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2009 DIGILAW 855 (DEL)

RAJ CHAUDHARY v. DIR. OF EDUCATION

2009-08-07

MANMOHAN

body2009
JUDGMENT MANMOHAN, J: (ORAL) 1. Present writ petition has been filed for setting aside the appointment of respondent no. 3 as Headmistress of CIE, Experimental Basic School, which is administered and managed by the Department of Education under the Delhi University. 2. On 5th December, 2008 I had restrained respondent no. 3 from functioning as Headmistress on the ground that respondent no. 4-Delhi University in its counter affidavit had stated that quorum of Managing Committee in which respondent no. 3 had been selected was not complete and further that promotion of respondent no. 3 as Headmistress had been confirmed despite the fact that petitioner’s representation had not been disposed of. 3. However, subsequent to the order dated 5th December, 2008, respondent no. 2 i.e. Managing Committee of School has appeared and the order dated 12th January, 2000 whereby they were proceeded ex-parte was set aside. Subsequently, respondent no. 2 filed a detailed affidavit, which has now been adopted by respondent no. 4-Delhi University vide its affidavit dated 28th February, 2009. In fact, Delhi University/respondent No.4, has regretted that its earlier counter affidavit was filed, “on account of erroneous impression of law as well as on account of non-communication and non-cooperation on the part of the school authorities.” In this new affidavit, respondent No.4 has prayed that the matter be disposed of in accordance with the stand taken by the respondent No.2 school and the earlier affidavit filed by University be ignored. 4. I may mention that instead of taking up the application for vacation of stay, with consent of parties, the matter is taken up for final hearing. 5. Mr. U.S. Chaudhary, learned counsel for petitioner has primarily argued that respondent no. 3 was not qualified to be appointed as Headmistress inasmuch as she did not possess the necessary qualifications as prescribed by Recruitment Rules. In this connection, Mr. Chaudhary drew my attention to Recruitment Rules dated 19th May, 1976 which read as under:- “9. In case of recruitment by Promotion Deputation, transfer grades from which promotion transfer/deputation to be made. Promotion: Trained Graduate Teacher/Language Trs. In the Scale of Rs.440-750 having five years regulars service in the grade who are graduate having degree/Diploma in Teaching/Education.” 6. He also drew my attention to a Circular dated 3rd November, 1987 with regard to revision of pay scales of school teachers. Promotion: Trained Graduate Teacher/Language Trs. In the Scale of Rs.440-750 having five years regulars service in the grade who are graduate having degree/Diploma in Teaching/Education.” 6. He also drew my attention to a Circular dated 3rd November, 1987 with regard to revision of pay scales of school teachers. The relevant portion of the said Circular is reproduced hereinbelow :- “Subject:- Revision of pay scales of school teachers.” xxxxxx xxxxxx xxxxx “10) The Headmasters of primary schools are equated with the trained graduate teachers and headmasters of middle schools with post graduate teachers. It is therefore, to be clarified as to whether these headmasters will be required to acquire the same education qualifications. It would be necessary for these headmasters to have the same academic qualifications as are required for the post with which they are equated. 7. According to Mr. Chaudhary, in view of the 1987 Circular, 1976 Recruitment Rules stood amended and respondent No.3 could not be appointed to the post of Headmistress as she was not qualified to be appointed as a Trained Graduate Teacher to which the post of Headmistress had subsequently been equated to. 8. Mr. Chaudhary further argued that the DPC which had recommended the appointment of respondent no. 3 as Headmistress was not constituted in accordance with Rule 96 of Delhi School Education Act and Rules, 1973 (hereinafter referred to as “Act and Rules, 1973”). 9. Mr. Chaudhary also stated that the quorum of the Managing Committee was not complete on 27th September, 1996 as even though eight Members attended the meeting, only five participated in the agenda item relating to appointment of Headmistress as three out of the eight Members were themselves interested parties as they were candidates for the job of Headmistress. 10. Mr. Chaudhary further submitted that the order appointing the respondent no. 3 as Headmistress was issued without complying with the mandatory direction passed by a learned Single Judge of this Court on 27th April, 1998 while disposing of petitioner’s earlier writ petition being CWP No. 2044/1998. By virtue of the said order learned Single Judge had directed that petitioner’s representation with regard to seniority should be disposed of as expeditiously as possible preferably within four weeks of receipt of the order, if not disposed of earlier. Mr. Chaudhary argued that without disposing of petitioner’s representation, respondent no. 3 has been appointed as Headmistress vide order dated 28th April, 1998. Mr. Chaudhary argued that without disposing of petitioner’s representation, respondent no. 3 has been appointed as Headmistress vide order dated 28th April, 1998. 11. As far as the issue of essential eligibility qualifications are concerned, I find that the Recruitment Rules for the post of Headmaster/Headmistress (middle) had been renotified vide Circular dated 27th October, 1993. The qualifications prescribed in the said Circular are as under :- “9. In case of recruitment by promotion deputation, transfer Grades from which promotion/ deputation/transfer to be made. Promotion: Trained Graduate Teacher Language Teachers in the Scale of Rs.440-750 having five years regulars service in the grade who are graduates having Degree/Diploma in Teaching/Education.” 12. I find that the 1993 Recruitment Rules are identical to the Recruitment Rules dated 19th May, 1976. Consequently, Mr. Chaudhary’s argument that respondent no.3 did not possess necessary qualifications is not correct. 