Delhi High Court
Social Jurist A Lawyers Group vs Dharmender Sharma & Ors on 11 December, 2017
Author: A. K. Chawla
Bench: A. K. Chawla
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CONT.CAS(C) 1133/2016
SOCIAL JURIST A LAWYERS GROUP ..... Petitioner
Through Mr. Ashok Agarwal, Adv.
versus
DHARMENDER SHARMA & ORS ..... Respondents
Through Mr. R.N. Singh and Mr. A.S. Singh,
Adv. for R-1.
Mr. Ramesh Singh, Standing
Counsel for GNCTD.
Mr. Naresh Kaushik and Mr. Devik
Singh, Advs. for UPSC.
Mr. Nikhil Goel and Mr. Ashutosh
Ghade, Adv. for SDMC.
Mr. G.D. Mishra, Standing Counsel
for EDMC.
Mr. Rajan Sabharwal, Standing
Counsel with Mr. Vineet Pandey,
Adv. for R-4.
Mr. Jawahar Raja and Mr. Chinmay
Kanojia, Advs. for interveners/
applicants.
CORAM:
HON'BLE MR. JUSTICE A. K. CHAWLA
ORDER
% 11.12.2017 CM APPLs. 32143/2017 (Stay), 38176/2017 (Vacation of order) and 34777/2017 (Impleadment/ Intervenor).
All the three applications in hand are the off-shoot of the directions given by this Court on the institution of the contempt CM Nos. 32143/17, 38176/17 & 34777/17 in Cont. Cas (C) 1133/2016 Page 1 of 31 petition alleging violation of the directions given by the Division Bench of this Court in WP(C) 1611/2001 for filling-up the various vacancies of PGTs, TGTs and Asst. Teachers on regular basis.
2. Instant contempt petition, it emerges, is the second contempt petition, the earlier filed being Contempt Petition (C) 370/2003 having been disposed off on 23.2.2010, with the liberty to the petitioner to file afresh, in the event, the respondent does not recruit teachers in any year or sits over the vacancies for long. Instant contempt petition thereafter came to be filed alleging deliberate omission in compliance of the order(s) of this court, inasmuch as, 26031 vacancies of teachers, which did not include 9000 new posts created by Govt. of NCT of Delhi, were still lying vacant in the schools run by Govt. of NCT of Delhi and the three Municipalities and thereby, the students were deprived of their fundamental right to receive quality education.
3. In the instant contempt proceedings, on 11.4.2017, this Court directed Delhi Govt., EDMC, NDMC, and SDMC to take immediate remedial measures and send requisition intimating all vacant teaching posts as on 1.4.2017 to DSSSB, who is to undertake the exercise of selection of the candidates, for being appointed in the respective posts. In pursuance thereof, intimations for the vacant posts came to be given to DSSSB and DSSSB proceeded to advertise vacancy notice no. F.1(351)/DSSSB/P&P/2017/Advt./827 bearing advertisement no.02/17 dated 07/08/2017 inviting online application for various teaching & non-teaching posts. Vide notice CM Nos. 32143/17, 38176/17 & 34777/17 in Cont. Cas (C) 1133/2016 Page 2 of 31 no. F.1(351)/DSSSB/P&P/2017/Advt./884-889 dated 24/08/17 however, DSSSB withdrew the vacancies for all the posts of teachers of Dte. of Education of Govt. of NCT. It resulted into filing of the application being CM No.32143/2017 by the petitioner- Social Jurist, in short 'Social Jurist's Application', seeking stay of notice dated 24.8.2017 and further directions to DSSSB to proceed further with the advertisement no.02/17 dated 7.8.2017.
4. 'Social Jurist's Application' proceeds on the premise that such action of DSSSB to withdraw all vacancies of teaching posts in Dte. of Education from advertisement no. 02/17 was not only illegal, malafide, intentional and wilful disobedience of the earlier orders of this Court, it, more pertinently, also violated the orders dated 11.4.2017 and 9.8.2017 passed by this Court. In the reply affidavit dated 15.9.2017 of the Director (Education) of the Govt. of NCT, it has come to be stated that the answering respondent has been engaging guest teachers from the year 2010 as a stop gap arrangement against the regular posts lying vacant and that prior to the year 2013-14, the entire process of engagement of guest teachers was being conducted at the level of the 'Heads of Schools' itself, but, in the year 2014-15, to ensure transparency in the engagement of guest teachers and to streamline the process, the answering respondent had revamped the system and that, the selection to the panel was on the basis of an open advertisement/notice, followed by a drawing up merit list, and, it has been continued, since then. 1817 guest teachers with CM Nos. 32143/17, 38176/17 & 34777/17 in Cont. Cas (C) 1133/2016 Page 3 of 31 experience of previous year are also said to be taken, as per the judgment of Hon'ble CAT in OA no. 2671/2014 Sonalika Mishra & Ors. Vs. Govt. of NCT of Delhi. It is also stated that such facts were being placed before the Court to demonstrate that the respondent, in the interest of school education, fills-up the vacancies in schools through this stop gap arrangement and is making serious efforts to fill-up the vacancies with regularly recruited persons. In addition thereto, it has also come to be stated that the Council of Ministers, GNCT of Delhi, vide decision no. 2269 dated 4.12.2015 had decided (1) Creation of 9623 additional teaching posts (Principal-25, Vice-Principal-365, PGT 4940, TGT- 2933, Physical Education Teacher-860, Drawing Teacher-256, Librarian-38 & Lab Asstt.-226) in the Directorate of Education, as, it will help to achieve the desired level of Teacher-Pupil ratio as per the RTE Act; (2) The required age relaxation will be given to all Guest Teachers who were engaged in the academic years 2012-13, 2013-14 & 2015-16 provided they have worked for at least 120 working days in any one year, and that, it was one time measure; and, (3) additional weightage in marks to be given for each academic year to the guest teachers. To this decision dated 4.12.2015 of the Council of Ministers, GNCT of Delhi, the Lt. Governor, GNCTD gave approval as a one time measure, observing, granting age relaxation to those, who may have contributed some years in service in Govt. would seem reasonable, however, granting weightage in marks to select candidates in an open selection, would violate principles of equality and equal CM Nos. 32143/17, 38176/17 & 34777/17 in Cont. Cas (C) 1133/2016 Page 4 of 31 opportunity enshrined in the Constitution, and, therefore, cannot be permitted. In this reply, it has also come to be stated that consequent upon the