Judgment:
D.P. Wadhwa, J.
(1) This appeal is directed against the judgment dated 11 February 1980 of the learned Single Judge passed in a writ petition filed by the appellant which was dismissed. For the purpose of this appeal it will be appropriate to refer to the appellant as the petitioner. There are three respondents being the Municipal Corporation of Delhi, a body constituted under the Delhi Municipal Corporation Act; Union of India through the Secretary, Ministry of Home Affairs; and Lt. Governor, Delhi Administration, through the Director of Education. The petitioner filed the writ petition in July 1976 and prayed for an appropriate writ, order or direction to the respondents to consider him for promotion to the post of Senior Teacher (Post Graduate) in the scale of Rs.250-470 w.e.f. 1 June 1966. The petitioner also sought consequential reliefs. The facts are quite brief and they are not much in dispute as well.
(2) The petitioner was an under graduate but possessed teacher training certificate and diploma in drawing and painting. He was appointed as Assistant Teacher with the M.C.D. in 1960. He was promoted as drawing teacher in Grade Iii on 2 January 1962 and then promoted further on 6 November 1965 as Senior Teacher (Drawing) Grade I in the scale of Rs.l70-380. There were two scales of Senior Teacher (Drawing) in Grade I, and these being Rs.l70-380 and Rs.250-470. The second is called the senior scale. The petitioner got M.A. degree in drawing on 30 May 1966. He represented to the respondent-M.C.D. to grant him the senior scale from I June 1966 in the grade of Rs.250-470. Since his representation did not meet with any response he filed a civil suit for declaration that he was entitled to senior scale from I June 1966 being a post graduate teacher teaching Class Xi in the school. This was in 1968. The suit was decreed on 8 December 1973 and since the respondent-M.C.D. did not file any appeal the decree became final. During the period 1966-67 respondent-M.C.D. had created 20 posts of Senior Teacher (Drawing) Grade I in the scale of Rs.250- 470, and petitioner says he was eligible to one of these posts. The learned Sub Judge decreed the suit of the petitioner in the following terms:-
'IN view of my findings on above issues the suit of the plaintiff succeeds partly and decree is passed to this effect only that the plaintiff is entitled to be considered for promotion to the post of Senior teacher (Post-graduate) in the pay scale of Rs.250-470w.e.f. 1.6.1966. Under the circumstances of the case parties are left to bear their own costs. Degree sheet be prepared and the file be consigned to the record room. '
(3) Then the petitioner filed an application under sections 151, 152 and 153 of the Code of Civil Procedure seeking some clarifications of the judgment of the learned Sub Judge which was allowed on 15 January 1975, but that is not quite relevant for our purposes.
(4) Meanwhile, the school under the M.C.D. was transferred to the Delhi Administration. The petitioner also filed a contempt petition against the M.C.D. for not acting on the judgment in the civil suit, but since by this time the school had been transferred to the Delhi Administration the contempt petition did not bear any fruit as it would not be held that M.C.D. committed any contempt. This led to filing of the present petition by the petitioner. This petition was dismissed by the learned Single Judge by the impugned judgment holding that there was no post of Drawing Teacher Grade I then existing in the scale of Rs.250-470 to which the petitioner could be appointed and it had not been stated that any person senior or junior to the petitioner as Drawing Teacher in the M.C.D. was ever considered or appointed to the post of Senior Teacher. It was contended before us that the impugned judgment is erroneous as the petitioner was eligible to be promoted as per relevant recruitment rules and there was never any demarcation of posts under various disciplines like English, Mathematics, Geography, History, etc., in the Rules. It was submitted that seniority of a teacher is not fixed on the basis of his teaching a particular subject and there is a common seniority list of all the teachers. Petitioner has brought on record a specimen copy of the resolution of the M.C.D. as to how the posts are created. This is a copy of resolution No. 886 dated 28 January 1969 of the meeting of the M.C.D. It is clearly stated therein that there is a condition prescribed by the Central Board of Higher Secondary Education that only post graduate teachers can teach the Xi Class, and that the M.C.D. was running 11 higher secondary schools and one school of Xi Class had been started that year and in some other schools science and other subjects had been introduced and as such more teachers were needed. Accordingly, 9 posts of P.G.Ts. in the scale of Rs.250-470 and other posts were created. If we refer to Delhi Education Code, 1965 (Appendix III) as well as to the prospectus issued by the Central Board of Secondary Education of the relevant period, drawing is one of the subjects recognised by the C.B.S.E. Posts of teachers are not sanctioned with reference to any particular subject. Recruitment rules, which are applicable, do show that 50% of the posts are to be filled in by direct recruitment and 50% by promotion. It is not disputed that during the relevant period appointment was 100% by promotion and no direct recruitment was resorted to. In the recruitment rules also there are rules applicable to Senior Drawing Teacher in the scale of Rs. 120-300 and here the qualification is metriculation plus a Diploma/Certificate in Art or Drawing, etc., and to this post promotion is from Drawing Teacher in the scale of Rs.l00-250. This rule will not, however, apply to a Drawing Teacher who is a post graduate and teaching Class Xi in the Secondary School. That Drawing Teacher would be covered under Item I relating to Senior Teacher (Post Graduate). We asked Ms. Tewatia, learned counsel for the M.C.D., as to how many posts of teachers in various subjects were existing or sanctioned during the period 1966-67. In spite of opportunity having been given she has been unable .to give us any answer meaning thereby that posts have not been created subject-wise. That being so, we see no reason why the petitioner could not have been promoted when 20 posts in the scale of Rs.250-470 were created during the period 1966-67 and when other teachers who are junior to the petitioner though in other subjects were promoted. The petitioner has filed a seniority list in respect of post graduate teachers working in the Government Boys Higher Secondary Schools taken over from the Delhi Municipal Corporation from I July 1970. He says his name should be below that of Mr. Gupta at Seriall No. 54 and above Mr. Kartar Singh at Seriall No. 55 in the seniority list. In this view of the matter it was not correct to hold that there was no vacant post of Drawing Teacher to which the petitioner could have been appointed, or that no person, senior or junior to the petitioner, as Drawing Teacher in the M.C.D. had ever been considered or appointed to the post of Senior Teacher.
(5) The appeal, thereforee, succeeds. The impugned judgment is set aside. A mandamus is issued to the respondents to consider the petitioner for promotion to the post of Senior Teacher (Post Graduate) in the scale of Rs.250-470 w.e.f. I June 1966, and to grant to him all the consequential reliefs thereafter. Petitioner will be entitled to costs. Counsel fee Rs.2,000.00 . Rule is made absolute.