Delhi High Court
Ashok Kumar Bhatt & Anr. vs Lt. Governor, Gnctd & Ors. on 22 September, 2011
Author: S. Muralidhar
Bench: S. Muralidhar
IN THE HIGH COURT OF DELHI AT NEW DELHI
W. P. (C) 1838/1994
Reserved on: August 24, 2011
Decision on: September 22, 2011
ASHOK KUMAR BHATT & ANR. ..... Petitioners
Through: Mr. G.D. Gupta, Senior Advocate with
Mr. Piyush Sharma, Advocate.
versus
LT. GOVERNOR, GNCTD & ORS. .... Respondents
Through: Dr. S.P. Sharma, Advocate for
R-1 and R-2.
Mr. R.K. Kapoor with Ms. Shweta
Kapoor, Mr. Krishnan Selopal and
Ms. Reetu Sharma, Advocates for R-3.
Ms. Madhumita Bhattacharjee, Advocate
for R-4.
CORAM: JUSTICE S. MURALIDHAR
1. Whether Reporters of local papers may be
allowed to see the judgment? No
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in Digest? Yes
JUDGEMENT
22.09.2011
1. The two Petitioners, who were working as post-graduate teachers („PGTs‟) for English and Hindi respectively in the Sant Nirankari Boys Senior Secondary School („the School‟), Respondent No. 3, which is a recognised and aided School under the Delhi School Education Act, 1973 („DSEA‟) and the Delhi School Education Rules, 1973 („DSER‟), have filed this writ petition seeking directions to the Director of Education („DoE‟), Government of National Capital Territory of Delhi („GNCTD‟), Respondent No. 2, and the School to consider their cases for promotion to the post of Principal and Vice-Principal („VP‟) respectively and be granted promotion as such from the date on which Respondent No. 4, Dr. Narender Kumar, and Respondent No. 5, Dr. Ram Gopal, were granted promotion as Principal and VP, respectively.
W. P. (C) No. 1838 of 1994 Page 1 of 72. Petitioner No. 1 was appointed as PGT (English) in the School on 10th January 1981. Petitioner No. 2 was appointed as PGT (Hindi) in the School on 28th January 1981. The next higher post was that of VP and the post higher to that was of the Principal. On 25th February 1980 the DoE issued the relevant notifications announcing the recruitment rules pertaining to the said posts.
3. For filling up the post of VP, a Departmental Promotion Committee („DPC‟) meeting was held in September 1991. This was because the post of VP was required to be filled up by promotion and failing which by direct recruitment. Promotion to the post of VP was to be made from amongst the PGTs/Head Masters of the School with at least five years‟ experience or TGTs with ten years‟ experience in the case of secondary schools. Petitioner Nos. 1 and 2 were at serial Nos. 1 and 3 respectively in the combined seniority list of PGTs. However, it is stated by the Petitioners that the Managing Committee („MC‟) of the School manipulated the proceedings of the DPC in order to select its own candidates, who were junior to the Petitioners. When this came to the notice of the DoE, the recommendations of the DPC held in September 1991 were not implemented. Another DPC was thereafter held in February 1993. At the said DPC, Respondent No. 5, who was at serial No. 5 in the seniority list, was selected for the post of VP.
4. The post of Principal had fallen vacant from 1st November 1992 and at the DPC held on 2nd February 1993 Respondent No. 4, whose name was at serial No. 3 of the seniority list, was selected for the post of Principal.
