Salwan Boys Senior Secondary School v. Hem Raj and Ors

order dated September 8, and the action of the post of PGT (Maths), evejri provisionally. T because the said order cl(3arly restricts the School from making any provisionalappointmentto the post of PGT (Maths) withoutthe prior approvalofthe respondentNo.l. However,despitethe same,the School proceededto appoint the petitionerto the pc lis, according to him, is IKP.fCJNo. 7360/2010andconnectedmatler St of PGT (Maths) even , Page 9 of34 • ' i

¶1I •' ' ^I • - without the requisite approval. He also state, had sought information/clarificatons from the May 11, 2010 and reminder dated May 26, hat the respondent No.l School vide letter dated 2010. The information requestedwas of core importanceto the decisionon the promotionbeing whether or not the 'Average' ACRs had been communicated to Sh. Hemraj, respondent No.2. According to him, the law needs no elaborationas belowbenchmarkACRs couldnot have beenheld against the employee if the same were not communica fiction is not attracted since the order dated Ma :ed to him; The deeming xh 17, 2010 of this Court in W.P.(C)No. 694/2009createda procedureto be followedand the said order has to be seen in the context of the 3u According to him, even otherwise, the deemii since the appointment letter of the petitioner while the decision of the respondent No.l was i.e September8, 2010 and he would disputethe propositionadvancedby learnedcounselfor the petitionerthat the respondentNo.l had no power bmissions of the parties, ig fiction is not attracted s dated August 23, 2010 within a period of 15 days to direct appointment of r?)spondentNo.2 and Rule 98 read with order dated March 17, 201 order passed by the respondent No.l on the basis of material on re:;ord and available the same is derived from

¶0He would support the merits of the case on the with it after calling foi-clarification from the School and no extraneou's material was considered. f'V.P.(C)No. 7360/2010 and conneclec' mailer Page 10 of34 \ i V, 'I. " ' "'iiiuT Moreover,the speakingorderis entirelyjustifiedand not beinghitby the vice of arbitrariness,illegalityor lack of, it shouldnot be interferedwith.

¶9•Mrs. AvnishAhlawat,learnedcounselfor respondentNo.2 would submitthatthe Schoolin questionis an aidedschoolwhere 95% grantis given by the Government. .For recruitment/appointmentwhich is by promotionor directrecruitment.Rule 96 of the Delhi SchoolEducation Rules, 1973 prescribes the procedure. Under Rule 96 (2) (b), the Selection Committee, in case of appointmentof a teacher other than Head of the School shall consist of (i) Chairman of the Managing Committee or a Member of the Managing Committee nominated by Chairman,(ii) Head ofthe School;(iii).inthe case ofprimkryschool,a female educationisthaving experienceof school education;(iv) in the case of aided school one educationistto be nominatedby the Director and one representativeof the Director(v) in the case of appointmentof the teacherfor any class in the middle stage or any class at the higher secondarystageand experton the subjectin relationto whichthe teacher is proposedto be appointedto be nominated,in the case ofan unaided schoolby the ManagingCoinmittedor in the case of an aidedschoolby the Director. She would also submit that under Rule 96 (7), where selection is made by the Selection Committee and the same is not acceptable to the Managing Committee of the school, the Managing W.P.(C)No. 7360/2010andconnectedmatter jj M -11 I r '!,; i ; r Committeeshallrecordits reasonsfor suchnon-acceptance-andreferthe matterto the Directorfor ir,:; decisionand Directorshalldecidethe same. selection is made by the

¶10She would further submit, that after the Selection Committee, th.; appointment is made by the Managing Committedunder Rule 98 but only of the candidatesselected by the DepartmentalPromotionCommittee. Shewouldalso submit,underRule 98 (2) everyappointment,made by the ManagingCommittedofan aided school,shall initiallybe provisionaland shallr3'quirethe approval of the Directorprovidedthat approval of the Directorwill be required only where the Director's nominee was not present in the Selection Committee/DPCor in case there is differenceof opinion amongst the membersofthe SelectionCommittee. She would also submit,Sub Rule

(3) of Rule 98 further pr:tvidesthat particularsof eveiy appointment shall be communicated to the Director within which the appointment is made and under sii shall be deemed to have approved an ap pointment made by the ManagingCommitteeofan aidedschoolif, wilhin 15 days from the date on whichthe particularsofappointment,are communicatedto Him under Sub Rule (3), he does not intimate to the jh/Iahaging Committee his disapprovalofthe appointment.

