Delhi High Court
Gauri Sharma vs Directorate Of Education ... on 22 February, 2022
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: February 22, 2022
+ W.P.(C) 613/2020 & CM. No. 4947/2021
GAURI SHARMA ..... Petitioner
Through: Mr. Deeptakirti Verma, Adv.
versus
DIRECTORATE OF EDUCATION GOVERNMENT OF NCT OF
DELHI AND ANR. ..... Respondents
Through: Mr. V. Balaji and Ms. Neha Singh,
Advs. for DOE/R-1
Dr. D.K. Chaubey, Adv. for R-2
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
JUDGMENT
V. KAMESWAR RAO, J
1. This petition has been filed with the following prayers:
(i) issue a writ of mandamus or any other similar writ
or order quashing and/or setting aside the (illegal)
order dated 20.11.2019 issued by the Deputy Director
of Education (District North) rejecting the request of
the Petitioner for payment of her salary from the date
of her appointment (being 22.12.2018);
(ii) issue a writ of mandamus or any other similar writ
or order directing the Respondents to make payment to
the Petitioner her salary as per law from the date of
her appointment (being 22.12.2018);
(iii) issue a writ of mandamus or any other similar writ
or order directing the Respondents to continue to make
payment of salary to the Petitioner in future as per
law; &
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(iv) pass such other and further orders as this Hon'ble
Court may deem fit and proper in the facts and
circumstances of the present case.
2. The respondent No. 2, a Minority Aided School, published an
advertisement in the newspaper of the employment exchange dated
June 2, 2018 to June 8, 2018 inviting applications for one post of
Librarian, along with 32 other posts. The petitioner herein applied for
the post of Librarian and was called by the Management of the
respondent No.2 School for verification of documents vide letter dated
November 17, 2018. Subsequently, vide letter dated November 27,
2018, respondent No.2 School directed the petitioner to appear before
the Staff Selection Committee for interview on December 7, 2018.
The petitioner duly appeared for the interview and on successfully
qualifying, was issued an offer of appointment to the post of Librarian
by the respondent No.2 School vide letter dated December 20, 2018.
The petitioner joined the respondent No. 2 School with effect from
December 22, 2018, and has been working as a Librarian in the
respondent No. 2 school since then.
3. It is stated by Mr. Deeptakirti Verma, learned counsel for the
petitioner that at the time of the advertisement, the petitioner was 36
years of age, as her date of birth is March 12, 1982. During the
selection process, the petitioner had claimed age relaxation up to ten
years available to women candidates for appointment as teachers. He
has placed reliance on an order of the Assistant Director of Education
(Admn.) bearing No. DE-4(9)/67/E-IV/651-667 dated January 21,
2011 wherein it is stated as under: -
"The post of librarian in Government School of
Directorate of Education, Govt. of NCT of Delhi is hereby
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declared as Teaching Post for all purposes with
immediate effect and accordingly the librarian shall avail
all benefits applicable to teaching category."
4. He would submit that in view of the above order, it is a settled
legal position that a Librarian in a Government or Government aided
school would enjoy parity with a teacher, in all aspects including
terms of employment, working conditions, salary etc. Therefore, there
is no illegality in the grant of age relaxation to the petitioner, nor
could her appointment be faulted on that ground.
5. It is the case of the petitioner as averred by Mr. Verma that
from the very beginning of her service, her salary was not released by
the respondent No. 2 School even though the salaries of all other staff
members selected/appointed along with the petitioner through the
same advertisement were duly paid every month. On April 6, 2019,
the petitioner received a memorandum from respondent No. 2,
informing her that respondent No. 1 had raised certain objections
regarding her appointment on the ground of her being over-age. The
petitioner submitted a response dated April 18, 2019 to the said
memorandum, setting out the position as stated above.
6. Subsequently, the petitioner sent a representation dated
November 18, 2019 to the respondent No. 2 School with copies
marked to the respondent No. 1, seeking release of her salary. Shortly
thereafter, the petitioner received an order dated November 20, 2019,
issued by the Deputy Director of Education (North District) through
respondent No. 2 School, holding that the relaxation of ten years in
age limit granted to the petitioner while considering her for
appointment to the post of Librarian was void, as the post of Librarian
is a non-teaching post and such relaxation is applicable only on
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appointments to the post of teachers.
