Delhi High Court
Meenu Shokeen vs Director Of Education And Ors on 22 December, 2015
Author: V. Kameswar Rao
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on November 26, 2015
Judgment delivered on December 22, 2015
+ W.P.(C) 7360/2010, CM Nos.14590/2010, 512/2011 &
11450/2011
MEENU SHOKEEN
.... Petitioner
Through: Mr.Sidddarth Yadav, Adv.
Versus
DIRECTOR OF EDUCATION AND ORS
..... Respondent
Through:
Mr. Arjun Mitra, Adv. for R-
1 with Dr. S.K. Sharma, DEO
(Zone 28)
Ms.Avnish Ahlawat, Adv. for
R-2
Mr. Vinay Sabharwal, Adv.
for R-3
+ W.P.(C) 8138/2010, CM No. 20972/2010
SALWAN BOYS SENIOR SECONDARY SCHOOL
..... Petitioner
Through: Mr.Vinay Sabharwal,
Advocate
versus
HEM RAJ AND ORS
..... Respondent
Through: Ms.Avnish Ahlawat, Adv. for
R-1
Mr.Siddharth Yadav, Adv.
for R-2
Mr.D.Rajeshwar Rao,
Advocate with Mr.Charanjeet
Singh, Adv. for R-3
W.P.(C) No. 7360/2010 and connected matter Page 1 of 34
CORAM:
HON'BLE MR. JUSTICE V.KAMESWAR RAO
V.KAMESWAR RAO, J.
1. As both these writ petitions involve challenge to a common order
dated September 8, 2010 with identical facts, the same are being disposed
of, by this common order. The parties shall be referred to, in terms of
their status in W.P.(C) No.7360/2010 i.e Petitioner as "Petitioner",
Director of Education (respondent No.1), Mr. Hemraj (respondent No.2)
and Salwan Boys Senior Secondary School, the writ petitioner in W.P.(C)
No.8138/2010 (respondent No.3).
2. By the impugned order dated September 8, 2010, passed by the
Directorate of Education respondent No.1 pursuant to the directions
issued by this Court in Writ Petition (Civil) No.694/2009 dated March 17,
2010, the Director of Education has directed the promotion of respondent
No.2 Hemraj to the post of PGT (Maths) with immediate effect.
3. Some of the relevant facts are, in the year 2005 the post of PGT
(Maths) fell vacant in the respondent No.3 School, on the retirement of
Mr. K.K. Nakra. On September 28, 2007, a DPC was held in the
respondent No.3 School. As the respondent No.2 only was eligible for
promotion as per recruitment Rules, the DPC on consideration noting the
ACR grading of Mr. Hemraj, the respondent No.2 for the period 2002-03
to 2006-07 consisted of three „Good‟ and two „Average‟, decided to refer
the matter to the Act Branch. A communication dated October 6, 2007, in
that regard, was sent to Assistant Director of Education, Act Branch. The
Act Branch, vide its communication dated October 18, 2008, had, on a
consideration of the DPC and the show-cause notice issued to the
respondent No.3 School and the reply given by the School, rejected the
minutes of the DPC held on September 28, 2007 and directed the School
to conduct fresh DPC for promotion of eligible candidates. It is noted that
Mr. Hemraj respondent No.2 filed W.P.(C) No.694/2009 against
convening a fresh DPC. The writ petition was listed on July 14, 2009,
when this Court had directed that a fresh DPC be held but the selection
may not be finalised till the next date. It appears that, against the said
order, Mr. Hemraj filed an intra-court appeal i.e LPA No.541/2009, which
was dismissed by the Appellate Court noting that the impugned order i.e
July 14, 2009 was an interlocutory order. The DPC was held on October
29, 2009. It consisted of five Members, two representing the School and
three being from the Education Department/Subject Expert.
4. The decision of the DPC was not unanimous, the Members gave
their views vide two annexures A and B, which were appended to the
DPC proceedings. Annexure A was signed by the two Members
representing the School and annexure B by the three outside Members. In
annexure A, the Members representing the School, were of the view that
the EO/DE nominee/Subject Expert have commented on the ACR grading
of the respondent No.2. They have also stated that EO/DE nominee were
of a biased mind in favour of the respondent No.2. Whereas, in annexure
B, the three other Members have, by noting that Mr. Hemraj was the
senior most Teacher and also noting that the ACR grading does not reflect
the work done by Mr. Hemraj, have recommended his promotion as PGT
(Maths). It is also noted, a meeting of the Management Committee of the
respondent No.3 School was held on February 20, 2010, wherein, the
Committee approved the promotion of the petitioner to the post of PGT
(Maths) with immediate effect. This aspect was noted by this Court in its
hearing dated March 17, 2010 in W.P.(C) No.694/2009, wherein this
Court disposing of the petition, directed that the recommendation of the
fresh DPC along with the decision, if any taken by the Management
Committee, be placed by the School before the Director of Education
within a period of two days from the date of the order and the Director of
Education respondent No.1 was directed to take decision strictly in terms
of the Delhi School Education Rules, 1973 and guidelines of the
Government, if any governing the issue. It was also made clear, the
decision shall be taken within a period of 15 days from the date of
submission of papers by the respondent School and no provisional
appointment shall be made by the School to the post of PGT (Maths).