orders dated 11.4.2017 passed by this Court, the Dte. of Education had sent requisitions to DSSSB and DSSSB advertised 8972 vacancies vide advertisement no. 02/17 on 7.8.2017. Reply also states that the Minister of Education, GNCT of Delhi however, wrote letter dated 9.8.2017 to the Lt. Governor citing judgments of Apex Court, to reconsider the issue of weightage of experience to the guest teachers and on 10.8.2017, the Legislative Assembly of NCT of Delhi passed a Resolution to the effect that the current recruitment process be put on hold till the Directorate of Education formulates a policy for giving due weightage to guest teachers based on their working in Delhi Govt.'s schools and therefore, the process has been put on hold temporarily, till, a final decision on the Resolution passed by the Assembly comes to be taken. It is thus, stated that as soon as the issue of weightage of marks to the guest teachers on the basis of the experience is examined, further action on the recruitment process will be taken. As for the status of guest teachers and the vacancies, it is averred that as per the recruitment rules of PGTs/TGTs, 75% posts are promotional and 25% are by direct recruitment and that, promotion of 3702 PGTs for the year 2015-16 is under active process and thereafter, the respondent will fill up the posts for the year 2016-17. As regards TGTs, it is stated that the process of filling up of promotional post of TGTs has been initiated after sorting out the issues regarding post-based roster with the guidance CM Nos. 32143/17, 38176/17 & 34777/17 in Cont. Cas (C) 1133/2016 Page 5 of 31 of nodal officer of National Commission for Scheduled Castes and the same was being actively pursued and that, the documents regarding promotion had been called from all the three municipal Corporations of Delhi and district offices of Dte. of Education and that, 87% of this feeder is Asst. Teachers from MCD and 13% from Asst. Teachers of Dte. of Education. In her additional affidavit dated 25.9.2017, the Director (Education) has then stated that the process has temporarily been put on hold, with the approval of competent Authority, till a final decision on the resolution passed by the Assembly is taken. This additional affidavit in reply then also says that the proposal, in respect of weightage of marks to the guest teachers was submitted to Law Department, GNCT of Delhi for examination on 18.8.2017 and it required detailed examination and inter-ministerial consultation, and, that, it was being examined in the light of related judgments of Hon'ble Supreme Court quoted by Legislative Assembly of Delhi, earlier decision(s) of Hon'ble Lt. Governor, relevant Articles of Constitution and other prevailing Rules/instructions in the matter. This additional affidavit also states that the Lt. Governor has again desired vide UO dated 14.9.2017 that the matter be submitted urgently, after proper examination, as per rules. It is also said that the matter of weightage of marks to the guest teachers on the basis of experience will be taken by the competent Authority on submission of the matter after inter- ministerial consultation. On 27.9.2017, this court directed status quo and not to either appoint or promote the guest teachers, which had come to be appointed from the year 2010 onwards. To seek CM Nos. 32143/17, 38176/17 & 34777/17 in Cont. Cas (C) 1133/2016 Page 6 of 31 vacation of such orders CM No. 38176/2017, in short 'the Govt.'s Application', has come to be filed. This application came to be filed by Dy. Chief Minister/ Education Minister supported by his own affidavit, being the Minister In-charge, Department of Education, Govt. of NCT of Delhi, after the disposal of LPA by the Division Bench of this Court, preferred against the order dated 27.9.2017. LPA was disposed off by the Division Bench directing the applicant to move this Court only for the purpose, and, raise all the contentions and the pleas inter alia that Legislative Assembly had passed a Bill on 4.10.2017, which was pending consideration before the Lt. Governor.
5. 'The Govt.'s Application' proceeds on the premise that 'the Social Jurist's Application' had become infructuous, as the last date for submission of the application pursuant to the advertisement no. 02/17 dated 7.8.2017 had already expired; the direction/order militates against the very grievance made in the contempt proceedings for the vacancy of teachers not getting filled; till the time, 9000 odd newly created posts of teachers are filled up either through recruitment process or regularisation, guests teachers are required as stop gap arrangement against the said newly created posts; and, without prejudice to the afore-going, crisis had become more acute in view of the fact (i) Govt. had constructed/opened almost 8000 new classrooms; (ii) class-X Board Exam had started after many years and therefore, the students who were presently in class-X, would have to prepare the full years syllabus against six CM Nos. 32143/17, 38176/17 & 34777/17 in Cont. Cas (C) 1133/2016 Page 7 of 31 months syllabus (as was required earlier), apart from undertaking a public examination and therefore, it required most extensive teaching, which in turn, would require more no. of teachers; (iii) similarly for class-IX, the annual exam had restarted, which would require preparation for full year's syllabus; and, (iv) the Govt. was though investing heavily in teachers' training, will not be able to take teachers out of their regular teaching schedule even for two weeks time to impart such training, as the guest teachers, who could have acted as buffer/stop gap arrangement, would not be available in the required no. because of the subject order/direction of this Court. Prayer, as such, has come to be made in 'the Govt.'s Application' for vacation and/or non-continuance of the direction given on 27.9.2017. In the reply filed, Social Jurist's say that at present, over 27000 teachers posts were lying vacant for the last 7-8 years with the Dte. of Education, Govt. Of NCT of Delhi and that the recruitment process of regular teachers was already delayed due to inaction attributable to the Govt. and that, any further delay would be against the interest of the students. It is therefore, prayed that the interim orders should continue.
