Full Text
# HIGH COURT OF DELHI
JUDGMENT
SONU LAL GUPTA AND ANR. ..... Petitioners
Through: Dr. Amit George, Dr. Swaroop George, Mr. Tanmay Cheema, Mr.Rayadurgam Bharat and
Mr.Sarthak Gupta, Advocates.
Through: Mr. Naresh Kaushik, Ms. Shikha John and Mr. Shubham Dwivedi, Advocates for UPSC / R-1.
Mrs. Avnish Ahlawat, SC with Ms.Tania Ahlawat, Mr. Nitesh Kumar
Singh, Ms. Palak Rohmetra, Ms.Laavanya Kaushik and Ms Aliza
Alam, Advocates for R-2 to R-4.
HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA
1. The challenge in this writ petition is to an order dated January 23, 2023 passed in O.A. No.102/2023 by the Central Administrative Tribunal (hereinafter referred to as the ‘Tribunal’) whereby the O.A. preferred on behalf of the petitioners for considering them for appointment to the post of Principal under the Directorate of Education in terms of Advertisement No.07/2021 and for quashing of rejection notice dated November 29, 2022, was dismissed on the ground that they fall short of teaching experience by 14 and 37 days respectively.
2. In brief, petitioner No. 1 Sonu Lal Gupta served the Directorate of Education, Government of NCT of Delhi as TGT (Maths) from December 31, 2010 to August 26, 2019 and as PGT since August 27, 2019. Thereafter, petitioner No.1 proceeded on deputation with State Council of Educational Research Training (SCERT in short) since December 17, 2020. Similarly petitioner No. 2 (Geeta) served the Directorate of Education as PGT (English) since January 17, 2011 and proceeded on deputation with SCERT since December 11, 2020.
3. Petitioners applied in pursuance to Advertisement No. 07/2021 issued by Union Public Service Commissioner (UPSC) for 363 vacancies for the post of Principal in the Directorate of Education, Government of NCT of Delhi. The advertisement prescribed Educational Qualification of Master’s/Bachelor’s degree from a recognised University/Institute and ten years’ experience of teaching as Vice Principal/PGT/TGT in a High School/Higher Secondary School/Senior Secondary School/Intermediate College and also reflected desirable qualifications. The UPSC also had discretion to relax the qualifications for reasons to be recorded in writing, in case the candidates were otherwise well qualified.
4. The details of the essential qualifications and other terms and conditions as advertised may be beneficially reproduced: “ESSENTIAL QUALIFICATIONS: (A)EDUCATIONAL: i) Master’s Degree from a recognized University / Institute; ii) Bachelor of Education from a recognized university / institute; and (B) EXPERIENCE: Ten years’ experience of teaching (Vice Principal / Post Graduate Teacher / Trained Graduate Teacher) in a recognized High School / Higher Secondary School / Senior Secondary School / Intermediate College. DESIRABLE: i) Holding Doctorate Degree from a Recognized University / Institute. ii) Experience of Administrative charge of a Recognized High School / Higher Secondary School / Intermediate College. NOTE: I: Qualifications are relaxable at the discretion of the Union Public Service Commission, for reasons to be recorded in writing, in the case of candidates otherwise well qualified. NOTE:II: The qualification(s) regarding experience is/are relaxable at the discretion of the Union Public Service Commission, for reasons to be recorded in writing in the case of candidates belonging to the Scheduled Castes or the Scheduled Tribes, if at any stage of selection the Union Public Service Commission, is of the opinion that sufficient number of candidates from these communities possessing the requisite experience are not likely to be available to fill up the vacancies reserved for them. DUTIES: Administrative, Academic and Financial jobs in school. To ensure quality education in school and ensure safety, security, punctuality, regularity & proper discipline among the students and the staff. To ensure that the Financial Rules are followed for all financial transactions. HQ: Directorate of Education, GNCT of Delhi, Old Secretariat, Delhi-54.”
5. Shorn off unnecessary details, it may be further noticed that petitioners undertook written test on July 17, 2022 and were provisionally shortlisted for interview. Petitioner No. 1 was thereafter directed to submit experience certificate of teaching in terms of the advertisement and petitioner No. 2 was directed to submit duly filled caste certificate, which was complied by them. However, petitioners were not finally included in the list of candidates shortlisted for interview on the ground of lacking ten years experience of teaching, despite their representations in this regard.
