Delhi District Court
Shri Rajendra Tyagi vs Shri Mahashaya Chunni Lal on 27 January, 2007
1
IN THE COURT OF SH.SANATAN PRASAD
SR.CIVIL JUDGE: DELHI.
Suit No.1285/06/95
In the matter of:-
Shri Rajendra Tyagi,
S/o Shri Y.R. Tyagi,
R/o 309, Hassal Village,
PO: Uttam Nagar,
New Delhi-110059.
...Plaintiff
Versus
1. Shri Mahashaya Chunni Lal
Saraswati Shishu/
Bal Mandir Senior Secondary School (Recognised(
L-Block, Hari Nagar,
New Delhi-110064.
Through its Manager
2. Samarth Shiksha Samiti (Regd.)
Mata Mandir Gali,
Opp. Nazz Cinema,
Jhandewalan,
New Delhi-110055
Through its Secretary
2
3. The Director of Education,
Delhi Administration,
Govt. of National Capital Territory of Delhi,
Old Secretariat,
Delhi.
4. Shri Ram Gopal,
Vice-Principal,
Saraswati Bal Mandir,
Mehrauli, New Delhi.
...Defendants
Date of Institution : 19.12.1995
Date of Decision : 27.01.2007
SUIT FOR DECLARATION
Present: Counsel for parties.
JUDGMENT
The plaintiff by way of this suit, has prayed for passing of a decree of declaration, declaring thereby the plaintiff to be entitled for the post of Vice-Principal, instead of defendant no.4 and also for 3 direction to the defendants nos.1 & 2 to appoint the plaintiff to be the Vice-Principal, w.e.f 01.01.1995 and also to pay the arrears of pay and allowance from the date of promotion of defendants no.4, w.e.f. 01.04.1995, till date. As per the case of the plaintiff, plaintiff is Post Graduate Teacher under Def. No.1 which is a recognized School, since 01-07-1988 and Def. No.2 is the Society registered under the Societies Registration Act, 1860 and has been running various schools and Def. No.3 is the Director of Education and is responsible for supervision and inspection of all recognized schools in Delhi. As per the plaintiff vide office order No.1050-60, dt.15-06-94 Def. No.2 circulated the seniority list of post graduate teachers and in the seniority list the name of plaintiff appears at Serial no.6 and that of Def. No.4 at Sl. No.10.
As per the case of plaintiff, Def. No.2 promoted Def. No.4 4 arbitrarily and discriminately to the post of Vice Principal in April 1995 in the Pay Scale of Rs.2000-3500/-. It is stated that non promotion of the plaintiff and promotion of Def. No.4 is illegal, discriminatory and arbitrary, hence, this suit praying for decree of declaration, declaring thereby that the plaintiff is entitled for the post of Vice principal instead of Def. No.4 and for further direction to Def. No.1 and 2 to appoint the plaintiff to the post of Vice Principal. Plaintiff has also sought direction to Def. NO.1 and 2 to pay the arrears of pay and allowances from the date of promotion of def. no.4.
Defendants contested the suit and filed their separate WS. Def. NO.1 and 2 in their WS stated that suit of the plaintiff is barred U/S 25 of Delhi School Education Act 1973. It is stated that def. No.1 has all the authority to appoint and for termination of all the employees working in various schools managed by it. It is stated that 5 there was a regular vacancy of Vice principal in Saraswati Bal Mandir Mehrauli, New Delhi which was to be filled by Def. No.2 on direct recruitment. It is stated that the name of the plaintiff was considered but he was not found suitable and Def. No.4 was given temporary/ ad hoc appointment as Vice Principal after consideration and due selection by DPC. It is stated that plaintiff has not discharged his duties satisfactorily and was warned verbally several times to improve his working. On the above mentioned ground defendants prayed for dismissal of the suit.
Defendant no.2, in the written statement, filed by it raised several preliminary objections as suit being bad for want of statutory notice, also for misjoinder of parties and further being barred u/s 25 of Delhi School Education Act and lacking cause of action and also not being valued for the purpose of court fees and jurisdiction. 6
Def. No.3 in its WS stated that Def. No.1 and 2 are free to run the school as per their administration and act done by the def No.1 and 2 must be approved by Def. No.3. Rest of the contents of the plaint were denied and prayed for dismissal of the suit.
