Bimla Kapoor Vs. Manager, JaIn Girls Higher Secondary School and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/691457
SubjectService
CourtDelhi High Court
Decided OnOct-06-1986
Case NumberCivil Writ Petition No. 737 of 1976
Judge Sunanda Bhandare, J.
Reported in1987(12)DRJ112
ActsDelhi Education Rules - Rule 109; Constitution of India - Article 30
AppellantBimla Kapoor
RespondentManager, JaIn Girls Higher Secondary School and ors.
Advocates: C.M. Chopra,; G.N. Aggarwal and; Geeta Sharma, Advs
Cases Referred and Sh. Gian Singh Maim v. The High Court of Punjab
Excerpt:
delhi education rules - seniority--the petitioner's seniority vis-a-vis respondent no. 5 was determined on the day of the decision regarding appointment to the post of post graduate teacher was taken. since the petitioner did not agitate this question her claim to seniority as a post graduate teacher at a belated stage and that too without any valid explanationn has to be refused. - - 15/7/1958. the petitioner claims to have made a representation against the discriminatory treatment given to the petitioner on 1/3/1962 which fact has been denied by respondents i and 2. in the year 1971 selection grade was introduced as recommended by the third pay commission. learned counsel further contended that the petitioner was not satisfied by the decision of the school authorities and had in fact made a representation to respondent no. language teacher grade 1. the petitioner was satisfied at that time in her appointment in p.sunanda bhandare, j. (1) the petitioner was appointed as assistant teacher on 1/8/1956 in the jain girls higher secondary school,, dharampura, delhi later on re-named as jain girls senior secondary school (hereinafter referred to as the 'school'). on 12/3/1957 the director of education sanctioned two posts of senior language teacher; one for hindi and another for sanskrit in the pay scale of rs. 120-300 and, thereforee, the petitioner was given the scale of rs. 120-300 w.e.f. 12/3/1957 on which date the petitioner claims to have been confirmed as a senior language teacher. given the scale ofrs. 120-300 w.e.f. 12/3/1957 on which date the petitioner claims to have been confirmed as a senior language teacher. respondent no. 5 mrs. kamlesh bhatnagar was appointed with the school and in the scale ofrs. 120-300 on 23/8/1957 and was confirmed in that grade on 10/8/1958. on 9/5/1958 respondent no. 4 director of education, delhi administration sanctioned three more posts to the school; two of post graduate teacher and one of senior language teacher. by order dated 18/8/1959 respondent no. 5 was appointed as a post graduate teacher w.e.f. 15/7/1959. the petitioner was appointed as a post graduate teacher on 1/12/1959. the petitioner felt aggrieved that instead of appointing her to the post of post graduate teacher w.e.f. 9/7/1958 she was appointed w.e.f. 1/12/1959 and, thereforee, made a representation requesting that the date of appointment be revised. this representation was duly considered and the petitioner was appointed as post graduate teacher w.e.f. 16/7/1959 by an order dated 1/2/1962. by another order dated 17/1/1962 the appointment of respondent no. 5 as a post graduate teacher was also revised by appoint her as a post graduate teacher w.e.f. 15/7/1958. the petitioner claims to have made a representation against the discriminatory treatment given to the petitioner on 1/3/1962 which fact has been denied by respondents i and 2. in the year 1971 selection grade was introduced as recommended by the third pay commission. in the year 1972 the school circulated seniority list showing respondent no. 5 senior to the petitioner. a legal notice dated 22/1/1974 was sent by the petitioner claiming seniority over respondent no. 5. on 21/1/1975 respondent no. 4 granted selection grade to respondent no. 5 w.e.f. 5/9/1971 on the basis of seniority-cum-fitness. the petitioner has challenged this order dated 21/1/1975 passed by respondent no. 3, in this writ petition under article 226 of the constitution of india on the ground that the petitioner being senior to respondent no. 5 in the grade of rs. 120-300 was entitled to the grade of post graduate teacher w.e.f. 9/7/1958 and consequentially to the selection grade. (2) it was submitted by the learned counsel for the petitioner that under rule 109 of the delhi education rules seniority of employees has to be determined by the order of merit in which they are selected for appointment to the concerned post and those selected on a earlier occasion have to be ranked senior to those selected later. thus the petitioner having been appointed earlier was senior to respondent no 5. it was submitted that though the petitioner was given the grade of post graduate teacher with effect from a later date, her initial appointment in the grade of rs. 120-300 was earlier than respondent no. 5 and thus was entitled to the selection grade on the basis of her seniority. learned counsel further contended that the petitioner was not satisfied by the decision of the school authorities and had in fact made a representation to respondent no. 3 to that effect. further, a final decision on her representation was not taken and the director of education and school authorities were having correspondence in this regard. in support of this contention, learned counsel referred to the letters dated 1/1/1974, 24/4/1974 and 6/3/1974 written by education officer, directorate of education to the school authorities inquiring as to why the petitioner was not given the post graduate teacher grade from the same date as respondent no. 5. learned counsel further submitted that in any event the question of seniority of respondent no. 5 and the petitioner was determined only when the question of determine selection grade came up and thus the petitioner could not have agitated this question earlier. it was submitted that the petitioner had moved this court without delay and was thus entitled to the relief prayed. (3) apart from contesting the claim of the petitioner on merits, at the outset, learned counsel for respondents i and 2 raised a preliminary objection regarding maintainability of the writ petition against minority educational institution in view of article 30 of the constitution of india. (4) on merits it was contended by the learned counsel that by letter dated 30/10/1960 the directorate of education informed the school authorities that the .petitioner should not be confirmed in the grade of rs. 200-400 as there were not sufficient number of students in class xi. it was submitted that this fact was intimated to the petitioner by the director of education vide letter dated 30/5/1961 and the petitioner had acknowledged this letter. it was submitted that