13. In fact, Circular dated 3rd November, 1987 does not pertain to essential eligibility criteria for appointment to the post of Headmistress but pertains to revision of pay scales of school teachers. Therefore, in my view, Circular dated 3rd November, 1987 has no relevance to the present proceedings. Even with regard to the aforesaid 1987 revision of pay scales Circular, Ministry of Human Resource Development has clarified that persons who have been promoted, even though they have lower qualification under the existing promotion rules, would continue to remain in their existing grades. The query as well as the clarification of the Ministry of Human Resource Development is reproduced hereinbelow: “Point Raised 11: What will be the manner of pay fixation and grant of appropriate scale in respect of persons with lower qualifications than the ones prescribed for direct entrants? Clarification: Persons who have been promoted even though they have lower qualification under the existing promotion rules will continue to remain in their existing grades. The requirement of acquiring the requisite qualification will be enforced for such persons when they are considered for promotion to the selection scale or next higher post.” 14. As far as the issue of constitution of Selection Committee is concerned, I may refer to Rule 96 of Act and Rules, 1973. The said Rule is reproduced hereinbelow for ready reference :- CHAPTER VIII RECRUITMENT AND TERMS AND CONDITIONS OF SERVICE OF EMPLOYEES OF THE PRIVATE SCHOOLS OTHER THAN UNAIDED MINIORITY SCHOOLS 96. As far as the issue of constitution of Selection Committee is concerned, I may refer to Rule 96 of Act and Rules, 1973. The said Rule is reproduced hereinbelow for ready reference :- CHAPTER VIII RECRUITMENT AND TERMS AND CONDITIONS OF SERVICE OF EMPLOYEES OF THE PRIVATE SCHOOLS OTHER THAN UNAIDED MINIORITY SCHOOLS 96. Recruitment (1) Nothing contained in this Chapter shall apply to an unaided minority school. (2) Recruitment of employees in each recognised private school shall be made on the recommendation of the Selection Committee. (3) The Selection Committee shall consist of:- (a) in the case of recruitment of the head of the school,-- (i) the Chairman of the managing committee. (ii) in the case of an unaided school, an educationist nominated by the managing committee, and an educationist nominated by the Director; (iii) in the case of an aided school, two educationist nominated by the Director, out of whom at least one shall be a person having experience of school education; (iv) a person having experience of the administration of schools, to be nominated, in the case of an unaided school by the managing committee or in the case of an aided school, by the Director. The Minutes of DPC dated 8th November, 1996 read as under:- DEPARTMENT OF EDUCATION UNIVERISYT OF DELHI DELHI-110007 8th November, 1996 A meeting of the D.P.C. was held at 10.00 hrs. (A.M.) in the Department of Education (CIE) under the Chairmanship of Prof. K.K. Jain and the following members of the D.P.C. were present:- 1. Prof. K.K. Jain - Chairman of the Committee 2. Prof. U.S. Sharma - Department of Education University of Delhi, Delhi. 3. Dr. Usha Lamba - Principal, Govt. Model Composite School, (Member Managing Committee) 4. Sh. K. Burman - Joint Director Finance, Directorate of Education, (Director’s nominee) The Committee reviewed the C.R.’s and records of the four teachers eligible for promotion to the post of Headmaster of the School and decided to recommend: That Ms. Harsh Kumari may be promoted to the post of Head Mistress of CIE Basic School on regular basis.” 15. Consequently, in my view, Selection Committee/DPC was properly constituted in accordance with Rule 96 of Act and Rules, 1973 inasmuch as it comprised a Chairman of Managing Committee, a person having experience of administration of schools and two educationists (one nominated by the Managing Committee and other by Directorate of Education). 16. Consequently, in my view, Selection Committee/DPC was properly constituted in accordance with Rule 96 of Act and Rules, 1973 inasmuch as it comprised a Chairman of Managing Committee, a person having experience of administration of schools and two educationists (one nominated by the Managing Committee and other by Directorate of Education). 16. As far as the Minutes of the Managing Committee are concerned, I am of the view that the quorum was complete inasmuch as eight out of the nine Members had attended the meeting. Though three Members did not participate in the agenda relating to appointment of Headmistress as they were interested parties, in my opinion, it would make no difference as the quorum of the entire meeting has to be seen and not of each agenda item. In any event, as the petitioner was a member of the said Managing Committee and did not protest at that stage, she is estopped from raising this plea. 17. As far as non-compliance of this Court’s order dated 27th April, 1998 is concerned, I am of the view that petitioner cannot draw any mileage out of the same inasmuch as petitioner had communicated this order for the first time to respondent no. 2 School on 18th May, 1998. It is pertinent to mention that respondent school did not appear before this Court on 27th April, 1998 when the petitioner’s writ petition was disposed of on the first date of hearing itself, without any notice to the respondents. In any event, from the Minutes of the meeting of the Managing Committee dated 28th April, 1998 of respondent School, I find that Chairperson had informed the Managing Committee that petitioner’s representation had been disposed of at the level of Pro-Vice Chancellor and that the said decision would be informed to petitioner. From the said minutes, it is apparent that petitioner’s representation had actually been disposed of by the concerned authority before respondent No. 3 was confirmed on 28th April, 1998 as Headmistress. 18. Consequently, present writ petition and pending applications being devoid of merits are dismissed and the interim order dated 5th December, 2008 passed by this Court is vacated with immediate effect.