¶11She would also submit, on September 28, 2007 following the W.P.(C)No. 7360/2010andconnectedmatter j2 7 days from the date on b clause (4) the Director N' X " r II'- ;--i, I • ; .-[-IT r[|-!-, "FTriffi procedureprescribedunderRule 96 ofthe Rules, a DPC was constituted whichmet on September28, 2007. The postofPGT (Maths)fell vacant due to retirementof Shri K.K. Nalcra on 31'' August 2005. As per the seniority list, the DPC found that only one teacher-respondentno.2 herein was eligiblefor promotionas per recruitmentrules. The minutes were signedby Head ofScl-.ool,by subjectexperts,by DE Nomineeand. by EducationOfficer, Zone 28. However, Chairmanshowed arrogant behaviourand used unplea-.antlanguagefor EducationOfficerand DE Nominee,hurtingand insulangthem and did not signthe minutesfor the reason best laiown to him but, later on he signed those minutes also. And as per the Delhi School EducationAct and Rule, the respondent no.2 thus stood selectedunanimouslyby all the members of DPC of September28, 2007. She v/ould also submit,that inspiteof resporident no.2's selection, he was not given appointmentto the post of PGT (Maths). She would also submit, the school authorities,however,had submitted the case for approval to DirectorEducation on October 6, 2007 along with DPC mim.iteswhich were signedby the Chairman.But the respondentno.l insteadof approvingthe appointmentof respondent no.2 moved in a totally different direction and treated this as a manipulationof record and sought explanationof the Chairman vide show causenoticedatedFe oruary 12, 2008. She wouldalso submit,from W.P.(C)No. 7360/2010andcoivieciedm:.iier Page 13 of34 jjiiuji-jiiiiiaM this, it is clearly evidentthat though initiallythe Chairmanmay have some leservation,but, latfi' on, the minutes which were signed by the four m.embers of the departmentalPromotion Committee, were also signed by him. Respondentno.2 should have been promoted as PGT (Maths). It is her submissionthat the respondentno.2 after making number ofrepresentations'o the school as well as respondentno.l then filed W.P. No.694/2009 seeking direction of the Court to direct respondentsto act on the recommendationofDPC dated September28, 2007 and to give him apr^ointmentto the post of PGT (Maths). She would also submit, during the pendency of the said writ petition the Director of Education passed an order dated October, 18, 2008 for holdinga fresh DPC. Fresh DPC also has to be for the vacancywhich became availableon August, 31, 2005 and for which only Respondent no.2 was eligible.

¶12She would also su^;mit, since the Director of Education had already passed the order dated October 18, 2008 this Court without going into the merit of W.?.(C)No. 694/2009,disposedof the petition vide its order dated 17^'^ March 2010 directingDirectorof Educationto take a decisionon the minutesoffresh DPC, whichwas held on October 29, 2009. Meaning thereby that even if the. DPC would have unanimouslytaken any decisionofselectinga candidate,itis Directorof W.P.(C) No. 7360/2010 and connecled mai-er -rZ231LZH3SB i^r Educationwho will ultimatelyhave to take final decision as to who should be given the appointment.The Court also directedthat till the decisionof D.E., no appointmentwill be made. She would also submit that fresh DPC was held on October29, 2009, in which along with the respondentNo.2 petitionerwas also considered. Though,this DPC was for avacancyofthe year 2005 and petitionerwas not even eligibleto be consideredfor the same. The Director'snominee, EO Zone 28 and subject expert found respondentNo".2 fit for the post of PGT (Maths), but the Vice Principal of the School and the Chainnan again gave a sepaiatenote making certainallegationsagainstthe Director'snominee whichwere uncalledfor. In any case, the DPC consideredall the ACRs andfound manipulationin the ACR ofthe respondentNo.2, who'sgood ACRwas re-assessedas average. She wouldalso submitthattherebeing a differenceofopinionin the DPC minutes,the matterwas to be sentto the DirectorateofEducationon March 31, 2010 thoughthe same has to be sent to DE within two days frcm the date of the order who was to decidethe matterwithin 15 days from the date of submissionof papers by the School. She would ?lso submitthat the matterwas examinedby the DistrictAuthoritiesandthe ActBranchofthe Directoratewithregard to the rulesand instructionsissuedby the Govt. from time to time and lot of correspondencetook place between the School and the Directorate No. 7360/2010andconnectedmatter prage 15 oj 34 \A 0 and vide impugnedorderdated September8, 2010 held thatrespondent No.2 Hemraj who was selectedby the DPC is to be promoted and that Hemraj shouldbe allowedto jointhe duties. The DirectorofEducation as a matteroffact did not approvethe dissentnote ofthe Chairmanand _\.^ Vice Principal. All the official members of the DPC selected the respondentNo.2 which selectionwas approved. She would also submit that in the meanwhile,the ManagingCommittee,even thoughthe DPC was held on October29, 2009 which had not categoricallyselectedthe petitioner-MeenuShokeen,the Managervidehis letterdatedAugust23, 2010 appointedher as PGT (Maths) with immediateeffect which was also mviolationof the order passedby the Court on March 17, 2010. This letterwas receivedin the Directorateon 25"" August2010 and Dy. of Education(C/ND) vide his letter dated September8, 2010 infonnedthe Managerofthe School thatthe Directorhas not approved Ms. Meenu Shokeen'sappointment. Rightlyso, she was neverselected. She wouldalsosubmitthaton September8, 2010,DirectorofEducation communicateda detailed order on this point also holding that the respondentNo.2 Hemraj be promotedto the post ofPGT (Maths). She would also submit, Ms. Meenu Shokeenwas neithereligiblefor being considered for promotion !o the post of PGT (Maths) nor she was selectedby the DPC. In the DPC, Vice Principaland Chaimianhad W.P.(C)No. 7360/2010andconnectedmatter Page 16 of34 / given their dissenting note but, the majority decision was that the respondentNo.2 Hemraj is to be promotedas PGT (Maths). Therebeing a differenceof opinion, this Court as per Rule 96(7) of Delhi School Education Rules, 1973, directed the Director Education to take a decision and thus the order of Directorate of Education dated 8'^ September2010 is perfectly legal and valid.

