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2015 DIGILAW 1163 (DEL)

Syed Moiz Quadri v. Govt. of NCT of Delhi

2015-04-29

VALMIKI J.MEHTA

body2015
Judgment :- 1. This writ petition was filed under Article 226 of the Constitution of India by the petitioner, a teacher in the respondent no.3/Anglo Arabic Senior Secondary School, seeking the relief that termination of his services by the undated letter of December, 1999, stating that the petitioner is not qualified, be quashed. The petitioner in the writ petition had prayed that it should be declared that he had the necessary qualification for being appointed to the post of T.G.T (Maths) in the respondent no.3/School and at which post he was appointed. 2. Before I turn to the merits with respect to the present review petition and the application seeking condonation of delay of 349 days, it is required to be noted that this writ petition was disposed of on 12.11.2013 by passing the following order:- “ 1. Taking on record the letter dated 11.11.2013 and with which the respondent No.3 is held bound, and the position in the said letter will be implemented by respondent No.3, the writ petition is accordingly for that reason not pressed by taking finality of the letter dated 11.11.2013. 2. The writ petition is accordingly disposed of.” 3. The writ petition when the same was disposed of on 12.11.2013 had come up for regular hearing in the regular board after admission. Nobody appeared for the review petitioner/Director of Education when the order was passed on 12.11.2013. The order dated 12.11.2013 records that the respondent no.3/School had issued a letter dated 11.11.2013, by which petitioner’s services were held not to be terminated and he was to continue with his services with the respondent no.3/School. 4. By this review petition, it is averred that the order dated 12.11.2013 was obtained by practicing a fraud upon this Court and the said order be recalled, inasmuch as, petitioner was not qualified for being appointed as T.G.T (Maths) in the respondent no.3/School. 5. Let us now examine what was the lack of qualification which was stated by the review petitioner/Director of Education/respondent no.2 in its counter affidavit to the writ petition, and the review petition will also have to be seen in accordance with the said averments. 5. Let us now examine what was the lack of qualification which was stated by the review petitioner/Director of Education/respondent no.2 in its counter affidavit to the writ petition, and the review petition will also have to be seen in accordance with the said averments. The relevant defence of the respondent no.2/Director of Education, as per its counter affidavit dated 09.2.2000 is contained in paras 1 & 2 of the preliminary objections and para 2 of the reply on merits, and which read as under:- “Preliminary Objections: 1. That the present Writ Petition is not at all maintainable, and has to be dismissed with costs as the petitioner does not fulfil the criteria of being T.G.T. (Maths). The post was invited for the T.G.T. (Maths) for which the interviews were held. The recruitment rules are very clear that for the above said post the qualification required is B.Sc. Maths as the Main subject and Physics and Chemistry as the Subsidiary subjects. 2. That the petitioner is having the degree of B.Sc. (Physics) with Chemistry and Maths as subsidiary subjects. That the petitioner was appointed by default. When the facts regarding his qualification was brought to the notice, the respondents immediately took the action and issued the removal orders dated 8.12.1999 with immediate effect. The petitioner was also found to be over aged having dated birth 3.3.1968 as per the Recruitment Rules. Parawise Reply: 2. That the contents of para No. 2 are denied. That the contents are also denied for fulfillment of recruitment Rules. That the petitioner was degree holder of B.Sc. (Phy.) with Maths and Chemistry as subsidiary subjects, whereas as per the recruitment rules the candidates of qualification of B.Sc. (Maths) as main subject with physics and chemistry as a subsidiary subjects are eligible for the post of T.G.T. (Maths). The petitioner has failed to qualify on this account and as soon as it came to the notice of the Education Department, it issued a letter dated 08.12.1999. The Petitioner having date of birth is 3.3.1968 was found to be overage as per the Recruitment Rules. to the school authority to remove the petitioner with immediate effect. That the petitioner was found over-age as per the Recruitment Rules to the school authority to remove the petitioner with immediate effect. That the petitioner was found over-age as per the Recruitment Rules.” (emphasis is mine) 6. to the school authority to remove the petitioner with immediate effect. That the petitioner was found over-age as per the Recruitment Rules to the school authority to remove the petitioner with immediate effect. That the petitioner was found over-age as per the Recruitment Rules.” (emphasis is mine) 6. In the review petition, the review petitioner/Director of Education has similarly stated as per paras 5 & 6 of the review petition and also added an additional requirement that the graduation degree must be of Hons. Course and not Pass Course. These paras read as under:- “5. That Petitioner does not fulfill the criteria as set out in the Recruitment Rules, applicable at the time his appointment. The qualification required for the post of TGT (Math) was B.Sc (Hons.) with Math alongwith Physics and Chemistry as subsidiary subjects. However, Petitioner’s qualification was of B.Sc (Phy) Hons. With Math and Chemistry as subsidiary subjects. On scrutiny it was also discovered that the experience certificates submitted by Petitioner were forged as he was never appointed in the schools where Petitioner claimed he had taught. It was after thorough scrutiny and verification that the services of Petitioner were terminated vide letter dated 24.12.1999. 