respondent no. 5 was m.a. in hindi which was a compulsory subject whereas the petitioner was m.a. in sanskrit which was only an optional subject and, thereforee, at the time of assigning the post of senior language teacher itself the matter of seniority between the petitioner and respondent no. 5 was referred to respondent no. 4 for its decision and the post of senior language teacher was assigned to respondent no. 5-mrs. kamlesh bhatnagar. this position was not challenged by the petitioner at any stage. thus the position of seniority between the petitioner and respondent no. 5 was decided when the post of senior language teacher was assigned and not when the question of appointment as post graduate teacher was decided. it was, thereforee, submitted that since the petitioner was considered to be junior to respondent no. 5 as a senior language teacher and a post graduate teacher she could not have been considered for a selection grade before respondent no. 5-mrs. kamlesh bhatnagar. it was further submitted that during the pendency of this writ petition respondent no. 5 had retired from service and the petitioner had been appointed as vice principal w.e.f. 12th june 1986. it was submitted that the petitioner should not be permitted to open a stale claim which stood settled so many years back. it was submitted that the petitioner was trying to agitate the question of her appointment and promotion as a post graduate teacher made in the year 1962 by way of a writ filed in the year 1976 which would effect and disturb the decision taken by the school 15 years earlier and also affecting benefits given to respondent no. 5 so long ago. it was submitted that respondent no. 5 had retired and if this question is now reopened and it is held that respondent no. 5 was junior to the petitioner then all the salary, pension and other benefits given to respondent no. 5 will have to be recovered back from her and this would land the minority educational institution in great difficulty because though 5% of the wages are paid by the school 95% of the wages are paid by the delhi administration and delhi administration will not pay the amount twice year. in support of the contention that old and relayed claims should not be allowed to be opened in a writ petition learned counsel referred to ravindra nath bose & others v. union of india & ors. 1970 slr 616, s.k. sharma v. union of india & ors., 1971 (2) slr 395, s.r. singh v. delhi administration and ors., 1980 (1) slr 864 and sh. gian singh maim v. the high court of punjab & haryana & another, 1980 (3) slr 18. (5) at the hearing of the case, on one appeared for respondents 3 and 4. in the counter-affidavit in reply to the show cause notice it is stated that the question of seniority between the petitioner and respondent no. 5 stood resolved in the year 1962 itself when their respective seniority as senior language teacher was considered for granting post graduate teacher grade. thereafter two more posts of senior language teacher were sanctioned in 1959-60 and the petitioner was given the post of post graduate teacher (sanskrit) i.e. language teacher grade 1. the petitioner was satisfied at that time in her appointment in p.g.t. grade w.e.f. 15/7/1959. it was denied that any representation was sent by the petitioner to these respondents making a grievance against this appointment as p.g.t. from a later date than respondent no. 5 thus the petitioner being junior to respondent no. 5 as a p.g.t. was not entitled to get the selection grade before respondent no. 5. (6) learned counsel for respondent no. 5 contended that the question of seniority was settled 16 years before the petitioner filed the present writ petition and if this seniority is disturbed the rights which had accrued to her in the meanwhile would be affected. even though respondent no. 5 had retired her pensionary benefits also depend on the seniority. (7) though the grievance of the petitioner in this writ petition is to the grant of selection grade to respondent no. 5 in 1974 the decision of her claim to this selection grade will depend on her seniority as a p.g.t. because grant of selection grade was to be done on the basis of seniority-cum-fitness. admittedly, the question of appointment of the petitioners as a post graduate teacher w.e.f. 16/7/1959 and that of respondent no. 5 w.e.f. 15/7/1958 was decided as early as in the year 1962. apart from a letter allegedly written by the petitioner on 1/3/1962 representing against this appointment which fact has also been denied by respondents 1 and 2, there is nothing on record to indicate that the petitioner was agitating this matter further. the correspondence between the school authorities and respondent 3 and 4 referred to by the petitioner is also of 1974. there is nothing on record to indicate that so far as the petitioner was concerned any action was taken by the petitioner in this regard after 1962 or that this subject was being debated between the director of education and the school before 1974. a positive affirmation has been made by all the respondents that the question of seniority between the petitioner and respondent no. 5 was decided in the year 1961 when their appointment as senior language teacher was to be made. there is no denial to this assertion by way of a rejoinder affidavit. thus, if respondent no. 5 was appointed as a post graduate teacher with effect from an earlier date then she was consequentially entitled to be considered for the selection grade prior to the petitioner. i do not see any justification to re-open the question of legality of the appointment of the petitioner as a post graduate teacher several years after the appointment particularly when the petitioner herself had slept over the matter and had allowed rights of a third party to intervene in the meanwhile. the contention of the learned counsel for the petitioner that the claim of seniority arose only when the question of grant of selection grade was considered is without any force. the petitioner's seniority vis-a-vis respondent no. 5 was determined on the day of the decision regarding appointment to the post of post graduate teacher was taken. since the petitioner did not agitate this question her claim to seniority as a post graduate teacher at a belated stage and that too without any valid explanationn has to be refused. (8) since the main relief is being refused to the petitioner, it is unnecessary in the circumstances of the case, to consider the preliminary submissions regarding the maintainability of the petition on the ground that no writ lies against on order in view of article 30 of the constitution of india. (9) in the result the petitions is dismissed. there will be no order as to costs.
Judgment:

Sunanda Bhandare, J.

(1) The petitioner was appointed as Assistant Teacher on 1/8/1956 in the Jain Girls Higher Secondary School,, Dharampura, Delhi later on re-named as Jain Girls Senior Secondary School (hereinafter referred to as the 'School'). On 12/3/1957 the Director of Education sanctioned two posts of Senior Language Teacher; one for Hindi and another for Sanskrit in the pay scale of Rs. 120-300 and, thereforee, the petitioner was given the scale of Rs. 120-300 w.e.f. 12/3/1957 on which date the petitioner claims to have been confirmed as a Senior Language Teacher. Given the scale ofRs. 120-300 w.e.f. 12/3/1957 on which date the petitioner claims to have been confirmed as a Senior Language Teacher. Respondent No. 5 Mrs. Kamlesh Bhatnagar was appointed with the School and in the scale ofRs. 120-300 on 23/8/1957 and was confirmed in that grade on 10/8/1958. On 9/5/1958 respondent No. 4 Director of Education, Delhi Administration sanctioned three more posts to the School; two of Post Graduate Teacher and one of Senior Language Teacher. By order dated 18/8/1959 respondent No. 5 was appointed as a Post Graduate Teacher w.e.f. 15/7/1959. The petitioner was appointed as a Post Graduate Teacher on 1/12/1959. The petitioner felt aggrieved that instead of appointing her to the post of Post Graduate Teacher w.e.f. 9/7/1958 she was appointed w.e.f. 1/12/1959 and, thereforee, made a representation requesting that the date of appointment be revised. This representation was duly considered and the petitioner was appointed as Post Graduate Teacher w.e.f. 16/7/1959 by an order dated 1/2/1962. By another order dated 17/1/1962 the appointment of respondent No. 5 as a Post Graduate Teacher was also revised by appoint her as a post graduate teacher w.e.f. 15/7/1958. The petitioner claims to have made a representation against the discriminatory treatment given to the petitioner on 1/3/1962 which fact has been denied by respondents I and 2. In the year 1971 selection grade was introduced as recommended by the Third Pay Commission. In the year 1972 the School circulated seniority list showing respondent No. 5 senior to the petitioner. A legal notice dated 22/1/1974 was sent by the petitioner claiming seniority over respondent No. 5. On 21/1/1975 respondent no. 4 granted selection grade to respondent no. 5 w.e.f. 5/9/1971 on the basis of seniority-cum-fitness. The petitioner has challenged this order dated 21/1/1975 passed by respondent no. 3, in this writ petition under Article 226 of the Constitution of India on the ground that the petitioner being senior to respondent No. 5 in the grade of Rs. 120-300 was entitled to the grade of Post Graduate Teacher w.e.f. 9/7/1958 and consequentially to the selection grade.

