Central Administrative Tribunal - Delhi
Chandra Mukh Gauba vs Govt. Of N.C.T. Of Delhi Through ... on 29 September, 2008
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No.2625 of 2006
With
O.A.No.371 of 2008
New Delhi this the 29th day of September, 2008
Honble Justice Shri V.K. Bali, Chairman
Honble Shri L.K. Joshi, Vice Chairman (A)
O.A. No.2625 of 2006
Chandra Mukh Gauba
S/o Shri Mahendra Lal Gauba,
R/o House No.51, Sector 18,
Faridabad (Haryana).
(Working as Drawing Teacher in Govt. Boys Senior Secondary School, Tughlakabad Village, New Delhi.
...... Applicant
( By Advocate Shri V.K. Rao)
VERSUS
1. Govt. of N.C.T. of Delhi through Secretary (Education)
Old Secretariat, Civil Lines,
Delhi-110 054.
2. Director of Education,
Govt. of NCT of Delhi,
Old Secretariat, Civil Lines,
Delhi-110 054.
.... Respondents
( By Advocate Mrs. Rashmi Chopra)
O.A. No.371 of 2008
1. Grish Chandra Sharma,
ID No.19860438
R/o B-223, Nand Nikunj,
Ghaziabad.
2. Chandra Paul Singh,
ID No.19840219
R/o Delhi Adm. Flat No.127,
Nimri Colony, Ashok Vihar Phase-IV,
New Delhi.
3. Subash
ID No.19820361
R/o D-47, West Jyoti Ngr. Ext.
Shiv Mandir Marg, Delhi.
4. Brijpal Singh,
ID No.19846001
R/o H.No.281 Gali No.5,
Durga Puri Ext., New Delhi.
5. Jeet Singh,
ID No.19820376
R/o H.No.A-29,
West Jyoti Ngr,
Shahdara, Delhi.
6. Beena Bansal,
ID No.19800287
R/o 67 DDA Flat (Nimri Colony),
Ashok Vihar, Phase IV, Delhi.
7. Daya Rani Vats
ID No.19820525
R/o H.No.427, Village Burari,
Delhi
8. Alka Sharma
ID No.19820111
R/o 8-C, SFS Flats, Site-II,
Gazipur, Delhi.
9. Usha Lal,
ID No.19820161
R/o 260-D Pocket C,
Mayur Vihar, Phase-II, Delhi.
10. Rameshwar Dayal,
ID No.19840257
TGT Drawing, Govt. Boys School,
Janta Flats, Nand Nagari.
11. Mange Ram,
ID No.19820350
Govt. Boys Middle School,
G.T. Road, Shahdara
12. Ravinder Kumar
ID No.19820323
SBV, Dilshad Gdn., Delhi.
...... Applicants
( By Advocate Shri M.K. Bhardwaj)
VERSUS
Govt. of NCT & Ors through :
1. Lt. Governor of Delhi,
Raj Niwas, New Delhi.
2. The Chief Secretary,
Govt. of NCT of Delhi,
New Secretariat, IP Estate,
New Delhi
3. The Secretary (Education),
Govt. of NCT of Delhi,
New Secretariat, IP Estate,
New Delhi
4. The Director of Education,
Govt. of NCT of Delhi,
Old Secretariat, Delhi.
.... Respondents
( By Advocate Shri Vijay Pandita)
O R D E R
Mr. L. K. Joshi, Vice Chairman (A):
We are considering the two OAs in the same order as both of them are grounded in the common facts and points of law.
O.A.2625/20062. The Applicant, a Trained Graduate Teacher (TGT) in Drawing and Painting, under Government of NCT of Delhi (GNCTD) has not been able to make headway in his quest for promotion to the post of Post Graduate Teacher (PGT) in the same discipline in spite of two rounds of litigation before the Tribunal and positive direction in his favour by the Honourable Delhi High Court in CWP Number 1848/2001. The direction given by the High Court are reproduced below:-
Considering the facts and circumstances of the case and the fact that the petitioner is stagnating in the post of TGT, necessary direction is given to the respondent to consider the case of the petitioner for such promotion as against a suitable post of PGT. The case of the petitioner shall now be considered by the respondent within a period of three months from today. The Director of Education, GNCTD, the second Respondent herein, has rejected the case of the Applicant by order dated 29.03.2006, with, inter alia, the following observation:-
The case of Shri Gauba for promotion to the post of PGT (Painting) class XI & XII was considered by the Director of Education and it has been found that since Sh. Gauba does not possess the minimum requisite qualification prescribed in RRs and moreover there is no provision in RRs to relax the essential qualification for the persons belonging to physically handicapped category, hence he cannot be promoted to the post of PGT (Painting) class XI & XII. This order has been challenged in this OA.
