Syed Mohd. Akhtar vs The Managing Committee, Mazharul ...
2015 Latest Caselaw 2751 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No.4755/2001

%                                                    7th April, 2015

SYED MOHD. AKHTAR                                         ..... Petitioner
                 Through:                Ms. Shiprea Ghose, Advocate with
                                         Ms. Laxmi Shashtri, Advocate.


                          Versus

THE MANAGING COMMITTEE, MAZHARUL ISLAM SECONDARY
SCHOOL AND ORS.                            .... Respondents

Through: Ms. Latika Chaudhary, Advocate for respondent Nos.3 to 5.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. By this writ petition filed under Articles 226 and 227 of the

Constitution of India, the petitioner who was an employee of the Mazharul

Islam Secondary School represented by the respondent nos. 1 and 2, seeks

the relief of his being continued as officiating Vice Principal and thereafter

to be appointed to the post of Vice Principal of the School by setting aside

the appointment of the respondent no.3/Sh. Mushtaq Begg as a Vice

Principal of the School in terms of the minutes of the Departmental

Promotion Committee (DPC) of the School dated 30.5.2001 and confirmed

by the minutes of the Managing Committee of the School on 31.5.2001. In

essence, the petitioner claims that he and not the respondent no.3 ought to

have been appointed as the Vice Principal of the School and the minutes of

the DPC dated 30.5.2001 be quashed.

2. The appointment of the respondent no.3 to the post of Vice

Principal is challenged on the ground of his alleged lack of qualifications.

Lack of qualifications is urged on two counts. First count of lack of

qualification is that the respondent no.3 did not have a B.Ed degree but only

had a degree of Moallim-E-Urdu. The second lack of qualification of

respondent no.3 alleged is that the respondent no.3 was only a Physical

Education Teacher and not a T.G.T. and hence ineligible for appointment as

a Vice Principal in terms of the relevant recruitment rules.

3. Let me at this stage reproduce the relevant recruitment rule for

the post of Vice Principal of Government aided school, Mazharul Islam

Secondary School being a government aided school. The relevant

recruitment rule for appointment to the post of Vice Principal at the relevant

time in the year 2001 reads as under:-

"RECRUITMENT RULES FOR THE POST OF VICE PRINCIAPL WORKING IN THE GOVERNMENT AIDED SCHOOLS AND

RECOGNIZED SCHOOLS IN THE UNION TERRITORY OF DELHI.

1.    Name of the post        Vice-Principal

2.    Scale of Pay            Rs.650-30-710-35-810-EB-35-880-40-1000- EB-1200

3.    Whether selection or Selection
      non-selection

4.    Age limit for           a. Not exceeding 45 years relaxable for a candidate

belonging to Scheduled Caste/Scheduled Tribes. b. Relaxable to the candidates belonging to the same schools.

5.    Educational             Essential :
      Qualification

a. Master's Degree with atleast second Division from a recognized University or equivalent. Condition of Second Division relaxable in case of candidates belonging to the same school and also in case of Scheduled Castes and Scheduled Tribes.

b. Degree in Teaching/Education from a recognized University or equivalent.

c. 10 years experience of teaching as TGT or 5 year experience of teaching as PGT.

DESIRABLE

(i) Experience in administrative charge of a recognized High/Sr. Sec. School/Intermediate College.

(ii) Doctorate Degree.

(iii) M. Ed. Degree from a recogd. University

6. Whether age and (i) Age = No Educational qualifications (ii) Qualification= Yes except as indicated in Col. prescribed for direct No.5.

      recruitments will apply
      in     the     case  of
      promotion.



 7.       Period of Probation     One year

8.       Method of rectt.        By promotion, failing which by direct rectt.

9.       In case of rectt. By    Promotion out of
         promotion/deputation,

transfer, grades from i) PGT/HM of the same school with at least 5 years which experience as PGT/HM.

promotion/deputation/

ii) PGTs with 10 years experience as TGT in cases of transfer to be made Sec. Schools.

Note : Competent Authority may relax the essential Qualifications in exceptional cases of the candidates of the same school after recording reasons therefor.