There is no separate WS filed on behalf of Def. No.4 on record, though on perusal of records it appears that Sh. Rajesh Mahendru, Counsel for Def. No.1 and 2 appears on behalf of Def No.4 also.
Plaintiff filed replication/(s) to the WS(s) wherein contents of the WS(s) were denied and contents of the plaint were reaffirmed as correct.
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On the pleadings of the parties, the curt vide its order dated 18.1.02, framed the following issues for trial:-
(i)Whether the suit is barred u/s 25 Delhi School Education Act? OPD.
(ii)Whether the plaintiff is entitled to the declaration as prayed for?
(iii)Whether the plaintiff is entitled to the service benefit w.e.f. 1.4.1995 as claimed? OPP.
(iv)Relief.
In support of his case the plaintiff has filed his own evidentiary affidavit dated 6.1.02, and has also relied on the copy of office order no. 1050-60, dated 15.6.94 and seniority list of post graduate teachers (appointed up to1990) is relied on as Ex. PW1/1 and it is deposed that the name of the plaintiff appears at serial no. 6 in the above seniority list, whereas that of the deft no. 4 at serial no. 10 and the objection raised by the above PW, vide his letter dated 8 14.9.95, is marked as annexure 'A'. Legal notice dated 25.4.1995, is relied on as annexure PW1/3 and postal receipts and AD cards etc are relied on as Ex. PW1/4 to PW1/7 and it is categorically stated that the said notice was duly served on the defts. The PW has further deposed on the lines of its case as pleaded in the plaint and in his cross examination by the counsel for defts no. 1 and 2, the PW has denied the suggestion as wrong that the post of the Vice Principal was a direct recruitment post and not a promotional one, however, the PW was unable to point out the relevant rules in this regard. The PW has further accepted that the deft no.4 was given temporary ad-hoc appointment as Vice Principal. He has also stated his ignorance about constitution of any DPC and if any recommendations were made for the appointment of deft no. 4 as Vice-Principal. He has further denied the suggestion that the deft no. 4 was appointed as a staff gap arrangement by the DPC. He has also denied a suggestion that he has 9 no legal right to be promoted to the post of Vice Principal. He has also denied that the post of Vice Principal was advertised but again said that it was advertised after the ad-hoc appointment of deft no. 4 to the post of Vice Principal. The PW has accepted that he did not apply for the post of Vice Principal after the same was advertised. The PW has denied the suggestion as incorrect that he was not entitled for the relief claimed in the matter, on the other hand the defts have led in evidence of Sh. Murli Dhar Diwedi and evidentiary affidavit of this DW dated 15.5.03 has been filed as defts' evidence and this DW has claimed himself to be Administrative Officer of the deft no. 2 which was a society, having authorized to see over the management of deft no. 1 in the matters of appointment and terminations which were being maid as per provisions of the Delhi School Education Act, 1973. The DW has further deposed that the plaintiff was not discharging his duty satisfactorily and he was warned verbally several times to 10 improve upon his working and remain disciplined and he was not promoted to the post of Vice-Principal as there was a regular vacancy of the Vice-Principal to the school which was filled up by deft no. 2 by direct recruitment, as provided under the Delhi School Education Act, 1973, and therefore, the plaintiff had no right or claim to the post of Vice-Principal for which applications were invited to fill up the vacancy by direct recruitment. The DW has accepted that as a measure of provisional time got arrangement, temporary appointment was made by the management amongst existing staff by holding DPC and even the name of the plaintiff was also considered but he was not found suitable and deft no. 4 was given ad-hoc appointment after due consideration. The office order dated 1.4.91 is relied on as Ex. DW1/1 and the evidence has been further deposed to support the line of the defence pleaded by the defts and the DPC proceedings are filed and relied as Ex. DW1/2.
