Delhi High Court
Ms. Sangeeta. vs The Delhi United Christian Sr. Sec. ... on 17 May, 2024
Author: Tushar Rao Gedela
Bench: Tushar Rao Gedela
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 17.05.2024
+ W.P.(C) 233/2022 & CM APPL. 637/2022
MS. SANGEETA ..... Petitioner
versus
THE DELHI UNITED CHRISTIAN
SR. SEC. SCHOOL & ANR ..... Respondents
Advocates who appeared in this case:
For the Petitioner : Mr. S.C. Sagar, Mr. Naeem Ahmed and
Ms. Swati, Advocates
For the Respondent : Mr. D.K. Chaubey, Advocate for R-1.
Mr. V. Balaji and Mr. Nizamuddin,
Advocates for R-2/DoE.
CORAM:
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
JUDGMENT
TUSHAR RAO GEDELA, J. (ORAL) [ The proceeding has been conducted through Hybrid mode ]
1. This is a writ petition under Articles 226 and 227 of the Constitution of India inter alia seeking setting aside of the impugned order dated 07.12.2021 passed by respondent no.2 rejecting the claim for release of grant-in-aid in respect of the petitioner working as TGT (Hindi) with respondent no.1. Other consequential reliefs have also been sought.
2. The respondent no.1/school offered an appointment of TGT Signature Not Verified Digitally Signed By:VINOD KUMAR W.P.(C) 233/2022 Page 1 of 11 Signing Date:29.05.2024 11:17:23 (Hindi) by the Selection Committee in the Pay Scale of Rs.9300-34800/- with a Grade Pay of Rs.4600/- on 04.03.2020. Pursuant thereto, the petitioner had applied for the said post by submitting all her requisite testimonials and credentials. Alongwith the application, she had also tendered her past experience certificates issued by the previous institutions. The petitioner was inducted into the service on 05.03.2020 with respondent no.1, which is a Government Aided School, receiving 95% aid from the GNCT of Delhi i.e. respondent no.2.
3. While the petitioner had commenced working, on the question of non-release of her salary w.e.f. the date of joining i.e. 05.03.2020, the petitioner had made a representation dated 28.11.2021 to respondent no.1 for release of her salaries. It is stated that the said representation was forwarded to the respondent no.2/DoE, GNCT of Delhi for release of hear grant-in-aid in respect of the petitioner. However, by the impugned order dated 07.12.2021, the respondent no.2 rejected the claim for grant-in-aid in respect of the petitioner. The said letter was further transmitted to the petitioner, rejecting the said claim by the respondent no.1/school vide the impugned order dated 09.12.2021.
4. It is this action of the respondent no.1 as also respondent no.2 that is challenged in the present petition.
5. This Court has heard the arguments of learned counsel for the petitioner as also respondent no.2/DoE and has also perused the documents on record.
6. The primary controversy which appears to have emanated in the present writ petition is in respect of the marks which were awarded to the petitioner for the purposes of experience to be calculated for the post Signature Not Verified Digitally Signed By:VINOD KUMAR W.P.(C) 233/2022 Page 2 of 11 Signing Date:29.05.2024 11:17:23 of TGT (Hindi). According to Mr. V. Balaji, learned counsel for the respondent no.2/DoE, for the purpose of selecting a candidate, out of a total marks of 100, marks have been distributed to various categories according to the qualification, experience and other testimonials.
7. It is not disputed by the respondent that the components of such calculation, other than experience, are not the grounds of rejection. The only ground for rejection is that out of total marks of 10 to be allotted for the experience, the petitioner has been granted 7 marks by the school, contrary to the experience certificate which has been submitted to the DoE.
8. According to Mr. Balaji, the petitioner/respondent no.1-school while tendering all the testimonials and other documents of the petitioner had submitted the experience certificate issued by the previous institution which indicated that the petitioner had an experience of 06 years and 01 month and ½ month only i.e., w.e.f. 01.12.2011 to 15.01.2018. In case the said experience is counted, going by the circular of respondent no. 2, weightage for teaching experience that of every year is to be given 1 mark, culminating into a total of 6 marks for the experience that the petitioner is stated to have gained in the previous institution.
