JUDGMENT
Sunanda Bhandare, J.
(1) Respondents 1,5 and 6 who were working as PGTs jn V.S. Agriculture Higher Secondary School, Khera Garhi, Delhi filed a writ petition in this Court under Article 226 of the Constitution of India challenging the validity of the order of the Directorate of Education, Delhi dated 26/27.8.1980 conveying the approval of the Director of Education to the appointment of the appellant herein as Principal of the school w.e.f. 10.9.1979 According to the writ petitioners, the appointment to the post of Principal was to be made by selection by promotion from the PGTs working in the same school on the basis of seniority-cum-fitness. They relied on the Circular of the Directorate of Education dated 10.5.1963 in support of their contention that the post of the Principal is to be died in by departmental pro- motion, however, in case there Is no suitable departmental candidate in the next lower grade available, the same could be filled by direct recruit- meat. According to the writ petitioners, the whole procedure adopted by the respondents 2 to 4 was wrong. The appointment could not be made by direct recruitment. Thus, there was no question of issuing advertisement or interview by Selection Committee. In the process, the appellant herein who is junior to the writ petitioners got appointed as Principal of the school. It was further pleaded that respondents 1 and 6 herein would have been eligible for promotion if the post had been filled by promotion, however their names were not even considered because they were found to be ineligible since they did not have the requisite educational qualification i.e. second class master’s degree. The writ petition was allowed by way of the impugned dated 24.3.1981. The learned Single Judge followed the judgment in Juswant Rat Gupta v. Delhi Administration etc., (CWP 923 of 1977) decided on 19.9.1979 and held that the recruitment to the post of Principal could be made only by promotion in view of the circular dated 10.5.1963. As a consequence, the appointment of the appellant be rein was quashed. Thus judgment and order of the learned Single Judge dated 24.3.1981 is challenged by the appellant lathis appeal under Clause 10 of the Letters Patent.
(2) It was submitted by the learned Counsel for the appellant that the learned Single Judge proceeded on the basis that the circular dated 10.5.1963 was operative, however the appellant has come to know that there were other circulars issued on 21-4.1970. 3.8.1971 and 10.8.1971 which made the position clear and recruitment to the post of Principal was rightly made by direct recruitment. Learned Counsel submitted that the parties all-through proceeded on the basis that the appointment to the post of Principal was only by direct recruitment and the respondents 1,5 and 6 had also applied in response to the advertisement to the post of Principal. Thus respondents 1, 5 and 6 are now precluded from contending ‘that the appointment could be made only by promotion as per circular dated 10.5.1963. Learned Counsel further submitted that the stand of the Directorate of Education before the teamed Single Judge in the counter affidavit was that the appointment could be made only by direct recruitment though they did not show the subsequent circulars dated 21.4.1970, 3.8.1971 and 10.8.1971.
(3) On the other hand, it was submitted by the learned Counsel for the respondents that the circulars dated 21.4.1970, 3.8.1971 and 10.8.1971 are only clarificatory in nature and these circulars were meant for the guidance of the Principals and Managers if it was found accessory to make appointment by direct recruitment since suitable candidate from the same .school were not available for being promoted as Principal. Learned Counsel submitted that all the three circulars were not only available with the Directorate of Education but also with the appellant when the writ petition was beared and it was not considered necessary to place these circulars before the Court because parties always understood that these circulars were only clarificatory in nature and the real operative circular which governed the recruitment to the post of Principal was of ro.5.1963. Learned Counsel submitted that even after the Delhi Education Act came into force ia the year 1973 the Rides provide that recruitment to the post of Principal will be by promation. This Indicates the intention of the Directorate of Education. it was submitted that the whole idea in recruitment as Principal from amongst promotees was to give opportunities to the teachers from the same school to be appointed as Principal ana, therefore, even in the circulars issued later i.e. circulars dated 21.4.1970, 3.8.1971 and 10.8.1971 it has been stated that preference will be given to teachers working in the same school. Learned Counsel submitted that the minimum educational qualification for appointment to the post of Principal is second class master’s degree. The minimum qualification is relaxable in the ease the appointment is to be made from amongst the promotees. Thus, respondents 1 and 6 would be entited to be considered for promotion though they did not have the requisite qualification and only possessed a third class master’s degree.