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I have heard arguments by the ld. counsel for the parties and has also perused the submissions made by them in the written submissions/notes of arguments, filed on behalf of the plaintiff as well as defts no. 1 and 2 and have also carefully perused the entire relevant record besides appreciating the testimonies of the witnesses and in this scenario of the case my categorical findings on the above issues are as under:-
ISSUE NO. 1
As to whether the suit is barred u/s 25 of Delhi School Education Act, 1973 and burden of proving of this issue is placed on the deft who has failed to discharge this burden in their favour as there is not even a whispering made in the evidence of the deft Murli Dhar Dwivedi , in any case this is the legal issue and while arguing in 12 the court ld. counsel for deft has not touched this aspect of the matter and even no submissions has been made in the written arguments filed on behalf of the defts no. 1 and 2, on the other hand, the section bars cognizance by a civil court in respect of any matter in relation to which the Administrator or the Director or any other person authorized by the Administrator or Director of any other officer or authority pointed out or specified by or under the Act, is empowered by or under the Act to exercise any power and nothing has been brought to my notice that the appointment to the post of Vice-Principal was a matter falling in this category as above and as such it appears that jurisdiction of this court is not barred by section 25 of Delhi School Education Act, 1973, and accordingly, this issue is decided in favour of plaintiff and against the defts 13 ISSUE NO. 2 This is an issue as to whether the plaintiff is entitled to the declaration as prayed for and it appears that no specific burden of proof has been placed on any of the parties, yet obviously the burden has to be placed on the plaintiff as he has alleged/claimed a relevant fact in his favour and as such the burden has to go with the plaintiff alone and ld. counsel for the deft has contended that the post of Vice Principal in question was not a promotional one and therefore plaintiff can not lay his claim on the basis of seniority only and vacancy was filled up by direct recruitment and further as a matter of immediate arrangement deft no. 4 was promoted on ad-hoc basis and he has also drawn my attention to the copy of office order dated 1.4.91 to show that the deft no. 4 was appointed only on ad-hoc basis/temporary for 6 months only, on the other hand, ld. counsel for plaintiff has forcefully contended that vide office order no. 1050-60, dated 15.6.94, 14 deft no. 2 circulated the seniority list of post graduate teachers (appointed up to 1990) and in that seniority list the name of the plaintiff appears at serial no. 6 and that of the deft no. 4 at serial no. 10 and as such the plaintiff is undoubtedly senior to the deft no. 4 and his claimed can not be brushed aside illegally and arbitrarily.
The declaration claimed by the plaintiff is to the effect that he be declared as entitled for the post of Vice Principal instead of defendant no.4 Ram Gopal, who according to the plaintiff was appointed as such arbitrarily and discriminately by ignoring the seniority list Ex.PW.1/1, wherein the name of defendant no.4 appeared at s.no.10 and of the plaintiff as no.4. It has been argued on behalf of the pltf.that objection filed by the pltf. vide his letter dated 14.9.95, to the appointment of deft.no.4 as vice principal was not considered. There is no denial of the defendants, to the abovesaid 15 seniority list but the stand taken by the defts.is that initially, the defendant no.4 was appointed as vice principal as a time gap arrangement, amongst the existing staff by holding DPC and the candidature of plaintiff was also taken into consideration but was not found suitable. There was a regular vacancy of vice principal in Saraswati Bal Mandir i.e. the school in question to be filled by direct recruitment and plaintiff could not lay his claim of promotion over it as a matter of right, thus, I am in agreement with the contention of defendants in this regard that in view of the proceedings of DPC placed on record as Ex.DW.1/2, which speak for recommendation for appointing the deft.no.4 as vice principal of the school on adhoc basis for a period of six months till the regular appointment on this post was made. It was a regular vacancy for the appointment of Vice Principal and as a time gap arrangment, deft.no.4 was initially appointed as vice principal temporarily and subsequently taking into consideration 16 the quality of work done by him during his such tenure, the DPC recommended him for being appointed as vice principal on adhoc basis for a period of six months till the regular appointment was made. Thereafter, the defendant advertised about this vacancy, calling public applications, about which there is no denial from the side of plaintiff and he has also admitted that he had not applied as against that advertisement. The defendant no.4 was, however, finally recruited for the said post. The plaintiff thus cannot blame the defendants for his own fault of not having applied for the post and he has no right to claim automatic promotion to the said post. The issue no.2 is thus decided against him and in favour of the defendants Issue No.3 In view of my findings on issue no.2, issue no.3 also goes against the plaintiff and in favour of the defendants. 17 Relief In the result, the present suit stands dismissed. There is, however, no order as to costs. File be consigned to record room after preparing the decree sheet.
Announced in open court (SANATAN PRASAD) on this 27th day of January 2007 Sr. Civil Judge, Delhi (Spare three copies attached)