K. Shivashankar Bhat, J.— The petitioner seeks the quashing of the appointment of the 4th respondent as Principal, Delhi Public School (DPS) R.K Puram. The petitioner also seeks the quashing of an advertisement whereby applications were invited for the post of the Principal of the school at Vasant Kunj. There is another prayer to quash the mandate of the Working Committee dated 28.5.1993 which did not agree with the order of the Chairman of the committee to appoint a person as principal on officiating basis. There were other decisions also in the impugned proceedings of the working committee. Petitioner also seeks a mandamus to constitute a proper selection committee.

2. According to the petitioner he was appointed as a teacher in the DPS, R.K Puram on 15.10.1982 and at the time of filing the writ petition he was working as officiating principal of DPS, Vasant Kunj. He questions the appointment of the 4th respondent as Principal of the School at R.K Puram on the ground that the selection committee was not properly constituted and the petitioner's case was not considered and that his case for being appointed as the principal of the school at Vasant Kunj stood diluted by the advertisement inviting applications from other eligible candidates. During the pendency of this writ petition the school at Vasant Kunj was recognised by the Administration (Education Department) and consequently it became an independent school, for which steps are being taken to appoint a Principal. The petitioner contends that outside candidates should not be considered and that he should be appointed as Principal having regard to the assurances held out to him. C.M.6591/1994 was filed under Order 1 Rule 10 to implead 14 persons who are the other candidates as well as the members of the selection committee constituted to select a principal for the school at Vasant Kunj.

3. Since I do not find a formal order allowing this application, I consider it most appropriate to allow the said application because the person who was actually selected for the said post of Principal will be a necessary party and he was duly represented in these proceedings. The pleadings have become bulky with several applications and annexures running into several pages. I find that the issue involved ultimately is a simple issue and the relevant facts could be conveniently referred while considering the respective contentions of the parties. However, one aspect shall have to be noticed. The respondents do not admit that the petitioner has ever worked as the officiating principal of the school at Vasant Kunj.

4. Mr. R.K Anand, the learned counsel for the petitioner advanced the following contentions:

(I) The selection committee constituted for the selection of the Principal, was not a valid committee, in as much as,

(i) the committee had no educationist in it, as per rule 96(3)(a);

(ii) the educationist, if any, in the committee was not out of a panel prepared for the purpose by the Advisory Board, as prescribed by Rule 96 (b) of the Delhi School Education Rules, 1973 (the Rules, for short). Further there was no member in the said committee who was a person having experience of the administration of schools, as required by Rule 96(3)(iv).

(II) The process of selection adopted by the Committee was bad, because comparative merits of the Vice-Principals were not considered, and the Committee had not even examined the ACRs.

(III) As could be seen from the proceedings of the Committee dated 26.5.92, respective seniority of the candidates was not considered, because, there was no seniority list. Petitioner, being the senior-most amongst the candidates, he should have been preferred for selection as the Principal.

(IV) The Managing Committee had taken a decision to appoint one of the Vice-Principals, as the Principal of the School at Vasant Kunj and this was sought to be by-passed and

(V) The appointment to the post of Principal of the School at Vasant kunj, made, during the pendency of the writ petition is entirely illegal.

5. Mr. Mukul Rohtagi raised two preliminary objections:—(i) In view of the order of the Division Bench dated 17.3.94, petitioner cannot agitate any question concerning the appointment to the post of the Principal of the School at R.K Puram and (ii) the writ petition challenging the appointment of Mrs. Chona (the 4th respondent) is belated and the petitioner had acquiesced in the appointment of Mrs. Chona. Petitioner's conduct is such that he is not entitled to any relief under Article 226 of the Constitution.

6. It is appropriate that the preliminary objections should be considered before going into the other question:

7. The order dated 17.3.1994 was made, mainly in connection with an application in CM. 6656 of 1993. By this application, petitioner sought to restrain the school from filling up the post of Principal of the school at Vasant Kunj and also from interfering with the petitioner as officiating Principal of the School at Vasant Kunj; another prayer was to stay the decision of the Working Committee dated 28.5.93, whereby the order of the Chairman to appoint the petitioner as the officiating Principal of the School at Vasant Kunj was not approved; the Managing Committee resolved to have the petitioner as a Joint Director under Mr. Lugani to complete the project of constructing the school building, and the academic work and all other administrative work including admissions were to be under the control of the Head of the School at R.K Puram, as the Vasant Kunj School was part of R.K Puram School; etc.