3. The Applicant, an orthopaedically handicapped person, is working as TGT under the Respondents. He has the following educational qualifications:-
Certificate awarded for Intermediate Grade Drawing Examination;
Bachelor of Arts having Drawing and Painting as one of the subjects; and Master of Arts in Drawing and Painting.
He was selected as Drawing Teacher under the control of the Respondents with effect from 8.01.1982. The Applicant was granted senior scale with effect from 8.01.1994.
4. In March, 1993, the Applicant submitted a request for inclusion of his name in the eligibility list for promotion to the post of PGT in response to a circular of the Respondents directing all aspirants to the post of PGT to submit requests in writing in the prescribed format for preparation and finalisation of the eligibility list. The Application did not find favour with the Respondents. Several representations were given thereafter by the Applicant, which did not elicit any response from the Respondents. The Applicant, having failed to persuade the Respondents, approached this Tribunal in OA Number 1957/1996. The Tribunal directed the Respondents to consider the representation of the Applicant with the following observation:-
2. While disposing of the representation, respondents shall bear in mind the 15 years of service the petitioner has as well as that he is a physically handicapped person. It goes without saying that his being a decade for PHYSICALLY HANDICAPPED declared by the United Nations, the respondents have a duty to consider the applicants case sympathetically. It is also our view that the Recruitment Rules in this regard give a Discretionary power to relax any of the qualifications prescribed in deserving cases. We may be constrained to read a discretionary power given to respondents coupled with duty to be a MANDATORY PROVISION. The respondents shall consider the case of the petitioner in the light of the above observations. The Applicant gave a detailed representation dated 2.04.1997 to the second Respondent, following the aforesaid order of the Tribunal. This representation was rejected by the Respondents by their communication dated 29.04.2007. Another representation dated 13.05.1997 was rejected by communication dated 23.06.1997.
5. The Applicant once again approached the Tribunal in OA Number 805/1998, challenging the communications dated 29.04.1997 and 23.06.1997. The Respondents pleaded that the subject of drawing and painting was not taught in classes IX and X and that the Applicant did not have the prescribed qualification for teaching classes XI and XII. The Tribunal, on the basis of the above pleading, directed that the Applicant should be considered for promotion to PGT grade, as soon as the posts for teaching classes IX and X became available. The review application of the Applicant was dismissed by the Tribunal by order dated 23.10.2000. The Applicant filed a Civil Writ Petition before the Honourable Delhi High Court, inter alia, on the ground that the Tribunal had not adjudicated the claim of the Applicant. The Writ Petition was disposed off with the observations reproduced below:
We have considered the aforesaid pleas raised by the counsel appearing for the respondent. We are of the considered opinion that the petitioner having worked as TGT and he having the eligibility for being appointed as Drawing teacher for classes XI and XII as per the recruitment rules and even fulfilling the qualifications partly for being appointed as PGT (Drawing) for classes XI and XII, the case of the petitioner should have been considered by the respondent for being appointed against a suitable post. A direction of almost similar nature was issued by the Tribunal as against which the respondent had not preferred any petition in this Court. The petitioner has put in almost 15 years of service as TGT and therefore, naturally an aspirant for promotion to avoid stagnation. The petitioner is also an orthopaedically handicapped teacher to the extent of 40% for which he is also entitled to some sympathetic consideration from the respondents by way of consideration against reserved vacancy or relaxation. Similar observations made by the Tribunal in its order dated 10th March, 1997 has become final and binding as no other writ petition was filed by the respondents against the said order.