Accordingly, vide letter dated March 31, 2010, the respondent No.3
School had sent a reference enclosing therewith the relevant documents.
It appears, no decision was taken by the Directorate of Education till the
impugned order dated September 8, 2010 was issued. In the meantime,
the respondent No.3 School, noting that 143 days have since passed and
the School has not received the disapproval of the Director of Education
of the decision of the Management Committee to appoint the petitioner
Mrs. Meenu Shokeen to the post of PGT (Maths) and also noting the
provisions under Rule 98(4) of the Delhi School Education Rules, 1973,
decided to appoint the petitioner Mrs. Meenu Shokeen on promotion as
PGT (Maths) in the pay-scale of Rs.9300-34800 with grade pay of
Rs.4800 with immediate effect. Whereas, vide the impugned order dated
September 8, 2010, the Director had directed the appointment of the
respondent No.2 Hemraj on promotion to the post of PGT (Maths).
5. Mr. Sidddarth Yadav, learned counsel for the petitioner would
attack the impugned order primarily on four grounds. According to him,
the respondent No.1 had considered the ACRs of the petitioner and the
respondent No.2 with effect from 2004-2005 and not with effect from
2003-2004, which is contrary to the O.M. of the DoP&T dated October
6, 2000. According to him, the impugned order ignores the O.M. dated
April 10, 1989, which prescribes instructions on the constitution and
functioning of the DPC, which prescribes that „Good‟ is the benchmark
for promotion and any candidate not achieving the prescribed
benchmark, is to be marked unfit and should not be included in the zone
of consideration. He also states, that as per Rule 98, the respondent No.1
could have either accepted or rejected the appointment of the petitioner.
It was not within his jurisdiction to appoint respondent No.2, meaning
thereby, that the respondent No.1 could have only accepted or rejected
the recommendation of the Management Committee appointing the
petitioner but it was not within the purview of the respondent No.1
Director to substitute the recommendation of the Management
Committee with his own reasoning and appoint the respondent No.2. He
would also state, that applying the provisions of Rule 98(3) and 98(4),
the respondent No.1 is divested of his power upon expiry of 15 days time
since the intimation of decision of the Management Committee. The
decision of the Management Committee was taken on February 20,
2010, which was immediately conveyed to respondent No.1. Even
otherwise, the same was conveyed to respondent No.1 on March 17,
2010 during the course of hearing before this Court. According to him,
even otherwise, it was certainly conveyed to respondent No.1 when
complete papers were submitted on March 31, 2010 as per the directions
of this Court. Therefore, the decision of accepting or rejecting the
decision of the Management Committee should have certainly been
taken not later than April 15, 2010 by respondent No.1. Having failed to
do so, the petitioner by virtue of Rule 98(3) and 98(4) is deemed
confirmed on the post of PGT (Maths). He also plead equity, inasmuch
as the petitioner, since her appointment in the year 2010, has been
working as PGT (Maths) for the last five years and she stood confirmed
in August, 2010. According to him, equity demands that she, being a
more capable teacher, under whose aegis students have shown
exceptional results, should continue on the said post. He would rely
upon the judgments in the case of Chander Pal Jain vs. Delhi
Administration, 61 (1996) DLT 464, Santosh Kumari vs. Ordnance
Battalion, 1988 (6) SLR 45, Sushma Banga vs. Delhi Administration,
2003 (70) DRJ 220, Apinder Kaur vs. Delhi Administration 2001 (59)
DRJ 493, Surendra Singh vs. Manager, Haryana Shakti Sr. Secondary
School 95 (2002) DLT 135, Promila Dixit vs. Govt. of NCT of Delhi
2011 (121) DRJ 177, Amrik Singh vs. Union of India (2001) 10 SCC
424.
6. Mr. Vinay Sabharwal, learned counsel appearing for the
respondent No.3 School, would submit that entire exercise for
appointment of the petitioner as PGT (Maths) has been bona fide and
there was no allegation of mala fide or bias against the management in
conduct of the said exercise. The Appointing Authority for appointment
of every employee of a School, is its Management Committee as has
been prescribed in Rule 98 of Delhi School Education Rules, 1973 and
not the Directorate of Education. He would state, that the procedure to
be adopted by the DPC, have been laid down in various circulars of the
DoP&T, which have been adopted and followed by the Directorate of
Education. According to him, O.M. dated March 10, 1989 prescribes
that the DPC should asses the suitability of the officers for promotion on
the basis of their service record and with particular reference to the
ACRs for the five preceding years.
7. Mr. Sabharwal also refers to different DoP&T circulars, which are
in the nature of guidelines to be followed by the DPC. He would state
that only in the eventuality, that a candidate is found fit for promotion
with a benchmark of „Good‟ after making assessment in terms of
Confidential Report‟s preceding five years, a candidate can be said to
have been promoted. He would compare the ACRs grading of the
petitioner and the respondent No.2 to contend that the petitioner is much
superior in merit compared to respondent No.2 and the decision of the
Management Committee to recommend the name of the petitioner cannot
be faulted. He also states, that the grading „Average‟ in the ACR of the
respondent No.2 being not adverse, and it was only on April 13, 2010
direction was issued that even below benchmark ACR will have to be
communicated to the concerned employee and the DPC in the present
case, having been held much before the said notification, the same is not
applicable to the case in hand. He would also state, by virtue of Rule
98(4) of the Delhi School Education Rules, the promotion of the
petitioner deemed to have been granted by the Directorate of Education
on the failure of the Director to approve the appointment made by the
Management Committee within 15 days. According to him, it is
pursuant thereto that the appointment letter was issued to the petitioner
by the respondent No.3 School. The impugned order dated September 8,
2010 is in violation of the statutory Rules and the action of the
respondent No.3 School promoting the petitioner cannot be faulted.