6. CM No. 34777/2017 has come to be filed by Dilli Athithi Shikshak Sangh for being impleaded in the proceedings as an intervenor under Order 1 Rule 10 CPC read with Article 251 of Constitution of India, in short, 'the Intervenor's Application'. 'The Intervenor's Application' proceeds on the premise that it represents the interest of all about 14020 guest teachers, who are lying CM Nos. 32143/17, 38176/17 & 34777/17 in Cont. Cas (C) 1133/2016 Page 8 of 31 engaged as guest teachers by the Dte. of Education, GNCT of Delhi. According to the intervenor, the guest teachers were engaged through open, transparent process and could not be replaced by the other guest teachers, but, for being replaced by teachers appointed on regular basis. Intervenor adverting to order dated 26.11.2014 of the Central Administrative Tribunal (CAT) asserts that while the guest teachers engaged through the open and the transparent process, could not be replaced by other guest teachers, they could be replaced by the teachers appointed on regular basis, though, the CAT had permitted to discontinue the engagement of guest teachers, whose performance was found unsatisfactory. To be precise, the intervenor by the application in hand, seeks to be heard in the proceedings, as, according to it, the orders passed in the instant contempt proceedings will have a bearing on the interest of its members i.e. the guest teachers. No notice of the application has come to be issued, as yet.
7. In the submissions of Mr. Agarwal, ld. Counsel for the petitioner, the action of the Dte. of Education, GNCT of Delhi in withdrawing the advertisement dated 7.8.2017 with regard to all 8917 vacancies of teachers was illegal and contemptuous and in clear contravention of the orders passed by the Division Bench of this Court on 20.12.2001 in WP(C) 1711 of 2001, as also, the orders passed by this Court on 11.4.2017 and 9.8.2017, and, that, no prior permission of this Court was sought before issuance of the notice dated 24.8.2017. Referring to the orders passed by this Court in CM Nos. 32143/17, 38176/17 & 34777/17 in Cont. Cas (C) 1133/2016 Page 9 of 31 CCP No. 370 of 2003 Social Jurist Vs. T.T. Joseph, Chairman, DSSSB & Ors., it is also contended that this Court had earlier passed similar orders against the respondents discouraging appointment of teachers on contract basis instead of recruiting permanent teachers through DSSSB. In addition thereto, it has also come to be pointed out that in its reply affidavit dated 12.1.2017 to CM No.40680 of 2016, the Directorate of Education admits that as many as 82 teachers (TGT, PGT and Principal) have been deployed for the Court work, though, their presence is shown in the respective schools and drawing salary therefrom only, and, it shows that the GNCT of Delhi is not at all serious to ensure that the teachers work in schools only. In support of its application, the petitioner-Social Jurist has placed reliance upon (2014) 7 SCC 416 Bihar State government SCL. Teacher Asn. Vs. Ashok Kumar Sinha & Ors; Contempt Case (C) 538/2016 Archana Chugh & Ors. Vs. G.S. Moondhra & Ors. Order passed on 18.11.2016; and, Civil Appeal No. 4298-4299 of 2017 Bangalore Jute Factory PLC Mazdoor Sangh (BMS) etc. Vs. Bangalore Jute Factory PLC decided by Hon'ble Supreme Court on 21.03.2017.
8. In submissions of Mr. Singh, ld. Standing Counsel for GNCT of Delhi, the recruitment process to be undertaken by DSSSB vide advertisement no.02/17 dated 7.8.2017 was suspended on the basis of the decision of the competent Authority and therefore, the notice dated 24.8.2017 for keeping such process in abeyance was issued by DSSSB and therefore, 'Social Jurist's Application' in the CM Nos. 32143/17, 38176/17 & 34777/17 in Cont. Cas (C) 1133/2016 Page 10 of 31 contempt proceedings was beyond the scope of the contempt jurisdiction. It was also strenuously contended that as the subject advertisement no. 02/17 merely granted age relaxation to the guest teachers, without giving any additional weightage in marks, the Minister of Education, GNCT of Delhi had requested the Lt. Governor for reconsideration on the issue of weightage of experience to the guest teachers and that, the Legislative Assembly of GNCT of Delhi had passed a resolution to put on hold the current recruitment process, till, a policy, giving due weightage to the guest teachers based on their working in Delhi Govt. Schools was formulated. Thus, according to Mr. Singh, while the said policy decision of the Govt., did not amount to wilful disobedience of the orders/directions of this Court, it was also justifiable, legally sound and bonafide, in view of the judgments of the Hon'ble Supreme Court dated 29.11.2016 in SLP No.32008-09 of 2013 and dated 3.8.2016 in SLP No.3159 of 2015. Also, in his submissions, the guest teachers were substantially those, who had been empanelled in the year 2014, when, the recruitment process became transparent and streamlined, through, an open advertisement/notice basis and getting drawn merit list. As to the steps taken to fill up the vacant posts through direct recruitment and promotion, it has come to be contended that the Government has been regularly sending the requisitions to DSSSB for the direct recruitment and teachers have been recruited there-against from time to time. As for the promotional posts, it has come to be contended that the posts of PGT and TGT have been filled up till 2012-13, but, from 2013-14, CM Nos. 32143/17, 38176/17 & 34777/17 in Cont. Cas (C) 1133/2016 Page 11 of 31 the filling up of TGT posts faced a roadblock, on account of OM of DoPT dated 13.8.1997, which was recently set aside by this Court on 20.8.2017 and that, after the said judgment, further instructions are awaited from Ministry of Home Affairs, Govt. of India. It is thus contended that the delay in filling up both the direct and promotional posts, was bonafide. In his submissions, it was only as a stop gap arrangement against the regular posts lying vacant, the Govt. had decided to induct the guest teachers, without compromising on the quality, and, that, such efforts had helped in reducing the deficit/pendency (before creation of new posts in 2016 onwards) to mere 6.18% of the teaching staff. Therefore, the prayer made by the petitioner-Social Jurist in its application is sought to be rejected. Order dated 27.9.2017 is also, sought to be vacated and/or being not continued further, for the reasons (i) Govt. had constructed/opened almost 8000 new class rooms; (ii) class-X board's exams had come to be started after many years and, therefore, the students, who were presently in class-X, require to prepare for full year's syllabus against the six months' syllabus (as was required earlier), apart from undertaking a public examination and for that, extensive teaching required more number of teachers;