Considering the facts and circumstances of the case and the fact that the petitioner is stagnating in the post of TGT, necessary direction is given to the respondent to consider the case of the petitioner for such promotion as against a suitable post of PGT. The case of the petitioner shall now be considered by the respondent within a period of three months from today. Pursuant to this the impugned order dated 29.03.2006 was passed. While assailing the aforementioned order, the following relief has been sought in the OA :
a) quash the impugned order dated 29.03.2006.
b) direct the respondents to implement the rule 7(1) (b) framed by the Respondents themselves for promotion of Drawing Teachers to the post of PGT (Drawing) Classes IX & X in accordance with law, which includes, if possible, by creating a post or in the alternative reserving a post for being an orthopedic physically handicapped person consider the case of applicant and promote him to the post of PGT (Classes IX & X) immediately, and
c) pass any other or further order(s) as this Honble Tribunal may deem fit and proper in the facts and circumstances of the present case. OA 371/2008
6. The twelve Applicants in this OA are TGTs in the subject of Drawing and Painting. They are all post graduate in the subject they are teaching as TGTs. They joined as TGTs between the years 1982 to 1986. The Applicants grievance is that they have not been promoted to the post of PGT in spite of putting in 24 to 26 years of service and possessing post graduate qualifications. One of the Applicants, namely, Shri C.P. Singh (second Applicant) made a representation on 16.10.2000 regarding his grievance about not being promoted, while TGTs, junior to him, had been promoted. This elicited no response from the Respondents. The challenge of the Applicants is to the following:
(i) The present OA is directed against the arbitrary and discriminatory act of the respondent in promoting much juniors of the applicants without considering the applicants for promotion to the post of PGT (Fine Arts) inspite of they are entitlement for the same.
(ii) This OA is further directed against the Statuary Recruitment Rules for the post of PGT Painting/Commercial art/ Graphic/ Sculpture/ Engineering/Drawing notified vide notification dated 10-7-1975, amended by notification dated 25-4-81, 26-2-1996 and 4-11-99 making Graduate eligible and Post Graduate ineligible for the post of Post Graduate Teacher.
7. Before considering the merits of the case on the basis of submissions of the counsel for the parties, a look at the relevant Recruitment Rules, referred to by the Applicant, will be necessary for adjudication of the issue involved. Recruitment Rules for the post of Post Graduate Teacher (Drawing & Geom. & Mech. Drawing) were notified by Notification number F.2 (41/72-S.II dated 27.02.1973. The number of posts was shown to be 141. The qualification prescribed, inter alia, under Rule 7 (1) was :
7 (i) Masters degree in Drawing & Painting with a recognized diploma/ certificate of minimum one year duration. The method of recruitment prescribed in column 10 was 25 per cent by direct recruitment and 75 per cent by promotion, failing which by recruitment (sic.) Column 11 of the Recruitment Rules provided:
11. In case of recruitment by promotion /deputation /transfer grades from which promotion/ deputation/ transfer to be made Sr. Drawing Teacher in the scale of Rs.250-550 possessing qualifications prescribed for direct recruits with regular service of five years in the grade. There was some amendment to the Rules in 1983, followed by further amendment vide Notification number F2(73)/82.8 II dated 02.02.1985. The column 1 of the Recruitment Rules was amended thus:
Column 1 Post Graduate Teacher :
Painting Commercial Art Graphic Sculpture Engineering Drawing Column 7, which was about educational and other qualifications required for direct recruitment, inter alia, provided as follows:
Column 7 I. a) Painting (Class XI & XII) Any one of the following:
i) (a) bachelor in Fine Art; or Higher Secondary*/ Intermediate /Sr. School Certificate Exam, with minimum 5 years (Full time) diploma in Fine Art/Painting /Drawing & Painting from a recognized Institute/ University
ii) Graduate with Drawing & Painting as one of the subjects with minimum 4 year (full time diploma from a recognized institute/ university.
iii) Masters Degree in Fine Art/ Drawing & Painting with a minimum of 2 years (full time) diploma from a recognized institute/ University.
b) Painting (Class IX & X)
i) Higher Secondary*/Intermediate/ Senior School Certificate Exam. with minimum 4 year (full time) Diploma in painting /Fine Art from a recognized Institute/ University; or B.A. with Drawing and Painting/ Art/ Fine Art with minimum 2 years (full time) diploma from a recognized institute; or M.A. in Drawing and painting/ Fine Art from a Recognized university; or B.A. in Drawing and Painting /Fine Art from a recognized university; or B.A. (Hons) in Art & Art Education, Jamia Milia Islamia, New Delhi.
8. The learned counsel for the Applicant contended, at the outset, that the relief sought by the Applicant was in regard to promotion as PGT in Painting for classes IX and X only.