8. On the other hand, learned counsel for respondent No.1 Mr. Arjun
Mitra, would submit that in view of the order dated March 17, 2010, the
respondent No.3 School could not have appointed the petitioner to the
post of PGT (Maths), even provisionally. This, according to him, is
because the said order clearly restricts the School from making any
provisional appointment to the post of PGT (Maths) without the prior
approval of the respondent No.1. However, despite the same, the School
proceeded to appoint the petitioner to the post of PGT (Maths) even
without the requisite approval. He also state, that the respondent No.1
had sought information/clarificatons from the School vide letter dated
May 11, 2010 and reminder dated May 26, 2010. The information
requested was of core importance to the decision on the promotion being
whether or not the „Average‟ ACRs had been communicated to Sh.
Hemraj, respondent No.2. According to him, the law needs no
elaboration as below benchmark ACRs could not have been held against
the employee if the same were not communicated to him. The deeming
fiction is not attracted since the order dated March 17, 2010 of this Court
in W.P.(C) No. 694/2009 created a procedure to be followed and the said
order has to be seen in the context of the submissions of the parties.
According to him, even otherwise, the deeming fiction is not attracted
since the appointment letter of the petitioner is dated August 23, 2010
while the decision of the respondent No.1 was within a period of 15 days
i.e September 8, 2010 and he would dispute the proposition advanced by
learned counsel for the petitioner that the respondent No.1 had no power
to direct appointment of respondent No.2 and the same is derived from
Rule 98 read with order dated March 17, 2010. He would support the
order passed by the respondent No.1 on the merits of the case on the
basis of material on record and available with it after calling for
clarification from the School and no extraneous material was considered.
Moreover, the speaking order is entirely justified and not being hit by the
vice of arbitrariness, illegality or lack of, it should not be interfered with.
9. Mrs. Avnish Ahlawat, learned counsel for respondent No.2 would
submit that the School in question is an aided school where 95% grant is
given by the Government. For recruitment/appointment which is by
promotion or direct recruitment, Rule 96 of the Delhi School Education
Rules, 1973 prescribes the procedure. Under Rule 96 (2) (b), the
Selection Committee, in case of appointment of a teacher other than
Head of the School shall consist of (i) Chairman of the Managing
Committee or a Member of the Managing Committee nominated by
Chairman; (ii) Head of the School; (iii) in the case of primary school, a
female educationist having experience of school education; (iv) in the
case of aided school one educationist to be nominated by the Director
and one representative of the Director (v) in the case of appointment of
the teacher for any class in the middle stage or any class at the higher
secondary stage and expert on the subject in relation to which the teacher
is proposed to be appointed to be nominated, in the case of an unaided
school by the Managing Committed or in the case of an aided school by
the Director. She would also submit that under Rule 96 (7), where
selection is made by the Selection Committee and the same is not
acceptable to the Managing Committee of the school, the Managing
Committee shall record its reasons for such non-acceptance and refer the
matter to the Director for its decision and Director shall decide the same.
10. She would further submit, that after the selection is made by the
Selection Committee, the appointment is made by the Managing
Committed under Rule 98 but only of the candidates selected by the
Departmental Promotion Committee. She would also submit, under Rule
98 (2) every appointment, made by the Managing Committed of an aided
school, shall initially be provisional and shall require the approval of the
Director provided that approval of the Director will be required only
where the Director‟s nominee was not present in the Selection
Committee/DPC or in case there is difference of opinion amongst the
members of the Selection Committee. She would also submit, Sub Rule
(3) of Rule 98 further provides that particulars of every appointment
shall be communicated to the Director within 7 days from the date on
which the appointment is made and under sub clause (4) the Director
shall be deemed to have approved an appointment made by the
Managing Committee of an aided school if, within 15 days from the date
on which the particulars of appointment, are communicated to him under
Sub Rule (3), he does not intimate to the Managing Committee his
disapproval of the appointment.
11. She would also submit, on September 28, 2007 following the
procedure prescribed under Rule 96 of the Rules, a DPC was constituted
which met on September 28, 2007. The post of PGT (Maths) fell vacant
due to retirement of Shri K.K. Nakra on 31st August 2005. As per the
seniority list, the DPC found that only one teacher-respondent no.2
herein was eligible for promotion as per recruitment rules. The minutes
were signed by Head of School, by subject experts, by DE Nominee and
by Education Officer, Zone 28. However, Chairman showed arrogant
behaviour and used unpleasant language for Education Officer and DE
Nominee, hurting and insulting them and did not sign the minutes for the
reason best known to him but, later on he signed those minutes also.