5. The Petitioners state that after the DPC held on 25th September 1991 for the purpose of selecting the VP, the then Education Officer, Zone-V, District North by a note in March 1992 recorded on the concerned file that the Manager of the School was interested in a PGT who was junior even though the record of some of the senior PGTs was better. It was found from the record that the annual confidential reports („ACRs‟) of the concerned candidates were either tampered with or manipulated. The ACRs of the PGTs recommended by the management who were junior to the Petitioner, were upgraded from „good‟ to „outstanding‟ and those of the senior PGTs like Petitioner Nos. 1 and 2, downgraded from „outstanding‟ to „good‟. It is only after directions were W. P. (C) No. 1838 of 1994 Page 2 of 7 issued by the DoE under Section 24 (3) DSEA to the management of the School that it should not bypass the senior most PGT, that another DPC was held in February 1993. It is submitted that the DPC held in February 1993 was also vitiated because of manipulation of the ACRs and because the Manager of the School ensured that Respondent No. 4 was selected as the Principal. It is further submitted that under Rule 96 DSER, the DPC was in case of an aided school to comprise of the Chairman of the MC, two educationists nominated by the DoE out of whom at least one was to be a person having experience of school education. By a circular dated 8th September 1992 of the DoE, it was clarified that a nominee of the DoE on the Selection Committee/DPC should be nominated in order to avoid the lengthy procedure for inviting a nominee in each and every case to fill up the resultant vacancy. Consequently, the DPC for aided schools was to comprise of, in the case of the post of the Principal, the Chairman of the MC, Deputy Director of Education (`DDE‟) of the concerned District, the Deputy Director of Education (Act), Additional Director of Education (School) and in his/her absence Additional Director of Education (Administration). However, the composition of the DPC held to fill up the posts of Principal and VP in the School was as under:
(i) The Chairman of the MC;
(ii) The DDE (North) and;
(iii) Additional Director (Schools)
6. It is submitted that the above composition was not in accordance with the Circular dated 8th September 1992 inasmuch as the DDE (Act) was not included in the DPC. It is submitted that an evasive reply was given by the Education Officer on 4th January 1994 to the representation made by the Petitioners on 8th November 1993 and thereafter. It is in those circumstances that the present writ petition was filed on 6th April 1994.
7. Rule was issued in the present petition by this Court on 3rd May 1994 but no interim order was passed. On 18th April 2011 the following order was passed by this Court:
"1. The petition inter alia impugns the appointment of respondent Nos. 4&5 as Principal and Vice Principal respectively of the respondent No. 3 School. The petitioner claims that the selection of respondent Nos. 4&5 in preference of his name is illegal.W. P. (C) No. 1838 of 1994 Page 3 of 7
2. The counsel for the respondent No. 3 School states that the respondent No. 3 School has passed an order of compulsory retirement of the respondent No. 4 and has sought the approval of the respondent No. 2 Directorate of Education of the said action; that the respondent No. 4 has challenged the said action of the respondent No. 3 School by filing a separate writ petition which is listed next on 4th May, 2011; it is contended that the respondent No. 3 School is attempting to seek permission in that writ petition for holding of a fresh Departmental Promotion Committee (DPC) for appointment to the post of Principal and if succeeds in getting the said permission will hold the fresh DPC for the post of Principal and in which the petitioners shall also be considered. The senior counsel for the petitioners states that he will obtain instruction whether the petitioners would be satisfied with the same.
List on 9th May, 2011. "
8. Thereafter on 9th May 2011, the following order was passed:
"The Senior counsel for the petitioner in pursuance to the order dated 18th April, 2011 states that the petitioner would pursue the present petition in as much as if he succeeds in the petition he would be entitled to the benefits from the year 1993 onwards.
The counsel for respondent no. 4 informs that the other writ petition of the respondent no. 4 being W.P. (C) No. 1385/2011 has been adjourned to 27th May, 2011.
List this petition on 11th July, 2011."
9. This Court has heard the submissions of Mr. G.D. Gupta, learned Senior counsel for the Petitioners, Dr. S.P. Sharma, learned counsel for Respondent Nos. 1 and 2, Mr. R.K. Kapoor, learned counsel for Respondent No. 3 and Ms. Madhumita Bhattacharjee, learned counsel for Respondent No. 4.
10. One of the preliminary objections taken by Respondent No. 3 is that earlier one of the teachers, Mr. Hari Shankar, had filed Writ Petition (Civil) No. 1732 of 1993 challenging the appointment of Respondent Nos. 4 and 5 as Principal and VP, respectively. The said writ petition was dismissed by the Division Bench of this Court on 14th October 1993. It was observed that the posts were not promotional posts as contended by the Petitioner, Mr. Hari Shankar, and further that his case was also considered by the DPC but he was not found suitable. The Petitioners have, in response to the above objection, pointed out that the Petitioners are challenging the validity of W. P. (C) No. 1838 of 1994 Page 4 of 7 the DPC proceedings which was held on 2nd February 1993 on the ground that their ACRs were tampered with and further that the constitution of the DPC was not in accordance with Rule 96 of the DSER as further explained by the Circular of the DoE.