10. If a Selection The Selection Committee prescribed under the Delhi Committee exists what Education Act and Rules. is its composition.

"

4. The aforesaid recruitment rule was partially amended with

respect to its para 9 whereby the eligibility criteria of persons who are to be

promoted was changed, and which is by the notification of the Directorate of

Education dated 29.1.1991 and which reads as under:-

"DIRECTORATE OF EDUCATION: DELHI ADMINISTRATION OLD SECTT., DELHI Dated, the 29 Jan., 1991 NOTIFICATION In exercise of the powers conferred vide Sec. 8(1) and Section 13 of Delhi School Education Act, 1973 (18 of 1973) read with rule 100 of Delhi School Education Rules, 1973 made under the said Act, the Administrator of Delhi hereby makes the following amendment in the Schedule annexed to this Administration's notification No.F-

32/1/84/Gen/78-80/3721-4161 dated 25.2.80 containing rules regarding the method of recruitment and qualification necessary for

appointment to the post of Vice-Principal in Recognized Private Schools including unaided Minority schools in Delhi, namely:-

AMENDMENT In the said Schedule, for the existing entries under Column 9 (In case of Rectt. by promotion/deputation transfer, grades from which promotion/deputation/transfer to be made), the following shall be substituted, namely:-

Column 9 Promotion out of

i) PGT/HM of the same school with atleast 5 years experience as PGT/HM.

ii) TGT's/Lang-Tr's with 10 years experience as TGT/Lang. Tr. In case of Sec. School.

By order and in the name of the Administrator of the Union Territory of Delhi

Sd/-

(V.P. SURI) SPECIAL SECRETARY (EDUCATION) DELHI ADMINISTRATION: DELHI

No.F.32/1/84/Gen/91/98-400 Dated, the 29 Jan. 1991 Copy forwarded to:-

1. Secretary to Hon'ble L.G. Delhi

2. P.S. to Chief Secretary, Delhi

3. P.A. to Secretary (Education)

4. P.A. to Director of Education, Delhi

5. All the Officers of the Delhi Admn/Dte. of Education

6. All the Managers of recognized private schools, Delhi

7. Director of Information and Publicity Delhi Admn. In duplicate for publication in Delhi Gazettee Extra Ordinary Part IV with the request that 50 copies of the gazettee may be supplied to the Director of Education for official use.

Sd/-

(V.P. SURI) SPECIAL SECRETARY (EDUCATION) DELHI ADMINISTRATION: DELHI"

5. Before I go to the aspect of alleged lack of qualifications of

respondent no.3 I note and deal with an argument on behalf of the petitioner

that the petitioner was the senior most employee of the School and therefore

was entitled to be appointed as Vice Principal of the School and for which

purpose reliance is placed upon paras 8 and 9 of the aforesaid recruitment

rule which talks of appointment of a person as a Vice Principal by

promotion. It is argued that once petitioner is the senior most, the petitioner

was automatically bound to be appointed and not the respondent no.3 who

was junior to petitioner. Reliance is also placed upon by the counsel for the

petitioner on the judgment passed by a learned Single Judge of this Court in

the case of Satya Prakash Gupta (Shri) Vs. Managing Committee, Ramjas

Higher Secondary School No.1 & Ors. 2011 II AD (Delhi) 692.

6(i) Though the respondent no.3 and the School have in their

counter affidavits disputed the seniority of the petitioner, even for the sake

of argument if we take the petitioner as senior to the respondent no.3, mere

seniority in my opinion will not entitle the petitioner to be automatically

promoted to the post of Vice Principal inasmuch as para 3 of the recruitment

rule is very clear that appointment is by selection. No doubt, the post is a

promotion post i.e the feeding cadre to the post of Vice Principal would be

existing employees of the School, but yet out of the eligible candidates who

satisfy the eligibility criteria prescribed in paras 5 and 9 of the recruitment

rule, the person to be appointed as Vice Principal will be the one who is

selected out of the eligible candidates inasmuch as appointment is by

selection in terms of para 3 of the recruitment rule. Petitioner therefore is

not justified in contending that appointment is automatically by promotion

and not by selection. In fact, para 10 of the recruitment rule states that the

selection committee will be in terms of the Delhi School Education Act and

Rules, 1973. Therefore, I reject the argument urged on behalf of the

petitioner that petitioner being the senior most employee of the School was

automatically entitled to be appointed as a Vice Principal.

