IN THE HIGH COURT OF DELHI AT NEW DELHI WP(C) No. 4412/2005 Judgment reserved on: 2.8.2007 Judgment delivered on: September , 2007 Smt. Swapna Sood W/o Shri Sunil Sood, R/o 1/16, First Floor, Old Rajinder Nagar, New Delhi ..... Petitioner Through: Mr. M.A. Niyazi with Ms. Anamika Gahi, Advs. versus 1. Directorate of Education Vikas Bhawan, I.T.O. New Secretariat, Delhi 2. Army Welfare Education Society (AWES) Through its Director HQ Delhi Area, Delhi Cantt – 110 010 3. Army Public School Through its Principal Ridge Road, Dhaula Kuan New Delhi – 110 010 ..... Respondents Through: Ms.Avnish Ahlawat with Nidhi Gupta, Ms. Simran and WP 4412 of 2005 page 1 of 37 Ms. Latika Chaudhary, Advs. for R-1. Mr. Kartik Anand, Adv. for R- 2. Mr. R.R. Ojha, Adv. for R-3. CORAM: HON'BLE MR. JUSTICE KAILASH GAMBHIR 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes KAILASH GAMBHIR, J. By way of present writ petition, the petitioner has sought quashing of interview dated 17th February, 2005, held or the appointment of Post Graduate Teacher (PGT) (Chemistry) against regular post in respondent No. 3 school. The petitioner has further sought direction for regularization of her appointment as PGT (Chemistry) in respondent No. 3 school on the basis of Combined Screening Board (CSB) Exam held in the year 2004 and interview in May, 2004. WP 4412 of 2005 page 2 of 37 Brief facts necessary for the decision of the present petition in nutshell, inter alia, are that the petitioner was appointed initially on contract basis by respondent No. 3 w.e.f. 14th July, 2003 to 30th April, 2004. As per the rules/procedure/guidelines formulated by respondent No. 2 for seeking appointment of a regular teacher against the post of TGT/PGT, the requirement is to clear the test of Combined Screening Board and after qualifying such test the candidates are given score cards. It is not in dispute that the petitioner had qualified the written test of CSB and she was issued a score card, which has been placed by the petitioner on record. This score card indicates that serial number of the petitioner is 41866 and it further shows that the petitioner had qualified written exam for Combined Screening Board held in the year 2004. This screening card was issued in favour of the petitioner on 27th January, 2004. When a person qualifies the test whether CSB or LSB, that makes him or her eligible to appear for the final interview either for the post of TGT or PGT. The petitioner stated that she was called for interview by the Selection Committee constituted by respondent No. 2 society for WP 4412 of 2005 page 3 of 37 her appointment against a regular vacancy of PGT (Chemistry). The petitioner further stated that the interview of the petitioner was conducted as per the rules/procedures adopted by the Selection Committee, which comprised of the representative of the Chairman of the school, head of the school and expert in the subject besides other members. The petitioner further stated that the petitioner had duly qualified the said interview. The petitioner further stated that even after qualifying the interview the petitioner was not given any appointment letter, but was again appointed on contractual basis vide appointment letter dated 14th July, 2004 for a period of one year w.e.f. 1st July, 2004 to 30th June, 2005. When the said appointment was not given to the petitioner on the basis of her qualifying the said interview, she was told by the school that still the petitioner will have to qualify the Combined Screening Board Interview and only thereafter she will be considered for the appointment on the said post of PGT (Chemistry). With this impression in mind the petitioner kept on waiting for the CSB interview to be conducted by respondents No. 2 and 3. In the year 2005 CSB was held but the petitioner was not WP 4412 of 2005 page 4 of 37 called for the interview and she was informed that 12 candidates were called for interview by the selection board for selecting candidates for the post of PGT (Chemistry) available in the cluster of three schools of respondent No. 2 society. The petitioner was also intimated that percentage of the last candidate called for interview in the CSB by the selection board was 62.5%. Aggrieved with the said actions of respondent No. 2, the petitioner has preferred the present petition. I have heard learned counsel for the parties at considerable length. The main thrust of argument of the counsel for the petitioner revolves around the selection of the petitioner against the regular post of PGT (Chemistry) after she was declared as successful by the Selection Committee. The