Kailash Gambhir, J.@mdashBy way of this writ petition, the petitioner has challenged the result of the DPC held on 17.2.2006 whereby the petitioner was declared not suitable for the post of Principal. The petitioner has also sought a direction to direct the respondents to promote the petitioner as Principal and to pay to petitioner the pay and allowances with all other benefits with effect from 01.04.2004 The petitioner has also sought a direction to stay the selection process pursuant to the advertisement dated 08.04.2006. Before adverting to the rival contentions raised by counsel appearing for the parties, it would be appropriate to give narration of facts in brief.
2. In 1989, the petitioner joined respondent Nos. 3 and 4 as TGT teacher and in July 1995, the petitioner became Vice Principal of the School. In November 2003, the post of Principal fell vacant and the respondent/school had advertised the said post in newspaper but later on they took a decision to hold DPC to select the Principal. The petitioner became Officiating Principal with effect from 01.04.2004 and in the DPC which was held on 20.01.2004, the petitioner alone was the sole candidate. The petitioner had filed the writ petition bearing W.P.(C) No. 7856/2004 so as to seek direction against the respondents for declaration of the result of the DPC which was held on 20.01.2004 In the reply, the respondent took the stand that the result of the DPC held on 20.01.2004 was deferred for want of certain documents. However, pursuant to interim direction granted by this Court in W.P.(C) No. 7856/2004, the respondents had reconvened the fresh DPC on 09.06.2004 In this reconvened DPC, the candidature of the petitioner was rejected on the ground that the ACR grading of the petitioner had declined for the last two years and, Therefore, the petitioner could not succeed to get selected on the post of Principal. In view of non-selection of the petitioner, the DPC recommended open method of selection and in such open selection the name of petitioner was also to be considered as departmental candidate. The petitioner has stated that before the meeting of the DPC held on 09.06.2004, an emergent meeting of the Managing Committee took place on 07.06.2004 wherein the decision was taken for composite method of selection. The minutes of this meeting dated 07.06.2004 were signed on 10.06.2004 and the decision in the DPC dated 09.06.2004 to hold composite selection for the post of Principal was in fact a decision taken prior in hand by the management of respondent No. 3.
3. The petitioner feeling aggrieved with the outcome of the decision of DPC dated 09.06.2004 had filed the writ petition bearing W.P.(C) No. 15214/2004 and vide judgment dated 09.01.2006, this Court in W.P.(C) No. 15214/2004 had given directions to the respondents to hold a fresh DPC after duly conveying to the Petitioner the ACRs for the period 2003-04 and 2004-05, in case there is a decline in the performance level of the petitioner. This Court had also directed in the said judgment to decide the representation of the petitioner, in response to the communication, intimating the said decline in the performance level and to ultimately hold the DPC within six weeks from the date of the judgment after considering the representation of the petitioner. The Court further directed that only in the event of decision of the DPC not finding any of the candidate suitable, then, it shall carry on the open selection process, wherein, the candidature of the petitioner would also be considered along with the other candidates. Pursuant to the said directions, the respondents No. 3 and 4 had communicated the earlier ACR vide letter dated 23.01.2006. In reply the petitioner made a representation for correction of the ACR vide her representation dated 01.02.2006 and after considering the representation of the petitioner, the respondent No. 3 vide their letter dated 14.02.2006 informed the petitioner that the ''Average'' remarks given by the Reviewing Officer in the ACR for the year 2003-2004 were set aside. After the said rectification of the ACR of the petitioner, the DPC for the selection of the Principal was again held on 17.02.2006 in which the petitioner along with other five teachers from the same school appeared before the DPC on 17.02.2006. The petitioner, along with other candidates was interviewed on the same date and she was informed that the result of the DPC would be shortly communicated. Vide letter dated 28.03.2006, the petitioner was informed that her candidature for the post of Principal was rejected. Not only the petitioner, none of the other candidates could qualify to get selected on the said post. Resultantly, respondent Nos. 3 and 4 were left with no option but to go for an open selection for which the respondents gave an advertisement in the newspaper dated 08.04.2006. Feeling aggrieved again, the petitioner has filed the present writ petition assailing the said decision of the respondents as arbitrary, illegal and mala fide.
4. Mr. G.D. Gupta, learned senior counsel appearing for the petitioner has contended that the respondents are hell bent to deny the post of Principal to the petitioner and all actions of the respondents No. 3 and 4 after the first DPC was held, clearly demonstrates so. Counsel for the petitioner has drawn my attention to the chart prepared by the respondents indicating the profiles of candidates considered for promotion to the post of Principal. The ACR grading of the petitioner for the year 1998-1999, 1999-2000, 2000-2001 and 2001-2002 was rated as "''Very Good" while for the year 2002-2003, it has been rated as ''Good''. This profile chart was placed before the DPC held on 20.01.2004 and there were certain handwritten remarks at the end of the chart to the effect: ''deferred because all documents required to be produced by the DPC were not available''.
5. Counsel for the petitioner also contended that the said chart is not even signed by the Deputy Director of Education Ms. Mandakini Thakur as above her name merely `(sd/-)'' is shown which suggests that in fact the same was not signed by Deputy Director of Education. Counsel for the petitioner has also drawn my attention to the minutes of the DPC dated 09.06.2004, photocopy of which is placed at page 34 of the paper book which shows that the DPC has recorded declining of ACR grading of the petitioner for the last two years, whereas, as per the said profile chart, there is decline only for the last one year in the ACR grading for the period 2002-2003 from "Very Good" to "Good". Counsel for the petitioner has also invited my attention to the extracts of the ACR of the petitioner for the year 2003-2004 wherein the Initiating Officer had graded the petitioner as ''Good'' against column No. 24 and had also recommended the petitioner for retention in her said post. Counsel for the petitioner also contended that against pen picture, the remarks are quite positive in favor of the petitioner but still the Reviewing Officer in his remarks has graded the petitioner as ''Average''. It would be worthwhile to reproduce remarks given against column No. 23 of the ACR sheet.
23. Pen picture: She is a sincere and dedicated staff member. With her hardwork, determination and commitments, the school has risen to the present status.
