Ankur vs Directorate Of Education And Ors.
2019 Latest Caselaw 2107 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Reserved on:        20.03.2019
                                        Pronounced on:      22.04.2019

+      W.P.(C) 2850/2018 & CM APPL. 11553/2018
       ANKUR                                                ..... Petitioner
                          Through       Mr.Virendra Rawat, Adv. with
                                        Mr.Kamal Kapoor, Adv.

                          versus

       DIRECTORATE OF EDUCATION AND ORS. ..... Respondents
                    Through Mr.Gaurav Dhingra, Adv. for R-1 &2.

       CORAM:
       HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                              JUDGMENT

1. Vide the present petition, the petitioner seeks direction thereby setting

aside the impugned order dated 27.01.2018 and letter no.423/SMVV/2018

dated 03.02.2018. Consequently, seeks direction thereby directing the

respondent no.2 to release grant of aid qua the petitioner's salary.

2. The present petition is second round of litigation. Earlier vide

communication dated 14.11.2017 of the respondent no.2, the petitioner's

appointment as peon for about 9 years was declared to be illegal. Being

aggrieved, he had challenged the order dated 14.11.2017 regarding stoppage

of payment qua petitioner by way of W.P.(C) 11052/2017 and the same was

disposed of vide order dated 13.12.2017 permitting the petitioner to make a

concise representation to second respondent with a direction that upon

receipt of such a representation, the second respondent shall pass a speaking

order thereon. It was further directed that second respondent shall consider

the response given by third respondent school to show cause notice on

21.04.2016 and if need be, inputs can be obtained from third respondent.

The status quo as on that day was directed to be maintained in respect of the

petitioner's service with third respondent.

3. However, the representation of the petitioner is rejected vide the

impugned order dated 27.01.2018.

4. The brief facts of the case are that the the petitioner was appointed as

peon by the respondent no. 3 in 2008 after due processes of interview and

completion of all the formalities. The respondent no. 1 is Directorate of

Education under whom the respondent no.2 functions, being a subordinate

office in the concerned division. The respondent no. 3 is an organization

constituted to serve the interest of the Sanskrit language and respondent

nos.1 and 2 are an instrument of state within the ambit of Article 12 of the

Constitution of India. Further the case of the petitioner is that respondent

no.3 "Shri Mahavir Vishwa Vidyapeeth"; came into existence in 1971-72 to

serve the rich heritage of Sanskrit language and to promote and teach the

Sanskrit Curriculum and accordingly, started its operation in the Union

Territory of Delhi. Respondent no.3 was granted aid by the Secretary

Education Delhi Administration in view of the notification dated 8 th

December, 1971 and is government aided institution. The Government

provides 95% aid and the rest 5% is provided by the respondent no.3. The

management of the respondent no.3 on 17.02.2008 resolved to fill up the

post of peon which was about to get vacant on 29.02.2008 pursuant to

retirement. It was further resolved to request the education department for

the formation of Selection Committee as per rules. On 19.02.2008, a general

notice was affixed on the notice board of the respondent no.3 vide which

applications were invited for the post of peon followed by an interview

scheduled for 29.02.2008. Respondent no.3 sent a request letter dated

19.02.2008 to the Employment Exchange Officer to send suitable candidates

with a minimum qualification of matriculation for the post of peon.

Thereafter, the respondent no.3 on 25.02.2008 wrote a letter to the

respondent no.2 for the constitution of the D.P.C. as per rules to conduct the

recruitment process. Accordingly, respondent no.2 vide letter No. 236 dated

28.02.2008 directed to form the Selection Committee comprising of

Chairman/Manager Managing Committee and Head of School to fill up the

post of peon. On 29.02.2008 apart from the petitioner, four more candidates

also applied and appeared for the interview before the selection committee

which was formed as per the directions of respondent no.2. Since no names

were provided by the employment exchange despite reminder on

25.02.2008, the Committee appointed by respondent no.2 had gone ahead

with the selection process. On the basis of marks secured by the applicants,

the petitioner was selected. Accordingly, the petitioner was given an

appointment letter dated 01.03.2008 for the post of peon. Accordingly, he

had joined at the respondent no.1 and resumed his post of peon full time at

the respondent no.3 and intimation with respect to his appointment as well

as his joining was sent to all the concerned. The respondent no.3 had sent a

letter to the Administrative Officer (Accounts Branch) of the respondent

no.2 for pay fixation of the petitioner. The pay fixation of the petitioner was

approved by the respondent no.2 in terms of the revised pay rules as per 6th

pay commission.

