Central Administrative Tribunal - Delhi
R.K.Bhardwaj vs New Delhi Municipal Council (Ndmc) on 9 October, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
TA No.28/2012
With
TA No. 29/2012
TA No. 30/2012
TA No. 31/2012
New Delhi this the 9th day of October, 2013
Honble Mr. Sudhir Kumar, Member (A)
Honble Mr. A.K.Bhardwaj, Member (J)
TA 28/2012
R.K.Bhardwaj,S/o Shri Ram Kishan Sharma,
R/0 127-C, Pocket-A,
Mayur Vihar Phase-II,
Delhi-110091. Applicant
(By Advocate Mr.Sunny Choudhary )
VERSUS
1. New Delhi Municipal Council (NDMC)
Through its Chairperson,
Palika Kendra, Parliament Street,
New Delhi-110001
2. The Secretary,
New Delhi Municipal Council (NDMC)
Palika Kendra, Parliament Street,
New Delhi-110001
3. The Director (Education),
New Delhi Municipal Council (NDMC)
Palika Kendra, Education Establishment-1,
Parliament Street,
New Delhi-110001. Respondents
(By Advocate Shri Arun Bhardwaj )
TA 29/2012
Shri Tulsi Ram Rastogi,
S/o Late Dharamvir Rastogi,
R/o 1-202, Friends Apartment,
49, 1.P.Extension, Delhi-110092 . Applicant
(By Advocate Mr.Sunny Choudhary )
VERSUS
1. New Delhi Municipal Council (NDMC)
Through its Chairperson,
Palika Kendra, Parliament Street,
New Delhi-110001
2. The Secretary,
New Delhi Municipal Council (NDMC)
Palika Kendra, Parliament Street,
New Delhi-110001
3. The Director (Education),
New Delhi Municipal Council,
Palika Kendra, Education Establishment-1,
Parliament Street,
New Delhi-110001. Respondents
(By Advocate Shri Arun Bhardwaj )
TA 30/2012
Santosh Kumar Bhardwaj,
S/o Shri Vidya Bhushan Bhardwaj,
R/o B-21, Sector-19, NOIDA,
District Gautam Budh Nagar,
Uttar Pradesh. Applicant
(By Advocate Shri Sunny Choudhary )
VERSUS
1. New Delhi Municipal Council (NDMC)
Through its Chairperson,
Palika Kendra, Parliament Street,
New Delhi-110001
2. The Secretary,
New Delhi Municipal Council (NDMC)
Palika Kendra, Parliament Street,
New Delhi-110001
3. The Director (Education),
New Delhi Municipal Council,
Palika Kendra, Education Establishment-1,
Parliament Street,
New Delhi-110001. Respondents
(By Advocate Shri Arun Bhardwaj )
TA 31/2012
Shri Indervir Singh,
S/o Late Chhagi Mal,
R/o 428, Sector-10, Faridabad,
Haryana. Applicant
(By Advocate Mr.Sunny Choudhary )
VERSUS
1. New Delhi Municipal Council (NDMC)
Through its Chairperson,
Palika Kendra, Parliament Street,
New Delhi-110001
2. The Secretary,
New Delhi Municipal Council (NDMC)
Palika Kendra, Parliament Street,
New Delhi-110001
3. The Director (Education),
New Delhi Municipal Council,
Palika Kendra, Education Establishment-1,
Parliament Street,
New Delhi-110001. Respondents
(By Advocate Shri Arun Bhardwaj )
O R D E R
Honble Mr. A.K.Bhardwaj, Member (J):
Since the aforementioned Transfer Applications raise common issue, i.e, whether the Principal/Vice Principal/DEO (Administration) retired from the School run by the New Delhi Municipal Council are entitled to re-employment on the posts from which they retired, they are taken up for disposal together by a single order. The particulars of the schools from which the applicants retired and the dates of their retirement are as under:-
S. Name Date of retirement School from which retired
No.
S/Shri
1. R.K.Bhardwaj 30.06.2012 N.P. co-ed Senior Secondary
(As Principal) School, Tilak Marg, New
Delhi.
2. Tulsi Ram Rastogi 31.08.2011 N.P Co-education Secondary
(TA No.29/2012) (As Vice-Principal) School, Laxmi Bai Nagar,
New Delhi.
3. Santosh Kumar 31.07.2011 N.P.Co-ed Senior Secondary
Bhardwaj (As Vice-Principal) School, Tilak Marg, New
( TA No. 30/2012) Delhi.
