WP (C) No.1234/2010 Page 1 of 38 .* HIGH COURT OF DELHI : NEW DELHI + WP (C) No.1234/2010 % Judgment decided on : 26.11.2010 SMT. PROMILA DIXIT ......Petitioner Through: Mr. Ravi Gupta, Sr. Adv. with Mr. Sudhandhu Tomar, Adv. Versus GOVT. OF NCT OF DELHI & ORS. .....Respondents Through: Mr. Sushil Dutt Salwan, Adv. for Respondent Nos.1-3. Mr. R.K. Kapoor, Adv. with Mr. Ramraghavendra, Adv. for Respondent No.4. Coram: HON'BLE MR. JUSTICE MANMOHAN SINGH 1. Whether the Reporters of local papers may be allowed to see the judgment? No 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported Yes in the Digest? MANMOHAN SINGH, J. 1. By way of this writ petition under article 226 of the Constitution of India, the petitioner seeks directions for quashing the letter dated 24.02.2010 issued by the Principal of the Sant Nirankari School, thereby informing the petitioner about rejection of her appointment on the post of Librarian, based on the instructions received by the respondent School from Director of Education vide their letter No. 114, dated 19.02.2010. WP (C) No.1234/2010 Page 2 of 38 2. The case of the petitioner is that the respondent No. 4 gave an advertisement for the vacant posts in its school in the Hindustan Times dated 07.06.2008. The petitioner applied for the post of TGT Librarian. The petitioner was called by the respondent No.4 on 19.06.2008 for verification of her certificate vide letter dated 17.06.2008. After verification of the document, by letter dated 01.07.2008 the petitioner was asked to appear for interview before the selection board on 08.07.2008. 3. The interview of various candidates was conducted by the staff selection committee as per the rules of the Delhi School Education Rules, 1973. And that after the selection, the petitioner was given an offer letter dated 23.07.2008 to join as TGT Librarian. The petitioner joined the School of respondent No. 4 on 25.07.2008 initially on probation of 2 years. 4. As no salary was paid to the petitioner, she filed W.P. (C) No. 581/2010 titled as “Promila Dixit vs. Govt. of NCT & Ors.” seeks direction to respondents to release the salary of the petitioner along with all consequential benefits. The petitioner alleged that during the pendency of the aforesaid petition, the petitioner came to know that the respondents are planning to terminate the services of the petitioner. The petitioner moved a Misc. application in the said writ petition which was listed before the Court but the same was withdrawn unconditionally. WP (C) No.1234/2010 Page 3 of 38 5. Meanwhile the respondents issued a letter No. 114 dated 19.02.2010 to the school whereby the Director of Education rejected the appointment of the petitioner and immediately on the same day, the Principal of the school orally communicated to the petitioner that her appointment has been rejected on the ground of over age. On 24.02.2010 Principal of respondent school issued a letter, stating therein that the services of the petitioner are no more required. Thus, the present writ petition has been filed by the petitioner. 6. The main contentions of the petitioner are that the post of Librarian falls in the category of TGT Misc. category. At the time of appointment for the post of Librarian, the age of the petitioner was 35 years and six months and 28 days and as per order No.F-1/16/3/R and S/79 dated 1.11.1980 issued by Delhi Administration there was a provision for age relaxation for a period of ten years to the women candidates in case of appointment of teacher. Even as per DO letter No.F.44-7/75/UTI dated 29.10.1975 the relaxation period of maximum 15 years period can be added in case of experience of teaching in recognized school. As the post of Librarian is equivalent to the post of miscellaneous teacher, the petitioner is entitled to the benefit of relaxation of age. It was alleged that similar benefit of relaxation is provided to the other woman candidates including one Mrs. Amita who has been appointed to the post of TGT Librarian in an aided school namely S.D. Secondary School (Gujrat), Kirti Nagar, New Delhi. WP (C) No.1234/2010 Page 4 of 38 7. The petitioner has also referred an advertisement dated 01.06.2008 published in Times of India issued by the Lakshmi Devi Jain Girls Sr. Sec. School, Pahari Dhiraj, Delhi-110006, for the post of Librarian, General Category wherein the age limit offered for the said post is below forty years. 