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2006 DIGILAW 11 (DEL)

G. BHARATI TARAK RAO v. DIRECTOR OF EDUCATION

2006-01-02

S.RAVINDRA BHAT

body2006
S. RAVINDRA BHAT, J. ( 1 ) IN these writ proceedings, a direction to quash the order of the fourth respondent (hereafter called ?the school?) appointing the respondent No. 7 as vice Principal, has been sought for. ( 2 ) THE petitioner joined the services of the school, an aided minority institution, on 9. 7. 1968. She was selected and appointed on 5. 9. 1971 as a trained Graduate Teacher (TGT ). The school was upgraded to secondary level in 1983. It is claimed that as per the seniority list drawn on 27. 3. 1990, the petitioner was the senior most teacher. In the list, the seventh respondent was at Sl. No. 4. ( 3 ) PURSUANT to the proceedings of the Selection Committee, the petitioner s name was approved for promotion as a Vice Principal and an order was issued to that effect on 10. 1. 1990. The petitioner accepted the post. On 9. 1. 1992 she was reverted to her substantive post as TGT. She preferred an appeal to the Delhi school Tribunal under provisions of Section 8 (3) of the Delhi School Education act. By its order dated 2. 7. 1992, the Tribunal set aside the reversion order and directed her reinstatement. Consequently, an order was issued by the School on 5. 9. 1992 taking her back as Vice Principal. ( 4 ) IN the meanwhile, one Mrs. Y. Theclamma who had been working as Vice Principal but was removed from services, had approached the Tribunal. The Tribunal ruled in her favour. On 6. 12. 1992 petitioner s services were declared surplus since mrs. Y. Theclamma joined as a Vice Principal under orders of the Delhi School tribunal dated 1. 9. 1992. The school was further upgraded and Mrs. Y. Theclamma was appointed as Principal. It is claimed that in spite of the petitioner s previous selection and appointment, she was not given the post but treated as vice Principal surplus. ( 5 ) THE petitioner has approached this Court claiming to be aggrieved against an order issued on 29. 5. 2003 appointing the seventh respondent as Vice Principal. ( 6 ) THE school in its return alleges that the appointment of the seventh respondent was strictly as per merit. A Departmental Promotion Committee (DPC) was held on 22. 5. 2003. The petitioner was aware of the proceedings and her name was also considered. 5. 2003 appointing the seventh respondent as Vice Principal. ( 6 ) THE school in its return alleges that the appointment of the seventh respondent was strictly as per merit. A Departmental Promotion Committee (DPC) was held on 22. 5. 2003. The petitioner was aware of the proceedings and her name was also considered. ( 7 ) THE school has denied that the petitioner is senior to the seventh respondent. It is submitted that the seventh respondent was promoted as PGT on 24. 1. 1994. On 18. 1. 1994, the post of Principal was advertised; Mrs. Y. Theclamma was selected and appointed, as Principal. She had been working as PGT (Maths ). It is alleged that the petitioner was never given regular promotion in 1990 and she was given the post due to dismissal of then Vice Principal. The grant of the post was purely on ad hoc basis subject to approval of the Director of education. It is alleged that the Director accorded conditional approval with the direction that in case the dismissed Vice Principal won her case, the school would reinstate her and the petitioner would be reverted. A copy of that communication dated 27. 9. 1990 has been placed on record. It is also alleged that Mrs. Y. Theclamma was reinstated consequent to directions of the Tribunal on 15. 9. 1992. That course of action was approved by the Directorate. The petitioner was, therefore, reverted to the grade of the TGT (Selection Grade ). The said order dated 15. 9. 1992 has been produced. It reads as follows:"madam consequent upon the joining of Smt. Y. Theclamma as Vice-Principal at A. E. S. Prasad Nagar school on 15. 9. 1992 vide office order No. 22/aes/92 dated 14/9/1992 of Secretary AES and also with reference to the letter No. 5859 dated 27th Sept. 1990 of the Deputy Director of Education Distt. West, you stand reverted to the post of TGT (Selection Grade ). " ( 8 ) THE school avers that upon vacancy arising in the post of Vice Principal, all eligible candidates were considered including the petitioner herself. The copies of the minutes of the meeting consisting of 9 members of the DPC who considered the records of 5 candidates including the petitioner have been produced. It is claimed that as per the records, the best candidate found suitable for the post was the seventh respondent. The copies of the minutes of the meeting consisting of 9 members of the DPC who considered the records of 5 candidates including the petitioner have been produced. It is claimed that as per the records, the best candidate found suitable for the post was the seventh respondent. Her overall grading as relative was far more meritorious to the grading of the petitioner. ( 9 ) IT is also averred that as per the seniority list maintained by the school, the seventh respondent was the senior most given weightage to the fact that she was promoted on 24. 1. 1994 as PGT. In that grade itself she is the senior most among all the teaching staff. The stand of the Director as well as the seventh respondent is similar to that of the school. ( 10 ) MR. Diwedi, learned counsel submitted that the respondents acted illegally in appointing the seventh respondent over and above the claims of the petitioner. In 1990 itself the petitioner s candidature was considered and she was selected and appointed to the post of Vice Principal. She worked in that post for about two years when she was reverted. The reversion order was set aside. In the meanwhile, the previous Vice Principal who had been dismissed from the services was reinstated. Consequently, the petitioner was treated as a surplus Vice principal. The respondent school was under a duty to restore her post and status as Vice Principal the moment it became available and not to carry on a fresh exercise of holding a DPC, ignoring her pre-existing right. ( 11 ) LEARNED counsel relied upon the order of the Directorate dated 6th December, 1992 by which the petitioner was treated as a surplus Vice Principal as a result of which Mrs. Y. Theclamma s reinstatement. ( 12 ) LEARNED counsel relied upon the judgment of the