And as per the Delhi School Education Act and Rule, the respondent
no.2 thus stood selected unanimously by all the members of DPC of
September 28, 2007. She would also submit, that inspite of respondent
no.2‟s selection, he was not given appointment to the post of PGT
(Maths). She would also submit, the school authorities, however, had
submitted the case for approval to Director Education on October 6,
2007 along with DPC minutes which were signed by the Chairman. But
the respondent no.1 instead of approving the appointment of respondent
no.2 moved in a totally different direction and treated this as a
manipulation of record and sought explanation of the Chairman vide
show cause notice dated February 12, 2008. She would also submit, from
this, it is clearly evident that though initially the Chairman may have
some reservation, but, later on, the minutes which were signed by the
four members of the departmental Promotion Committee, were also
signed by him. Respondent no.2 should have been promoted as PGT
(Maths). It is her submission that the respondent no.2 after making
number of representations to the school as well as respondent no.1 then
filed W.P. No.694/2009 seeking direction of the Court to direct
respondents to act on the recommendation of DPC dated September 28,
2007 and to give him appointment to the post of PGT (Maths). She
would also submit, during the pendency of the said writ petition the
Director of Education passed an order dated October, 18, 2008 for
holding a fresh DPC. Fresh DPC also has to be for the vacancy which
became available on August, 31, 2005 and for which only Respondent
no.2 was eligible.
12. She would also submit, since the Director of Education had
already passed the order dated October 18, 2008 this Court without
going into the merit of W.P.(C) No. 694/2009, disposed of the petition
vide its order dated 17th March 2010 directing Director of Education to
take a decision on the minutes of fresh DPC, which was held on October
29, 2009. Meaning thereby that even if the DPC would have
unanimously taken any decision of selecting a candidate, it is Director of
Education who will ultimately have to take final decision as to who
should be given the appointment. The Court also directed that till the
decision of D.E., no appointment will be made. She would also submit
that fresh DPC was held on October 29, 2009, in which along with the
respondent No.2 petitioner was also considered. Though, this DPC was
for a vacancy of the year 2005 and petitioner was not even eligible to be
considered for the same. The Director‟s nominee, EO Zone 28 and
subject expert found respondent No.2 fit for the post of PGT (Maths),
but the Vice Principal of the School and the Chairman again gave a
separate note making certain allegations against the Director‟s nominee
which were uncalled for. In any case, the DPC considered all the ACRs
and found manipulation in the ACR of the respondent No.2, who‟s good
ACR was re-assessed as average. She would also submit that there being
a difference of opinion in the DPC minutes, the matter was to be sent to
the Directorate of Education on March 31, 2010 though the same has to
be sent to DE within two days from the date of the order who was to
decide the matter within 15 days from the date of submission of papers
by the School. She would also submit that the matter was examined by
the District Authorities and the Act Branch of the Directorate with regard
to the rules and instructions issued by the Govt. from time to time and lot
of correspondence took place between the School and the Directorate
and vide impugned order dated September 8, 2010 held that respondent
No.2 Hemraj who was selected by the DPC is to be promoted and that
Hemraj should be allowed to join the duties. The Director of Education
as a matter of fact did not approve the dissent note of the Chairman and
Vice Principal. All the official members of the DPC selected the
respondent No.2 which selection was approved. She would also submit
that in the meanwhile, the Managing Committee, even though the DPC
was held on October 29, 2009 which had not categorically selected the
petitioner-Meenu Shokeen, the Manager vide his letter dated August 23,
2010 appointed her as PGT (Maths) with immediate effect which was
also in violation of the order passed by the Court on March 17, 2010.
This letter was received in the Directorate on 25th August 2010 and Dy.
Director of Education (C/ND) vide his letter dated September 8, 2010
informed the Manager of the School that the Director has not approved
Ms. Meenu Shokeen‟s appointment. Rightly so, she was never selected.
She would also submit that on September 8, 2010, Director of Education
communicated a detailed order on this point also holding that the
respondent No.2 Hemraj be promoted to the post of PGT (Maths). She
would also submit, Ms. Meenu Shokeen was neither eligible for being
considered for promotion to the post of PGT (Maths) nor she was
selected by the DPC. In the DPC, Vice Principal and Chairman had
given their dissenting note but, the majority decision was that the
respondent No.2 Hemraj is to be promoted as PGT (Maths). There being
a difference of opinion, this Court as per Rule 96(7) of Delhi School
Education Rules, 1973, directed the Director Education to take a
decision and thus the order of Directorate of Education dated 8th
September 2010 is perfectly legal and valid.