8. In order to take the benefit of relaxation of age, it is stated that the petitioner applied before the respondent no.4 school through proper channel. She was earlier employed with Little Star Public Sec. School which was recognized. The experience certificate was counter signed by the Education Officer, Zone-IV, Distt. North-East, Yamuna Vihar, Delhi, and the same was submitted before the Staff Selection Committee. The petitioner resigned from the earlier school after accepting the offer letter dated 23.07.2008 of appointment from the respondent No.4. Therefore, the selection of the petitioner was made as per the rules and regulations of Delhi School Education Rules, 1973. 9. It is submitted that since the petitioner asked for the release of her salary for more one and half years, the respondents in revengeful manner issued the impugned letter. 10. The petitioner submits that after having served for more than 1-1/2 years, the service of the petitioner could not have been rejected. Her appointment complied with the provisions of Rule 98 as the nominee of the Director of Education was present in the Selection Committee. WP (C) No.1234/2010 Page 5 of 38 11. The respondent Nos.1 to 3 in their counter affidavit submits that the petitioner is not a trained Graduate Teacher (TGT), and she doesn‟t have required qualifications to be treated as a TGT. The qualification for the post of Librarian is different from that of teachers. For teachers it is compulsory that the candidates should be B.Ed. However, same is not required for the Post of Librarian. 12. Also that there exists no post known as TGT Librarian, Therefore, the petitioner can not be construed as a TGT teacher and is not eligible for the scheme of age relaxation. The petitioner has not challenged the recruitment rules and hence is not entitled to be heard. 13. The certificate No. SSA/SCERT/ACAD/2009-10 17556 appears to have been issued inadvertently showing her as TGT. The certificate cannot qualify the petitioner as a TGT, as she does not possess the required qualification for the post of TGT and has not under gone the required training. 14. Later on, the respondents Nos.1 to 3 have also filed the additional affidavit of Sh. Khan Chand wherein it was stated that as per the recruitment rules notified in Delhi Gazette on 23.1.2003, the age limit for direct recruitment of librarian prescribed is 30 years. There is a relaxation for Government Servant up to 5 years in accordance with instructions/orders issued by the Central Government. It is alleged that the petitioner in the present case was overage at the time of her selection and therefore, is not eligible to be considered for recruitment, however, it WP (C) No.1234/2010 Page 6 of 38 was not denied that as far as relaxation part is concerned, the Selection Committee has to recommend such a case and unless the recommendation is previously approved by the Director, any request contrary to that cannot be allowed. 15. It is also stated in the additional affidavit that the Selection Committee was neither authorized nor competent to recommend the case of the petitioner for selection and therefore, Rule 98 could not be applicable in the present case, however, it was admitted in the affidavit that in one or two other cases, the department erroneously granted the age relaxation for more than 10 years to librarian, but the petitioner cannot take the benefit of the said mistake as the petitioner‟s case has to be considered on its own merit. 16. The respondents have relied upon notification dated 16.01.2003 bearing No.F.DE. 4(19)/3/E.IV/99 EDN./12255-269 published on 23.1.2003 in Delhi Gazette in which the age limit for Librarian through direct recruitment has been prescribed. According to the respondents the circular No. F.38(11)/Misc/08/Vol.III dated 21.1.2009 issued by Directorate of Education, GNCTD, only speaks about pay scale. It is stated that there is no category or post as Misc./allied teachers as far as recruitment rules are concerned. Actually it was applicable to the misc./applied category of staff and it does not amount to change of rules. As per recruitment rules there is no category or post as misc/applied teachers. WP (C) No.1234/2010 Page 7 of 38 17. The respondent No. 4 (school) in its reply submitted that after appointment of petitioner her case was forwarded to the department for releasing the grant in aid for payment of salary to the petitioner w.e.f. 25.07.2008. The said letter was written on 25.10.2008 but no response was received from the Department. The respondent No. 4 school is a grant-in-school and if any appointment is made by the staff selection Committee duly constitutes then the department is bound to pay the grant in aid of 95% for payment of salary of the employee duly appointed in accordance with the prescribed criteria through the staff selection Committee. Lastly, it is argued by the counsel for respondent No.4 that his client would abide by any order passed in this Court in the matter. 