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2004 DIGILAW 327 (HP)

TRIPATA PARMAR v. STATE OF H. P.

2004-12-09

BAKHSHISH KAUR, D.S.AMIST

body2004
JUDGMENT Mrs. Justice Bakshshish Kaur, Chairman.—The narration of the relevant facts necessary for resolving the controversy are as under:— Smt. Tripta Parmar is serving as Language Teacher since June 30, 1973 in the Department of Education, Government of Himachal Pradesh. She had improved her academic qualifications and passed B.A. (all subjects) in 1978, M.A. in 1990 and M. Phil in 1992 from Himachal Pradesh University. Though, she had improved her academic qualifications but she has not been considered for promotion due to defective Classical and Vernacular Rules known as Recruitment and Promotion Rules for different Categories of Posts in Himachal Pradesh Education Department, 1975 (hereinafter referred to as Rules). 2. As per Rules, 50% posts of School Lecturers are filled up by direct recruitment and 50% by promotion from amongst Trained Graduate Teachers/ Home Science Mistresses/Commercial Teachers/Agriculture Masters possessing qualification as prescribed by direct recruitment i.e Master Degree in concerned subject from the concerned subject. But, there is no provision in the Rules to promote the C&V Teachers though possessing requisite qualifications for the post of Lecturers. They can be promoted to the post of TGT against 25% quota only on acquiring B. Ed training. Thus, the case of the applicant being at par with TGT/Home Science Mistresses/ Commercial Teachers/Agriculture Masters, the Rules need to be amended for considering the applicant and the like for the post of a Lecturer. Thus, following reliefs have been sought in the Original Application:— "(i) To direct the respondents to amend R & P Rules in respect of C&V Teachers for promotion to the post of a Lecturer(s) and carry out necessary correction at SI. No. 2(12) of the R&P Rules by including this category for next promotional post of Lecturers; (ii) To issue directions to the respondents to fix the quota of C&V category of Teachers for next promotional post of Lecturers and Headmasters/Head Mistresses, High School at Sr. No. 1 Col. No. 2(12) of the R&P Rules by including this category for next promotional post of Lecturers; (ii) To issue directions to the respondents to fix the quota of C&V category of Teachers for next promotional post of Lecturers and Headmasters/Head Mistresses, High School at Sr. No. 1 Col. 2; (iii) Financial assistance/incentive be awarded by releasing the advance increments in favour of the applicant; (iv) All the service benefits as are given to other categories be released in favour of the applicant; (v) The seniority be kept intact from the date of her joining the post; (vi) The applicant be considered and promoted for School/College/ University Lecturer ship as she fulfills all the requisite qualifications for such an appointment; (vii) The age for promotion purpose or reliefs sought for be considered from the date of filing first O.A(M) 445/94 or from the first representation made to the respondents or from the date of acquiring the M.A., M. Phil qualifications; (viii) Any other consequential relief(s) which the Honble Tribunal may deem fit, just and proper in facts and circumstances of the matters, be granted to the applicant; and (ix) Cost of this Original Application may also be allowed." 3. The plea of the respondents is that the Tribunal has no jurisdiction to entertain the O. A. because the Rules are framed in exercise of the powers conferred by the provision of Article 309 of the Constitution of India. The applicant has no locus standi to prefer the original application. 4. On merits, however, it is admitted that under the Rules, there is no provision for promotion of Classical and Vernacular (in short C&V) teachers to the post of lecturer. Thus, the applicant cannot be promoted as lecturer dehors the Rules. She has no right to allege that the Rules are defective. She is eligible to be promoted as Trained Graduate Teacher (hereinafter referred as TGT) but she will have to wait for her turn as promotion is made on seniority basis. She cannot dictate the terms to her employers, rather she is supposed to obey the directions/orders/instructions/rules of her employers. 5. She is eligible to be promoted as Trained Graduate Teacher (hereinafter referred as TGT) but she will have to wait for her turn as promotion is made on seniority basis. She cannot dictate the terms to her employers, rather she is supposed to obey the directions/orders/instructions/rules of her employers. 5. The applicant in rejoinder while controverting the stand taken up by the respondents has averred that since there has been deliberate omission of a class/category of teachers who have been denied benefit of inclusion in the feeder categories for promotion to the posts of lecturers, therefore, the omission which is a clear case of blatant discrimination needs to be corrected by bringing amendments to the Rules. 6. We have heard Sh. R.L. Kaith, learned counsel for the applicant and Sh. Chirag B. Singh, learned Deputy Advocate General for the respondents. 7. Earlier, the applicant had filed O.A.(M) 445/94. It was treated as a representation as per order Annexure PE and decided vide orders PF on June 1, 1995. Aggrieved by the order of the Secretary (Education), the applicant again approached the Tribunal by way of filing O.A. (M) 712/95 which was dismissed having been withdrawn with liberty to file afresh one on the same cause of action, as per order dated March 7, 2000 (Annexure PG). 8. The competent authority while rejecting the representation of the applicant vide Annexure PF had observed that there is no provision in the Rules to promote the C&V Teacher though possessing requisite qualification to the post of lecturers. The C&V Teachers on acquiring B.Ed, training can be promoted to the post of T.G.T. against 25% quota. After being promoted as Trained Graduate Teacher, they became eligible for promotion to the posts of lecturers if they possess the requisite qualification, against 50% quota reserved for, by promotion. 