13. Having heard the learned counsel for the parties, first dealing with
the submission made by Mrs. Avnish Ahlawat, that on the basis of the
DPC held on September 28, 2007, the respondent No.2 could have been
promoted is concerned, as noted, the respondent No.2 was only eligible
for consideration for promotion as per the Recruitment Rules. Because,
there was no clear conclusion of the DPC primarily for the reason, the
DPC was not able to decide that with two „Average‟ and three „Good‟
ACRs, the respondent can be promoted, it decided to refer the matter to
the Act Branch. The Act Branch, in its communication dated October
18, 2008, directed to conduct fresh DPC for promotion of the eligible
candidates. The Act Branch, has not said that the case of the respondent
No.2 only be considered. It appears that the communication dated
October 18, 2008 was challenged by the respondent No.2 before this
Court in W.P.(C) No.694/2009. In its interim order, this Court directed a
fresh DPC be held but the selection may not be finalized till the next
date. In any case, in its final order, this Court had not disturbed the
communication dated October 18, 2008 nor has concluded anything on
the DPC of September 28, 2007. If the respondent No.2 had any
grievance on that ground i.e by a fresh DPC, the zone of consideration is
sought to be enlarged, he should have sought such a direction. In any
case, the petitioner has accepted the final outcome of the W.P.(C)
No.694/2009 and the plea of Mrs. Ahlawat that the respondent No.2
should have been promoted on the basis of the DPC held on September
28, 2007 need to be rejected in view of what I have concluded and
moreover the challenge in this writ petition is by the petitioner and
respondent No.3 School to the communication of the respondent No.1
dated September 8, 2010. The petitioner has not approached this Court
seeking such a relief.
14. Insofar as the submissions made by Mr. Sidharth Yadav are
concerned, the submission of Mr. Yadav that the relevant ACRs of the
years 2003-2004 to 2007-2008 should have been considered, relying
upon the O.M. dated September 17, 1998, which according to him
stipulate the cut off date as January 1 is concerned, suffice to state, that
there is no dispute on this aspect between the respondent No.3 School
nor the respondent No.1 Directorate. I note, from the DPC proceedings
held on October 29, 2009, the DPC has taken into consideration the
ACRs for the period between 2004-2005 to 2008-2009. I also note, that
neither the two Members representing the School nor the three Members
representing the Education Department/Subject Expert in their notes
annexed as annexure A and B respectively raised the issue with regard to
the years for which the ACRs need to be considered. The Committee
had considered the ACRs of the last 5 years immediately preceding the
meeting on October 29, 2009, and the last one being of the year 2008-
2009. If that be so, the first ACR of the five years would necessarily be
of the year 2004-2005. Even otherwise, in the impugned order, the
respondent No.1 had commented that "in 2003-2004 despite giving a
result of about 80% he was graded „Average‟, which possibly could
mean he could have been graded better. Even on that count, the final
outcome, would have been the same. Hence, the submission of Mr.
Yadav that the relevant period for which the ACRs need to be considered
is 2003-2004 to 2007-2008 need to be rejected as it would not have made
any difference.
15. The submission of Mr. Yadav, based on sub-Rule 4 of Rule 98 of
the Education Rules, the Director shall be deemed to have approved the
appointment made by the Management Committee of an aided School, if
within 15 days from the date on which the particulars of the appointment
were communicated to him under sub-Rule 3, if he did not intimate to
the Management Committee his disapproval of appointment is
concerned, I reproduce, for convenience Rule 98 as under:-
"98. Appointing Authority- (1) The appointment of
every employee of a school shall be made by its
managing committee.
(2) Every appointment made by the managing committee
of an aided school shall, initially, be provisional and
shall require the approval of the Director:
Provided that the approval of the Director will be
required only where Director's nominee was not present
in the Selection Committee/DPC or in case there is
difference of opinion among the members of the
Selection Committee:--
Provided further that the provision of this sub-rule shall
not apply to a minority aided school].
(3) The particulars of every appointment made by the
managing committee of an aided school shall be
communicated by such committee to the Director (either
by registered post acknowledgment due or by messenger
who will obtain an acknowledgment of the receipt
thereof), within seven days from the date on which the
appointment is made.
(4) The Director shall be deemed to have approved an
appointment made by the managing committee of an
aided school if within fifteen days from the date on
which the particulars of the appointment are
communicated to him under sub-rule (3), he does not
intimate to the managing committee his disapproval of
the appointment, 2 [and the person so appointed shall
be entitled for his salary and allowance from the date of
his appointment.]
(5) Where any appointment made by the managing
committee of an aided school is not approved by the
Director, such appointment may (pending the regular
appointment to the post) be continued on an adhoc basis
for a period not exceeding three months and the salary
and allowances of the person so continued on an adhoc
basis shall qualify for the computation of the aid to be
given to such school."
16. The scheme of Rule 98 envisages that (i) appointment of every
employee of a School shall be made by its Management Committee; (ii)
every appointment made by the Management Committee of an aided
School shall initially be provisional and shall require the approval of the
Director; (iii) the proviso clause clarifies that the approval of the
Director will be required only where Director‟s nominee was not present
in the Selection Committee/DPC or in case there is a difference of
opinion among the Members of the Selection Committee; (iv) Rule 98(3)
prescribes, the particulars of every appointment made by the
Management Committee of an aided School shall be communicated by
such Committee to the Director within 7 days from the date on which
appointment is made; (v) the Director shall be deemed to have approved
the appointment made by the Management Committee of an aided
School if within 15 days such an approval is not communicated. There
is no dispute that there was a difference of opinion amongst the
Members of the Selection Committee and it required the approval of the
Director. There is no dispute, the decision was taken by the respondent
No.1 in terms of the direction of this Court dated March 17, 2010, which
reads as under:-
"Mr. Vinay Sabharwal counsel for respondent no.2
submits that the respondent school shall take a decision
so as to appoint a candidate on the post of PGT (Maths)
strictly in terms of the Delhi School Education Rules.