18. Learned senior counsel Shri Ravi Gupta appeared on behalf of the petitioner has made the following submissions in support of his case. a) Firstly that the appointment of the petitioner was made in due compliance of the Delhi School Education Rules, 1973. The selection committee was constituted under the rules wherein the director of education and directorate of education were duly represented. After the due process, the decision was taken to appoint the petitioner. It is the contention of the petitioner that the respondent No.4 school as well as the directorate of education were aware of the petitioner‟s true age at the time of the appointment and thereafter the respondents went ahead to select WP (C) No.1234/2010 Page 8 of 38 the petitioner. The said selection cannot thus be called irregular by the respondent and thus the said letter stating so is bad in law. Further, the respondent also cannot call the petitioner being overage as the respondent themselves have kept the petitioner and utilized her services for more than one and a half years. b) The post of librarian has been classified under Group B, non ministerial. However, in circular dated 21.6.2007 bearing No.DE22/11/PFC/Aided/2006-07/3367-71 the post of Librarian has been classified under miscellaneous category of teachers. c) Secondly, learned senior counsel urged that the petitioner is a TGT teacher and thus the age relaxation if at all needs to be counted must be in consonance to the age relaxation given to the teacher. The counsel for the petitioner relied upon the circular dated 20.01.2009 issued by the central government wherein it is stated that the pay scale of the librarian and miscellaneous teacher would be in parity with the TGT teacher. Learned counsel further read the appointment letter and sought to contend that the words TGT teacher and librarian are used interchangeably and thus it means the same. Further the aid is drawn from the minutes of the selection committee and marksheets after the selection round to state that the librarian is actually a teacher. The age relaxation of TGT teacher is 10 years and thus if the age of the petitioner is considered in the light of the relaxation of the TGT teacher, the appointment of the petitioner is a valid one WP (C) No.1234/2010 Page 9 of 38 and cannot be said to be irregular. d) Thirdly, Mr. Ravi Gupta, learned senior counsel for the petitioner, contended that the action of the respondents suffer from the arbitrariness and actuated by malice as the respondents were fully aware of the age of the petitioner at the time of the appointment and the rejection of the selection of the petitioner by the respondent by the petitioner after one and a half years is totally arbitrary. It is further submitted by the petitioner counsel that the said action of the responded is arbitrary and violative of article 14 in as much as the directorate of the education under the rules have appointed several other librarians. The petitioner has given the following instances of the appointment wherein the invitation was given by the schools coming under the directorate of education and appointments made of the persons as librarians and age relaxations were given as that of TGT teachers: a) An order of appointment was issued by the office of Deputy Directorate of Education, Distt. North-West – A to Mr. Hari Prakash in which it was clearly stated that Librarian is a TGT Post. b) One Mrs. Amita was selected as a Librarian in an aided school namely S.D. Secondary School (Gujarat), Kirti Nagar, New Delhi. The Staff Selection Committee selected her and general age relaxation of ten years for women was also given to the said teacher. By citing these appointments, it is argued that the petitioner being similarly situated cannot be discriminated by way of malafide actions of the respondents. Thus, the petitioners appointment must WP (C) No.1234/2010 Page 10 of 38 be equated as TGT teacher and also deserves the same age relaxation. e) Fourthly, Learned senior counsel submitted that the petitioner was appointed under the rules and the respondent/ directorate of education has to approve the appointment in view of the provisions made in rule 98 (4) of the rules. If no intimation of the approval or disapproval is made within 15 days, the said appointment is deemed to be approved by the director. In the present case, the petitioner submitted that the appointment was made on 8.07.08 and the letter of rejection was received on 19.2.2010 which is not in compliance of the rule 98(4) of Delhi School Education Act & Rules 1973. 