9. As already mentioned, the Applicant had approached this Tribunal in OA Number 1957/1996. The Tribunal in its order dated 10.03.1997 observed thus :
The petitioner is a handicapped person with 40% physical handicap and is holding the post of TGT (Drawing) for the last 15 years in the Department. The ld. Counsel for the respondent says that he is not eligible for the post of PGT since he does not have the Post Graduate Diploma though he has the Post Graduate Degree in the subject. The petitioner has made representation and a legal notice and no reply has been given by the respondents. We would direct the petitioner may give a fresh representation and within two months of the receipt of the same, the respondents shall dispose of the representation with a speaking order and communicate within one week thereafter to the petitioner by Registered Post.
2. While disposing of the representation, respondents shall bear in mind the 15 years of service the petitioner has as well as that he is a physically handicapped person. It goes without saying that his being a decade for PHYSICALLY HANDICAPPED declared by the United Nations, the respondents have a duty to consider the applicants case sympathetically. It is also our view that the Recruitment Rules in this regard give a Discretionary power to relax any of the qualifications prescribed in deserving cases. We may be constrained to read a discretionary power given to respondents coupled with duty to be a MANDATORY PROVISION. The respondents shall consider the case of the petitioner in the light of the above observations. The Applicant made a representation dated 2.04.1997, in which, inter alia, submissions regarding his being physically handicapped and statutory mandate for providing reservation for such persons, as well as his qualification for the post of PGT for teaching classes IX and X were mentioned thus:
6. The original Recruitment rules for the post of PGT (Annexure VI) were amended vide Notification dated 2.2.85 (Annexure VII) as per the amendment, the posts of PGT were divided into five categories viz., Painting Commercial Art Graphic Sculpture, and Engineering Drawing The post of PGT (Painting) was further sub-divided into two categories viz., PGT (Painting) for Class XI and XII and PGT (Painting) for Class IX and X. It is thus noticeable that there is a special provision for the post of PGT for teaching subject of painting for Classes IX and X by PGT who has been specifically and categorically visualized and prescribed.
7. The qualifications now prescribed by Amendment for the post of PGT (Training) for Classes IX and X include M.A. in Drawing and Painting/ Fine Arts from a recognized University. Kindly refer to line 10 in column 7(1)(b) page 2 of Annexure VII.
8. The amended Rules for the post of PGT Painting thus clearly show that I am amply qualified for the said post (PGT) to teach Classes IX and X even though I have been teaching to Classes IX, X, XI and XII during the tenure of my services in the Education Department.
9. Sir, the foot note 2 of Recruitment Rules Annexure VI clarifies that RESERVATIONS and OTHER CONCESSIONS are required to be provided for SC, ST and other special categories of persons in accordance with the orders, policy issued by the Central Government from time to time apply to the post of PGT (Painting) mutatis mutandis. As per orders/ rules in force, 3% of the posts are reserved for physically handicapped staff wherein I am fully covered and thus eligible and entitled.
xxx xxx xxx xxx
12. Sir, the only objection taken by the Dte of Education in its counter reply to the said OA was that I do not possess the prescribed qualifications. Reference has been in this context to the Educational Qualifications prescribed for the post of PGT Painting Classes XI to XII as mentioned in Column 7(1)(a) of Annexure VII. This stand was erroneous and fallacious and rather showed that the Department has not appreciated my claim for entitlement.
13. As already clarified and submitted in paras 6 to 8 supra of this Representation, my claim is for PROMOTION to post of PGT (Painting) Classes IX and X as provided by the rules of the Department Annexure VII. Reference to the last said post and educational qualifications prescribed therefore was conspicuously absent in the counter reply of the department. The representation was rejected by communication dated 29.04.1997, which has been extracted below in extenso:
7 That there are already many other orthopaedically handicapped teachers in this department, who fulfil all the conditions laid down in the Recruitment Rules, educational and otherwise. These teachers are in line for promotion against the posts reserved for the orthopaedically handicapped category.
As there are already handicapped teachers who are fully qualified and available for promotion, the Department is of the view that it will be grave injustice to these handicapped teachers if the representationist is granted promotion after relaxing the Recruitment Rules.
7 That the department is already giving due reservation to the orthopaedically handicapped teachers. In case, the educational qualifications are relaxed to promote Shri C.M. Gauba, it will invite litigation from qualified handicapped teachers who are in line for promotion. Furthermore, many similarly placed teachers will also seek such relaxation.