4. Indervir Singh 29.02.2012 N.P.Boys Senior Secondary
( TA No. 31/2012) ( As Vice-Principal) School, Mandir Marg, New
Delhi.
It is the common plea of all the applicants that to administer the Schools, the Parliament enacted the Delhi School Education Act, 1973 providing for better organization and development of school education in the Union Territory of Delhi and for matters connected therewith or incidental thereto. Section 2 (k) of the Act defines head of school which means the Principal Academic Officer of a recognized school and Section 2 (w) deals with the definition of Teacher which includes head of the school. As has been provided in the Notification No. F.30-3 (28) Co-ord)/2006/689-703 dated 29-01-2007 (Annexure R-1), in pursuance of Cabinet Decision No.1113 dated 4.9.2006 conveyed vide letter No. F.3/3/2004-GAD/CN/200491-502 dated 8.09.2006, the Lieutenant Governor, Government of National Capital Territory of Delhi allowed automatic reemployment of all retiring teachers upto PGT level, till they attain the age of 62 years or till clearance from Government of India for extending retirement age is received, whichever is earlier subject to fitness and vigilance clearance, When benefit of the said Notification was not extended to Principals/Vice Principals, a Writ Petition was preferred before Honble Delhi High Court (Dharam Singh Vs. Govt. of NCT of Delhi (WP (C) No. 4703/2011 decided on 08.07.2011) wherein Honble High Court issued mandamus directing that the petitioner before it would be entitled to the benefit of Notification dated 29.01.2012 regarding automatic re-employment for a period of two years subject to the terms and conditions as set out in the Notification. According to applicants, the view taken in aforementioned Writ Petition was followed by Honble Delhi High Court in W.P (C) No. 1409/2012 (Naveen Chandra Jha Vs. The Chief Secretary, Govt. of NCT and Ors) and also in Govt. of NCT of Delhi & Ors Vs Mithilesh Swami (W.P (C) No.2677/2012).
2. On the other hand, in the counter reply filed on behalf of respondents, it is pleaded that the NDMC was never a party in the aforementioned cases, thus is not bound by the orders passed therein. According to respondents, the decision to extend the policy of re-employment of teachers in NDMC is based not on definition of teachers as defined under the Delhi School Education Act, 1973 alone but is based on various factors, such as shortage of employees in the feeder cadre delay in making direct recruitment, merit and expertise of the employees who have retired/are on verge of retirement and effects of non placement of employees etc. According to NDMC, it was resolved vide Resolution No. 32 (M-05) dated 17.10.2007 for re-employment of retired teachers upto PGT level subject to fitness, vigilance clearance and clear vacancy till they attain the age of 62 years, strictly as per Delhi Government Scheme. The policy was made applicable prospectively. It is stated in the counter reply filed by them by not re-employing the Vice-Principals/ Principals, they have not violated Articles 14 and 16 of the Constitution of India, as the re-employment policy is applicable to the teachers alone. It being a municipal body and electricity distribution company, has to perform various essential duties for the benefits of the residents of its area and employ doctors, engineers, architects and various other professionals as well as administrative and field level staff (like Safai Karamchris, Beldars, Khallasis, Maalies etc. who perform the day to day emergency duty), but the policy of re-employment has been implemented only in the case of teachers (upto PGT level).
3. Mr. Arun Bhardwaj, appearing for the respondents also contended that the posts of Vice Principal and Principal in NDMC are 100% promotional posts unlike in Government of NCT of Delhi where there is direct recruitment quota even at the level of Principal. According to him, the respondents could implement the policy of re-employment upto the level of PGT, as the teaching cadre had direct recruitment quota and by giving re-employment and adjusting them against DR quota, the respondents would not be hampering the promotional avenues of the existing teachers. He also submitted that the teaching cadre in NDMC is quite small with only 8 Principal level and 20 Vice Principal/DEO level posts, both being 100% promotional. A PGT with 5 years regular service becomes eligible for promotion as Vice-Principal, but practically it takes 15-20 years for a PGT to be promoted as Vice Principal and in the event the retired Vice-Principal/ Principal are accommodated on the post from which they retired, the wait would become much longer and will have displeasing ramification, for the existing staff.
