Delhi High Court
Prema Sharma vs Director Of Education & Ors on 1 July, 2019
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 14.05.2019
Pronounced on: 01.07.2019
+ W.P.(C) 6388/2015 & CM APPLN. 11647/2015 & 21553/2018
PREMA SHARMA ..... Petitioner
Through Mr.D.N. Goburdhun, Adv. with
Ms.Gauri Goburdhun, Adv.
versus
DIRECTOR OF EDUCATION & ORS ..... Respondents
Through Mr.Vikas Shokeen, Adv. for R-1.
Mr.Kamal Gupta, Adv. with
Mr.Yudhister Kaushik, Adv. for R-2.
Mr.K.P. Tevathia, Legal Asst. For
DoE.
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
JUDGMENT
1. Vide the present petition, the petitioner seeks direction thereby to
quash the impugned order dated 20.03.2015 passed by the Delhi School
Tribunal in Appeal No. 72/2010 whereby the appeal filed by the petitioner
has been dismissed.
2. The case of the petitioner is that she was appointed in the respondent-
School as Primary Teacher (SUPW) purely on temporary basis vide
appointment letter dated 27.07.1993. However, she was continued in the
employment of respondent no.1 vide letter dated 27.10.1993 with effect
from 28.10.1993 to 31.03.1994. Thereafter, she was confirmed in the
respondent-School vide letter dated 29.03.1995 with effect from 11.05.1995.
Petitioner again applied for the post of TGT (SUPW) vide application dated
20.04.1995, she was interviewed and appointed as TGT on probation for a
period of one year vide letter dated 12.06.1995. Thereafter, vide letter dated
08.07.1996 her probation was extended till 10.05.1997. The petitioner was
confirmed as TGT (SUPW) with effect from 11.05.1997 vide letter dated
09.05.1997. In the letter of confirmation dated 09.05.1997, it is clearly
mentioned in para 2 that "terms and conditions of her appointment will
remain the same". Thus, the petitioner has performed her job marvellously
for 18-19 years.
3. Learned counsel appearing on behalf of the petitioner submits that
respondent-School vide letter dated 28.07.2009 asked the petitioner
regarding the B.Ed. degree to which she replied on 19.08.2009 by stating
that she did apply for B.Ed. though B.Ed. is not a necessary requisite for
Craft Teacher. Further stated, the petitioner applied in Annamalai University
in the year 1992, but no result was published. The petitioner pursued to find
out but did not get any reply from the said office.
4. It is further submitted that in fact B.Ed. is not a requirement for
teaching craft. The respondent-School itself issued an Advertisement in
Hindustan Times, a daily reputed newspaper in the year 2011, after
terminating the services of the petitioner, for Craft Teacher, wherein the said
requirement of B.Ed. is not necessary. Thus, the School is estopped and also
barred by the Doctrine of Waiver, estoppel and acquiescence and cannot
raise the issue of B.Ed. requirement. The respondent-School cannot and
could not have used the bogey of a purported B.Ed. degree, once they
themselves promoted the petitioner without the said B.Ed. degree.
5. It is further submitted that the arbitrary action of the respondent-
School can be gauged, that the said School themselves sent an Annual
Confidential Report in March 2010, to the Directorate of Education
respondent no.1 which is signed by the Principal. They themselves stated
that the petitioner is not a B.Ed. degree holder and is a permanent TGT
teacher in the subject of SUPW. It did not mention that the petitioner is not
qualified, as she lacks the essential qualification of the B.Ed. degree.
6. Counsel for the petitioner further submitted that the termination of the
petitioner was malafide and arbitrary because it was all done abruptly in the
19th year of petitioner's service, as the respondent-School intended to by-
pass the recommendation of the VIth Pay Commission which directed an
increase of salary manifold in the petitioner's salary. However, for the post
of TGT (SUPW), the minimum qualification is only Bachelor Degree in
Home Science or Diploma in Dress Designing (Cutting and Tailoring) from
a reputed university. For this subject, particularly, work education is
necessary. The petitioner has a vast work experience for SUPW or work
education. She continuously did her work from 1993 till the termination in
all Work Education or SUPW activities for last about 18 years. Her
experience itself is a best qualification for a person appointed as SUPW
Teacher or Work Education Teacher.
7. To strengthen his arguments, counsel for the petitioner has relied
upon the case Sh. A. Sundra Rajan vs. Govt. of NCT of Delhi (Through
The Director of Education) & Anr.: in W.P.(C) 14642/2004; & H.C.
Puttaswamy vs. The Hon'ble Chief Justice of Karnataka High Court:
1991 Supp (2) SCC 421, whereby the Hon'ble Supreme Court held that
humanitarian approach is to be adopted and appointment was directed to be
regularized without conditions as to the age limit or passing of written test
and viva-voce test. Learned counsel submitted that the petitioner in the
present case is now over 55 years of age and, thus, has crossed the upper age
limit making her ineligible to be appointed anywhere else.