6. Aggrieved by rejection of their candidature by the UPSC, petitioners preferred O.A. before the Tribunal for directing the respondents to consider the petitioners for appointment to the post of Principal in terms of the advertisement and direct the respondents to allow the petitioners to participate in the interview for appointment.
7. The O.A. was dismissed by the Tribunal vide order dated January 23, 2023 against which present Writ Petition has been preferred by the petitioners with the following prayers: “(i) Grant an ex-parte ad-interim stay on the operation of the judgment dated 23.01.2023 of the Hon'ble Central Administrative Tribunal passed in O.A. No.102 of 2023 and also grant an ex-parte ad-interim direction to the Respondents, to permit the petitioners to sit for the interview which is being held from 30.01.2023 till11.03.2023 for the post of Principal under the Directorate of Education, GNCTD in terms of Advt. No.07/2021, vacancy No.21040701324 and;
(ii) Issue a Writ, order, or direction ·quashing and setting aside the impugned judgment dated 23.01.2023 of the Hon'ble Central Administrative Tribunal passed in O.A. No. 102 of 2023 and;
(iii) Issue a Writ, order, or direction quashing notifications dated
(iv) Issue a Writ, order, or direction to the Respondents to consider the
Petitioners for appointment to the post of Principal under the Directorate of Education –GNCTD in terms of advt. No.07/2021, vacancy No- 21040701324.”
8. It may be appropriate to notice that vide order dated February 27, 2023, pending final hearing of the petition, UPSC was directed to permit the petitioners to appear in the interview for the post of Principal and the result was directed to be kept in a sealed cover. We have been informed that the petitioners have accordingly been interviewed and the result has been kept in a sealed cover which is obviously subject to the outcome of the present petition.
9. Learned counsel for the petitioners contends that both the petitioners fulfil the educational/academic qualification and are also PhD, which is a preferential requirement as per the advertisement. It is urged that both the petitioners meet the required teaching experience, considering their substantive nature of duty on deputation with SCERT for the subject post but the UPSC has wrongly disqualified them on the ground that petitioner No.1 Dr. Sonu Lal Gupta falls short of experience by 14 days and petitioner No.2 Dr. Geeta falls short of experience by 37 days. It is urged that UPSC failed to consider the experience certificate given by Directorate of Education and SCERT in proper perspective and has only been swayed by present designation of petitioners as Assistant Professor in SCERT. It is contended that the Tribunal wrongly referred to an assertion that as per the recruitment rules, experience as an Assistant Professor is not relevant since the Notification rejecting the candidature only provided that the candidates having experience as Assistant Professor in University/ College is not considered relevant. It is pointed out that Notification only bars experience of Assistant Professor when such post is held in a University/College but not when the post may be held in a recognised High School/Higher School/Senior Secondary School or Intermediate College, in which category the deputation in SCERT may be placed. It is emphasized that the intent of the Rule is to exclude the teaching experience to the college students. The deputation of the petitioners in SCERT is claimed to be neither in a University nor a College but an academic support system for school education. The experience certificate of the petitioners as given by SCERT is also stated to indicate that the duty is equivalent to that of TGT/PGT and the work in SCERT involves visiting schools and taking classes as well. It is also contended that the relevant instructions for recruitment under Clause 9 (c) of advertisement also provides for equivalence of experience. It is pointed out that UPSC in its Notification dated November 29, 2022 had also considered the experience as Assistant Teacher for U.P. and Uttarakhand, though the same is neither prescribed in the advertisement for the subject post or the recruitment, which is demonstrative of the fact that UPSC had used the powers under advertisement to consider the equivalence of experience and had examined the substantial nature of duties involved in such post and did not simpliciter consider the nomenclature of such post. However, the same has not been adopted in the case of the petitioners. UPSC is also stated to have allowed the candidature in respect of ‘Mentor Teachers’ initiated by the Directorate of Education under Mentor Teacher Program who report to DIET Principals. Reliance is further placed upon Veena Aggarwal vs. Managing Committee, Shri Lakshmi Narain Trust, Gujarat Senior Secondary School & Ors., (1995) SCC OnLine Del 328 and Girish Ahuja vs. Kendriya Vidyalaya Sangathan & Others, (2009) SCC OnLine Del 2835.
