Research › Search › Judgment

Himachal Pradesh High Court · body

2016 DIGILAW 106 (HP)

Ashutosh Garg v. State of H. P.

2016-02-24

P.S.RANA

body2016
ORDER : P.S.Rana Judge. Present civil writ petition is filed under Article 226/227 of the Constitution of India with relief to issue direction to non-petitioners No. 2 and 3 Chief Executive Officer Kasaulit Cantt and G.O.C-in-command Chandi Temple Panchkula Haryana not to promote non-petitioner No.4 namely Smt. Paramjeet Kaur as headmaster of cantonment board middle school Kasauli District Solan HP. Additional relief also sought that resolution No. 104 passed in the meeting by board of directors dated 23.12.2011 be quashed and set aside. Further additional relief also sought that non-petitioners No. 1 to 3 be directed to promote petitioner as headmaster of cantonment board middle school Kasauli HP. Brief facts of the case: 2. It is pleaded that on dated 16.2.2001 petitioner was appointed as TGT teacher in cantonment board school Kasauli Tehsil Kasauli District Solan HP against JBT post. It is pleaded that on dated 25.2.2003 cantonment board school was upgraded from elementary school to middle school and supervision work was divided between the petitioner and non-petitioner No. 4. It is further pleaded that non-petitioner No.4 was given classes 1st to 5th standard and petitioner was given classes 5th to 8th standard. It is further pleaded that on dated 20.4.2005 government of HP issued notification that where elementary school is part of middle school and is being run within building of middle school then the headmaster of school would be TGT or must be having academic qualification of minimum graduation. It is further pleaded that on dated 29.5.2007 meeting of Board of Directors of management of school was convened and name of non-petitioner No.4 was proposed for the post of headmaster but the same was deferred. It is further pleaded that on dated 27.6.2007 the meeting of Board of Directors of management of school convened again and resolution No. 27 was passed. According to resolution the post of TGT was to be created for appointment of headmaster. It is further pleaded that on dated 27.12.2008 and 30.10.2009 petitioner represented to non-petitioners No. 2 and 3 Chief Executive Officer Kasaulit and G.O.C-in-Command Western Command Chandi Temple Paunchkula for redressal of his grievance but till date representation not decided. It is further pleaded that thereafter on dated 29.12.2008 block primary education officer inspected the school and had given inspection report that headmaster should be graduate or TGT. It is further pleaded that thereafter on dated 29.12.2008 block primary education officer inspected the school and had given inspection report that headmaster should be graduate or TGT. It is further pleaded that on dated 23.12.2011 Board of Directors passed resolution No. 104 vide which Board of Directors resolved that non-petitioner No.4 would be promoted to the post of headmistress. It is further pleaded that non-petitioner No.4 is not qualified for the post of headmistress as the qualification of non-petitioner No.4 is matric with JBT. It is further pleaded that promotion of non-petitioner No.4 is in violation of promotion rules. It is further pleaded that promotion of non-petitioner No.4 effected the promotion avenue of petitioner. Prayer for acceptance of writ petition sought. 3. Per contra response filed on behalf of non-petitioners pleaded therein that civil writ petition is not maintainable. It is pleaded that petitioner was appointed as JBT teacher in cantonment board school Kasauli HP during the year 2000. It is further pleaded that thereafter school was upgraded into middle school. It is further pleaded that middle school is running by way of engaging teachers on contract basis every year with prior approval of GOC-in-Command in the interest of general public. It is further pleaded that there is no permanent sanctioned strength of teachers in the section of middle school. It is further pleaded that in the primary section there is sanctioned strength of seven JBT teachers including headmistress. It is further pleaded that post of headmistress was lying vacant since 2006 due to retirement of headmistress of school. It is further pleaded that non-petitioner No.4 Smt. Paramjeet Kaur is senior most teachers in school and also looking after the duties of officiating headmistress of school since 2006. It is further pleaded that petitioner is JBT teacher in cantonment board school and is junior most teacher than non-petitioner No.4. It is further pleaded that two other JBT teachers are senior most teacher than petitioner. It is further pleaded that being junior teacher in school the claim of petitioner for promotion as headmaster is not correct. It is further pleaded that behaviour of petitioner with his superior and other teachers is not satisfactory. It is further pleaded that explanation was called from petitioner to maintain decorum in the school and warning was also given to petitioner by disciplinary authority. It is further pleaded that behaviour of petitioner with his superior and other teachers is not satisfactory. It is further pleaded that explanation was called from petitioner to maintain decorum in the school and warning was also given to petitioner by disciplinary authority. It is further pleaded that there is no regular post of TGT teacher in middle school. It is further pleaded that middle section is run by engaging teachers on contract basis. It is further pleaded that sanction to fill up the vacant post of headmistress in cantonment board primary school by promotion was accorded by Directorate DEWC. It is further pleaded that post of headmaster was given to senior most JBT teacher. It is further pleaded that representation filed by petitioner for promotion to the post of head teacher in cantonment board school was considered and rejected. It is further pleaded that although qualification of petitioner is B.Sc B.Ed but he was appointed in regular post of JBT teacher. It is further pleaded that there is no regular post of TGT in middle school. It is further pleaded that non-petitioner No.4 has been promoted as headmistress in primary section of school only. It is further pleaded that petitioner being JBT and junior most teacher amongst other JBT teachers petitioner has no right to file present civil writ petition. Prayer for dismissal of writ petition sought. 4. Court heard learned Advocate appearing on behalf of petitioner and learned Advocate appearing on behalf of non-petitioners and also perused entire record carefully 5. Following points arise for determination in the present writ petition: (1) Whether civil writ petition filed under Articles 226/227 of Constitution of India is liable to be accepted as mentioned in memorandum of grounds of civil writ petition? (2) Relief. Findings upon point No.1 with reasons. 