Delhi District Court
Delhi vs Sant Nirankari Girls Senior Secondary ... on 27 July, 2012
1 CS No 420/12
IN THE COURT OF SH. SUSHANT CHANGOTRA: CIVIL JUDGE(WEST)
DELHI
SUIT NO. 420/12
Smt. Sarla Kumari W/o Sh. Rajender Kumar,
R/o 470, Dr. Mukerjee Nagar, Delhi
....Plaintiff
Versus
1. Sant Nirankari Girls Senior Secondary School,
Nirankari Colony, Delhi Through Manager.
2. The Management of Sant Nirankari Girls Senior
Secondary School, Nirankari Colony, Delhi
Through its Chairman.
3. Director of Education, Delhi Administration,
Old Secretariat, Delhi.
4. Union of India
Through Delhi Administration, Delhi
5. Ms. Promila Lalwani, Officiating Principal of
Sant Nirankari Girls Senior Secondary School,
Nirankari Colony, Delhi
6. Smt. Harmahender Kaur, Vice Principal,
Sant Nirankari Girls Senior Secondary School,
Nirankari Colony, Delhi
....Defendants
Date of Institution: 01.10.1992
Date of decision : 27.07.2012
2 CS No 420/12
Suit for Declaration, Permanent and Mandatory Injunction
JUDGMENT
1. The case of the plaintiff in brief is that she was appointed as Assistant Teacher on 08.08.63 and was appointed as TGT on 01.09.67. Defendant no. 1 is an aided school which has been recognized by defendant no. 3 and is being managed by defendant no. 2. Defendant no. 5 was appointed as TGT on 01.09.67. The defendant no. 3 fixed the seniority of school teachers of defendant no. 1. The plaintiff was placed at serial no. 1 in seniority list whereas defendant no. 1 was shown at serial no. 2.
2. The plaintiff has been granted selection grade of PGT on 20.04.85 and since then she was working as a PGT teacher. Defendant no. 5 was junior to plaintiff in pay as well as in age. Plaintiff being senior was entitled to all the promotions to be made by defendant no. 2.
3. Post of Vice Principal was lying vacant since 20.03.99. The plaintiff requested defendant no. 2 to consider her name but no reply was given. The selection of the head of school has to be made as per Delhi School Education Rules by a Committee consisting of Chairman of Managing Committee and two Educationists to be nominated by Director of Education. The defendant did not advertise the vacancy of post of Vice Principal and same was to be filled from the staff members of defendant no. 1. As per rules the senior most teacher is to be appointed as vice 3 CS No 420/12 principal but this procedure has not been adopted.
4. In the meantime Mrs. Sita Arnejan Principal of defendant no. 1 school left for USA for long leave on 26.07.91 and the post of principal became vacant temporarily. The defendant no. 2 ignored the plaintiff and appointed defendant no. 5 who was junior to plaintiff. The case of plaintiff and defendant no. 5 was put up before DPC for the appointment of post of principal. The defendant no. 2 ignored claim of plaintiff and recommended the name of defendant no. 5 to be appointed as principal. This recommendation was sent to defendant no. 3 for approval. The plaintiff made representation to defendant no. 1 and 2 that defendant no. 5 cannot be appointed as principal but plaintiff understands that defendant no. 2 manipulated to get approval of defendants for the appointment of defendant no. 5 as principal.
5. The plaintiff was having a very good record and her confidential report had been excellent. The plaintiff was not connected with Mrs. Usha Bakshi but was victimized by defendant no. 2 as Mrs. Usha Bakshi had filed a suit against defendant no. 2. Defendant no. 2 did not place the confidential reports of plaintiff before DPC.
