NAHAR SINGH Vs. BIJYA NAND

JUDGEMENT

(1.) Respondents 1,5 and 6 who were working as PGTs jn V.S. Agriculture Higher Secondary School, Khera Garhi, Delhi filed a writ petition in this Court under Article 226 of the Constitution of India challenging the validity of the order of the Directorate of Education, Delhi dated 26/27.8.1980 conveying the approval of the Director of Education to the appointment of the appellant herein as Principal of the school w.e.f. 10.9.1979 According to the writ petitioners, the appointment to the post of Principal was to be made by selection by promotion from the PGTs working in the same school on the basis of seniority-cum-fitness. They relied on the Cicular of the Directorate of Education dated 10.5.1963 in support of their contention that the post of the Principal is to be died in by departmental pro- motion, however, in case there Is no suitable departmental candidate in the next lower grade available, the same could be filled by direct recruit- meat. According to the writ petitioners, the whole procedure adopted by the respondents 2 to 4 was wrong. The appointment could not be made by direct recuritment. Thus, there was no question of issuing advertisement or interview by Selection Committee. In the process, the appellant herein who is junior to the writ petitioners got appointed as Principal of the school. It was further pleaded that respondents 1 and 6 herein would have been eligible for promotion if the post had been filled by promotion, however their names were not even considered because they were found to be ineligible since they did not have the requisite educational qualification i.e. second class master's degree. The writ petition was allowed by way of the impugned dated 24.3.1981. The learned Single Judge followed the judgment in Juswant Rat Gupta v. Delhi Administration etc., (CWP 923 of 1977) decided on 19.9.1979 and held that the recruitment to the post of Principal could be made only by promotion in view of the circular dated 10.5.1963. As a consequence, the appointment of the appellant berein was quashed. Thus judgment and order of the learned Single Judge dated 24.3.1981 is challenged by the appellant lathis appeal under Clause 10 of the Letters Patent.

(2.) It was submitted by the learned Counsel for the appellant that the learned Single Judge proceeded on the basis that the circular dated 10.5.1963 was operative, however the appellant has come to know that there were other circulars issued on 21-4.1970. 3.8.1971 and 10.8.1971 which made the position clear and recruitment to the post of Principal was rightly made by direct recruitment. Learned Counsel submitted that the parties all-through proceeded on the basis that the appointment to the post of Principal was only by direct recuritment and the respondents 1,5 and 6 had also applied in response to the advertisement to the post of Principal. Thus respondents 1, 5 and 6 are now preeluded from contending 'that the appointment could be made only by promotion as per circular dated 10.5.1963. Learned Counsel further submitted that the stand of the Directorate of Education before the teamed Single Judge in the counter affidavit was that the appointment could be made only by direct recruitment though they did not show the subsequent circulars dated 21.4.1970, 3.8.1971 and 10.8.1971.

(3.) On the other hand, it was submitted by the learned Counsel for the respondents that the circulars dated 21.4.1970, 3.8.1971 and 10.8.1971 are only clarificatory in nature and these circulars were meant for the guidance of the Principals and Managers if it was found accessary to make appointment by direct recruitment since suitable candidate from the same .school were not available for being promoted as Principal. Learned Counsel submitted that all the three circulars were not only available with the Directorate of Education but also with the appellant when the writ petition was beared and it was not considered necessary to place these circulars before the Court because parties always understood that these cirulars were only clarificatory in nature and the real operative circular which governed the recruitment to the post of Principal was of ro.5.1963. Learned Counsel submitted that even after the Delhi Education Act came into force ia the year 1973 the Rides provide that recruitment to the post of Principal will be by promation. This Iridicatts the intention of the Directorate of Education. it was submitted that the whole idea in recruitment as Principal from amongst promotees was to give opportunities to the teachers from the same school to be appointed as Principal ana, therefore, even in the circulars issued later i.e. circulars dated 21.4.1970, 3.8.1971 and 10.8.1971 it has been stated that preference will be given to teachers working in the same school. Learned Counsel submitted that the minimum educational qualification for appointment to the post of Principal is second class master's degree. The minimum qualification is relaxable in the ease the appointment is to be made from amongst the promotees. Thus, respondents 1 and 6 would be entited to be considered for promotion though they did not have the requisite qualification and only possessed a third class master's degree.