6. Counsel for the petitioner has also drawn my attention to the minutes of the meeting of the Management committee held on 07.06.2004 i.e. just two days prior to the DPC which was held on 09.06.2004 In this meeting a decision for composite method of selection was taken prior in time as the management felt that such a course would provide fair chance to all the candidates including the departmental candidates.
7. Counsel for the petitioner has further drawn my attention to the Work and Conduct Report prepared by the Manager of the School on 13.02.2006 i.e. just four days prior to the DPC meeting which was scheduled for 17.02.2006. In this Work and Conduct Report, as per counsel for the petitioner, for the first time, adverse remarks were made against the performance of the petitioner. It is mentioned in the said remarks that ''her sudden decline in performance is mainly due to the additional responsibility given to her as Head of the School, she could not come up to the expectations of the parents and the management especially in carrying out her duty to ensure proper discipline. It is further stated that her conduct towards co-workers has been found wanting. These adverse remarks in the said Work and Conduct Report were also duly endorsed by Brigadier K.M.S. Shergil, Chairman of the Army Public School who made his endorsement in his own writing to say ''I agree with the report.'' The contention of counsel for the petitioner is that the same Chairman who had endorsed the said report of the Manager of the School just four days prior to the DPC dated 17.02.2006 was himself a Chairman of the DPC and, Therefore, there was a clear cut bias of the Chairman of the DPC against the petitioner. The remarks of the Manager in the said Work and Conduct report duly find mention in the minutes of the DPC dated 17.02.2006. To contradict the said Work and Conduct Report and the adverse remarks contained therein, counsel for the petitioner has also drawn my attention to the observations of Inspecting Team during Annual Administrative Inspection of Army Public School vide their observation dated 21.09.2005 which evidently exhibits the administrative efficiency of the petitioner while Officiating as Principal of the respondent school, the column of overall assessment of the said report, is stated as under:
A well managed and governed school with efficient teaching and Adm Staff, who functions under the able guidance of the Offg. Principal.
8. Counsel for the petitioner has also drawn my attention to the Government notification dated 25.02.1980 for the post of Principal in recognised school. Against the column of method of recruitment, it states ''by promotion failing which by direct recruitment.
9. The contention of counsel for the petitioner is that once a suitable and eligible candidate was available, the respondents could not have gone for open selection by ignoring the right of the petitioner who was entitled to be promoted to the said post.
10. On the other hand, Mr. Rajiv Dutta, learned senior Advocate representing the respondents No. 3 and 4 with all vehemence refuted the said contentions of the learned Counsel for the petitioner. The counsel submitted that the petitioner has a tendency of finding fault with the decisions of the Managing Committee of the school. The counsel for the respondents has drawn my attention to the order dated 20.08.2004 passed by this Court in the CM of the writ petition bearing WP(C) No. 7856/2004 In the said writ petition vide order dated 06.08.2004 this Court had made the petitioner free to participate in the selection process without prejudice to her rights and contentions raised in the writ petition. This order dated 06.08.2004 was sought to be recalled by filing the said CM No. 9791/2004 and vide order dated 20.08.2004 the said application of the petitioner was dismissed. While passing the said order on the said application the High Court had observed that there is no illegality or irregularity in the decision of the DPC to advertise the post so as to get best possible choice of a candidate for the post of Principal without denying the right of the petitioner to participate in the selection process. Ultimately, the High Court had dismissed the said writ petition of the petitioner, noticing, that once the petitioner was being permitted to participate in the selection process along with the direct recruits, Therefore, nothing survived in the petition for further consideration. The said decision of the learned Single Judge in WP(C) No. 7856/2004 was challenged by the petitioner in writ appeal bearing WA No. 814/2004 and vide order dated 25.08.2004 the said writ appeal was dismissed. Feeling still not satisfied, the petitioner had filed another writ petition bearing WP(C) No. 15214/2004 The said writ petition was filed by the petitioner, feeling aggrieved, with the decision of the DPC dated 09.06.2004 whereby the decision was taken to advertise the post although, without denying the petitioner to participate in the selection process. In the said decision of the school dated 09.06.2004 the DPC had observed that after scrutinizing the record of five year''s ACRs of the petitioner it revealed that the ACR gradings had continuously declined over the last two years. The main contention of the petitioner in the said petition was that if there was a decline in the performance of the petitioner then she ought to have been communicated about the same as per the procedure applicable in such cases. The learned brother Judge S. Ravindra Bhat had disposed of the said writ petition vide order dated 09.01.2006. It would be relevant to reproduce the operative portion of the said judgment:
21. In the light of the above discussion, a direction is issued to the Respondents to hold a DPC to firstly convey to the Petitioner school the ACRs for the period 2003-04 and 2004-05, in case there is a decline in the performance level of the Petitioner. The representation of the Petitioner, if any, in respect of the ACRs shall be given to the Respondent school within a period of two weeks after the receipt of the communication. The Respondent school shall decide upon the representation within a period of two weeks of its receipt. The DPC proceedings shall be held within six weeks from today after considering the Petitioner''s representation. The school shall consider the candidature of the Petitioner as well as other eligible persons. In the event of a decision that such candidates are not suitable, the Respondent has submitted that the Petitioner would be considered along with the other candidates in the open recruitment process and in the event of other things being equal her candidature would be preferred. Ordered accordingly.