counsel had drawn my attention to the letter dated 21st June, 2004 issued by respondent No. 2. This letter is a kind of covering letter, forwarding therewith, the result of the selected candidates for which the interview was held by the Selection Committee. This letter is addressed by respondent No. 2 to all the schools of their cluster and it states that appointment letters in terms of the said selection be issued in favour of the selected candidates as WP 4412 of 2005 page 5 of 37 per the terms and conditions laid in the same. The name of the present petitioner appears at serial No. 8 against the post of PGT (Chemistry). The same indicates that she was duly selected by the said Selection Committee. The counsel contended that once the petitioner was selected by the Selection Board and the society had given directions to all the concerned schools of their cluster, then as to why the appointment letter in terms of the said letter dated 21st June, 2004 was not issued to the petitioner. The counsel also contended that once the petitioner was selected against a regular post then where was the need to appoint the petitioner on contractual basis from 1st July, 2004 to 30th June, 2005. The counsel for the petitioner also contended that once the petitioner was selected against the said regular post of PGT (Chemistry), then, no fresh process of appointment on the said post as far as Army Public School, Dhaula Kuan is concerned, could have taken place. The counsel also contended that the said selection process in the year 2005 was illegally undertaken by respondent No. 2 with a mala fide intention to deprive the petitioner from the said post of PGT (Chemistry). The WP 4412 of 2005 page 6 of 37 counsel further contended that the mala fide intention of respondent No. 2 was apparent from the fact that a wrong information was rendered to the petitioner by stating that 12 candidates were called for the interview while the list of candidates, placed by the respondent on record showed that there were 15 candidates, who had participated in the interview. The counsel further contended that the petitioner was intimated that the last candidate, who was called for interview, possessed 62.5% marks, while Ms. Renu Aggarwal, who was shown at serial No. 13, scored 187 marks in the written examination out of total 350 marks, which approximately comes to 53% marks. Counsel also contends that the said candidate, who had secured 53% marks was not only permitted for the interview, but she was also recommended as one of the selected candidates. Per contra, Mr. R.R. Ojha, counsel appearing for respondent No. 3 mainly contended that the reliefs as claimed by the petitioner in the present petition cannot be granted in her favour. Counsel contended that prayer (a) in which the petitioner has sought quashing of the interview dated 17th February, 2005 is not available to the WP 4412 of 2005 page 7 of 37 petitioner as the eligible candidates, who had secured the requisite laid down percentage of marks, were only called for interview and since for that particular interview the petitioner did not fulfill the eligibility criteria of scoring the requisite marks, therefore, the said relief of seeking quashing of the interview dated 17th February, 2005 cannot be held to be available to the petitioner. Prayer (b) is also not available to the petitioner as per the contention of the counsel for the respondent No.3. The counsel stated that the petitioner is seeking regularization on the post of PGT (Chemistry) without there being any appointment in her favour on the said post. The counsel also contended that the petitioner can only claim her right to participate in the process, but cannot claim any right to seek the appointment itself. The counsel also contended that even this Court cannot issue any such direction for appointment of a person unless such a person is so appointed by the concerned authorities. Counsel for the respondent stated that in the year 2004 there was only one candidate and there was only one vacancy in July, 2004 and that is why the petitioner was not given the appointment letter and that is the reason WP 4412 of 2005 page 8 of 37 for giving her another appointment letter on contractual basis. Counsel appearing for respondent No. 2, Mr. Kartike Anand states that as far as the schools run by the Society are concerned, the society is bound by the provisions of the Delhi School Education Act and the Rules framed thereunder. Counsel further contended that as far as the selection process, which was undertaken by the society in the year 2005 is concerned, still the process for constituting