9. As against that, learned counsel for the petitioner had invited attention of this Court to page 36, which is the experience certificate issued by one Sant Hari Dass Sr. Sec, Public School dated 17.03.2021 whereby it was certified that the petitioner had been working in their school as TGT (Hindi) w.e.f. 01.12.2011 through till 31.12.2018 in the pay scale of Rs.9300-34800/- with a Grade Pay of Rs.4600/-.
Signature Not Verified Digitally Signed By:VINOD KUMAR W.P.(C) 233/2022 Page 3 of 11 Signing Date:29.05.2024 11:17:2310. It is asserted by learned counsel for the petitioner that this experience certificate was infact submitted alongwith her application and infact was also received by the Deputy Direction of Education, Zone-22. This he asserts by indicating the signatures and stamp on the said document.
11. It appears that there is a divergence between the documents referred to by the petitioner on one hand and the statement contained in counter affidavit in para (iv)(a) of the Preliminary Submissions in the counter affidavit. It would be relevant to reproduce the said paragraph, which is as under:-
"(iv) The reply of the School was once again examined and was not found satisfactory where after the Manager/Principal of Respondent No.1 School vide letter dated 24.09.2021 was again directed to submit clarifications, broadly covering the following issues:
a. On the date of interview the Experience Certificate submitted by the Petitioner was for a period of 06 years & 01 and half month only i.e. 01.12.2011 to 15.01.2018, then how the Petitioner was given 07 marks by the selection committee?...
12. From the above, the respondent no.2 appears to be correct that the total experience the petitioner seems to have gained is only 6 years. However, what has not been explained is the letter at page 36 which has been enclosed by the petitioner alongwith the writ petition, which indicates the experience of a little more than 7 years. That apart, apart from a mere bald averment in sub-para (a) of para (iv) of the Preliminary Submissions, no document worth its name has been placed on record to indicate what is the correct position.
13. On that basis, keeping in view the records before this Court, this Court is unable to agree with the contentions raised by the respondent Signature Not Verified Digitally Signed By:VINOD KUMAR W.P.(C) 233/2022 Page 4 of 11 Signing Date:29.05.2024 11:17:23 no.2/DoE.
14. Though not urged in the grounds, this Court has also considered the Order dated 19.12.2013 issued by the Directorate of Education in respect of marking scheme for recruitment of teachers in aided schools regarding reduction of marks of interview from 20 to 05. It would be apposite to extract the said order hereunder:-
GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI DIRECTORATE OF EDUCATION OLD SECRETARIAT, DELHI 110054 No.F. DE/15/Act-III/2013/2663-70 Dated: 19/12/2013 ORDER Subject: Marking scheme for recruitment of teachers in aided schools- regarding reduction of marks of interview from 20 to 05.
In supersession of all previous orders regarding marking scheme for the recruitment of teacher of all categories, the following new marking scheme duly approved by the competent authority is to be followed for awarding marks of educational qualification, experience and interview:
1. For Assistant Teacher
a) For Sr. Sec./JBT Candidates.
Post Secondary Sr. JBT/ Addl. Experience CTET Total Interview Grand Secondary ETT Qualification Total BA/B.Com/B.S c./MA/M.Sc./M. Phil/Ph.D. Asstt. 10 20 30 10 10 15 95 05 100 Teacher
2. For T.G.T Post Sec. Sr. Graduate B.Ed. Addl. Experience CTET Total Interview Grand Sec. BA/B.Com/ Qualification Total B.Sc. BA/B.Com/B.S c./MA/M.Sc./M. Phil/Ph.D. TGT - 10 30 20 10 10 15 95 05 100
3. For P.G.T. Post Sec. Sr. Gradu B.Ed. Post Addl. Experience Total Interview Grand Sec. ate Graduate Qualification Total BA/B. MA/M.Sc. MPhil/Ph.D Com/B etc. .Sc.