11. Mr. Rajiv Dutta, learned senior counsel for respondents No. 3 and 4 thus contended that directions given by the High Court dated 09.01.2006 were duly complied with and vide letter dated 23.01.2006 the petitioner was conveyed the adverse ACR of 2003-2004 during which period the performance level of the petitioner had declined. The extract of the ACR was also communicated to the petitioner along with letter dated 23.01.2006. In the said extract of the ACR the remarks of the Reviewing Officer " Brig. G.S. Rathore, Manager of the school has been shown in column No. 1 as "Average". This report by the Reviewing Officer was given on 01.04.2004 for the year 2003-2004 In reply to the said communication, the petitioner made a representation vide representation dated 01.02.2006 in which various issues were raised by the petitioner assailing her adverse report for the year 2003-2004 Mr. Rajiv Dutta, learned senior counsel for respondents No. 3 and 4 contended that issues which were already decided by the High Court in her earlier petitions, but still the petitioner has raked up the same issues in her representation which exhibits the petitioner''s behavior of creating unnecessary imbroglio even on the decided issues. The counsel for respondents No. 3 and 4 further contended that the petitioner was duly conveyed the decision of the respondent school vide letter dated 14.02.2006 whereby the "Average" report given by Brig. G.S. Rathore for the year 2003-2004 was set aside. In the said letter the petitioner was also informed that the next DPC meeting shall be held on 17.02.2006. Although no reasons have been given in this communication dated 14.02.2006 for setting aside the said "Average" remarks of Brig. G.S. Rathore but counsel for the respondent during the course of arguments submitted that the said "average" report was set aside on account of the fact that as per rules only Chairman could have been the Reviewing Officer and not the Director of schools who in the present case had acted as a Reviewing Officer. The contention of counsel for the respondents No. 3 and 4 is that the said setting aside of the "average" report should not be taken as if the contentions raised by the petitioner in her representation dated 01.02.2006 were accepted. Counsel for respondents No. 3 and 4, thus, contended that it was only on account of anomaly of the Chairman not signing the ACR for the year 2003-2004 as a Reviewing Officer, the decision was taken to set aside the ACR. Counsel for respondents No. 3 and 4 further submitted that in the DPC meeting which was held on 17.02.2006, the candidature of the petitioner was duly considered and ultimately the DPC did not find the candidature of the petitioner suitable for appointment to the post of Principal. It is not only the case of the petitioner but the candidature of even other five candidates was also taken into consideration but none of them were found fit for promotion. Ultimately, the DPC had opined that the Management must seek the permission from the Director of Education for open selection where the departmental candidate shall also be considered. It would be relevant to reproduce the minutes of the DPC meeting held on 17.02.2006:
MINUTES OF THE DPC MEETING HELD ON 17 FEB 2006 FOR SELECTION OF PRINCIPAL, APS DELHI CANTT
1. In pursuant to the order of Hon''ble High Court Delhi on 09 Jan 2006 on Writ Petition (c) No. 15214/2004, a meeting of the DPC was held, at Army Public School, Delhi Cantt on 17 Feb 2006. The following were present:
(a) Brig KMS Shergill, VSM Chairman
(b) Ms B Tirkey, Dy Director Education, Dist West `A'' DE''s Nominee Directorate of Education, Govt of NCT of Delhi.
(c) Mr Scaria NO, Principal APS Dhaula Kuan (Adm Experience of School, Nominated by Managing Committee).
(d) Dr Mahabir Yadav Senior Lecturer, AIE Delhi Cantt (Educationist nominated by the School Managing Committee)
2. In compliance of above Court Order the DPC has been held on 17 Feb 2006 for the post of Principal in APS, Delhi Cantt.
3. The records like ACRs. service records, results of last five years, qualifications, work and conduct report, integrity certificate, vigilance clearance, academic performance and willingness certificate of following six eligible candidates of APS, Delhi Cantt as per their seniority under the zone of consideration for promotion were presented before the DPC:
(a) Mrs. Usha Saini
(b) Mrs. Renuka Malahotra
(c) Mrs. Sarika Mathur
(d) Mrs. Mira Rani Bera
(e) Mrs. Maya Lohani
(f) Mrs. Suman Sapra
4. The Manager School certified that seniority list has been prepared according to the prevalent rules.
5. The DPC observed that one post of Principal in APS Delhi Cantt is required to be filled. All eligible candidates of APS, Delhi Cantt were asked to submit their candidature vide circular No. 7845/26/AWES Cell dated 13 Feb 2006, displayed at the School Notice Board. All the six candidates as per para 3 above gave their willingness for the promotion to the post of Principal APS, Delhi Cantt. The DPC Therefore scrutinized the documents of all the six candidates as per the laid down rules of DSEA and R 1973.
6. The DPC has assessed the suitability of the candidate for promotion on the basis of their service records, interaction with the candidates and with the particular reference to CRs for five preceding years of all the above eligible candidates.
7. The observation of the DPC with regards to Mrs Usha Saini are given below:
(a) The scrutiny of record of preceding five years ACRs reveals that since last three preceding years 2002-03, 2003-04 and 2004-05, her ACR gradings has continuously declined. She being senior most candidate and has been holding the post of Vice Principal since last eight years 10 months, her sudden decline in performance is mainly due to the additional responsibility given to her as Head of the School.
(b) The Management has provided her fair opportunity by `Setting aside'' her `Average'' grading of year 2003-04 and by giving her additional responsibility as Head of the School with effect from 01 Apr 2004
(c) Management observed that Smt. Usha Saini could not come up to the expectations of the parents and management especially in carrying out her duties to ensure proper discipline. Her conduct towards co-workers has been found wanting.
8. The record and ACR of other five candidates were also scrutinized and found that one of them are fit for promotion. Therefore, DPC opined that management must seek the permission from Director of Education for open selection where these candidates will be considered.
12. Counsel for the respondent also contended that it is not merely ACR of a candidate but many other aspects of the candidate are taken into consideration, some of which have been spelt out in para 3 of the said minutes of DPC meeting. Counsel for respondents No. 3 and 4 also submitted that prior to the DPC meeting the management of the school has to submit work and conduct report of each and every candidate and such report given by the school duly endorsed by the Chairman of the school, clearly, shows that performance of the petitioner in the academic field and in the discharge of other administrative duties was not up to the mark. The counsel also gave justification for submission of the said work and conduct report within three days prior to the DPC on account of the fact that there was a direction from the High Court to comply with the selection process within a period of six months and, Therefore, no fault could be found, if the steps were taken with promptitude to complete the selection process. The counsel also submitted that after taking into consideration the ACRs of the petitioner for the relevant period including the ACR of 2003-2004 and gamut of many other parameters of judging the overall qualities of the petitioner, the DPC had arrived at a conclusion that she was not fit for the appointment on the said post.