6. Submission of learned Advocate appearing on behalf of petitioner that petitioner be promoted as headmaster of cantonment board school Kasauli in middle section automatically on the basis of higher qualification of B.Sc. B.Ed. is rejected being devoid of any force for the reasons hereinafter mentioned. It is well settled law that promotion is always given as per recommendation of departmental promotion committee and there is no evidence on record in order to prove that departmental promotion committee has recommended the name of petitioner for the post of headmaster in middle section of school. is rejected being devoid of any force for the reasons hereinafter mentioned. It is well settled law that promotion is always given as per recommendation of departmental promotion committee and there is no evidence on record in order to prove that departmental promotion committee has recommended the name of petitioner for the post of headmaster in middle section of school. It is held that unless there is recommendation of departmental promotion committee in favour of petitioner non-petitioners cannot be directed to promote the petitioner automatically as headmaster of middle school wing. 7. Submission of learned Advocate appearing on behalf of petitioner that qualification of non-petitioner No.4 Smt. Paramjeet Kaur is matric with JBT and she was not eligible to be appointed as headmistress of middle school wing as of today is rejected being devoid of any force for the reasons hereinafter mentioned. It is proved on record that as of today no regular post has been created in the middle wing of school. It is also proved on record that only teachers on contract basis are attached in middle wing of school. As per instruction of HP Board of School Education Dharamshala following teachers should be appointed in middle school: (i) Headmaster-I(TGT/PGT) (ii) TGT-2 (Science & Arts) (iii) Shastri/LT-I (iv) Arts & Craft Teacher-I (v) Pet-I (vi) Peon-I It is proved on record that no regular appointment has been conducted as of today in the middle wing of school. It is well settled law that all regular appointments are conducted on the basis of merits after advertisement of regular post in accordance with law. There is no evidence on record that advertisement was issued relating to middle wing of school for the regular post. 8. It is proved on record that Smt. Paramjeet Kaur has been appointed as headmistress of school on adhoc basis only and as a stop gap arrangement. It is proved on record that Smt. Paramjeet Kaur is senior most teacher in school and petitioner is not senior most teacher in the school and there are also two other teachers who are senior to petitioner in school. As per notification No. EDN-C.A(1)-2/2004 dated 31.10.2005 all existing primary and middle schools operating from the same building will merge into single elementary school and their separate identity will cease to exist. As per notification No. EDN-C.A(1)-2/2004 dated 31.10.2005 all existing primary and middle schools operating from the same building will merge into single elementary school and their separate identity will cease to exist. As per notification dated 31.10.2005 staff both teaching and non-teaching working in these primary and middle schools will merge and formulate a common time table mark attendance on a single register and work as a single unit. 9. As per notification of government of Himachal Pradesh September 2006 the promotion quota from JBT and C&V cadres to the post of TGT would be as follows: 1 Direct recruitment 25% 2 Batchwise recruitment 25% 3 By promotion from JBT 30% 4 By promotion from C&V 20% It is prima facie proved on record that cantonment board school Kasauli was upgraded from primary section to middle section w.e.f. February 2003. It is proved on record that block primary education officer Dharampur District Solan HP has conducted inspection of the school on dated 29.12.2008 and submitted inspection report. Block primary education officer Dharampur has specifically mentioned in his inspection report that number of TGT teaches are not sufficient for the classes of middle section and post of headmaster is vacant since 2006. Block primary education officer has specifically mentioned in his report that presently Smt. Paramjeet Kaur is officiating as headmistress and her qualification is matric with JBT. Block primary education officer Dharampur has further mentioned in his inspection report that lacuna should be filled up at the earliest possible because headmaster in the middle wing should be graduate. 10. It is prima facie proved on record that Smt. Paramjeet Kaur, Smt. Pratima Kalyani, Smt. Mamta, Sh. Pardeep Kumar, Sh. Rakesh Kashyap, Sh. Krishan Pal, Smt. Suman, Smt. Sapna Mehta and Surekha Sharma have filed complaint against petitioner Ashutosh Garg before Chief Executive Officer cantonment board Kasauli relating to his mis-behaviour. It is prima facie proved on record that thereafter Chief Executive Officer has sought explanation of petitioner Ashutosh Garg on dated 17.8.2007 vide explanation No. CBK/Estt/23737. It is proved on record that thereafter on dated 23.8.2007 warning was given to petitioner Ashutosh Garg to be careful in future and warning was also given that such type of act should not be repeated. It is proved on record that thereafter on dated 23.8.2007 warning was given to petitioner Ashutosh Garg to be careful in future and warning was also given that such type of act should not be repeated. In view of the fact that departmental promotion committee did not recommend the name of petitioner for the post of headmaster in middle wing of school and warning was also given to petitioner by competent authority of law as per complaint given by nine persons against petitioner and in view of fact that petitioner did not challenge warning order before any competent authority of law and in view of fact that Smt. Paramjeet Kaur has been appointed as headmistress only as officiating headmistress and as a stop gap arrangement court is of the opinion that it is not expedient in the ends of justice to allow writ petition filed by petitioner Ashutosh Garg. Hence point No.1 is answered accordingly. Point No.2 (Relief). 11. In view of finding upon point No.1 writ petition filed by petitioner is dismissed. However non-petitioners No.2 and 3 Chief Executive Officer Kasaulit Cantt and G.O.C-in- Command Chandi Temple Panchkula Haryana are directed to fill up regular post of headmaster/ headmistress in the middle wing of school expeditiously in accordance with law within three months in view of deficiency pointed out by Block Primary Education Officer Dharampur District Solan HP in his inspection report dated 29.12.2008 placed on record. No order as to costs. Writ petition is disposed of. All miscellaneous application(s) are also disposed of.