Delhi High Court
Binu Chaudhary vs Lt. Governor Of Delhi And Ors. on 17 March, 2016
Author: S.Ravindra Bhat
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 03.03.2016
Pronounced on: 17.03.2016
+ LPA 914/2013
BINU CHAUDHARY .........Appellant
Through: Ms. Jyoti Singh, Sr. Advocate with Sh. Arvind.
K. Gupta and Sh. Anshul Garg, Advocates.
Versus
LT. GOVERNOR OF DELHI AND ORS. ........Respondents
Through: Sh. Sanjoy Ghose, ASC (Civil), for GNCTD.
Sh. Romy Chacko with Sh. Varun Mudgal, Advocates,
for Respondent No.4.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MS. JUSTICE DEEPA SHARMA
MR. JUSTICE S. RAVINDRA BHAT
%
1. The appellant is aggrieved by the judgment of a learned Single Judge,
declaring that her selection as Vice-Principal of the Nutan Marathi Senior
Secondary School (hereafter "the school") was contrary to rules framed for
the purpose under the Delhi School Education Act, 1973 and the rules
framed thereunder (herafter "the Act" and "the Rules").
2. The appellant joined the school as Post Graduate Teacher (PGT) in
Painting; the third respondent, Birpal Singh (who preferred WP 502/2012
which was allowed by the impugned judgment) joined as PGT (Maths). A
vacancy arose in the post of Vice-Principal in 2009. At that time, the
LPA 914/2013 Page 1
appellant did not hold a B.Ed qualification. Birpal Singh, who did,
represented that the vacancy should be filled. The school management took
no action; this representation too was ignored. On the contrary, by an order
dated 25.06.2010, the post of Vice-Principal itself was abolished. This
position, however, changed and on 21.03.2011, when by a letter (Post
Fixation Sanction letter No. DE.22/11/PFC/Aided/2009-10/70-75) the
Directorate of Education, Govt. of NCT of Delhi (GNCTD) restored the post
with retrospective effect from 2009-2010. By a letter dated 16.05.2011, the
Director of Education GNCTD [hereafter "Director"] asked the school to
hold a DPC for filling the vacancy; this letter also indicated the eligibility
criteria under the Rules. The relevant extract of the said letter is as follows:
"To,
The Chairman/Manager/HOS, Nutan Marathi, Senior Secondary,
School,
PaharGanj,
New Delhi-110055.
Subject: D.P.C. for the post of Vice Principal
Sir,
Please refer our letter vide No.Z-28/252 dated 4-05-2011 in
reference to representation of Shri Birpal Singh. The
Management of your school has failed to give any reply
explaining the ground and reasons for non conduction of D.P.C
for the post of Vice Principal since December, 2009 when the
post fell vacant, despite several representation of Shri Birpal
Singh continuously since December, 2009 as per rule enclosed.
It is apparent that Management has not only ignored the
LPA 914/2013 Page 2
disposal of representation of Shri Birpal Singh since December
2009 but also the Management has failed to fulfill the claim of
employees and violated the Rule 64(1) (i) and 64(1) (g) of
D.S.E.A.R 1973 which further constraint to invoke action against
Management which may be reduction of Grant-in-Aid as per
Proviso of D.S.E.A.R,1973.
Now therefore the Management of Nutan Marathi Senior
Secondary School is hereby directed to conduct the D.P.C for the
post of Vice-Principal w.e.f. December, 2009 to avoid further
contravention of Rule 64(1)(i) and 64(1) (g) and nullify the
grievances of employees in terms of embarrassment/harassment.
It is issued as per approval of D.D.E (C & N.D). With
issuance of this letter all the representations of Shri Birpal Singh
stand disposed of.
Sd/-
Education Officer"
It is accepted that this meant that the candidature of those eligible when the
vacancy first arose, had to be considered as and when the question of filling
up the vacancy was to be regarded.