13. Counsel for the respondents No. 3 and 4 further contended that this Court while exercising jurisdiction of judicial review under Article 226 of the Constitution would only examine as to whether the respondents have committed any irregularity or procedural error or violated principles of natural justice in the process of arriving at the final decision of rejecting candidature of the petitioner and, thus, the Court would be concerned with the decision making process and not the decision itself. The argument of the counsel for the respondents No. 3 and 4 is that proper procedure has been adopted in the case of the petitioner and at every step care has been taken to see that candidature of the petitioner received due consideration by the DPC. Counsel also submitted that the respondent has also complied with all the directions given by the Court from time to time and in compliance with the directions given by the Court adverse remarks were duly communicated to the petitioner for the ACR of 2003-04 which were ultimately set aside and, Therefore, the petitioner cannot complain any fault with the decision making process as undertaken by the respondent in selecting a candidate for the post of Principal. Counsel for the respondents No. 3 and 4 also contended that it is not always necessary that a person who is a good teacher would also be equally competent and efficient on the administrative side. Counsel for the respondents No. 3 and 4 supports his argument with the observations of the DPC held on 17.02.2006, wherein it is observed that there has been a decline in her performance and she has not been able to come up to the expectations of the parents and the management, especially, in carrying out her duties to ensure proper discipline. The counsel also contended that there were five other candidates who were considered by the DPC but except petitioner none of the other candidates has challenged the decision of the DPC although none of them were found fit for promotion.
14. Counsel for the respondents No. 3 and 4 further contended that decision of the DPC dated 17.02.2006 was duly communicated to the petitioner vide letter dated 28.03.2006 and while communicating this decision the management of the school still did not foreclose the right of the petitioner to participate in the open recruitment process for selection to the said post. Not only extending right to the petitioner for her participation but in the said letter the school had rather gone to the extent of giving preference to the candidature of the petitioner in the event of other things remaining equal. The contention of counsel for the petitioner is that despite her candidature being rejected by the DPC in the meeting held on 17.02.2006 still the management of the school remained just and fair towards the petitioner by not denying her right to further participate in the selection process along with the direct recruits. The counsel further contended that despite order of the Court dated 28.04.2006 in CM No. 5324/2006 of WP(C) No. 6538/2006 and order dated 25.08.2004 of the Division Bench, the petitioner had deliberately chosen not to participate in the selection process and such a conduct on the part of the petitioner is clearly demonstrative of the fact that the petitioner acts on her own terms without even attaching any importance to the court directions. In support of his argument counsel for respondents No. 3 and 4 has placed reliance on the following judgments:
1.
2.
3.
4.
15. I have heard learned Counsel for the parties at considerable length. The case in hand is a glaring example of an on going fight between the Officiating Principal on the one hand and the management of the school on the other hand. Instead of devoting their energy and thrust to work in unison for the upliftment, growth and progress of the educational institution precious time has been spent by both the parties fighting avoidable legal battle. The petitioner who feels that she has been denied her legitimate right to get selected on the post of Principal has been filing case after case to achieve that goal, while the respondent-management has been using all weapons in their armory to defeat the petitioner in achieving her target. This is indeed a very unfortunate situation at least not in the interest of institution where endeavor of the teachers and the management should be to properly shape up the future of the students.
16. As per the recruitment rules notified by the Delhi Government in exercise of the powers conferred vide Section 8(1) and Section 13 of Delhi School Education Act, 1973 (18 of 1973) read with Rule 100 of Delhi School Education Rules, 1973 and Government notification dated 25.02.1980 the method of recruitment for the post of Principal is by way of promotion, failing which by direct recruitment. There is no dispute that the respondent school has relied upon the said rule to appoint a suitable candidate on the said post of Principal. The stand of the respondents No. 3 and 4 in the counter affidavit is that for selecting the best suitable candidate on the post of Principal, the respondent has every right to adopt the method of open selection process so as to get the best available talent. The respondents No. 3 and 4 in their counter affidavit have given details of various act of indiscipline on the part of the petitioner and other complaints showing her lack of administrative competence and efficiency in carrying out the duties of an Officiating Principal. I will advert to these complaints of the respondent later on.
17. The main thrust of argument of the counsel for the respondent is that there is nothing wrong or illegal on the part of the respondents No. 3 and 4 to undertake composite method of selection so as to select the best suitable candidate for the pivotal post of Principal. According to the counsel for the respondents three DPCs were already held i.e. on 20.01.2004, 09.06.2004 and 17.02.2006 and since the petitioner was not found suitable to be appointed on the said post of Principal by the DPC held on 17.02.2006 along with other five PGT teachers, Therefore, respondent-management was not left with any other option but to go for open selection method in accordance with the said Recruitment Rules.
18. First DPC to select the Principal was held on 20.01.2004 in which the petitioner was the sole candidate but the said DPC was deferred on the ground that all documents required to be perused by DPC was not available. The photocopy of the minutes of the said DPC dated 20.01.2004 has been placed on record at page No. 33 of the paper book and ACR grading of the petitioner is shown as `very good'' for the years 1998-1999 till 2001-2002 and `good'' for the year 2002-2003. The said minutes does not spell out as to which documents were left to be perused by the DPC. There is only a handwritten note in the said minutes and from the said minutes it cannot be ascertained as to who had written the said note stating the said ground of non-availability of the required documents. This result of the DPC dated 20.01.2004 was not declared and in the meantime the petitioner was directed to take charge as Officiating Principal w.e.f. 01.04.2004 The petitioner had to file a writ petition No. 7856/2004 and vide order dated 20.08.2004 this Court had given the directions to declare the result of the said DPC within a period not later than four weeks from the date of the said order. Instead of declaring the result of the DPC the respondent has reconvened the DPC on 09.06.2004 As per the minutes of the DPC held on 09.06.2004 the members of the DPC did not find the petitioner to be suitable for selection to the said post and the following reasons were given by the DPC in the said minutes for not considering her candidature for the post of Principal. The observations of the DPC with regard to the petitioner are reproduced as under:
5. The DPC further observed that for one vacant post of Principal, there is only one candidate on the panel for consideration. The DPC Therefore scrutinized the documents of Mrs. Usha Saini as per the laid down rules of DSEA and R 1973. The observation of the DPC with regards to Mrs.Usha Saini are given below:
(a) The scrutiny of record of five years ACRs reveals that the ACR grading have continuously declined over the two years.