7. The petitioner preferred a detailed representation dated
November 28, 2019 to respondent No. 1 through respondent No. 2
School, bringing to notice the aforementioned order dated January 21,
2011, along with various Judgments of Supreme Court and this Court,
and sought a review of the order dated November 20, 2019. She has
neither received any response to the representation nor the salary has
been released. It is further stated that the petitioner has been
satisfactorily discharging her services for over a year as on the date of
filing of this petition.
8. A counter affidavit has been filed by the respondent No. 1,
wherein at the outset it is stated that as per Recruitment Rules, the
maximum age for the post of Librarian is 30 years and the petitioner
being 36 years and three months of age on the date of the
advertisement, is not eligible for appointment to the said post. It is
stated that the appointment of the petitioner being void ab-initio, the
question of payment of salary does not arise.
9. Mr. V. Balaji, learned counsel for the respondent No. 1, would
state that it was categorically mentioned in the advertisement that the
age limit shall be as per the Recruitment Rules framed by the
Directorate of Education ('DOE', for short and respondent No.1
herein) of the Government of National Capital Territory of Delhi. He
stated that the respondent No. 2 was bound to examine the documents
of the petitioner before she was called for interview. As the petitioner
was over-age, she should not have been called for verification of
documents or interview.
10. He has referred to Points 6 and 7 of the Appointment Letter /
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Office Memorandum dated December 20, 2018 which reads as
under: -
"6. The appointment of Ms. Gauri Sharma in this
school is subject to the finalization of recruitment
formalities of Directorate of Eductation, Delhi.
7. The other conditions of service will be governed
by the relevant rules and orders in force from time
to time."
He would submit that as per the above terms and conditions,
respondent No. 1 has a bona fide locus standi to examine the
testimonials of the petitioner to ascertain whether the petitioner is
eligible for the post of Librarian. Mere issuance of an appointment
letter by the respondent No. 2 does not accrue any right in favour of
the petitioner for appointment as the same is subject to the finalization
of recruitment formalities by the respondent No. 1.
11. That apart, it is submitted that the notification dated
November 1, 1980 relied upon by the petitioner, whereby a general
relaxation of 10 years was granted to the maximum age limit
prescribed in the Rules for recruitment to various posts of teachers in
Delhi schools, was withdrawn vide office order bearing No.
DE.4/1/101/E-IV/Court Cases/2018/208-216 dated March 6, 2020.
12. It is contended by Mr. Balaji that the order dated January 21,
2011 is applicable only in respect of Librarians in Government
schools. The order has not been endorsed in respect of aided schools.
Further, the order does not imply that the Recruitment Rules of
Trained Graduate Teachers ('TGT', for short) will be applicable for
the appointment of Librarian, as there is a mandatory requirement of
Central Teacher Eligibility Test ('C-TET', for short) Certificate
conducted by the CBSE for the post of TGTs, whereas no such
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certificate is required for the appointment of Librarians in the same
pay scale. He has also placed reliance upon Rule 98 (5) of the
Recruitment Rules to submit that the respondent No. 2 was liable to
dispense with the services of the petitioner as her appointment was
contrary to the Recruitment Rules as far as the criteria of maximum
age limit is concerned. Rule 98 (5) of the Recruitment Rules is
reproduced as under:-
"Where any appointment made by the managing
committee of an aided school is not approved by
the Director, such appointment may (pending the
regular appointment to the post) be continued on
an adhoc basis for a period not exceeding three
months and the salary and allowances of the
person so continued on an adhoc basis shall
qualify for the computation of the aid to be given
to such school."
13. A counter affidavit has been filed on behalf of respondent No.
2 School, wherein it is stated that the petitioner was appointed keeping
in view the Order/ Notification bearing No. Delhi Admn., Dte of Edn.,
Recruitment Branch, No.F.1/16/3/R&S 79, dated November 1, 1980
whereby the Administrator has provided general relaxation of ten
years for women candidates in the maximum age limits prescribed in
the Recruitment Rules for recruitment to various posts of teachers in
Delhi Schools and Order of the Assistant Director of Education
(Admn.) bearing No. DE-4(9)/67/E-IV/651-667 dated January 21,
2011 wherein it was stated that the post of Librarian is a teaching post
for all purposes and accordingly a Librarian shall avail all benefits
applicable to the posts in teaching category.
