Delhi High Court

Uma Mudgal vs Crpf Public School & Ors on 30 November, 2015

Author: V. Kameswar Rao

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                                      Date of decision: November 30, 2015
+       W.P.(C) 8445/2015, CM No.18089/2015
        UMA MUDGAL
                                                           ..... Petitioner
                          Through:    Mr. Arvind Kumar Gupta, Adv. with
                                      Mr. Abhishek Goyal, Adv.

                          versus

        CRPF PUBLIC SCHOOL & ORS
                                                           ..... Respondent
                          Through:    Mr. Amit Chadha, Adv. for R-1 & 2
                                      Mr. S.S. Sejwal, Law Officer, CRPF
                                      Mr. Sanjoy Ghose, Adv. with
                                      Mr. Dhananjai Rana, Adv. for R-3
CORAM:
HON'BLE MR. JUSTICE V.KAMESWAR RAO
V.KAMESWAR RAO, J. (Oral)

W.P.(C) 8445/2015

1. This petition has been filed by the petitioner challenging the

advertisement dated June 24, 2015 issued by the respondent Nos.1 & 2

for filling up the post of Principal in CRPF Public School, Rohini, Delhi

by direct recruitment and seeking a further direction to the respondents

to convene the DPC for the post of Principal in CRPF Public School,

Rohini, Delhi.

2. It is the submission of Mr.Arvind Kr. Gupta, learned counsel for

the petitioner that the petitioner joined the respondent No.1 School on

July 06, 1992. The petitioner is M.Sc., B.Ed. Thereafter in the year 1996

she has acquired the qualification of M.Ed. (Education Management) and

has also completed M.Phil. (Education) in the year 2008. Her case for

filling up the post of Vice-Principal was not considered by the

respondent No.2. Instead they have appointed one Anjali Malik. The said

appointment is under challenge before this Court. Subsequently, she has

been appointed as Vice-Principal with effect from July 01, 2011. She is a

senior most PGT in the school as well as is the Vice-Principal and

officiating Principal. In the month of February, 2015 the incumbent

Principal - Mr.H.R. Sharma had tendered his resignation. Since the

vacancy of Principal has arisen and as per the rules and regulations of the

Delhi School Education Act and the circulars, the post of Principal is

required to be filled up first by promotion, failing which by direct

recruitment. According to Mr.Gupta, the post of Principal is a selection

post and the benchmark for the post of Principal is "Good". He would

further state that as per Memorandum dated February 08, 2002, the pay

scale of Principal is Rs.10,000-15,200 (pre-revised) and the benchmark

is "Good" and only for the higher pay scale of Rs.12,000-16,500, the

benchmark is "Very Good". The DPC for the post of Principal was held

on May 25, 2015. The DPC did not consider any candidate including the

petitioner on the ground that the benchmark for the post of Principal is

"Very Good" and none of the candidates had that benchmark. Pursuant

thereto the respondents have issued the impugned advertisement dated

June 24, 2015.

3. According to Mr.Gupta, the petitioner made representations to the

respondents on July 10, 2015, July 16, 2015, July 21, 2015 and August

05, 2015 and requested them to reconvene the DPC, as the procedure

adopted by the respondents is illegal and also the benchmark for the post

is "Good" and not "Very Good". He has also drawn my attention to the

reply to the RTI application received by the petitioner vide letter dated

August 03, 2015, wherein the Govt. of NCT of Delhi-respondent No.3

has stated that for promotion of Principal through DPC conducted by

UPSC in its DPC meeting held on 02nd, 03rd, 04th and 07th April, 2014,

the benchmark was considered as "Good". It is also his submission that

the benchmark being "Good", which the petitioner has achieved, she

could not have been denied promotion to the post of Principal. In other

words, it is his submission that had the petitioner been considered with

the benchmark "Good", she would have been promoted and there was no

occasion for the respondents to advertise the post of Principal by filling

up the same through direct recruitment. He has also stated that even if

the benchmark is "Very Good", in the absence of any communication of

the ACRs below the benchmark of "Very Good" for the relevant years,

the said ACRs could not have been considered by the respondent Nos.1

& 2 at the time of promotion. He would rely upon the judgment of the

Supreme Court in the case reported as 2008 (8) SCC 725 Dev Dutt vs.