4. We have heard counsels for parties and perused the record. It is seen that NDMC had passed a Resolution No. 32, dated 17.10.2007 for re-employment of all retiring teachers upto PGT level, subject to vigilance clearance and clear vacancy, till they attain the age of 62 years, strictly as per Delhi Government Scheme. The terms and conditions for re-engagement mentioned in the Resolution read as under:-
i) The retiring teachers of the NDMC shall be eligible for consideration for re-employment against clear vacancy upto his/her attaining the age of 62 years. The re-employment will be subject to fitness and vigilance clearance of the retiring teachers, i.e. the pensioner. For physical fitness of retiring teacher a certificate from authorized medical practitioner is required to be submitted to the Head of School, where the retiring teacher has last served. The professional fitness of the retiring employee shall be assessed by a sub-committees consisting of Dir. (Edn.), DD (Edn.), DEO (A) & DEO (G) and considering work and conduct report, vigilance clearance and medical certificate/fitness submitted by the petitioner. The sub-committee shall ensure that the teachers who are free from Vigilance angle are only re-employed.
ii) The Dy. Director (Edn.) will be authorized and responsible for issuing the re-employment orders of all teachers after checking vigilance clearance and fitness one month in advance of retirement of the pensioner. However, the Dy. Director (Edn.) will obtain the necessary approval of the Secretary, NDMC before issuing the office orders for re-employment in each case.
iii) The re-employed pensioner will be bound by the instructions contained in the Central Civil Service (Fixation of pay of Re-employed Pensioners) Orders, 1986. All service conditions will be subject to the provisions of these rules.
iv) The re-employed pensioner shall have to execute the agreement containing the terms and condition in Annexure-1 of CCS (Fixation of pay of Re-employed Pensioners) orders, 1986 with provision as provided therein. The re-employed pensioner shall furnish receipt as provided in Annexure-II of CCS (Fixation of pay of Re-employed Pensioners) Orders 1986 along with the pay bill every month.
The agreement containing the terms and conditions in Annexure-1 of CCS (Fixation of pay of re-employed pensioners) order 1986 will only be applicable to re-employed pensioners whose pension has not been fixed and their pay is to be drawn without waiting for fixing to avoid delay. In case where pension has been fixed as on date of his retirement, the said agreement is not required to be executed.
v) The pay of re-employed pensioners appointed shall be fixed in accordance with the provisions of CCS (Fixation of pay of Re-employed Pensioners) Orders 1986 i.e. the initial pay on re-employment plus the gross amount of pension shall not exceed (i) the pay he drew before his retirement or (ii) Rs.26000/-whichever is less, in pursuance of O.M.No.8 (34)-Estt.III/57 dated 25/11/1958 as modified from time to time.
The Dy. Director (Edn.) will however act upon as per the instructions contained in the CCS (Fixation of pay of Re-employed Pensioners) orders 1986 and other procedures and guidelines issued from time to time. The initial pay of re-employment teacher shall be fixed at the same stage as the last pay plus DP drawn at the time of retirement. However, the pension shall be reduced from the last pay plus DP drawn, in terms of para 4 (b) (ii) of CCS (Fixation of pay of re-employed pensioners) orders 1986.
vi) All terms and conditions provided in Annexure-1 of Central Civil Services (Fixation of pay of Re-employed Pensioners) Orders, 1986 shall be part of the agreement which will be excluded by the retiring teacher on Non-Judicial stamp paper of Rs.100/-.
vii) The benefit of re-employment will be applicable from the date of adoption of the scheme by the Council. From the aforementioned, it is clear that the NDMC had adopted the re-employment policy of the Govt. of National Capital Territory of Delhi for re-employing the teachers upto the level of PGT only, subject to availability of vacancies. In other words, in the event of there being eligible and available candidate to occupy the posts in accordance with the recruitment rules, re-employment could still be denied. We find that for the post of Vice Principal and Principal in NDMC Schools, there are RRs in vogue. The post of Vice Principal is filled up by promotion failing which by deputation. The eligibility criteria for promotion mentioned in the Recruitment Rules reads as under:-
In case of recruitment by promotion/deputation/absorption, grades from which promotion/deputation/absorption to be made. Promotion Post Graduate teachers (Lecturer)/H.M. (Middle) with five years regular service in the grade and possessing Post Graduate Degree with Degree in Education from a recognized University or equivalent.
Note Where juniors who have completed their qualifying/eligibility service are being considered for promotion their seniors would also be considered provided they are not short of the requisite qualifying service by more than half of such qualifying service or two years whichever is less and have successfully completed their probation period for promotion to the next higher grade along with their juniors who have already completed such qualifying/eligibility service.
