Devinder Gupta, J.

1. Rule. D.B.

With consent of the parties we propose to dispose of the petition today.

2. Having heard learned Counsel for the parties and gone through the respective stand taken on behalf of respondents 1 to 3 and respondent No. 4 in their respective counter affidavits, we are of the view that the petition deserves to be allowed and the reliefs prayed for in the petition deserve to be granted.

3. The petitioner having completed his post-graduation in Sanskrit from Delhi University in the year 1974 consequent upon an interview for the post of Trained Graduate Teacher (Sanskrit) he was appointed on 28.9.1974 as a Trained Graduate Teacher (Language) in respondent No. 4 school on probation for a period of one year as per the appointment letter, Annexure P-4. On completion of the period of probation his services were confirmed with effect from 16.9.1974 through letter Annexure P-5. In the month of June, 1986 the post of Post Graduate Teacher (Sanskrit) fell vacant in the school on the retirement of S.N. Shastri. Petitioner, who though appointed as Trained Graduate Teacher (Language) had been teaching Sanskrit continuously from the date of his appointment, in the absence of any Post Graduate Teacher (Sanskrit) was asked by the Managing Committee of respondent No. 4 School to teach Sanskrit to Senior Secondary Classes. On 8.8.1986 representation, Annexure P-8, was submitted by the petitioner for his appointment/promotion to the vacant post of Post Graduate Teacher (Sanskrit) stating that he was fully qualified for the post and had also the requisite experience. He besides having done Post Graduation in Sanskrit had also done double Shastri and double Acharya in Sanskrit Literature and Sanskrit Vedant. This representation of the petitioner along with subsequent representations did not find favour with respondent No. 4. The reason assigned was that the petitioner was not entitled for being promoted/appointed to the post of Post Graduate Teacher (Sanskrit) since he was appointed only as Trained Graduate Teacher (General) and not as a Trained Graduate Teacher (Sanskrit). Petitioners case is that eversince the date of his appointment, he had been teaching only Sanskrit and no other subject and that too, to the entire satisfaction of respondent No. 4 school and during his tenure he had also earned and been given letters of appreciation for getting excellent results in Sanskrit subject. In the month of June, 1986 when the post of Post Graduate Teacher (Sanskrit) fell vacant on the retirement of S.N. Shastri, the petitioner was asked by the Managing Committee of respondent No. 4 to teach Sanskrit to Senior Secondary Classes and had been performing the duties and discharging the functions and responsibilities of a Post Graduate Teacher (Sanskrit) to the entire satisfaction of respondent No. 4. Being fully qualified for the post and having the requisite experience also, the action of respondents in not promoting/appointing the petitioner as a Post Graduate Teacher (Sanskrit) from June 1986 and not paying him the salary of the post of Post Graduate Teacher (Sanskrit), the respondents are acting arbitrarily. Consequently he has prayed for directions against the respondents to promote him on and from the date when the post of Post Graduate Teacher (Sanskrit) fell vacant and he started teaching Senior Secondary Classes as Post Graduate Teacher (Sanskrit) and also to pay him regular pay of a Post Graduate Teacher (Sanskrit) on and from the said date.

4. Respondent No. 4 in its reply filed on the affidavit of M.K. Jain has admitted that the petitioner was M.A. in Sanskrit and was appointed as Trained Graduate Teacher (Language) in the year 1974. The appointment was subject to the approval of the Education Department, which accorded the approval only as a Trained Graduate Teacher. Irrespective of that the petitioner has been teaching Sanskrit and on retirement of the Post Graduate Teacher (Sanskrit) the petitioner has been teaching Sanskrit to Senior Secondary Classes. He was asked to do so, keeping in mind his qualifications and the interest of the students. It is also stated that the results of the petitioner have been satisfactory and there has been no complaint against the work and conduct of the petitioner. Only a person having Post Graduate degree in the subject is eligible for being appointed as a Post Graduate Teacher of the subject. It is stated that in the month of April, 1988 School Management did approach the Directorate of Education for change of cadre of two Trained Graduate Teachers, namely, P.L. Sharma and N.L. Pant as Language Teachers, since they were performing the duties of the Language Teachers but the Education Department rejected the request of Management stating that there was no post of Language Teacher in the School and that the cadre of Language Teacher cannot be changed.

5. The stand of respondents 1 to 3 in the reply filed on the affidavit of Dr. Naresh Kumar, Deputy Education Officer, Zone VI, East Distt. Rani Garden, Delhi is that the post of Post Graduate Teacher (Sanskrit) for which the petitioner has filed this petition has already been filled up by the management of the school on the recommendation of the Selection Committee, so constituted under Rule 96 of Delhi School Education Act, 1973 and the incumbent was appointed and recommended and is working with the School. There is no post of Post Graduate Teacher (Sanskrit) as such lying vacant in the School and unless the post is available it is difficult to consider the request of the petitioner for promotion on merits or to give him an assurance for consideration of promotion against the post of Post Graduate Teacher (Sanskrit). Managing Committee alone is the Appointing Authority in accordance with Section 98(1) of the Delhi Education Rules and the Managing Committee is to base the appointment of an individual on the recommendation of the constituted Selection Committee.

