Delhi High Court
Ms. Kamale Zehra Govt. Of Nct Of ... vs Govt. Of Nct Of Delhi & Ors. on 15 February, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P(C) No. 13591/2009
% 15th February, 2017
MS. KAMALE ZEHRA ..... Petitioner
Through: None.
versus
GOVT. OF NCT OF DELHI & ORS. ..... Respondents
Through: Mr.Rahul Sharma and Mr. C.K.Bhatt,
Advocates for R-1 and 2.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? YES
VALMIKI J. MEHTA, J (ORAL)
1. By this writ petition under Article 226 of the Constitution of
India, the petitioner seeks the direction of quashing the impugned order
dated 29.10.2009 passed by the respondent no.2/Director of Education
whereby the respondent no.2/Director of Education refused to grant
approval to the appointment of the petitioner as an Assistant Teacher with
the respondent no.3/Shafiq Memorial Sr. Secondary School, Bara Hindu
Rao, Delhi on the ground that for appointment of an Assistant Teacher, a
candidate must have studied Maths at Class 10th or Matric level but
petitioner has not studied Maths at Class 10th level and hence petitioner
cannot be appointed as an Assistant Teacher in the respondent no.3/school.
Respondent no.3/school is an aided school.
2. The facts of the case are that it is an admitted position that the
post in question of Assistant Teacher with the respondent no.3/school was a
post duly sanctioned by the respondent no.2/Director of Education. That
there was a vacancy in this sanctioned post is also not disputed by the
respondent no.2/Director of Education. It is also not disputed that petitioner
was appointed by the regular recruitment process wherein advertisement
was issued, and out of various candidates who were interviewed by the duly
constituted Selection Committee it was the petitioner who was selected in
terms of the decision of the meeting of Managing/Selection Committee of
the respondent no.3/school dated 30.7.2008 and which Minutes of Meeting
dated 30.7.2008 reads as under:-
"Ref. No...... Date:30/07/2008
MINUTES OF SSC FOR SELECTION OF ASSISTANT TEACHER-UR-
01(ONE).
A meeting of the Selection Committee constituted under Rule 96(3)(b) of
D.S.E.R, 1973 was held on 30/07/2008 at 2:00 P.M. in Shafiq Memorial Sr.
Sec. School (An Aided Minority School), Bara Hindu Rao, Delhi-110006 to
select and recommend most suitable candidate for appointment to one post of
Assistant Teacher (UR Category).
The following members were present:
01. Prof. Azra Razzack Chairman‟s Nominee
02. Dr. Rakesh Chandra Tiwari D.E‟S Nominee
03. Mr. Jang Bahadur E.O. (Zone-22)
04. Smt. Vimla Paul Subject Expert
S.K.V.Padam Nagar, Delhi.
05. Dr. Sarwat Ali Manager of the School
06. Mr. S.U.Siddiqui Principal of the School
The school records reveal that 01(One) post of Assistant Teacher is lying vacant
in the school w.e.f 31/01/1993 due to the Retirement of Mr. Mohd. Ilyas and
covered under the post fixation for the year 2006-2007. The said post is of UR
category. The clearance letter to fill up the said post was issued by the
Directorate of Education, Delhi vide letter no. FZ./VIII/DN/2008/400 dated
06/06/2008. Consequent to which the post was advertised in the Times of India
18/06/2008, Nav Bharat Times 15/06/2008 and Rashtriya Sahara 15/06/2008,
for inviting applications and to select 01(One) suitable candidate for the 01
(One) vacant post of Assistant Teacher.
The Chairman‟s Nominee and Principal of the school certified that:
01. The concerned post of Assistant Teacher is covered under the current
post fixation 2006-2007.
02. The post is free from any dispute/Court Case and vigilance enquiry.
03. As per the applicability of Roster, the said post is to be filled by UR-
reserved candidate.
04. The candidates are eligible for appointment to the post of Assistant
Teachers as per Recruitment Rules.
05. All surplus staff has been adjusted and the post is lying vacant.
06. All the Orders regarding relieving and joining of surplus staff have
been complied with.
07. The promotional posts have been filled by holding, DPC- wherever
applicable.
08. All promotion cases of the staff wherever due have been cleared.
09. The Employment Exchange was also requested to supply the list of the
suitable candidates for 01(One) vacant post of Assistant Teacher.