¶13Havingheard the learnedcounselfor the parties,first dealingwith the submission made by Mrs. Avnish Ahlawat, that on the basis of the DPC held on September28, 2007, the respondentNo.2 couldhave been promotedis concerned,as noted, the respondentNo.2 was only eligible for considerationfor promotionas per the RecruitmentRules. Because, there was no clear conclusicriof the DPG primarilyfor the reason, the DPC was not able to decide that with two 'Average' and three 'Good' ACRs, the respondent can be promoted, it decidedto refer the matter to the Act Branch. The Act Branch, in its communication dated October 18, 2008, directedto conduct fresh DPC for promotionofthe eligible candidates. The Act Branch,has not said that the case ofthe respondent No.2 only be considered. It appears that the communicationdated October 18, 2008 was challengedby the respondentNo.2 before this CourtinW.P.(C)No.694/20Q9. In its interimorder,this Courtdirecteda fresh DPC be held but the selectionmay not be fmahzed till the next W.P.(C)No. 7360/2010andcounectedmailer Page 17 of34 >- date. In any case, in its final order, this Court had not disturbed the. communication dated October 18, 2008 nor has concluded anything on the DPC of September 28, 2007. If the respondent No.2 had any grievance on that ground i.e by a fresh DPC, the zone of consideration is sought to be enlarged, he should have sought such a direction. In any case, the petitioner has accepted the final outcome of the W.P.(C) No.694/2009 and the plea of Mrs. Ahlawat that the respondent No.2 should have been promoted on the basis of the DPC held on September 28, 2007 need to be rejected in view of what I have concluded and moreover the challenge in this writ petition is by the petitioner and respondent No.3 School to the communication of the respondent No.l dated September 8, 2010. The petitioner has not approached this Court seeking such a relief

¶14Insofar as the submissions made by Mr. Sidharth Yadav are concerned, the submission of Mr. Yadav that the relevant ACRs of the years 2003-2004 to 2007-2008 should have been considered, relying I upon the O.M. dated September 17, 1998, which according to him stipulate the cut off date as January 1 is concerned, suffice to state, that there is no dispute on this aspect betv/een the respondent No.3 School nor.the respondent No.l Directorate. I note, from the DPC proceedings held on October 29, 2009, the DPC has taken into consideration the IV.P.(C)No. 7360/2010 and connected matter Page 18 of34 - : - j -j ACRs forthe periodbetween2004-2005to 2008-2009.Ialsonote,that neitherthe two Membersrepresentingthe Schoolnor the thre.Members representingthe Education Departnjent/SubjectExpert in their notes annexedas ann.exureAand B, respectivelyraisedthe issnewithregardto the years for which the ACRs need to be considered. The Committee had consideredthe ACRs of the last5years immediatelyprecedingthe meetingon October29. 2009. and the last one beingof the year 2008-2009. Ifthatbe so,the firstACRofthefive yearswouldnecessarilybe of the year 2004-2005. Ev.aotherwise, in the imputedorder, the respondentNo.l had commentedthat "in 2003-2004despite givinga result of about 80«/o he was graded 'Average',which possibly could mean he could have been graded better. Even-on that count, the final outcome, would have been the same. Hence, the submissionof Mr. YadavthattherelevantperiodforwhichtheACRsneedto be considered is 2003-2004to 2007-2008needto be rejectedas it wouldnothavemade any difference.

¶15The submissionofMr. Yadav.basedon sub-Rule4ofRule 98 of the EducationRules,the Directorshallbe deemedto have approvedthe appointmentmadeby theManagementCommitteeofan aidedSchool,if Within15 days from the dateon whichtheparticularsof.heappointment were communicatedto him under sub-Rule3. if he did not intimateto P.(C) No. 7360/2010andconnectedmatter Page 19 of34 J-O-the Management Connnfee his disapproval of appointment i concerned,Ireproduce,for convenienceRule 98 as under:- .K,rrr;f managingcommittee. ' ; ^ Provided that the approval of the Director will h nomineewas notpresent' diffeLcfT" or in case there is Providedfurtherthattheprovisionofthissub-ruleshall ^otapplyto aminoritya:dedschool],

(3) The particularsofevery appointmentmode by the •nanaging committee cf an aided school shM t ll'"~'ed bysuchcommitteeto theDirector(either by registeredpostacknowledgmentdue or bymessZZ ^ho ^ill obtain an aclarowledgmento/Z thereof) withm seven daysfrom the date on which the appointment is made.

