Poonam Sharma v. Director of Education & Ors.

6. Thereafter, the petitioner made another representation to Special Director of Education raising questions as to why the DPC dated 17.06.2011 had not recommended the name of the petitioner and also as to under what authority the ACRs were reviewed after 5 years, when average ACR is not treated as adverse entry. However, no reply was received by the petitioner to the said representation. Subsequently, the present writ petition came to be filed on behalf of the petitioner.

7. The case on behalf of the petitioner is that she is well qualified and having degrees of M.A. (Maths), (Eco), (History) and B.Ed. The petitioner was appointed as TGT (Maths) with the respondent school on 03.07.1995. She has excellent service record and her work, conduct and performance have remained unblemished. Her results have remained very good and to the satisfaction of the officials of the respondents.

8. It is submitted that respondent no. 3 was appointed in the school in 1993 as TGT (English). His results remained average and poor. The Management, knowing the incapability and less potential of the respondent no. 3 never gave Class 10 (CBSE Board) for teaching when he was a TGT and he was confined to teaching only classes 6th to 8th.

9. It is contended on behalf of the petitioner that mere “average” grading in the ACR is not an adverse remark. Relying upon Rule 6.1.[4] of the Seniority and Promotion Rules by Muthuswamy, it is submitted that “average” entry may not be taken as adverse remark. Further, the petitioner has also relied upon Office Memorandum dated 28.03.2006 issued by Government of India, Ministry of Personnel and Pension, Department of Personnel and Training, New Delhi, wherein it has been recorded that overall grading given in the ACR should not be communicated even when the grading given is below the benchmark prescribed for promotion to the next higher grade. Thus, it is submitted that there was no need for communicating the ACRs with the grading “average” to the petitioner.

10. It is submitted that it is an admitted fact that as per the Delhi School Manual, all posts whether in direct recruitment or promotion, are selection posts. Hence, all appointments are to be made on the principle of merit and not seniority. Mere fact of respondent No.3 being senior to the petitioner could not have entitled him to promotion. The performance of respondent No.3 has always been substandard. In fact even after promotion as PGT, respondent was not given Class XII for teaching, but was given only Class X, thus, defeating the entire logic of promotion as PGT since Class X can be taught by TGT.

11. It is further contended on behalf of the petitioner that the difference in performances of the petitioner and respondent No.3 are reflected in their respective results for 5 years prior to arising of the vacancy. Respondent No.3 had not even taught classes IX and X despite being TGT and was teaching English and Social Studies to Classes VI and VII. Further, his pass percentages were below 50%, with the lowest being 14% pass percentage for Class VI in Social Studies in the year 2006-2007. In the same period, the petitioner who was teaching Maths to Classes VI to X had high pass percentage with only one entry below 50% for Class VI in the year 2006-2007.

12. It is the case of the petitioner that the entire process of selection appears biased and motivated towards ensuring promotion of respondent No.3 by any means. The direction of the DPC for communication of ACRs to respondent No.3 was wholly unnecessary and unmerited, as the mandate of the DPC could only be to select the best available candidate as per available records, and not to seek change of records of the candidates. Even otherwise, as per the extant instructions as given in OM dated 28.03.2006 issued by DOPT, Government of India, there was no necessity for communication of the ACR grading even when the grading given was below the benchmark prescribed for promotion to the next higher grade. The DPC therefore, clearly overstepped its mandate and the direction given by DPC was clearly illegal.

13. It is submitted that respondent No.3 was not eligible to be considered for promotion on the date the vacancy arose or even on the date the DPC was constituted, since admittedly the benchmark for promotion was “good” grading, whereas respondent No.3‟s grading for 3 of the 5 years under consideration, was “average”. Thus, as per the applicable standards the “average” grading ACRs is regarded as routine and undistinguished and does not entitle a person to promotion. Respondent No.3 ought not to, therefore, have been considered for promotion at all if the “average” gradings were to be considered.

14. It is further submitted that in terms of the statutory scheme as per Rule 112 of the DSE Rules, review of grading by the Managing Committee takes place under Sub Rule 4 prior to communication of any adverse grading to the concerned employee. Thus, in case of any adverse grading, the employee can raise the grievance by way of appeal to the Director of Education in terms of Rule 112 (7) of DSE Rules.

15. In support of his submissions, ld. Counsel appearing for the petitioner has relied upon the judgment in the case of “Badrinath Vs. Government of Tamil Nadu and Others.”, (2000) 8 SCC 395.