6. The defendant no. 2 and DPC committed illegality in recommending the case of defendant no. 5 for the appointment to the post of principal and by ignoring the plaintiff. The plaintiff further pleaded that she was 4 CS No 420/12 entitled to be appointed as Vice Principal on promotion. The appointment of the principal and vice principal has to be made by way of seniority. The plaintiff prayed for mandatory injunction directing defendant no. 2 to issue letter of appointment. She further pleaded that during the pendency of suit defendant no. 2 has appointed defendant no. 6 as vice principal who was junior to the plaintiff as well as to defendant no. 5. The DPC has not been constituted as per rules. The DPC for selecting principal has not given any criteria for grading the performance and the assessment made was illegal as it overlooked the tampering of C.R. of plaintiff made by defendant no. 2 in order to deprive the plaintiff. It overlooked the seniority of the plaintiff in the meeting held on 24.09.92.
7. The plaintiff further pleaded that during the pendency of the suit plaintiff retired as PGT w.e.f 30.06.01 and thus prayed that declaration be passed the DPC for the post of vice principal was illegal and it was not constituted properly and the appointment of defendant no. 6 as vice principal of defendant no. 1 is illegal. The plaintiff further prayed for declaration that plaintiff is entitled to all the service benefits for the post of principal or vice principal w.e.f appointment of defendants no 5 and 6 as principal and vice principal.
8. The defendants no. 1,2 and 5 filed written statement taking preliminary objections that the suit is without cause of action. No notice 5 CS No 420/12 u/s 80 CPC has been served on defendant no. 3 and 4. Suit has not been properly valued for the purpose of mandatory injunction. The suit is not maintainable as plaintiff has claimed relief on the basis of her seniority whereas the post of principal or vice principal are selection posts. Director of Education constitutes a DPC consisting of officials of Education Department, educationists and one representative of the management. Five candidates who are senior most amongst the staff are considered as eligible for the said post and are properly qualified. In the present case DPC was constituted for both the posts in accordance with rules. The DPC recommended the name of defendant no. 5 for the post of principal and the other DPC recommended the name of defendant no. 6 for the post of vice principal. After their appointment , defendant no. 5 is working as principal since 25.09.92 and defendant no.6 as vice principal since 17.12.92 and the relief of permanent injunction has become infructuous as the suit was filed after the appointment and taking over the charge of defendant no. 5.
9. On merits the said defendants admitted that defendant no. 5 was at serial no. 2 of seniority list because of her age otherwise defendant no. 5 and plaintiffs were appointed as TGT on 01.09.67 and PGT of 14.08.74 and have equal qualifications. It has been further pleaded that the selection of vice principal and principal are filled either by publishing or 6 CS No 420/12 through DPC. In the present case for selection of candidates for both the posts, DPC's were constituted. The defendant further admitted for post of vice principal remained vacant and management wrote to Director of Education for filling the post of principal after the voluntary retirement of previous principal Smt. Sita Devi. It has not been denied that defendant no. 6 was junior to the plaintiff but for the said post seniority is not the only criteria. It has been pleaded that case of the plaintiff and defendant no. 5 was included in five senior most eligible candidates put up before DPC, who considered them and recommended gradings of candidate as good, very good etc. DPC's unanimously decided defendant no. 5 as most meritorious candidate for principal and defendant no. 6 for the post of vice principal. The remaining averments of the plaint were denied being wrong and incorrect. They denied that C.R's of the plaintiff were tempered with.
10. Defendants no. 3 and 4 filed their written statement taking preliminary objections that suit is barred u/s 25 of the Delhi School Education Act, 1973. No cause of action arose. No notice u/s 80 CPC was served. Suit is barred u/s 41 (h) of Specific Relief Act. The plaintiff has suppressed material facts.