(iii) similarly, for class-IX, the annual exams had also started and extensive teaching was required attracting more teachers; and, (iv) more than about 8500 NIOS would not having any teachers. It was also contended that due to acute shortage of teachers, the department of Education was also constrained to issue an order on 23.10.2017 inter alia cancelling the leaves of the teachers till March CM Nos. 32143/17, 38176/17 & 34777/17 in Cont. Cas (C) 1133/2016 Page 12 of 31 of the next year. Thus, according to Mr. Singh, the Govt. was willing and that too, as a purely temporary/stop gap arrangement to engage around 8700 new guest teachers on daily remuneration basis, against the existing vacant posts confined to the present academic session 2017-18 and to that effect, an affidavit has been filed. In addition thereto, it has come to be submitted that the instant contempt proceedings were only concerned with filling up of the vacancies by regular recruitment and therefore, the aspect of grant of due weightage to the guest teachers, as suggested by the Legislative Assembly in its resolution dated 10.8.2017, cannot be entertained in the instant proceedings and that, the suggestion of the Legislative Assembly, in any event, and, in no manner, can amount to wilful and contumacious violation of the orders/directions of this Court. As for the delay in filling up the vacancies by direct recruitment, it is contended that it appears to be on account of difference of opinion and the matter moving to and fro, which, from the elected Govt.'s point of view, was clearly bonafide, especially, in view of the judgment of the Hon'ble Supreme Court dated 3.8.2016 and 29.11.20166. It is also contended that the issue is debatable and therefore, the question of wilful disobeyance on account of the said debate/legal interpretation, on the issue of weightage, cannot under any circumstances, amount to wilful disobeyance and in that regard, reliance is placed upon Indian Airport Employees Union Vs. Ranjan Chatterjee (1999) 2 SCC 537. Directorate of Education, GNCT of Delhi, through its Director (Education) has filed its written submissions separately. These CM Nos. 32143/17, 38176/17 & 34777/17 in Cont. Cas (C) 1133/2016 Page 13 of 31 submissions have come to be filed independently and only narrate the sequence of events. In the end, these submissions, only conclude to say that the officials, who have been arrayed as Contemnors, had not violated any order passed by this Court and on their part, they had taken all steps to comply with the directions given by this Court, from time to time. DSSSB on its part has submitted that it had made all the preparation for conducting the exams, but, in view of the communication of the Dte. of Education dated 23.8.2017 to keep the requisitions in abeyance, the vacancies for the posts of the Dte. of Education had to be withdrawn vide notice dated 24.8.2017 and it so happened, before the willing candidates could apply. It has also come to be then submitted that the exams for filling 4366 vacancies of Primary Teachers in MCD had already been conducted on 29.10.2017 and no fresh requisition or communication regarding filling the said posts had been received by it, from the Dte. of Education, GNCT of Delhi, till date i.e. 29.11.2017.
9. There cannot be any denying the fact that vide order dated 20.12.2001, the Division Bench of this Court disposed off WP(C) 1611/2001, with directions to ensure regular appointment of the Asst. Teachers, PGTs and TGTs in the schools of GNCT of Delhi, Municipal Corporation of Delhi and New Delhi Municipal Council, in a time bound manner and DSSSB was also directed to adhere to the time schedule prescribed there-under. Social Jurist's earlier contempt petition, which was filed in the year 2003 being CM Nos. 32143/17, 38176/17 & 34777/17 in Cont. Cas (C) 1133/2016 Page 14 of 31 Cont.CAS(C) 370/03 Social Jurist Vs. T.T. Joseph, came to be disposed off by the ld. Single Judge on 23.2.2010, with the order, as follows :
"This petition for contempt has been made to ensure that the directions given by the Division Bench for recruitment of teachers is complied with. It is not the case of the petitioner that teachers are not being recruited. The counsel for the petitioner states that the recruitment process is slow. Learned counsel for the respondent states that recruitment of teachers is being done every year for all the categories against all the vacancies which fall vacant. However, the process involves following of recruitment rules as laid down by the administration and even during the process of recruitment many writ petitions are filed by the candidates on various grounds which further delay the recruitment process because of interim injunctions granted by the court. I consider that since the recruitment process, as directed by this court, is being followed and recruitment is being done every year, keeping of this contempt petition, only to put pressure on the respondents to continue to do recruitment, is not required. In case the respondent does not recruit teachers in any year or sits over the vacancies for long, the petitioner is at liberty to approach this court."