PGT - 10 15 20 30 10 10 95 05 100 The marking scheme as mentioned in this order shall be implemented as per Signature Not Verified Digitally Signed By:VINOD KUMAR W.P.(C) 233/2022 Page 5 of 11 Signing Date:29.05.2024 11:17:23 clarification given below:
1. Marks for interview will be 05 only.
2. Marks for additional qualification would be given for next immediate higher qualification above the essential one and that too in the concerned subject relevant to the concerned post. No marks would be awarded for additional qualification of M.Ed.
3. Marks would be given on 10 point scale up to first decimal place. No rounding off, of the marks would be done for e.g. if a candidate secured 56.5% marks at any level, then on 10 point scale he/she would be awarded 5.6 marks. Similarly on 20 point Scale marks would be calculated accordingly.
4. Weightage for teaching experience would be given@ one mark for each year of teaching experience, provided it pertains to feeder cadre, subject to a maximum of 10 marks.
a) For PGT- Teaching Experience as TGT and PGT.
For TGT- Teaching experience as Asstt. Teacher and TGT. For Asstt. Teacher- Teaching experience as Asstt. Teacher only. No weightage would be given even if someone possesses experience certificate of TGT of PGT.
b) No advantage of experience would be given to adhoc/contract teacher.
c) The experience certificate must mention the post held and Scale of pay given to person concerned. It must be countersigned by concerned Education Officer.
This marking scheme shall be effective from the date of issue.
This issues with the prior approval of Principal Secretary (Education).
(AMIT SINGLA) DIRECTOR (EDUCATION)"
15. A perusal of the said order indicates that for the purpose of experience, the maximum marks are 10. That apart, according to Clause
4 of the said order, the weightage for teaching experience would be given at the rate of one mark for each year of teaching experience, subject to maximum of 10 marks, provided the said induction pertains to feeder cadre.
16. What is conspicuous by its absence is the cutoff marks below which a person's experience would not be counted towards entitlement for the induction into the post of PGT for any subject. Mr. Balaji has not been able to show any Rule, Regulation or any Circular which provides for any cutoff in any such experience. Even if this Court were to, for a moment, assume that the respondents are correct in their calculations, Signature Not Verified Digitally Signed By:VINOD KUMAR W.P.(C) 233/2022 Page 6 of 11 Signing Date:29.05.2024 11:17:23 there being no mandate in the Rule, Law or Regulation of a minimum percentage or a minimum cutoff, the marks whether they are 6 or 7 would become irrelevant.
17. In that view of the matter too, even this Court were to assume that the respondents are correct and the petitioner had only 6 years of experience, it is unfathomable as to on what grounds the petitioner would still be disentitled or disqualified for the said post.
18. Apart from that, learned counsel appearing for respondent no.1 draws attention of this Court to page 27 of its counter affidavit which is Annexure R-6 and the circular dated 07.02.2014 issued by Directorate of Education, in pursuance of the judgment of the learned Division Bench of this Court in Queen Mary's School vs. Union of India and B.M. Gange Girls Se. Sec. School vs. Union of India and Anr. bearing W.P.(C) 2894/1992 and W.P.(C) 4291/1993, respectively.
19. The said circular is extracted hereunder:-
"GOVT. OF NATIONAL CAPITAL TERRITORY OF DELHI DIRECTORATE OF EDUCATION (ACT II BRANCH) OLD SECRETARIAT DELHI -110054 No. F.DE.15 (Misc.)/ Act-II/2-0 14/224-239 Dated:07.02.2014 CIRCULAR Sub: Implementation of Hon'ble High Court of Delhi order passed on 21.11.2011 in W.P. (C ) No. 2845 of 1992 and W.P. (C ) No. 4291 I 1993 in the matter of Queen Mary's School Vs. UOI and B.M. Gange Girls Sr. Secondary School Vs. Union of India & Anr., respectively.
