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2018 DIGILAW 2150 (RAJ)

Bhuwneshwar Pd. Trivedi v. The State Of Rajasthan

2018-10-26

GOVERDHAN BARDHAR, MOHAMMAD RAFIQ

body2018
JUDGMENT Mohammad Rafiq, J. - These special appeals have been filed by the appellants assailing the judgment dated 25.08.2015 passed by the learned Single Judge of this Court whereby the writ petitions filed by the respondents-State of Rajasthan, against the judgment dated 08.11.2013 passed by the Rajasthan Civil Services Appellate Tribunal, Rajasthan, Jaipur (for short 'the Tribunal) disposing of the appeals filed by the appellants and directing the State to consider cases of the appellants to extend them the benefit of promotion from the date their juniors were promoted, have been allowed and aforesaid judgment passed by the Tribunal has been set aside. 2. For the sake of convenience, Special Appeal No. 986/2015 is being taken as leading case. Facts of the case are that the appellant Bhuwneshwar Pd. Trivedi was initially appointed as Teacher Grade-III (Sanskrit) under Rajasthan Sanskrit Education Subordinate Service Rules, 1978 (for short 'the Rules of 1978') in the pay scale of Rs. 1200-30-1560-40-2000-50-2050 vide order dated 18.02.1991 and posted in Government Upper Primary Sanskrit School, Surjagaon, Dunguarpur. The Rules of 1978 were amended vide notification dated 10.06.2008 to provide for qualification of Shastri or equivalent traditional Sanskrit Examination with Sanskrit medium from a University established by Law in India and Shiksha Shastri/Degree in education recognized by the Government and graduate or equivalent degree in concerned subject from a University established by law in India as the eligibility for appointment as Teacher Grade-II in Sanskrit subject and Shiksha Shastri/Degree in education recognized by the Government for Teacher Grade II other than Sanskrit subject. The respondents vide order dated 01.05.2008 promoted persons junior to the appellants on the post of Sanskrit Teacher Grade II against the vacancies of years 2004-05 and 2006-07. The appellant in compliance of earlier order dated 30.04.2008 passed by the Tribunal represented to the concerned authorities, but his representation was rejected on 21.10.2008. Being aggrieved, the appellant preferred appeal before the Tribunal, which was allowed vide order dated 21.09.2012 directing that since the appellant possessed the requisite qualification for promotion as Teacher Grade-II (Sanskrit), his candidature may be considered for promotion and if he is found eligible, he may be promoted from the date his junior was promoted and be given consequential benefits. 3. 3. Being aggrieved, the State of Rajasthan filed writ petitions before this Court, which were partly allowed by learned Single Judge of this Court vide order dated 23.05.2013 and the matter was remanded back to the Tribunal to reexamine and reconsider the facts of each case to determine as to whether the appellants were in possession of requisite qualification of Graduate in Sanskrit or Shastri with Shiksha Shastri or degree or diploma in education. Upon remand, the Tribunal again considered the matter and vide order dated 08.11.2013 again allowed the appeal and issued a direction that the appellant possessed the requisite educational qualification for promotion to the post of Teacher Grade-II (Sanskrit) and further directed to consider their candidature for promotion and if they are found eligible then they be promoted from the date their juniors were promoted with all consequential benefits. The respondents State of Rajasthan again preferred writ petitions before this Court challenging the order of the Tribunal. Learned Single Judge of this Court vide impugned judgment dated 25.08.2015 allowed the writ petitions and set aside order dated 08.11.2013 passed by the Tribunal. Hence these appeals. 4. Mr. Ashwini Jaiman, learned counsel appearing on behalf of the appellants argued that a bare perusal to the unamended rules would reveal that for the promotion as IInd Grade Teacher, a candidate is required to possess qualification of Graduate or Shiksha Shastri whereas minimum academic qualification for direct recruitment is trained graduate or trained Shastri or equivalent qualification. It is thus clear that for the purpose of appointment prior to the amendment, one was required to have graduation and for the purpose of promotion, those having qualification of graduate or Shastri or equivalent examination with degree or diploma in education or Shiksha Shastri were eligible. It is argued that after the amendment under the Rules of 1978, a person for Teacher Grade-II (Sanskrit) is required to have Shastri or equivalent traditional Sanskrit Examination "with Sanskrit medium from a University established by law in India" which has been made the minimum academic qualification. The candidates possessing graduation with Sanskrit for the purpose of direct recruitment are no more eligible for appointment as Teacher Grade-II (Sanskrit). It is argued that the amendment has been made prospective and has not been given retrospective effect. The candidates possessing graduation with Sanskrit for the purpose of direct recruitment are no more eligible for appointment as Teacher Grade-II (Sanskrit). It is argued that the amendment has been made prospective and has not been given retrospective effect. The vacancies available for promotion up to the date of amendment were required to be filled in accordance with the unamended rules as the applicability