Delhi High Court - Orders
Ajit Sarkar vs Air Force Golden Jublee Institute & Anr on 22 September, 2021
Author: V. Kameswar Rao
Bench: V. Kameswar Rao
$~33
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 144/2021, CM APPL. 33021/2021
AJIT SARKAR
..... Petitioner
Through: Mr.Dinesh Kumar Sabharwal,
Mr.Sameer and Mr.Kamal Kant,
Advs.
versus
AIR FORCE GOLDEN JUBLEE INSTITUTE & ANR.
..... Respondents
Through: Mr.J Rajesh, Adv. for R-1
Mrs.Avnish Ahlawat, SC for GNCTD
with Mrs.Tania Ahlawat, Mr.Nitesh
Kumar Singh and Ms.Palak
Rohmetra, Advs. for R-2/DoE
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
ORDER
% 22.09.2021
1. With the consent of the counsel for the parties the writ petition is finally heard.
2. The prayer of the petitioner in this petition are the following:
"1. Issue a Writ in the nature of MANDAMUS and/ or any other appropriate Writ/Order/Direction of like nature thereby directing the respondent No.1 and Respondent No.2, to accord the status/ promote the Petitioner to the post of Post Graduate Teacher (PGT) w.e.f. 6th April, 2006, with all consequential benefits including Seniority, Provident Fund, Arrears of Salary, Gratuity, Pension, DA etc with interest.
2. Issue or pass any writ, direction or order, which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."
3. Some of the relevant facts which are necessary for deciding the writ petition are that the petitioner was appointed by the respondent No.1 - school as Computer Science teacher, i.e. TGT (Computer Science) w.e.f. April 06, 1993. The services of the petitioner were confirmed on March 30, 1995. In the year 1997, the petitioner was directed by the Principal of the respondent No.1 - school to take the classes of XI and XII of Informatics Practices and pursuant thereto the petitioner continued to take classes of Informatics Practices up to 2013. It is the case of the petitioner that he has completed his Masters in Computer Science from IGNOU and received a certificate and thereafter he was called for interview by the respondent No.1
- school for the post of PGT (Computer Science). According to the learned counsel for the petitioner that after 2006 the case of the petitioner has not been considered for promotion to the post of PGT (Computer Science) rather the petitioner has been demoted in the sense that he was directed to take classes to VI to X for the subject SUPW. The petitioner has been requesting the respondent No.1 - school to change his designation from TGT (Computer Science) to PGT (Computer Science) and he be given higher grade under the Provisions of the Delhi School Education Act, 1973. Unfortunately, he is being forced to sign the attendance register as TGT (Computer Science).
4. The counter affidavit has been filed by the respondent No.1 - school wherein it is stated that the respondent No.1 - school being a private un- aided school is not amenable to the writ jurisdiction under Article 226 of the Constitution of India. That apart, there is no public law element involved in the matter and the relief sought by the petitioner does not pertain to the public function of Respondent No. 1. That apart, the relief sought by the petitioner is not based on the Provisions of Delhi School Education Act, 1973 and Rules as made thereunder. In other words, the Petitioner is not fit for promotion based on his overall merit and conduct while performing duties as TGT (Computer Science). That apart, it is stated that the petitioner has filed this writ petition as a counter-blast to the disciplinary proceedings initiated against him for charges of misconduct against him which aspect has been wilfully suppressed in the writ petition. On merit, it is stated that the petitioner was appointed as TGT (Computer Science). He taught the classes of 6th standard to 10th standard. The respondent No.1 - school has denied that the Petitioner was continuously taking Classes for 11 th and 12th standards for Informatics Practice during the period between1997 to 2013. The respondent No. 1 - school concedes that the petitioner was assigned classes of 6th to 10th standards for the subject SUPW in the course of his service as TGT (Computer Science). The respondent No.1 has also stated in the counter affidavit that the petitioner was not found fit for being promoted to PGT (Computer Science) in the year 2006.
5. According to the learned counsel for the respondent No.1 - school various complaints were made by the students and their parents with regard to the quality of teaching of the petitioner, despite that the petitioner did not improve his teaching method. It is also stated by the counsel that the petitioner was given the opportunity to teach 11th and 12th standards as he was qualified to take the classes and on trial basis Informatics Practice course was offered to the petitioner.
6. I may state here that it is conceded by Mr.Rajesh that after 2006 the case of the petitioner has not been considered for promotion as PGT (Computer Science).