Deputation Officers of the Central/State/Local Government/Navyug schools:
(a) (i) holding analogous posts on regular basis; or
(ii) With 3 years regular service in posts in the pay scale of Rs.9300-34800/-
plus Grade pay of Rs.5400;
or
(iii) With 8 years regular service in posts in the pay scale of Rs.9,300-34,800/- plus plus Grade pay of Rs.4800; AND
(b) Possessing following educational qualifications and experience:
(i) Post Graduate Degree with Degree in Education from a recognized University or equivalent.
(ii) Eight years teaching/administrative experience in a school.
(The departmental officers in the feeder category who are in the direct line of promotion will not be eligible for consideration for appointment on deputation. Similarly, deputationists shall not be eligible for consideration for appointment on deputation.) (Period of deputation including period of deputation in another ex-cadre post held immediately preceding this appointment in the same or some other organization of the Central/State/local government shall not ordinarily exceed three years. The maximum age limit for appointment by deputation shall be not exceeding 56 years as on the closing date of receipt of applications).
Similarly, the post of Principal is also filled up by promotion failing which by deputation. The relevant criteria in this regard as mentioned in the RRs reads as under:
In case of recruitment by promotion/deputation/absorption, grades from which promotion/deputation/absorption to be made Promotion
(i) Vice Principals/Deputy Education Officers with 10 years regular service in the respective grade and possessing Post Graduate Degree with Degree in Education from a recognized University or equivalent; or
(ii) Vice Principals/Deputy Education Officers with 10 years combined regular service as PGT/Vice Principal/DEO of which at least 3 years should be in the grade of Vice Principal/DEO and possessing Post Graduate Degree with Degree in Education from a recognized University or equivalent.
Note Where juniors who have completed their qualifying/ eligibility service are being considered for promotion their seniors would also be considered provided they are not short of the requisite qualifying service by more than half of such qualifying service or two years whichever is less and have successfully completed their probation period for promotion to the next higher grade along with their juniors who have already completed such qualifying / eligibility service.
Deputation Officers of the Central/ State/ Local Government/ Navyug Schools:
(a) (i) holding analogous posts on regular basis; or
(ii) With 5 years regular service in posts in the pay scale of Rs.15,600-39,100/-plus Grade pay of Rs.6600/-; or
(iii) With 10 years regular service in pots in the pay scale of Rs.15,600-39,100/- plus Grade pay of Rs.5400/- AND
(b) possessing following educational qualifications and experience:
(i) Post Graduate degree with degree in education from a recognized university or equivalent.
(ii) Ten years teaching/administrative experience in a school/college.
(The departmental officers in the feeder category who are in the direct line of promotion will not be eligible for consideration for appointment on deputation. Similarly, deputationists shall not be eligible for consideration for appointment on deputation.) (Period of deputation including period of deputation in another ex-cadre post held immediately preceding this appointment in the same or some other organization of the Central/ State/local government shall not ordinarily exceed three years. The maximum age limit for appointment by deputation shall be not exceeding 56 years as on the closing date of receipt of applications.) It is settled position of law that the appointment to a post has to be made in terms of the RRs alone. Any deviation in the procedure/eligibility condition in this regard can be made by amending the RRs only. In the aforementioned Resolution dated 17.10.2007, NDMC provided for re-employment of all retiring teachers upto PGT level, subject to clear vacancy only. Normally, in automatic re-employment, it may not so happen that the clear vacancy is not available, but still if the recruitment process for any post in question is in accordance with the relevant rules and gets completed in a particular case by the time a teacher attains the age of retirement, a candidate recruited in terms of the statutory rules may have to be given preference. As has been noticed hereinabove, it is stare decisis that the vacancy in any category/grade in any department needs to be filled up in terms of relevant rules in vogue. In OA 3039/2012 (Shashi Shekhar and Anr. vs. UOI & Anr decided on 21.08.2012), it has been ruled as under:-
Besides, it is settled position of law that in case of there being conflict between the provisions of administrative instructions/guidelines and the statutory rules issued under proviso to Article 309 of the Constitution, the later would prevail. Even in Sureksha Luthra Vs. The Registrar General, Delhi High Court & Ors (2011 (II) AD Delhi), it could be noticed that the rules framed by State under Article 309 proviso would prevail. In K.K.Parmar & Ors Vs. High Court of Madras (AIR 2006 SC 3559), it could be viewed that the rules framed by State under Article 309 proviso may be applicable to the employees of High Court even though the executive instructions issued by it would not be applicable, particularly when such executive instructions were contrary to or inconsistent with the rules framed by the Honble Chief Justice of the High Court in terms of Article 229 of the Constitution of India.