of the amended rules would be only prospective. It is submitted that the appellants as per unamended rules, possess the requisite qualification and thus they fulfill the aforesaid qualification which fact has been rightly considered by the Tribunal. But the learned Single Judge without considering this vital aspect had come to the wrong conclusion while relying on the Division Bench judgment in Pawan Kumar Jain & Another v. State of Rajasthan & Others (D.B. Civil Special Appeal (Writ) No. 173/2011 & other connected matters decided on 23.03.2011) which relates to the direct recruitment and wrongly allowed the writ petitions filed by the State. It is well settled that direct recruitment and promotion are two different streams of recruitment and are not governed by the same yardstick. Rule 10 of the Rules of 1978 deals with determination of vacancies on yearly basis and therefore a vacancy available up to the date of amendment is required to be filled in accordance with the unamended rules and in absence of any specific provision cannot be applied retrospectively. 5. Learned counsel submitted that on 01.05.2008 impugned promotion order was issued whereby persons junior to the appellants have been promoted against the vacancies of the year 2004-05 and 2006-07 and amendment has been made vide notification dated 10.06.2008. Therefore the vacancies prior to amendment are required to be filled in as per unamended rules. Since the appellants possessed the requisite qualification under the unamended rules, they ought to have been considered for promotion on the post of Teacher Grade-II (Sanskrit). Learned Single Judge had misconstrued the earlier Division Bench judgment of this Court in Pawan Kumar Jain & Another (supra) for coming to the conclusion that despite unamended rules, only graduates in Sanskrit medium would be eligible for promotion. It is further submitted that the learned Single Judge has considered the material which was not even quoted or placed on record but was referred at the time of arguments. However, aforesaid material nowhere deals with the contention raised in the appeals. It is further submitted that the learned Single Judge has considered the material which was not even quoted or placed on record but was referred at the time of arguments. However, aforesaid material nowhere deals with the contention raised in the appeals. 6. Learned counsel argued that judgment dated 26.04.2005 rendered by Single Bench of this Court at Principal Sat at Jodhpur in Jeta Ram Khawa & Others v. State of Rajasthan & Others (S.B. Civil Writ Petition No. 1304/2004), which was upheld by the Division Bench of this Court at Principal Seat at Jodhpur in The State of Rajasthan & Others v. Jeta Ram Khawa & Others (D.B. Special Appeal (Writ) No. 426/2006 decided on 17.04.2006) specifically deals with the controversy involved in the present matter but the same has not been considered by the learned Single Judge in right perspective. It is further argued that administrative instructions cannot supplant the statutory rules framed under proviso to Article 309 of the Constitution of India and therefore could not be given effect to. Learned Single has committed serious error while construing the administrative instructions over the statutory Rules of 1978. 7. Learned counsel in support of his arguments relied upon the judgments in Jeta Ram Khawa & Others (supra); Y.V. Rangaiah & Others v. J. Sreenivasa Rao & Others, (1983) 3 SCC 284 ; T.R. Kapur & Others v. State of Haryana & Others, 1986 (Supp.) SCC 584; B.L. Gupta v. M.C.D., (1998) 9 SCC 223 ; P. Mahendran & Others v. State of Karnataka & Others, (1990) 1 SCC 411 ; Arjun Singh Rathore & Others v. B.N. Chaturvedi & Others, (2007) 11 SCC 605 ; The State of Rajasthan & Others v. Rughnathram & Another, (2016) 2 WLN 182 ; Balwant Singh v. State of Rajasthan & Others (D.B Civil Writ Petition No. 6087/2008 decided on 30.04.2015); Prem Narain v. State of Rajasthan (D.B. Special Appeal No. 920/1996 & other connected matters decided on 13.01.1997); Pawan Kumar Jain & Another (supra); Garima Mani Sharma v. State of Rajasthan & Others (S.B. Civil Writ Petition No. 3701/2011 & other connected matters decided on 12.07.2011) ; Pushpa Sanvariya & Others v. State of Rajasthan & Others (D.B. Civil Writ Petition No. 9517/2010 and other connected matters decided on 19.05.2011) . 8. Per contra, Mr. 8. Per contra, Mr. Y.S. Jadaun, learned counsel appearing on behalf of the respondents opposed the appeals and argued that the appellants are teachers in Sanskrit Department of the State of Rajasthan. Though some of them have retired as Teacher Grade-II (General) or after getting anti-stagnation benefits on completion of required length of services, they have raised the grievance of not promoting them as Teacher Grade-II (Sanskrit). Thus, the appellants want to be promoted as Teacher Grade-II (Sanskrit) from the date juniors to them were promoted to the post of Teacher Grade-II (Sanskrit), but they have not impleaded any such person as party respondent, not even in a representative capacity. It is argued that only those teachers from Teacher Grade-III have been promoted to Teacher Grade-II (Sanskrit) who possessed requisite qualification of traditional Sanskrit Curriculum in Sanskrit medium, as distinguished from those who may have Sanskrit merely as an optional or compulsory subject but not as a medium of instruction, as the various Sanskrit courses require. However, two persons namely Nathu Lal Daria and Lal Chand were given promotion in beach of the Rules but subsequently they were reverted. However, they secured interim orders from the Tribunal. 