7. The Directorate of Education has filed its counter affidavit wherein it is stated that the petitioner joined the respondent No.1 - school on April 06, 1993 as TGT (Computer Science). He submitted an affidavit to DoE stating that he was fully qualified in December, 2004 for the promotion to post of PGT (Computer Science) but respondent No.1 - school has not promoted him as PGT (Computer Science). On March 08, 2016, he has submitted a representation to the concerned Zone that he is not being allowed to teach Senior Classes of XI and XII. The said representation was forwarded to the respondent No.1 - school which replied that the petitioner has been working as TGT and classes of XI and XII is being taken by regularly appointed PGT (Computer Science) teacher and therefore the petitioner could not be allocated the work of senior classes. A reference to the departmental inquiry initiated against the petitioner is also made which resulted in a major penalty of compulsory retirement imposed against the petitioner, which has been reduced.
8. The learned counsel for the Director of Education would contend that the prayer as made in the petition seeking promotion to the post of PGT (Computer Science) relates back to the year 2006. Apparently, such a prayer shall be hit by delay and laches. He also concedes that as per the information available with the Directorate of Education, the case of the petitioner has not been considered for promotion to the post of PGT (Computer Science).
9. Having heard the learned counsel for both the parties, it is clear that the prayer as has been made by the petitioner is for promotion to the post of PGT (Computer Science) w.e.f. 2006, i.e., almost from a year relating back to 15 years. Concedingly, the petitioner has not challenged his non- promotion to the post of PGT (Computer Science) in the year 2006, when he was not found fit on the basis of 5 years ACRs. That apart, even I find that a charge-sheet was issued to the petitioner in the year 2018 which according to Mr. Rajesh has resulted in a decision to impose penalty.
10. It is the case of the respondent No.1 - school and so contended by Mr.Rajesh that in the year 2008 through the process of direct recruitment, the post of PGT (Computer Science) was filled up and one teacher namely, Ms. Monika was appointed and she is working on the said post since then. He states the said appointment has not been challenged. Further there is no post of PGT (Computer Science) available in the school against which he can be considered. That part, I note the Directorate has also filed a copy of the Letter dated February 01, 2021 issued by it to the respondent No.1 - school on the approval sought by the respondent No.1 - school for imposing the major penalty of compulsory retirement on the petitioner. The Directorate of Education disagreed with the penalty proposed as being harsh, and is of the view that he may be reduced in 'Rank'.
11. The learned counsel for the petitioner disputes the charge-sheet. He states no intimation has been given with regard to the conduct of any proceedings. In other words, the fact that the disciplinary proceedings have been initiated against him, has come to his knowledge only through the counter affidavit filed by the respondent No.2. This submission is disputed by the learned counsel for the respondent No.1 - school.
12. I have been informed that the respondent No.1 - school has not conveyed to the petitioner, the final decision taken by it against the petitioner on the disciplinary proceedings. If any communication is made by respondent No.1, the petitioner is at liberty to seek such remedy as available in law. Now coming to the prayer as made by the petitioner in the writ petition that he be granted promotion to the post of PGT (Computer Science) is concerned, such a prayer cannot be granted as it is the case of the respondent No.1 - school and so contended by Mr. Rajesh, that there is no post of PGT (Computer Science) available in the respondent No.1 - school and the one which existed has been filled up by recruiting Ms. Monika. That apart, in view of the fact that disciplinary proceedings have been initiated / pending, the petitioner cannot be given promotion at least as of now.
13. At this stage, learned counsel for the petitioner has urged that the petitioner has not been paid the salary w.e.f. July, 2020, which submission is disputed by the learned counsel for the respondent No.1 - school by stating that he was not holding any classes.
14. Since an issue has been raised by the petitioner more so given the circumstances arising from COVID-19, appropriate shall be for the petitioner to make a representation to the respondent No.1 - school for payment of salary to him and the respondent No.1 - school shall consider the request of the petitioner and pass order(s) in accordance with the rules within six weeks. If any salary is payable under the rules, the same shall be paid to the petitioner within three weeks thereafter. If an order is passed denying the salary to the petitioner, he is at liberty to seek such remedy as available in law.
15. A submission has also been made by the learned counsel for the petitioner that he is not being allowed to enter the school to discharge his duties. This submission is disputed by Mr. Rajesh. In any case, the petitioner is at liberty to report to the Principal of the respondent No.1 - school for performing his duties within ten days from today. If the school is of the view that the petitioner was unauthorizedly absent, liberty is also with the respondent No.1 - school to take action in accordance with law, but in no case, the petitioner can be stopped from attending his duties.
16. The prayers as made in the petition are rejected. No costs.
CM APPL. 33021/2021Dismissed as infructuous.
V. KAMESWAR RAO, J SEPTEMBER 22, 2021/bh