14. Mr. D.K. Chaubey, learned counsel appearing on behalf of the
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respondent No. 2 School stated that the School had issued a
memorandum to the petitioner on April 6, 2019 in furtherance of the
memorandum issued by the office of the Deputy Director of
Education, Zone VII, District North Delhi dated April 5, 2019 for
clarification regarding the age of the petitioner on the date of
appointment. The petitioner submitted her detailed response to the
memorandum vide reply dated April 18, 2019. He denied the
contention of Mr. Verma that the petitioner is being forced to work
without pay, by stating that it is the DOE that is the competent
authority to release the salary of the petitioner. Being an aided School,
the respondent No. 2 is liable to pay only Grant-in-Aid of 5% of total
salary after approval by the respondent No. 1/DOE.
15. It is submitted by Mr. Chaubey that the respondent School,
had selected twenty-nine other candidates in various categories, along
with the petitioner. Upon selection, personnel files of all thirty
candidates were forwarded to the office of the Deputy Director of
Education for approval of Grant-in-Aid towards salary and other
allowances. However, the office of the Deputy Director of Education
approved Grant-in-Aid for all other candidates, except the petitioner.
Mr. Chaubey submitted that in the absence of approval of the Grant-
in-Aid from the respondent No. 1, the respondent No.2 School could
not release the salary of the petitioner.
16. A rejoinder has been filed on behalf of the petitioner to the
counter affidavit of respondent No. 1, wherein, apart from reiterating
the contentions set forth in the petition, it is stated that the petitioner
was well within the permissible age limit for the post of Librarian,
taking into consideration the Order dated January 21, 2011.
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17. As regards the submission of the respondent No. 1 that the
Order dated January 21, 2011 is applicable only in respect of
Librarians in Government schools and no benefit thereof could be
given to the petitioner as she had applied for the post in an aided
school, it is stated that such submission is contrary to the provisions of
the Delhi School Education Act, 1973 ('DSE Act', for short) and
Delhi School Education Rules, 1973 ('DSE Rules', for short). Rule
104 of the DSE Rules reads as under:
"104. Age Limit - The minimum and maximum of age of the
limit for recruitment to a private recognized school ,
whether aided or not, shall be the limits specified by the
Administrator for appointment to corresponding posts in
Government schools: Provided that the age limit may be
relaxed in the case of a candidate belonging to the
Scheduled Castes and Scheduled Tribes or any other special
category of persons in accordance with the orders on the
subject made by the Central Government from time to time."
Mr. Verma stated that as per the above provision, the
maximum age limit for appointment to a post in an aided private
school would correspond automatically to the age limit fixed for such
a post in a Government school. Once Librarians in Government
schools have been equated with Teachers (vide Order dated January
21, 2011) resulting in women candidates for such post in Government
schools being eligible for age relaxation of up to ten years (in view of
the then prevailing Order dated November 1, 1980), such relaxation in
age limit would ipso facto apply to women candidates seeking
appointment to post of Librarian in private schools (whether aided or
not) in view of the above Rule.
18. He further submitted that the same effect (of age relaxation in
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appointments to the post of Librarian in Government schools) has
been achieved by the respondent No. 1 indirectly by providing age-
relaxation in appointments to post of Teachers (vide Order dated
November 1, 1980) and thereafter equating the post of Librarian in
Government schools with Teachers (vide Order dated January 21,
2011). Inasmuch as respondent No. 1 cannot act in breach of the
statutory rules directly or indirectly, the same age-relaxation would
automatically become applicable to appointment to the post of
Librarian in an aided school. Hence, the petitioner was entitled to
avail the benefit of such age relaxation, and respondent No. 2 School
was justified in extending the same to the petitioner. To buttress his
argument, Mr. Verma has relied upon the Judgments of this Court in
the cases of Asha v. Govt. of NCT of Delhi and Ors., WP(C)
1035/2014 decided on August 22, 2014; Praveen Kumar Pandey v.