19. Learned counsel for the petitioner referred to the judgment passed by the learned single judge of this court in Surender Singh Vs. Manager Haryana Senior Sec. School & Others, cited as 95(2002) DLT 135 where in this court held that rule 98(4) will operate in cases to save the employee from the situation where he has worked in his employment for considerable length and later he has been told that his original appointment was non est. Thus, this court has held in that case, the appointment of the petitioner as a valid one. The petitioner counsel relied heavily on this judgment to support this argument. 20. Per Contra Mr. Sushil Dutt Salwan learned counsel appearing on behalf of the respondent nos. 1 to 3 and Mr. R.K. Kapoor appearing WP (C) No.1234/2010 Page 11 of 38 on behalf of respondent No.4 have made their submissions which can be outlined as under: a) Firstly the post of the librarian cannot be equated with teacher. Learned counsel for respondents relied upon the advertisement inviting application, mark sheets, interview minutes etc and sought to urge that the post of librarian is always treated separate from that of the TGT teacher although it may be different issue that the pay scale is the same. Thus, the petitioner case cannot be considered as if there is an appointment of TGT teacher. b) Secondly, learned counsel for the respondent argued that the present case of the petitioner can also not be equated as if the petitioner is the permanent employee, the petitioner was duly informed by its appointment letter that the petitioner is being kept on probation which means that the respondent is at liberty to remove the petitioner at any time. The respondent counsel has argued and states that the courts have time and again held that the temporary employee or a daily wager has no say and he/she cannot claim the employment as a matter of right. c) Thirdly, the counsel submitted that the once the petitioner is a librarian on probation and not a teacher, the relaxation age prescribed as per the notification No.F.DE 4(19)/3/E.IV/99 EDN./12255-269 dated 16.1.2003 published on 23.1.2003 in Delhi Gazette is 30 years which means that the maximum relaxation WP (C) No.1234/2010 Page 12 of 38 which can be given to the librarian is 5 years and not beyond the same. Once that is so, thus, the petitioner appointment was illegal and the same cannot be regularized. d) Mr. Salwan, the learned counsel for the Directorate of Education also submitted that the petitioner appointment is irregular as informed in the letter and it is the respondent no.2 and its management who has taken the wrong decision of appointment of person who is overage and does not qualify the requirements. The said fact is also recorded in the rejection letter dated 19.2.2010. Thus, the directorate of education cannot be stated to have taken any such decision and it is school management which is responsible. It is also argued that in any case, once the petitioners appointment is illegal at the inception and the same cannot be regularized. e) The learned counsel has also referred two unreported decisions in which orders were passed by the single judge of this Court. (i) In the case of Priti Sharma Vs. Govt. of NCT of Delhi and Others in W.P.(C) No. 5384/2008 wherein on the basis of guidelines of the notification no. F.1/16/3/RandS/79/Dated 1st November, 1980 for the post of fixation in Government and Government Aided Schools separately provides for teaching staff and ancillary staff thereof has come to the following conclusion: WP (C) No.1234/2010 Page 13 of 38 “….A perusal of the said guidelines would show that the post of Librarian is included in the ancillary staff at Serial No.7 of the said guidelines. The contention of Ms. Jyoti Singh is that the post of Librarian cannot be equated with the post of a teacher because the nature of duties of both of them are quite different. She has also relied upon an unreported judgment of this Court in WP(C) No.16051/2004 decided on 23.09.2008 wherein it was held that the post of Librarian cannot be equated with that of a teacher. 6. This Court having already considered the point as to whether the post of Librarian can be equated with the post of a teacher and decided the said question holding that the post of Librarian cannot be equated with that of a teacher, the question raised by the petitioner in the present writ petition is no longer res- integra This Court is of the opinion that the post of a Librarian by no means can be equated with that of a teacher. The post of Librarian falls in the category of non-teaching staff for which the maximum age prescribed in the Recruitment Rules is 30 years. It may be noted that the petitioner in the present writ petition has not challenged the vires of the Recruitment Rules applicable to the post of Librarian which have been notified by the Director of Education to be strictly adhered to by the schools and in fact the petitioner herself has placed reliance on the said Recruitment Rules annexed along with the petition at page 21 of the paper book. Under the circumstances, I have no hesitation in holding that the petitioner is not entitled to benefit of age relaxation in terms of notification dated 1.11.1980 at page 22 of the paper book.” (ii) In another unreported case of Amrit Pahuja Vs. Director of Education & Ors. being W.P.