Counsel also submits that the Managing Committee of
the school has taken a decision to provisionally appoint
Ms. Meenu Shokeen on the said post of PGT (Maths).
On the other hand, counsel for the petitioner
submits that even in the fresh DPC the case of the
petitioner was recommended for promotion to the said
post of PGT (Maths) by three members but two members
i.e. Principal and Chairman of the Managing Committee
gave their dissent. The contention of the counsel for the
petitioner is that in the case of such a dissent
or difference of opinion no appointment can be made by
the Managing Committee even provisionally as under the
proviso of Rule 98 of Delhi School Education Rules the
matter necessarily has to go to the Director of Education
for his opinion. Mr. Rajiv Nanda counsel for respondent
no.1/Director of Education has also taken the said stand
as taken by the counsel for the petitioner. Without
expressing any opinion on the merits of the
contentions raised by the counsel for the parties, I deem it
fit that let the recommendations of the fresh DPC along
with the decision if any, taken by the Managing
committee be placed by the school before the Director of
Education within a period of two days from the date of
this order and the decision thereon shall be taken by the
respondent Director of Education strictly in terms of
Delhi School Education Rules 1973 and the guidelines of
the Govt. if any, governing the issue. The decision shall
be taken by the Director of Education within a period of
15 days from the date of submission of papers by the
respondent school. Before the said decision is taken by
the Director of Education, no provisional appointment be
made by the school on the said post of PGT (Maths). In
view of the above directions, the present petition
stands disposed of."
17. The respondent No.3 School had sent complete papers on March
31, 2010. It appears that certain clarifications were sought from the
School vide letter dated May 11, 2010 and reminder dated May 26, 2010
by the respondent No.1 Directorate. It is pursuant thereto, the impugned
order was communicated by the Directorate respondent No.1 to the
School. To consider whether the deeming provision of approval would
be applicable in the facts of this case, it need to be considered whether
this Court vide its order dated March 17, 2010 has evolved a special
procedure, which is not akin to the procedure laid down in Rule 98. No
doubt, this Court, in its order dated March 17, 2010 had directed the
School to communicate the recommendation of the DPC along with the
decision, if any taken by the Management Committee within two days
from the date of the order and the Director was to take a decision within
15 days thereafter strictly in terms of the Delhi School Education Rules,
1973, at the same time, the Court had also directed, no provisional
appointment be made by the School on the said post of PGT (Maths).
This direction is a departure from Rule 98 of the Education Rules,
inasmuch as the Rule 98 of the Education Rules contemplate even if
there is a difference of opinion amongst the Members of the Selection
Committee, the Management Committee could have made an
appointment subject to the approval of the Director of Education.
Further, when there is a direction of the Court, not to make any
appointment to the post of PGT (Maths) till the Director takes a decision,
the mandate of the order is, the appointment to the said post shall be as
per the decision of the Director respondent No.1. In other words, the
decision of the Director respondent No.1, shall prevail. The issuance of
the appointment letter dated August 23, 2010, without the leave of the
Court, also demonstrate the keenness of the School to accommodate the
petitioner instead of respondent No.2, who despite the only Teacher in
2007, was not promoted; even in 2009, despite majority view in his
favour, he was not promoted. Surely, the delay on the part of the
Director respondent No.1, cannot be to the prejudice of the respondent
No.2, in whose favour the Director had ultimately passed the impugned
order.
18. The plea of Mr. Yadav, that the deeming provision would come
into effect, would not be sustainable at least in the facts of this case when
there was a difference of opinion amongst the Members of the Selection
Committee and order of this Court dated March 17, 2010 which is a
departure from Rule 98. These facts, would distinguish the judgments in
Surendra Singh (supra) and Promila Dixit (supra), relied upon by Mr.
Yadav, wherein this Court has held that under Rule 98(4) of the Rules,
the approval of the appointment by the Director can be deemed to have
been granted, if not objected to within 15 days as the said provision is a
salutary provision intended to obviate the impasse of a person
commencing his employment and later being told that his appointment
was irregular. If that being the intent of the Rule, the School should
have waited for the decision of the Director or sought his permission. It
could not have itself appointed the petitioner on the pretext of Rule
98(4). As no appointment was to be made, Rule 98(4) has no
applicability.
19. Insofar as the submission of Mr.Yadav that the respondent No.1
could not have in the impugned order directed the promotion of the
respondent No.2 by relying upon the judgment of this Court in Chander
Pal Jain and another(supra), is concerned there is no dispute that in the
case in hand, there was a difference of opinion amongst the Members of
the Selection Committee. Both sides have given their notes/views by
way of annexure A and B. The views were also sent to the Director of
Education pursuant to the orders of this Court on March 17, 2010. It is
not a case where the Selection Committee was unanimous and had sent
the name of the recommended person for approval of the Director. No
doubt, in such a situation, the Director would have given his approval or
refusal thereof. But in a case of this nature, where there was a difference
of opinion amongst the Members of the Selection Committee, the
Director would have to agree with one view. The Director, in the
impugned order, noting the ACRs of the petitioner and the respondent
No.2 and commenting on the low grading given to the respondent No.2,
despite good results during that period, had agreed with the views given
by three members of the Committee for promotion of respondent No.2
on certain additional grounds as spelt out in para 10 of the impugned
order and directed promotion of the respondent No.2. In Chander Pal
Jain (supra), the Court was primarily concerned with a case wherein the
petitioner had sought direction to grant him selection grade by quashing
the order dated March 31, 1975 and August 2, 1975 and order dated July
25, 1974 awarding selection grade to respondent No.5. He sought a
further direction to promote him to the post of PGT (Maths) by enforcing
the order contained in letter dated February 17,1975 by cancelling the
order dated March31, 1975. The petitioner was initially appointed as a
Language Teacher on October 10, 1962 in the D.A.V. Higher Secondary
School, Gandhi Nagar, New Delhi. He was confirmed on the said post.