11. Respondent No. 3 School has further maintained that both the posts of the Principal and VP were selection posts and, therefore, there is no question of supersession of the Petitioners. Their cases were considered at the DPC and the candidates found most suitable were appointed as Principal and VP respectively. The allegation of tampering with the ACRs is vehemently denied. As regards the constitution of the DPC held on 2nd February 1993 it is denied that it was not in accordance with the circular issued by the DoE. The DDE (Act) could not attend the meeting on account of his indisposition. However, three of the four members of the DPC attended the meeting and, therefore, the decision taken at the meeting was valid.
12. In the affidavit filed on behalf of the DoE it has been stated that the DPC constituted in February 1993 was in accordance with Rule 96 DSER.
13. Mr. Gupta relies upon the decision in State of Andhra Pradesh v. Dr. Mohanjit Singh 1988 (Supp) SCC 562 to submit that when the quorum of the DPC is not complete, its decision was invalid and could not be ratified by the members who were absent at a subsequent point in time. He also relied on the decision of this Court in Akhtar Ali Siddiqui v. Delhi Administration 41 (1990) DLT 330 (DB). He further submitted that the DPC did not give any grading of the persons considered for the selection and this was contrary to the office memorandum dated 18th April 1989.
14. Learned counsel for the Respondents on the other hand relied on the decisions in Punjab University, Chandigarh v. Vijay Singh Lamba (1976) 3 SCC 344 and Raj Chaudhary v. Director of Education 2009 (112) DRJ 25 to urge that as long as there was no rule requiring a minimum quorum, the decision taken at the meeting of the DPC could not be held to be invalid.
15. From the above submissions, it appears that there are two issues that have been raised in the present petition by the Petitioners. The first concerns the quorum of the W. P. (C) No. 1838 of 1994 Page 5 of 7 DPC which met on 2nd February 1993 to consider the cases of the Petitioners and others for promotion. Rule 96(3)(a) of the DSER requires that for aided schools, there should be two educationists nominated by the Director apart from the Chairman of the MC where the selection is to the post of Principal. Further, under the Circular dated 8th September 1992 for the post of Principal apart from the DDE, there had to be the Chairman, the DDE of the District, DDE (Act) and the Additional Director (Schools). Admittedly, the said meeting was attended by the Chairman, the Additional Director (Schools) and the DDE (North). However, the DDE (Act) could not attend the meeting due to indisposition. There is no rule that requires a minimum quorum for the meeting of the DPC. Equally there is no rule which states that if all the members of the DPC are not present the decision taken would be invalid.
16. In Akhtar Ali Siddiqui v. Delhi Administration, the Chairman of the MC was not present in the meeting of the Selection Committee and only his nominee was present. It is in those circumstances that it was held that the Selection Committee was not properly constituted under Rule 96(3)(a) of the DSER. In the present case, however, the Chairman and two of the nominees of the DoE were present. Only the DDE (Act) could not be present. In State of Andhra Pradesh v. Dr. Mohanjit Singh the representative of the Director of Higher Education was not present whereas two representatives of the management and two professors of the University had participated. In these circumstances it was held that ratification of the decision by the District Education Officer at a later point in time could not validate the proceedings of the Selection Committee as there was no quorum. In the present case, however, two of the nominees of the DoE were present apart from the Chairman of the MC. In Punjab University, Chandigarh v. Vijay Singh Lamba, the Supreme Court has held that if there is no requirement of requiring the minimum quorum the decision taken by the majority cannot be invalidated.
17. For the aforementioned reasons, this Court is not persuaded to hold that the constitution of the DPC in the instant case was not in accordance with Rule 96(3) of the DSER read with Circular dated 8th September 1992 issued by the DoE.
18. As regards the submission concerning the manipulation of the ACRs, it involves W. P. (C) No. 1838 of 1994 Page 6 of 7 disputed questions of fact. Respondent No. 3 School has denied that there was any manipulation of the ACRs as alleged. It is not possible for this Court, in exercise of its powers under Article 226 of the Constitution, to examine such a disputed question of fact.
19. Consequently, there is no merit in this writ petition and it is dismissed as such, but in the circumstances, with no order as to costs.
S. MURALIDHAR, J.
SEPTEMBER 22, 2011 ak W. P. (C) No. 1838 of 1994 Page 7 of 7