Union of India & Ors. He would also rely upon the order dated

February 23, 2015 passed by the Division Bench in LPA 99/2015

Balwant Kaur vs. Director of Education & Ors., wherein the learned

counsel appearing for the Director of Education has in the hearing dated

February 27, 2015 stated that as per the instructions given to her, the

benchmark for appointment by promotion to the post of Principal in a

Senior Secondary School is "Good". It is his submission that this

statement of learned counsel for the petitioner is in conformity with the

reply to the RTI application given on August 03, 2015. He has also

drawn my attention to the judgment passed by this Court in the case of

Smt. Balwant Kaur vs. Director of Education & Ors., W.P.(C)

7418/2014 dated January 09, 2015.

4. On the other hand, Mr.Amit Chadha, learned counsel for

respondent Nos.1 & 2 would submit that there is a fallacy in the

argument of learned counsel for the petitioner inasmuch as the pay scale

for the post of Principal was Rs.10,000-15,200 but later on revised to

Rs.12,000-16,500, which was thereafter revised to Rs.15,600-39,100

with a grade pay of Rs.7600 (under 6th CPC) and as per instructions of

February 08, 2002, the promotions upto and excluding the level in the

pay scale of Rs.12,000-16,500, the benchmark is "Very Good". That

apart, he would rely upon the Central Civil Services (Revised Pay)

Rules, 2008, wherein it is shown, the scale of Rs.10,000-15,200 was

revised to Rs.12,000-16,500 and which was further revised to

corresponding pay band and grade pay under the 6th Pay Commission i.e.

Rs.15,600-39,100 with grade pay of Rs.7600. He would state, there is no

illegality in the action of the respondents. It is also his submission that

there is no challenge to the gradings "Good" in the ACRs in the writ

petition. He has also pointed out the averments made by the petitioner in

the writ petition to contend that the petitioner was aware of her gradings

being "Good" in the ACRs and not very good and the said gradings

remained unchallenged in this petition, no relief in that regard can be

granted.

5. Mr.Sanjoy Ghose, learned counsel for the respondent No.3 would

primarily rely upon the judgment of the Division Bench in LPA 99/2015

Balwant Kaur vs. Director of Education & Ors., wherein it has been

categorically held that post of Principal was in the pay scale of

Rs.12,000-16,500 before the recommendations of the 6th Central Pay

Commission. Pursuant thereto, the pay scale of the Principal was revised

in Pay Band-3 of Rs.15,600-39,100 with grade pay of Rs.7600.

According to him, even this Court had in J.S Tomar vs. Govt. of NCT of

Delhi & Ors., Writ Petition (Civil) No.7846/2015 decided on August 19,

2015 has held that the benchmark for the post of Principal is "Very

Good". According to him, two Courts having come to a conclusion that

the post of Principal was in the pay scale of Rs.12,000-16,500 before the

recommendations of the 6th Central Pay Commission and the fact that the

benchmark for the post of Principal is "Very Good", this Court would

not take a contrary view to upset the settled position. According to him,

the present petition is liable to be dismissed.

6. Mr.Gupta in his rejoinder to the submission made by Mr.Amit

Chadha would submit that the petitioner has for the first time come to

know that the gradings in the ACRs for the 5 years were "Good".

According to him, the case of the petitioner in the writ petition being that

the benchmark being "Good", the petitioner meeting the benchmark of

"Good" in the relevant years, should have been promoted. The said

averment in the writ petition cannot be considered to mean that she has

accepted her gradings as "Good".