10. 59 (Fifty Nine) applications were received through open advertisement
and 20(Twenty) candidates from Employment Exchange were received
in the school. 20(Twenty) candidates which were sponsored by
Employment Exchange, called for verification latest by 21/07/2008.
Out of which 49(Forty Nine) candidates were found eligible. Out of
which only 37 (Thirty Seven) candidates were present. As regards
verification of original documents in r/o open candidates and the same
were verified before the interview.
11. No fresh applications were added.
12. None of the candidates who appeared for interview is related to any
members of the SSC‟s.
13. Percentage of academics were posted in Board Sheet by School
Authority and merit index was calculated, checked and also verified by
school authority.
Only 37 (Thirty Seven) candidates turned up for interview. All were
interviewed one by one. After interview of all the candidates, the Staff
Selection Committee recommended the under noted name of candidate for
appointment to the post of Assistant Teacher in the Pay-Scale 4500-125-7000 in
order to merit on the basis of educational & Professional qualifications,
experience and interview performance subject to confirmation by the School
Managing Committee.
a) Category: UR
Select Panel
Name Father's Name D.O.B
01. Kamal-E-Zehra Mr. Ali Bin Imran 05/03/1976
b) Waiting List
Name Father's Name D.O.B
01. Shakeel Parveen Ali Mr. Meherban Ali 08/02/1973
02. Mohd. Azeem Khan Mr. Mohd. Waseem Khan 07/05/1983
The Selection of the above candidate is subject to the verification of their
educational qualification, Medical and Character antecedents etc.
Sd/- Sd/- Sd/-
(Mr. Sidghatullah Siddiqui) (Smt. Vimla Paul) (Dr. Sarwat Ali)
Principal Subject Expert Manager
Sd/- Sd/- Sd/-
(Mr. Jang Bahadur) (Dr. Rakesh Chandra Tiwari) (Prof. Azra Razzack)
Education Officer DE Nominee Chairman‟s Nominee
Zone 22"
3. Petitioner was accordingly given the appointment letter dated
29.8.2008, but, in view of the impugned order of the respondent no.2/
Director of Education dated 29.10.2009 declining the approval to the
appointment of the petitioner as an Assistant Teacher, hence the salary of
the petitioner was not released, and thus the petitioner was hence forced to
approach this Court.
4. Let me at this stage reproduce the impugned letter of the
respondent no.2/Director of Education dated 29.10.2009 and the same reads
as under:-
"OFFICE OF THE EDUCATION OFFICER ZONE VIII DISTT. NORTH
PARTAP NAGAR, DELHI:
No. F.Zone VIII/DN/2009/2050 Dated.29-10-2009
To
The Principal,
Shafiq Memorial Senior Secondary School.
Bara Hindu Rao, Delhi.
Sub:- G.I.A and salary arrears in r/o Ms. Kamle Zehra, Asstt. Teacher
(Newly appointed).
Sir,
With reference to your letter No.SMSSS/09/25 dated 20.01.09 on the subject
cited above, it is stated that as per recruitment rule a candidate should be Hr.
Sec./Sr. Sec. or intermediate and should have studied Maths and Science at
Class X or matric level. The selected candidate has not studied Maths at X
level, so the selection of Ms. Kamale Zehra as Asstt. Teacher has been rejected
by the competent authority. This is for your information and necessary action.
Yours faithfully
Sd/-
(E.D.THOMAS)
DY. EDUCATION OFFICER ZONE VII
(underlining added)"
5. The relevant recruitment rules for appointment of an Assistant
Teacher have been given by the respondent no.2/Director of Education in its
counter-affidavit and these relevant rules read as under:-
"R.R. for the Post of Assistant Teacher
Vide Notification No.F.5/ADC/RR/AT/88/241-644, dt. 23.1.1989, as Circulated
Vide No DE.15/Act/59/93/RR/14680-14736, 27.10.1993
1. Name of the post : Assistant Teacher
2. Classification :Group „C‟, Non-
ministerial
3. Scale of pay :Rs 1200-2040 (Pre-
revised) Rs.4500-
7,000 (Revised as per
V C.P.C)
4. Whether selection post or non- :Non-selection post
selection post
5. Age limit for direct recruitment : Below 30 years.
(Relaxation in case of
Govt. servants of
Delhi Admn. Below
40 years in case of
Female candidates)
6. Educational Qualifications :Essentials:
1.Hr. Secondary or
Sr.Sec./Intermediate.