(b) The Management provided her fair opportunity by appointing her as
Officiating Principal with effect from 01 Apr., 2004 However, her performance during the intervening period was just about average. A few incidents which occurred in the school did not show the Officiating Principal as to one having the requisite mettle of a Principal.
(c) The DPC also opined that apart from requirements of good ACRs, it is imperative that in the selection of a Principal, qualities of leadership and dynamism in the candidates should be important considerations.
19. In the said DPC the Committee recommended for open method of selection and in such open method of selection to again consider the name of the petitioner along with the other candidates. The counsel for the petitioner has invited my attention to the minutes of the emergent meeting of the Management Committee of the school held just two days'' prior to the said DPC, i.e., on 07.06.2004 wherein the decision was taken to the proposal of reconvening of the DPC meeting to be held on 09.06.2004 In the said minutes, in para 7, the majority of the members of the DPC had already taken a decision to adopt the composite method of selection and, Therefore, the contention of the counsel for the petitioner is that the DPC which was held on 09.06.2004 was a mere eye wash. As per the counsel for the respondent this decision of the DPC dated 09.06.2004 was also endorsed by the office of the Directorate of Education vide letter dated 30.07.2004 This result of the DPC dated 09.06.2004 was challenged by the petitioner firstly by way of filing CM No. 9791/2004 and WA No. 814/2004 and later on by filing a separate Writ Petition (Civil) bearing No. 15214/2004 Vide order dated 09.01.2006 Hon''ble Mr. Justice S. Ravindra Bhat, while disposing of the writ petition had given the directions to respondents not to hold a fresh DPC without first conveying to the petitioner the ACRs for the period 2003-04 and 2004-05, in case there is a decline in the performance level of the petitioner during the said period. The Court further directed the respondent to consider the representation of the petitioner in respect of the said ACRs within a period of two weeks of its receipt and fresh DPC to be held within a period of two weeks from the date of the said order.
20. Pursuant to the said directions of Hon''ble Mr. Justice S. Ravindra Bhat in WP(C) No. 15214/2004 the DPC was held on 17.02.2006 in which besides the petitioner other five teachers were also considered for selection to the post of Principal. The result of the DPC was communicated to the petitioner vide letter dated 28.03.2006 whereby the petitioner was informed that her candidature was rejected. The petitioner was also informed that her candidature shall still be considered with other candidates in the open recruitment process. Thereafter the respondents had issued the advertisement dated 08.04.2006 calling for the direct recruits for appointment to the said post of Principal.
21. The precise question to be decided by the Court is whether the DPC, which was held on 17.02.2004, had fully complied with the directions of this Court given order dated 09.01.2006 in Writ Petition (Civil) No. 15214/2004 and whether fair and proper procedure has been adopted by the DPC in rejecting the name of the petitioner on account of her alleged declining performance and as to whether there is any violation of principles of natural justice on the part of the respondents No. 3 and 4 before arriving at the said decision of rejecting the case of the petitioner. Another issue which has to be examined by this Court is to test the validity of the composite selection method devised by the respondents for selection on the said post of Principal.
22. To examine the first question the minutes of the DPC meeting held on 17.02.2006 assumes great importance. In the said minutes it has been clearly recorded that the said DPC was being held pursuant to the directions given by the High Court on 09.01.2006 in Writ Petition (Civil) No. 15214/2004 The observation of the DPC with regard to the petitioner as made in para 7 of the said minutes are again reproduced:
7. The observation of the DPC with regards to Mrs.Usha Saini are given below:
(a) The scrutiny of record of preceding five years ACRs reveals that since last three preceding years 2002-03, 2003-04 and 2004-05 her ACR gradings has continuously declined. She being senior most candidate and has been holding the post of Vice Principal since last eight years 10 months, her sudden decline in performance is mainly due to the additional responsibility given to her as Head of the School.
(b) The Management has provided her fair opportunity by ''Setting aside'' her ''Average'' grading of year 2003-04 and by giving her additional responsibility as Head of the School with effect from 01 Apr 2004
(c) Management observed that Smt. Usha Saini could not come up to the expectations of the parents and management especially in carrying out her duties to ensure proper discipline. Her conduct towards co-workers has been found wanting.
23. It would be apparent from the said observations that the DPC has taken into consideration the declining gradings of the petitioner in the preceding years 2002-2003, 2003-2004 and 2004-2005. It would be interesting to note that in the minutes of the DPC held on 09.06.2004 the DPC had observed that after taking into account, record of five year''s ACRs of the petitioner there is a decline for over the last two years in her ACR gradings. The five preceding years which were taken into consideration by the DPC dated 09.06.2004 could have been from 1999-2000 to 2003-2004 and taking the said five years period into consideration the only decline where the Reviewing Officer has given an "Average" report pertains to the ACR for the year 2003-2004 This is also undeniable fact that respondents No. 3 and 4 themselves have taken the stand of declining of the petitioner''s performance level only in the year 2003-2004 and now at the time of DPC dated 17.02.2006 the DPC has taken into consideration the declined ACR gradings for preceding three years i.e. 2002-2003, 2003-2004 and 2004-2005. These observations of the DPC are in clear contradiction to their own letter dated 23.01.2006 whereby Brigadier K.M.S. Shergil, Chairman of the Management had stated the decline in the performance level only for the year 2003-2004 after his perusing the ACR for the year 2003-2004 and 2004-2005. It would be relevant to reproduce paras 1,2 and 3 of the said letter.
1. As you are aware that as per the direction of the Hon''ble High Court in your Writ Petition No. 15214/2004 the School is to convey the ACRs for the period 2003-04 and 2004-05 in case there is a decline in your performance level.
2. On my perusal of the ACRs of 2003-2004 and 2004-2005 it is observed that your performance level has declined in the year 2003-2004 The extract of the said ACR is enclosed herewith.
3. If you so desire, you can make a representation in this respect within two weeks of the receipt of this communication.