The Director of Education, Govt. of NCT and Anr., WP(C)
9483/2015 decided on January 20, 2017 and Bal Raj Parashar v.
Union Academy Senior Secondary School and Ors., LPA 502/2018
decided on April 4, 2019.
19. Contesting the submission of Mr. Balaji that the Order dated
January 21, 2011 did not make the Recruitment Rules of TGTs
applicable to the appointment of Librarians, as there is a mandatory
requirement of C-TET Certificate for the post of TGTs whereas no
such certificate is required for the appointment of Librarian in the
same pay scale, Mr. Verma would state that the same is irrelevant as a
Librarian in both Government and private schools (aided or unaided)
is required to have and hold the qualification of graduation followed
by diploma/degree in Library Science, which the petitioner has. Even
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Librarians in Government schools would be holding the same
qualification of graduation followed by diploma/degree in Library
Science and not C-TET. In fact, it stands to reason that a person
holding C-TET Certificate or qualification would not be applying for
appointment to the post of Librarian but would be applying for
appointment to the post of TGTs in the concerned subject.
20. Insofar as the stand of the respondent No. 1 that no
corresponding amendment has been made in the Recruitment Rules of
Librarian subsequent to the Order dated January 21, 2011, it is stated
that such omission is the fault of respondent No. 1, and cannot be a
ground to deny the petitioner of her rights. Mr. Verma has stated that
this argument of the respondent No. 1 has been rejected by this Court
in Asha (supra).
21. That apart, it is his contention that the only alleged reason for
rejection of appointment of the petitioner stated in the impugned order
dated November 20, 2019 was that "as the post of librarian is a non-
teaching post, hence the relaxation in age of 10 years for women
candidates is not applicable" in her case. It is settled law that the
reasons contained in an Order cannot be supplemented or added to by
way of pleadings/filings in court, in case such Order is assailed before
a Court. Reliance in this regard is placed on the Judgment of the
Constitution Bench of the Supreme Court in the case of Mohinder
Singh Gill and Anr. v. Chief Election Commissioner, New Delhi and
Ors., (1978) 1 SCC 405.
22. Mr. Verma would also submit, without prejudice to his earlier
submissions the impugned Order is also in violative of Rule 98(4) of
the DSE Rules which mandates as under:-
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"(4) The Director shall be deemed to have approved an
appointment made by the managing committee of an aided
school if within fifteen days from the date on which the
particulars of the appointment are communicated to him
under sub-rule (3), he does not intimate to the managing
committee his disapproval of the appointment, and the
person so appointed shall be entitled for his salary and
allowance from the date of his appointment."
In the present case, the petitioner has been informed by
respondent No. 2 School that the details of all the appointees of the
selection process held in December 2018 (of which the petitioner was
a part) were communicated to respondent No. 1 on January 29, 2019.
It is therefore evident that the Director was statutorily required to
communicate his disapproval to the appointment of the petitioner (if
any) by about mid-February. In this regard, reliance is placed on the
Judgment of this Court in the case of Surendra Singh v. Manager,
Haryana Shakti Sr. Sec. School and Ors., CWP No. 424/2000
decided on September 18, 2001. He has relied upon the decision in the
case of Delhi Tamil Education Association v. Directorate of
Education, (2008) 153 DLT 251, wherein, this Court, after referring
to earlier precedents on the issue, directed release of salaries and
allowances of the concerned appointees whose appointments were
disapproved beyond the statutory period of fifteen days while
observing that "...Rule 98(4) contains a salutary provision intended to
obviate impasse of persons commencing their employment and later
on being told that their appointment was illegal and non est."
23. A brief written synopsis has also been filed on behalf of the
respondent No. 2 school, wherein the plea of the respondent No. 1 that
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the post of Librarian is not a teaching post has been vehemently
opposed. After the enforcement of the DSE Act and Rules, 1973, the
DOE vide order dated August 24, 1978, brought the service conditions
of employees of aided schools at par with those working in
Government schools. The said order reads as under:-
"In supersession of the earlier instructions issued by the
Directorate of Education on the subject. I am directed to
say that with the coming into force of Delhi School
Education Act and Rules framed thereunder with effect
from 31.12.1973, the service condition of employee of
Aided Schools have been brought at par with those
working in Government Schools."