3. In this background, Birpal Singh filed WP 502/2012 for a direction
that the School should fill up the vacancy in the post of Vice-Principal and
that he should be considered for it. Soon after notice was issued in that
petition, apparently the school management committee held a meeting on
21.01.2012 and decided to relax the norms contained in the relevant rules
applicable for recruitment to the post of Vice-Principal, to enable
consideration of the appellant. A seven member Departmental Promotion
Committee (DPC) met on 27.01.2012 and considered the names of those
deemed eligible; the DPC consisted of an external subject expert- nominated
by the GNCTD as well as the nominee of its Director, in keeping with the
LPA 914/2013 Page 3
requirement under Rule 96 of the Rules. The Committee recommended the
selection of the appellant. The relevant extracts of its minutes of meeting are
as follows:
"The Committee reviewed Seniority List, Five Year A.C.Rs,
Result, Work and conduct report, integrity Certificate, Extra
Ordinary Leaves Certificates required for promotion of the
eligible candidates and found no court case/vigilance case
pending against candidates/post in the school.
The society received in W.P.(C) No. 502/2012-Birpal Singh Vs.
Lt. Governor (Administrator), Delhi & Others in Hon'ble High
Court of Delhi at New Delhi, approved by the Hon'ble High
Court asking to reply the petition by 17th July, 2012.
Accordingly, reply will be sent to the Hon'ble High Court and
directed by The Directorate of Education in Post fixation
Sanction letter No. DE.22/11/PFC/Aided/2009-10/969-972 dated
25.06.2010 the post of Vice Principal was abolished. However,
the post was allowed/restored with retrospective effect, i.e. 2009-
10 Vide Post Fixation Sanction letter No.
DE.22/11/PFC/Aided/2009-10/70-75 dated 21.03.2011.
The School Management Committee meeting held on 21.01.2012
also resolved that recruitment rules for the post of Vice Principal
were relaxed as per the Recruitment Rules of the Directorate of
Education in the case of candidate belonging to the same school
i.e. B.Ed. Degree. After evaluating the A.C.R.s and overall
performance of all the five candidates recommend the name of
Miss BinduChoudhary for the post of Vice Principal in the Nutan
Marathi Senior Secondary School, PaharGanj, New Delhi-
110055. No Financial Benefit will be allowed for the selected
candidate till the date of joining."
4. The Appellant was allowed to take charge as Vice-Principal. On
16.11.2012, the Directorate of Education refused to approve the appointment
of the Appellant. The letter issued in that regard, impugned by her in WP
7562/2012, reads as follows:
LPA 914/2013 Page 4
"No. F/28/2012/Aided/09/1980-1989
Dated: 16.11.12
ORDER
Promotion and Appointment of Ms. Binu Chaudhary, PGT to the
post of Vice Principal in Nutan Marathi Sr. Sec. School,
PaharGanj, New Delhi not being in accordance with the
Recruitment Rule and being in the violation of Rule 97 of DSEAR
1973 is hereby rejected with retrospective effective from the date
of her joining.
This issues with prior approval of Worthy Director of Education
vide U.O. No. 10550/DE dated 14/11/2012 Review DPC be
conducted to fill up the post.
D.D.E.(C/ND) Plot No.5, Jhandewalan"
5. In her writ petition, it was contended that the DPC had rightly selected
her and she secured a right to be appointed and continue as a Vice-principal
under Rule 97 of the Rules, in terms of the judgment reported as Chandra
Mohan Gururani v Director of Education & Ors 137(2007) DLT 323 (DB).
It was urged that presence of the nominee of the Director in the DPC dated
27.01.2012 had the effect of granting deemed relaxation/approval under Rule
97 of the Director. As regards the eligibility norms, it was contended that the
circular of 29.01.1991 was applicable; it does not require the eligibility
criteria of a B.Ed degree for appointment to a post of Vice-Principal. The
notification dated 19.02.1991 is applicable not only as providing for
qualifications for appointment to the post of Vice-Principal in government
schools, but also for every senior secondary school including aided schools,
and there is no norm obliging a candidate to possess B.Ed qualification for
being appointed to that post. It was also contended that by virtue of Rule 100
(c) and Rule 102 of the Rules, the requirements for appointment as a Vice-
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Principal in government schools apply to appointment to the post of Vice-
Principals in other schools. Lastly it was urged that in 2010, before the
conduct of DPC, the appellant had obtained B.Ed qualification and was in
any event eligible even if it was held that such degree is essential.