7. In Comptroller & Auditor General of India Vs Mohan (AIR 1991) SC 2288), it could be viewed that though there is nothing to prevent the Government from issuing administrative instructions on matters upon which the statutory rules are silent, but the non statutory rules cannot modify the statutory rules. Also in OA No. 4233/2010) and OA No.2081/2012 ( Sunil Garg Vs. Union of India), two different division Benches of this Tribunal could view that the administrative instructions contrary to rules cannot have the over riding effect on the rules and need to be ignored. Relevant excerpt of the order in OA No. 4233/2010 and OA No. 2081/2012 read as under:-
11. It has also been held by the Honble Supreme Court in Mangej Singh & others Vs Union of India & others (JT 1998 (8) SC 176) that the user Department alone are the judges of their requirements relating to employees who can be considered for promotions. For easy reference, relevant excerpt of the said judgment is extracted hereinbelow:-
5.. The tribunal has quoted the letter of the Railway Board dated 29/11/1962 to the effect that the posts (sic tests) to which Class IV staff to be promoted to Class III posts should be subjected, should be correlated to the standard of proficiency that can reasonably be expected from employees who are generally non-matriculates. The aim of the examiners should be to assess the general suitability of the Class IV employees offering themselves for promotion to Class III posts from the point of view of knowledge of English and their general standards of intelligence. There is a subsequent letter of the Railway Board of 27/2/1980 stating that ordinarily it is not necessary to test the working knowledge of English for such promotions for employees in Hindi-speaking areas. There is also an earlier circular dated 24/12/1979 which is issued by the Northern Railways to the same effect. The present circular which is a subsequent circular of the Bikaner Division of the Northern Railways dated 22/7/1982 clearly requires ability to write and read English as a qualification for promotion from Class IV to Class III posts. The policy, therefore, in relation to the tests to be administered for promotion from Class IV to Class III has varied from time to time, presumably depending upon the Railways' perception of their requirements. It is for the Railways to decide qualifications relating to promotion from Class IV to Class III. They alone are the judges of their requirements relating to employees who can be considered for such promotions. If the circular of 22/7/1982 requires working knowledge of English for promotion, the tribunal cannot fault this requirement. Also the tribunal was wrong in deciding that because an essay and a translation were required in the written examination, the test was too difficult. This again is the tribunal's assessment of the kind of examination which should have been conducted. The tribunal's assessment cannot be substituted for the assessment of the Railways. Clearly, a large number of applicants belonging to the Class IV category passed this examination and did qualify. If they had a better knowledge of English and better general proficiency than Respondents 5 to 8 who failed, the selection of better qualified candidates cannot be faulted. The appellants relied upon two judgments of this court; one in the case of 0m Prakash Shukla v. Akhilesh Kumar Shukla (para 24 and the other in Madan Lal v. State of J&K (para 9. They contended that since the respondents had appeared in the examination without protest, they cannot challenge the examination only because they have failed. We need not examine this question because in any view of the matter we do not see any reason for faulting the examination. Respondents 5 to 8 had failed in the examination and were, therefore, not qualified for the selection. (emphasis supplied)
12. It is settled position of law that the selection process or method of recruitment is prescribed in the Recruitment Rules and cannot be evolved by the recruiting agency. In Dr. Krushan Chandra Sahu & others Vs State of Orissa & others (JT 1995 (7) SC 137), it has been held thus:
33. Now, power to make rules regulating the conditions of service of persons appointed on Govt. posts is available to the Governor of the State under the Proviso to Art. 309 and it was in exercise of this power that the present Rules were made. If the statutory Rules, in a given case, have not been made, either by the Parliament or the State Legislative, or, for that matter by the Governor of the State, it would be open to the appropriate Government (the Central Government under Art. 73 and the State Government under Art. 73 and the State Government under Art. 162) to issue executive instructions. However, if the Rules have been made but they are silent on any subject or point in issue, the omission can be supplied and the rules can be supplemented by executive instructions. [See Sant Ram v. State of Rajasthan, (AIR 1967 SC 1910)].