The said School was bifurcated in two Schools; one D.A.V. Higher
Senior Secondary School No.1 and D.A.V. Higher Secondary School
No.2. Upon bifurcation of the School there were five sanctioned post of
Language Teachers and in fact five Language Teachers were working in
the School. After bifurcation three Language Teachers were posted in
D.A.V. Higher Senior Secondary School No.1 and two Language
Teachers were posted in D.A.V. Higher Secondary School No.2. On
bifurcation, the petitioner was not ready to join D.A.V. Higher
Secondary School No.2 as a Language Teacher and wanted to get
himself posted in D.A.V. Higher Senior Secondary School No.1 in view
of personal interest. The Management agreed to retain the petitioner in
School No.1 as TGT Teacher on the request of the petitioner. One Mr.
Ved Prakash Singhal was transferred to D.A.V. Higher Secondary
School No.2. Since the petitioner had requested to be retained in D.A.V.
Higher Senior Secondary School No.1 as TGT, one Prem Singh Kasana,
who was an Assistant Teacher till that time, was promoted to the post of
Language Teacher in D.A.V. Higher Secondary School No.2 against the
vacancy created on transfer of the petitioner and on subsequent
adjustment against the post of TGT. Sh. Prem Singh Kasana the
respondent No.5 was subsequently promoted to selection grade on May
25, 1974 with effect from September 5, 1971. The petitioner however
was promoted to the post of PGT (Hindi) by an order of the Education
Officer dated February 17, 1975. Subsequently, through an another
order of Education Officer on March 17, 1975, the order promoting the
petitioner to the post of PGT was kept in abeyance. Primarily being
aggrieved by the aforesaid orders giving selection grade to the
respondent No.5 Mr. Kasana and keeping in abeyance his order of
promotion to PGT, the petition was filed. This Court in para 10 has held
as under:-
"10. In order to resolve the issues raised in this writ petition, it
would be appropriate to examine the legality and or validity of
the order of promotion issued by the Education Officer on
17.2.1975 promoting the petitioner to the post of P.G.T. (Hindi),
inasmuch as, the petitioner has relied on this order of promotion
for his challenge to the subsequent action on the part of the
respondents keeping the aforesaid order in abeyance. My
attention has been drawn to the provisions of Rule 98 according
to which, every appointment made by the Managing Committee
of an aided School shall initially be provisional and shall
require the approval of the Director. A careful reading of the
aforesaid Rule 98 makes it explicit that all appointments of an
aided School have to be made by the Managing Committee, but
the same requires an approval, which is to be obtained from the
Director. In the instant case, the order of promotion in respect
of the petitioner was issued by the Education Officer which
action in the light of the provisions of Rule 98 appears to be
illegal and without jurisdiction. The Director can only give an
approval to a proposal submitted by the Managing Committee in
respect of an intending promotion, but no such promotion in
respect of a Teacher of an aided School could be passed by the
Director or any Officer subordinate to him of his own. The
aforesaid finding has been arrived at by me on a careful
consideration of the aforesaid provision of Rule 98 of the Rules.
In this view of the matter, the order dated 17.2.1975 is illegal
and void and has no force of law at all."
20. From the facts and conclusion arrived at by this Court, which have
been noted above, it is clear that this Court had concluded rightly that in
terms of Rule 98, every appointment made by the Management
Committee shall be provisional subject to the approval of the Director.
In other words, all appointments of an aided School are made by the
Management Committee but the same only requires approval of the
Director. It is in that background, this Court had said that no promotion
order in respect of a Teacher of an aided School, could have been passed
by the Director or any Officer subordinate to him of his own (Emphasis
supplied). It is not such a case here. There was a difference of opinion
amongst the Members of the Selection Committee, which was sent to the
Director of Education respondent No.1 for a decision. Surely, while
taking a decision in the facts, the respondent No.1 was within its right to
approve/agree with the majority view of the Members of the Selection
Committee, and direct the promotion of the respondent for certain
justifiable reasons. The judgment as relied upon by Mr. Yadav is
distinguishable. This submission also need to be rejected.