(4) The DirectorshallUdeemedto have approvedan MZTtTtL '"b-rul^aiTtesZot hVappLZnt] allowancefrom thedateof

(5) Where any appointmentmade by the manaeinv committeeofan aidedschool is not approvedby Z irector, sucn appointmentmay (pending the regular appointmentto thepost)be continuedon!naZcfal ^•P- (C) No. 7360/2010andconnectedmatter Page 20 of34 -j;r n . i. ;: : i • i • • ^| i n-'^ — "Trrnmrimrmir 5"^ for aperiodnot exceedingthree months and the salary and allowancesofthepersonso continuedon an adhoc basis shall qualifyfor the computationofthe did to be given to such school "

¶16The scheme of Rule 9h envisagesthat (i) appointmentof every employeeofaSchoolshallbe made by its ManagementCommittee;(ii) evei-y appointmentmade by the Management Committee of an aided Schoolshall initiallybe provisionaland shallrequirethe approvalofthe Director; (iii) the proviso clause clarifies that the approval of the Directorwill be requiredonly whereDirector'snomineewas not present in the Selection Committee/DPCor in case there is a difference of opinionamongthe Membersofthe SelectionCommittee;(iv) Rule 98(3) prescribes, the particulars of every appointment niade by the ManagementCommitteeof an aided School shall be communicatedby such Committeeto the Directorwithin 7 days from the date on which appointmentis made; (v) the Directorshallbe deemedto have approved the appointment made by the Management Committee of an aided School if within 15 days such an approvalis not communicated. There is no dispute that there was a difference of opinion amongst the Membersofthe SelectionCommitteeand it requiredthe approvalofthe Director. There is no dispute,the decisionwas takenby the respondent No.l in terms ofthe directionofthis CourtdatedMarch 17, 2010,which W.P.(C)No. 7360/2010andconnectedmatter ' Paoe21of34 n: reads as under:- "Mr. Vinay Sabharwal counsel for respondent no2 submitsthat the respondentschoolshall take a decision ns: fr\ ^ 7_- . , so as to appointa candidateon thepo. strictly in terms of the Delhi School ofPGT (Maths) Education Rules. " •' j^uuuuiLun Kiues. Counselalso submits that the ManagingCommitteeof eschoolhas takenadecisionto provisionallyappoint Ms. MeenuShokeenon thesaidpostofPGT(Maths). , h counselfir the petitioner submits that evenin the fi-esh DPC lthe case of the J. by three membersbut two members 'fave'tT''"!, "f ManagingCommittee g ve their dissent jne contentionofthe counselfor the P^^'tjoner is that in the case of \such a dissent fh £ °f°P"--^onno appointmentcan bemade by the ManagingCommtteeevenprovisionallyas underthe provisoofRule 98 ofDelhiSchoolEducationRulesthe matternecessarilyhas to go to the DirectorofEducation for his opinion.Mr. Rajiv Nanda counselfor respondent no. DirectorofEducationhas alsotakln the saidstand taken by the counsel for the petitioner.Without expressing any opinion on the \merits ' of 'Z nuhm'l^f°'' theparties.Ideem it { /I i ofthefresh DPC along ith the decision if any, taken by theManaging committeebeplacedby the schoolbefor\theDirectorof date of ^ lyyfj UOyS this orderand the decisionthereonshallbe taken by the of Education strictly in terms of fhloov^Tf andtheguidelinesof be takinbiT'n° be taken by the DirectorofEducationwithinaperiodof days from the date of submissionofpapers by the respondentschool Before the said decisim is taken bl theErectorofEducaiion,noprovisionalappointmelbe vilw of'1he'''T' ZZdsiposedS'' * M.P.(C)No. 7360/2010andconnectedmaitei-Page 22 of34 Tiiii1T'^"nf{TTW[i| 4-A ir'i:TT''"rr''-^-nyi

¶17The respondentNo:3 Schoolhad sent completepaperson March 31, 2010. It appears that certain claiificationswere sought from the SchoolvideletterdatedMay 11,2010 and reminderdatedMay 26, 2010 by the respondentNo.l Directorate,It is pursuantthereto,the impugned order was communicatedby the DirectoraterespondentNo.l to the School.To considerwhetherthe deemingprovisionof approvalwould be applicablein the facts ofthis case, it need to be consideredwhether this Court vide its order dated March 17, 2010 has evolvedaspecial proceduie,whichis not akinto the procedurelaiddown in Rule 98. No doubt, this Court, in its order dated March 17, 2010 had directed the Schoolto communicatethe recomjnendationofthe DPC alongwith the decision,ifany taken by the ManagemernCommitteewithintwo days from the date ofthe orderand the Directorwas to takeadecisionwithin 15 days thereafterstrictlyir. termsoftheDelhi SchoolEducationRules. 1973, at the same time, the Court had also directed, no provisional appointmentbe made by the School on the said post of PGT (Maths). This direction is adeparture from Rule 98 of the Education Rules, inasmuchas the Rule 98 of the EducationRules contemplateeven if there is adifferenceof opinionamongstthe Membersof the SeleUn Committee, the Management Ccmniittee could have made an