(ii) Reliance is placed by the petitioner upon the judgment of a

learned Single Bench of this Court in the case of Satya Prakash Gupta

(supra) to canvass that the post in question is a promotion post and not a

selection post, however, the judgment in the case of Satya Prakash Gupta

(supra) will not apply because the said judgment deals with appointment to

the post of Principal and not the Vice Principal and the relevant recruitment

rule for the post of Vice Principal of aided schools which has been

reproduced above shows that the appointment as a Vice Principal is by

selection and not by promotion.

7. Now turning on to the aspect as to whether respondent no.3 did

not have the necessary qualifications, it is necessary at this stage to

reproduce the minutes of the DPC dated 30.5.2001 and the same read as

under:-

"Minutes of the meeting of D.P.C. to fill up the post of Vice Principal of Mazharul Islam Sec. School, Farash Khana, Delhi A meeting of D.P.C. duly constituted in provision of Rule 96 of DSER and Act 1973 was held on 30.5.2001 at 11.00 A.M. in the Chamber of D.D.E. (Central) under the Chairmanship of Mr. Mohd. Haneef, Chairman of the Managing Committee, to fill up the vacant post of Vice Principal as per direction of the Hon'ble High Court of Delhi in the case No.CWP 6536/99 Shri Abdul Rehman V/s Director of Education and others dated 1.5.2001. The following members were present:-

1. Mr. Mohd. Haneef, Chairman

2. Dr. M.C. Mathur, Addl. D.E. (AE)

3. Mrs. T.D. Tyagi, DDE (Central)

4. Dr. Maulana Mohd. Farooq Wasifi, Secretary The secretary revealed in the meeting that the post of Vice Principal has been lying vacant in the school since 1.3.97 which was caused due to the retirement of Mr. P.A.Khan. He stressed that THIS INSTITUTION IS RUNNING UNDER A MUSLIM MINORITY

MANAGEMENT. The seniority list of eligible teachers ACR for the last five years and results for the last five years, work and conduct report, synopsis of ACRs and Vigilance before the D.P.C. by the Secretary.

1. Mr. Mushtaq Begg

2. Mr. S.M. Akhtar

3. Mr. Najamul Islam Khan

4. Mr. Abdul Rehman

5. Mr. Hafeezur Rehman The Secretary of the school informed that a chance was given to Mr. S.M. Akhtar T.G.T. and Mr. Abdul Rehman, T.G.T. to sign the seniority list as per decision taken unanimously by the D.P.C. held on 10.4.2001 vide letter No. 49 & 50 dated 17.4.2001. Both the teachers have submitted their representations regarding the seniority statements. The representations were considered in the meeting of the Managing Committee and were not found satisfactory and self-explanatory. The Managing Committee unanimously resolved that the seniority list placed in the last meeting of D.P.C. for the post of Vice Principal held on 10.4.2001 will remain unchanged as such.

The Secretary of the School clarified the following points in the meeting.

1. The degree of Moallim-E-Urdu has been recognized by the Directorate of Education, Delhi equivalent to B.Ed. vide letter No. DE.3(21 Estrt.III/85D/796 dated 28.4.86 for which clarification has been obtained from Govt. of India, Ministry of Personnel, P.G. and pensions, Deptt. Of Personnel and Training dated 6.12.2000.

2. The P.E.T. has been declared analogous as TR.G.T. vide letter No. EE-4(3)/E-IV/PET's Pay/2000/933-1433 dated 9.1.2001.

3. D.S.S.S. Board has declared the successful candidate of P.E.T. as T.G.T. (Physical Education) in the month of October, 1999.

4. There is no channel of promotion in the cadre of P.E.T. in Govt. aided schools whereas in Govt. schools there is a separate channel for

promotion of P.E.T. This is, therefore, very discriminatory and should be applied to aided Schools also.

