Shri L.C. Gupta vs Shri Rajender Kumar

Gita Mittal, J.—The present petition has been filed alleging deliberate and wilful disobedience of the directions made in the judgment dated 24th May, 2001 passed in Writ Petition (Civil) No. 4978/94, 4384/95 and 4342/99. The judgment passed by the learned Single Bench was affirmed by the Division Bench in LPA 297/2001 vide judgment delivered on 1st February, 2002.

The petitioner contends that the eligibility of the petitioner was confirmed by the respondent in a counter affidavit filed in SLP(C) 7555/03. However the respondent adopted one device after another to avoid compliance with the directions made by in his favour in the aforestated judgments. It is submitted by him that on the plea that the school stood taken over by the authorities, the respondents filed an application bearing CM No. 1056/02 stating that the seniority of the present petitioner has to be considered in accordance with the seniority list of the state cadre. This application was thereafter withdrawn on 3rd February, 2003. Despite withdrawal of the application before the Division Bench, the respondent made an application seeking amendment/review of the judgment dated 24th May, 2001 being CM No. 13672/03. This application was dismissed after hearing by an order dated 29th January, 2004.

The petitioner has submitted that he has made repeated requests and representations to the respondents to comply with the directions given by this Hon''ble Court which are inter alia dated 18th September, 2003, 30th September, 2003, 13th October, 2003 and 24th March, 2003. Despite the requests made in the aforestated representations, the respondents are in contumacious default of the judgments dated 24th May, 2001 and 1st February, 2002. On these averments it is submitted that the respondent has rendered himself liable for punishment for his contumacious conduct under the Contempt of Court Act.

The present petition was filed in April, 2004. This Court upon considering the grievance of the petitioner passed an order dated 12th April, 2004 wherein it was specifically directed that in case the order dated 9th December, 2003 is not implemented within a period of one month and there was no stay of the operation of the order, the respondent shall remain personally present in Court.

It is only thereafter that the respondents took any action in the matter which was placed before this Court in their reply filed on 1st July, 2004. The respondent has sought to explain the delay in compliance of the judgment largely on the ground that the directions made by the Court in the judgment dated 24th May, 2001 related to a private aided school. During the interregnum, the school had been taken over and was functioning as school of the Government of NCT of Delhi. In these circumstances there was no local managing committee of the school. Consequently it was felt that clarification was necessary from the court as the same resulted in difference in the constitution of the Departmental Promotion Committee (hereinafter referred to as the ''DPC''). It is submitted that it is these circumstances that the application seeking clarification was filed, first, before the Appellate Court and later the review application being CM 13672/02 in the writ petition.

According to the respondent, the clarification was also deemed necessary inasmuch as, so far as schools under the Government of NCT of Delhi were concerned, there was a set cadre of teachers and a seniority list was being maintained at the State level. As such, since the directions made in the judgment dated 24th May, 2001 required consideration of the senior most teacher, it was necessary to seek a clarification whether the senior most teacher would be as per the seniority list of the State cadre maintained by the Government or would be in terms of the seniority list of the school. This application of the Government was dismissed only on 29th January, 2004. Opinion was given on the file with regard to agitating the matter in an appeal. However counsel had given a second opinion advising the Government that no Appeal could be filed against the order dated 29th January, 2004 and required the Department to immediately constitute the DPC to consider all eligible officers in the school. The respondents have contended that the DPC was then constituted under the Chairmanship of Ms. M. Thakur, Deputy Director of Education (Administration) in lieu of the Chairman/Manager.

As per Rule 47 of the Delhi School Education Act, teachers of the aided school which was taken over by the Government would stand absorbed in the Government schools and will come at the bottom of the seniority list of the State cadre. The respondents submit that as the DPC met on 18th May, 2004 and 29th October, 2004 and also considered the case of the petitioner for promotion, there was compliance with the judgments passed on 24th May, 2001 and affirmed in appeal on 1st February, 2002.