11. On merits they also filed written statement on the same lines as that of written statements of defendants no. 1,2 and 5. The defendants no. 3 7 CS No 420/12 and 4 further pleaded that the DPC constituted by Directorate of Education for the post of vice principal consisted of five members:
1. Dr. S.C. Pathak ,E.O., Zone V, District North, Lucknow Road, Delhi,
2. Sh. C.L. Arora, Principal ,Government Boys Senior Secondary School,G.T.B. Nagar, Delhi,
3. Sh. S.L. Arora, Chairman, Managing Committee of School,
4. Dr. B.S. Nirman, Manager of Sant Nirankari Girls Senior Secondary School and
5. Smt. Ramola Lalwani, Principal of the School.
12. The name of plaintiff was also considered alongwith four other senior most eligible members. It is further submitted that if seniority would have been only criteria for promotion of vice principal or principal then the provision of constituting DPC or holding the interview and to consider ACR and annual result would have been meaningless. They further admitted that plaintiff has retired from service on 30.06.01. They denied the remaining averments of the plaint and prayed that suit of the plaintiff be dismissed.
13. Plaintiff filed separate replication of the written statement filed by defendants no. 1,2 and 5 as well as written statement of defendants no. 3 and 4. In both the replications the plaintiff denied the averments of their separate written statements and reasserted the contents of plaint. 8 CS No 420/12
14. On the completion of pleadings following issues were framed:
1. Whether suit is barred by section 80 of CPC? OPD
2. Whether the plaintiff is entitled for the relief of declaration? OPP
3. Whether the plaintiff is entitled for the relief of permanent injunction? OPP
4. Whether the plaintiff is entitled for the relief of mandatory injunction? OPP
5. Whether the suit is not properly valued for the relief of mandatory injunction ? OPD1,2 and 5
6. Whether the suit is barred by virtue of section 25 of Delhi School Education Act? OPD 3 and 4
7. Relief.
15. In order to prove her case plaintiff stepped into witness box and tendered her affidavit as Ex. P1. After her cross examination evidence of plaintiff was closed in affirmative on 10.02.11.
16. The defendants no. 3 and 4 summoned DW1 Sh. O.P. Dahiya, Deputy Education Officer, who tendered his affidavit as DW1/A. The defendants also examined Smt. Bhupinder Kaur. This witness was DW2 but she has been mentioned as D1/W/1. Evidence on behalf of defendants no. 1,2,5and 6 was closed on 27.05.11. The evidence of remaining 9 CS No 420/12 defendants was also closed.
17. PW2 Smt. Sushma Sukhija was examined in rebuttal evidence by the plaintiff. The rebuttal evidence was closed on 24.10.11.
18. I have heard arguments of the counsels for parties. Counsel for plaintiff argued that plaintiff was senior most and defendants no. 5 and 6 were junior to her. The DPC appointed for their selection acted illegally. DPC was to see confidential report of the plaintiff. The plaintiff was ignored and the selection of defendant no. 5 and 6 is illegal. The plaintiff is entitled to benefits of principal and vice principal.
19. Counsel for all the defendants argued that jurisdiction of civil Court is barred u/s 25 of Delhi School Education Act. The DPC was constituted as per rules. Plaintiff was appointed as TGT on 01.09.67 and defendant no. 5 was also appointed on the same day as TGT. Both of them were appointed as PGT on 14.08.74. Therefore, both of them were having equal qualifications. Admittedly no notice u/s 80 CPC was served. The application u/s 80 of CPC was filed on 30.08.92 but no order was passed. During her cross examination PW1 admitted that no notice u/s 80 CPC was served on Government of NCT or Directorate of Education. The affidavit relied upon was not attested in her presence. The posts of principal and vice principal are selection posts and not seniority posts. They further argued that according to rule 96 (3) (a) the committee was 10 CS No 420/12 properly constituted for the post of vice principal. Thus prayed that suit be dismissed.
20. I have heard the arguments and my issuewise findings are given as below:
ISSUE NO. 1
21. Onus to prove this issue was on the defendant. The plaintiff in her cross examination has admitted that she did not serve any prior notice upon defendant no. 3 and 4. The plaintiff had filed an application U/s 80 (2) of CPC along with plaint. Vide order dated 03.10.92 the ld. predecessor issued notice to the defendants and allowed exemption u/s 80 (2) of CPC. The court passed an order that, " on application exemption u/s 80(2) of CPC is granted".