6. That Petitioner submitted his representation to Respondent School on 03.10.2013 to confirm his appointment as TGT (Math) and also grant relaxation in age so that Petitioner could be considered for promotion as PGT (Physics). The said representation was considered by Managing Committee of Respondent School on 31.10.2013 and the same was accepted by the respondent school on the condition that the Petitioner will give undertaking that he will withdraw the writ petition on the next date of hearing. It is pertinent to mention that in the meeting held on 31.10.2013, no Director’s nominee was present. Thus, the action of petitioner and respondent school is in connivance with each other and at the back of applicant respondent, the Department of Education. A copy of minutes of meeting dated 31.10.2013 is annexed hereto as ANNEXURE R-1/3.” (underlining added) 7. It is therefore clear that the issue in the writ petition essentially was with respect to qualifications of the petitioner for being appointed as a teacher to the post of T.G.T (Maths) in the respondent no.3/School, and as to whether the petitioner did not meet the eligibility criteria because he was overage. It is therefore clear that the issue in the writ petition essentially was with respect to qualifications of the petitioner for being appointed as a teacher to the post of T.G.T (Maths) in the respondent no.3/School, and as to whether the petitioner did not meet the eligibility criteria because he was overage. As per the additional averment in the review petition it is also stated that petitioner ought to have had a graduation degree in B.Sc (Hons.) with Maths as the main subject. At this stage, I would like to put on record that in the counter affidavit which was filed by the respondent no.2/Director of Education in the writ petition, the expression ‘Hons.’ after B.Sc has been struck off, and what is only pleaded is that the petitioner did not have B.Sc with Maths as the main subject. However, only for the sake of the new argument of the respondent no.2/Director of Education taking that the expression ‘Hons.’ after the expression ‘B.Sc’ is not struck off in the original counter affidavit of the respondent no.2/Director of Education, let us examine the question as to whether the petitioner was required firstly to have a graduation degree in B.Sc (Hons.) and secondly with Maths as the main subject. 8. Admittedly, the recruitment rule for appointment to T.G.T (Maths) is as per the recruitment rule filed as Annexure-B to the counter affidavit of the respondent no.2/Director of Education, and the relevant portion of this recruitment rule reads as under:- “Annexure ‘B’ Recruitment Rules for the Post of TRAINED GRADUATE TEACHER IN EDUCATION DEPARTMENT, Delhi Administration, Delhi. Name of the post Number of Posts Classification Scale of pay Whether Selection post or non-selection post Age Limit for direct recruits 1 2 3 4 5 6 TRAINED GRADUATE TEACHER 1.. English 11946* Group ‘C’ Rs. 1400-40-1600-50-2300-EB-60-2600 Selection Below 30 years (Relaxable upto 40 Yrs. in case of female candidates and relaxable for employees of Delhi Admn. upto 40 Yrs. for General candidates and 45 years for SC/ST candidates). English 11946* Group ‘C’ Rs. 1400-40-1600-50-2300-EB-60-2600 Selection Below 30 years (Relaxable upto 40 Yrs. in case of female candidates and relaxable for employees of Delhi Admn. upto 40 Yrs. for General candidates and 45 years for SC/ST candidates). 2.Mathematics Non- Gazetted 3.Social Science, and Physical Science/Natural Science Non-Ministaria Whether benefit of added years of service admissible under rule 30 of the CCS(Pension) Rules, 1972 Educational and other qualifications required for direct recruits Whether age & educational qualification prescribed for direct recruits will apply in the case of promotees Period of probation 7 8 9 10 No I. A Bachelor’s Degree (Pass/Hons) from a recognized University or equivalent having secured atleast 45% marks in aggregate of having studied to a level not lower than ancillary/subsidiary subjects indicated in any of the following groups. I. English as main subject at graduation level with one of the following subjects:- (i) History (ii) Pol. Science (iii) Economics (iv) Commerce (v) Geography (vi) Agriculture (vii) Horticulture. 2.Mathematics as main subject at graduation level with one of the following as second subjects:- (i) Chemistry (ii) Physics (iii) Biology (iv) Botany (v) Computer Science (vi) Zoology (vii) English (viii) History (ix) Pol. Science (x) Economics (xi) Commerce (xii) Geography (xiii) Agriculture (xiv) Statistics 3. Social Science: Atleast two of the following main subjects at graduation level : (i) History (ii) Pol. Science (iii) Economics (iv) Commerce (v) Geography (vi) Agriculture (vii) Horticulture. Age : NO I.Q : Yes Two years 9. A reading of the aforesaid recruitment rule shows that there is no requirement of a teacher to be appointed as T.G.T (Maths) to have an Hons. degree, inasmuch as, the expression which is found in the recruitment rule is, that the person must have a bachelor’s degree in Pass/Hons. Course i.e either a Pass degree or an Hons. degree. Therefore, it is not permissible for the respondent no.2/Director of Education to contend that Hons. degree is required, and it is for this reason that in the original counter affidavit filed by the respondent no.2/Director of Education, the expression ‘Hons.’ was struck off. I am therefore constrained to observe that the present is a case where some officers in the respondent no.2/Director of Education seem to have made a personal vendetta drive against the petitioner for victimizing the petitioner, and which goes to the extent of filing of false affidavits requiring an Hons. I am therefore constrained to observe that the present is a case where some officers in the respondent no.2/Director of Education seem to have made a personal vendetta drive against the petitioner for victimizing the petitioner, and which goes to the extent of filing of false affidavits requiring an Hons. degree, and which clearly amounts to perjury. Therefore, the stand of the respondent no.2/Director of Education that Hons. degree is compulsorily required is ex facie false in terms of the recruitment rule relied upon by the respondent no.2/Director of Education itself. 