VIRENDRA NATH GUPTA Vs. DELHI ADMINISTRATION

JUDGEMENT

(1.) The two appellants, S/Sh. Virendra Nath Gupta and Mohammad Aslam Kidwai are teachers in the Kerala Education Society Senior Secondary School, New Delhi. They challenged the appointment of T. N. Vishwanathan Nair, respondent No. 5 as Vice-Principal of the Institution by means of a writ petition before the Delhi High Court under Art. 226 of the Constitution of India. The High Court by its order dated January 5, 1982 dismissed the petition in limine. Hence this appeal by special leave.

(2.) The Kerala Education Society (hereinafter referred to as 'the Society') is a Society registered under the Societies Registration Act, XXI of 1960. The Society is running the Kerala Education Society Senior Secondary School in New Delhi. The Delhi Administration as well as the Education Authorities have recognised the Institution as a linguistic minority school. The Institution is aided and recognised by the Delhi Administration. The objects of the Society are:(i) to provide facility for the education of children in the Union Territory of Delhi by making provision for suitable institutions; (ii) to promote, the study of Malayalam. A sizeable number of persons belonging to State of Kerala who speak Malayalam are residents in Delhi and they constitute a linguistic minority. The Malayalees have their 'Own language, script and culture, and in order to preserve the same they established the Institution which is ado ministered by the linguistic minority, with the primary purpose of promoting the study of Malayalam and also for preserving their culture, dance, music and other Kerala Arts. Teaching of Malayalam in the aforesaid Institution is compulsory from Classes I to V, as the medium of instruction is Malayalam. However, Malayalam is an optional subject in VI to XII standard. The school has 1700 students and more than 50% of parents and guardians belong to the lower income group of Malayalam speaking community.

(3.) The Institution is regulated by the provisions' of the Delhi School Education Act 1973 (hereinafter referred to as the Act) and the Rules framed thereunder, namely, Delhi School Education Rules 1973 (hereinafter referred to as the Rules). One post of Vice-Principal was created in the Institution in the pay scale of Rs. 650-1200 with effect from 1-10-1980. In March, 1981 a Departmental Promotion Committee (hereinafter referred to as DPC) was constituted to make selection for appointment to the post of Vice-Principal in accordance with the recruitment rules made under S. 8(1) of the Act read with Rule 100 of the, Rules issued on 25-2-1980 and published in the Delhi Gazette Extraordinary dated 7-4-1980. The DPC made selection from amongst the teachers of the Institution to fill up the post of Vice-Principal by promotion in accordance with the aforesaid Rules. The DPC recommended the name of T. N. Vishwanathan Nair, respondent No. 5 for promotion to the post of Vice-Principal although he did not fall within the zone of consideration as he was junior to the appellants at Sl. No. 10 in the seniority list. The Management of the Institution accepted the recommendation of the DPC and forwarded papers to the Director of Education for approval. Meanwhile, the appellants made representation to the Director of Education against the selection and appointment of respondent No. 5. The Director of Education rejected the Management's proposal and refused to approve the selection and appointment of respondent No. 5 on the ground that he did not fall within the zone of consideration according to the Rules and further he did not possess the essential qualification of five years' experience as Post Graduate Teacher as required by the Recruitment Rules. Since no suitable candidate was available for promotion within the zone of consideration the Director of Education permitted the Managing Committee to advertise the post for filling the same by direct recruitment. Thereafter, advertisement was published on 24-9-1981 inviting applications for the post of Vice-Principal. The advertisement stated the essential qualifications being Master's Degree with second division, five years' teaching experience as Post Graduate Teacher or ten years' teaching experience as Trained Graduate Teacher, and also ability to speak and write Malayalam. Since the knowledge of Malayalam was prescribed as an essential qualification, the appellants were not eligible for selection or appointment as they could not speak or write Malayalam. On the recommendation of the Selection Committee respondent No. 5 was appointed as a direct recruit to the post of Vice-Principal and the Director of Education approved his appointment.