8. The order dated 17.3.94 reads thus:—

“This petition raises two questions: One is the legality of appointment of respondent No. 4 as Principal, D.P.S R.K Puram and the other is regarding proposed appointment of Principal at D.P.S, Vasant Kunj.

The learned counsel for respondents 2,3 and 4 makes a statement at the Bar, after receiving instructions, that the D.P.S, Vasant Kunj is an independent school and not a school running under or a part of Delhi Public School, R.K Puram and hence it needs an independent Principal. It is further stated that for D.P.S, Vasant Kunj a separate recognition has to be taken, which is under process. The respondents are going to fill up the vacancy through an advertisement and all aspirants including the petitioner and respondents 5 and 6 are at liberty to apply for the post of Principal, D.P.S, Vasant Kunj and face the selection.

In view of the above statement, the interim order dated 3.9.1993 is directed to be vacated. The application is rejected.

On the first question the petition shall be heard on merits. The pleadings are complete. However, if the petitioner proposes to file any other rejoinder to any of the counter affidavits, he may do so within four weeks.”

9. The petitioner approached the Supreme Court against the above order. The Special Leave to Appeal (Civil No. 8212-13/94) was dismissed by the Supreme Court on 2.5.94 The order of the Supreme Court reads:—

“We are not inclined to interfere for the simple reason that if the statement made by counsel which forms the basis for vacating the interim order dated 3.9.93, the remedy is to move the High Court and not by way of Special Leave petition. Hence the Special Leave Petition is dismissed.”

10. Petitioner, sought to reopen the 2nd question posed by the Division Bench in its order dated 17.3.1994, by filing C.M.6290 of 1994. Though the writ petition was before the Division Bench at that time, I find no order on this C.M so far. Till 20.9.1994 the writ petition came up before the Division Bench on a few occasions. On 20.9.1994 the Bench issued “Rule” and thereby sent the writ petition to the Single Judge Bench. Even then, only two C.M.S were referred in the order: (1) C.M.No 6591 of 1994 under Order 1 Rule 10 of C.P.C to implead several persons and (2) C.M.No 6597 of 1994 - to restrain 4th respondent to function as Principal. Since main writ petition was taken up for hearing, this C.M was not separately argued before me and no argument was addressed regarding C.M No. 6597 of 1994.

11. C.M No. 6290 of 1994 remains to be considered: Mr. R.K Anand submitted that the counsel for the petitioner could not be present on 17.3.1994 when the order came to be made by the Bench and therefore, I should consider the entire writ petition without being regulated by the said order and that the plea regarding the appointment to the post of Principal of the Vasant Kunj School should be considered.

12. Having heard the learned counsel for the parties at length, I have concluded that the petitioner is not entitled to succeed on merits, therefore, the technical objection raised by Mr. Rohtagi loses its significance. However, I find considerable force in the preliminary objection which pertains to the challenge made to the appointment of the Principal to R.K Puram School. The 4th respondent was selected on 20th May, 1992 and on the same day she was appointed as the Principal. The proceedings (Annexure I) refer to the DPC held on 26th May, 1992 which considered the teachers who were in the zone of eligibility and it is recorded that “while every body agreed that Mrs. S.Chona was the fittest person by virtue of her experience and qualification to be appointed as Principal of the school, some members of the Committee expressed doubts about the present seniority list having been correctly prepared. It was agreed that the present seniority, list be looked into again in greater depth. Mrs. Chona was approved unanimously for appointment to the post of the Principal.” All the four members signed the proceedings. Undisputedly, petitioner's case was considered as he was in the zone of eligibility. Post of Principal is a selection post. Therefore, irrespective of the seniority, the Committee unanimously selected Mrs. Chona, as she was the fittest person. Writ petition was filed on 24.8.1993, even though Mrs. Chona was appointed on 26.5.1992 Till December, 1992 petitioner did not protest. On 15th December, 1992, petitioner wrote to Sri Justice A.N Grover, Chairman of the Managing Committee. The letter states that the petitioner met the Chairman on 4.12.1992 at 5.00 P.M in connection with his promotion and explained that his case was not considered for promotion for the post of the Principal of the School at R.K Puram, nor his case for promotion to the post of Principal of the School at Vasant Kunj, was being processed. Petitioner sought intervention of the Chairman, failing which he may have to take legal action against the selection of Mrs. Chona, because, petitioner's case was not considered by the DPC. Mr. Justice Grover replied through his Secretary, on 5.1.1993, requesting the petitioner not to take legal action against the selection of Mrs. Chona. The letter stated that the Chairman “assures”..... that the case of petitioner's promotion for Vasant Kunj School would be taken up in the next meeting of the Managing Committee of the R.K Puram School. On 5.4.1993 the Managing Committee confirmed the appointment of Mrs. Chona as the Principal condoning her probation period till 29th May, 1993 “for her outstanding work”. The Managing Committee also resolved that one of the Vice-Principals from R.K Puram School should be appointed Principal of Vasant Kunj School subject to the decision of Dpc which would be held early. The resolution states that ‘at present’, Dps Vasant Kunj is a part of Dps R.K Puram, School. (DPS stands for Delhi Public School). On 11.8.1993 the Chairman, purported to create the post of the Officiating Principal for the Vasant Kunj School, under the ‘emergent power’ vested in him subject to the approval of the Working Committee and then appointed the petitioner as the officiating Principal. But the Managing Committee, on 28.5.1993 did not approve the decision of the Chairman. The Working Committee said that “.....in view of the legal implications, it is not possible to appoint an officiating Principal......”. A few more decision were taken at this meeting. Though petitioner became the officiating principal on 14.5.1993, as per the order of Mr. Justice Grover he was appointed a Joint Director on 11.6.1993 by virtue of the resolution of the Working Committee of the Management. On 18.6.1993, petitioner wrote disagreeing to be the Joint Director. By the end of June, 1993, the management advertised I inviting applications for the post of Principal of the Vasant Kunj School.