WHEREAS, the operative part of the order dated 21. 11.20 11 passed by Hon 'ble High Court of Delhi in Writ Petition (Civil) No. 2845 of 1992 and Writ Petition (Civil) No. 4291 I 1993 in the matter of Queen Mary's School vs. UOI and B.M. Gange Girls Sr. Sec. School vs. Union of India & Anr. respectively its as under:-
"We hold and declare that Rules 47, 64 (l)(b)(e) and 96 of Delhi Signature Not Verified Digitally Signed By:VINOD KUMAR W.P.(C) 233/2022 Page 7 of 11 Signing Date:29.05.2024 11:17:23 School Education Rules, are applicable to aided minority schools. Rule 64 (l)(g) is held inapplicable to the extent that it mandates such schools to fill the posts "without any discrimination or delay as per the Recruitment Rules prescribed for such posts". It is clarified that the managements of such aided minority schools shall adhere to the Recruitment Rules, and other general norms, to the extent they prescribe qualifications, experience age, and other such criteria, for appointment (as they are regulatory)".
NOW, THEREFORE, all the Deputy Directors of Education of Districts and directed to ensure the compliance of the aforesaid directions of the Hon'ble High Court of Delhi, subject to the outcome of the Review Petition, if any and also to ensure that henceforth, no surplus employee/employees of Govt. Aided Non-Minority Schools, rendered surplus due to closure of a school/class or change in post fixation due to revised enrolment, shall be absorbed in Govt. Aided Minority School.
Sd/-
(PADMINI SINGLA) DIRECTOR (EDUCATION) To, The Deputy Director of Education, All the Districts under Directorate of Education, Govt. of NCT of Delhi, Delhi/New Delhi"
20. It is beyond cavil that by the aforesaid judgments, the learned Division Bench of this Court had declared Rule 47, 64 (1)(b)(e) and 96 of DSER, 1973 are applicable to aided minority schools whereas Rule 64(1)(g) is held to be inapplicable to the extent that it mandates such schools to fill the posts "without any discrimination or delay as per the Recruitment Rules prescribed for such posts". It was further clarified in the judgment that the management of such aided minority schools shall adhere to the Recruitment Rules and other general norms to the extent they prescribe qualifications, experience, age and other such criteria for appointment.
21. The aforesaid circular and the issue as to whether the said circular would bind the minority institutions is concerned, learned Division Bench of this Court in Kiran Jain v. Government of NCT of Delhi and Signature Not Verified Digitally Signed By:VINOD KUMAR W.P.(C) 233/2022 Page 8 of 11 Signing Date:29.05.2024 11:17:23 Others in LPA No. 691/2019 and batch, rendering the judgment on 10.10.2023 held as under:-
"54. In the backdrop of the decisions referred to hereinabove, the only question now left for this Court to consider is whether the DoE could've rejected the appointment of the Appellant on the ground that the Appellant was Evaluated in consonance with the Evaluation Matrix as against the Circular. Accordingly, a preliminary question before this Court is whether the Circular issued by the DoE could be enforced against Respondent No. 3?
55. Undoubtedly, the Circular issued by Respondent No. 2 formulated a marking scheme/evaluation matrix to be followed for the recruitment of teachers in aided schools. In this regard, it would be necessary to analyze the scope of State interference in relation to appointment and selection of teachers vis-à-vis a minority institution.
56. Pertinently, this question has been repeatedly considered by the Supreme Court in a catena of decisions. In TMA Pai (Supra), the Supreme Court outlined 5 (five) distinct facets of the right to 'establish and administer' under Article 30(1) of the Constitution of India which included inter alia the right to appoint staff (teaching as well as non-teaching). Thereafter in Brahmo Samaj Education Society (Supra) the right to prescribe requisite qualifications for the appointment of teachers was reiterated however, the Supreme Court stressed the importance of independence in the manner of selection of the teachers amongst such qualified candidates as such autonomy was observed to constitute a fundamental part of the academic and administrative autonomy of an aided minority institution enshrined under Article 30(1) of the Constitution of India.
57. This view has been recapitulated in Manager, Corporate Educational Agency (Supra) wherein the Supreme Court has categorically observed that the propriety or rationality of process of choice cannot be tested vis-à-vis the appointment of a teacher in a minority institution once the candidate is found to have satisfied the eligibility criteria and possessed of the requisite qualifications. In this context, the autonomy of the process of appointment of a qualified person by a minority institution was underscored by this Court in Birpal Singh (Supra).
