary may be grouped for the purpose of implementation of
orders providing for SCs/STs.
72. It is also significant to note, there is no petition before this
Court, whereby the Recruitment Drive-2008 has been challenged.
Moreover, directly or indirectly, the respondents have supported the
case of the petitioners. The appointments of the petitioners were
regular. Therefore, I find no substance in the submissions made by the
respondents that the impugned order dated 22.06.2012 deserves to be
sustained.
73. Accordingly, these petitions are allowed by setting aside the
order dated 22.06.2012 passed by the respondent No.1 and order dated
20.06.2012 passed by the respondent No.3.
74. Consequently, pending applications are disposed of.
SURESH KAIT
(JUDGE)
DECEMBER 11, 2014
sb