34. In the instant case, the Government did neither issue any administrative instruction nor did it supply the omission with regard to the criteria on the basis of which suitability of the candidates was to be determined. The members of the Selection Board, of their own, decided to adopt the confidential character rolls of the candidates who were already employed as Homeopathic Medical Officers, as the basis of determining their suitability.
35. The members of the Selection Board or for that matter, any other Selection Committee, do not have the jurisdiction to lay down the criteria for selection unless they are authorised specifically in that regard by the Rules made under Art. 309. It is basically the function of the rule making authority to provide the basis for selection. This Court in State of Andhra Pradesh v. V. Sadanandam, AIR 1989 SC 2060 observed as under (para 16, at pp. 2065-66 of AIR):-
"We are now only left with the reasoning of the Tribunal that there is no justification for the continuance of the old Rule and for personnel belonging to either zones being transferred on promotion to offices in other zones. In drawing such conclusion, the Tribunal has travelled beyond the limits of its jurisdiction. We need only point out that the mode of recruitment and the category from which the recruitment to a service should be made are all matters which are exclusively within the domain of the executive. It is not for judicial bodies to sit in judgment over the wisdom of the executive in choosing the mode of recruitment or the categories from which the recruitment should be made as they are matters of policy decision falling exclusively within the purview of the executive".
(Emphasis supplied)
36. The Selection Committee does not even have the inherent jurisdiction to lay down the norms for selection nor can such power be assumed by necessary implication. In Ramachandra Iyer v. Union of India, (1984) 2 SCR 200: (AIR 1984 SC 541), it was observed (para 44, at p.562 of AIR):-
"By necessary inference, there was no such power in the ASRB to add to the required qualifications. If, such power is claimed, it has to be explicit and cannot be read by necessary implication for the obvious reasons that such deviation from the rules is likely to cause irreparable and irreversible harm".
37. Similarly, in Umesh Chandra Shukla v. Union of India, 1985 Suppl (2) SCR 367 : (AIR 1985 SC 1351), it was observed that the Selection Committee does not possess any inherent power to lay down its own standards in addition to what is prescribed under the Rules. Both these decisions were followed in Sh. Durgacharan Misra v. State of Orissa, (1987) 2 UJ (SC) 657 : (AIR 1987 SC 2267) and the limitations of the Selection Committee were pointed out that it had no jurisdiction to prescribe the minimum marks which a candidate had to secure at the viva voce test.
38. It may be pointed out that rule making function under Art. 309 is legislative and not executive as was laid down by this Court in B.S. Yadav v. State of Haryana, AIR 1981 SC 561. For this reason also, the Selection Committee or the Selection Board cannot be held to have jurisdiction to lay down any standard or basis for selection as it would amount to legislating a rule of selection.
39. If it were a mere matter of transition from one service to another service of similar nature as, for example, from Provincial Forest Service to All India Forest Administrative Service, the confidential character rolls could have constituted a valid basis for selection either on merit or suitability as was laid down by this Court in Pervez Qadir v. Union of India, 1975 (2) SCR 432 : AIR 1975 SC 446 : (1975) 4 SCC 318 which has since been followed in R.S. Dass v. Union of India, AIR 1987 SC 593. But in the instant case, appointments are being made on posts in an entirely new service, though the educational qualifications required to be possessed by the candidates are the same as were required to be possessed in their earlier service.
40. A candidate in order to be suitable for appointment on a teaching post must have at least three qualities; he should have thorough knowledge of the subject concerned; he should be organized in his thoughts and he should possess the art of presentation of his thoughts to the students. These qualities cannot possibly be indicated or reflected in the confidential character rolls relating to another service, namely, the service in the Health Department as Homoeopathic Medical Officers where the character rolls would only reflect their integrity, their punctuality, their industry and their evaluation by the Reporting or the Accepting Officer recorded in the annual entries. True it is that the candidates being already serving officers, their character rolls have to be looked into before inducting them in the new service but this can be done only for the limited purpose of assessing their integrity etc. These character rolls, however, cannot form the SOLE basis for determination of their suitability for the posts of junior teachers in the Medical Colleges. Then, what formula or method should be adopted to assess these qualities is the question which next arises. This Court in Liladhar v. State of Rajasthan (1981) 4 SCC159: AIR 1981 SC 1777 pointed out (at p.1778 of AIR) :-
"The object of any process of selection for entry into a public service is to secure the best and the most suitable person for the job, avoiding patronage and favouritism. Selection based on merit, tested impartially and objectively, is the essential foundation of any useful and efficient public service. So, open competitive examination has come to be accepted almost universally as the gateway to public services".