It is stated that the contention of the respondent No. 1 that the
order dated January 21, 2011 is applicable only for Government
schools and not for aided schools is not sustainable in view of the
above.
24. Further, the plea of the respondent No. 1 that the appointment
of the petitioner was illegal as she was over-age on the date of
appointment is also opposed by Mr. Chaubey on the ground that the
relaxation of ten years in maximum age limit prescribed in the
Recruitment Rules for women candidates for recruitment to various
posts of teachers under Rule 43 of the DSE Act and Rules, 1973
granted by the Lieutenant Governor/Administrator has been duly
implemented by the respondent No. 1 vide notification dated
November 1, 1980. The candidature of the petitioner was considered
by the respondent No. 2 in terms of the said order dated November 1,
1980.
25. That apart, he stated that the submission made by the Mr.
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Balaji that Recruitment Rules have not been amended is also not
sustainable, as Rule 43 of DSE Act and Rules, 1973 is only applicable
to privately managed aided/unaided schools and not Government
schools as clarified by the Division Bench of this Court in the matter
of Raj Bala and Anr. vs Government of NCT of Delhi and Anr.
bearing W.P.(C) No. 7240/2017, decided on August 23, 2017. It is
further stated that advantage of the notification dated November 1,
1980 was taken by Government schools in their recruitment and when
this observation came to the notice of the DOE, the said notification
was withdrawn vide order dated March 6, 2020. However, the
petitioner was appointed in the year 2018 and therefore the withdrawal
of the notification of November 1, 1980 is not applicable in her case.
26. It is also submitted that the post of Librarian along with those
of music teacher, physical education teacher and yoga teacher are
considered TGT (Misc. category) and C-TET Certificate is not a
requirement for appointment to these posts. Reliance is also placed on
the order dated April 28, 2006 issued by the respondent No. 1 to
contend that the post of Librarian comes under TGT (Misc. category).
27. Mr. Chaubey has also submitted that the stand of the
respondent No. 1 that the appointment of the petitioner is void ab-
initio and therefore the respondent No. 2 should dispose of with the
services of the petitioner under Rule 98(5) of the DSE Rules, 1973 is
not tenable in view of Rule 98(4) of the DSE Rules, 1973 which
clearly stipulates that the Director shall be deemed to have approved
an appointment made by the managing committee of an aided school,
if no intimation to the contrary is provided within fifteen days of the
date on which the particulars of the appointment is tendered to him. In
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the instant case, the respondent No. 1 sought clarification only after
three months of the appointment of the petitioner. He stated that the
appointment of the petitioner was made by the respondent No. 2
School in terms of the above notifications/circulars/order passed by
the competent authorities and therefore does not suffer from any
infirmity.
28. Having heard the learned counsel for the parties, the facts
noted are that the respondent No.2 is a Minority Aided School which
published an advertisement for various posts including the post of
Librarian. The petitioner had applied for the said post and was also
selected and given appointment by the respondent No.2 School.
Pursuant thereto, the respondent No.2 School had sent the details of
all the appointees of the selection process to the DOE on January 29,
2019. It appears that the appointment of the petitioner was not
approved by the Director of Education and a communication thereof
was sent to the respondent No.2 School.
29. The petition has been filed with a limited prayer that she be
paid her salary w.e.f. December 22, 2018, i.e., the day when she had
joined the School. There is no dispute that the petitioner is still
working in the respondent No.2 School.
30. On a reading of the stand taken by the parties before this
Court, the reason for non-payment of the salary to the petitioner is
primarily that, the petitioner has been appointed as Librarian beyond
the upper age limit prescribed in the Recruitment Rules for
appointment to the post of Librarian, which is 30 years. The
petitioner's age on the date of appointment was 36 years. The stand of
the respondent No.1 / DOE are the following:
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(i) That the maximum age for appointment to the posts
of Librarian is 30 years and the petitioner is of 36 years of
age.