6. As to whether a B.Ed qualification was essential, the learned Single
Judge, after considering the notifications of 19.04.1977, 07.04.1980 and the
amendment contained in the notification dated 29.01.1991, held as follows:
"13. On behalf of Ms. Binu Chaudhary, the notification dated
29.1.1991 which is filed and relied upon cannot be relied upon
for the simple reason that the same contains a typing mistake and
gives a wrong impression as if the requirement of B.Ed
qualification is not required for appointment of vice-principal.
The correct notification dated 29.1.1991 has been filed on behalf
of the Director of Education, and which I have reproduced
above. When we see this correct notification dated 29.1.1991, it
is shown that appointment to the post of vice-principal is by
selection and as per para 5(b) a B.Ed degree is a necessary
educational qualification which is required for being appointed
as the vice-principal. Even with respect to promotion to the post
of vice-principal as per para-6 of the notification dated
29.1.1991, the age criteria has only been exempted but other
qualifications are required and which are specified in column 5
of the notification dated 29.1.1991 and which column 5(b) as
already stated requires B.Ed qualification for being appointed as
the vice-principal. Any doubt in this regard is also removed when
we refer to the corresponding paras of the Hindi language
notification dated 21.1.1991 and which makes it clear that for the
promotion post of a vice-principal the candidate must have the
qualifications stated in para 5 of the notification. I therefore,
cannot agree with the arguments urged on behalf of Ms. Binu
Chaudhary that there is no requirement of B.Ed qualification for
being appointed as a vice-principal in terms of this notification
dated 29.1.1991. It may also be stated that reliance placed on
behalf of Ms. Binu Chaudhary upon column 9 of the notification
LPA 914/2013 Page 6
that the same entitles a person to be appointed as a vice-
principal without B.Ed degree is an argument without merit
because column 9 does not deal with qualifications required for
the post of a vice-principal and it only provides the grade from
which promotion is to be made. The required grade is of
PGT/HM for promotion to the post of vice-principal and this
column 9 hence cannot be said to be concerned with
qualifications and which are the subject matter of column 5.
What should be the feeder cadre or the grade is a subject matter
totally different from the educational qualifications which are
required for being appointed to the post of vice-principal. The
argument urged on behalf of Ms. Binu Chauhary that the
notification dated 29.1.1991 does not require a B.Ed degree is
thus rejected, and in fact an observation is made that both the
counsels as also the parties must be careful while giving typed
copies to the Court and the counsels must take pain to ensure
that unintentional or negligent typing mistakes do not occur.
14. So far as the argument urged on behalf of Ms. Binu
Chaudhary that as per column 1 of the notification dated
19.2.1991 is concerned, the appointment as vice principal is
mentioned with respect to all vice-principals whether of
government schools or all other senior secondary schools
including aided schools, this argument once again is absolutely
hollow for two reasons. Firstly, this notification dated 20.4.1977
is for making amendments to the notification dated 20.4.1977
and which notification is only for appointment of vice-principal
in government senior secondary schools. Therefore an
amendment notification has necessarily to be of the same subject
matter as of the main notification and since the main notification
is for appointment of vice-principal in government higher
secondary schools, the notification dated 19.2.1991 also has to
be read as being applicable not to aided schools but only to
government schools. Further, in this regard I agree with the
arguments urged on behalf of counsel for Director of education
that even the language of column 1 of the notification dated
19.2.1991 basically is with respect to the fact that reference in
the same is to government schools up to the senior secondary
school's levels and the language of the notification 19.2.1991 is
LPA 914/2013 Page 7
not for the purpose of applying the same to the government
schools and every other aided or unaided private senior
secondary schools.
15. The first notification dated 19.4.1977 is with respect to
appointment of vice-principals and the qualifications which were
required of vice-principals were those as per the second
notification dated 7.4.1980 and which applied specifically to all
re-cognized private schools. Therefore, this last notification
would apply to the school in question which is an aided school.
Accordingly, I hold that the notifications which will apply in
these cases are notifications dated 7.4.1980 and 29.1.1991 and
not the notifications dated 19.2.1991 and the wrongly typed copy
of the notification dated 29.1.1991 relied upon on behalf of Ms.
