S.C. Jain vs Union Of India & Ors.
2014 Latest Caselaw 2758 Del

*                   THE HIGH COURT OF DELHI AT NEW DELHI

                                       Judgment reserved on: 12.05.2014
%                                      Judgment delivered on: 28.05.2014

+                         WP(C) 2474/1989


S.C. JAIN                                            .....PETITIONER


                                     Vs


UNION OF INDIA AND ORS.                              .....RESPONDENTS

ADVOCATES WHO APPEARED IN THIS CASE:

For the Petitioner: Ms. Richa Oberoi, Advocate For the Respondents: Ms. Latika Chaudhary, counsel for Ms. Avnish Ahlawat, Advocate for R-1 to R-4 Mr. Yatendra Sharma, Advocate for R-5 CORAM :-

HON'BLE MR JUSTICE RAJIV SHAKDHER

RAJIV SHAKDHER, J

1. The writ petition is confined to prayers (a) and (d). The learned counsel for the petitioner, at the very outset, says that she does not want to press the remaining prayers i.e., prayers (b), (c), (e), (f) and (g). Prayer (h) is a general prayer, which seeks orders and directions of this court, which are deemed fit and necessary.

1.1 Therefore, one is required to deal with only prayer clauses (a) and

(d).

1.2 By virtue of prayer clause (a), the petitioner calls upon this court to issue a direction by way of mandamus or any other order or direction

to apply the scales applicable to PGT (Engineering-Drawing), to his case.

1.3 Prayer clause (d), which is a consequential prayer, seeks arrears of pay with effect from 31.05.1972 when, new Recruitment Rules were framed by respondent no.3. As per the petitioner, with the framing of the new Recruitment Rules, a PGT could teach Engineering-Drawing. 1.4 Therefore, the point involved in the present petition falls in a narrow compass. This court is called upon to decide as to whether the petitioner ought to be treated as a person eligible for the pay scale of PGT and, if so, for which period?

2. The brief facts, which are necessary to be considered for adjudicating upon the issue are as follows :-

2.1 In 1962, the petitioner joined Bal Bharti School as a Junior Teacher. It is a petitioner's case that he taught Engineering Drawing. It is also a petitioner's case that at that relevant point in time, there were three scales of pay in vogue. According to the petitioner, teachers, were categorized into three grades i.e., Grade I, Grade II and Grade III. The petitioner's initial appointment was in Grade III. 2.2 On 23.11.1966, the petitioner evidently was promoted from Grade III to Grade II which is when, he started teaching Engineering Drawing; albeit in the capacity of Senior Drawing Teacher. 2.3 The petitioner claims that he obtained in 1968, a five year diploma in Commercial and Fine Arts from AICTE. 2.4 Evidently, on 27.05.1970, Grade I and Grade II were merged. Consequently, the petitioner came to be slotted in Grade I. 2.5 Admittedly, in 1976 the petitioner was declared surplus and therefore, was absorbed in Rajputana Rifles Hero Memorial Higher Secondary School (in short Rajputana School).

2.6 In the interregnum i.e., 31.05.1972, new Recruitment Rules (in short the 1972 Rules) were framed by respondent no.3. As per the petitioner's stand, with the framing of these rules, a PGT could teach Engineering Drawing. It is the petitioner's stand that prior to the framing of the 1972 Rules, there was no requirement of a PGT, for teaching Engineering Drawing to students in Government aided schools. 2.7 The petitioner avers that the aforementioned Rules i.e., 1972 Rules were, however, relaxed to permit even a Drawing Teacher with a five year diploma to teach Engineering Drawing. This relaxation, according to the petitioner, came about on 01.10.1973. Since, the petitioner, had the necessary qualification under the relaxed criteria, he claims that he became eligible to the post and pay scale of PGT. 2.8 It is pertinent to note, a fact which is not disputed by the petitioner before me, is that, in Bal Bharti School, the petitioner held the post of a TGT.

2.9 I may also note that what is come through in the course of hearing before me; a fact which is not disputed by counsels for both parties, is that, Rajputana School where petitioner was absorbed in 1976, did not have a PGT post. The petitioner, according to the stand of the counsels for respondent nos.3 and 5 was adjusted in the post of PGT. This stand of the learned counsels for respondent nos.3 and 5 is, however, refuted by the counsel for the petitioner. I shall be dealing with the same in the course of my judgment.

2.10 Continuing with the narrative, the petitioner after having worked in Rajputana School between 1976 and 1979, was once again declared surplus and, was consequently, absorbed in respondent no.5 school. The petitioner's absorption was in the TGT post of a Drawing Teacher. Respondent no.5 School i.e., D.A.V. Sr. Secondary School did not have

a PGT post in Engineering Drawing. Pertinently, before joining respondent no.5, the petitioner was getting a pay scale of Rs.440-750, which was continued in respondent no.5 school.

3. Unfortunately, the petitioner was, once again, declared surplus in respondent no.5 school in 1989 which is when, he was absorbed in respondent no.6 school i.e., Hanuman Mandir Secondary School, Shakti Nagar.

