J.S. Tomar vs The Govt. Of Nct Of Delhi And Ors.
2015 Latest Caselaw 6072 Del

$~16
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of Decision: August 19, 2015

+     W.P.(C) 7846/2015, CM Nos.15615-15616/2015
      J.S. TOMAR
                                                                ..... Petitioner
                         Through:       Ms.Vasudha Arya, Adv.

                         versus

      THE GOVT. OF NCT OF DELHI AND ORS.
                                                           ..... Respondent

                         Through:       Mr.Anuj Aggarwal, ASC with
                                        Ms.Niti Jain, Adv.

CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO

V.KAMESWAR RAO, J (Oral)

CM No.15616/2015

Exemption allowed subject to all just exceptions.

Application stands disposed of.

W.P.(C) 7846/2015

1. The challenge in this writ petition is to the order dated March 27,

2015, which order was passed by the respondent No. 4 in terms of the order

passed by this Court in W.P.(C) 3658/2014 dated February 6, 2015 to

consider and treat the said writ petition filed by the petitioner as a representation to the Director of Education and take a decision in accordance

with the applicable extant circulars, whether the petitioner should or should

not given the re-employment by giving a personal hearings to the concerned

parties.

2. It is noted from the impugned order that the petitioner retired on

attaining the age of superannuation as Principal of the respondent No. 6

School on December 31, 2013. On November 19, 2013, the petitioner

submitted a request to the Manager of the School for his re-employment.

The said request of the petitioner was forwarded to the respondent Nos. 3 to

5. The case of the petitioner was considered by the Managing Committee of

the School. The Managing Committee, vide its certificate dated July 30,

2014 has found the petitioner Professionally fit, which conclusion was not

agreed to by the then Deputy Director Education (South East). Even the

present incumbent on the post of Deputy Director Education (South East)

vide certificate dated March 27, 2015 has not agreed to the provisional

fitness certificate issued by the respondent No. 6 on the following grounds:

"1. On going through the ACRs for the last five years i.e. from the year 2008-09 to 2012-13, it has been observed that the gradings are „Good‟. As per the guidelines available on the grading of ACRs, it is mandated that for the grade pay of Rs. 7600 and above a minimum bench mark of „Very Good‟ must be maintained and in the instant case, none of the ACR grading fulfils the benchmark. It is also added that the Reporting Officer and Reviewing Officer in r/o Principal of an Aided School is Chairman and Managing Committee respectively and both the authorities could not find his overall performance as Very Good.

2. On going through the results for the last five years from the year 2008-2009 to 2012-13 of Class XII, attributable to Principal, it is observed that the results for the three years out of total five years i.e. from 2008-2009 (61.85%) to 2009-10 (63.72%) & 2011-12 (62.96) are not satisfactory and far below the Department‟s Average result And whereas, in view of the above observations, the DDE (South East) has certified the Professional fitness as „Not Satisfactory‟ and has not recommended the case for grant of reemployment to Shri J S Tomar;

Now therefore, in view of the above, I, Anita Satia, Regional Director of Education, being competent authority hereby rejects the request of reemployment of Shri J S Tomar, Principal, DAV Sr. Sec School, Jangpura, New Delhi".

3. In view of the observations of the Deputy Director Education (South East), certifying the Professional fitness of the petitioner as 'Not

Satisfactory', the petitioner was not recommended for re-employment.

4. Learned counsel for the petitioner would submit that the respondents

were required to take the ACRs of the last five years into consideration for

re-employment, which has not been done. According to her, had the ACRs

of five years been taken into consideration, the petitioner could have met

the benchmark of 'very good' which is relevant for re-employment as

Principal. That apart, it is her contention, the benchmark of 'Good' in

relevant ACRs for the period concerned were not communicated to the

petitioner and as such, could not have taken into consideration for the

purpose of re-employment against the petitioner.

5. Insofar as the first submission of the learned counsel for the petitioner

is concerned, suffice to state, from the perusal of the impugned order, it is

noted that the authorities had considered the ACRs of last five years i.e.

between 2008-09 to 2012-13 and through the said ACRs, the petitioner was

graded as 'Good' and not 'Very Good', which is a pre-requisite for re-

employment as a Principal. Learned counsel for the petitioner has not

brought to my notice any document to show that the observation of the

authorities in para (1) as referred to above, is factually incorrect. The Court proceeds on the premise that ACRs of the last five years have been taken

into consideration, and was graded 'Good', which is less than the required

benchmark and thus, the respondents have rightly held that the record of the

petitioner is 'not satisfactory'.

6. Insofar as the second submission of the learned counsel for the

petitioner that the ACRs with grading 'Good' have not been communicated

to the petitioner, is concerned, the rigours of consideration necessary for

making regular appointment would not be applicable in the case of a re-

employment. Re-employment is only for two years subject to fitness. The

respondents having considered the record and were of the view that the

fitness of the petitioner is not satisfactory, this Court, keeping in view that

the relief sought for by the petitioner, is for re-employment, that too, till he

attains the age of 62 years in the month of December, 2015 i.e four months

away, is of the view that it is not a case where this Court in exercise of

power under Article 226 of the Constitution of India should interfere with

the impugned order.

7. At this stage, learned counsel for the petitioner has brought to my

notice that after the petitioner had retired on attaining the age of

superannuation, pending approval by the respondent Nos. 3 to 5, the petitioner had, in fact, worked as a reemployed Principal with effect from

January 1, 2014 till January 28, 2014. It is her submission that for this

period, the petitioner has not been paid salary. If that be so, the petitioner

having worked as a re-employed Principal shall be entitled for the salary for

that period.

8. Mr. Anuj Aggarwal, Addl. Standing Counsel appearing for the

respondent Nos. 1 to 5 states that the salary for the period w.e.f. January 1,

2014 to January 28, 2014 shall be released to the petitioner within a period

of four weeks from today in accordance with the Rules.

9. With the aforesaid observations, the petition is dismissed.

10. No Costs.

CM No.15615/2015

11. In view of the order passed in the writ petition, the present application

is dismissed.

V. KAMESWAR RAO, J AUGUST 19, 2015/akb