22. Since the court at the very inception had granted exemption, therefore, the requirement of sending prior notice u/s 80 CPC stood dispensed with. In Basis Tele services Ltd. vs. Union of India, AIR 2000 DEL 1, it has been held, "Where the suit against the government was filed with the leave to court without serving notice to government and court had ordered issuing of notice to government before granting injunction, the suit was not bad for want of notice u/s 80 CPC". In Janak Raji Devi vs. Chandrawati Devi AIR 2002CAL 11 (15), it has been held, " What is material is only the substance. Whether there was a 11 CS No 420/12 proper request and whether it was considered and granted." Since permission u/s 80 (2) of CPC had been granted, as the plaintiff had also sought urgent relief of injunction, therefore the requirement of section 80 of CPC could exempted. Therefore, in view of the above discussion, this issue is decided against the defendants and in favour of the plaintiff. ISSUE NO. 2
23. Onus to prove this issue was on the plaintiff. The plaintiff has prayed for declaration that she is entitled to all the service benefits for the post of principal or vice principal. The recommendation of DPC for appointing defendant no. 5 as principal and defendant no. 6 as vice principal or defendant no. 1 are illegal and against law.
24. The case of plaintiff as set up in pleadings and supported by her own oral evidence in examination in chief is that she was senior than defendants no. 5 and 6. She was ignored arbitrarily at the instance of defendant no. 2. The DPC formulated were illegal and the defendant no. 2 had not presented her case before DPC properly and tampered with her ACR's.
25. In support of her case the plaintiff has not filed any documents on record. Rule 96 (3) and (4), Delhi School Education Rules, 1973, deal with recruitment of head of school and teachers other than head of school. It is reproduced below: 12 CS No 420/12 96 (3) The Selection Committee shall consist of:
(a) in the case of recruitment of the head of the school,
(i) the chairman of the managing committee.
(ii) in the case of an unaided school, an educationist is nominated by the managing committee, and an educationists nominated by the Director;
(iii) in the case of an aided school, two educationists nominated by the Director, out of whom at least one shall be a person having experience of school education;
(iv) a person having experience of the administration of schools,to be nominated, in the case of an unaided school by the managing committee, or in the case of an aided school, by the Director;
(b) in the case of an appointment of a teacher (other than the head of the school);
(i)the Chairman of the managing committee or a member of the managing committee nominated by the Chairman:
(ii) the head of the school;
(iii) in the case of a primary school, a female educationist having experience of school education;
(iv) in the case of an aided school, one educationist to be nominated by the Director, and one representative of the Director; 13 CS No 420/12
(v) In the case of appointment of a teacher for any class in the middle stage or any class in the higher secondary stage, an export on the subject in relation to which the teacher is proposed to be appointed, to be nominated, in the case of an aided school, by the Director.
26. The plaintiff has not shown as to how the constitution of DPC was invalid. The defendants no. 3 and 4 in the written statement have enumerated the names and designations of persons constituted for selection committee of vice principal of defendant no. 1. There is no denial of this fact in the replication. As per rule 96 (2) selection of the principal and vice principal were to be made by selection committee. It is admitted fact that the selection of principal and vice principal can be made by publishing the advertisement or by way of appointing department promotion committee. Rule 108 of Delhi School Education Rule provides that every vacancy in aided school shall be filled by appointment or by direct recruitment in accordance with such rules as may be made by the administrator in this behalf.
27. Rule 96 (3) shows that appointment of principal and vice principal are to be made by way of constituting selection committees. Hence, as per rules the post of principal and vice principal are selection posts. The plaintiff has failed to show any rules according to which the vacancy of 14 CS No 420/12 principal and vice principal are to be filled on the basis of seniority. In her cross examination the plaintiff has admitted that post of vice principal is a selection post. She again turned back and stated that it is not selection post, however, she admitted that post of principal and vice principal ought to be filled on the basis of merit and seniority and these two factors are considered at the time of selection and interview. Therefore, as per own admission of the plaintiff the selection of candidates for the post of principal and vice principal is to be made by way of selection.