7. Having heard the learned counsel for the parties, the only issue

which arises for consideration is whether the benchmark for the post of

Principal is "Good" or "Very Good". There is no dispute to the fact that

the petitioner was not graded as "Very Good" by the DPC held on May

25, 2015 keeping in view her record. The revised pay rules as relied

upon by Mr.Chadha stipulate as under:-

SI. No.     Post           Present Scale   Revised Pay   Corresponding    Para No. of
                                           Scale         Pay Band &       the Report
                                                         Grade Pay
                                                         Pay        Grade
                                                         Band       Pay
5           Principal      10000-15200     12000-16500   PB-3       7600

Pre-revised scale (S-21)                   Revised Pay Band + Grade Pay
Rs.12000-375-16500                         PB-3 Rs.15600-39100+7600

8. From the perusal of the above, it is noted that before the 6 th

Central Pay Commission, the pre-revised scale of Principal was

Rs.10,000-15,200, which was revised to Rs.12,000-16,500( a sort of

upgradation). The said scale of Rs.12,000-16,500 was revised to pay

band of PB-3, Rs.15,600-39,100 with grade pay of Rs.7,600, post 6 th

Central Pay Commission recommendations.

9. Mr.Gupta, learned counsel for the petitioner during his

submissions did concede to the fact that grade pay of the post of

Principal is Rs.7600/-. If that be so, I note that it is only the post of

Principal which has the grade pay of Rs.7600 and not any post in the

feeder grade(s). Hence, it conclusively proves that the pre-revised scale

being 12,000-16,500 and in terms of the office memorandum dated

February 08, 2002, as noted by the Division Bench it must be held that

the post of Principal was in the pay scale of Rs.12,000-16,500 (pre-

revised) and in the pay band PB-3 with grade pay of Rs.7600 (revised

under 6th CPC), it must conclusively be held that the benchmark is "Very

Good" and as the petitioner could not be graded as "Very Good" by the

DPC was not promoted.

10. I note for benefit the following paragraphs from the judgment of

the Division Bench in Balwant Kaur vs. Director of Education & Ors.,

LPA No.99/2015:-

"6. It is not in dispute that the post of Principal was in the pay scale Rs.12000-16500/- pre-recommendations of the 6th Central Pay Commission being implemented and post-recommendations of the 6th Central Pay Commission being implemented in Pay Band-3 with Grade Pay Rs.7600/-, Pay Band-3 was having the band Rs.15600-39100/-.

7. A perusal of para 3.1 of the Office Memorandum dated February 08, 2002 evinces that where merit was the criteria for promotion reference to the relevant bench mark had to be determined with reference to the subsequent paragraphs of the Office Memorandum. Para 3.3 of the Office Memorandum dated February 08, 2002 would make it clear that for the post in the then existing pay scale Rs.12000-16500/- and above the bench mark prescribed was 'Very Good'. For post below the pay scale Rs.12000-16500/- the bench mark was 'Good'. It is trite that since the Office Memorandum continued to exist, replacement pay scales or replacements placement in the pay bands would be termed as what would be the bench mark. As noted above, the scale Rs.12000-16500/- was placed in Pay Band-3 with Grade Pay Rs.7600/-. When the promotion was made the recommendations of the 6th Central Pay Commission had come into being. The learned Single Judge has clearly erred in holding that the appellant is comparing oranges with apples. The learned Single Judge overlooked the fact that the applicability of the

Office Memorandum dated February 08, 2002 had to been seen with reference to the pay scales then in vogue, of course as replaced by the pay bands."

11. On the aspect of non-communication of ACRs for the relevant

years, wherein the petitioner has been graded as "Good", suffice to state,

OM dated February 08,2002 being very clear that the benchmark is

"Very Good" for the posts above pay scale of Rs.12,000-16,500, and

noting the fact that the petitioner was aware of her gradings being

"Good" in those years, had not cared to challenge the said gradings on

the ground that they are below the benchmark and could not have been

considered by the DPC in view of the ratio of the judgment of the

Supreme Court in Dev Dutt (supra). In the absence of any challenge to

the said gradings in this writ petition, one must proceed on a premise that

the petitioner has accepted those gradings. If that be so, the submission

of learned counsel for the petitioner that the petitioner was under the