9. Learned counsel argued that Teacher Grade-III (Sanskrit) and Teacher Grade-III (General) have since long been recognised as two distinct posts. It has been a consistent past practice duly recognised by the administrative authorities in the best interest of Sanskrit Education and also for its upliftment. The same has been acknowledged judicially also by the Courts including this Court. The distinction between Teacher Grade-III (Sanskrit) vis-a-vis Teacher Grade-III (General) was made explicit when the Government issued specific circular dated 18.07.1992, which was considered by Division Bench of this Court in Prem Narain (supra) wherein it was held that the Government by the aforesaid circular had supplemented the qualification already prescribed for the post of Teacher Grade-III (Sanskrit). The State Government was also impressed upon to amend the Rules, in order to avoid frivolous litigation. It is argued that the impugned order passed by the learned Single Judge is based upon judgment dated 23.03.2011 passed by Division Bench of this Court in Pawan Kumar Jain & Another (supra) which was relied in Garima Mani Sharma (supra) too. The State Government was also impressed upon to amend the Rules, in order to avoid frivolous litigation. It is argued that the impugned order passed by the learned Single Judge is based upon judgment dated 23.03.2011 passed by Division Bench of this Court in Pawan Kumar Jain & Another (supra) which was relied in Garima Mani Sharma (supra) too. It is further argued that the decision in State of Rajasthan v. Jeta Ram Khawa & Others (D.B. Special Appeal No. 426/2006) is distinguishable on the ground that said decision pertained to direct recruitment whereas the controversy in question is about promotion. 10. Learned counsel submitted that Rajasthan Sanskrit Education and Subordinate Service (School) Rules, 2015 have now been framed in exercise of powers under Article 309 of the Constitution of India by repealing Rajasthan Sanskrit Education Service Rules, 1977 as well as Sanskrit Education Subordinate Service Rules, 1978 which also acknowledge the distinction between Teacher Grade-III (Sanskrit) and Teacher Grade-III (General). Teacher Grade-II are now known as Senior Teacher in various specified subjects such as Sanskrit, Hindi, English, Mathematics, Science, Social Science. Promotion to these posts is also made from different relevant feeding posts. Since the Rules of 1978 have been repealed by introduction of Rules of 2015, writ petitions wherefrom the present appeals arise have either to be dismissed or the appellants may have to file fresh writ petitions challenging the relevant rules. It is argued that the promotion of any candidate to encadred post shall have to be given now in accordance of the Rules of 2015. Reliance in this connection has been made upon the judgment in D.K. Jain v. State of Haryana decided on 25.11.1994. So far as amending Rules of 2008 are concerned, that are clarificatory in the nature and therefore, shall be deemed to have been in vogue from the date Rules of 1978 were promulgated. It is further argued that making promotion by going against the spirit of Rules of 1978 and practice which was given judicial recognition by this Court, would disturb the promotions, granted to the Sanskrit Teacher Grade-III to Sanskrit Teacher Grade-II. It is thus argued that the delay in also fatal for the appellants. It is therefore prayed that the appeals may be dismissed. 11. We have given our thoughtful consideration to rival submissions and carefully gone through the material on record. 12. It is thus argued that the delay in also fatal for the appellants. It is therefore prayed that the appeals may be dismissed. 11. We have given our thoughtful consideration to rival submissions and carefully gone through the material on record. 12. The minimum qualification and experience for promotion on the post of Teacher Grade-II (Sanskrit) as per the unamended Rules of 1978 was provided in the Schedule appended thereto which was "Graduation or Shastri or equivalent examination with Degree or Diploma in Education or Shiksha Shastri". However, the amendment which became effective from 10.06.2008 substituted that qualification for promotion to the aforesaid post and the same was provided in Column 4 of the Schedule, which was "For Teacher Grade-II (Sanskrit) Shastri or an equivalent traditional Sanskrit examination with Sanskrit medium from a University established by Law in India and Shiksha Shastri/Degree in Education recognized by the Government". It is not the case of the respondent-State that prior to aforesaid amendment promotions on the post of Teacher Grade-II (Sanskrit) earlier than the promotion granted in the present case were made from the eligible candidates possessing Shastri (Sanskrit) or equivalent traditional Sanskrit examination with Sanskrit medium. Learned Single Judge in the impugned judgment has heavily relied on Division Judgment of this Court in Pawan Kumar Jain & Another(supra). That case did not involve the dispute with regard to eligibility for promotion. The dispute was also not with regard to appointment on the post of Teacher Grade-II (Sanskrit). The dispute in that case was pertaining to appointment on the post of Teacher Grade-III (Sanskrit) in Upper Primary Section by way of direct recruitment. Candidature of the appellants in that case was rejected on the premise that they did not possess