24. When the said communication was made by the management of the school to the petitioner intimating her the said adverse report for the year 2003-2004, the petitioner in response made her representation dated 01.02.2006. After considering the said representation of the petitioner the respondent- management vide their letter dated 14.02.2006 had set aside the "Average" remarks of Brig. G.S. Rathore in her ACR for the year 2003-2004 and, Therefore, it is beyond one''s comprehension as to how the performance level of the year 2003-2004 can still be taken as declining after setting aside of the "Average" remarks in the ACR for the year 2003-2004 It is also manifest from the minutes of DPC dated 17.02.2006 that ACR grading for the year 2004-2005 has also been taken into consideration when no communication for the alleged adverse grading of ACR for the year 2004-2005 was made by the respondent to the petitioner. It is further amazing to note that in the communication dated 23.01.2006 the Chairman after perusing the ACRs of the years 2003-2004 and 2004-2005 has only referred to the declining performance in the year 2003-2004 and not to the year 2004-2005 but in the minutes of DPC dated 17.02.2006 which was chaired by the same Chairman, namely, Brigadier K.M.S. Shergil, the declining performance has also been referred for the year 2004-2005. Just three days prior to the said DPC dated 17.02.2006 this very Chairman has endorsed the remarks of the Manager of the School referring to the unsatisfactory performance of the petitioner in carrying out her duties w.e.f. 01.04.2004 Once the petitioner was not communicated the alleged adverse ACR grading for the year 2004-2005, then, how such uncommunicated adverse remarks for the year 2004-2005 could have been taken into consideration by the DPC in their meeting held on 17.02.2006. The learned Counsel for the respondents, Mr. Rajiv Datta, vehemently urged that it is not merely the ACR records but even other qualities of the candidate are taken into consideration such as the qualification, conduct report, integrity certificate and vigilance clearance etc. and, Therefore, as per the counsel for the respondents no fault could be found with the decision of the said DPC held on 17.02.2004 I do not find any force in this argument of counsel for the respondents No. 3 and 4. The specific directions were given by this Court vide order dated 09.01.2006 to communicate the ACR for the period of 2003-2004 and 2004-2005, in case there was a decline in the performance level of the petitioner and once no communication has been made by the respondent as far as ACR grading for the year 2004-2005 is concerned the decision of the DPC to take into account uncommunicated alleged adverse report for the year 2004-2005 is ex facie illegal and improper on the part of the respondents No. 3 and 4. Even otherwise, the ACR for the period 2003-2004 could not have been taken to be that of declining in performance level as the respondents themselves have set aside the "Average" grading given by the Reviewing Officer vide their decision dated 14.02.2006. The counsel for the respondents sought to advance an argument by stating that the said "Average" remarks was set aside only due to some technical fault as the said "Average" remarks having been given by the Director of School who was not a competent officer and it is only the Chairman who could have acted as the Reviewing Officer. The contention of the counsel for the respondents is that the said setting aside of the "Average" remarks due to technical lacuna will still be taken as "Average" only and the same cannot be accepted as "Good" as recommended by the Reporting Officer. I do not find force in the submission made by the counsel for the respondents No. 3 and 4. Once a decision was taken by the management of the school to set aside the said "Average" remarks for the year 2003-2004, the grading given by the Reporting Officer for the said year has to be accepted. Even otherwise, the ground to set aside the rejection which is now being sought to be urged by the counsel for the respondents does not find mention in the decision of the respondent dated 14.02.2006 which only states that the "Average" remarks made by the Brig. G.S. Rathore in the ACRs for the year 2003-2004 are set aside.
25. Counsel for the petitioner has placed reliance on the judgments of the Supreme Court in the cases of
7. It would, thus, be clear that the object of writing the confidential reports and making entries in the character rolls is to give an opportunity to a public servant to improve excellence. Article 51-A(j) enjoins upon every citizen the primary duty to constantly endeavor to prove excellence, individually and collectively, as a member of the group. Given an opportunity, the individual employee strives to improve excellence and thereby efficiency of administration would be augmented. The officer entrusted with the duty to write confidential reports, has a public responsibility and trust to write the confidential reports objectively, fairly and dispassionately while giving, as accurately as possible, the statement of facts on an overall assessment of the performance of the subordinate officer. It should be founded upon facts or circumstances. Though sometimes, it may not be part of the record, but the conduct, reputation and character acquire public knowledge or notoriety and may be within his knowledge. Before forming an opinion to be adverse, the reporting officers writing confidentials should share the information which is not a part of the record with the officer concerned, have the information confronted by the officer and then make it part of the record. This amounts to an opportunity given to the erring/corrupt officer to correct the errors of the judgment, conduct, behavior, integrity or conduct/corrupt proclivity. If, despite being given such an opportunity, the officer fails to perform the duty, correct his conduct or improve himself, necessarily the same may be recorded in the confidential reports and a copy thereof supplied to the affected officer so that he will have an opportunity to know the remarks made against him. If he feels aggrieved, it would be open to him to have it corrected by appropriate representation to the higher authorities or any appropriate judicial forum for redressal. Thereby, honesty, integrity, good conduct and efficiency get improved in the performance of public duties and standard of excellence in services constantly rises to higher levels and it becomes a successful tool to manage the services with officers of integrity, honesty, efficiency and devotion.
8. It is seen from the record that the respondent constantly maintained a good record earlier to the adverse remarks made for the aforesaid period. It would appear that subsequently also he had good confidential reports on the basis of which the clouds over his conduct were cleared and he was given further promotion. Mr Rakesh Dwivedi, learned Additional Advocate General, in fairness, Therefore, has stated that since the respondent has been regularised after the subsequent good reports, the dispute does not survive for adjudication on merits. But the counter-comments made against him by the Secretary were warranted in view of the material on record. He brought to our notice that as on the date when the entries were made, the vigilance enquiry was pending against the respondent and, Therefore, the adverse remarks came to be made. The findings recorded by the Tribunal of malice and arbitrariness on the part of the Secretary as affirmed by the High Court are not warranted for two reasons. Firstly, since the Secretary was not eo nomine to the proceedings and had no opportunity to explain the position, it would be vocative of the principle of natural justice. Secondly, since the vigilance enquiry was pending, unless the officer was exonerated and cleared from the cloud, necessarily, the Secretary could not clear the conduct and integrity of the officer. Therefore, the adverse remarks cannot be said to be to smack of arbitrariness.