13. Thus it is clear that even though the 4th respondent was appointed as a Principal on 26.5.1992, petitioner, actually did not question it till December, 1992, when he met the Chairman of the Selection Committee. Even thereafter, he nurtured a hope that he may be appointed as a Principal of the Vasant Kunj School. It is only when he found that steps were being taken to select a Principal by inviting applications from others also and the selection is not confined to the “in service candidates”, he thought it expedient to file the writ petition. In para 19 of the writ petition, petitioner asserts that the Managing Committee assured him that he would be promoted as Principal of the Vasant Kunj School and therefore he should not challenge the appointment of the 4th respondent. Petitioner alleges that he was appointed as officiating principal of Vasant Kunj School in pursuance of this assurance. Paras 26 and 27 of the writ petition show that the petitioner was more concerned with the post of Principal of the Vasant Kunj School. His challenge to the selection of Mrs. Chona as Principal of R.K Puram is because he was not promoted as Principal of Vasant Kunj School. He waited between 27th May 1992 and August 1993 only on the hypothesis that he would get the post of Principal a Vasant Kunj. In other words, he had no grievance in law against the selection of Mrs. Chona. He wants to challenge the said selection, because he thinks that, the consideration for not chalenging it earlier had failed.

14. Mr. Rohtagi is justified in criticising the petitioner's conduct as “fence-sitting” and that the petitioner has been bargaining for the post of the Principal, on grounds other than legal grounds.

15. The relevant principle is stated in Nilofar Insaf v. State of M.P.; . The Supreme Court refers to such a challenge as made herein, “collateral or indirect”. The rival candidate for selection to M.D course questioned the selection of the appellant, Nilofar Insaf on the ground that the appellant who joined M.B.B.S course at Bangalore, obtained transfer to Bhopal Medical College and completed M.B.B.S course and this transfer was illegal; if so, it was contended that appellant's selection, subsequently to M.D course also would be illegal. This collateral attack was negatived by the Supreme Court. At page 1876, the Court observed:

“The validity of an order for transfer may be challenged contemporaneously by a third party whose claim for admission or transfer is superseded by such order but cannot be allowed to be challenged by a third party because he finds, in retrospect, at a future point of time, that it has affected his interests as a result of subsequent events.”

16. By the application of the above principles, it has to be held in the instant case that the petitioner having acquiesced in the development of subsequent events leading to the selection of a Principal to the Vasant Kunj School cannot now attack the validity of the selection made to the post of the principal of R.K Puram School - only because these subsequent events did not lead him to the office of the Principal at Vasant Kunj.