28. The plaintiff further admitted that the selection of principal i.e. defendant no. 5 Smt. Ramola Lalwani was made through a duly constituted legal selection board. Further in her cross examination she also admitted that DPC was constituted as per procedure and the nominee of Director and Education Officer Zone V were present and they had taken part in it.
29. The case of the defendant is that the DPC were properly constituted as per rules. Case of five senior most eligible teachers were put before the DPC. The DPC's unanimously recommended the name of defendants no. 5 and 6 for their respective posts at the relevant time. The plaintiff in her cross examination admitted that promotion is given to one of the teacher amongst five senior most teachers whose name is recommended by DPC. 15 CS No 420/12 Therefore, as per the own version of plaintiff due process of law was followed. In her cross examination she further admitted that post of principal and vice principal were filled on the recommendation of DPC and the management cannot interfere in the findings and recommendations of the DPC. Thus it is proved on record that DPC's were lawfully constituted and they followed procedure prescribed by law.
30. The only ground of attack left with plaintiff is that her case was not put before the relevant DPC by the management. It is not the case of the plaintiff that individuals of DPC were biased against the plaintiff. She has put across the case that the management had fabricated her confidential report and then she was ignored on the basis of fabricated record. The plaintiff has not produced any documentary evidence on record to establish fabrication of her confidential report and other relevant records put before DPC. In her cross examination she stated that she was informed by the officer of Directorate that there is tampering with the record. She refused to tell name of such officer and stated that she has not initiated any criminal proceedings with regard to said tampering of the record. No record of complaint made in this regard has been proved on record. Even otherwise, the knowledge of plaintiff qua tampering is hearsay in nature and cannot be relied.
It has been argued that Smt. Ramola Lalwani had taken part in the 16 CS No 420/12 DPC constituted for selecting vice principal despite the fact that a case was pending against her. However, during cross examination the plaintiff herself admitted that DPC was properly constituted as per procedure. There is no legal bar which prevented her from taking part in the Committee. Moreover, as per rule 96 (3) the defendant no. 5 Smt. Ramola Lalwani being the principal was under obligation to take part in the DPC. It was not the matter of her choice but the mandate of rules for defendant no. 5 to take part in the selection committee constituted for the post of vice principal. Defendant no 5 being the principal at that time had no other option but to take part in it. It is not the case of plaintiff that defendant no. 5 had influenced the other members of DPC for the post of vice principal. Thus the plaintiff has failed to establish this ground of attack as well.
31. The plaintiff has also taken another ground that defendant no. 5 had written the confidential report of the plaintiff. However, the plaintiff has not proved the aforesaid confidential report on record. There is no pleading to this effect. There is also no evidence in this regard. The aforesaid argument is beyond the pleadings and evidence on record. There is also no evidence at all that the aforesaid annual confidential report was wrongly prepared or this report formed basis of non selection of the plaintiff for the post of vice principal.
32. In view of the aforesaid discussion it has been proved on record that 17 CS No 420/12 the defendants followed the due process of law. The DPCs were established as per rules. The rules were also followed for making selection of the plaintiff. The plaintiff was ignored as per discretion of the respective DPC's for the posts of principal and vice principal. The plaintiff has failed to prove the allegations of tampering in the record put before DPC. Thus the plaintiff has failed to establish that DPC's were constituted against rules or the selection of defendant no. 5 and 6 on the basis of recommendations of DPC's was against law. Hence the selection of defendant no. 5 and 6 was as per law and the plaintiff is not entitled for the benefits of the post of principal or vice principal of defendant no. 1. Hence this issue is decided against the plaintiff and in favour of the defendants.
