JUDGMENT
S. Ravindra Bhat, J.
1. The Petitioner has approached this Court claiming a direction to be promoted to the post of Lab Assistant in the Respondent No. 4 school which is an aided institution in terms of the Delhi School Education Act and Rules.
2. The undisputed facts are that the Petitioner joined the Respondent on 21.10.1982 as a Sweeper; he was confirmed to the post on 6.1.1994. It is claimed that in 1995 he completed his class 10th examination from the National Open School in Science subjects. The Petitioner is a Scheduled Caste candidate.
3. The school where the Petitioner works is a Girls school. It has one post of Lab Assistant which fell vacant in the year 1999. The Petitioner alleges that the post has not been filled up, till date. In another school run by the same society, which consists exclusively of male pupils a similar vacancy arose in the year 2000 in the post of Lab Assistant.
4. The Petitioner alleges that he represented on several occasions in the year 2000 and 2002, seeking promotion to the post of Lab Assistant which it is claimed has to be filled inter alia on the basis of promotion from amongst eligible Group D category employees who hold the essential qualification of matriculation in Science from a recognised university. The rules prescribe in addition six months experience as Lab Assistant as a desirable qualification.
5. The Petitioner approached this Court claiming an appropriate direction in the year 2004. The school in its return has alleged that the post has to be filled only from amongst female staff. This position has been reiterated by Mr. Chaudhary on behalf of the management during the course of hearing. Although the counter affidavit does not claim the basis of such an assertion, counsel relied upon a resolution by the governing body of the school said to be of the year 2001.
6. Learned counsel for the Directorate submitted that as per the recruitment rules, the post has to be filled exclusively by promotion from amongst eligible candidates and that the school was directed under provisions of the Act and Rules to take steps and consider the candidature of the Petitioner to fill the post. However, counsel also relied upon the averments in the counter affidavit of Directorate and submitted that the stand of the school that post could be filled from amongst female employees is misconceived. It was submitted that no such power inheres with the management of an aided school, it is funded to the tune of 95%.
7. Having considered the averments, the documents on record and the contentions, I am of the opinion that the stand of the school in not even considering the candidature of the Petitioner is unsustainable in law. No rule or provision of the Act was drawn to my notice which empowers the school management (which receives grant in aid from the Government) to stand out and exclusively reserve one or the other post only on the basis of gender. Although no final view can be expressed on the issue, it is evident that a mere resolution would not suffice in such circumstances; it has to have the sanction of law or at least it should be supported by provisions of law under the Act or Rules. Otherwise, such a position would fall foul of Article 15(1) of the Constitution of India.
8. The Government of NCT has categorically stated that the school had been directed to fill the post by considering the candidature of the Petitioner. In this view of the matter, a direction is issued to the Respondents to constitute a DPC in terms of the Rules and consider the Petitioner’s case for promotion to the post of Lab Assistant having regard to his qualifications. This exercise shall be completed within a period of six weeks from today.
9. The writ petition is allowed to the above extent. No costs.