5. Further case of the petitioner is that in the year 2013, one Mrs. Asha

Rani, PGT Darshan was suspended from the service by the respondent no.3

because she had provided a bogus experience certificate at the time of

appointment. In the meanwhile, during her suspension, she made frivolous

complaint and alleged that the appointments made in the year 2007-08

including the petitioner were illegal and in defiance of codified rules.

Pursuant to the said complaint, an enquiry report dated 24.04.2014 was

given by the enquiry committee comprising of Principal M.S. Sahgwan,

Govt. Co-Ed and Sr. Secondary School, Paschim Vihar and Principal,

Mrs.Sujata Mehra, SKV Paschim Vihar and they had found that all the

allegations of Mrs. Asha Rani were baseless and held that the appointment

of the petitioner at the post of peon was as per Rule 96 of DSEAR's 1973.

The enquiry committee gave its specific finding that a selection committee

for the recruitment of a peon was constituted vide EO Zone 17 letter No. 236

dated 28.02.2008 and the said selection committee selected him on

29.02.2008 and minutes of meeting were prepared to that effect. However,

on 11.04.2016 the respondent No.2 had issued a show cause notice to the

respondent no.3 by alleging that the post of the peon was not advertised in

any newspaper and no name was found to be sponsored by the employment

exchange and no justification with proof was submitted with regard to

diarizing of applications submitted for this post. The respondent no.3 gave a

detailed reply dated 21.04.2016 stating therein that the post of petitioner

comes under fourth grade and advertisement was affixed on the notice board

and said appointment was approved by the D.E. Nominee, Education Officer

and Accounts Officer (A.O.) and thereafter his salary was released.

Thereafter an Inquiry was conducted pursuant to an order dated 26.07.2017

of the respondent no.2 and the Inquiry report dated 10.08.2017 observed that

the selection procedure had some flaws on the part of SSC/DPC mostly

related to advertisement in the news papers and publicity of this post but the

said lapse has no direct link with the petitioner except that he responded to

an advertisement placed on a notice board. No evidence of neglecting

candidates was noticed. On 11.09.2017, a meeting of Disciplinary

Committee held at the premise of respondent no.3 and the said committee

was comprised of D.E.'s Nominee, Principal of nearby school, authorized

representative of Chairman, Honorary Manager and member teaching

faculty of the respondent no.3. The said disciplinary committee gave its

findings qua the petitioner that no advertisement was made in the

newspaper, no names were invited from the employment exchange,

therefore, selection committee has committed certain procedural

irregularities otherwise the petitioner has the essential qualification and

eligibility for the post of peon. The respondent no.2 vide its letter dated

14.11.2017 conveyed to respondent no.3 regarding approval of the

competent authority Vide U.O. 9496 dated 25.10.2017 whereby it was

observed that the recruitment of the petitioner as peon was made without

even following the basic tenet of calling applications. Accordingly, the

grant in aid of the petitioner be stopped immediately and management was

directed to dispense with the services of the petitioner or pay his salary from

their own funds. Consequently, the respondent no.3 Vide letter dated

16.11.2017 intimated that the grant in aid of the petitioner is stopped with

immediate effect.

6. Learned counsel appearing on behalf of the petitioner submits that the

petitioner made representation pursuant to order dated 13.12.2017 passed in

W.P.(C) No. 11052/2017 and the same was rejected. The representation

dated 19.12.2017, was rejected on 27.01.2018 while reiterating the same

grounds which were mentioned in the order dated 14.11.2017. The said

impugned order was passed without being considered that an intimation had

been sent to the employment exchange on 19.02.2008 and reminder dated

25.02.2008 was sent and it was duly acknowledged by the employment

exchange. That regarding the vacancy of peon, a notice pasted on the notice

board for which five persons including the petitioner had applied for the said

post. Though there is a small irregularity by the authorities concerned but it

is not violative of the directions of the respondents for appointment of post

and the findings came regarding the illegal selection after 9 years of the

selection which is totally unfounded and illegal.

7. On the other hand, counsel appearing for respondent nos.1 & 2

submitted that the management of the respondent no.3 school had appointed

the petitioner by adopting unfair and corrupt practices in gross violation of

guidelines dated 03.02.2006 for appointment in Aided School as the post

was neither advertised in the daily newspaper nor the names of the eligible

candidates were sponsored from the employment exchange. As per circular

dated 03.02.2006, the management will notify vacancies to the employment

exchange by giving atleast 20 days time to obtain the names of candidates

and also specify the qualifications as prescribed in recruitment rules. The

managing committee will simultaneously take recourse to invite applications

through open advertisement. It shall arrange to publish the proper

advertisement in atleast two leading daily newspapers one in Hindi and

another in English. By not adopting the procedure, the appointment of the

petitioner was made in violation of the guidelines and in violation of

Employment Exchange (Compulsory Notification of Vacancies) Act, 1959

and also in flagrant violation of Article 16 of the Constitution of India which

guarantees equality of opportunity in matter of public employment.