Binu Chaudhary."
7. The argument based on applicability of Rule 100 (c) and 102, i.e that
the norms applicable to Govt of NCT schools do not mandate a candidate for
the Vice-Principal's post to hold B.Ed qualifications, was rejected; the single
judge held that the applicable notifications (19.04.1977, 07.04.1980 and the
amendment notification dated 29.01.1991) were statutory in character and
therefore, did not apply. Similarly, he rejected the submission that the
appellant was eligible as she had obtained a B.Ed degree by holding that the
DPC was obliged to consider the candidature of only those eligible in 2009,
when the vacancy arose and not of those who acquired qualifications later.
8. Ms. Jyoti Singh, learned senior counsel for the appellant submitted
that the learned Single Judge fell into error in holding that for selection to the
post of Vice-Principal, a candidate had to possess B. Ed degree. She relied
on a circular of 29.01.1991 and stated that this had sought to amend the
eligibility criteria for the post of Vice-Principal. She also relied on the first
notification of 19.04.1977 and pointed out that these rules too did not
LPA 914/2013 Page 8
prescribe that a candidate ought to posses B.Ed degree to be eligible for
promotion to the post of Vice-Principal. It was next submitted that in any
case, the rules relied on by the learned Single Judge clearly stated that the
essential qualification requirement could be relaxed; in the present case, the
Managing Committee had relaxed this condition, in its meeting dated
21.012012. The DPC (which consisted of outsiders and official nominees)
approved this relaxation and selected the appellant. In these circumstances,
the Director, according to learned senior counsel, ceased to have any
jurisdiction over the matter and the appointment was deemed to have been
approved upon expiry of the fifteen day period provided by Rule 98, by
operation of Rule 98 (4).
9. It was submitted that the Director's letter of 16.11.2012, impugned by
the appellant was not only contrary to Rule 98 (4) but arbitrary, because it
did not take into account all antecedent relevant facts. Counsel submitted
that the DPC had considered the appellant most suitable for appointment and
had selected her; she functioned as Vice-Principal for 11 months without any
objection or complaint; she had over 22 years experience in the school and
was a senior colleague of most teachers. Most importantly the Director did
not furnish any reason to reject the relaxation of the essential qualification
condition by the School Managing Committee, on 21.01.2012.
10. Sh. Sanjoy Ghose, learned counsel for the GNCTD and Sh. M.G.
Kapoor, learned counsel appearing for Birpal Singh argued that the
impugned judgment does not call for interference. It is submitted that the
rules relied upon by the appellant, i.e. framed in 1997, applied to the post of
Vice-Principal in Government Higher Secondary Schools, Teachers Training
LPA 914/2013 Page 9
Institutes and for Head Masters in Government Adult Evening Schools. The
relevant rules, however, for the post of Vice-Principal in recognized private
schools, including unaided private schools, was framed and published on
07.04.1980. This categorically required and stipulated that for promotion -
which were to be the primary mode of recruitment to the post of Vice-
Principal, eligible PGTs/Head Masters with at least five years' experience as
PGT/Head Masters could be considered. The educational qualifications
clearly stipulated inter alia in addition to Masters Degree, also a degree in
teaching/education from a recognized University or equivalent. In these
circumstances, the appellant was ineligible and could not have been selected.
It is submitted by learned counsel for GNCTD that the arguments with
respect to applicability of Rule 98(4) are not sound. He argued that if a
candidate does not possess essential qualifications prescribed by rules, unless
the Director passes an order relaxing the norms, the question of automatic
approval of the appointment would not arise.
11. It is submitted that the Managing Committee of the school in this case
unilaterally sought to relax the B.Ed qualification requirement and the
Director had never approved it. Learned counsel also argued that the
participation of the Director's nominee did not mean any implicit approval
by the Director of the decisions taken by the Selection Committee and
endorsement of such decision by the Managing Committee.