26. These judgments cited by counsel for the petitioner are applicable to the facts and circumstances of the present case with all force.
27. Counsel for the petitioner has further placed reliance on the O.M No. 22011/9/98-Estt. (D) dated 08.09.1988 read with O.M. of even number, dated 13.10.1998 and O.M. No. 22011/9/98-Estt. (D) dated 16.06.2000 in support of his proposition that the ACRs for preceding five year before the vacancy/panel year have to be considered by the DPC irrespective of the date of actual convening/reconvening of the DPC. The argument of the counsel for the petitioner is that the DPC which was held on 17.02.2006 was a reconvened DPC of the first DPC which was held on 20.01.2004 when for the first time the DPC was constituted for carrying out the selection on the said post of Principal and, Therefore, five ACRs preceding the said date of DPC dated 20.01.2004 ought to have been taken into consideration by the DPC and not of the subsequent period. In support of his this argument counsel for the petitioner has placed reliance on the judgment in the case of
1. X X X
2. In regard to operation of the Model Calendar for DPCs, a doubt has been raised by certain quarters as to the question of the relevant year up to which ACRs are required to be considered by the DPCs. In this connection, it is once again clarified that only such ACRs should be considered which became available during the year immediately preceding the vacancy/panel years even if DCPs are held later than the schedule prescribed in the Model Calendar. In other words, for the vacancy/panel year 2000-2001, ACRs up to the year 1998-99 are required to be considered irrespective of the date of convening DPC.
3. Ministries/Departments are requested to give wide circulation to these clarifications for general guidance in the matter and also to ensure strict adherence to the time-schedule prescribed as per the Model Calendar for DPCs.
28. Relevant part of the judgment of the Supreme Court in the case of
13. It is true that the material furnished before us would indicate that action was taken on 22-12-1993 by the Ordnance Factory Board and circulated for action to be taken by the Government and thereafter the Union Public Service Commission was consulted. Action taken on this material should have been taken much earlier to the date on which it was taken since they knew that four members were due to retire in August, September, October 1994 and March 1995. These were anticipated vacancies likely to arise on permanent basis and promotion to them was to be made on regular basis. In other words, they were all clear vacancies. So they were to be finalised before April 1994 and the confidential reports should have been approved before 31-3-1993 and all eligible candidates within the zone of consideration as on the date of DPC were entitled to be considered. The direction given by the Tribunal referred to above is clearly in accordance with the procedure indicated hereinbefore. Therefore, we do not find that the orders are vitiated by any error of law warranting interference.
29. Based on the said office memorandum and the judgment of the Supreme Court the ACRs which could have been taken into consideration by the DPC had to be five preceding ACRs prior to the date when the first DPC was held and not the date when reconvened DPC was held on 17.02.2006. However, since in the present case the respondents No. 3 and 4 have already been permitted to consider her ACRs for the period 2003-2004 and 2004-2005 subject to the condition to first communicate that in case there is any decline in the performance level of the petitioner for the said period of ACRs, then, the same has to be conveyed first to the petitioner and, thereafter only, the DPC proceedings were directed to be held after due consideration of petitioner''s representation in respect of the declining performance of any of the said ACRs. Under these circumstances once this Court has already permitted the respondents to consider the ACRs even subsequent to the period of vacancy/panel year, vide said order dated 09.01.2006, Therefore, at this stage this Court will not sit in appeal over the said decision which remained unchallenged.
30. Based on the above discussion, it is thus apparent that the respondents No. 3 and 4 have failed to comply with the directions of this Court given vide order dated 09.01.2006. From any angle, the counsel for the respondents No. 3 and 4 have not been able to justify the stand of the school. In case there was a decline in the performance of the petitioner in her ACR grading for the period 2004-2005 as mentioned in the DPC held on 17.02.2006, then, the petitioner ought to have been communicated the same. Had there been no decline in the performance for the said ACR for the said period i.e. 2004- 2005 the same should not have been shown as declining performance by the said DPC. The decision of the respondents No. 3 and 4 is also beyond comprehension in treating the ACR for the period 2003-2004 as declining after the setting aside of the "average" report of the Reviewing Officer vide decision communicated on 14.02.2006. It would be thus manifest that in the minutes of DPC meeting dated 17.02.2006 in para 7(a) reference has been made to the declining ACR''s for the year 2002-2003, 2003-2004 and 2004-2005. There cannot be any dispute that ACR grading for the period 2002-2003 is "Good". As regards ACR gradings for the year 2003-2004 the same has to be accepted as "Good" after setting aside of the report of the Reviewing Officer. So far report for the year 2004-2005 is concerned, the same was not considered as adverse or declining by the respondents No. 3 and 4 themselves as per their own letter dated 14.2.2006 and conversely, if the same is taken as adverse, then, the same has admittedly been not communicated to the petitioner. It would be thus evident that the entire process adopted by the respondents No. 3 and 4 in the DPC held on 17.02.2006 as regards the candidature of the petitioner is concerned became vitiated and perverse.