Instant contempt petition has now come to be filed on the premise that there is no recruitment of teachers by the Delhi Govt. and Municipal Corporation Schools in the past few years. 26031 number of vacancies, which do not include 9000 new posts of teachers, created by Delhi Govt. are said to be lying vacant. Taking note of the prevailing facts and the circumstances, this Court, on 11.4.2017, issued directions, as under:
"Mr. Ashok Agarwal, learned counsel for the petitioner states that there are 33,781 vacant teaching posts in Delhi Government and the three municipal corporations i.e. CM Nos. 32143/17, 38176/17 & 34777/17 in Cont. Cas (C) 1133/2016 Page 15 of 31 EDMC, NDMC and SDMC. The break-up of the vacant teaching posts, according to him, are as under:-
Delhi Govt. 27142
EDMC 2110
NDMC 2862
SDMC 1667
Total vacant 33781
Teaching posts
Keeping in view the large number of vacancies, this Court is of the view that the Delhi Government as well as the three municipal corporations and DSSSB need to take immediate remedial measures.
This Court directs the Delhi Government, EDMC, NDMC and SDMC to send requisition intimating all vacant teaching posts as on 01st April, 2017 to DSSSB within two weeks.
The Chairman, DSSSB is directed to convene a meeting on 28th April, 2017 at 11.00 AM, which shall be attended by the Commissioners of all three municipal corporations as well as by the Directorate of Education and the Controller of Examination, DSSSB. The Commissioners and the Director shall be entitled to take assistance from any other official they deem appropriate. In the meeting, a plan of action would be finalised so that the teaching posts are filled up expeditiously.
Since the experience has been that all the successful candidates do not accept the offer, the DSSSB shall create a Waiting List in accordance with the Division Bench Judgment dated 5th March, 2013 in Chairman, DSSSB Vs. Mrs. Rajni & Ors; W.P.(C) No. 2552/2012.CM Nos. 32143/17, 38176/17 & 34777/17 in Cont. Cas (C) 1133/2016 Page 16 of 31
Let the minutes of meeting be placed on record along with an affidavit at least one week prior to the next date of hearing."
In pursuance of the above-said directions, requisitions got sent and advertisement no. 02/17 came to be issued by DSSSB inviting applications for the eligible candidates inter alia for the posts, subject matter of the proceedings. On 9.8.2017, ld. counsel for the petitioner-Social Jurist however, pointed out to the Court that the vacancies shown in the subject advertisement, as far as Delhi Govt. Schools are concerned, was much lesser than the vacancies, as find mention in the order dated 11.4.2017. A short affidavit was directed to be filed on behalf of GNCT of Delhi to explain the discrepancy, if, that be so. It however, transpired that before such an affidavit could be filed, the subject advertisement no.02/17 came to be withdrawn on 24.8.2017 and that resulted into filing of 'the Social Jurist's Application' for stay thereof. With such withdrawal of the advertisement no.02/17, the entire process of recruitment to the subject posts on regular basis came to a standstill vis-a-vis the posts in the schools of the Dte. of Education, GNCT of Delhi. During the proceedings, adverting to an affidavit dated 15.9.2017, Mr. Singh, ld. Standing Counsel for GNCT of Delhi took the plea that an issue of giving weightage of marks to the guest teachers on the basis of experience was under
examination and only after it was decided, the further CM Nos. 32143/17, 38176/17 & 34777/17 in Cont. Cas (C) 1133/2016 Page 17 of 31 recruitment process could be undertaken. To ascertain as to when, such examination would be over, a direction was issued to file a precise affidavit, clearly stipulating, as to when, such examination would be over. In pursuance of such directions, though, an affidavit dated 25.9.2017 came to be filed stating that the age relaxation is to be given to the guests teachers, who were engaged in the academic years 2012-13, 2013-14, 2014-15 and 2015-16, additional weightage of marks to them, was under consideration. This affidavit by itself, then, also recorded, as follows :
"......................................................................................... ............................................................................................
(ii) The then Hon'ble Lt. Governor had ordered that "granting age relaxation to those who may have contributed some years in service in Government would seem reasonable, however, granting weightage in marks to select candidates in an open selection, would violate principles of equality and equal opportunity enshrined in the Constitution and therefore, cannot be permitted."
............................................................................................ ........................................................................................."
This affidavit, thus, made it clear that the proposal sent by the Dte. of Education to give weightage of marks to the guest teachers for the regular appointment, was not approved by the Lt. Governor. Here itself, it may be noted that it has not been approved till now. Mr. Singh, ld. Standing Counsel for GNCT of Delhi now came CM Nos. 32143/17, 38176/17 & 34777/17 in Cont. Cas (C) 1133/2016 Page 18 of 31 forward to say that a Bill is in the process of being tabled for the regularisation of guest teachers, who were getting appointed since 2010, besides, giving weightage of marks to them, if, the competent Authority ultimately agrees to such proposal. In the given factual conspectus, when the process of regular appointment was not getting proceeded with further, inspite of the specific orders passed by this Court on 11.4.2017 and 9.8.2017 and the process initiated vide advertisement no. 02/17 had come to be withdrawn on 24.8.2017, but, for the guest teachers getting appointed, who are contractual, this Court issued directions that the respondents and all other concerned shall maintain status quo and shall not either appoint or promote guest teachers, which had come to be appointed from the year 2010 onwards.