9. Sh. R.L. Kaith, learned counsel for the applicant contended that for the purpose of entry into zone of consideration for promotion as TGT, a C&V Teacher has to pass B.Ed, course. TGT and C&V Graduate Teachers are getting the same pay scales and are teaching the same classes from 6th to 10th Class. The C&V Graduate Teachers are discharging the same duties as TGT, does because they get the same academic qualification as a TGT gets. TGT and C&V Graduate Teachers are getting the same pay scales and are teaching the same classes from 6th to 10th Class. The C&V Graduate Teachers are discharging the same duties as TGT, does because they get the same academic qualification as a TGT gets. As per Rule, if 25% quota is given to this category of C&V or JBT, then there is no need to acquire higher qualifications which is quite sufficient and is eligible for teaching the Secondary Classes/College Classes as a Lecturer. It is further contended that when a C&V Teacher passes B.Ed, then his/her seniority of previous service is lost and he/ she is to be treated as a new entrant and kept in the lowest rank in the seniority list. This intention of the Rules as is in existence, is most defective and needs to be quashed and struck down. The benefit given to TGTs/ Home Science Mistresses/Commercial Teachers/Agriculture Masters be also given to the C&V Teachers including the applicant by treating them at par. 10. Where a post of C&V and TGT is treated at par but there is no provision in the Rules to promote C&V Teachers though they possess requisite qualifications to the post of Lecturer then in such a situation, isnt it a hostile discrimination because no provision in the Rules has been provided for the promotion of C&V Teachers to that of Lecturers as is being done in the case of TGT and others? 11. Indian Constitution is wedded to the concept of equality which is the basic feature of the Constitution. Preamble to the Constitution of India emphasises principle of equity as basic to the Constitution. as observed in Indira Sahni (II) v. Union of India, (2000) 1 SCC 168. It is also observed that "It has already been ruled in Keshvananda Bharti case that even Constitutional amendments which offend basic structure of the Constitution are invalid. Parliament and the State Legislatures cannot transgress principle of equity enshrined in Articles 14 and 16(1) which is the basic feature of the Constitution." 12. In "State of Tripura and others v. K.K. Roy, 2004 (3) Administrative Total Judgments 542, the respondent herein was appointed as Law Officer-cum-Draftsman in the Directorate of Co-operation, Government of Tripura. There was only one post in the same cadre and it had no promotional avenues. In "State of Tripura and others v. K.K. Roy, 2004 (3) Administrative Total Judgments 542, the respondent herein was appointed as Law Officer-cum-Draftsman in the Directorate of Co-operation, Government of Tripura. There was only one post in the same cadre and it had no promotional avenues. He filed a representation that his post be upgraded or two promotional avenues be provided to him. Several representations made by him having not received consideration, he filed a writ petition which was accepted by the High Court. The State of Tripura aggrieved by the order, preferred Appeal. While disposing of the same it was observed by the Honble Judges of the Apex Court under para 3 that if the contention of the appellant is to be accepted, the respondent would be left without being promoted throughout his career. In almost in identical situation, arising in "Council of Scientific and Industrial Research and another v. K.G.S. Bhatt and another, (1989) 4 SCC 635" it has been held as under:— ".....It is often said and adroitly, an organisation, public or private does not hire a hand but engages or employs a whole man. The person is recruited by an organisation not just for a job, but for a whole career. One must therefore, be given opportunity to advance. This is the oldest and most important feature of the free enterprise system. The opportunity for advancement is a requirement for progress of any organisation. It is an incentive for personnel development as well (See : Principles of Personnel Management by Flipo Edwin B., 4th Edn. p. 246). Every management must provide realistic opportunities for promising employees to move upward. "The organisation that fails to develop a satisfactory procedure for promotion is bound to pay a severe penalty in terms of administrative costs, misallocation of personnel, law morale, and ineffectual performance, among both non-managerial employees and their supervisors." (See: Personnel Management by Dr. Udai Pareek p. 277). There cannot be any modern management much less any career planning, man power development, management development, etc. which is not related to a system of promotion....". 13. The matter came up for consideration again in Dr. O.Z. Hussain v. Union of India, 1990 (Supp) SCC 688, wherein the Apex Court in no uncertain terms laid down the law stating :— ".....Promotion is thus a normal incidence of service. which is not related to a system of promotion....". 13. The matter came up for consideration again in Dr. O.Z. Hussain v. Union of India, 1990 (Supp) SCC 688, wherein the Apex Court in no uncertain terms laid down the law stating :— ".....Promotion is thus a normal incidence of service. There too is no justification why while similarly placed officers in other ministries would have the benefit of promotion the non-medical A Group scientists in the establishment of Director General of Health Services would be deprived for such advantage. In a Welfare State, it is necessary that there should be an efficient public service and therefore, it should have been the obligation of the Ministry of Health to attend to the representations of the council and its members and provide promotional avenue for this category of officers.” 