16. On the other hand, on behalf of respondent No.1, i.e., Directorate of Education it has been stated that the DPC in the present case has proceeded in a fair, impartial and reasonable manner by applying the same yardstick and norms to all the candidates and after consideration of entire material.

17. It is submitted that the respondent No.2 School is a recognised government aided school, which receives 95% grant-in-aid from the Government of NCT of Delhi. The DPC conducted on 17.06.2011 had the nominee from the Directorate of Education as well as Education Officer besides other members. It is submitted that all three eligible teachers were considered for promotion. The DPC examined the seniority list of the eligible candidates in the zone of consideration and their service records, ACR results for the last 5 years and other records. It is submitted that after scrutiny of the ACRs, it was observed that the ACRs of respondent No.3, which were marked as “average” for the year 2005-06, 2006-07 and 2008-09 had not been conveyed to the concerned official as per the Rules. The DPC members as such advised that the respondent No.3 should be apprised regarding his ACRs which had been marked as “average” for the aforesaid years.

18. It is further the case on behalf of respondent No.1 that every entry relating to an employee must be communicated to him so that he has an opportunity of making a representation praying for its upgradation and such representation must be decided fairly and within a reasonable period by the concerned authority. Since the “average” entries had not been communicated to respondent No.3, the DPC advised for communication of the said entries to the concerned employee. Thus, in accordance with the advice of the DPC members, the respondent No.2 school issued a letter to respondent No.3 dated 04.07.2011 apprising him about the “average” ACRs and asking for his explanation. Thereafter, the Managing Committee of respondent No.2 school reviewed the three ACRs subsequent to the representation received from respondent No.3 in this regard. After such review, Managing Committee converted the “average” rating for the aforesaid three years to “good”. Thus, when the DPC was subsequently reconvened and conducted on 23.12.2011, the respondent No.3 herein was granted promotion on the basis of his seniority.

19. On behalf of the respondent Nos. 2 & 3, it is submitted that the present writ petition is not maintainable, as there are specific provisions of appeal in the DSER, 1973.

20. It is further submitted that proper procedure was adopted by the DPC. Petitioner‟s right for promotion was also considered by the Committee at the time of DPC and proper opportunity was given by the Committee to the petitioner. It is submitted that after deferring of the first DPC, the respondent No.2 issued a letter to respondent No.3 on 04.07.2011, as per advice of the DPC members and clarification was sought. Thereafter, respondent No.3 submitted his reply, pursuant to which the Managing Committee of the respondent No.2 school reviewed all the three ACRs of respondent No.3. It is further the case on behalf of respondent Nos. 2 and 3 that DPC was conducted as per Rule 96 (3) (B) of the DSER, 1973. The DPC decided to promote the respondent No.3, being the senior most teacher on the basis of service record. It is submitted that the remarks which have adverse impact on the promotion of the employee amounts to adverse entry and the same are to be communicated. Since the information regarding adverse entry in the confidential report was not communicated to the respondent No.3, hence DPC members advised to convey the official regarding average ACR as per Rule 112 of the DSER. Further, since in the present case the Management Committee had already removed the adverse remarks, therefore, there was no need to file any appeal by the respondent No.3.

21. The respondents have relied upon the following judgments in support of their submissions:

(i) Devdutt Vs. Union of India and Others, (2008) 8 SCC

(ii) Union of India and Others Vs. G.R. Meghwal, passed in

(iii) Baljeet Singh Vs. Union of India, 2007 (98) DRJ 356

(iv) Union of India Vs. A.K. Narula, (2007) 11 SCC 10

(v) Indian Council of Agricultural Research and Anr. Vs.

(vi) Sukhdev Singh Vs. Union of India and Ors., (2013) 9

22. I have heard ld. Counsels for the parties and have also perused the record.

23. At the outset, the objection raised by the respondents as regards the maintainability of the present writ petition is not acceptable. The respondents have contended that the present writ petition is not maintainable in view of provision for appeal available under the Delhi School Education Act, 1973 (DSEA, 1973). Perusal of provisions of the DSEA, 1973 show that an appeal lies to the School Tribunal in cases where an employee of a recognized private school is dismissed, removed or reduced in rank. However, the present case is neither of dismissal, or removal or reduction in rank. Therefore, writ petition would be maintainable in the present case. This court in the case of Sri Yenni Srinivasa Rao Vs. Andhra Education Society (Regd.) & Anr.,