10. The petitioner admittedly has a graduation degree in B.Sc, and which has Maths as one of the subjects, and since there is no requirement of an Hons. degree once one of the subjects in B.Sc is Maths, Maths also will be treated as one of the main subjects in the graduation degree. In a B.Sc Pass Course there is no subject of Maths which is there as a main subject and which is in Hons. course. It is, therefore, incorrect on behalf of the respondent nos.1 & 2 to argue that the petitioner is unqualified because the petitioner did not have a Hons. graduation degree with Maths as the main subject. 11. So far as the contention of the respondent no.2/Director of Education of the petitioner being overage is concerned, undoubtedly, the petitioner was overage because he was around 31 years and 3 months, whereas the age limit is 30 years, however, the petitioner has filed as Annexure P-10 to his rejoinder affidavit a circular of the Director of Education itself dated 12.12.1988, and which states that the experience of teaching in a school has to be added to the maximum age limit and relaxation in age has accordingly to be granted, and which relaxation can go in fact to the extent of 15 years. The petitioner had admittedly worked with the respondent no.3/School as T.G.T (Maths) on ad hoc basis for a period of two years before his regular appointment in the respondent no.3/School, and therefore the period of two years will have to be added to the age of 30 years, and hence the respondent no.2/Director of Education is incorrect in arguing that the petitioner was overage. 12. 12. I am at this stage constrained to note that actually the present review petition, and which has effectively forced this Court to decide this writ petition on merits is on account of negligence of the respondent no.2/Director of Education in not being represented when the matter was called out in the regular board and disposed of in terms of the order dated 12.11.2013. Even the review petition is filed almost after one year i.e after a delay of 349 days and this clearly shows that the respondent no.2/Director of Education feels that it can sleep over the matter, insist on not appearing in the court when the matter is called out in the regular board, and thereafter can file the review petition effectively for arguing the main case on merits on the defence of lack of eligibility criteria which is not even found to be so as per the recruitment rule and its own circular dated 12.12.1988 as regards extension/age relaxation. I think this is quite unacceptable and this has resulted in wastage of judicial time of this Court, and which is only because of complete lethargy and negligence of the respondent no.2/Director of Education in pursuing its case, and in which case there was no defence at all on merits that the petitioner was overage or that the petitioner was unqualified. 13. In view of the above, though I have factually re-heard the whole petition on merits, review petition and the condonation of delay application will stand dismissed because there are no grounds for entertaining the review petition much less with a delay of 349 days. I may also note that this case was argued on 16.4.2015 when in view of the facts as stated above, it was suggested to the counsel appearing for the review petitioner/Director of Education/respondent no.2 that petitioner who has worked for around 16 years in the respondent no.3/School should not be targeted at the instance of some individuals in the office of the Director of Education, and accordingly an adjournment was granted for today for the Director of Education to consider that why the review petition and the condonation of delay application should not be pressed, but counsel for respondent nos. 1 & 2 on the first call and even after taking a passover for instructions has again insisted on arguing the review petition on merits. 14. 1 & 2 on the first call and even after taking a passover for instructions has again insisted on arguing the review petition on merits. 14. In view of the above, the review petition and the condonation of delay application is dismissed with costs of Rs.25,000/-. Costs shall be paid to the petitioner by the respondent no.2/Director of Education positively within a period of four weeks from today. Since I am dismissing the review petition and the condonation of delay application with costs, I am not taking any strict action against the officer in the Director of Education who has filed a false affidavit and committed perjury to this Court by stating that there is a mandate of the petitioner in terms of the recruitment rule to have an Hons. degree, though as discussed above, there is no requirement in the recruitment rule of having a Hons. degree, and for this reason, the expression ‘Hons.’ had in fact been scratched out in the original counter affidavit filed by the respondent no.2/Director of Education. Copy of this judgment however be placed before the Director of Education to note that its officers are behaving irresponsibly in this case, and an affidavit that this judgment has been placed before the Director of Education be filed by the Director of Education himself in this Court within a period of four weeks from today.