8. Counsel for the petitioner further submitted that the prior approval of
Director of Education under Section 8(2) of the Delhi School Education Act
has not been taken which is against the mandate of the Apex Court in Raj
Kumar Vs. Director of Education And Others: (2016) 6 SCC 541 whereby
held that there cannot be termination of an employee of School without prior
approval of the Director of Education under Section 8(2) of the Delhi School
Education Act. The said judgment has been relied upon by this Court in
W.P.(C) 12190/09 vide order dated 07.02.2017 by this Court.
9. On the other hand, counsel appearing on behalf of respondent-School
submitted that the petitioner employed at the School even though she does
not possess minimum qualifications prescribed for a teacher under the
DSEAR-1973. The petitioner failed to establish that she satisfied the
requirement or qualification for a teacher under the aforesaid Act. The
removal of the petitioner from the service became necessary as she failed to
acquire the minimum qualification prescribed, despite more than sufficient
opportunities, encouragement and warning given to her. The petitioner has
attempted to shift the blame of her own incompetence/in action on the
respondent which has to be strongly deprecated. The petitioner was
repeatedly asked to produce the documents evidencing that she had the
minimum qualification prescribed for a Trained Graduate Teacher, which
she fails to do, despite the numerous opportunities given to her in this regard
over the years.
10. The case of the petitioner is that B.Ed. is not the necessary
qualification for the post of TGT (SUPW). Respondent-School cannot
change the terms and conditions of the appointment to the disadvantage of
the petitioner. Persons having 15 years experience of middle/secondary
classes in a recognized institution are exempted from obtaining teaching
degree/diploma.
11. Case of the respondent is that the petitioner had misled the
respondents by making false submissions in her application that she had
appeared in B.Ed. examination in Annamalai University, however, result of
which was awaited, whereas actually, she had not appeared in the B.Ed.
examination (absent) as per her own letter dated 07.01.2004. Since 2003,
respondent-School was asking her to produce B.Ed. degree, but she was
avoiding the same on the one pretext or the other and many times she had
sought permission to pursue the B.Ed. course for obtaining B.Ed. degree.
The same was granted to her, but she had not obtained the B.Ed. degree,
therefore, her services were finally terminated vide order dated 14.05.2010.
12. I have heard learned counsel for the parties and perused the material
available on record.
13. It is pertinent to mention here that in column No.10 (iii) of the
application, the petitioner has mentioned her qualification as B.Ed. from
Annamalai University, however, under the column of percentage of marks, it
is mentioned as "awaiting result". In application dated 20.04.1995, moved
by the petitioner for the post of TGT (SUPW), she has mentioned her
qualification in column 10(iii) as B.Ed. degree, however, it is mentioned
under the column "percentage of marks" „under observation‟. Vide letter
dated 28.05.1993, Principal of the respondent-School asked the employee
that she had not submitted her educational qualification/academic
qualification. Vide another letter dated 06.01.2004 asked the petitioner to
submit her B.Ed. mark sheet and degree. In reply dated 07.01.2004, the
petitioner has submitted that the result was not declared as she was declared
absent.
14. The petitioner has sought permission for further study/to enhance her
qualification i.e. B.Ed./Craft diploma. Vide letter dated 16.04.2007, she was
granted permission to pursue the B.Ed. degree. Vide letter dated 09.07.2007,
the petitioner sought employment certificate for taking admission in B.Ed.
course which was granted on 09.07.2007. She was again granted permission
to pursue B.Ed. degree vide letter dated 24.12.2007 and 25.01.2008. Vide
letter dated 04.10.2008, the petitioner was again asked by the Principal of
the respondent-School to produce original mark sheet and B.Ed. degree.
Since the petitioner failed to produce the requisite qualification sought by
the respondent-School, a show cause notice dated 06.03.2010 was issued to
which she replied vide letter dated 11.03.2010 and stated that this School
has become a part of her and without it she cannot survive. She has groomed
her personality and professional skills. Again vide letter dated 05.04.2010,
the petitioner requested for permission to pursue the B.Ed. degree in the
academic year 2010-11. The respondent-School declined the permission
vide letter dated 11.05.2010. Ultimately, the services of the petitioner were
terminated vide termination letter dated 14.05.2010.
15. On perusal of the material on record, it is established that the
petitioner is not having the qualifications prescribed vide notification dated
28.06.1960 and as circulated on 27.10.1993 on the date of her appointment.
Stand of the Directorate of Education is that B.Ed. degree is the necessary
qualification for the post of TGT (SUPW). The respondent-School has been
asking her to produce B.Ed. degree since 2003. The petitioner has taken
permission from the respondent-School for obtaining the B.Ed. degree, but
she has not obtained the same from any recognized University, till date.
16. Moreover, the petitioner was not having 15 years teaching experience
at the time of her appointment to the post of TGT (SUPW). From her
application, it is clear that she has mentioned that she had appeared in B.Ed.
examination and her result was awaited, whereas she did not appear in the
B.Ed. examination in Annamalai University, as she was declared absentee.