24. For the purposes of the present case, it would be useful to refer to Rule 112 of the DSER, 1973 pertaining to confidential reports, which is reproduced as below:

25. Rule 112, DSER, 1973 clearly specifies that confidential reports are to be recorded every year by the head of the school. The confidential report is required to be reviewed by the Managing Committee in terms of Rule 112 (4). In case there is any adverse entry in the confidential report, the same shall be communicated to such employee by the Chairman of the Managing Committee. Any employee of an aided school who is aggrieved by any adverse entry in his confidential report, may within 30 days from the date on which such adverse entry is communicated to him, prefer an appeal against such entry to the Director of Education. Thereafter, the Director of Education may, after giving to the Managing Committee a reasonable opportunity of showing cause, make such alterations in the entries in the confidential report, as he may deem fit.

26. Thus, it is clear that the review of the confidential report of an employee has to be done by the Managing Committee in terms of Rule 112. This Court in the case of Akhtar Ali Siddiqui and others Vs. Delhi Administration and Others, 1990 SCC OnLine Del 118 has categorically held that the review by the Managing Committee is mandatory and has to take place whenever the confidential reports are recorded. Thus, it has been held as follows:

27. Further, it is also clear that such review by the Managing Committee has to be done at the time when confidential reports are recorded, before the same are communicated to the employee concerned.

28. In the present case, the respondent No.2 School committed an impropriety in not communicating the ACRs of the relevant years to respondent No.3 wherein he had been graded as “average”. Further, the procedure that was followed to review the ACR of respondent No.3 was not proper and was in total violation of the procedure as prescribed under Rule 112 of DSER, 1973.

29. Since the respondent No.3 had been graded as “average” in the ACRs for three years out of the five years under consideration, and admittedly the benchmark for promotion was “good” grading, clearly respondent No.3 was not eligible to be considered for promotion on the date when the vacancy arose or on the date when the DPC was constituted. Therefore, the petitioner who had been graded as “good” in the ACRs for the said five years under consideration, was eligible to be promoted as PGT on the said date.

30. At the same time, the right of respondent No.3 to be communicated the ACRs where he had been graded as “average”, cannot be overlooked. The respondent No.3 was not only entitled to be communicated such ACRs, but was also entitled to file an appeal with the Director of Education, with respect thereto, since the school in question is an aided school, receiving aid to the extent of 95% from the Government of NCT of Delhi.

31. Supreme Court in the case of Dev Dutt Vs. Union of India and Others, (2008) 8 SCC 725 has categorically held that every entry in the ACR must be communicated to an employee within a reasonable period, whether it is a poor, fair, average, good or very good entry, so that such employee has an opportunity of making a representation against the entry if he feels that it is unjustified and pray for its upgradation. Thus, it has been held as follows:

32. Thus, the respondent No.2 school clearly committed an illegality in not communicating the ACRs to the respondent No.3, when his grading was “average”, considering the fact that for promotion, grading of “good” was required. The respondent No.3 cannot be allowed to suffer on account of the illegality having been committed by the respondent No.2 school. Therefore, it cannot be held by this Court that the DPC held on 17.06.2011 and 23.12.2011 ought to have considered the case of respondent No.3 on the basis of the original entries in the ACRs for the three years when he had been graded “average”.

33. Supreme Court in the case of Union of India and Others Vs. G.R. Meghwal[1], upheld the directions of the Tribunal and High Court to review the case of the employee therein by ignoring the below benchmark of one year in the said case, since no opportunity was given to him to improve himself. Thus, it was held as follows:

34. Considering the facts and circumstances of the present case, it would not be justified to interfere with the promotion as granted to respondent No.3 in the year 2011.

35. Nonetheless, petitioner has been able to make out a case in her favour. This Court has the power and authority under Article 226 of the Constitution of India to issue necessary directions in order to meet the ends of justice. Supreme Court in the case of Badrinath Vs. Government of Tamil Nadu and Others[2] has held as follows:

36. In view of the detailed discussion hereinabove, it is held that if there being no other legal impediment, the petitioner is entitled to be promoted to the post of PGT (History), with effect from the date when respondent No.3 was promoted on the said post, with all consequential benefits.

37. However, it is clarified that this Court has not interfered with the promotion that was granted to respondent No.3 by the DPC held on 23.12.2011, in the peculiar facts and circumstances of the present case.

38. The present writ petition is disposed of in the aforesaid terms along with pending applications.

JUDGE FEBRUARY 3, 2023/c/au