The respondents have also sought to explain the affidavit filed on behalf of the Government in SLP(C) 7555/03 and submitted that the affidavit dated 21st July, 2003 was filed by the Zonal Officer in collusion with Mr. L.C. Gupta, the petitioner herein. It is submitted that the affidavit was fraudulent and did not deserve credence as there was concealment and suppression of material facts therein. The concerned officer was interested in giving undue favour to the petitioner and disciplinary proceedings were initiated against the officials involved in the filing of the affidavit. The respondent has submitted that upon the aforestated facts coming to its notice, an amended affidavit was filed by the respondent.

The petitioner in rejoinder has contended that the proceedings of the DPC were a mere an eye wash and the same was constituted and held its meeting only on account of the pendency of the present proceedings and the orders dated 12th April, 2004 made by this Court.

I have heard the learned Counsel for the parties who have taken me through the record. The only issue relevant for adjudication of the present case is as to whether there is wilful disobedience of directions made by this Court.

In the judgment dated 24th May, 2001 passed in writ petition (Civil) No. 4978/94, 4384/95 and 4342/99 the respondents were directed as hereunder:

In that view of the matter, I have no other option but to set aside and quash the said order of promotion of Shri Ram Avtar Sharma to the post of Vice-Principal of the School, which I hereby do. Consequently, a direction is also issued to the Director of Education to constitute a Selection Committee immediately, as in the meantime the School has become a Government School and the matter relating to promotion tot he vacant post of Vice-Principal of the concerned School shall be placed before the said Selection Committee immediately. While re-considering the matter, the Selection Committee would take the relative position, merit and eligibility criteria of all the eligible candidate as on 8th November, 1994 and upon such re-consideration, a decision shall be taken with regard to appointment to the post of Vice-Principal which falls vacant in terms of the present order. The file shall be processed by the Director of Education immediately and steps shall be taken for filling up the post of Vice-Principal, as expeditiously as possible, preferably with a period of three months. In the meantime, the senior most teacher in the School shall be allowed to hold the charge of the Vice-Principal of the School till a regular Vice-Principal is appointed in terms of this order.

On considering the facts and circumstances of the case, I am also of the considered opinion that since suppression and manipulation in the official records were done, the same is required to be investigated upon by the Director of Education and an enquiry shall be conducted by the Director of Education in respect of the same and upon receipt of the report thereof, shall proceed against the person who is responsible for the aforesaid act, in accordance with law, as expeditiously as possible.

This matter was agitated in Appeal before the Division Bench. By a detailed judgment on 1st February, 2002 the Division Bench dismissed the appeal directing the respondents as hereunder:

For the above reasons, we dismiss the appeal and affirm the direction of the learned Single Judge to the effect that a fresh selection process be carried out for promotion to the post of Vice-Principal in Jan Kalyan Senior Secondary School after considering all the eligible persons as on the date the Selection Committee met, that is, 27th October, 1994. In the event the successful candidate has superannuated in the meanwhile, the next person in the select list should be appointed as the Vice-Principal of the School. The selection process should be completed within three months and till then, the senior-most teacher in the school shall hold the charge of Vice Principal. We also agree that the Director of Education should conduct an inquiry into the suppression and manipulation of the official records and take action against the persons responsible for the misdemeanour.

Despite the aforestated no action appears to have been taken to appoint a DPC or to undertake a fresh selection process for promotion to the post of the Vice-Principal in the Jan Kalyan Senior Secondary School. The directions made by the Courts were unambiguous and explicit. The respondents were bound to consider all eligible persons as on the date of passing of the judgment. The Selection Committee had met on 27th October, 2004. The Division Bench had even set out the manner in which the consideration was to be effected in the event of superannuation of the senior most person. The process was to be completed within three months and till then senior most teacher in the school was required to hold the charge of the Vice-Principal. The respondents were directed to conduct an inquiry into the suppression and manipulation of the records and to take action against the persons responsible for the misdemeanour.