ISSUE NO. 3
33. Onus to prove this issue was on the plaintiff. Initially the plaintiff had sought relief of permanent injunction restraining the defendant from approving appointment of defendant no. 5 as principal and against defendant no. 2 from filling the post of vice principal. However, during the pendency of case both these posts were filled permanently. Accordingly, the plaintiff deleted the aforesaid prayer for permanent injunction. Hence this issue has been rendered infructous. ISSUE NO. 4 18 CS No 420/12
34. Onus to prove this issue was on the plaintiff. The plaintiff in the original plaint has claimed mandatory injunction directing the defendant no. 2 to fill the post of vice principal from the senior most teachers as per seniority list. During the trial the aforesaid post was filled. Defendant no. 6 was appointed as vice principal, hence by way of amending plaint plaintiff deleted the aforesaid relief.
35. After amendment of the plaint though plaintiff sought declaration that she is entitled to all the benefits for the post of principal or vice principal but no relief by way of mandatory injunction has been sought. Accordingly this issue has been rendered infructous. ISSUE NO. 5
36. Onus to prove this issue was on the defendants no. 1 to 5. It has already been held that issue for mandatory injunction has been rendered infructous, therefore, the question of valuation of suit for relief of mandatory injunction does not arise. Accordingly, this issue has come infructous.
ISSUE NO. 6
37. Onus to prove this issue was on the defendants no. 3 and 4. It is an admitted case that defendant no. 1 school is under the control of defendant no. 3 and 4. The service conditions of the employees/teachers of defendant no. 1 school are governed by Delhi School Education Act 19 CS No 420/12 and the rules framed thereunder.
38. Section 8 of the Delhi School Education Act 1973 provides that the administrator can make rules and regulations qua the minimum qualifications for recruitment and the conditions of service of employees of recognized private schools. According to this section another action concerning dismissal, removal and reduction in rank can be challenged before School Education Tribunal constituted u/s 11 of the Act. Further section 25 of the said act bars the jurisdiction of Civil Court to grant injunction in respect of matters in relation to which the administrator or any other authorized person has been empowered under the Act to exercise such powers.
39. Section 9 of the Civil Procedure Code bars jurisdiction of Civil Court where the jurisdiction of Civil Court is barred either expressly or impliedly by any special Act. Therefore, the Civil Court will have jurisdiction to entertain the suit and grant exemption with regard to the matters in relation to which the administrator or Director or any other person is authorized by administrator or director or any other authorized officer is not empowered.
40. In the present case the plaintiff is seeking declaration that appointment of principal and vice principal were against law and are null and void and the plaintiff is entitled to benefits attached to the post of 20 CS No 420/12 principal and vice principal. No relief of injunction is being claimed by way of present suit. Moreover the Delhi School Education Act does not provide for any remedy qua challenging the legality of post of principal or vice principal. It also does not provide for any remedy for the in action on the part of director.
41. In Dhruv Green Fields vs. Hukam Singh and Ors, 2002, 6 SCC, 416, it has been held, " jurisdiction of Civil Court would be retained despite express or implied bar in the order or action complaint of is a nullity." It has been further held even when statutory provisions implies exclusion of jurisdiction still jurisdiction can be inferred unless the statute also provides an adequate and efficacious remedy. In the present suit plaintiff has challenged the order complaint as null and void and no power has been given to any official under Delhi School Education Act to deal with the case for challenging the selection of posts of Principal and Vice Principal. The plaintiff in the present suit claimed infraction of her rights giving rise to cause of action. Thus the jurisdiction of Civil Court is not barred. Accordingly, this issue is decided against the defendants and in favour of the plaintiff.
RELIEF
42. In view of the findings given on issue no. 2,3,4, and 5 suit of the plaintiff is dismissed with no order as to costs. Decree sheet sheet be 21 CS No 420/12 prepared. File be consigned to record room after due compliance.
Announced in the open court (SUSHANT CHANGOTRA) on 27.07.2012 Civil Judge6 (West) Delhi