(C) No. 7360/2010andconnectedmatter Page 23 of34 appointment subject to the approval of the Director of Education. Further, when there is adirection of tire Court, not to make any appointmentto thepostofPGT(Maths)tillthe Directortakesadecision, the mandateofthe orderis. the appointmentto the saidpostshall be as per the decisionofthe DirectorrespondentnJ.I. motherwords, the decisionofthe DirectorrespondentNo.l,shall|,revail. The issuanceof the appointmentletterdated August23, 2010,^ithoutthe leaveofthe Court,also demonstratethe keem^essofthe Scljoolto accommodatethe petitionerinsteadof respondentNo.2, who des.itethe only Teacherin 2007, was not promoted; even in 2009, despite majority view in his favour, he was not promoted. Surely, the delay on the part of the DirectorrespondentNo.l, camrotbe to the prejudiceofthe respondent No.2, in whosefavourthe Directorhad ultimatelypassedthe impugned order.

¶18The plea of Mr. Yadav, that the deeming mto effect,wouldnotbe sustainableat leastin the:factsofthiscasewhen therewasadifferenceofopinionamongstthe Membersofthe Selection Committeeand order of this Court dated Marcl departurefrom Rule98. Thesefacts,woulddistir provision would come 1 17, 2010 which is a guishthejudgmentsin SmendraSingh (supra)andPromilaDixit(supm),relied upon by A4r. W.P.(C)No. 7360/2010andconnected matter Page 24 of34 5^ Yadav, whereinthis Court has held that under Rule 98(4) ofthe Rules, the approvalofthe appointmentby. the Directorcan be deemedto have been granted,ifnot objectedto within 15 days as the said provisionis a salutary provision intended to obviate the impasse of a person commencinghis employmentand later being told that his appointment was irregular. If that being the intent of the Rule, the School should have waited for the decisionof the Directoror soughthis permission. It could not have itself appointed the petitioneron the pretext of Rule 98(4). As no appointment was to be made, Rule 98(4) has no applicability.

¶19Insofar as the submission of Mr.Yadav that the respondent No.l could not have in the impugned order directed the promotion of the respondentNo.2 by relyingupon the judgmentofthis Courtin Chander Pal Jain and anoiher(supra),is concernedthereis no disputethatinthe case in hand, there was a differenceof opinionamongstthe Membersof the Selection Committee. Both sides have given their notes/views by way of annexureA and B. The views were also sent to the Directorof Educationpursuantto the ordersofthis Court on March 17, 2010. It is not a case where the Selection Committee was unanimous and had sent the name of the recommcaded person for approval of the Director. No W.P.(C)No. 7360/2010andconnectedmatter Page 25 of34 5) doubt,in suchasituation,the Directorwouldhave givenhis approvalor refusalthereof. But in acaseofthis nature,wheretherewas adifference of opinion amongst the Members of the Selection Committee, the Director would have to agree with one view. The Director, in the impugnedoider, noting the ACRs of the petitionerand the respondent No.2 and commentingon the low gradinggivento the respondentNo.2, despitegood resultsduringthatperiod,had agreedwith the views given by thi-ee members of the Committeefor promotionof respondentNo.2 on certain additionalgrounds as spelt out in para 10 ofthe impugned order and directedpromotionof the respondentNo.2. In ChanderPal Jain (supra),the Courtwas primarilyconcernedwith a case whereinthe petitionerhad soughtdirectionto granthim selectiongrade by quashing the orderdatedMarch31, 1975 and August2, 1975 and orderdatedJuly 25, 1974 awarding selectiongrade to respondentNo.5. He sought a furtherdirectionto promotehim to the postofPGT (Maths)by enforcing the order containedin letter dated Februaiy 17,1975 by cancellingthe order dated March31, 1975. The petitionerwas initiallyappointedas a LanguageTeacheron October10, 1962 in the D.A.V.HigherSecondary School,GandhiNagar,New Delhi. He was confirmedon the said post. The said School was bifurcatedin two Schools; one D.A.V. Higher Senior SecondarySchool No.l and D.A.V. Higher Secondary School W'.P.(C)No. 7360/2010andconnectedmatter ' Page26of34 J-Ti i?iiiTi'^'Minnrrmrp Jo" No.2. Uponbifurcationof the Schoolthere were five sanctionedpost of LanguageTeachers and in faot five LanguageTeachers were working in the School. After bifurcation three Language Teachers were posted in D.A.V. Higher Senior Secondary, School No.l and two Language Teachers were posted in D.A.V. Higher Secondary School No.2.. On bifurcation, the petitioner was not ready to join D.A.V. Higher . Secondary School No.2 as a Language Teacher and wanted to get himselfpostedin D.A.V.HigherSeniorSecondarySchoolNo.l in view of personalinterest..The Managementagreedto retain the petitionerin School No.l as TGT Teacher on the request of the petitioner. One Mr. Ved Prakash Singhal was, transferred to D.A.V. Higher Secondary School No.2. Since the petitioner had requested to be retained in D.A.V. Higher Senior Secondary Scnool No.l as TGT, one Prem Singh Kasana, who was an Assistant Teacfier till that time, was promoted to the post of Language Teacher in D.A.V. Higher Secondary School No.2 against the vacancy created on transfer of the petitioner and on subsequent adjustment against the post of TGT. Sh. Prem Singh Kasana the respondent No.5 was subsequently promoted to selection grade on May 25, 1974 with effect from September 5, 1971. The petitioner however was promoted to the post €=f PGT (Hindi) by an order of the Education Officer dated Februaiy 17, 1975. Subsequently, through an another W.P.fC)No. 7360/2010 and connected mo-'Xer Page 27 of34