(emphasis supplied) Thus, in the absence of there being any specific policy decision in this regard, there may not be any automatic re-employment on the post of Principal/Vice Principal. Nevertheless, as has been viewed by the Honble Delhi High Court in the case of Dharam Singh, the teacher does not cease to be a teacher merely because he happened to be holding the post of Vice-Principal/Principal. Relevant excerpts of the judgment read as under:-
The basic principle is that if the notification refers to automatic re-employment of a retiring teacher up to PGT level, the said teacher does not cease to be a teacher merely because he also happens to hold the post of a Vice Principal or a Principal. The irony of the matter is that despite the aforesaid settled legal position, officers of the respondents continue to take a decision like in the present case to deny the benefit compelling the parties to approach this Court. A litigant has a right to agitate the matter in issue till the highest court, but once the legal principle is settled, the litigant is duty-bound to implement the same uniformly without compelling a citizen to approach the Court, spend money and further waste judicial time. It is more so for a public authority as otherwise it would be a contemptuous conduct. We, thus, issue a writ of mandamus directing that the petitioner shall be entitled to the benefit of the notification dated 29.01.2007 of automatic re-employment for a period of two years subject to the terms and conditions as set out in the notification. As a sequitur, the letter of the respondents dated 10.05.2011 is quashed. The petitioner shall also be entitled to costs quantified at Rs.5000/-. We have imposed the nominal costs because the respondents did not seek time to file the counter affidavit and make it clear that if in future any such further cases come up, despite the settled legal position, we will be constrained to burden the respondents with exemplary costs apart from taking action against the officer concerned who continue to take decisions contrary to settled legal position. The aforesaid order be forthwith brought to the notice of R-2. No further directions are called for on this application. Thus in the said case, the Honble High Court protected the position and privilege enjoyed by Principal/Vice-Principal as PGT. Thus once there is a policy decision for re-employment of teacher upto the level of PGT, even the Principal/Vice-Principal should also be given re-employment as PGT, in view of the fact that before their promotion, they happened to be PGT also. To make the position more clear, we may specify that when we examine the re-employment to a particular posts and category, we may determine the eligibility of a candidate for that category and it would not be permissible for us to expand the scope of the policy by taking into account the different posts and to introduce eligibility for re-employment thereto. Also in Govt. of NCT of Delhi and Ors Vs Mithilesh Swami (WP (C) No.2677/2012), their Lordships of Honble Delhi High Court defined the teacher and viewed that even those who perform experiment in laboratory and do not take classes may also be given the benefit of re-employment policy made applicable for teacher. In other words, in the said case also, the Honble High Court directed for re-employment of senior Science Counsellor by treating him as teacher only. In none of the cases/judgment relied upon by the applicant, it could be viewed that there should be re-employment on the post of Principal. The ratio decidendi of all the cases is that since there is policy for re-employment of teacher, the Principal/Sr.Science Counsellor being teachers, are also entitled to be re-employed. When the right to re-employment is conferred upon incumbent of the post of teacher alone, he can seek re-employment only in terms of the policy applicable to teachers and such employment can be only to the post of PGT (Teacher). Though in the case of Govt. of NCT of Delhi and Others Vs. Mithilesh Swami (ibid), the Honble High Court directed for payment of back wages to the respondent for the period during which he was denied re-employment, in the present case, we may not take such view for the reason that the applicants did not espouse their case for re-employment as PGT, but as Vice Principal/Principal. Had they been willing and prepared to accept the re-employment as PGT or even agreed before the Court that they are prepared to take such employment, we could have taken a view that these are the respondents who denied them their legitimately expected right. Nevertheless, once learned counsel for the applicants, after taking instructions from them, contended stoutly that the applicants have right to be re-employed as Vice-Principal/Principal only and not as PGT, we have to derive the presumption that they themselves are responsible for their non re-employment as PGT.
5. In view of the aforementioned, OAs are disposed of with direction to respondents to consider the applicants for their re-employment as PGT with all consequential benefits. In the event, the applicants are found fit for such appointment and joined as re-employed PGT, they may be given compensatory allowance equivalent to 20% of the emoluments which they could have drawn as PGT during the period they could not avail the benefit of the Scheme. No costs.
( A.K.Bhardwaj) ( Sudhir Kumar) Member (J) Member (A) sk