Delhi High Court
Geetu Khathuria vs Directorate Of Education And Ors. on 16 November, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: November 16, 2017
+ W.P.(C) 2359/2016 & C.M. 10116/2016
GEETU KHATHURIA ..... Petitioner
Through: Mr. Shekhar Kumar, Advocate
Versus
DIRECTORATE OF EDUCATION AND ORS. ..... Respondents
Through: Mr. Bharat Bhushan Bhatia & Ms.
Vijay Laxmi, Advocates for respondent No.4
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
ORAL
1. Petitioner claims to be senior most graduate teacher (Sanskrit) in
the respondent-School, who claims to be eligible for promotion to the
post of Post Graduate Teacher (Hindi) w.e.f. 1st March, 2015. A meeting
of Departmental Promotion Committee (DPC) was held on 21 st
December, 2015 to fill up the post of Lecturer (Hindi) by promotion and
since there was a conflict between the Recruitment Rules of 4th
November, 1999 (Annexure P-3) and circular of 22nd September, 2008
(Annexure P-4), so a clarification is sought by the DPC from the
Directorate of Education. It is evident from the Communication of 7th
March, 2016 (Annexure P-9) that respondent No.1- Directorate of
Education has furnished the clarification. Thereafter, DPC has not
convened to fill up the post of Lecturer (Hindi) by promotion.
2. Learned counsel for petitioner submits that Recruitment Rules
(Annexure P-3) can be modified or altered by way of circular, like it has
been done in Annexure P-4 and since petitioner is eligible for promotion,
therefore, the case of petitioner for promotion needs to be expeditiously
processed.
3. Vide order of 22nd August, 2016, one- Naresh Kumar was
impleaded as fourth respondent, as he had competing interest against
petitioner. Learned counsel for respondent No.4 submits that not the
petitioner, but respondent No.4 is eligible for promotion. Reliance is
placed by counsel for fourth respondent upon a decision of 15th July,
2013 of a Coordinate Bench of this Court in W.P.(C) 11470/2009, Sh.
Yogesh Dutt Vs. Directorate of Education, to submit that executive
instructions will not hold the field, once there is a specific Notification
relating to the Recruitment Rules and the Notification relating to the
recruitment prevail over the executive instructions.
4. In rebuttal, counsel for petitioner has drawn attention of this Court
to Information dated 17th December, 2007 (Annexure P-5) sought under
RTI, to point out that the clarification regarding Recruitment Rules has
been duly approved by the competent officer and so, it has to be preferred
over the executive instructions. Thus, it is submitted that the Circular of
22nd September, 2008 (Annexure P-4) prevails and in terms thereof,
petitioner is entitled to promotion.
5. Upon hearing and on perusal of record of this case and decision
cited, I find that the controversy which falls for consideration is whether
the interpretation of Recruitment Rules, as done till 27th June, 2006, is to
be followed by DPC till such time, the Recruitment Rules are modified/
changed. The Circular of 22nd September, 2008 (Annexure P-4) states so.
The clarification sought by DPC on 21st December, 2015 stands answered
by the Directorate of Education vide its Communication of 7th March,
2016 (Annexure P-9) indicating that the Recruitment Rules, as amended
on 4th November, 1999 (Annexure P-3) shall prevail, thereby clarifying
that for the post of Lecturer in Hindi, Sanskrit and Punjabi, only Trained
Graduate Teachers in Modern Indian Language, will be considered for
promotion in their respective posts.
6. The challenge to the impugned Communication of 7th March, 2016
(Annexure P-9) stands negated in view of Division Bench decision of 5th
September, 2005 of this Court in W.P.(C) 14473/2005, Government of
NCT of Delhi Vs. Ram Prakash Pathak, wherein it has been categorically
held that executive instructions cannot supplant the rules issued through a
notification. The Circular of 22nd September, 2008 (Annexure P-4) on
which petitioner relies upon, is in the nature of executive instructions and
so, it will not hold the field unless the Recruitment Rules are amended. It
is evident from Circular (Annexure P-4) that no Notification indicating
change of Recruitment Rules has been issued. In such a situation,
respondent-Directorate of Education has rightly clarified in the impugned
Communication of 7th March, 2016 (Annexure P-9) that for the post
Lecturer (Hindi), Recruitment Rules as amended on 4th November, 1999
(Annexure P-3) shall prevail. In my considered view, the challenge to the
impugned Communication of 7th March, 2016 (Annexure P-9) is without
any substance.
7. This petition and application are accordingly dismissed with
direction that DPC be convened within four weeks, to fill up the
promotional post in question with expedition.
SUNIL GAUR
(JUDGE)
NOVEMBER 16, 2017
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