i) order of EducationOfficeroa Marcli 17, 1975, the order promotingthe petitionerto the post of PGT v^as kept in abeyance. Primarilybeing aggrieved by the aiforesaid orders giving selection grade to the respondent No.5 Mr. Kasatia and keeping in abeyance his order of promotionto PGT, the petitirvQwas filed. This Courtin para 10 has held as under "10.In order to resolve the issues raised in this writpetition^ it would be appropriate to examinethe legalityand or validityof the order of promotion issued by the Education Officer on

17.2.1975promoting thepetitioner to thepost ofP.G.T. (Hindi), inasmuchas, thepetitioner has relied on this order ofpromotion for his challenge to the subsequent action on the part of the respondents keeping the aforesaid order in abeyance. My attentionhas been drawn to theprovisionsofRule 98 according to which, every appointmentmade by the Managing Committee of an aided School shall initially be provisional and shall require the approval of the Director. A careful reading of the aforesaidRule 98 makes it explicitthat all appointmentsof an aided Schoolhave to be made by the Managing Committee, but the same requires an approval, which is to be obtainedfrom the Director. In the instant case, the order ofpromotion in respect of the petitioner was issued by the Education Officer which action in the light of the provisions of Rule 98 appears to be illegaland withoutJurisdiction. The Director can only give an approval to a proposal submittedby theManaging Committeein respect of an intendingpromotion, but no such promotion in respect of a Teacherof an aided Schoolcould bepassed by the Director or any Officer subordinate to him of his own. The aforesaidfinding has been arrived at by me on a careful considerationof the aforesaidprovision ofRide 98 of the Rules. In this view of the matter, the order dated 17.2.1975is illegal and void and has noforce oflaw at all. " W.p.(C)No. 7360/2010andconnectedntati?.r Page28of34 ••iFrnirr \ } l:!' I . i IiVi iiiiiT v'nn^ h>^

¶20Fromthe facts and conclusionarrivedat by this Court,whichhave beennotedabove,itis clearthat this Courthad concludedrightlythat in terms of Rule 98, every appointment made by the Management Committeeshall be provisionalsubjectto the approvalof the Director. In other words, all appointmentsof an aided School are made by the Management Committee but the same only requires approval of the Director. It is in that backgi'ound,this Courthad saidthat no promotion orderin respectofaTeacherofan aided School,couldhave beenpassed by the Director or any Officer subordinateto him of his own (Emphasis supplied). It is not such a c.Lisehere. There was a differenceofopinion amongsttlie Membersofthe SelectionCommittee,whichwas sentto the Director of EducationrespondentNo.l for a decision. Surely, while takingadecisionin the facts, the respondentNo.l was withinits rightto approve/agreewith the majorityview of the Members of the Selection Committee, and direct the promotion of the respondent for certain justifiablereasons. The judgment as relied upon by Mr. Yadav is distinguishable.This submissionalso needto be rejected.

¶21Insofar as the submission of Mr.Vinay Sabharwal that on a comparisonofthe ACR's ofthe petitionerand me respondentNo.2, the petitioner being more meritorious, was, rightly appointed and the ^•P.(C) No. 7360/2010andconnectedmatter . Page29 of34 Average' ACR's, not being adverse, were not required to be communicatedtill April 13, 2010, when• notificationwas issued by DoP&T, which was afterthe SelectionCommitteehad met and the said mstructionsbemg prospective,is concerned,there is no disputethat the SupremeCourtin the caseofDevDiittvs'. UnionofIndia(2008)5SCC had conclusivelyheld that any gradings which are below benchmark need to be communicatedto the Officer concernedto enable him to makearepresentation.Thatbe so, the SelectionCommittee,havingmet after the judgmentof the Supreme Court in Dev Dutt (supra) and the judgment being binding on the authoritiesunder Article 141 of the Constitutionof India was requiredto be followed and the respondent No.3 School was requiredto communicatethe 'Average'ACR's to the respondentNo.2. Havingnot done, the said ACRs couldnot have been consideredto the prejudiceofthe respondentNo.2. On communication of the same, the respondent=No.2 could have representedagainst the sameto the authoritiesfor upgradation.Be thatas it may,the respondent No.1had rightlynotedin para 10 as under:- "10. And Whereas, itAs a settledlaw that DPC is the final authorityto determinethefitness ofcandidatesfor promotion. DPC does not merelyfollow the gradings given by the School. It is rather, supposed to take an overall view^ of the performance of candidates to ascertaintheir eligibilityfor promotion. The dissenting W.P.(C) No. 7360/2010andconnectedmatter Page 30 of34 view of the Chairmanand Vice-Principalonly deals with the grading part o the ACRs based on boards results. No act or misconducton thepart ofSh. Hem Raj which calls for a lowerACR gradinghas been broughton recordby the School. He was also not communicatedany adverse remarks,resultingin 'Average'ACRgradings."