17. The conduct of the petitioner could be rightly described as “sitting on the fence”. In such a situation, the petitioner is not entitled to the relief under the equitable jurisdiction. Again, in Rup Diamonds v. Union of India; AIR 1989 SC 674, the Supreme Court applied the “sitting on the fence” principle to non-suit the petitioner. At page 677, the Supreme Court pointed out that, “petitioners were not vigilant but were content to be dormant and chose to sit on the fence till somebody else's case came to be decided.” The court found that the petitioner could not explain the delay in approaching the court under Article 226 of the Constitution of Indian.

18. In G.M.T Society v. Bombay State; AIR 1954 Bombay 202, Chagla C.J speaking for the Bench held that delay in pursuing the legal remedy caused by the pursuit of extra legal representations, cannot be excused.

19. In the instant case petitioner never, at any earlier point of time questioned the validity of the constitution of the Selection Committee; in fact he participated, as a candidate in the proceedings for selection. Only when he realised that his selection to the post at R.K Puram was doubtful, he seems to have discovered the illegalities in the constitution and in the proceedings of the Selection Committee; he never made this complaint to the Managing Committee or to the Working Committee-the latter being the body which actually administers the Society which runs the school.

20. In Ashok Kumar v. Collector, Raipur; AIR 1980 SC 112, delay of 7 days in filing the writ petition was held fatal to the case of the petitioner, in the circumstances of the said case.

21. The learned counsel for the respondent also referred to Kamini Kumar v. State of W.B; AIR 1972 SC 2060 (para 11) and Hari Singh v. State of U.P; AIR 1984 SC 1020, wherein laches on the part of the petitioner was held a ground to reject the petition.

22. In N.S Yadav v. Union Of India & Others..; 54 (1994) Delhi Law Times 677, I had an occasion to consider a similar situation, and laches was the cause for rejecting the writ petition.

Delay by itself, dehors other circumstances may not be a sufficient reason to reject a writ petition. But when rights or interest of third parties had intervened in the meanwhile and the petitioner had allowed such interest or rights to develop, the equitable jurisdiction of this Court should not be extended in favour of the petitioner; Similarly, when public interest would suffer by accepting the petitioner's case and relief is granted to him after lapse of time caused by the petitioner's delay, this court would decline to exercise its writ jurisdiction.

23. In the instant case, challenge to the appointment of Ms. Chona was nearly 15 months after her selection/appointment. In the meanwhile her probation period was also over. Petitioner allowed her to believe that he was not questioning her appointment. Actually, his present grievance against her appointment is only because, he is not likely to be appointed to the post available in another school.

I do not think it proper for this Court to exercise its extraordinary jurisdiction to nullify the appointment of the 4th respondent, at the instance of the petitioner.

Even on merits I do not find much substance in the petitioner's case.

Re: On Merits:

24. As per Rule 96 (3) (ii) Selection Committee should have an educationist nominated by the Managing Committee, and an educationist nominated by the Director. Mrs. Usha Menon was the nominee of the Government; She belonged to the Directorate of Education. Petitioner admits that she may be considered as an educationist. According to the petitioner, Mr. Justice B.N Kirpal cannot be considered as an educationist; he may, at the most be considered as an administrator. Petitioner sought to rely on a few letters written by the Directorate of Education stating that Mr. Justice B.N Kirpal is not an educationist. But, in the counter to the writ petition, nowhere the Government made such an assertion. The contesting respondent pointed out that the letter written by the Education department in the year 1987 stating that both Justice Kirpal and A.N Grover were not educationists, was not pursued at all, and in the year 1988 the earlier letter had been superseded. Material on record reveals that Mr. Justice Kirpal was associated with several educational institutions. If an executive officer belonging to the Education Department of the Government (like Mrs. Usha Menon) could be considered as an educationist, I do not find any reason to hold that any other person closely connected with the affairs of the educational institutions, is not an educationist, only because, he happens to be a Judge of the High Court. The term ‘educationist’ is not defined. It is a matter of opinion whether a person could be referred as an educationist or not.

25. It was then contended that no panel of educationists was prepared by the Advisory Board as required under Rule 96(4). According to the respondents, so far, no such panel has been prepared and the management of the unaided schools were nominating an educationist on their own.

26. Since the nominee, as an educationist satisfies the basic eligibility requirement, I consider the non-preparation of the panel an irregularity, which would not affect the constitution of the Selection Committee.

27. Since, this is not a case of violation of rule 96(3)(a) the decision of this court in Akhtar Ali Siddiqui & Others v. Delhi Administration and others; 41 (1990) Delhi Law Times 330 has no application to the facts of the instant case.