Analysis and conclusions
12. Section 8(1) of the Act enables the Administrator to frame rules
"regulating the minimum qualifications for recruitment" of employees of
recognized private schools. Similarly, Section 13 confers an identical power
LPA 914/2013 Page 10
on the Administrator for "regulating the minimum qualifications for, and
method of recruitment of employees of unaided minority schools." The
appellant's submission that the terms and conditions applicable to recognized
unaided schools so far as they relate to recruitment to the post of Vice-
Principal were regulated by the notification and rules dated 20.04.1977, as
amended by further notification dated 19.02.1991 was rejected by the learned
Single Judge.
13. To appreciate this argument, it would be necessary to extract the
relevant part of the rules which are as below:
"Recruitment Rules for the Post of Vice-Principal and Others Vide
Notification F.2(6)/70-S.II/Part, Dated: 20-04-1977 (duly amended) Vide
Notification No.F.27/7/88-Edn., Dated 19-02-1991
1. Name of the Post : 1. (i) Vice-Principal Govt. Hr.
Sec. Schools.
(ii) Vice-Principal, Teachers
Training Institute for Male
Candidates.
(iii) Headmaster, Govt. Adult
(Evening) Schools, for Male
Candidates.
Note: Male or female
candidates will be considered
for appointment to the posts
meant for such candidates
only.
XXXXXX XXXXXX XXXXXX
10. Method of recruitment : By promotion
whether by direct rectt. or by
LPA 914/2013 Page 11
promotion or by
deputation/transfer and
percentage of the vacancies to
be filled by various methods.
11. In case of rectt. by : Promotion:
promotion/deputation/transfer,
grades from which 1.(a) P.G. Teachers (Special Cadre)
promotion/deputation/transfer excluding PGT Physical Education
to be made. or
(b) P.G. Teachers (Admn. Cadre)
excluding PGT Physical Education
or
(c) P.G. Teachers (Teach.
Education): or
2. Headmaster, Middle School. With
3 years regular service in the posts
under the Delhi Admn. And
possessing at least a Master's
Degree from a recognized
University or equivalent."
14. These rules were subsequently amended on 19.02.1991. The relevant
extracts of the said amendment dated 19.02.1991 are as follows:
"SECRETARIAT EDUCATION DEPARTMENT
NOTIFICATIONS
Delhi, the 19th February, 1991
No.F.27(7)/88-Edn./295- In exercise of the powers conferred by
the proviso to Article 309 of the Constitution of India, read with
the Government of India, Ministry of Home Affairs, Notification
No.F.24/78/68-DH(S), dated 24-9-1968, the Administrator of the
LPA 914/2013 Page 12
Union Territory of Delhi, after previous consultation with the
Union Public Service Commission, New Delhi is pleased to make
the following amendments to the Schedule annexed to this
Administration Notification No.F.2(6)/70-S.II/part dated 20th
April, 1977, containing the rules regarding the method of
recruitment and qualification necessary for appointment to the
post of (i) Vice-Principal, Government Higher Secondary
Schools (Male and Female), (ii) Vice-Principal, Teachers
Training Institutes (For Male candidates) (iii) Head Master,
Government Adult (Evening) Schools (for male candidates) in the
Directorate of Education, Delhi Administration, Delhi, namely:-
AMENDMENT
In the said Schedule, for the existing entries under columns 1
(Name of Post), 2 (No. of post), 3 (Classification), 4 (Sale of
Pay), 7 (Whether benefit of added year of service admissible
under rule 30) of the CCS (Pension) Rules, 1972, 12 (In case of
rectt. by promotion/deputation/transfer, grades from which
promotion/deputation/transfer to be made) and 13 (if a DPC
exists, what is its composition), the following shall be substituted,
namely:-
"Column I-(i) Vice-Principal, Government and Senior Secondary
Schools, Male-337. Female-315.
(ii) Vice-Principal, Teachers Training Institutes (For Male
candidates-1)
(iii) Head Master, Government Adult (Evening) Schools (for
Male-12)
Column 2-665. (1990) Subject to variation dependent on work
load.
Column 3-GCS Group 'B'Gazetted Non-Ministerial.
Column 4-Rs.2000-60-2300-75-2375-EB-75-2825-EE-75-3200-
3300-EB-100-3500.
Column 7 - Not Applicable.