(2) It was submitted by the learned counsel for the petitioner that under Rule 109 of the Delhi Education Rules seniority of employees has to be determined by the order of merit in which they are selected for appointment to the concerned post and those selected on a earlier occasion have to be ranked senior to those selected later. Thus the petitioner having been appointed earlier was senior to respondent no 5. It was submitted that though the petitioner was given the grade of Post Graduate Teacher with effect from a later date, her initial appointment in the grade of Rs. 120-300 was earlier than respondent no. 5 and thus was entitled to the selection grade on the basis of her seniority. Learned counsel further contended that the petitioner was not satisfied by the decision of the School authorities and had in fact made a representation to respondent no. 3 to that effect. Further, a final decision on her representation was not taken and the Director of Education and School authorities were having correspondence in this regard. In support of this contention, learned counsel referred to the letters dated 1/1/1974, 24/4/1974 and 6/3/1974 written by Education Officer, Directorate of Education to the School authorities inquiring as to why the petitioner was not given the Post Graduate Teacher grade from the same date as respondent no. 5. Learned counsel further submitted that in any event the question of seniority of respondent No. 5 and the petitioner was determined only when the question of determine selection grade came up and thus the petitioner could not have agitated this question earlier. It was submitted that the petitioner had moved this Court without delay and was thus entitled to the relief prayed.

(3) Apart from contesting the claim of the petitioner on merits, at the outset, learned counsel for respondents I and 2 raised a preliminary objection regarding maintainability of the writ petition against minority educational institution in view of Article 30 of the Constitution of India.

(4) On merits it was contended by the learned counsel that by letter dated 30/10/1960 the Directorate of Education informed the School authorities that the .petitioner should not be confirmed in the grade of Rs. 200-400 as there were not sufficient number of students in Class XI. It was submitted that this fact was intimated to the petitioner by the Director of Education vide letter dated 30/5/1961 and the petitioner had acknowledged this letter. It was submitted that respondent no. 5 was M.A. in Hindi which was a compulsory subject whereas the petitioner was M.A. in Sanskrit which was only an optional subject and, thereforee, at the time of assigning the post of Senior Language Teacher itself the matter of seniority between the petitioner and respondent No. 5 was referred to respondent No. 4 for its decision and the post of Senior Language Teacher was assigned to respondent No. 5-Mrs. Kamlesh Bhatnagar. This position was not challenged by the petitioner at any stage. Thus the position of seniority between the petitioner and respondent No. 5 was decided when the post of Senior Language Teacher was assigned and not when the question of appointment as Post Graduate Teacher was decided. It was, thereforee, submitted that since the petitioner was considered to be junior to respondent No. 5 as a Senior Language Teacher and a Post Graduate Teacher she could not have been considered for a selection grade before respondent No. 5-Mrs. Kamlesh Bhatnagar. It was further submitted that during the pendency of this writ petition respondent No. 5 had retired from service and the petitioner had been appointed as vice Principal w.e.f. 12th June 1986. It was submitted that the petitioner should not be permitted to open a stale claim which stood settled so many years back. It was submitted that the petitioner was trying to agitate the question of her appointment and promotion as a Post Graduate Teacher made in the year 1962 by way of a writ filed in the year 1976 which would effect and disturb the decision taken by the School 15 years earlier and also affecting benefits given to respondent NO. 5 so long ago. It was submitted that respondent No. 5 had retired and if this question is now reopened and it is held that respondent No. 5 was junior to the petitioner then all the salary, pension and other benefits given to respondent No. 5 will have to be recovered back from her and this would land the minority educational institution in great difficulty because though 5% of the wages are paid by the School 95% of the wages are paid by the Delhi Administration and Delhi Administration will not pay the amount twice year. In support of the contention that old and relayed claims should not be allowed to be opened in a writ petition learned counsel referred to Ravindra Nath Bose & Others v. Union of India & Ors. 1970 Slr 616, S.K. Sharma v. Union of India & Ors., 1971 (2) Slr 395, S.R. Singh v. Delhi Administration and Ors., 1980 (1) Slr 864 and Sh. Gian Singh Maim v. The High Court of Punjab & Haryana & Another, 1980 (3) Slr 18.