Supreme Court reported as dalilah Sojah vs. State of Kerala, 1998 (9) SCC 641 to say that a right which had accrued in favour of the petitioner to be treated as a Vice Principal and duly confirmed by the Directorate could not be defeated. ( 13 ) MR. B. K. Sood, learned counsel for the school submitted on the other hand that the petitioner never raised any grievance between the period 1994 and 2003. ( 13 ) MR. B. K. Sood, learned counsel for the school submitted on the other hand that the petitioner never raised any grievance between the period 1994 and 2003. According to the counsel, the petitioner was not selected in the normal course on regular basis but was merely asked to take over the job of Vice Principal on account of a vacancy which arose due to the dismissal of the incumbent employee. Naturally, upon the return and reinstatement of the previous Vice Principal, the petitioner had to make way. The school had made it clear that she was being reverted to the TGT s scale. ( 14 ) LEARNED counsel for the school disputed that the petitioner s status was one of Vice Principal. He submitted that right through between 1992 and 2003 she never officiated or worked as Vice Principal. ( 15 ) IT is submitted in 1993 a post of Principal was sanctioned, for which the then Vice Principal was considered and promoted on 15. 10. 1993. A vacancy therefore occurred in the post of Vice Principal for which a DPC was held on 21. 12. 1993. At that stage, the petitioner s name was considered but she was not found suitable and was therefore denied promotion. She has been ever since working as a TGT. Learned counsel relied upon the averments in the counter affidavit to say that these facts were duly disclosed but have not been traversed or denied by the petitioner. ( 16 ) THE facts as emerging from the pleadings, and contentions are that the petitioner, a TGT, was appointed as Vice Principal, of the school. She functioned for about two years, and was terminated. The school tribunal directed her reinstatement. In the meanwhile, Mrs. Theclamma, who was the regular Vice principal, had been dismissed; the tribunal had directed her reinstatement. The petitioner was declared ?surplus?. Sometime in 1993-94, Mrs. Theclamma was promoted/ appointed as Principal. The petitioner was not appointed; someone else was given the post of Vice Principal. The seventh respondent, who appears to have started her career as a TGT, later became a PGT, in 1994-95. When there was a vacancy in the post of Vice Principal, in 2002-03, another selection process was resorted to; the petitioner, and seveth respondent were considered along with other candidates; the latter was selected. The seventh respondent, who appears to have started her career as a TGT, later became a PGT, in 1994-95. When there was a vacancy in the post of Vice Principal, in 2002-03, another selection process was resorted to; the petitioner, and seveth respondent were considered along with other candidates; the latter was selected. ( 17 ) ONE fact, which was pleaded, and urged during course of hearings, was that when the post of Vice Principal fell vacant, in 1993-94, the petitioner never claimed any rights; some one else was appointed to the post. This detail was not contested. The petitioner, on the other hand, laid great stress upon the terms used in the order reinstating her, and thereafter giving the post to ms. Theclamma, i. e that she was a ?surplus? Vice Principal, whose status and right to the post stood ?settled?. There can be no denial of the terminology used in the order of the respondents. Yet, the intervening facts cannot be ignored; they reveal that all the parties understood, apparently that the petitioner was to continue as a TGT. There can be no other explanation to the petitioner?s silence for a period of 12 years, and her conduct in not challenging or disputing the appointment to the post of Vice Principal in 1993- 94 can lead only to this conclusion. Equally, there is no denial that the seventh respondent is a PGT. ( 18 ) RULE 98 of the Delhi School Education Rules deals with appointments to aided schools. The provision does not apply in the case of minority-aided schools. The second proviso to Rule 98 (2), excepts operation of the main provision, requiring approval of appointments, to minority aided schools. As per Rule 96 (3-A) the nominees and educationist required to serve as part of the selection Committee for the appointment of Head of School, under sub-rule (3) (a) can act only as advisers and would not have power to actually control the selection of an employee. In this view, the management of an aided minority school, like the school in the present case, has primacy over the choice of appointment to various positions, including the post of Vice Principal. ( 19 ) THE Supreme Court in its decisions reported as N. Ammad Vs. M. J. Emjay High School; AIR 1999 SC 50 ; T. M. A. Pai Foundation Vs. ( 19 ) THE Supreme Court in its decisions reported as N. Ammad Vs. M. J. Emjay High School; AIR 1999 SC 50 ; T. M. A. Pai Foundation Vs. Union of India, 2002 (8) SCC 481 ; Virender Nath Gupta Vs. Delhi Administration; 1990 (2) SCC 307 ; and Board of Secondary Education and Teachers Training Vs. Joint Director Public instructions; 1998 (8) SCC 555 has reiterated time and again the unhindered right of managements of minority educational institutions, including those receiving aid, to select and appoint the candidates of their choice, as an integral part of the right enshrined under Article 30 (1) of the Constitution of India. Hence, the choice of an appointment to the post of Vice Principal is exclusively that of the management. In the present case, no circumstance, other than the pre- existing right of the petitioner, based on her being a ?surplus? Vice Principal, was put forth. ( 20 ) APART from the legal position and the facts discussed above, the petitioner has nowhere disclosed as to how she was treated all this while; if indeed she had a right to be treated as Vice Principal, she had to assert that within reasonable time. The school has asserted that she was working as TGT. ( 21 ) IN view of the above circumstances, I am of the opinion that there is no infirmity in the appointment of the seventh respondent, to the post of Vice principal, made by the school, in these proceedings. The writ petition and all interlocutory applications are accordingly dismissed with no order as to costs. .