3.1 I was informed that the petitioner continued in service till 1992 when, he opted for voluntary retirement. It may also be pertinent to note that the petitioner in the interregnum has made several representations for redressal of his grievances, which, inter alia, included a prayer, seeking creation of a PGT post and grant of PGT scale. 3.2 The representations also dealt with other issues, which as indicated above, have been given up by the petitioner. The representations made in this behalf are dated 25.08.1983 and 08.08.1984.

3.3 The petitioner, had also written to respondent no.5 on 17.11.1987, that he be given the post and pay scale of PGT. The petitioner claims that representations in this behalf were also made on 13.05.1988 and 03.02.1989. These representations sought conversion of the post he was working in, to a PGT post and the resultant grant of pay scales of PGT post.

3.4 The petitioner also made a representation just before institution of this writ petition to respondent no.3 i.e., Director of Education on 15.05.1989. In that representation, the petitioner requested that a post of PGT be created and thereafter, the petitioner be granted PGT pay scales.

3.5 In view of the fact that these representations of the petitioner met with no success, the petitioner approached this court by way of the present petition under Article 226 of the Constitution.

4. The petition was admitted on the very first date i.e., 14.09.1989. Based on the aforesaid pleadings, the learned counsel for the petitioner made the following broad submissions :-

4.1 That after the relaxation of Recruitment rules of 1972 i.e., on 01.10.1973, the petitioner became eligible for the post of PGT and for payment of salary and allowances, which are applicable to the said post. 4.2. The petitioner, having worked in the PGT post since 1976 when he was absorbed in Rajputana School, he should, if not from 1973, be given the benefits of PGT post from the said date. 4.3. The fact that respondent nos.3 and 5 failed to create a PGT post cannot be the reason to deprive the petitioner of the relief prayed for. 4.4. A petitioner in very same situation in the case of M.L. Sharma Vs. Director of Education and Ors, WP (C) 1479/1973 was granted relief by this court vide its judgment dated 20.12.1985.

5. On the other hand, the learned counsels for the respondents i.e., Ms. Latika Chaudhary, who appeared for respondent nos.1 to 4 and Mr. Yatindra Sharma, who appeared for respondent no.5 submitted that the petitioner was adjusted in the post of PGT in Rajputana School; after he was declared surplus. It was submitted that there was no post of PGT available in Rajputana School, therefore, the petitioner's claim is baseless. The learned counsels submitted that PGT is a promotion post, and that, unless a requisition is made and a post is created, no candidate can be considered for appointment. It was submitted that no such requisition was made and hence no post of PGT was sanctioned. It was thus submitted that, there was no question of the

petitioner being promoted to the post of PGT and being granted a consequent pay scales.

6. I have heard the learned counsels for the parties and perused the record.

7. What has emerged from the record is, as follows :- 7.1 The petitioner, who was holding the post of TGT in Bal Bharti School in the pay scale Rs.440-750, was declared surplus in 1976. 7.2 The petitioner was consequently absorbed in Rajputana School in terms of Rule 47 of the Delhi School Education Rules, 1973 (in short DSE Rules). As mandated by Rule 47, the petitioner's scale was protected on absorption in Rajputana School and, therefore, he continued in the pay scale 440-750. Admittedly, there was no post of PGT available in the Rajputana School and, thus, the petitioner was temporarily adjusted as a PGT. No doubt, the petitioner made representations for creation of a PGT post - factually, no such measure was taken. As it transpires, in 1979, the petitioner was declared surplus and was absorbed in respondent no.5 school. Admittedly, in respondent no.5 school there was no post of PGT. The petitioner, however, worked as a Sr. Drawing Teacher in the pay scale of Rs.440-750. 7.3 As indicated hereinabove, the petitioner thereafter in 1989 on account of being declared surplus, once again, was absorbed by respondent no.6 school.

7.4 Having regard to the aforesaid facts, it is clear that the petitioner, at no point in time, was appointed to the post of PGT. As correctly argued by the counsels for respondent nos.3 and 5 since no such post was sanctioned in respondent no.5 school, the petitioner could not have been considered for appointment to the said post. No doubt, the

petitioner made representations but at the relevant point in time, no such step was taken by respondent no.3 and 5.

7.5 In these circumstances, the petitioner's prayer cannot be granted. The reliance placed by the petitioner on M.L. Sharma's case, in my opinion, is misconceived, for the reason that, in that case the petitioner was eligible for appointment to the post of PGT. There was no dispute in that case of existence of a post. The dispute was, as to the rules which should be made applicable to the petitioner in that case. A perusal of the judgment would show that amended rules were made applicable to the petitioner which, required a higher qualification. The court ruled that the petitioner in that case could not be disabled from being considered for promotion by giving retrospective effect to the amended Rules. It is in these circumstances, the court granted relief to the petitioner in that case. The facts obtaining in the present case are clearly distinguishable.

8. Thus, having regard to the aforesaid, I find no merit in the petition, the same is accordingly dismissed. There shall, however, be no orders as to costs.

RAJIV SHAKDHER, J

MAY 28, 2014 yg