RAM TIRATH SHARMA Vs. ADMINISTRATOR

JUDGEMENT

(1.) The present writ petition has been filed by the petitioners for issuance of an appropriate writ/order/direcction for quashing the notification dated 25.2.1980 issued by respondent I and the orders dated 1.1.92 and 29.5.92 appointing respondent 5 as Vice Principal and subsequently as Principal and the order dated 21.7.92 appointing respondent 6 as Vice Principal and for further directions to the respondents for appointing the petitioners to the post of Principal and Vice Principal respectively.

(2.) The brief facts of the case are that the petitioners have been working with M.B.D.A.V. Sr. Secondary School, Usaf Sarai, New Delhi as Post Graduate Teachers (for short PGTs) since the year 1965 and 1966 respectively. Earlier they had been working since 1958 and 1964 as language teachers before their promotion as PGTs. The petitioners further state that the constitution of respondent 3 which is the concerned school is controlled by respondents 1, 2 and 4 under Rule 59 of the Delhi School Education Rules 1973 (hereinafter referred to as the Rules) read with Section 5 of Delhi School Education Act (hereinafter referred to as the Act). This point is not in dispute that 95% of the salary of the employees of the school and other expenses are contributed by respondents 1 and 4. Therefore, it is contended that respondent 3 is in authority within the meaning of Article 12 of the Constitution of India and as such all its actions are subject to guarantees as provided in the relevant provisions of the Constitution of India. The petitioners next state that Section 28 of the Act gives rule making power to the Administrator who is respondent I herein and under that section the Administrator is empowered to make rules laying down minimum qualifications, method of recruitment and terms and conditions of service of employees. This power may be exercised under Rule 28 with the previous approval of the Central Government and subsequent laying down of the rules before each House of Parliament. The Administration vide notification dated 25.2.80 allegedly exercising powers under Section 8(1) and Section 13 of the Act read with Rule 100 laid down recruitment rules for the post of Principal and Vice Principal for recognised schools in Delhi. The said notification is filed as Annexure A to the writ petition. The petitioners contend that the notification of 1980 is bad in law and void abinitio as the same has provided the filling of the posts of Vice Principal and Principal by selection which was not the earlier position and the petitioners have suffered on account of the same. The notification is also attacked on the ground that there was no power with the Administration under Section 8(1) and 13 of the Act and Rule 100 of the Rules for recruitment and the power is so provided in Section 28 which may be exercised by the Administrator with the previous approval of the Central Government and subsequent laying of the same before each-House of Parliament. The Administrator is only competent to make rules of recruitment under that provision and he is not guided by any other authority as has been purported to be done while issuing notification dated 25.2.80. Therefore, the notification of 25.2.80 is bad and the appointment of respondents 5 and 6 on the basis of selection as contemplated by the notification is liable to be set aside. The petitioners I and 2 are the senior most and, in fact, they rank senior to respondents 5 and 6 and their selection has to be based on the circular dated 10.5.93 which implies that the same has to be on the basis of seniority-cum-fitness. The circular dated 10.5.93 may be reproduced as follows:

(3.) There is no dispute that the notification of 1980 envisages that the appointment to the post of Principal and Vice-principal has to be on the basis of selection and by promotion failing by direct recruitment. The ratio continues to be 50:50 for departmental promotions and direct recruitment. The petitioners as well as respondents were considered from the quota of departmental candidates. The posts in any case are the selection posts and it is not denied by the petitioners that all the eligible candidates are to be considered. The meetings of Departmental Promotion Committee (for short DPC) held on 31.12.1991, 28.5.92 and 20.7.92 considered the names of the eligible candidates for the posts of Principal and Vice Principal respectively. The record has been produced before me which indicates that the petitioners have been duly considered on the basis of comparative merit and by perusal of their annual confidential reports. There is no doubt that DPC in case of petitioner no. I has mentioned that he was not qualified as he did not hold the requisite qualifications as per recruitment rules. However, the record which has been produced before me does not show that he was merely rejected on that ground. He was duly considered by the DPC held on 31.12.91 as well as on 28.5.92. Similarly, DPC considered petitioner no. 2 and he was also not considered suitable whereas record of respondents 5 and 6 was assessed better and they were found more suitable.