7 That Shri Gauba may acquire the requisite qualifications as laid down in the Recruitment Rules for promotion to become eligible for the post of Lecturer (Drawing & Painting, etc.) In view of the above, the representation of Shri C.M. Gauba, Drawing Teacher is rejected. This issues with the approval of the Principal Secretary (Education). It is devoted more to the aspect relating to the reservation to the Applicant on the basis of his being physically handicapped. There is only one paragraph regarding the Applicants contention that he is educationally qualified for the post of PGT, as per column 7(1)(b) of the Recruitment Rules. The reply, as quoted above, is evasive and does not meet the contention of the Applicant.
10. The Applicant made another representation on 13.05.1997 stating, inter alia, that :
2. The letter dated 29.4.97 intimating to me rejection of my representation dated 2.4.97 is ill advised, misdirected and in the nature of misconstruing the whole issue. This is reflected in the subject of your letter itself, which terms my representation to be one mainly for relaxation of Recruitment Rules (RRs) which it was NOT.
xxx xxx xxx xxx
4. The above ground of claim to promotion [on grounds of being qualified under provisions of Column 7(1)(b)] has not been dwelt upon at all in your office letter dated 29.4.97. My claim throughout has been based on a right created by RRs where I do possess the prescribed qualification. This was asserted by me through representations and legal notice before going to CAT through application before CAT and finally through representation dated 2.4.97 to your Honour. The Directorate of Education, on the other hand, has always, for reasons I cannot understand, omitted my reference to Col. 7(1)(b) of RRs mentioned above.
5. I am afraid, having been bound by direction to consider my representation and pass a Speaking Order thereon, as per order dated 10.3.97 of CAT, you office could not have rejected my representation without considering my title for promotion in terms of Col.7(1)(b) of RRs.
6. Instead of considering the main aspect of my representation based on assertion of right to promotion u/ Col. 7(1)(b) of RRs, your office has tried to skirt the issue and short shrift the claim just by rejecting the suggestions of CAT to consider relaxation of Rules, which would not be required upon enforcement of Col. 7(1)(b) of RRs in my case. This approach to scuttle my JUST CLAIM UNDER existing RRs by deliberate avoiding of main ground is in utter and willful disregard and total violations of the letter and spirit of the directions in Para (1) of the order dated 10.3.97 of CAT and is not desirable under the Contempt of Courts Act, 1971. (emphasis supplied) This representation too was rejected by order dated 23.06.1997 on the grounds that :
7 That Drawing Teachers are appointed on the basis of their qualification to teach class IX and X. Lecturers with higher qualification are required to teach Class XII and XI for which purpose, the applicant is not qualified. If the post of Lecturer is filled up by some one who is not qualified to teach Class XII and XI, and only Class X and XI (which can be done by a Drg. Tr.), then the students of Class XII and XI will be the losers.
It is pertinent to mention here that the qualification referred to by the applicant at 7.1.b is the same as is the essential qualification for the lower post of Drawing Teacher i.e., the post in which the applicant is presently working. And the qualification at 7.1.b is only to teach Class IX and X which the Drg Tr is already competent to do so, hence making it redundant.
7 As regards the reservation for Physically Handicapped, it is clarified that the Cadre of Lecturer is one cadre with one seniority list. In this cadre, there are however, lecturers of different subjects. Each subject does not have a separate cadre at Lecturer level.
Hence there is no change in the previous position of the Department. The order dated 23.06.1997 was challenged before the Tribunal in OA Number 805/1998. The Respondents, in the reply affidavit filed in response to the Original Application stated that:
1. . Since there is no post of PGT (Painting) for Class IX and X in the Directorate of Education, G.N.C.T. of Delhi and moreover, as per School Syllbus prescribed for the yhese (sic) classes ther(e) is no subject (Drawing and/OR painting) taught in schools, so there is no post of PGT (Drawing & Painting) (Class IX and X). There are posts of PGT (Drg & Ptg.) for class XI and XII and promotions are made to the post from TGT for which the applicant is not duly qualified as he is not possessing minimum prescribed qualification. The minimum educational qualification for PGT (Painting) to teach class XI & XII is Master degree in Fine Art/Drg.& Ptg. with a minimum of 2 years (Full Time) diploma from a recognised institution/University. Where as the applicant is only M.A. (Drg & Ptg.) and does not possess the necessary two year (FULL TIME) diploma. So under these circumstances his name is not considered for inclusion in promotion list PGT (Drg & Ptg) (Class XI & XII). Further the drawing teacher who are in feeder cadre of PGT (Drg & Ptg) are only competent and qualified to teach class IX and X. Further the benefit of reservation of 3% for physically handicapped is given to those who are duly qualified for the same. The case of the applicant was considered under the light of the directions of this Honble Tribunal and a speaking order/reply has been communicated to the applicant and aggrieved by that order/reply the applicant has moved the present O.A. Further in reply to paragaph 4.13. of the OA it was stated that :
4.13 This para is not correctly stated as since there is no post of PGT (Painting) (Class IX & X) and no such subject is taught in classes of IX & X so there is no question of calling the applications for eligibility list. Moreover the applicant submitted his application for PGT (Drg. & Ptg) and not for PGT (Painting) (Classes IX &X). The Tribunal disposed of the OA, with following directions:
4. As soon as the post of PGT (Painting) for Classes IX and X becomes available, respondents should consider applicants case for promotion to the said post in accordance with rules and instructions. A Review Application was rejected by an order dated 23.10.2000.