a Selection Committee in compliance with the provisions of Rule 96 of the Delhi School Education Rules was to take place and, therefore, no finality could be attached to the result declared by the Selection Committee of CSB held in the year 2005. Counsel also contended that the petitioner had simply qualified the CSB written exam, but still she was required to undergo and qualify the final interview of the CSB and since the petitioner was not eligible as far as 2005 CSB was concerned having not scored the cut off marks, so she was not called for an interview. Counsel for respondent No.2 has also placed reliance on the judgment reported in 2002 VI AD (Delhi) 109 Smt. Asha Vij & WP 4412 of 2005 page 9 of 37 Others vs The Chief of the Army Staff and Others in support of his argument that the writ petition filed by the petitioner is not maintainable against respondent No. 2 society under Article 12 of the Constitution of India as the society would not fall within the ambit of the expression “State”. Counsel for respondent No.2 society has further placed reliance on the following judgments in support of the contention that the society being registered under the Societies Registration Act and being neither controlled nor managed by the Government of India or a State Government, therefore, cannot be held to be State under Article 12 of the Constitution of India. Counsel for the respondent no.2 has placed reliance on the judgments mentioned below: 1. UOI vs. Chote Lal & Anr. AIR 1999 SC 376 2. Asha Khosa vs. Chairman, Army Public School (SLP (Civil No. 6482/97). 3.Ram Lubhai vs. Secretary, MOD 2004 Lab IC 1319 4. Hem Chand vs. UOI, CWP No. 8308/2001, P&H HC (DB) 5. A.K. Upadhyaya vs UOI, CWP No. 23130/2004, ALL HC WP 4412 of 2005 page 10 of 37 6. K.C. Tewari vs. UOI, CWP No. 17380/1992, All HC. 7. Nijmullah Ansari vs. UOI, WP (C) No. 6191/2005, Gauhati HC. Besides placing reliance on the aforesaid judgments the counsel for respondent No.2 also contended that even if it is held that under Article 226 of the Constitution of India the society respondent No. 2 is amenable to the writ jurisdiction then the remedy of the petitioner does not lie under Article 226 of the Constitution of India on account of the fact that the service of the petitioner was contractual in nature and the same cannot be enforced by invoking writ jurisdiction of this Hon'ble Court. The counsel appearing for respondent No. 3, Mr. R.R. Ojha, Advocate, also seriously refuted the arguments of the counsel for the petitioner. Mr. Ojha contended that the petitioner has no right to be appointed on the post of PGT (Chemistry) as she has never qualified the CSB interview, which is a prerequisite for selecting a candidate to the aforesaid post. The counsel further contended that the petitioner was selected in the LSB interview conducted on 24th May, 2004 and on the same basis she was appointed again on a fixed tenure for a period w.e.f. 1.7.2004 to 30th June, 2005. As regards CSB WP 4412 of 2005 page 11 of 37 interview held on 17th February, 2005, the contention of the counsel was that the petitioner was rightly not allowed to participate in the said interview as she did not score the cut off marks of 62.5% as laid down by respondent No.2 society for drawing a fresh panel of candidates for the purpose of CSB interview. The counsel also contended that no selection as per the mandate of Rule 96 of the Delhi School Education Rules has taken place and, therefore, the petitioner cannot claim to have been legally and validly selected on the said post of PGT (Chemistry). Counsel contended that she was not appointed against the existing vacancy and she does not have any vested right for regularization of her service unless she is selected by the Selection Committee duly constituted by respondent No.2 under Rule 96 of the Delhi School Education Rules. The counsel for the respondent school also contended that since the petitioner had already accepted the contractual appointment for a temporary period of one year w.e.f. 1.7.2004 to 30.6.2005, therefore, the petitioner having acquiesced to her such appointment cannot now claim contrary to the same. The contention of the counsel for the WP 4412 of 2005 page 12 of 37 respondent school is that the petitioner has never challenged her said contractual appointment and once having accepted the same cannot turn around, and now claim appointment against a regular post without having been selected in accordance with Rule 96 of the Delhi School Education Rules. In support of his arguments counsel for respondent No. 2 placed reliance on the judgment reported in JT 2003 (5) SC 144 Dr. (Mrs.) Chanchal Goyal vs. State of Rajasthan, wherein the Supreme Court has held that unless the initial recruitment is regularized through a prescribed agency and the appointment is made on a regular basis, there is no scope of regularization. Counsel for respondent No. 3 also placed reliance on the judgment reported in 1963 (1996) DLT 150 entitled Satya Prakash Vermani vs. Govt. of NCT of Delhi and Ors. in support of the proposition that once the petitioner having accepted her appointment on the contractual basis for a temporary period then right to challenge the validity of such an order is barred by the doctrine of estoppel and waiver. Both the counsels appearing for the respondents also laid considerable emphasis on the self written letter WP 4412 of 2005 page 13 of 37 of the petitioner dated 16.2.2005 in which the petitioner had clearly admitted that she was yet to appear for CSB interview. In this letter the petitioner also made a request to the Principal of the school to allow her to appear in the CSB interview scheduled to be held on 17th February, 2005. Both the counsels also contended that in all 12 candidates were called for CSB interview for the vacancy of PGT (Chemistry) and these candidates were shortlisted on the basis of their respective merit in the CSB written exam and percentage of the last candidate called for interview was 62.5%. The petitioner who had secured 53% was, thus, not eligible to be considered for the CSB interview which was held on 17th February, 2005 and there was nothing wrong on the part of the respondents in not calling the petitioner for the CSB interview held on 17th February, 2005. Counsel for respondents No. 2 and 3 also contended that no relief can be given to the petitioner in terms of the prayers made in the present writ petition. In prayer (a) the petitioner has sought writ of mandamus for quashing of interview dated 17th February, 2005 and in reply to this WP 4412 of 2005 page 14 of 37 prayer paragraph the contention of the counsel for the respondent No. 2 is that once the petitioner did not qualify the laid down criteria of scoring minimum percentage, therefore, the petitioner cannot seek quashing of interview dated 17th February, 2005 in which she was not eligible to participate. In prayer (b) the petitioner has sought directions against the respondents for her regularization on the post of the PGT (Chemistry) on the basis of 2004 CSB exam and LSB interview of May, 2004. In this regard counsel appearing for the respondent No. 3 says that since no appointment of the petitioner was made on the said post, therefore, the petitioner cannot seek any direction from this Court for her regularization. The contention of both the counsel appearing for respondents nos. 2 & 3 is that regularization should follow the appointment and it cannot be vise versa. After giving my thoughtful and anxious consideration to the arguments advanced by counsel for the parties and perusal of the documents placed on record including the original record placed by respondent No.2 my conclusions are as follows:- WP 4412 of 2005 page 15 of 37 There is no doubt that respondent No. 3 school is being run by respondent No. 2 society, which is a society registered under the Societies Registration Act. It is also not in dispute that the respondent school although unaided, but is a duly recognized school, recognized by the Directorate of Education, Govt. of NCT of Delhi and provisions of Delhi School Education Act and the Rules framed thereunder are fully applicable to respondents No. 2 and 3. It is also not in dispute that the appointment of any teacher be it regular or ad hoc has to take place through the Selection Committee duly constituted in accordance with Rule 96 of the Delhi School Education Rules and unless the mandate of Rule 96 is followed in the selection of the petitioner, the appointment of the petitioner cannot be considered to be legal and valid on the said regular post of PGT (Chemistry). It also cannot be in dispute that the petitioner has no vested right of appointment or of regularization and the only right she has, is to be considered for an appointment on the regular post by the Selection Committee duly constituted under Rule 96 of the Delhi School Education Rules. In view of the said position, the precise question to WP 4412 of 2005 page 16 of 37 be answered by this Court is as to whether the petitioner was lawfully and validly selected in terms of Rule 96 of the Delhi School Education Rules or not. Before adverting to Rule 96 of the Delhi School Education Rules, it may be pointed out that respondent No. 2 