8. Learned counsel further submitted that respondent no.3 is a

recognized private school receiving Grant-in-Aid to the extent of 95%

towards pay & allowances of the employees of school and is functioning

under Directorate of Education, Government of NCT of Delhi. As such, the

institution is under obligation to carry out any recruitment in the school in

terms of the provisions contained under Rules 96 & 98 of Delhi School

Education Rules, 1973 and also in conformity with the laid down guidelines

vide circular dated 03.02.2006. Thus, it is necessary to obtain prior

clearance from the department to fill up posts by direct recruitment in terms

of provision of Rule 64(1)(g) of the Rules, 1973. The management of aided

school is bound to notify vacancies to the employment exchange.

9. Counsel for respondent nos.1 & 2 has relied upon the case of State of

Manipur & Ors. Vs. Y. Token Singh & Ors.: (2007) 5 SCC 65 whereby

held that the state while offering appointments, having regard to the

constitutional scheme adumbrated in Articles 14 & 16 of the Constitution of

India, must comply with its constitutional duty, subject to just and proper

exceptions, to give an opportunity of being considered for appointment to all

persons eligible therefor.

10. In case of State of Madhya Pradesh & Ors. Vs. Sandhya Tomar &

Anr.: (2013) 11 SCC 357 whereby the Hon'ble Supreme Court has held that

considering the candidature of persons by mere calling of names from the

employment exchange does not meet the requirement of Articles 14 & 16 of

the Constitution of India.

11. Learned counsel further submits that in view of the facts and

circumstances of the case and the legal position on the said point, the present

petition deserves to be dismissed.

12. It is pertinent to mention here that respondent no.2 has not taken into

consideration, while passing the impugned order, that respondent no.3

college had specifically requested with employment exchange on

19.02.2008 and 25.02.2008 for candidates for the post of peon in the college

as per the sanctioned letter by respondent no.2 and the employment

exchange did not provide the name of the candidates. As such on the basis of

applications received so far by respondent no.3, selection process was

conducted and the petitioner was selected amongst the other candidates who

applied for the post. An intimation of the appointment of the petitioner was

sent to respondent no.2 and thereafter a request was made for pay fixation of

petitioner and the same was confirmed vide order dated 15.10.2008.

13. In the whole process, it is established that there was no fault of the

petitioner who applied for the post and selected by the selection committee.

He worked for 9 years without hindrances and his appointment was

approved by the respondent no.2. However, if any violation was there, that

was on the part of the respondents including respondent nos.1 & 2 who had

not taken care at the time of approval of the post of the peon. Thus, it is

illegal and perverse if the said respondents have opened their eyes after 9

years of service rendered by the petitioner.

14. In case of Surendra Singh vs. Manager, Haryana Shakti Sr. Sec.

School & Ors.: 95(2002) DLT 135 whereby this Court held that under Rule

98(4) of Delhi School Education Act, 1973, the approval of the appointment

by the Director can be deemed to have been granted if not objected to within

15 days. The petitioner has already worked for four months, an aspect

which cannot be lost sight of. In the case in hand, when the appointment of

the petitioner was approved by respondent nos. 1 & 2 and he worked for 9

years which cannot be lost sight of as was held in the above cited case.

15. A similar view was taken up by this court in the case of Delhi Tamil

Education Association vs. Directorate of Education:

MANU/DE/1291/2008 as was taken in Surendra Singh (supra).

16. In view of above discussion and the settled law, I hereby set aside

communication dated 14.11.2017, 27.01.2018 and 03.02.2018.

Consequently, the termination of the petitioner is set aside.

17. Accordingly, the petitioner is reinstated in service and respondent

no.2 is directed to release the grand-in-aid qua petitioner's salary and

respondent no.3 school is directed to pay the salary to the petitioner with

back wages.

18. The petition is, accordingly, allowed and disposed of.

CM APPL. 11553/2018

In view of the order passed in the present writ petition, the application

has been rendered infructuous and is accordingly, disposed of.

(SURESH KUMAR KAIT) JUDGE APRIL 22, 2019 ab