LPA 914/2013 Page 13
Column 12 - Promotion:
1(a) Post Graduate Teachers (Spl. Cadre) excluding PGT
Physical Education; or
(b) Post-Graduate Teachers (Admn Cadre) excluding PGT
Physical Education; or
(c) Post-Graduate Teaches (Tech. Education), or
2. Head Master, Middle Schools,
With 3 years regular service in the posts under the Delhi
Administration and possessing at least Masters' Degree from a
recognized University or equivalent."
15. It is immediately apparent that both the 20.04.1977 rules and that of
19.02.1991 relate to recruitment to the post of Vice-Principal in government
and government-aided senior secondary schools. Apart from the fact that the
title to the rules explicitly so state, the reference to proviso to Article 309 of
the Constitution of India - in the notification of 19.02.1991, clears the
controversy beyond any doubt. That power can be exercised only in relation
to those working in civil posts under a State or Union or in relation to a civil
service under a State or Union. Therefore, this Court is of the opinion that the
learned Single Judge's finding that the 20.04.1977 notification and
19.02.1991 amendment notification were inapplicable, is sound.
16. The next question is what were the relevant rules applicable for
recruitment to the post of Vice-Principal in recognized private schools? The
notification of 07.04.1980 states that it is made in exercise of powers framed
under Section 8(1) and Section 13 of the Act. The relevant portions of that
notification are extracted below:
"EDUCATION DEPARTMENT
LPA 914/2013 Page 14
NOTIFICATION
Dated, the 7th April 1980
No.F.32/I/84/Gen/78-80/3721-4161.-In exercise of the powers
conferred vide Sec.8(1) and Section 13 of Delhi School Educaton
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 Recruitment Rules for
the post of Principal and Vice-Principal in Recognized Pvt.
Schools including Unaided Minority Schools in Consultation
with the Delhi School Education Advisory Board and Central
Board of Secondary as per Annexure "A" & "B".
These Recruitment Rules shall come into force with immediate
effect.
ANNEXURE 'A'
Recruitment Rules for the post of Principal working in
Recognized Schools in the Union Territory of Delhi.
********** **********
ANNEXURE 'B'
Recruitment Rules for the post of Vice-Principal working in Government aided
School and recognised Schools in the Union Territory of Delhi.
Name of Scale of Whether Age limit for direct Educational qualification
the Post Pay selection recruits
post or
non-
selection
LPA 914/2013 Page 15
Vice- Rs.650-30- Selection (a) Not exceeding 45 Essential:-
Principal 740-35- years (relaxable by 5
810-EB-35- years for a candidate (a) Master's degree
880-40- belonging to Scheduled with at least Second
1000-EB- Caste/Scheduled Tribes. Division from a
40-1200 recognised University or
Age relaxable in case of equivalent.
the candidates belonging (b) Degree in Teaching
to the same school. Education from a
recognised University or
equivalent.
(c) 10 years experience
of teaching as TGT or 5
years experience of
teaching as PGT.
Condition of second
division relaxable in
case of candidates
belonging to the same
school and also in case
of Scheduled
Caste/Scheduled Tribes.
Desirable:-
(i) Experience in
Administrative charge of
a recognized High/Hr.
Sec. School/Intermediate
College.
(ii) Doctorate Degree.
(iii) M.Ed. Degree from
a recog. University.
XXXX XXXX Method of In case of rectt. by XXXXX
rectt. promotion
deputation/transfer
grades from which
promotion/deputation/t
ransfer to be made
XXXX XXXX By Promotion out of (i) XXXXX
Promotion PGT/HM of the same
failing school with at least 5
which by years experience as
direct PGT/HM.
recruitment
(ii) PGTs with at least 10
years experience as TGT
in case of Secondary
LPA 914/2013 Page 16
Schools.
The provision for relaxation reads as follows:
"NOTE.-Competent Authority may relax the essential
qualifications in exceptional cases of the candidates of the same
school, after recording reasons thereof."