has evolved an elaborate selection procedure for the appointment of teachers through the process of conducting Combined Screening Board (in short referred to as CSB) and Local Screening Board (in short referred to as LSB). The candidates who qualify the written test either LSB or CSB are given authenticated “score cards”. This score card, issued by the respondents, gives details as to when the candidate has qualified a particular written test and for which post, including the percentage scored by the candidate in part A and B exams. The guidelines of respondent No.2 school for the selection of teachers through CSB and LSB are reproduced below:- “CONDUCT OF COMBINED SCREENING BOARD (CSB) & LOCAL SCREENING BOARD (LSB) • CSB is conducted once every year for the following categories: ➔For fresh applicants of PGTs, TGTs & PRTs. ➔For PGTs/TGTs/PRTs appointed earlier on ad hoc WP 4412 of 2005 page 17 of 37 basis. ➔For teachers seeking higher grade i.e. PRT to TGT and TGT to PGT. • LSB is conducted for PRTs. Procedure in Outline • CSB and LSB is conducted in three stages as under:- ➔Written Test (200 Marks) -09 Jan 2005 (Sunday). ➔Interview – (200 Marks) – PGT & TGT – 15 to 25 Feb every year. PRT-2nd/3rd week Mar & 3rd/4th week Jun. ➔Teaching Skills (200 Marks) – for short listed candidates after interview. Written Test • Qualifying in the written test only makes you eligible for a panel interview. Reporting time 0900 hrs. (a) Part A (Commo n for PGT/TG T/PRT) General Awareness, Mental Ability, English Comprehension, Educational Concept and Methodology 90 Min (0930 – 1100h) PGT & TGT-80 Marks PRT 200 Marks Objectiv e type Q Paper using QMR (b) Part B (PGT & TGT) Subject Specific (Less English & Hindi 2 hrs (1130- 1330h) 120 Marks Objectiv e type Q paper using QMR WP 4412 of 2005 page 18 of 37 (c) Part B Languag es (PGT & TGT) English, Hindi 2 hrs (1130- 1330 h) 120 Marks 90 Mks Objectiv e 30 Mks Descript ive • To qualify you must score 50% in EACH Part 'A' and 'B' (PFT & TGT) and Part A ONLY(PRT). “ PGT/TGT Qualifying in Part A entitles you for a PRT 'Score Card'.” The CSB and LSB procedure are further defined in the guidelines and the same are also reproduced as under:- “12. Category. CSB will be for following category of teachers:- (a) For PGTs/TGTs who were earlier employed on Adhoc basis. (b) For fresh applications of PGTs/TGTs. (c)For upgradation of PRTs in TGTs and TGTs in PGTs. 13. CSB (interviews) will be conducted from 15-21 Feb. This will consist of two or more Boards per Command making clusters at Sub Area/Area/Div/Corps level. If a school is located in distant and isolated place, Comd. HQ may have a separate board exclusively for that school, e.g. Srinagar, Dinjan. 14. Convening of CSB. HQ Commands will be responsible for convening requisite no of CSBs based on their cluster of schools. 15. Composition (CSB). WP 4412 of 2005 page 19 of 37 Presiding Officer - Brig Members - All Principals, Eminent Educationalist, Subject Expert and Psychologist (desirable). Notes: 1. All Principals of the cluster will be members, however, only two will sit in for any interview; Out of these two, one Principal must be of the school for which the particular candidate is being interviewed. 2. For CSB having only one school i.e. only one Principal the second Principal will be invited from any local school. 16. Interview. Each CSB will conduct the interview in one location. In the interview following aspects should be evaluated:- (a) Confidence and ability to communicate TEACHERS SELECTION PROCEDURE THROUGH CSB & LSB (b) Knowledge and clarity of concepts. (c) Ability to Contribute to extra circular activities. (d) General Awareness. (e) Computer literacy (f) Experience (g) Attitude (h) Whether teacher has the requisite QR. WP 4412 of 2005 page 20 of 37 (i) Emotional balance and stability. 17. Merit List & Weightages (a) Written Test - 200 marks (b) Interview - 200 marks 18. A candidate must score 50% marks in written test (Aggregate of two papers) to qualify for interview. In interview also minimum qualifying percentage is 50. A candidate qualifying both in written test and interview will be approved. Merit list will be made taking both the written test and interview into consideration. Appointment will made based on the merit list. Those approved but not in merit will be kept in the reserve panel. In case an approved candidate does not join or a vacancy occurs in mid session, candidates from this panel may be appointed. The reserve panel will remain effective for current academic session only. 19. Format for preparing Merit Sheets as per Appx 'B'. 20. Appointing Selected