11. The Applicant approached the Honourable Delhi High Court in WP (C) 1848 of 2001, which was decided by judgment and order dated 13.01.2006. The observation of the Honourable Delhi High Court in paragraph is reproduced below:-
We have considered the aforesaid pleas raised by the counsel appearing for the respondent. We are of the considered opinion that the petitioner having worked as TGT and he having the eligibility for being appointed as Drawing teacher for Classes XI and XII as per the recruitment rules and even fulfilling the qualifications partly for being appointed as PGT (Drawing) for classes XI and XII, the case of the petitioner should have been considered by the respondent for being appointed against a suitable post. A direction of almost nature was issued by the Tribunal as against which the respondent had not preferred any petition in this court. The petitioner has put in almost 15 years of service as TGT and therefore, naturally an aspirant for promotion to avoid stagnation. The petitioner is also an orthopaedically handicapped teacher to the extent of 40% for which he is also entitled to some sympathetic consideration from the respondents by way of consideration against reserved vacancy or relaxation. Similar observations made by the Tribunal in its order dated 10th March 1997 has become final and binding as no other writ petition was filed by the respondents against the said order. The following direction was given:
Considering the facts and circumstances of the case and the fact that the petitioner is stagnating in the post of TGT, necessary direction is given to the respondent to consider the case of the petitioner for such promotion as against a suitable post of PGT. The case of the petitioner shall now be considered by the respondent within a period of three months from today. (emphasis supplied) The direction given by the Honourable Delhi High Court is clear and unambiguous especially in the light of the observations made in paragraph 3 of the judgment and order, which has been reproduced above in this paragraph. The Respondents, harping on the same argument that there was no sanctioned port for PGT (Painting) in class IX & X and that the Applicant was not eligible for the post of PGT (Drawing and Painting) to classes XI and XII, rejected the case of the Applicant.
12. In his submissions the learned counsel for the Applicant has emphasized that 141 posts had been mentioned in the Recruitment Rules of 1973, which number has not changed till now by any of the amendments of 1983 and 1985. The Respondents cannot, therefore, state that posts for PGT for class IX and X are not available, because the sanctioned 141 posts are not exclusively for PGT (Painting) teaching classes XI and XII. These are total number of posts of PGTs, which should include both categories of PGTs i.e. those teaching classes IX and X and those teaching classes XI and XII. It has also been contended that the Respondents stand in various communications rejecting the representations of the Applicant has been different and inconsistent. In the communication dated 29.04.1997, in pursuance of the direction of the Tribunal in OA Number 1957/1996 in order dated 10.03.1997, which has been quoted in the preceding paragraph, the reply has been evasive as regards educational qualification. We have already noted above in this regard that there is no mention of Rule 7(1)(b) and about there being no posts for PGT (Drawing and Painting) for classes IX and X. The reply dated 23.06.1997 to the representation dated 13.05.1997, adverted to in the preceding paragraphs, is a piece of masterly evasion and vagueness. It is amazing that the Respondents should themselves term the Column 7(1)(b) in the Recruitment Rules of 1985 as redundant. This is a specific provision in the Rules. The relief claimed in OA 805/1998 was specifically for promotion to the post of PGT (Painting) as reproduced below:
a) Respondents to include and enlist the name of the Applicant in the Eligibility List for promotion to the post of P.G.T. (Painting) for classes IX & X in accordance with the Recruitment Rules (Annex P-2) and; The Applicant resorted to obfuscation in OA 805/1998, as indeed in the instant OA that the posts have not been sanctioned for PGT (Painting) for classes IX and X. The Recruitment Rules provide for two classes of PGTs, teaching classes IX and X and classes XI and XII. Total number of posts for PGTs teaching Painting, Commercial Art, Graphic, Sculpture and Engineering drawing is 141. There has to be share of PGTs for the subject of Painting in which PGT (classes IX and X) and PGT (classes XI and XII) have been provided. There is no stipulation in the Rules that it is subject to introduction of the subject of Painting in classes IX and X. The Respondents, in the reply affidavit in the instant case have taken the plea that the subject of Painting is not taught in classes IX and X. Paragraph 4.4 of the reply affidavit is reproduced below:
4.4 That the contents of Para 4.4 are admitted to the extent that the applicant was granted senior scale vide office order No.EO/None (s)-19/DS/94/DDE(S)/2449-52 dated 27.09.1994 w.e.f. 08.01.2004. The senior Scale was granted to the applicant in lieu of promotion as he did not possess the essential qualifications for PGT (Drawing) Classes IX & X and moreover, there exists no provision in the Recruitment Rules to relax the essential minimum qualifications for the persons belonging to physically handicapped category. (emphasis supplied) Paragraph 4.10. of the reply affidavit reads thus:
4.10 That in reply to the contents of Para 4.10, it is submitted that assuming nor admitting that there is a provision created for PGT (Painting) for class IX & X, the applicant cannot be promoted as PGT (Painting) for class IX & X as there is no sanction post of PGT (Painting) for class IX & X as painting is not a subject taught to class IX & X as per the school syllabus. We are at a loss to understand as to what are the qualifications prescribed for PGT (Drawing) for classes IX and X as there is no mention of this subject in the Recruitment Rules. In paragraph 4.10, the reply affidavit states that there is no sanctioned post of PGT (Painting) for class IX and X, as this subject is not taught in those classes. Paragraph 4.12 again states:
4.12 That the contents of Para 4.12 are based on summarizes (sic) and conjectures and thus cannot be sustained. It is wrong & denied that the very existence of rule pre-supposes the existence of sanctioned post.
Admittedly there exists no sanctioned post of PGT (Painting) for class IX & X and even otherwise the applicant cannot be promoted to the said post not possessing the minimum essential qualification required for the said post. The Respondents have not produced any document to show the distribution of 141 posts of PGT for various specialties like Painting, Sculpture, etc. This argument about Painting not being a subject in classes IX and X was never raised before. In paragraph 4.4, quoted above, it is mentioned that the Applicant does not possess qualification to teach PGT (Drawing) to classes IX and X. We advert again to the letter dated 23.06.1997, already quoted, which states that the qualification at 7.1.b is only to teach class IX and X, which the drawing teacher is already competent to do so, hence making it redundant. Which statement is to be believed? This is obfuscation of monumental proportions. There is serious conceptual problem and the Respondents seem to be at a loss for grounds to reject the Applicants pleas. It has to be kept in mind that these Recruitment Rules have been in existence since 1985 i.e. for the last 23 years. We are not willing to believe that no one has noticed this incongruity that Rules have been framed for recruitment to a post, which does not exist. The applicant has been contesting his case for the past 11 years. In these years also, the Respondents could not make this minor correction in the Recruitment Rules as to delete the provision of PGT (for classes IX and X) from column 7(1)(b) of the Recruitment Rules. Raising this point about the subject of Painting not being taught in classes IX and X, especially as it has not been raised in rejecting the representations of the Applicant twice in the past as well as not mentioning this point in the reply affidavits in the OAs 1957/1997 and 805/1998, places a question mark regarding this submission. The Respondents have not even annexed a copy of the syllabus for classes IX and X to substantiate this point, especially considering that this has been raised for the first time in this on-going litigation. This point was not also raised before the Honourable Delhi High Court in the Writ Petition (C) 1848 of 2001.