(C) No. WP (C) No.1234/2010 Page 14 of 38 16051/2004 an order was passed on 23.09.2008 in which the court has made the following observation: “The document (Annexure I at page 174 of the Paper Book) deals with revision of the pay-scales of the school teachers and on a perusal of the said document, it cannot be said that the post of Librarian was equated with the post of teachers in the school. The Librarian is a Librarian and a teacher is a teacher. The Librarian cannot claim parity with a PGT or Vice- Principal. The Recruitment Rules clearly provide that an incumbent for his/her eligibility for promotion to the post of Principal must possess ten year‟s of teaching experience either in the capacity of Vice-Principal or a PGT. Any teaching experience possessed by the petitioner working as Librarian cannot be equated with the teaching experience of a Vice-Principal or a PGT in the school.” The learned counsel for the respondent submits that where the appointments were made in contravention of the provisions of the act or the rules, the same cannot be held to be valid. 21. Learned counsel for the respondents has relied upon the following judgments in support of his submissions: 1. Mahboob Deepak Vs. Nagar Panchayat, Gajraula and Anr. (2008) 1 SCC 575. 2. A. Umarani Vs. Registrar, Cooperative Societies and Ors., (2004) 7 SCC 112. i) In Mahboob Deepak Vs. Nagar Panchayat, Gajraula and Anr. (supra), it was observed: “8. The respondent is a local authority. The terms and conditions of employment of the WP (C) No.1234/2010 Page 15 of 38 employees are governed by a statute and statutory rules no appointment can be made by a local authority without following the provisions of the recruitment rules. Any appointment made in violation of the said rules as also the constitutional scheme of equality as contained in Articles 14 and 16 of the constitution of India would be a nullity.” ii) In A. Umarani Vs. Registrar, Cooperative Societies and Ors., it was observed: “39. Regularisation, in our considered opinion, is not and cannot be the mode of recruitment by any “State” within the meaning of Article 12 of the Constitution of India or any body or authority governed by a statutory Act or the Rules framed thereunder. It is also now well settled that an appointment made in violation of the mandatory provisions of the statute and in particular, ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularization. (See State of H.P. v. Suresh Kumar Verma) 40. It is equally well settled that those who come by back door should go through that door. (See State of U.P. v. U.P. State Law Officers Assn.) 41. Regularisation furthermore cannot give permanence to an employee whose services are ad hoc in nature.” 22. In rejoinder submissions, it is argued by Mr. Ravi Gupta, Senior Counsel, that the petitioner was issued the pending certificate of TGT under the RTI information from another school i.e. S.D. Secondary School (aided school), it has been admitted that the post of Librarian is a Misc. Category. Even the Govt. of NCT, Delhi, on 18.1.2000 had approved appointment of one Sh. Hari Prakash on the post of TGT Librarian. WP (C) No.1234/2010 Page 16 of 38 23. It is stated by the counsel that the other aided school has also advertised the advertisement for the post of Librarian with age limit of 40 years and Govt. of NCT of Delhi has issued the post fixation of the respondent school for the year 2006-2007 which included the post of Librarian as TGT Misc. Category and as per the circular issued by the respondent, the Misc. category includes teacher. 24. It is argued by Mr. Gupta that the procedure for appointment by the Screening Committee issued by the respondent on 16.7.2007 confirms the appointment of the petitioner as per Rule 96(3)(b) of Delhi School Education Rules, 1973. The petitioner has also filed the copy of the RTI information dated 31.3.2010 and copy of DSSB advertisement No.001/2010, copy of RTI information dated 27.4.2010, copy of resignation letter as well as copy of relevant pages of Dixit School Manual in support of his submissions. 25. The response to the additional affidavit has been filed by the petitioner in which the contention of the Sh. Khan Chand in the additional affidavit has been refuted. It is specifically stated that Khan Chand