It appears that Ram Avtar Sharma, whose appointment has been set aside by this Court, took the matter to the Supreme Court in SLP(C) 7555/03. In these circumstances, the respondents had filed a counter affidavit dated 21st July, 2003 wherein the following averments were made.

IV(1) The parawise list of dates is as hereunder:

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The name of Sh. L.C. Gupta M.A, B.T, having an exp of 23 yrs as H.M. in the same School, working since 15.7.1971 as H.M., and who was at sl. No. 1 in the seniority list, was not recommended for his promotion as V.P by the DPC on the erroneous plea that two disciplinary proceedings were pending against Sh. L.C. Gupta since the orders/directions, passed by this Hon''ble Court dated 16.7.1987 in SLP No. 2822/87 were still as good on 27.10.94 even, the DPC ignored these directions/orders.

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As far as the question of the pendency of disciplinary proceedings, pending against Sh. L.C. Gupta H.M is concerned, these do not come on the way of his promotion to the post of Vice Principal because when the directions/orders dt. 16.7.87 in SLP 2822/87 are followed and implemented, the alleged disciplinary proceedings pending, now decided vide order dated 6.4.2000, exonerating Sh. L.C. Gupta, H.M of all the charges, levelled against him, would not come in the way of Mr. Gupta''s promotion as Vice Principal.

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However, it is admitted the Sh. L.C. Gupta the respondent No. 5 was eligible because of his working as H.M since 15.7.1971 contd. in the same school.

So far as the eligibility of the petitioner Mr. L.C. Gupta is concerned, the respondents have stated even in the present proceedings that the DPC constituted by them which has conducted its proceedings on 18th May, 2004 and 29th October, 2004, had considered the case of the petitioner but the petitioner was not found fit for promotion and was not recommended for the same as the DPC did not find the petitioner''s Annual Confidential Reports for the last five years deserving of promotion to the post of Vice-Principal. Therefore, so far as eligibility is concerned, the candidature of the petitioner was not rejected on account of failure to satisfy the eligibility conditions but the petitioner was not found fit for promotion on the ground that he did not meet the requisite grading of ''good'' in his Annual Confidential Reports for the last five years.

I find that the respondents have also submitted that the DPC considered the Post Graduate Teachers of the school as per their merit and found that there was no Post graduate Teacher fit for promotion to the post of Vice-Principal inasmuch as the teachers were not possessed of the requisite experience laid down for the said post.

In view of the aforestated, so far as the directions requiring the respondents to conduct a fresh selection process for appointment to the post of Vice-Principal in the Jan Kalyan Senior Secondary School is concerned, the same stands complied with. The respondents constituted the DPC which has conducted its proceedings on 18th May, 2004 and 29th October, 2004. 16. Further direction contained in the judgments dated 24th May, 2001 and 1st February, 2002 to the effect that the Selection Committee would take the relative merit position and eligibility criterion as on 8th October, 2004 and only then take a decision with regard to the appointment to the post of Vice-Principal is concerned, the respondents also appear to have complied with this directive inasmuch as the DPC is stated to have considered the existing Post Graduate Teachers who were eligible in the school. It is upon such consideration that the DPC did not find any Post Graduate Teacher fit for promotion as they were short of the prescribed experience as laid down for appointment to the post of Vice-Principal. The petitioner was not found fit for promotion by the DPC inasmuch as he did not meet the benchmark for promotion to the post of Vice-Principal in his Annual Confidential Reports. The prescribed criterion is ''good'' and it is submitted that the petitioner did not fulfil that criteria.

Therefore, it is apparent that, irrespective of the submissions made on behalf of the respondent with regard to the affidavit dated 21st July, 2003 filed in SLP(C) 7555/2003, the respondent has treated the petitioner as an eligible candidate and placed his record before the DPC for consideration for appointment to the post of Vice-Principal.