13. It is seen from the Recruitment Rules of 1973 and 1983 that there was no provision for PGT for classes IX and X before 1985. It was only in 1985 that this provision has been made. In ground (e) of the Writ Petition (page 269 of the paper book), the following has been mentioned:
e) The Ld. Tribunal ignored the fact that the Recruitment Rules for the Post in question were notified originally in the year 1973, at which stage there was no post of P.G.T. provided for Classes 9th and 10th. In the year 1985, the Delhi Administrator in his discretion and wisdom apparently in the light of Syllabus enforced by C.B.S.E. amended the Recruitment Rules so as to specifically create and provide for. inter alia posts of P.G.T. (Painting) for Classes IX and X as well. This was a conscious and deliberate decision taken for specific purposes in the face of Past Experience giving rise to the need for such post. The fact that Respondents continue to harp on the old rules that the Post of PGT is meant only for Classes 11th and 12th shows that they are bent upon to deny the benefit to Promotional Avenue provided by the amended Rules, even while utilizing the Services of the Petitioner for teaching such subjects to such Senior Classes. One wonders if the amended rules are not to be enforced, what purpose they would have served. OA 371/2008
14. Although there are no pleadings in this OA regarding eligibility of Applicants for PGT for classes IX and X, yet the learned counsel for the Applicants in this OA, at the outset contended that the Applicants are qualified for PGT (Painting) classes IX and X by adopting the argument of the Applicant in OA 2625/2006.
15. The learned counsel for the Applicants has questioned the validity of column 7.1 (a) of the Recruitment Rules on the ground that while those possessing degree of Bachelor of Fine Arts are eligible for the post of PGT (Painting) for classes XI and XII, those with Masters Degree in Fine Art/Drawing and Painting have to additionally possess a minimum two years (Full Time) diploma from a recognized institute/university. The argument is that graduate degree has been given superiority over the post graduate degree. This argument is, of course, at once seen to be flawed because, as stated by the Respondents in the reply affidavit the degree of Bachelor of Fine Arts (BFA) is of five years duration after 10+2 and in this course the students learn exclusively about fine Arts for 5 years. It can not be simplistically held to be inferior to the post graduate degree. It would be, therefore, entirely the discretion of the executive to hold that this degree of BFA would be sufficient qualification, on its own, to be eligible for PGT (Painting) to teach classes XI and XII.
16. The Applicants in both the OAs have claimed entitlement to the post of PGT from the date of the judgment and order of the Honourable Delhi High Court i.e. 13.01.2006.
17. To recapitulate briefly, the Recruitment Rules, as amended in 1985, provide for the post of PGT (Painting) for classes IX and X. The qualification, as laid down in column 7(1)(b) for this post is MA (Drawing and Painting). There are 141 posts sanctioned for the omnibus disciplines of Paintings etc. as provided in the Recruitment Rules. There is no mention in the Rules that the Rules for PGT for classes IX and X would be subject to sanction of these posts. The contention of the Respondents that the subject of Painting is not taught in classes IX and X has been raised for the first time in this OA and has not been raised in the past, which makes it a doubtful proposition. The Recruitment Rules, as amended in 1985, provide for the post of PGT (Painting) specifically for classes IX and X, without any conditions attached to it. These are posts of PGT in existence, which also do not provide that these would be available for PGT for classes IX and X only from a later date to be notified by the Government. The qualification for PGT (Painting) for classes IX and X is post graduate degree in Drawing and Painting. The Applicant in OA 2625/2006 has been teaching students of classes IX and X and even classes XI and XII. The Respondents may well say that the Applicants are merely teaching Drawing and not Painting, although in all fairness this point has not been raised. However, the Respondents have used PGT (Painting) and PGT (Drawing) in their reply affidavits at different times as can be discerned from the paragraph 4.13 quoted at page 17, paragraph 4.4 at pages 20 and 21 of the Respondents reply affidavits. All we can say is that the Respondents are as much bound to follow Rules, as the Applicants. These Rules have been in existence now for 23 years. The Honourable Delhi High Court has given imperative direction to consider the case of Shri C.M. Gauba, the Applicant in OA 2625/2006, leaving no discretion to the Respondents. The Respondents obstinacy seems to be uncalled for.
18. Averments have been made about the promotion of the Applicant in OA 2625/2006 on the ground of being physically handicapped. We have not considered this aspect as it was not pressed during arguments.
19. On the basis of the above, both the OAs succeed. We direct that the Applicants should be considered for promotion to the post of PGT (Painting) for classes IX and X by the Screening Committee, which should be convened for this purpose on the basis of their record and keeping our observations in the preceding paragraphs in view. They will be eligible for promotion, if found fit on the basis of their record, from the date of the judgement and order of the Honourable Delhi High Court i.e. 13.01.2006. They will not be eligible for back wages. These directions shall be complied with within four months of receipt of a certified copy of this order. The Respondents will also pay cost of Rs.10000/- (Rupees Ten Thousand only) to the Applicant in OA 2625/2006. However, there will be no orders as to costs in OA 371/2008.
(LK. Joshi) (V.K. Bali) Vice Chairman (A) Chairman /dkm/