2.Should have studied
Sc. & Maths Upto
Matric/10th std.
(Qualification shown
at Sr. No.2 is
relaxable for the
candidate passed Hr.
Sec. Examination)
3.JBT/HTC(Relaxable
on the
recommendation of
selection committee,
in case the candidate
possessed higher
teacher training
qualification).
X. Desirable
1.B.A with English
7. Whether age and educational :N.A
qualifications prescribed for direct
recruits will apply in case of
promotions.
8. Period of probation, if any :One year
9. Method of recruitment whether by :By Direct
direct rectt. or by promotion or by Recruitment
deputation/transfer & percentage of
the vacancies to be filled by various
methods.
10. In case of rectt. by :N.A
promotion/deputation/transfer grade
from which promotion/transfer to be
made
11. If a DPC/Selection committee :Yes (as per
exists, what is composition provision)
12. Circumstances in which UPSC is to : N.A
be consulted on making recruitment.
Editor‟sNote: RR for Assistant Teachers in Govt. schools have
been notified and amended. (underlining added)
6. No doubt, it is seen that as per para 6 the educational
qualification required is that a candidate must have studied Maths and
Science up to Matric/10th standard, however, the very next line the same
recruitment rule provides that the qualification of having studied Science
and Maths upto 10th standard is relaxable for the candidate who has passed
the Higher Secondary examination. The petitioner after schooling has done
B.A, M.A and in fact thereafter had obtained a diploma in Elementary
Teacher Education (ETE) from the Jamia Milia Islamia University. The
letter of the petitioner dated 28.5.2009 addressed to the Chief Minister
shows that petitioner while getting her diploma in ETE, taught Mathematics
during the first and second year training in the ETE upto fifth and eighth
level respectively. Petitioner therefore has studied and taught Maths upto a
much higher level than the intermediate level/Class 10th i.e at the higher
level of ETE and which is after the post graduation qualification of the
petitioner.
7. Since the very next line of para 6 of the recruitment rule states
that the requirement of having studied Maths upto 10th Standard is exempted
once there is higher secondary qualification, and since petitioner not only
has higher secondary qualification but also much higher qualifications
thereafter of graduation and post graduation besides having an ETE diploma
from Jamia Milia Islamia University, hence the respondent no.2/Director of
Education was clearly unjustified in holding that petitioner was not qualified
to be appointed as an Assistant Teacher.
8. In somewhat similar circumstances I have in the case of Sh.
Yogesh Dutt Vs. Director of Education & Ors. W.P.(C) 11470/2009
decided on 15.7.2013 held that if a candidate has a higher qualification than
what is prescribed by the recruitment rule, then surely it is something better
and consequently, if a candidate at a lower level does not have the
qualification but has the same at a higher level, this is good enough
qualification. The ratio of Yogesh Dutt's case (supra) will also therefore
apply in the facts of the present case.
9. Accordingly, for both the reasons that the petitioner is not
disqualified as per para 6 of the recruitment rule for appointment of an
Assistant Teacher because there was no requirement of studying up to 10th
Standard once a candidate is having higher secondary qualification i.e
higher school qualifications/senior secondary qualifications with the
petitioner going much above to the level of post graduation in MA, and the
fact that petitioner has in fact studied and taught Maths in the ETE course,
hence it is held that the respondent no.2/Director of Education has clearly
erred in issuing the impugned letter dated 29.10.2009. The impugned
letter/order dated 29.10.2009 is therefore quashed.
10. In view of the above discussion this writ petition is allowed and
the impugned order dated 29.10.2009 of the respondent no.2/Director of
Education will stand quashed and petitioner will be held to have been
validly appointed to the respondent no.3/school in terms of the Selection
Committee Meeting dated 30.7.2008 and which Selection Committee also
had the representatives of the respondent no.2/Director of Education.
11. The writ petition is accordingly allowed and disposed of,
leaving the parties to bear their own costs.
FEBRUARY 15, 2017 VALMIKI J. MEHTA, J
ib