Even assuming in favour of the petitioner that the respondents were bound by the affidavit dated 21st July, 2003 it is to be noticed that the only submission made in the counter affidavit before the Supreme Court was to the effect that the petitioner was eligible for consideration for appointment to the post of Vice-Principal. It is only such like eligible candidates whose names were placed before the DPC. The petitioner was treated as eligible when his case was considered. Eligibility is not synonymous with recommendation to appoint. Eligibility of a person merely renders the petitioner entitled to consideration for appointment.

The DPC having considered the case of the petitioner and having found the petitioner not fit for promotion on the ground that the petitioner was not meeting the prescribed Annual Confidential Report criterion of ''good'', in my view the respondents have also carried out the direction made by this Court for consideration of the petitioner who was stated to be most senior candidate.

In view of above, I am not recording any finding on the submission on behalf of the respondent to the effect that the affidavit dated 21st July, 2003 was fraudulent and, therefore, not binding on the respondent. The petitioner has contended that the correct affidavit stated to have been filed by the respondent was filed without taking leave of the Court and was not taken on record. In view of the finding arrived at by me here-in-above no finding needs to be recorded on this aspect of the matter.

I am unable to agree with the petitioner that the proceedings of the DPC were a mere eyewash and only in cosmetic compliance of the judgments dated 24th May, 2001 and 1st February, 2002. According to the learned Counsel for the petitioner this is supported by the fact that no action was taken by the respondent despite repeated representations to it.

Howsoever dilatory the actions of the respondents may have turned out to be, but it cannot be urged that the doubt expressed in view of the take over of the school by the Government for constitution ;of seniority and the seniority of candidates was frivolous or that it could be brushed aside or ignored. The respondent was discharging statutory duties and was bound to exercise care and caution in implementing orders of this Court. LPA 297/01 was not filed by the respondent herein but by the private employee whose appointment had been set aside by the judgment dated 24th May, 2001. Even the SLP before the Apex Court was filed by the same person. Upon take over of the school, on account of statutory intervention, there was a change in the status of the teachers in the school and the respondent had expressed the apprehensions and doubts with regard to the effect of the same.

Having carefully gone through the counter affidavit and the course of litigations with regard to the matters in issue and the explanation given by the respondent, I am satisfied that the failure to implement the directions made in the judgment dated 24th May, 2001 and 1st February, 2002 immediately on pronouncement was only on account of the changed circumstances which were not brought to the notice of the Court at the time of passing of the judgment dated 24th May, 2001. Even the petitioner did not bring the aspect of take over of the school and the resultant changes before the Court at that time. It has been stated that after the dismissal of the application for modification, even though decision was taken to file an appeal, the opinion of the counsel that the matter was not a fit case for filing the appeal and that the Department should hold the DPC was implemented. Opinion given by the counsel was accepted and the DPC which was duly constituted held its proceedings on 18th May, 2004. Therefore, the present case can at best be stated to be a case of delayed compliance with the directions made which in the aforestated facts, would not invite the penal consequences under the Contempt of Court Act against the respondent.

So far as the decision of the DPC finding the petitioner not fit for promotion is concerned, the same cannot be the subject matter of adjudication in the present proceedings. The petitioner cannot be permitted to contend that the proceedings of the DPC were an eye wash and the actions of the respondent contumacious merely because he was not found fit. It is, therefore, directed that the petitioner may take such action in respect of the same in accordance with law. The petitioner may impugn the proceedings and the orders of the DPC in appropriate proceedings.

Perusal of the record shows that the petitioner made repeated representations which did not even deserve an answer from the respondent. The judgments passed by the Court were not implemented for a considerable period and the respondents took their own good time so as to constitute the DPC. It is a fact that only the orders dated 12th April, 2004 shook the respondent out of their inertia and caused them to constitute the DPC. The petitioner was compelled to file the present petition to vent his grievance. In these circumstances the present case is a fit case where the petitioner should be compensated with costs of the present proceedings. Accordingly the petition is dismissed. However the petitioner shall be entitled to costs of the present proceedings which are quantified at Rs. 15,000/-. Costs shall be paid within four weeks from today.

The petition is dismissed in the above terms.