Till now, the aspect of giving weightage of marks to the guest teachers, is said to be remaining under consideration. But for appointing the guest teachers, which, as per the noting of the Govt.'s file's itself was taking place since the year 2001, which is said to have been better formulated or organised from 2014 onwards, what critical steps have come to be taken by the Dte. of Education, GNCT of Delhi, a glance on the figures given in the reply/affidavit itself, reflects well. In its affidavit dated 17.11.2017, the Special Director (Education) has given the break-up of the regular CM Nos. 32143/17, 38176/17 & 34777/17 in Cont. Cas (C) 1133/2016 Page 19 of 31 sanctioned posts, created since 1.1.2010, as under :
Posts creation Total Direct Promotio Cumulative Cumulative Cumulative date/orders regular Recruitment nal posts Total DR Total DP Total sanctioned posts Posts Posts (DR+DP) posts Posts existed 41988 17359 24629 17359 24629 41988 as on 01.01.2010
25.02.2010 926 926 0 18285 24629 42914 23.12.2010 308 308 0 18593 24629 43222 07.10.2011 11651 5407 6244 24000 30873 54873 10.11.2015 28 28 0 24028 30873 54901 24.12.2015 165 165 0 24193 30873 55066 18.01.2016 9027 3122 5905 27315 36778 64093 28.03.2010 170 170 0 27485 36778 64263 01.08.2017 1094 848 246 28333 37024 65357 17.08.2017 1379 345 1034 28678 38058 66736 Total 66736 28678 38058 -------- -------- -------
For the efforts made by the Dte. of Education, to fill up the vacancies in both the direct recruitment and promotion quota, w.e.f.
CM Nos. 32143/17, 38176/17 & 34777/17 in Cont. Cas (C) 1133/2016 Page 20 of 311.1.2010 to 31.12.2015, the details provided in Table II, are as under:
Vacancy No. of Regular No. of Regular No. of Regular No. of Regular Year Sanctioned posts Sanctioned posts Sanctioned posts Posts filled through vacant in Direct sent to DSSSB in vacant in promotion Recruitment Direct Promotion quota quota Recruitment quota PGT TGT PGT TGT 2009-10 1436 3002 402 699 355 499 2010-11 1549 1705 609 520 518 364 2011-12 5584 5584 3150 3405 2480 1667 2012-13 2980 4718 669 2416 569 809 2013-14 715 715 1208 1743 589 0 2014-15 610 610 940 3731 699 0 2015-16 1755 1755 3702 4340 0 0 2016-17 4090 5791 1930 341 0 0 A bare perusal of the figures given in Table I and Table II would show that while the regular sanctioned posts have been increased manifold, no regular sanctioned post has come to be filled through promotion for TGTs from 2013-14 onwards, and, no such post filled up for PGTs from 2015-16 onwards. Why even such promotional posts have not been filled up, Mr. Singh, ld. Standing Counsel for GNCT of Delhi contended that it was on account of an OM of DoPT dated 13.8.1997, which prescribed reservation for SC and ST, which has come to be set aside on 23.8.2017. During the course of hearing, Mr. Singh, was however, at pains to explain, CM Nos. 32143/17, 38176/17 & 34777/17 in Cont. Cas (C) 1133/2016 Page 21 of 31 though, he conceded, there was no order or direction of any Court, which restrained the GNCT of Delhi to proceed with filling up such vacant posts. What was the nature of the restriction(s) to fill up the posts from 2013-14 onwards, when in the face of such notification of the year 1997, the vacancies have come to be filled for the years prior to 2013-14, has remained unexplained. Had there been any such hardship, what steps did the GNCT of Delhi took to get over it, there is not even an iota of assertion in any reply, affidavit or the written submissions that have come to be filed on behalf of the GNCT of Delhi. As per the additional submissions that have come to be filed on 4.12.2017, 14753 guest teachers (TGT 8458, PGT 3072, Asst. Teachers and misc. 3223) are working in the Dte. of Education. Keenness is to have more guest teachers, who are contractual. Similar keenness for filling up the posts on regular basis however, does not get reflected anyway. On an element of giving weightage to the guest teachers in the process of selection and appointment to the sanctioned posts, the contention repeatedly that has come to be made is that with the training they have undergone and the experience they have gained, they have an edge, to attract, weightage of marks to be given in the process of selection against the regular posts. But for such bald submission, nothing however, has come to be pointed out from the record to reflect merit in such submission. Here, I may hasten to add, it is not a subject for consideration in the instant proceedings, but, is adverted to for the limited reference, in view of the submissions that have been repeatedly made to justify the continuous appointments being made CM Nos. 32143/17, 38176/17 & 34777/17 in Cont. Cas (C) 1133/2016 Page 22 of 31 of guest teachers, who are contractual, while, even the advertisement issued for the process of regular appointment have come to be withdrawn within 15 days of its issuance. In the subject context, the own noting on page 5/N in the main file no. DE.2(20)/Plg./2013 of GNCT of Delhi, reads, as under :
"16.1 As per the feedback from DDEs & HOSs, the quality of Guest Teachers engaged on the basis of pure marks based merit, is largely not upto the mark and has become a matter of concern in areas of teaching, subject knowledge and behaviour which will impact the results and overall performance of students in Govt. Schools. In case of schools which are largely dependent on these Guest Teaches suffer the most as maintenance of healthy ratio between regular & Guest Teachers has not been feasible due to large number of vacancies. Without an iota of prejudice towards such candidates, it was observed that most of the candidate engaged have passed out from the Universities of the neighbouring states which appears to have a liberal marking system managed to garner most of the posts because of high scores not supported by quality, while local candidates from Delhi University are not able to get their turn. At the same time, they cannot be discriminated in the engagement process.