17. Same issue came in case of Sh. A. Sundra Rajan Vs. NCT of Delhi
(through The Director of Education) & Anr., passed by this Court in
W.P.(C) 14642/2004 decided on 01.07.2010, whereby held as under:-
"8. The said Rule appears to apply only at the stage of
recruitment. Relaxation under the said Rule has to be
recommended by the Selection Committee, constitution
whereof is prescribed in Rule 96 which is relating to the
stage of recruitment. There does not appear to be any
provision for relaxation of the qualification of the existing
staff. However, it appears that the DOE and the schools
were requiring their teachers to obtain the necessary
qualifications, as was the case in Prem Lata Dutta
(supra) also. The petitioner ought to have been aware of
the said requirement and ought to have obtained the
qualification of B.Ed.; but as aforesaid has not done
anything to obtain the qualification in the last six years
also. In these circumstances, no case for any relaxation is
also made out. Moreover, the discretion to seek
relaxation or not is vested in the Selection Committee of
the school and no mandamus can be issued compelling
the school to so apply.
9. The Senior Counsel for the respondent no.2 school has
also urged that the present writ petition has been filed as
an afterthought and after the petitioner had handed over
the charge, accepted his terminal benefits and is not
maintainable for this reason. As to the circumstance in
which that the petitioner was permitted to continue with
the respondent no.2 school for so long without
qualification, it is contended that the petitioner had
represented at the time of joining that he was about to
complete B.Ed. and subsequently that he has done so.
However, in view of the settled legal position aforesaid,
need is not felt to go into the said controversy, which in
any case cannot be gone into while exercising writ
jurisdiction."
18. From the above facts of the case, it is established that minimum
qualification for the post of TGT (SUPW) is B.Ed.
19. In the case of Pramod Kumar vs. U.P. Secondary Education Services
Commission And Ors.: (2008) 7 SCC 153, the Hon'ble Supreme Court has
observed that initial appointment of the petitioner, being wholly illegal and
void by virtue of its being de hors the rules, his appointment to the said post
of assistant teacher in the Institution could not be permitted to continue any
more, even if he had managed subsequently to obtain another B.Ed degree.
It was further observed that if the essential educational qualification for
recruitment to a post is not satisfied, ordinarily, the same cannot be
condoned even if teacher works, so far, but without requisite qualifications.
20. It is pertinent to mention here that vide order dated 20.05.2016,
Department of Education, GNCTD stated that "by referring directions of the
Supreme Court and this Court that the regulation of service conditions of
the employees of private recognized schools is required to be controlled by
Education Authorities and the State Legislations is empowered to legislate
such provisions in the DSE Act. Accordingly, all the private unaided
Schools were directed to comply with the provisions of sub-Section (2) of
Section 8 of the Delhi School Education Act, 1973."
21. The case of Pramod Kumar (supra) was relied upon by this Court in
W.P.(C) 14642/2004 dated 01.07.2010 which is based on the issue of
termination without the approval of the Directorate of Education. This Court
in W.P.(C) 8525/2003 vide its judgment dated 17.11.2016 held that it is only
such employee who is regular employee, i.e. legally appointed because he
had the requisite eligibility criteria, only such an employee cannot be
terminated from his services without obtaining the prior approval of the
Directorate of Education under Section 8(2) of the Delhi School Education
Act. When an employee is illegally appointed i.e. she does not have the
requisite eligibility criteria for appointment to the post, then with respect to
such an employee, there is no need of taking prior permission of Directorate
of Education.
22. The settled legal proposition of the law is that there is no estoppel
against the statute. When the rules required/prescribed minimum
qualification of B.Ed. for the appointment to the post of TGT (SUPW), the
petitioner cannot take the advantage of any defect in her appointment letter.
Moreover, the petitioner was not having 15 years teaching experience at the
time of her appointment to the post in question.
23. In the case of Pramod Kumar (Supra), it is held that if he or she did
not possess the requisite qualification to hold a post, he could not have any
legal right to continue.
24. Delhi School Education Act, 1973 only apply at the stage of
recruitment. Relaxation under the said rule has to be recommended by the
Selection Committee, constitution whereof is prescribed in Rule 96 which is
relating to the stage of recruitment. There does not appear to be any
provision or relaxation of the qualification of the existing staff. However,
the petitioner ought to have aware of the said requirement and ought to have
obtained the qualification of B.Ed., but as mentioned above, did nothing to
obtain the qualification, despite permission was granted on a number of
occasions.
25. In view of the above discussion and settled position of law, I find no
illegality and perversity in the order dated 20.03.2015 passed by the Delhi
School Education.
26. I find no merit in the present petition. The same is, accordingly,
dismissed with no order as to costs.
CM APPL. Nos. 11647/2015 & 21553/2018
27. In view of the order passed in the present writ petition, these
applications have been rendered infructuous and are, accordingly, disposed
of.
(SURESH KUMAR KAIT)
JUDGE
JULY 01, 2019
ms/ab