21. Insofar as the submission of Mr.Vinay Sabharwal that on a
comparison of the ACR‟s of the petitioner and the respondent No.2, the
petitioner being more meritorious, was, rightly appointed and the
„Average‟ ACR‟s, not being adverse, were not required to be
communicated till April 13, 2010, when notification was issued by
DoP&T, which was after the Selection Committee had met and the said
instructions being prospective, is concerned, there is no dispute that the
Supreme Court in the case of Dev Dutt vs. Union of India (2008) 5 SCC
had conclusively held that any gradings which are below benchmark
need to be communicated to the Officer concerned to enable him to
make a representation. That be so, the Selection Committee, having met
after the judgment of the Supreme Court in Dev Dutt (supra) and the
judgment being binding on the authorities under Article 141 of the
Constitution of India was required to be followed and the respondent
No.3 School was required to communicate the „Average‟ ACR‟s to the
respondent No.2. Having not done, the said ACRs could not have been
considered to the prejudice of the respondent No.2. On communication
of the same, the respondent No.2 could have represented against the
same to the authorities for upgradation. Be that as it may, the respondent
No.1 had rightly noted in para 10 as under:-
"10. And Whereas, it is a settled law that DPC is the
final authority to determine the fitness of candidates for
promotion. DPC does not merely follow the gradings
given by the School. It is rather, supposed to take an
overall view of the performance of candidates to
ascertain their eligibility for promotion. The dissenting
view of the Chairman and Vice-Principal only deals with
the grading part o the ACRs based on boards results. No
act or misconduct on the part of Sh. Hem Raj which calls
for a lower ACR grading has been brought on record by
the School. He was also not communicated any adverse
remarks, resulting in „Average‟ ACR gradings."
22. The above would make it clear that the DPC is within its right to
not merely follow the gradings given in the ACRs, it can suppose to take
an overall view of the performance of the candidates to ascertain his/her
eligibility for promotion.
23. While approving/directing the promotion of the respondent No.2,
the respondent No.1 has in paras 7 & 8 of the impugned order dated
September 8, 2010 has noted as under:-
"7. At the time of the first DPC in 2007, Sh. Hem Raj had
three „Good‟ graded ACRs and two „Average‟ graded ACRs
during the relevant period. In the year 2002-2003, he was
assessed as „Good‟. In 2003-2004 despite giving a result of
about 80%, he was graded as „Average‟. In year 2004-2005
his result was 83.3% and 56.14% and he was graded as
„Good‟. In the year 2005-2006, his result was 47% and
96.15% in X and XII classes respectively and was graded as
„Average‟. In the year 2006-2007, his result was 80.7% in
class X and 83.3% in class XII and he was graded as „Good‟.
It is also pertinent to mention here that from the year 2006-
2007, though he was a TGT, he was assigned to teach the
senior secondary classes and he achieved good results in
senior secondary classes. A perusal of record shows that
there is discrepancy between the result and grading given to
him. Though the result is not the only criteria, but certainly,
it is one of the most important criterion for teachers. The
bench mark for promotion from TGT to PGT is „GOOD‟.
8. After comparing the above results with the
corresponding ACR grading in the respective years, it
appears that Sh. Hem Raj has not been meted out fair
treatment in the sense that he was given below bench mark
gradings even when his results were reasonably good. Thus
he was denied the promotion, for which he was eligible in
2007 itself."
24. The above reveals, that the decision of the Director in favour of
the respondent No.2 is primarily for the reason that he is senior to the
petitioner and the gradings in his ACRs, does not reflect his overall
performance in right perspective. If that be so, the authority having
taken a decision which is plausible, surely this Court would not like to
take a different view and justify the action of the School in promoting
the petitioner.
25. Insofar as other judgments relied upon by Mr. Yadav are concerned,
in Sushma Banga (supra), this Court had held that when there is no
difference of opinion amongst the Members of the Selection Committee
for promotion to PGT, in such a situation, the approval of the Director in
terms of Rule 98 was not required. Similarly, in Santosh Kumari
Thapa's case, the Director of Education, after almost 13 months held as
the plaintiff did not possess the requisite qualification, relying upon Rule
98 and noting that the Director had not intimated his disapproval to the
appointment, held, the termination of the services of the plaintiff after
expiry of her period of probation of one year was not in order. In view
of my conclusion above, on Rule 98(4), this judgment would not be of
any help to the petitioner. Further the judgment of this Court in Apinder
Kaur (supra), is also not applicable. Further in Amrik Singh (supra),
the Supreme Court had held that even non promotion on the basis of
single adverse remark, is not subject to judicial review. There is no
dispute on the said proposition. It is for the authorities concerned, to
take an overall view and give such a direction as deem fit. In this case,
the Director is an Authority competent under the Rules, who has taken a
decision to promote respondent No.2 and the said decision, being a
plausible view, as held in paragraph 24 of the judgment, the judgment
has no applicability to the facts of this case.
26. One of the submissions of Mr. Yadav, that the equity demands
that the petitioner working as PGT (Maths), on her promotion for the last
five years, should not be disturbed, suffice to state, that the continuance
of the petitioner is on the basis of the protection granted by this Court on
December 6, 2010 in W.P.(C) No.8138/2010. Hence, this submission of
Mr. Yadav is without any merit.
27. Noting the facts, this Court is of the view that the challenge in
these petitions to the order dated September 8, 2010 is without any merit.
The same is dismissed.
CM Nos. 14590/2010, 512/2011 & 11450/2011 in W.P.(C)
7360/2010
CM No. 20972/2010 in W.P.(C) 8138/2010
28. In view of the order passed in the writ petition, the present
applications are dismissed as infructuous.
(V.KAMESWAR RAO)
JUDGE
DECEMBER 22, 2015
ak