16.2 The paramount solution lies in induction of regular teachers selected by DSSSB on the basis of written examination. Fast tracking of selection tests by DSSSB during March-June 2015 will provide great relief to the Directorate and students. In addition it is proposed to impart brief training/orientation to Guest Teachers to inculcate a sense of belongingness and promote improved behaviour, subject to availability of resources on a pilot basis during 2015-16 academic year."CM Nos. 32143/17, 38176/17 & 34777/17 in Cont. Cas (C) 1133/2016 Page 23 of 31
The afore-going own record of GNCT of Delhi, has proceeded to record so, when the guest teachers had gone to Central Administrative Tribunal filing multiple OAs and CAT vide its order dated 26.11.2014, as is recorded in the subject file of the GNCT of Delhi, held, as under :
"i) The applicant are not entitled to their regularization on the basis of the length of services rendered by them as Guest Teachers and their services can be brought to an end any time as well as they can always be substituted by the regularly appointed teachers.
ii) The Guest Teachers may not be substituted/replaced by another set of Guest Teachers, unless their services are found unsatisfactory.
iii) Such Guest Teachers whose services are found unsatisfactory can always be discontinued and their services can be even substituted by another Guest Teachers.
iv) Since in terms of the impugned Public Notice dated 28.7.2014 as well as circular dated 8.5.2014 (ibid) the candidates for appointment as Guest Teachers are exempted from CTET/TET, the Guest Teachers, who worked during previous academic sessions, may not be substituted by another set of Guest Teachers on the ground that they have not passed the CTET/TET. Nevertheless, the respondents can always take a decision to not to appoint such individual, who have not passed CTET/TET, as Guest Teachers. In such situation, such Guest Teachers, who have not passed CTET/ETE, can always be substituted by the freshers, who have passed CTET/TET.
v) The impugned Public Notice dated 28.7.2014 is in order and is not interfered with, except to the extent that instead of giving preference marks to Guest Teachers, the respondents would give preference to Guest Teachers, who worked during previous academic sessions, over the freshers in the matter of their continuance/reengagement.
vi) Only such of the applicants/Guest Teachers who will make representation to the respondents for their continuance/engagement as Guest Teacher mentioning the CM Nos. 32143/17, 38176/17 & 34777/17 in Cont. Cas (C) 1133/2016 Page 24 of 31 details of their previous service as Guest Teacher and the schools wherein they worked in such capacity within two weeks from the date of receipt of a copy of this Order, would be entitled to consideration for their continuance/reengagement as Guest Teacher in preference to juniors and freshers."
It is worth noting that after the passing of the above-said directions by CAT on 26.11.2014, on account of the issue of weightage to the guest teachers having been taken up at the level of the Education Minister and at his instance, the matter being carried forward by the Council of Ministers, and, then, the Legislative Assembly, no headway has come to be made for the selection and appointment of the teachers to the sanctioned posts, as per the extant prescribed rules and the regulations, and, in vogue. The opinions of the Lt. Governors and the Law Department of GNCT of Delhi are consistently to the effect that any weightage of marks, as is being pursued by the Education Minister and the Council of Ministers, would not be a sound proposition of law, inasmuch as, it would be violative of Articles 14 and 16 of Constitution of India. Both the Education Minister and the Law Minister however, have taken a different stance on such proposition of law, drawing reference from some judgments. It forms part of the own record of the GNCT of Delhi, and, it is not necessary to get into any discreet details thereof, at this stage. Fact remains that the directions given by the Division Bench of this Court on 20.12.2001 in WP(C) 1711 of 2001 have not come to be given effect to over the years, especially, from the year 2013-14 onwards, inasmuch as, neither any appointment to the CM Nos. 32143/17, 38176/17 & 34777/17 in Cont. Cas (C) 1133/2016 Page 25 of 31 regular posts has come to be made to the post of TGTs through promotion or through direct recruitment. The process, which ultimately came to be initiated in pursuance of the directions given by this Court on 11.4.2017 has in fact has come to be scuttled with the issuance of the notice dated 24.8.2017 withdrawing the advertisement no. 02/17 dated 7.8.2017, on the premise that a proposal of giving weightage of marks to a class of candidates, who may apply against the regular posts, which according to the Education Minister, Council of Ministers and the Legislative Assembly of GNCT of Delhi, was under consideration, before the competent Authority. Though, Mr. Singh, ld. Standing Counsel for GNCT of Delhi was repeatedly asked to clarify, as to who, is the competent Authority before whom the matter was under
consideration and is to decide on the issue, he remained evasive and no specific statement or assertion came to be made or placed on record, inspite of even the directions, specifically given to that effect. Why he chose not to come out and say clearly and specifically in his submissions before the Court, his difficulty can be understood. It emerges from the record that he gets instructions directly from the concerned Minister and the Dte. of Education is not taken into confidence. Suffice to say, two LPAs that came to be preferred against the order dated 27.9.2017 came to be filed under the hand of Education Minister himself and not the Director or any other officer of the Department. In fact, during the course of hearing on 1.12.2017, the Special Director of the Dte. of Education stated that she was even oblivious of the filing of the said LPAs.CM Nos. 32143/17, 38176/17 & 34777/17 in Cont. Cas (C) 1133/2016 Page 26 of 31
This court need not get into the functioning of the Dte. of Education any further, more so, at this stage. The facts emerging from the record are very clear to the effect that the competent Authority, as per the own assertion of GNCT of Delhi, has reference to the Lt. Governor, inasmuch as, the proposal for giving weightage of marks to the guest teachers, awaits approval of the Lt. Governor and so is the Bill passed by the Legislative Assembly of GNCT of Delhi awaiting such approval by the Lt. Governor only. Be that as it may, the fact remains that any proposal for weightage of marks has not yet been approved by the competent Authority and has not yet taken the shape of any rule of law, to be followed for filling up the vacant posts, in respect whereof, advertisement no.02/17 dated 7.8.2017 had come to be issued. Interestingly, Bill for regularisation for guest teachers has come to be passed on 4.10.2017, which was only after the withdrawal notice dated 24.8.2017, that is, much after the issuance of the directions given by this Court on 11.4.2017 and 9.8.2017. Withdrawal notice dated 24.8.2017, on the premise of the resolution of Council of Ministers dated 4.12.2015 in the face of the directions given on 11.4.2017 and 9.8.2017 and without the leave of the Court, does not sound well. It has the effect of violating the orders/directions of the Court and serious. Who was instrumental to that effect, the respondents arrayed in the contempt proceedings, who are the officers of the Dte. of Education, prima facie cannot be said to be responsible. Someone however, has to take the responsibility, unless, this Court fixes such responsibility from what all emerges from the record. Such exercise at this stage, is not CM Nos. 32143/17, 38176/17 & 34777/17 in Cont. Cas (C) 1133/2016 Page 27 of 31 required to be undertaken by the Court, inasmuch as, the three applications in hand invite this Court only to the aspect of continuance of the order dated 27.9.2017 or not, and, any further directions required to be given for ensuring filling up of the regular sanctioned posts, for which the advertisement no.02/17 dated 7.8.2017 had come to be issued, besides, a hearing sought by the guest teachers as the intervenors in the instant proceedings.