17. From the above extract, it is quite clear that so far as the post of Vice-
Principal in private recognized schools - whether aided or not- was
concerned, the educational qualification prescribed clearly was and continues
to be, that the candidate had to possess post graduate degree and a degree in
teaching from a recognized University. No doubt, this was relaxable; but by
the "competent authority" and in "exceptional cases". The power to
relaxation of qualification is also additionally provided for in Rule 103,
which stipulates as follows:
"103. Power to relax qualifications.- (1) The Affiliating Board,
or in the case of primary or middle schools, the appropriate
authority, may, in case of non-availability of trained or qualified
teachers in a particular subject, relax the minimum qualifications
for such period as it may think fit.
Provided that no such relaxation shall be made except with the
previous approval of the Director.
(2) The minimum qualifications may also be relaxed by the
Affiliating Board or the appropriate authority, as the case may
be, in the case of candidates belonging to the Scheduled Castes
or Scheduled Tribes:
Provided that such relaxation shall be made in accordance with
the orders on the subject made by the Central Government from
time to time."
LPA 914/2013 Page 17
18. It is, therefore, clear that the power to relax the requirement of having
to possess a B.Ed degree was that of the concerned authority. Further Rule 97
states that relaxation of any essential qualification for recruitment of any
employee would not be given effect to by any recommendation of selection
committee or the Managing Committee "unless such recommendation has
been previously approved by the Director." In view of these clear
stipulations, i.e. Note to the relevant rules in the recruitment rules applicable
to recognized private schools dated 07.04.1980; Rule 103 and Rule 97, the
previous approval of the Director was essential. The appellant's stated case is
that relaxation was not given by the Director but rather by the Managing
Committee in its meeting dated 21.01.2012. This Court is of the opinion that
in the circumstances of this case, there was in fact no approval in the eyes of
law. The appellant's contentions in this regard are rejected.
19. The next issue to be decided is whether Rule 98 and the consequence
spelt out in Rule 98(4) was applied in the facts of this case. Rule 98(2)
subjects the appointment of every employee of a Managing Committee of an
aided school to the approval of the Director. The said appointment would be
initially deemed as provisional. The proviso to Rule 98(2) states that
approval is essential where nominee is absent from the selection committee
or DPC or if there is difference of opinion. Rule 98(3) mandates that
appointment made by the Managing Committee of every aided school should
be communicated to the Director within seven days of the date from which
appointment is made. Rule 98(4) reads as follows:
"(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
LPA 914/2013 Page 18
appointment are communicated to him under sub-rule(3), he does
not intimate to the managing committee his disapproval of the
appointment, [and the person so appointed shall be entitled for
his salary and allowance from the date of his appointment].
20. The appellant's argument here is that firstly the participation by the
Director's nominee in this case in the DPC meant that there was no question
of further approval by the Director and consequently that in any case, since
the Director did not decide to refuse approval within the stipulated fifteen
days' period, the appointment was deemed to have been given as a statutory
consequence. This Court is unable to accept this submission. The reason for
this conclusion is that Rule 97 which immediately precedes Rule 98
mandates that the recommendation of the Managing Committee - for
appointment - cannot be given effect to in case where relaxation of
educational qualification is essential. "unless such recommendation has been
previously approved by the Director". The records in this case nowhere
disclose that the previous approval of the Director was ever sought regarding
the relaxation of the appellant's lack of essential qualification, i.e B.Ed
degree. In other words, before 27.01.2012, the date on which selection
committee/DPC met, the previous approval of the Director for relaxation had
not been obtained. What has been shown instead is the unilateral relaxation
of essential qualification requirement by the Managing Committee in its
Resolution of 21.01.2012. Clearly, therefore, the recommendation itself was
not in order. For Rule 98(4) to apply, the recommendation of the Selection
Committee and the appointment of the candidate must conform to the rules.
21. For these reasons, this Court is unpersuaded by the appellant's
arguments with respect to applicability of Rule 98(4). During the hearing of
LPA 914/2013 Page 19
the appeal, this Court is informed that pursuant to the impugned judgment,
another Selection Committee met and recommended a third employee to the
post of Vice-Principal and that such appointment was approved by the
Director.
22. In view of the above conclusions, this Court holds that the appeal is
meritless. It is accordingly dismissed.
S. RAVINDRA BHAT
(JUDGE)
DEEPA SHARMA
(JUDGE)
MARCH 17, 2016
LPA 914/2013 Page 20