10. On the other hand, the petition has been vehemently opposed by the learned counsel for UPSC and it is contended that the recruitment rules are unambiguous and the order passed by the Tribunal does not suffer from any infirmity. The contention raised on behalf of the petitioners is stated to be untenable as the recruitment rules cannot be expanded to include the experience which is not in an ‘educational institution’ or ‘on a post specified in the rules’. It is contended that the recruitment rules do not use the expression ‘equivalent’ either for the institution or for the posts mentioned in the Rule and this would result in giving a privileged treatment to the petitioners, as large number of persons have not been allowed benefits which is claimed by the petitioners. Reliance is also placed upon Yogesh Kumar & Others vs.
GNCTD & Others, 2003 (3) SCC 548 wherein it has been held as under:- “8............Recruitment to Public Services should be held strictly in accordance with the terms of advertisement and the recruitment rules, if any. Deviation from the Rules allows entry to ineligible persons and deprives many others who could have competed for the post.” The judgment relied upon by the petitioners in Veena Aggarwal (supra) is stated to be untenable in the facts and circumstances of the case. Reliance is further placed upon the judgment passed by the Hon’ble Supreme Court in the case of Zahoor Ahmad Rather and Others vs. Sheikh Imtiyaz Ahmad and Others, (2019) 2 SCC 404 and reference has been made to paras 26 and 27 which read as under:-
11. The issue for consideration is whether the teaching experience of petitioners on deputation with SCERT can be equated as teaching experience as Vice Principal/Post Graduate Teacher/Trained Graduate Teacher in a recognized High School, Higher Secondary School/Senior Secondary School/Intermediate College or they fall short of teaching experience by 14/37 days on account of proceeding on deputation to SCERT.
12. At the outset, it may be observed that there is no dispute on the proposition of law laid down in Zahoor Ahmad Rather and Others (supra) that the State as an employer is entitled to prescribe qualifications as a condition of eligibility after taking into consideration nature of job, aptitude required for efficient discharge of duties, functionality of qualification etc. and that judicial review cannot expand upon ambit of prescribed qualifications. In the aforesaid case, the qualification for the post of Technician III was prescribed as Matriculation with ITI in Electrical Trade. The appellants therein did not possess ITI Certification but were diploma holders in Electrical Engineering/Electronics and Communications. In the aforesaid background, it was held that inference cannot be drawn in absence of specific statutory rule under which holding of higher qualification could presuppose acquisition of lower qualification. Consequently, the Division Bench was justified in reversing the order of Singe Bench and holding that the appellants therein could not be included in select list since they did not possess the stipulated qualifications. Equally, it is well settled in Yogesh Kumar and Others vs. Govt. of NCT, Delhi and Others, (2003) 3 SCC 548 as relied upon by learned counsel for the respondent/UPSC that recruitment to public services should be held strictly in accordance with the terms of advertisement and recruitment rules, if any.
13. The present case involves direct recruitment to the post of Principal in the Directorate of Education. It is pertinent to notice as informed during the course of hearing that petitioners in case of promotion would have been normally entitled for promotion in the Directorate of Education against the post of Principal despite their having proceeded on deputation. The moot point for consideration is whether the experience certificates produced by the petitioners from SCERT and Directorate of Education stand appropriately evaluated by UPSC for holding that the petitioners did not possess essential teaching experience as stipulated in the advertisement.
14. It needs to be kept in perspective that SCERT is an Autonomous Institution under Directorate of Education itself and an expert body dealing in educational activities. Further, the experience certificate issued by SCERT is supported by the experience certificate issued by Directorate of Education. To appreciate the contentions raised on behalf of the parties, the experience certificates issued both by the Directorate of Education, Government of NCT of Delhi as well as SCERT, may be beneficially reproduced: “GOVT.