The Managing Committee is of the firm opinion, on the basis of meritorious services rendered by Mr. Mushtaq Begg as officiating Vice Principal and being a senior most teacher of the school.The D.P.C. unanimously recommended to promote Mr. Mushtaq Begg P.E.T. to the post of Vice Principal in the present circumstances as it does not appear to be in contravention of rules, with immediate effect in the time scale of Rs. 7500-12000 subject to the approval of the Director of Education.

The Meeting ended with a vote of thanks to the Chair.

      Sd/-                      Sd/-                       Sd/-
  Mohd. Haneef            Dr. M.C. Mathur            Mrs. T.D. Tyagi
  Chairman                Addl. D.E. (AE)            D.D.E.
  Mazharul Islam          (DE's nominee)
  Sec. School
                                Sd/-
                          Dr. Maulana M.F. Wasifi
                          Secretary
                          Masharul Islam Sec. School."

8(i)         The aforesaid minutes dated 30.5.2001 show that the

respondent no.3 has been taken to have qualification of B.Ed inasmuch as

the degree of Moallim-E-Urdu has been recognized by the Directorate of

Education as equivalent to B.Ed vide its letter dated 28.4.1986. I have seen

this letter dated 28.4.1986 which has been filed by the petitioner himself as

Annexure P-38 and this letter of the Directorate of Education clearly states

that Moallim-E-Urdu is considered equivalent to B.Ed by the Directorate of

Education. Once that is so, the contention of the petitioner is not correct that

the respondent no.3 did not have the qualification of the B.Ed for being

considered for appointment as the Vice Principal of the School.

(ii) The second aspect with respect to lack of qualification of the

respondent no.3 was that respondent no.3 was a Physical Education Teacher

and not a T.G.T and hence he could not have been considered for

appointment to the post of Vice Principal in terms of the recruitment rule

which states that a person has to be either a P.G.T or a T.G.T. Even this

argument urged on behalf of the petitioner is without any merit inasmuch as

though the Director of Education had initially filed its affidavit dated

31.8.2006 stating that a Physical Education Teacher could not be appointed

as a Vice Principal of an aided school however subsequently an additional

affidavit was filed on behalf of the Directorate of Education by Mrs. Abha

Joshi, Deputy Director in the Directorate of Education dated 15.12.2009 and

this affidavit categorically states that a Physical Education Teacher is

capable of being appointed as a Vice Principal and a Physical Education

Teacher has to be taken as a T.G.T. That a Physical Education Teacher is to

be taken as a T.G.T is found in the circular of the Directorate of Education

dated 9.1.2001 wherein it is stated in para 3 that the posts of Physical

Education Teachers in schools are analogous to the T.G.T category. In view

of the categorical language of this circular, it does not lie in the mouth

of the petitioner to urge that respondent no.3 cannot be considered as a

T.G.T teacher. I may also state that respondent no.3 has filed the letter of

the Directorate of Education dated 7.6.2006 and which letter is a response to

an RTI application showing that as many as ten persons were appointed as

Vice Principals of the Schools and such persons were either Physical

Education Teachers or drawing teachers or music teachers. The detailed

chart in this regard is contained as an annexure to the letter of the

Directorate of Education dated 7.6.2006 and the same is as under:-

"The Following Physical Education Teachers, Music Teachers and Drawing Teachers have been promoted to the post of vice Principals and Principal in the following Govt. Aided Schools as per the record of Directorate of Education, Delhi (Through RTI)

S.No. Name of the Designation Promoted Zone District School as

01 Salwan Boys PET Vice 28 Central Sr. Sec. School, Principal Rajender Nagar, New Delhi

02 Kasaturba PET Vice 25 South Balika Principal Vidyalaya, Ishwar Nagar, New Delhi

03 S.B. Mills Sr. PET Vice 16 West Sec. School Principal Shivaji Marg, and Later New Delhi on Principal

04 Mazharul Islam PET Vice 27 Central Sec. School,

Farash Khana, Principal Delhi

05 DAV Sr. Sec. Drawing Vice 24 South School, Jung Teacher Principal Pura, New Delhi

06 SRSD Sr. Sec. Drawing Vice 25 South School, Lajpat Teacher Principal Nagar IV, New Delhi

07 G.D. Soni DAV Drawing Vice 28 Central Sr. Sec. School, Teacher Principal Pusa Road

08 Lady Irwin Music Vice 26 South Girls Sr. Sec. Teacher Principal School, Canning Road, New Delhi

09 R A Geeta Co- Music Vice 1 East Ed. Sr. Sec. Teacher Principal School, Shanker Nagar, Delhi

10 Geeta Sr. Sec. Music Vice 13 North West School, Sultan Teacher Principal B Puri, Jalebi Chowk, Delhi

"