(4) The admitted position of the parties is that before the Delhi Education Act 1973 came into force the terms and conditions applicable to the employees were regulated by the Delhi Education Code and by circulars of Delhi Administration issued from time to time. In exercise of powers conferred by proviso to Article 309 of the Constitution, the Chief Commissioner, Delhi had notified Recruitment Rules by a notification dt. 14.5.1962 for the post of the Principal under the Directorate of Education, Delhi. The essential qualification in those recruitment Rules was a master’s degree or equivalent degree of a recognized university and Degree or Diploma in teaching/education besides experience as detailed therein. The method of recruitment was promotion 50% and direct recruitment including transfer 50/o. The Delhi Education Act received the assent from the President of India on 9.4.1973 and the Recruitment Rules were published on 31.12.1973 and the earlier Recruitment Rules were cancelled and new Recruitment Rules Were notified on 2.5.1974. These Rules were applicable to the post of Principal ia government higher secondary schools (male & female). The essential qualifications required for direct recruitment prescribed under these Rules were a second class master’s degree from a recognized university or equivalent. The method of recruitment is 50% by promotion, failing which by direct recruitment and 50% by direct recruitment. The Rules however specified that the educational qualifications prescribed for direct recruits were not applicable in the case of promotees. The Director of Education issued a circular in April 1975 that in accordance with the provisions of sub-rule (b) of Rule 100 the set of qualifications as are prescribed by Delhi Administration for the post of Principal of government schools are also applicable to the post of Principal of all recognized schools. This circular was repeated by circulars dt. 3.7.1975,12.8.1975 and 13.11.1975. It is.also not disputed that under Rule 108 every vacancy In an aided school is to be filled in by promotion or by direct recruitment in accordance with such Rules as may be made by the Administrator in this behalf. The Administrator did not make any such Rules till 25.2.1980. Thus, the gap in the Rule could be filed only by the administrative instructions issued by Delhi Administration. A circular was issued 01110.5.1963 that the post of Principal may be filled by departmental promotion and if thesis no. suitable candidate in ‘the next lower grade available, the same may be filled by direct recruitment. This method of recruitment received statutory recognition when the recruitment Rules for the post of Principal in recognized private aided school including unaided minority school in the Union Territory of Delhi were notified on 25.2.1980.
(5) The admitted factual position is that in August 1979 an advertisement appeared inviting applications for the post of Principal of the school. On 16.8.1979 a circular was also circulated by-the school among the members of the staff inviting applications for the post of Principal. A meeting of the Selection Committee was held on 7.9.1979, 29 applications were received by the Principal of the school and after scrutinising, 24 candidates were found to be duly qualified. Out of these 24 candidates, 15 candidates appeared before the Selection Committee for interview. The Selection Committee after interview’ ing all the candidates recommended the following panel for the post of Principal of the school in order of merit : 1. Shri Nahar Singh, appellant 2. Shri H.S.Verma 3. Shri Ram Krishan, respondent no. 5
(6) Thus, Shri Nahar Singh appellant herein who was junior to Bijya Nand, respondent no. 1 and Ram Kishan respondent no. 5 senior to respondent no. 6-Shri Hari Ram came to be selected for the post. It is also not disputed that respondents land 6 do not possess the requisite educational qualifications because they have a third class master’s degree. Thus, these respondents would become eligible for consideration only if the circular dt. 10.5.1963 is applicable and recruitment is to be made only by promotion.
(7) The short point, therefore, for consideration is whether the circular of 10.5.1963 was operative on the date recruitment to the post of Principal in the school was considered by the Selection Committee.
(8) The relevant portion of the circular dated 19.5.1963 as filed by the appellant reads as under : “I have the honour to state that the Directorate of Education has been receiving complaints from teachers regarding their promotion to higher posts. It has, therefore, been decided that the proportion of 50 : 50 for direct recruitment and Departmental promotions will be quite reasonable. As regards the post of Head Master’s Head Mistresses/Principal, it is stated that the same may please be filled by Departmental promotions. However, in case there is no suitable departmental candidate in the next lower grade, the same may please be filled by direct recruitment.”
(9) It is thus clear that as per this circular, recruitment to the post of Principal could be made by direct recruitment only if it was not possible to fill the vacancy by promotion. According to the appellant, the three circulars dated 21.4.71, 3,8,71 and 10.8.1971 superseded the circular dated 10.5.1963. The relevant portion of the circulars dated 21.4.71, 3.8.71 and 10.8.71 as filed by the appellant read as under : Circular dated 21.4.71
SUB:PRINCIPAL/SELECTION And Promotion Thereof
Sir/Madam.