¶22The above would make it clearthat the DPC is withinits right to •"a., ^ not merelyfollowthe gradingsgivenin the ACRs, itcan supposeto take an overall view of the performance of the candidates to ascertain his/her i eligibility for promotion.

¶23While approving/direr.tingthe promotionof the respondentNo.2, the respondentNo.l has in paras 7 & 8 of the impugned order dated September 8, 2010 has noted as under:- ~^ "7. At the time of thefirst DPC in 2007, Sh. Hem Raj had three 'Good' graded ACRs and two 'Average' graded ACRs during the relevant period. In the year 2002-2003, he was assessedas 'Good'. In 2003-2004despitegivinga resultof about 80%, he was graded as 'Average'. In year 2004-2005 his resuh was 83.3% and 56.14% and he was graded as 'Good'. In the year 2005-2006, his result was 47% and

96.15% in X and XII classes respectivelyand was graded as 'Average'. In the year 2006-2007, his result was 80.7% in classX and 83.3% in classXIIand he was graded as 'Good'. It is also pertinent to mention here thatfrom the year 2006-2007, though he was a TGT, he was assigned to teach the senior secondary classes and he achieved good results in senior secondary classes. A perusal of record shows that there is discrepancybetween the resultand gradinggiven to him. Though the resultis not the only criteria, but certainly, it is one of the most important criterionfor teachers.. The benchmarkfor promotionfrom TGTto PGT is 'GOOD'.

¶8After comparing the above results with the corresponding ACR grading in the respective years, it W.P.(C)No. 7360/2010andconnectedma/'iir Page 31 of34 < \ '!1:T- -yp-FTITIffTTI appears that Sh. Hem Raj has not been meted out fair treatment in the sense that he was given below bench mark gradings even when his resultswere reasonablygood. Thus he was denied the pr : notion, for which he was eligible in 2007 itself'•

¶24The above, reveals, that the decision of the Director in favour of the respondent No.2 is primarily for the reason,that he is senior to the petitioner and the grading^ in his ACRs, does not reflect his overall performancein right perspective. If that be so, the authority having taken a decision which is plausible, surely this Court would-not like to take a differentview and justify the action of the.School in promoting the petitioner.

¶25Insofar as otherjudgmeijtsrelied upon by Mr. Yadav are concerned, in Sushma Banga (supra), this Court had held that when there is no. difference of opinion amongst the Members of the Selection Committee for promotionto PGT, in such a situation,the approvalof the Directorin terms of Rule 98 was not required. Similarly, in Saniosh Kumari Thapa's case, the Director of Education, after almost 13 months held as the plaintiffdid not possessthe requisitequalification,relyinguponRule 98 and notingthat the Directorhad not intimatedhis disapprovalto the appointment,held, the tenninationof the services of the plaintiffafter expii7 of her period of probationof one year was not in order. In view of my conclusionabove, on Rule 98(4), this judgmentwould not be of W.P.(C)No. 7360/2010andconnectedmailer Page32 of34 nr. ; any help to the petitioner. Furtherthe judgmentofthis Courtin Apinder Kaur (supra), is also not applicable. Furtherin AmrikSingh (supra), the Supreme Court had held that even non promotionon the basis of single adverse remark, is not subject to judicial review. There is no dispute on the said proposition. It is for the authoritiesconcerned,to take an overallview and give such a directionas deem fit. In this case, the Directoris an Authority;;ompetentunderthe Rules, who has taken a decision to promote respondentNo.2 and the said decision, being a plausibleview, as held in paragraph24 of the judgment,the judgment has no applicability to the ft. ..ts of this case.

¶26One of the submissionsof Mr. Yadav, that the equity demands thatthe petitionerworkingas PGT (Maths),onherpromotionfor the last five years, shouldnot be disturbed,sufficeto state, that the continuance ofthe petitioneris on the ba-iis ofthe protectiongrantedby this Courton . December6, 2010 in W.P.((,!)No.8138/2010. Hence,this submissionof Mr. Yadav is without any merit.