9. Therefore, merely because the Directorate of Education had

firstly filed a wrong affidavit, and which however was corrected in terms of

the subsequent affidavit, shows that there was no bar in a Physical Education

Teacher being appointed as a Vice Principal of a government aided school. I

therefore hold that respondent no.3 did not lack the qualifications for being

appointed as the Vice Principal of the School inasmuch as he had the

necessary qualification of a B.Ed degree and also was treated as equivalent

to a T.G.T.

10. The next issue to be considered is that whether petitioner is

entitled to quash the appointment of the respondent no.3 on the ground that

the respondent no.3 was illegally selected in terms of the DPC dated

30.5.2001. Two arguments in this regard are urged to challenge the DPC

decision dated 30.5.2001. First is that the Chairman of the School was

biased against the petitioner and second is that the said minutes show that

the nominee of the Director of Education signed the same on 4.6.2001 and

not on 30.5.2001 which is the date of the minutes of the DPC.

11. Both the arguments urged on behalf of the petitioner to question

the DPC dated 30.5.2001 are without any force. Firstly, the vague allegation

of bias cannot help the petitioner in any manner inasmuch as allegation of

bias is a very serious aspect and which has to be established to the complete

satisfaction of the Court and simple averment of bias without any proof in

my opinion cannot be accepted by the Court to hold that in fact there was a

bias. Also, besides the Chairman there were two other members in the

Managing Committee including the nominee of the Director of Education.

Of course, I may at this stage, state that since the School is a minority

school, in fact, there was no need of even the presence of the nominee of the

Director of Education and this has been so held by the Division Bench

judgment of this Court in the case of Queen Mary's School thru its

Principal Vs. U.O.I 185 (2011) DLT 168. The judgment in the case of

Queen Mary's School thru its principal (supra) has been followed by this

Court in the case of St. Anthonys Girls Sr. Sec. School through Its

Manager & Anr. Vs. Govt. of NCT of Delhi & Ors. 205 (2013) DLT 744.

Therefore, neither the argument of any bias has any strength nor can it be

argued that anything will turn upon the nominee of the Director of Education

signing the minutes on 4.6.2001. In fact, the later argument is also

misconceived because the date of signatures of the nominee of the Director

of Education would be 4.6.2001 inasmuch as minutes of the meeting would

have taken time to prepare and after preparation the same would have been

signed by the nominee of the Director of Education on 4.6.2001, however,

mere giving the date below the signatures as 4.6.2001 cannot mean that DPC

was not held on 30.5.2001 inasmuch as the first page of the DPC and which

has been reproduced above shows that presence of Mrs. T.D. Tyagi, the

nominee of the Director of Education and who has subsequently signed on

page 3 giving the date as 4.6.2001 i.e Mrs. T.D. Tyagi was present when the

DPC was held on 30.5.2001 but she signed the same when the minutes were

ultimately put up to her after preparation on 4.6.2001. Therefore, even the

argument of the petitioner that the nominee of the Director of Education was

not present on 30.5.2001 is a factually misconceived argument and is

rejected.

12. In view of the above, no fault can be found in the action of the

School in appointing the respondent no.3 as the Vice Principal of the School.

I may note that both the petitioner and the respondent no.3 in the meanwhile

have retired long back from the School and the arguments in this case on

behalf of the petitioner were confined on the aspect that if the petitioner is

entitled to be appointed as the Vice Principal then for the period from 2001

to 2010; when the petitioner retired; petitioner would be entitled to get

monetary emoluments of the post of Vice Principal.

13. In view of the above, the petition is dismissed. No costs.

APRIL 07, 2015                               VALMIKI J. MEHTA, J.
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