I am directed to inform you that some principals and managers have submitted some difficulties experienced by them about Delhi Education Code 1965 especially about the selection of principals and teachers, about the approval of their post and filling of the vacant post. In this regard, the following decisions have been taken which must be strictly followed in the school ;
1.About the Selection of Principal. (a) As far as the selection of Principals is concerned, it is incumbent upon the manager to call for names from the employment exchange to fill up the vacant post but at the same time, be could give an advertisement in the newspapers. Candidates should be called for interview from amongst the names, so received from the two sources. The selection committee of the Directorate will decide who from all the applicants are to be called for interview, and, not any one member of the Selection Committee : as it a part of the process of selection, all the names should be placed before the selection Committee for a single post, at least ten persons should be called for interview, according to their ability. Every candidate should be informed by a registered letter at least ten days before. (c) The selection of the Principal will be done according to the rules of the Education Directorate of Delhi, senior teachers of the same school if they fulfilll the minimum qualifications, shall be called for interview, and, other things being equal, the teachers from the same school should be given preference. Circular dated 3.8.1971 Sub: Principals/Teachers Selection promotions thereof Sir/Madam, Partial amendment has been done In the rules contained in this departmental letter no. DIR/ED/PER/1/48/69-70 dated 21.4.70 Henceforth the amended rules should be strictly followed in all the schools. 1. Selection of Principals. (a) As far as the selection of principal is concerned, the Manager will have to call for names from the Employment Exchange for filling up the vacant post but at the same time it will be necessary for him to give advertisement in the newspapers. From the names so received from the two sources, the candidates will be called for interview. The selection committee will decide and not any single member of the committee will decide who from the names should be ‘ called for interview as it is a part of the process of the ‘ selection. All the names will be placed before the selection committee, and, for one post, at least ten persons with requisite qualifications should be called for interview. (b) Candidates should be informed by registered post at ten days notice. (c) The selection of Principal should be done according to Delhi Education Code. If the senior teachers of the same school fulfilll the requirement of the minimum qualifications of the post, they should be called for interview and other things being equal, the senior teachers of the school should be given perference.”
Circular dated 10.8.1971.
Sub : PRINCIPAAL/TEACHERS/ Selection And Promotion Thereof
Sir/Madam
In continuation of letter no. even dated 3.8.71 on the subject cited above and issued by this Directorate, I have to request you that while inserting advertisements for the post of the Principals, the following details of the prescribed qualifications for the post of the Principals should be given ; 1. Details of prescribed qualifications for the post of the Principal according to the Recruitment Rules.
(10) On reading these three circulars we find that there is great force in the contention raised by the learned Counsel for respondents 1, 3 and 6. To our mind, it appears that the circulars dated 21.4.71, 3.8.71 and 10.1.71 were issued by the Director of Education because there were certain difficulties faced by the principals and managers of schools whenever the vacancies were required to be filled by direct recruitment due to non-availability of suitable candidates by promotion. These circulars only indicate the procedure to be followed while making direct recruitment. These circulars do not state the mode of recruitment The mode of recruitment is given only in the circular dated 10.5.^63. In fact, the intention of the Education Department in Issuing the circulars is very clear. Even as per these circulars preference has to be given to teachers from the same school even if appointment is required to be made by direct recruitment. ‘ The contention of the learned Counsel for the appellant that the fact that the cirular mentions about giving preference to teachers from the same school would not have arisen if promotion was the only mode of recruitment, is to our mind without any merit. The circulars specify that preference will be given to circulars from the same school because teachers from the same school though junior in position were entitled to apply for appointment to the post of Principal by direct recruitment if they had the necessary qualification. By this way they could cross the hurdle of seniority. Thus, though they were not the seniormost since they possessed the requisite qualification they could compete with other applicants who had responded to an advertisement or with those candidates who had registered themselves with employment exchange. To our mind, this preference shown to teachers from the same school rather indicates to the contrary. The idea seems to be that as far as possible teachers from the same. school should be preferred because they would be acquainted with the particular school and as such would be in a better position to perform their duties as Princepal. Moreover, the Rule which was framed In the year 1980 though not applicable to the present case also is a pointer in that direction. Under the said Rule the method of recruitment for the post of principal is “by promotion failing which by direct recruitment”. The educational qualifications under the said Rule are ; ” (I)Master’s degree with at least Ii Division from a recognised University or equivalent. * (ii) Degree in Teaching/Education from a recognised university or equivalent. 547 (iii) 10 years experience of teaching as Vice-Principal/PGT in a Hr.Sec./Oen gec. School or Inter College. Condition of Second Division relaxable in the case of candidate belonging to the same school and also to case of SC/ST candidates.
(11) Thus, we have no hesitation in coming to a conclusion that the mode of recruitment in 1979 to the post of Principal was as stated in the circular dated 10.5.1963 i.e. by departmental promotion failing which direct recruitment. We thus see no error in the impugned judgment of the learned Single Judge dated 24.3.1981.
(12) We are informed that respondent no. I was appointed as ad hoc Principal after the judgment of the learned Single Judge and be has since retired. Respondent no. 6 was appointed as ad hoc principle but was not continued becuse be was found to be unfit due to his illness. But, we are not concerned with that. Respondents 2 to 4 will have to do a fresh selection and naturally the persons available will be considered as per their seniority for appointment to the post of Principal.
(13) In the circumstances, the appeal Is dismissed. There will be however no order as to costs.