(ii) The respondent No.2 School had appointed the
petitioner overlooking the said aspect.
(iii) Mere issuance of appointment letter to the
petitioner by the respondent No.2 School would not
create any right in favour of the petitioner to claim salary.
(iv) The notification dated November 1, 1980 on which
reliance has been placed by the petitioner holding that the
post of Librarian has been considered as a teaching post,
has been withdrawn on March 6, 2020. In other words,
the post of Librarian is not a teaching post.
31. The reliance placed by the petitioner on the order dated
November 21, 2011 wherein the post of Librarian was declared as a
teaching post was only confined to appointment of Librarians made in
Government schools. The case of the respondent No.2 School is
primarily justifying the appointment of the petitioner in view of the
notification dated November 1, 1980 wherein age relaxation of ten
years was granted to women candidates for appointment to the post of
teachers.
32. It is also stated that the salary to the petitioner could not be
paid, as the respondent No.2 being a Grant-in-Aid School, the
appointment has not been approved by the Director of Education, and
as such, Grant-in-Aid was not sanctioned for the petitioner's
appointment.
33. Having noted the broad submissions made by the counsel for
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the respondent No.1, at the outset I may state that the notification
dated November 1, 1980 which reads as under, is clear that age
relaxation of ten years shall be granted to women candidates for
appointment to various posts of teachers:
"GENERAL AGE RELAXATION OF 10 YEARS FOR
WOMAN CANDIDATES FOR RECRUITMENT TO
TEACHERS POST
1. In exercise of the powers vested in him under rule
43 of the Delhi School Education Rules, 1973, the
Administrator is pleased to prescribed for women
candidates a general relaxation for 10 years in the
maximum age limits prescribed in the Recruitment
Rules for recruitment to various posts of teachers in
Delhi Schools.
2. The Managing Committees shall, while considering
women candidates for appointment to vacancies in
their schools, consider such candidates as per the
revised age limit for women candidates.
(Delhi Admn., Dte. Of Edn., Recruitment Branch, No.
F.1/16/3/R & S 79, dated 01.11.1980)"
34. A question would arise whether the post of Librarian in a
Grant-in-Aid School shall also be treated as such. This issue is no
more res integra in view of the judgment of this Court in the case of
Praveen Kumar Pandey (supra). The issue arose before the Court
whether the petitioner therein is entitled to age relaxation for a period
of 4 years, 4 months and 7 days. The respondent in that case was an
aided institution and the stand of the DOE was that the said order
which reads as under shall be applicable only for the Government
schools.
"GOVT. OF NATIONAL CAPITAL TERIITORY OF DELHI
ESTABLISHMENT-IV BRANCH, DIRECTORATE OF
EDUCATION OLD SECTT. DELHI-110054
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No.DE4(9)/67/E-IV/04/657-667
Dt. 21/1/11
ORDER
The post of Librarian in Govt. Schools of Dte. of Education,
Govt. of N.C.T of Delhi is hereby declared as teaching post for
all purpose with immediate effect and accordingly the librarians
shall avail all benefit applicable to teaching category in
prospective manner only. It is further ordered that the librarians
shall take classes also besides the work of Library as and when
required by concerned HOS/any other higher authority.
This issues with the prior approval of Director of Education.
Sd/-
(SURESH GUPTA)
ADDL. DIRECTOR OF EDU. (ADMN)"
35. The Coordinate Bench by relying upon Section 10 to the DSE
Act has held as under:
"As per Section 10 of the Delhi School Education
Act, 1973, employees of private schools have to be
considered at par with employees of government
schools so far as grant of monetary benefits are
concerned, and since employment as a librarian
obviously will result in monetary benefits, and
therefore, employment of a teacher/librarian in a
private school has to be on the same terms and
conditions as government schools. In fact, the
respondent no.2/school is an aided school with 95%
of the aid being granted by the Director of Education.
Therefore, in the opinion of this Court petitioner will
be entitled to the benefit of the circular of the
respondent no.1/Director of Education dated
21.1.2011 whereby and since a librarian is treated as
equal to a teacher, the benefit of age relaxation to a
teacher will also be applicable to appointment of a
librarian in schools in Delhi."