(5) At the hearing of the case, on one appeared for respondents 3 and 4. In the counter-affidavit in reply to the show cause notice it is stated that the question of seniority between the petitioner and respondent No. 5 stood resolved in the year 1962 itself when their respective seniority as Senior Language Teacher was considered for granting Post Graduate Teacher grade. Thereafter two more posts of Senior Language Teacher were sanctioned in 1959-60 and the petitioner was given the post of Post Graduate Teacher (Sanskrit) i.e. Language Teacher Grade 1. The petitioner was satisfied at that time in her appointment in P.G.T. grade w.e.f. 15/7/1959. It was denied that any representation was sent by the petitioner to these respondents making a grievance against this appointment as P.G.T. from a later date than respondent No. 5 thus the petitioner being junior to respondent No. 5 as a P.G.T. was not entitled to get the selection grade before respondent No. 5.

(6) Learned counsel for respondent No. 5 contended that the question of seniority was settled 16 years before the petitioner filed the present writ petition and if this seniority is disturbed the rights which had accrued to her in the meanwhile would be affected. Even though respondent No. 5 had retired her pensionary benefits also depend on the seniority.

(7) Though the grievance of the petitioner in this writ petition is to the grant of selection grade to respondent No. 5 in 1974 the decision of her claim to this selection grade will depend on her seniority as a P.G.T. because grant of selection grade was to be done on the basis of seniority-cum-fitness. Admittedly, the question of appointment of the petitioners as a Post Graduate Teacher w.e.f. 16/7/1959 and that of respondent No. 5 w.e.f. 15/7/1958 was decided as early as in the year 1962. Apart from a letter allegedly written by the petitioner on 1/3/1962 representing against this appointment which fact has also been denied by respondents 1 and 2, there is nothing on record to indicate that the petitioner was agitating this matter further. The correspondence between the School authorities and respondent 3 and 4 referred to by the petitioner is also of 1974. There is nothing on record to indicate that so far as the petitioner was concerned any action was taken by the petitioner in this regard after 1962 or that this subject was being debated between the Director of Education and the School before 1974. A positive affirmation has been made by all the respondents that the question of seniority between the petitioner and respondent No. 5 was decided in the year 1961 when their appointment as Senior Language Teacher was to be made. There is no denial to this assertion by way of a rejoinder affidavit. Thus, if respondent No. 5 was appointed as a Post Graduate Teacher with effect from an earlier date then she was consequentially entitled to be considered for the selection grade prior to the petitioner. I do not see any justification to re-open the question of legality of the appointment of the petitioner as a Post Graduate Teacher several years after the appointment particularly when the petitioner herself had slept over the matter and had allowed rights of a third party to intervene in the meanwhile. The contention of the learned counsel for the petitioner that the claim of seniority arose only when the question of grant of selection grade was considered is without any force. The petitioner's seniority vis-a-vis respondent No. 5 was determined on the day of the decision regarding appointment to the post of Post Graduate Teacher was taken. Since the petitioner did not agitate this question her claim to seniority as a Post Graduate Teacher at a belated stage and that too without any valid Explanationn has to be refused.

(8) Since the main relief is being refused to the petitioner, it is unnecessary in the circumstances of the case, to consider the preliminary submissions regarding the maintainability of the petition on the ground that no writ lies against on order in view of Article 30 of the Constitution of India.

(9) In the result the petitions is dismissed. There will be no order as to costs.