Re: Contention No. II:

28. It was contended that the process of selection was bad because seniority of the petitioner was ignored.

29. According to the School - management, petitioner joined the school only in the year 1982, after resigning from the Government service, and therefore, his seniority counts only from the date of joining the School. Petitioner was at Serial No. 9 in the seniority list. Petitioner relies on a written statement filed on behalf of the management in a suit filed by him earlier wherein, the seniority given to the petitioner by the Director of Education was accepted by the management according to which he was shown as the senior most. There is nothing on record to show that the Education Department had considered the cases of others (like 4th respondent) before giving weightage to the petitioner; there is also nothing to show that all the affected persons were heard by the Director of Education before treating the petitioner as senior to them. Prima facie, the seniority in the school's employment should be counted from the date of joining the school. It is a case of fresh appointment by the unaided school (which is not a department of the Government); no provision of law was brought to my notice which saves the petitioner's service under the Government for the purposes of seniority after the petitioner resigned from Government service and joined the privately managed school like DPS.

30. This apart, the Selection Committee found Mrs. Chona “fittest person” for selection. Case of the petitioner was considered by the Selection Committee. In fact, all the ACRs were also considered by the Selection Committee. Seniority stands overpowered by the fitness of another, when appointment is to be made to a selection post, where dominant factor for consideration is the merit of the candidates falling within the zone of consideration.

31. Since, I find from the record that ACRs were considered, the contention of the petitioner to the contrary cannot be accepted.

32. Before proceeding further, another aspect requires to be noted. Petitioner is not a “M.A II Class”, which is the qualification required for the relevant post; atleast he should have an equivalent qualification. According to the petitioner, he obtained 45% marks in M.A, of Punjab University and this percentage of marks in Delhi University could take him to the category of II Class. I do not think equivalence can be measured in this manner. MA. II Class as declared by the University conferring the degree shall have to be taken as such, without going to the percentage of marks. The eligibility rule nowhere refers to the percentage of marks. When the rule says M.A II Class or equivalent, the equivalence is with reference to the degrees. The management of the school however, relaxed the rigour of this requirement in the case of the petitioner by exercising the power of relaxation, to consider his case. The learned counsel for the respondents relied on this aspect to show the unbiased attitude of the School towards the petitioner.

33. Mr. R.K Anand contended that Mr. Justice Grover as Chairman had the power to appoint the petitioner as the officiating principal and therefore, petitioner gets preference for appointment as the Principal.

This contention overlooks the fact that in the matter of general administration, chairman's powers are subject to approval of the Working Committee which administers the society. The Working Committee did not approve the purported exercise of ‘emergent power’ by the Chairman. Further, the post of Principal is a selection post; selection is now made after considering the comparative merits of all the eligible candidates, including that of the petitioner. The present contention of the petitioner, therefore, is irrelevant.

34. It was contended that the management has shown undue favour to Mrs. Chona by condoning her probation period. Actually this was done just about two months prior to the completion of the probation period. By the end of May, 1993, period of probation would have been anyhow over; the period after 5.4.1993 was condoned. Respondents rely on the fact that Mrs. Chona was the recipient of State award for excellence in the field of education and her performance as the Principal was extremely good.

It is unnecessary to consider this contention of the petitioner, because, as on today, the probation period was over long ago, and there is nothing to infer that Mrs. Chona would not have been confirmed after the full period of probation.

Re: Appointment To Vasant Kunj School:

35. The school at Vasant Kunj got recognition on 8.8.1994 It was only till that date, Vasant Kunj School could be considered as part of the R.K Puram School. Therefore, after 8.8.1994, if any post has to be filled up at Vasant Kunj, it should be done independently of the R.K Puram School. On 29.6.1992 the Managing Committee appointed petitioner and two others as Vice-Principals of R.K Puram School, since Vasant Kunj School was part of the former. This fact ceases to have relevancy after Vasant Kunj School became independent. Even otherwise, the cases of all the three Vice-Principals were considered, and ultimately Dr. Vinay Kumar (one of them) was selected and appointed as the Principal of Vasant Kunj and he assumed the office on 31.10.1994 No other ground was advanced to challenge this selection. In fact, there is no amendment to the writ petition seeking a relief against this appointment at Vasant Kunj.

36. Nothing survives for consideration by this Court.

The writ petition is dismissed. No costs.