10. Mr. Agarwal presses 'the Social Jurist's Application' seeking stay of the operation of the stay notice dated 24.8.2017, with the directions to DSSSB to proceed further with advertisement no.
02/17 dated 7.8.2017 placing reliance upon MANU/SC/0438/2014 (AIR 2014 SC 2824) Bihar State Govt. Section Scl. Teachers Assn. Vs. Ashok Kumar Sinha and Ors. It was a similar matter of contempt proceedings wherein, the Hon'ble Supreme Court made observations and issued directions, as follows:
"19. At the outset, we may observe that we are conscious of the limits within which we can undertake the scrutiny of the steps taken by the Respondents, in these contempt proceedings. The Court is supposed to adopt cautionary approach which would mean that if there is a substantial compliance of the directions given in the judgment, this Court is not supposed to go into the nitty gritty of the various measures taken by the Respondents. It is also correct that only if there is willful and contumacious disobedience of the orders, that the Court would take cognizance. Even when there are two equally consistent possibilities open to the Court, case of contempt is not made out. At the same time, it is permissible for the Court to examine as to whether the steps taken to purportedly comply with the directions of the judgment are in furtherance of its compliance or they tend to defeat the very purpose for which the directions were issued. We can certainly go into the issue CM Nos. 32143/17, 38176/17 & 34777/17 in Cont. Cas (C) 1133/2016 Page 28 of 31 as to whether the Government took certain steps in order to implement the directions of this Court and thereafter withdrew those measures and whether it amounts to non- implementation. Limited inquiry from the aforesaid perspective, into the provisions of 2014 Rules can also be undertaken to find out as to whether those provisions amount to nullifying the effect of the very merger of BSES with BES. As all these aspects have a direct co-relation with the issue as to whether the directions are implemented or not. We are, thus, of the opinion that this Court can indulge in this limited scrutiny as to whether provisions made in 2014 Rules frustrate the effect of the judgment and attempt is to achieve those results which were the arguments raised by the Respondents at the time of hearing C.A. No. 8226- 8227 of 2012 but rejected by this Court. To put it otherwise, we can certainly examine as to whether 2014 Rules are made to implement the judgment or these Rules in effect nullify the result of merger of the two cadres. ........................................................................................................ ....................................................................................................."
In the judgment (supra), the Hon'ble Supreme Court issued various directions also to give effect to the extant rules and the consequential benefits to be accorded and so on. It does not require any elaboration that the Contempt Court imbibes in itself the powers to execute the orders passed by this Court in Writ Jurisdiction and otherwise. Keeping in view the directions of the Division Bench of this Court passed on 20.12.2001 in WP(C) 1611/01 and further directions issued by this Court on 11.4.2017 and 9.8.2017, operation of the notice dated 24.8.2017 issued by DSSSB is stayed and DSSSB is directed to proceed further with the advertisement no. 02/17 dated 7.8.2017 for appointment of teachers of the Directorate of Education, GNCT of Delhi, in the following terms:
CM Nos. 32143/17, 38176/17 & 34777/17 in Cont. Cas (C) 1133/2016 Page 29 of 31(i) A fresh advertisement calling for applications from the eligible candidates will be issued by 20.12.2017;
(ii) Applications so invited shall be received latest by 31.1.2018;
(iii) Processing of applications, arrangements for conduct of written test, final selection and drawl of panel would be completed by 31.8.2018;
(iv) Panel shall be declared and communicated to the Directorate of Education of GNCT of Delhi by 15.9.2018;
(v) A waiting list shall also be created in terms of the directions given on 11.4.2017.
It is further directed that on the receipt of such panel, offer of appointment shall be issued, action for medical and police verification for the selected candidates initiated and posting order issued by the Directorate of Education on or before 31.10.2018. 'The Social Jurist's Application' (CM 32143/2017 ) stands disposed off in the said terms.
11. Coming to 'the Govt.'s Application', Mr. Singh, ld. Standing Counsel has strenuously contended that the order dated 27.9.2017 may be vacated and/or be not continued further, at least, for the present academic session 2017-18, in view of the exigencies detailed and to which effect an affidavit has also come to be filed.
CM Nos. 32143/17, 38176/17 & 34777/17 in Cont. Cas (C) 1133/2016 Page 30 of 31In view of the cause propounded for the relief prayed, the application is allowed to the said limited extent and the order dated 27.9.2017 is relaxed/modified, to such limited extent only. 'The Govt.'s Application' (CM 38176/2017) stands disposed off accordingly.
12. As for 'the Intervenor's Application', the said application, in my considered view, is wholly misconceived, for two reasons. Firstly, the instant proceedings are punitive in nature. Secondly, for any right accruing to the members of the intervenor, the intervenor should agitate such rights before the right forum, in the first instance. 'The Interevenor's Application' (CM No. 34777/2017) is therefore, rejected.
A. K. CHAWLA, J DECEMBER 11, 2017 rc CM Nos. 32143/17, 38176/17 & 34777/17 in Cont. Cas (C) 1133/2016 Page 31 of 31