¶27Noting the facts, this Court is of the view that the challengein thesepetitionsto the orderCaiedSeptember8, 2010 is withoutany merit. The same is dismissed. W.P.(C) No. 7360/2010andconnectedmatu:r p^ge 33 of34 CM Nos. 14590/2010. 512/2011 & 11450/2011 in WoP.Cn 7360/2010 CM No. 20972/2010 in W.PJC) 8138/2010

¶28In view of the order passed in the writ petition, the present applications are dismissed as infructuous. DECEMBER 22, 2015 ak -ifv (V.KAMESWAR RAO) JUDGE W.P.(C) No. 7360/2010andconnectedmatter Page34 of34

+ IN THE HIGH COURT OF DELHI AT NEW DELHI Judsment reserved on November 26. 2015 Judgment delivered on December 22, 2015 W.P.(C) 8138/2010, CMNo. 20972/2010 SALWAN BOYS SENIOR SECONDARY SCHOOL Petitioner Through: Mr.Vinay Sabharwal, Advocate versus HEM RAJ AND ORS Respondent Through; Ms.Avnish Ahlawat, Adv. for R-1 Mr.Siddharth Yadav, Adv. for R-2 Mr.D.Rajeshwar Rao, Advocate with Mr.Charanjeet Singh, Adv. for R-3 CORAM; HON'BLE MR. JUSTICE V.KAMESWAR RAO V.KAMESWARRAO. J. For order, see W.P.(C) 7360/2010. DECEMBER 22,2015 ak lii-l (V.KAMESWAR RAO) JUDGE gitally Signed nature Not Verified M * IN THE HIGH COURT OF DELHI AT NEW DELHI Judsment reserved on November 26. 2015 Jiidsment delivered on December 22. 2015 + W.P.(C)7360/2010,(:MNos.14590/2010,512/2011& 11450/2011 MEENU SHOKEEN .... Petitioner Thxough: Mr.SidddarthYadav,Adv. Versus DIRECTOR OF EDUCATION AT^ro ORS Respondent Through; Mr. Arjun Mitra, Adv. for R- 1 with Dr. S.K. Sharma, DEO (Zone 28) Ms.Avnish Ahlawat, Adv. for R-2 Mr. Vinay Sabharwal, Adv. forR-3 ^ + W.P.(C)S138/2010,CM No. 20972/2010 • SALWAN BOYS SENIOR GSCONDARYSCHOOL Petitioner Through: Mr.VinaySabharwal, Advocate . versus HEM RAJ AND ORS Respondent i:iirough: Ms.AvnishAhlawat,Adv. for R-1 Mr.Siddharth Yadav, Adv. for R-2 Mr.D.Rajeshwar Rao, AdvocatewithMr.Charanjeet Singh, Adv. for R-3 W.P.(C)No. 7360/2010andconnectedma,'^r , ,-,,-3^, "'nniiir •> ; .1- ''nrTinil CORAM: HON'BLEMR. JUSTICEV.KAMESWARRAO V.KAMESWAR TIAO. T 1. As both these writ petitionsinvolve challengeto a. common order datedSeptember8, 2010 wich identicalfacts,the same are beingdisposed of, by this common order. The parties shall be referredto, in tenns of their status in W.P.(C) Ng.7360/2010 i.e Petitioner as "Petitioner", Directorof Education(respondentNo.l), Mr. Hemraj (respondentNo.2) and SalwanBoys SeniorSecondarySchool,the writpetitionerin W.P.(C) N6.8138/2010(respondentT^Jo.S). 2. By the impugned or^ier dated September8, 2010, passed by the Directorate of Education respondent No.l. pursuant to the directions issuedby this Courtin WritPetition(Civil)No.694/2009datedMarch 17, 2010,the DirectorofEducationhas directedthe promotionofrespondent No.2 Hemrajto the postofFGT (Maths)withimmediateeffect. 3. Some of the relevant facts are, in the yeai- 2005 the post of PGT (Maths) fell vacant in the respondentNo.3 School; on the retirementof Mr. K.K. Nala-a. On September 28, 2007, a DPC.was held in the respondentNo.3 School. /Is the respondentNo.2 only was eligiblefor promotionas per recruitmentRules,the DPC on considerationnotingthe ACR gradingofMr. Hemr^^,the respondentNo.2 for the period2002-03 W.P.(C)No. 7360/2010andconnectedmat!'r Page 2 of34 ni'linr -'-irimFwn to 2006-07consistedofthn;e 'Good' and two 'Average',decidedtorefer • the matterto the ActBranch, AcommunicationdatedOctober6, 2007, in that regard,was sentto AssistantDirectorofEducation,Act Branch. The Act Branch, vide its comniunicationdated October 18, 2008, had, on. a considefation of the DP(J and the show-cause.notice issued to the respondentNo.3 School and the reply given by the School, rejectedthe minutesof the DPC held on September28, 2007 and directedthe School to conductfreshDPC for promotionof eligiblecandidates. It is notedthat Mr. Hemraj respondent No.2 filed W.P.(C) Nc5.694/2009 against conveninga fresh DPC. :he writ petitionwas listed'onJuly 14, 2009, when this Court had directed that a fresh DPC be held but the selection may not be finalisedtill the next date. It appears that, againstthe said order,Mr. Hemraj filed an intra-courtappeali.e LPANo.541/2009,which was dismissedby the AppellateCoT?rtnotingthat the impugnedorder i.e July 14, 2009 was an interlocutoryorder. The DPC was held on October 29, 2009. It consistedoffive Members,two representingthe Schooland threebeingfi-omthe Education Department/Subject Expert. 4. The decisionofthe DPC was not unanimous,the Members gave their views vide two annexuresA and B, which were appendedto the DPC proceedings. Annexure A