6. On 10.9.1993, while issuing show cause notice, on the miscellaneous application (CM 6053/93) moved by the petitioner for an interim order, it was directed that appointment, if any, to the post of Post Graduate Teacher (Sanskrit) shall be subject to the further orders of this Court. It is conceded on behalf of respondent No. 4 that on retirement of S.N. Shastri in the month of June, 1986, the post of Post Graduate Teacher (Sanskrit) fell vacant and is still lying vacant. It has not been filled up. The petitioner alone is teaching Sanskrit to the Senior Secondary Classes. In case the post is lying vacant in the School, which is also the case of the petitioner, the reply filed on behalf of respondents 1 to 3 is patently wrong. It is the Managing Committee of the School, which is the Appointing Authority and it is the case of respondent No. 4 that the petitioner fulfils the requisite qualification and on his representation the case was duly recommended and forwarded for according approval of the Education Department. The Managing Committee did call upon the petitioner on retirement of S.N. Shastri to teach Sanskrit to the Senior Secondary Classes, which the petitioner had been doing. There is no manner of doubt that on retirement of S.N. Shastri, when the post of Post Graduate Teacher (Sanskrit) fell vacant, the respondent Managing Committee, duly considered the candidature of the petitioner, who had the requisite qualification and experience and thus asked him to teach the Sanskrit subject to Senior Secondary Classes. It was the Managing Committee, which could have passed an order of either appointing the petitioner or promoting him to the post of Post Graduate Teacher (Sanskrit). Formal order was not passed through it had every intention of appointing the petitioner as Post Graduate Teacher (Sanskrit) on and from the month of June, 1986 for which approval of the Education Department was sought, which was not accorded on an erroneous assumption. The case of the petitioner ought to have been examined and considered in the light of the instructions issued by the Directorate of Education, Delhi through its letter dated 21.4.1970 on the subject of Promotion and Selection of Principals/Teachers, relevant part of which reads:

(A) All the posts of the teachers of aided Schools will be treated as Non-selection Post. If any post of higher grade in the school falls vacant, and if the teacher possessing qualification prescribed for the post is available in the school, the senior-most teacher will be promoted on the higher post. The work and conduct of the teacher to be promoted should be good. The confidential report for the last two years should also be satisfactory and he should have teaching experience in his grade at least for three years. If a teacher fulfils the above terms and conditions, he may be promoted after the approval of Education Officer. The Deputy Director of Education may give relaxation in experience of teacher for a period of 6 months in special circumstances.

7. The mere nomenclature as Trained Graduate Teacher (General) or Trained Graduate Teacher (Language) also in the instant case for promotion to Post Graduate Teacher (Sanskrit) is of no consequence when the petitioner has exclusively been teaching Sanskrit. In case the petitioner has been teaching Sanskrit right from the date of his appointment in the year 1974 for which purposes the services of the petitioner were engaged, there is no reason why a formal approval, if it was required, was not accorded by respondents 1 to 3. By taking up of such a stand by respondents 1 to 3 in their reply that no post of Post Graduate Teacher (Sanskrit) is lying vacant and that the same was duly filled up contrary to the factual position as admitted by the petitioner and respondent No. 4, it can safely be inferred that formal approval, if any, stands accorded for filling up of the post. There is no denial by respondents 1 to 3 that petitioner is taking Senior Secondary Classes of Sanskrit and that he is fully qualified. There is requirement of filling up of the post of a Post Graduate Teacher (Sanskrit) in the School.

8. In view of what has been stated in the affidavit of respondent No. 4 and as has rightly and frankly been conceded by learned Counsel for respondents, the writ petition deserves to be allowed.

9. Consequently, the petition is allowed by treating the petitioner to have duly been appointed/promoted to the post of Post Graduate Teacher (Sanskrit) on and from the date when the said post fell vacant on retirement of S.N. Shastri and due approval will be deemed to have been accorded by the Department of Education. The petitioner is also held entitled to the pay and usual allowances as a Post Graduate Teacher (Sanskrit) on and from the date when the post of Post Graduate Teacher (Sanskrit) fell vacant on retirement of S.N. Shastri. The petitioner will be continued to be paid the salary as a Post Graduate Teacher (Sanskrit) by appropriately fixing his pay in appropriate scale admissible to the post in question prevalent in the School. Arrears of pay up-to-date will be worked out and paid within a period of four months from today. Rule is made absolute. Parties to bear their own costs.