OF NATIONAL CAPITAL TERRITORY OF DELHI DIRECTORATE OF EDUCATION, E-II BRANCH OLD SECRETARIAT, DELHI-54 F.No.D.E.2(8)(2/Misc/E-I12022/pt.filel 2258 Dated: 12/12/2022 TO WHOMSOEVER IT MAY CONCERN lt is to certify that Mr. Sonu Lal Gupta, Employee ID-20191459 is a permanent employee of Directorate of Education, GNCTD. He has served the Department as TGT (Maths) from 31.12.2010 to 26.08.2019 and he is serving as Lecturer (Maths) since 27.08.2019 and presently he is deputed at SCERT, Delhi since 17.12.2020. He has the experience of teaching at Secondary and Senior Secondary Level since 31.12.2010 and he is involved in the tasks related to Teaching and School Education only. Dy. Director of Education (E-II Branch)” “STATE COUNCIL OF EDUCATIONAL RESEARCH & TRAINING (An Autonomous organization of Education Department, Govt. of NCT of Delhi) VARUN MARG, DEFENCE COLONY, NEW DELHI-110024 F.No.1.10(312)/SCERT/PF/Admn/2020/1379 Dated:13/12/22 Experience Certificate This is to certify that Dr. Sonu Lal Gupta (PGT, Math), Emp, ID-20191459 from School of Excellence Madanpur Khadar (School ID:1925432). is deputed at SCERT since 17/12/2020. After completion of his deputation, he will be repatriated to Directorate of Education, GNCT of Delhi on his substantive post i.e. PGT (Math). He is working in Directorate of Education, GNCT of Delhi since 31/12/2010.
SCERT and DIETs are under School of Education, Ministry of Education, Govt. of India. The course (D.El.Ed.) offered by SCERT comes under NCTE and is not a degree course which comes under UGC.
SCERT is neither a University nor a College. The faculty of SCERT is mandated to visit Secondary/Senior Secondary School of Directorate of Education, GNCT of Delhi to take classes to use innovative pedagogical practices in the actual classroom situations. The ultimate aim of these visits is to bring innovation and improvement in the school education. Currently, Dr. Sonu Lal Gupta, as Assistant Professor on deputation in SCERT, is looking after Pre-Service Teaching of D.El.Ed. students, In-Service Training of teachers, research and content development for school education only. The duties in SCERT/DIETs are aligned with the duties of TGT/PGT of Directorate of Education, GNCT of Delhi. (Aseem Kr. Goel) Dy. Director, SCERT” “GOVT.
OF NATIONAL CAPITAL TERRITORY OF DELHI DIRECTORATE OF EDUCATION, E-II BRANCH OLD SECRETARIAT, DELHI-54 F.No.D.E.2(8)(2/Misc/E-I12022/pt.filel 2259 Dated: 12/12/2022 TO WHOMSOEVER IT MAY CONCERN lt is to certify that GEETA, Employee ID-20110014 is a permanent employee of Directorate of Education, GNCTD. She has served the Department as Lecturer (English) since 17.01.2011 and presently she is deputed at SCERT, Delhi since 11.12.2020. She has the experience of teaching at Secondary and Senior Secondary Level since 17.01.2011 and she is involved in the task related to School Education only. Dy. Director of Education (E-II Branch)” “STATE COUNCIL OF EDUCATIONAL RESEARCH & TRAINING (An Autonomous organization of Education Department, Govt. of NCT of Delhi) VARUN MARG, DEFENCE COLONY, NEW DELHI-110024 F.No.1.10(273)/SCERT/PF/Admn/2020/13462 Dated:08/12/22 Experience Certificate This is to certify that Dr. Geeta (Lecturer English), Emp, ID-20110014 from RPVV Sec-10, Dwarka is deputed at SCERT since 11/12/2020. After completion of her deputation, she will be repatriated to Directorate of Education, GNCT of Delhi on her substantive post i.e. Lecturer (English). She is working in Directorate of Education, GNCT of Delhi since 17/01/2011.
SCERT and DIETs are under School of Education, Ministry of Education, Govt. of India. The course (D.El.Ed.) offered by SCERT comes under NCTE and is not a degree course which comes under UGC.