36. It has not been shown to me that this judgment has been taken
in appeal and has been overturned. From the above finding, it must be
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held that the petitioner is entitled to the benefit of age relaxation as
applicable to teachers, for appointment as Librarian in the respondent
No.2 School.
37. The aforesaid position of law has been reiterated in a
subsequent judgment passed by the Division Bench of this Court in
Bal Raj Parashar (supra) wherein in paragraph 29 it is stated as
under:
"29. In the instant case, with the post of librarian in
the Respondent No.1 school, which is an aided
school, remained unfilled, what is to really be seen
whether at the time of the Appellant being appointed
to that post, he suffered from any disqualification as
such. The Court is of the view that with the position
that a librarian is equivalent to a teaching post
having been made clear, the only hurdle in the way
of the Appellant being granted the benefit of age
relaxation, no longer survives. There should be no
difficulty, therefore with the DoE agreeing to relax
the age in the case of the Appellant, particularly
since he has previous experience as librarian for a
period which is greater than the period of relaxation
being sought."
38. It is not the case of the respondents that the petitioner does not
fulfill any other eligibility conditions for appointment to the post of
Librarian. Insofar as the submission of Mr. Balaji that the
Recruitment Rules for the post of Librarian do not stipulate the
condition of age relaxation, the same is without merit, more
particularly in view of the judgment of the Division Bench of this
Court in Asha (supra) wherein this Court in paragraphs 10 and 11 has
held as under:
"10. It is evident from the above discussion that the
petitioner's contention hinges on the applicability of
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the 01.11.1980 circular in the light of the equation of
post of Librarian with that of other teachers - made
effective by a later notification on 21.01.2011. The
respondents did not contest - nor indeed can they -
that the equation is matter of fact. Their only
contention appears to be that in the absence of an
appropriate amendment reflecting this equation, no
right accrues to a prospective candidate to demand
that they ought to be given age relaxation in line with
the 01.11.1980 circular. Significantly, the GNCTD's
reply in the application before the Tribunal nowhere
states that the circular of 1980 was superseded either
in letter or in effect. At best, its argument appears to
be that the Recruitment Rules pertaining to Librarian
framed in 2003 do not enable such age relaxation.
11. In the opinion of this Court, that argument is
fallacious; it does not meet the subsequent
development of equation of the two posts made
effective from 21.01.2011.
xxx xxx xxx"
39. The plea of Mr.Balaji that the notification dated November 1,
1980 has been withdrawn in the year 2020 and as such is not
applicable to the petitioner is also without any merit, or at least shall
not have any bearing, as the appointment of the petitioner was made in
the year 2018, i.e., much before the notification was withdrawn. In
other words, the said notification cannot affect the rights which have
already accrued in favour of the petitioner.
40. A plea was advanced by Mr.Balaji that as the petitioner did
not have qualification of C-TET which is mandatory for the post of
TGT, and she being a Librarian, cannot be equated to a teacher. This
plea is unmerited for the reason, the C-TET Certificate is a relevant
qualification only for a teacher. It is not the case of the petitioner that
she is a teacher. Rather, she is only stating that as a Librarian, she
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shall be entitled to be equated as a teacher and be granted the benefits
as available to teachers. If the petitioner possessed the CTET
qualification then for all purposes, she would be a teacher and
appointed so, and there would not have been an issue of equating the
post on which she is working i.e., Librarian, with that of a teacher.
41. In light of the findings above, the submission of Mr. Verma
that the approval of the petitioner's appointment by the respondent
No.1/DOE is deemed to have been granted in the absence of any
communication to the contrary within 15 days need not be gone into.
42. In view of the above discussion, this Court is of the view that
the petitioner is entitled to the reliefs as prayed for. The respondent
No.1 shall release the salary of the petitioner w.e.f. December 22,
2018 with interest computed @ 5% per annum. The same shall be
complied with within eight weeks from today. The petition is
disposed of. No costs.
CM. No. 4947/2021
As I have finally decided the writ petition, this application
has become infructuous and is dismissed as such.
V. KAMESWAR RAO, J
FEBRUARY 22, 2022/aky
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