Shashi Kumar Shrivastava vs The Lieutenant Governor Of Delhi ...
2017 Latest Caselaw 1173 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No. 8710/2010

%                                                     3rd March, 2017

SHASHI KUMAR SHRIVASTAVA                    ..... Petitioner
                 Through: Ms. Shifa Nagar, Advocate.

                          versus

THE LIEUTENANT GOVERNOR OF DELHI AND ORS.
                                         ..... Respondents

Through: Mr. D.K. Singh, Advocate for R-1 and 2.

Mr. Satyakam, Advocate for R-

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. By this writ petition under Article 226 of the Constitution

of India, the petitioner, who was appointed as a Lab Attendant (non-

teaching staff) with the respondent no. 3/school, seeks the relief of

being appointed as a Lab Assistant. Petitioner also seeks the necessary

monetary emoluments of a Lab Assistant.

2. Petitioner pleads that petitioner satisfies the eligibility

criteria for being appointed as a Lab Assistant and therefore the

petitioner should be appointed to the post of Lab Assistant.

3. The respondent no. 3/school has filed a counter affidavit

and has stated that vacancy for the post of Lab Assistant has arisen

only in the month of June, 2010 on the death of one Sh. Kishan Chand

and such vacancy filling-in process will be initiated as per law. It is

also pleaded by the respondent no. 3/school that petitioner is not the

senior most person for being considered for promotion to the post of

Lab Assistant.

4. Petitioner has filed the rejoinder affidavit and pleaded that

respondent no. 3/school is deliberately concealing facts because with

the respondent no. 3/school there are more than three posts of Lab

Assistants and which are lying vacant.

5. It is seen that respondent no. 3/school admittedly is an

unaided private recognized school. In an unaided private recognized

school what are and should be the number of posts are determined as

per the circulars of the respondent no. 2/Director of Education. From

the pleading in the writ petition it is not clear as to what were the posts

of Lab Assistants which the respondent no. 3/school had to have in

terms of applicable circulars and guidelines of respondent no.

2/Director of Education, whether there were vacancies in such posts of

Lab Assistants, what was the seniority in the feeder cadre of the

different persons entitled to be considered, including the petitioner, and

thus for such persons to be considered for promotion to the post of Lab

Assistants, etc etc. The relevant recruitment rules for appointment by

promotion failing which by direct recruitment to the post of Lab

Assistant reads as under:-

"Recruitment Rules for the Post of Lab. Assistant Vide Notification No.F.2(15)/68-S.II, Dated: 23-12-1971 and amended Vide No.F.2(110)/74-S.II, Dated:07-05-1975 & F2(102)/80-S.II, Dated: 03-03-1981 and F.2(102)/80/S.II, Dated : 14-03-1986 & F.27/1/90-Edn./795-800, Dated : 21-03-1990

1. Name of the post : Lab. Assistant

2. No. of posts : 1762 (Subject to variation dependent on work load).

3. Classification : Group 'C', Non-Gazetted, Non-Ministerial

4. Scale of pay : Rs. 1200-2040 (Pre-revised) Rs. 4000-6000 (Revised as per V C.P.C.)

5. Whether selection post or : Non-selection non-selection posts

6. Age limit for direct recruits : 18-25 years (Relaxable for Govt. servants)

7. Education and other : Essential :

qualifications required for Senior Secondary/Intermediate with Science from a direct recruits recognised University.

Desirable :

At least 6 months experience as Lab. Assistant

8. Whether age and : **Qualifications :

Educational qualifications To the extent mentioned in Column 11. prescribed for direct recruits Age : No limit. will apply in the case of * Amended vide Delhi Admn., Delhi Notification promotions No. F.2(102)/80-S.II dated 3.3.1981 * Amended vide Delhi Admn., Delhi Notification No.

F.2(102)/80-S.II dated 14.3.1986. * Amended vide Delhi Admn., Delhi Notification No.

F.27/1/90-Edn./795-800 dated 21.3.1990.

   9.    Period of probation            : 2 years
   10.   Method      of   recruitment : By promotion failing which by Direct Recruitment
         whether by direct rectt. or by
         promotion        or         by
         deputation/transfer         &
         percentage of the vacancies
         to be filled by various
         methods.




      11.   In case of rectt. by           : Promotion : Group 'D' employees of Delhi Admn.
           promotion/deputation/transf    having 3 years service in the grade rendered after
           er, grades from which          appointment thereto on a regular basis who are
           promotion/deputation           matriculate or equivalent/Higher Secondary with
           transfer to be made            Science (Physics & Chemistry & Biology with

Practical), and employees who are matriculate or equivalent/Higher Secondary without Science provided they have successfully undergone a three months Orientation Course in Science conducted by the Directorate of Education.

Note : The ratio proportion between the two categories will be determined on 1st May every year depending upon the actual number of eligible employees under the respective category on that day.

12. If a DPC exists, what is its Group 'C' D.P.C.

composition

13. Circumstances in which Not Applicable.

U.P.S.C. is to be constituted in making recruitment

6. Since petitioner is a Group D/Class IV employee, and if the

petitioner fulfills the eligibility criteria for appointment to the post of Lab

Assistant, and if there are posts available for Lab Assistants with the

respondent no. 3/school which were vacant when the petitioner achieved

the eligibility criteria for being appointed as a Lab Assistant, then

petitioner in accordance with law would have to be considered for being

appointed to the post of Lab Assistant by the respondent no. 3/school.

7. In view of the above discussion, and in the absence of

requisite pleadings as regards existence of posts of Lab Assistants with

the respondent no. 3/school and vacancies therein and as to whether and

when petitioner will satisfy the eligibility criteria for being appointed as

Lab Assistant which other persons had the eligibility criteria to be

considered for, this writ petition is disposed of with the direction to the

respondent no. 2/Director of Education to decide as to whether the

petitioner should to be promoted to the post of Lab Assistant with the

respondent no. 3/school. The respondent no. 2/Director of Education will

examine all aspects as stated above including as to whether the petitioner

fulfills the eligibility criteria for being appointed to the post of Lab

Assistant, when the petitioner can be said to have fulfilled the eligibility

criteria including of three years working in the feeder cadre post, whether

there were posts which were available or had to be available with the

respondent no. 3/school of Lab Assistants, whether there were vacancies

in such posts of Lab Assistants, whether petitioner had the necessary

seniority of satisfying the eligibility criteria for being appointed to the

post of Lab Assistant by the respondent no. 3/school, etc etc. Respondent

no.2/Director of Education or his nominee will decide the issue after

hearing the parties, being the petitioner and the respondent no. 3/school.

Respondent no.2/Director of Education or its nominee will pass a

speaking order which will be communicated to the parties. Needful be

done by the respondent no.2/Director of Education or its nominee within

a period of three months from today.

8. The writ petition is accordingly disposed of in terms of the

above discussion.

MARCH 03, 2017/AK                              VALMIKI J. MEHTA, J