SCERT is neither a University nor a College. The faculty of SCERT is mandated to visit Secondary/Senior Secondary School of Directorate of Education, GNCT of Delhi to take classes to use innovative pedagogical practices in the actual classroom situations. The ultimate aim of these visits is to bring innovation and improvement in the school education. Currently, Dr. Geeta, as Assistant Professor on deputation in SCERT, is looking after Pre-Service Teaching of D.El.Ed. students, In-Service Training of teachers, research and content development for school education only. The duties in SCERT/DIETs are aligned with the duties of TGT/PGT of Directorate of Education, GNCT of Delhi. (Aseem Kr. Goel) Dy. Director, SCERT”
15. A bare perusal of the experience certificates issued by SCERT reflects that the petitioners on deputation are to be repatriated to Directorate of Education on their substantive posts on completion of deputation. The D.El.Ed offered by SCERT is under NCTE and is not a degree course. It is also highlighted that SCERT is neither a University nor a College and the faculty is mandated to visit Directorate of Education GNCTD to take classes to use innovative pedagogical practices in the actual classroom situations. The upshot is that the ultimate aim of these visits is to bring innovation and improvement in the school education and the duties are aligned with the duties of TGT/PGT of Directorate of Education, Government of NCT of Delhi. Also the experience certificates, issued by the Directorate of Education, Government of NCT of Delhi in favour of the petitioners, reflect that the experience in SCERT has been considered as tasks related to teaching and school education only.
16. In the facts and circumstances, we are of the considered opinion that ‘teaching experience’ of the petitioners on deputation in SCERT is primarily aligned with the duties of TGT/PGT and has been rightly considered by Directorate of Education to be a task related to school education only as per experience certificates. UPSC failed to correctly consider the experience certificates given by SCERT, which is an educational institution under the Directorate of Education itself and erred in holding that the petitioners did not possess the requisite teaching experience for the post of Principal in the Directorate of Education. Specifically so, as the same has not been even objected to by the Directorate of Education. In the facts and circumstances, it does not appear to be logical to ignore the said experience of the petitioners in SCERT, since the same substantially relates to teaching activity. UPSC appears to have been swayed merely by the designation of the petitioners in SCERT and no correspondence appears to have been taken with SCERT or Directorate of Education in case of any doubt in this regard. Even otherwise, as per advertisement, UPSC could have considered the relaxation, as the petitioners had been permitted to participate in the exams in the first instance without raising of any objections at an earlier stage. The equivalence as Assistant Teacher in U.P. and Uttarakhand is also pointed to have been considered though the same was not specifically prescribed in the advertisement.
17. In the aforesaid context, it may also be appropriate to refer to Veena Aggarwal vs. Managing Committee, Shri Lakshmi Narain Trust, Gujarat Senior Secondary School and Others, 1995 SCC OnLine Del 328 relied upon by learned counsel for the petitioners wherein the dispute related to appointment to the post of Principal governed by Delhi Education Act and Rules framed thereunder. The issue for consideration was if respondent No.4 Seema Aggarwal therein had ten years of experience of teaching as Principal/TGT in Higher Secondary/Senior Secondary School or Inter College. The observations in para 8 and 11 may be beneficially reproduced:
9. xx xx xx
10. xx xx xx
11. Thus, we are of the view that the experience of respondent No. 4, Ms. Seema Aggarwal as a Lecturer in a Degree College could be considered as an experience as Post-Graduate teacher for the purposes of considering her qualifications for getting the post of Principal in a Higher Secondary School.”
18. It may also be observed that the judgment passed by this court in Sudhir Kumar vs. UPSC and Others, WP(C) 1614/2023 decided on February 08, 2023 as relied upon by the respondents is distinguishable on facts, as the petitioner therein did not possess the essential qualification of B.Ed. However, in the present case the issue is with respect to consideration of teaching experience of petitioners in SCERT, during the period of deputation.
19. For the foregoing reasons, we are of the considered opinion that the Tribunal failed to correctly appreciate the factual position and erred in dismissing the O.A. The impugned order dated January 23, 2023 passed by the Tribunal along with notification issued by UPSC disqualifying the petitioners, is accordingly set aside. Since the petitioners already stand interviewed pursuant to order dated February 27, 2023 passed by this Court, respondents are further directed to consider the petitioners for appointment to the post of Principal, as per the outcome of the result and subject to their fulfilling all other terms and conditions of eligibility. Petition is accordingly allowed. Pending applications, if any, stand disposed of. No order as to costs.
(ANOOP KUMAR MENDIRATTA) JUDGE (V. KAMESWAR RAO) JUDGE May 10, 2023/A/sd