58. Accordingly, this Court is of the considered opinion that the Circular issued by Respondent No. 2 has inherently interfered with the management's control over Respondent No. 3 to the extent that the State would effectively wield an all-pervasive control over the selection of teachers of an aided minority institution. The Circular Signature Not Verified Digitally Signed By:VINOD KUMAR W.P.(C) 233/2022 Page 9 of 11 Signing Date:29.05.2024 11:17:23 by prescribing the marking scheme, has resulted in the State transgressing from prescription of the eligibility standards and/or requisite qualifications to also then decide the ranking of qualified persons and impliedly exercise control over the selection and appointment of qualified persons which would be contrary to settled law. The Supreme Court has repeatedly held the selection and appointment of qualified teachers to be an intrinsic limb of the autonomy of a minority educational institution and its rights enshrined under Article 30(1) of the Constitution of India. Moreover, the Circular would then give the DoE the ability to test propriety or rationality of the process of choice qua the appointment of a qualified candidate which the Supreme Court and this Court has held to be an independent process, free from even judicial scrutiny."
59. xxx
60. Therefore, following the principles of law culled out above, we have no hesitation in holding that the Ld. Single Judge has erred in dismissing the Writ Petition by failing to appreciate that the prescription of a marking scheme / evaluation matrix must undoubtedly be viewed as interference with the manner of selection of qualified candidates and not merely the prescription of minimum standards of teaching in furtherance of an ever evolving and dynamic education system. Accordingly, the Circular and its rigors cannot be applied to a minority institution such as Respondent No. 3 under the garb of a regulatory framework as the Circular and the actions following from the Circular would directly impinge on the rights of a minority institution which is protected under Article 30(1) of the Constitution of India and, accordingly, free to evolve its own marking scheme / evaluation matrix to evaluate qualified candidates.
61. Accordingly, as we find in favor of the Appellant on all counts, the Impugned Judgment of the Ld. Single Judge is hereby set aside and the LPAs are allowed."
22. A perusal of the aforesaid judgment would also categorically establish that the circular regarding the marking scheme has been held to be inapplicable in the case of minority institutions. It is not disputed that respondent no.1 is a minority institution. If that is so, the aforesaid judgment of Kiran Jain (supra) shall apply on all fours to the case of the petitioner too.
23. Thus, having regard to the fact that in any case, this Court has Signature Not Verified Digitally Signed By:VINOD KUMAR W.P.(C) 233/2022 Page 10 of 11 Signing Date:29.05.2024 11:17:23 observed that there is no cutoff apart from the fact that the circular itself would be inapplicable in terms of the judgment of the learned Division Bench in Kiran Jain (supra), the finding in respect of as to whether the petitioner had obtained 6 marks or whether she was correctly given 7 marks, would become an exercise in futility.
24. In that view of the matter, the writ petition is allowed. The impugned orders dated 07.12.2021 as also 09.12.2021 of respondent no.2 and respondent no.1, respectively are quashed and set aside.
25. Resultantly, the petitioner shall be entitled to salary and other pay allowances and any other financial benefits flowing as a consequence of this order, w.e.f. 05.03.2020 when she was deprived of all financial benefits. In respect thereto, the respondent no.2 shall release the grant- in-aid qua petitioner, to the extent law obligates it, within eight weeks from date of receipt of this order, failing which the respondent no.2 shall also be responsible for paying interest @ 6% per annum. The respondent no.1 shall also release their share of the salary w.e.f. the same date i.e. 05.03.2020 to the petitioner within the same timeline, failing which the interest @ 6% per annum shall be attracted.
26. The respondent are directed to ensure that the seniority of the petitioner while in service, shall not be reduced or taken to her detriment and shall be maintained in accordance with law.
27. The petition alongwith pending applications is disposed of without any order as to costs.
TUSHAR RAO GEDELA, J.
MAY 17, 2024 Aj Signature Not Verified Digitally Signed By:VINOD KUMAR W.P.(C) 233/2022 Page 11 of 11 Signing Date:29.05.2024 11:17:23