14. In K.K. Roys case (supra) under para-4 at page 544, it is observed that the appellant being a State within the meaning of Article 12 of the Constitution of India should have created promotional avenues for the respondent having regard to its constitutional obligations adumbrated in Articles 14 and 16 of the Constitution of India. 15. To meet the argument of the respondent that the applicant has no locus standi and the Original Application is not maintainable seeking amendments to the rules, our attention has been drawn by Mr. Kaith to "Ajit Singh and others v. State of Punjab and others/ 2000 SC SLR 67(SC). Under para 27 at page 77, it has been observed "In the matter of promotion in the sense of a right to be "considered" for promotion is indeed a fundamental right guaranteed under Article 16(1) and this has never been doubted in any other case before Ashok Kumar Gupta, right from 1950". 16. In Ajit Singhs case (supra), the observation made by the Honble Judges under para 19 at page 75 need to be kept in mind while dealing with the case in hand which is reproduced as under:— "While interpreting provisions of the Constitution and in particular fundamental rights of citizens, it is well to bear in mind certain fundamental concepts. In Mc Culloch v. Maryland, (1819) 4 Wheel: 17 US 316, Chief Justice Marshall cautioned that we must keep in mind that it is the Constitution, that we are expounding. In Mc Culloch v. Maryland, (1819) 4 Wheel: 17 US 316, Chief Justice Marshall cautioned that we must keep in mind that it is the Constitution, that we are expounding. He said that the Constitution was intended to endure for ages to come and had consequently to be adapted to the various crises of human affairs from time to time. Brandeis, J., wrote: "Our Constitution is not a straight jacket. It is a living organism. As such it is capable of growth, of expansion and of adaptation to new conditions. Growth implied changes, political, economic and social, Growth, which is significant manifests itself rather in intellectual and moral conceptions of material things" (Brandeis Papers, Harvard Law School). Similarly, in a beautiful metaphor Mr. J.M. Beck said as follows : "The Constitution is neither on the one hand, a Gibraltor Rock which wholly resists the ceaseless washing of time and circumstances, nor is it, on the other hand, a sandy beach, which is slowly destroyed by erosion of the waves. It is rather to be likened to a floating dock which, while firmly attached to its moorings, and not therefore at the caprice of the waves, yet rises and falls with the tide of time and circumstances" (Constitution of the United States, Yesterday, Today and Tomorrow, (1924) Oxford University Press)." 17. Similarly under para-22 it has been observed that Article 14 demands that the "State shall not deny to any person equality before the law or the equal protection of the laws." Further, if a person satisfies the eligibility and zone criteria but is not considered for promotion, then there will be a clear infraction of his fundamental right to be "considered" for promotion which is his personal right. 18. The applicant herein and the like on improving their qualifications had to face blank wall because they cannot be considered for promotion in the same manner as their counter parts are being considered. The applicant is not only Graduate but she has unproved by not only passing her qualification by securing Degree of M.A. in 1990, M.Phil in 1992. The requisite certificates issued in favour of the applicant are as Annexures PA and PH. The matter does not come to an end over here. They are also required to undergo B.Ed, training only, then they can be promoted to the post of TGT against 25% quota. The requisite certificates issued in favour of the applicant are as Annexures PA and PH. The matter does not come to an end over here. They are also required to undergo B.Ed, training only, then they can be promoted to the post of TGT against 25% quota. After being promoted as TGTs, they become eligible for promotion. The scope of promotion is narrowed down. Thus, where C&V Teachers are performing the same duties by giving lectures or teaching students of the same classes, then they are also entitled to be considered for promotion. For that purpose, the State being a Model Employer, cannot transgress principle of equity enshrined under Articles 14 and 16 of the Constitution of India. It would have been in the interest of the State Government itself to frame the Rules for infusing confidence, rationality, reasonableness and fairness in their action. Otherwise, it will amount to hostile discrimination. For achieving the said object, the Rules need to be amended. With this background, we would like to observe that as preamble to the Constitution of India emphasises principle of equity as a basic to the Constitution, the competent authority shall examine the case for the purpose of amending the Rules so as to avoid hostile discrimination and to provide equity before the law. Necessary amendment be carried out in respect of C&V Teachers for promotion of Lecturer(s) and carry out necessary correction by including this category for next promotional post of lecturers. The respondents are also directed to examine and consider the case of C&V Teachers for the purpose of fixing quota for next promotional post of Lecturers and Headmaster/Headmistresses. Necessary steps in this regard may be taken within six months from the date of the receipt of the copy of order. With these observations, the Original Application is disposed of accordingly. O.A. Disposed of.