31. Counsel for the respondents No. 3 and 4 has placed reliance on various acts of omissions and commissions committed by the petitioner and the complaints received in this regard showing her utmost inefficiency and incapability to carry on the duties of Officiating Principal. Counsel for the respondents has drawn my attention to the letter dated 29.03.2004 addressed by Brig. G.S. Rathore, Director of school in which it has been pointed out that the petitioner has failed to motivate the staff and children to participate in the adventure camp conducted by the Rajputana Rifles Regimental Centre, Delhi Cantt., although 50 of the children were detained to participate in the same. The counsel has further drawn my attention to letter dated 21.05.2004 where the complaint was made for unauthorized entry of one lady carrying a video camera at the time when the students were in a hurry to appear in the class for the MBBS examination. The other contentions raised by the counsel for the respondents are that the said lady had created a disturbance in the school at the time of examination of the students and entry of such a lady at that hour depicts administrative incompetence of the petitioner. Another complaint dated 20.04.2004 relates to molestation of a school girl of class VII standard at the hands of a person who came in the Army uniform and indulged into the said act of molesting the girl. There are some other complaints but they are of the year 2006. The petitioner has explained that due to extreme cold climate, parents of the students did not permit participation of their work in the adventure camp and the students also did not feel encouraged due to the second unit Test as well as Pre-Board Exams which were scheduled to commence in January 2004 As regards unauthorized entry of the lady with a video camera the petitioner had handled the situation and also brought the matter to the notice of Maj. C.V. Sailesh and Dr. Dilip Mathai, the concerned functionaries, managing the affairs of the school. In the molestation issue, also the petitioner has explained her position vide reply dated 20.04.2004 in which she had also suggested certain measures to be taken by the school authorities to prevent any such future occurrence. I, Therefore, do not find any force in the said complaints. Even otherwise, for managing affairs of the school, one cannot be put to blame for the unforeseen happenings in the school. Before fixing any responsibility on any functionary of the school one should be careful to see that the concerned officer is not negligent in the discharge of the assigned duties and has no active or passive role in the occurrence of such an incident in the school premises. Without denying the fact that the administration of the school should be in capable and efficient hands but at the same time for every small or big malady the management should not look for an opportunity to fix somebody without properly analyzing the complete facts.
32. The allegation of inefficiency or incapability on the part of the petitioner in carrying out her duties as Officiating Principal also cannot sustain in view of the report of the inspecting team dated 21.09.2005 who in the said report under the column of "Overall Assessment" made the following observations:
A well managed and governed school with efficient teaching and Adm Staff, who functions under the able guidance of the Offg. Principal.
33. Counsel for respondents No. 3 and 4 also contended that despite directions of this Court the petitioner has deliberately chosen not to appear before the DPC and, Therefore, the petitioner herself being a wrong doer is not entitled to any indulgence from this Court.
34. In support of his argument counsel for the respondent has placed reliance on the order dated 20.08.2004 of this Court passed in CM No. 9791/2004 of WP(C) No. 7856/2004, order dated 28.03.2006 passed in the present case and order of the Division Bench dated 25.07.2006 passed in LPA No. 1074/2006. In the said LPA, the Division Bench vide order dated 24.05.2006 has given the following directions:
Issue notice to the respondents to show cause as to why the appeal be not admitted. Ms. Avnish Ahlawat appears on behalf of respondents No. 1 and 2. Notice shall now issue to respondents No. 3 and 4 only. Liberty is given to the appellant to serve the said respondents dusty. Notice through the counsel appearing for the said respondents before the Single Judge is also permitted. Post for admission on 10th July, 2006. In the meanwhile, while the selection process initiated by the respondents can go on, the result of the said selection shall not be declared and shall be kept in a sealed cover. Order dusty.
35. At the time of disposal of said LPA No. 1074/2006 the Division Bench held that the interim order dated 24.05.2006 shall continue to operate during the pendency of the present case till the disposal of the writ petition. The contention of counsel for respondents No. 3 and 4 is that the respondents have already completed the selection process and in compliance with the directions of the Division Bench has not declared the result of the DPC which has been kept in sealed cover. On the other hand, counsel for the petitioner urged to justify the stand of the petitioner for not participating in the selection process which was per se illegal. Counsel for the petitioner also submitted that Division Bench in their order dated 24.05.2006 did not give any specific directions on the petitioner to participate in the selection process as initiated by the respondents. The counsel also submitted that had the petitioner participated in the selection process, then it would have rendered the present petition as infructuous.
36. It is no doubt true that vide order dated 28.04.2006 respondents were directed to proceed with the selection process in which candidature of the petitioner was also to be considered. This interim order was not set aside by the Division Bench in LPA No. 1074/2006 but the same was modified only to the limited extent of not declaring the result of such selection and to keep the result in a sealed cover. As per the said directions given by the Single Bench as well as by the Division Bench the petitioner ought to have participated in the process of the selection, no justifiable reasons have been advanced by the petitioner for non participation of the petitioner in the selection undertaken by the respondents No. 3 and 4. Pursuant to the said directions by mere participation in the selection process the rights of the petitioner to challenge the minutes of the DPC dated 17.02.2006 and the proposed composite method of selection, would still have remain unaffected. Any how, I am not inclined to reject the present case of the petitioner merely on the ground of her non participation for the last DPC dated 21.08.2006. Moreover in the present petition, the petitioner has assailed the minutes of the DPC dated 17.02.2006 and, Therefore, the legality and validity of the said DPC dated 17.02.2006 was required to be examined by this Court and which has been held out to be illegal as per the discussion made herein above.
37. The last argument of counsel for the respondent is that they have every right to take recourse to composite selection method. This argument of the counsel for the respondents No. 3 and 4 cannot stand in view of the judgment of Hon''ble Mr. Justice S. Ravindra Bhat dated 09.01.2006. The court had already rejected the contention of the school of holding a composite selection method in the absence of a challenge to the notification dated 25.02.1980. It would be relevant to reproduce the observations of my learned brother Justice S. Ravindra Bhat:
19. Even otherwise I am not persuaded to accept the contention of the school that it is possible to hold a composite procedure, as in the absence of a challenge to the notification dated 25.2.1980, which clearly prescribes that the post is a selection post (which has to be filled up by promotion failing which direct recruitment).
38. Judgment cited by the learned Counsel for the respondent in the case of
39. As a result of the aforesaid discussion, the minutes of the DPC held on 17.02.2006 are hereby set aside and quashed. The respondents No. 3 and 4 are directed to hold a fresh DPC for the post of Principal within a maximum period of four months from today. Due to the contradictory stand of respondents No. 3 and 4 with regard to the ACR of the petitioner for the period of 2004-2005 the respondents No. 3 and 4 shall only consider the ACRs of the petitioner preceding five years'' period from the year 2004 taking the ACR for the period 2003-2004 as the ACR of 5th year period. It is also made clear that ACR for the period of 2003-2004 shall be treated for the respondents No. 3 and 4 as "Good". Respondents No. 3 and 4 shall be at liberty to undertake the process of selection by direct recruitment in accordance with Government notification dated 25.02.1980, after first exhausting the laid down procedure of selection through promotion.
40. With these directions, the present writ petition is allowed.