the qualification of Varishtha Upadhayaya and it was in that context that the challenge to amendment notification dated 22.08.2008 inserting Clause 6(a) in the Schedule-I appended to the Rules of 1978 was repelled. The Division Bench of this Court held that intention of the rule making authority was that at elementary stages i.e. Primary and Upper Primary level, only such teachers are appointed in the schools, who had their early education upto the level of 'Varishtha Upadhayaya' with "Sanskrit as medium of instruction", which was therefore referred to as foundational qualification. The Division Bench of this Court held that intention of the rule making authority was that at elementary stages i.e. Primary and Upper Primary level, only such teachers are appointed in the schools, who had their early education upto the level of 'Varishtha Upadhayaya' with "Sanskrit as medium of instruction", which was therefore referred to as foundational qualification. It was therefore held that merely because the appellants in that case had higher qualification such as B.A. in Sanskrit or M.A. in Sanskrit does not mean that rigour of the rule in their cases should be relaxed so as to read in the rules what is not provided by the rule making authority and/or rather ignore what has been specifically provided. Learned Single Judge in the present case, therefore, in our view, was not justified in applying the ratio of the aforesaid judgment to the facts of the present case, which involves the question of eligibility for promotion on the post of Teacher Grade-II (Sanskrit). 13. The Division Bench of this Court at Principal Seat at Jodhpur in the State of Rajasthan & Others v. Jeta Ram Khawa & Others (supra) was dealing with a case where the writ petitioners approached this Court because they were not considered as eligible for appointment on the post of Teacher Grade-II in the subject of Sanskrit by way of direct recruitment. The petitioners therein were possessing the qualification of B.A. with Sanskrit as optional subject as also Bachelor Degree in education, yet their applications were rejected on the ground that they does not possess qualification of Shastri as per the advertisement. The Single Bench of this Court at Principal Seat at Jodhpur vide order dated 26.04.2005 allowed the writ petition declaring them eligible. State of Rajasthan preferred appeal against the aforesaid judgment. The Division Bench of this Court while dismissing the appeal held as under: "Apparently, alternative qualification have been prescribed; that either he may be graduate with training in education with diploma or degree or he may be holding a certificate in Shastri with the certificate of training or any qualification as may be recognised in this regard. Training in education with diploma or degree is required with either of the academic qualification. Obviously, a graduate with Sanskrit as optional cannot be considered as not eligible for consideration. Training in education with diploma or degree is required with either of the academic qualification. Obviously, a graduate with Sanskrit as optional cannot be considered as not eligible for consideration. It may be noticed that the aforesaid qualification is prescribed or direct recruitment; and for promotion also required qualification is "graduate or Snastrl or qualification with degree or diploma in Shiksha Shastri." thus, apparently where the recruitment to the post of Grade II Teacher in Sanskrit Department is, whether by way of direct recruitment or promotion; the graduate with training in Teachers Training Course provides an eligibility for any person to put forward his candidature subject to other criteria. There is no assertion in the reply that the Rule has been amended for the purpose of recruitment. On the other hand. Reason given in the reply to the writ petition for not considering the graduate in Sanskrit is that while answers of the questions are compulsorily to be given in Sanskrit only, while taking a Shastri Course whereas out of three, optional subjects in B.A., Sanskrit is only one subject in which too, there is an option of answering 90% of the questions in Hindi language." 14. What is of significance in the present case to note is that the amended rules, which came into force on 10.06.2008 on the basis of which the appellants are being considered as not eligible for promotion provided qualification of Shastri (Sanskrit) or equivalent traditional Sanskrit examination with Sanskrit medium from a University established by Law in India and Shiksha Shastri/Degree in Education recognized by the Government as the eligibility qualification for direct recruitment, which qualification was also adopted for promotion. However, order of promotion of the juniors to the appellants were issued on 01.05.2008, which implies that meeting of Departmental Promotion Committee to consider their candidature for promotion was convened much prior to amendment in the Rules. In any case, the Departmental Promotion Committee and the respondents-State authorities were required to make promotions as per the unamended rules, which did not insist on the qualification of Shastri (Sanskrit) or equivalent traditional Sanskrit examination with Sanskrit medium from a University established by Law in India. In any case, the Departmental Promotion Committee and the respondents-State authorities were required to make promotions as per the unamended rules, which did not insist on the qualification of Shastri (Sanskrit) or equivalent traditional Sanskrit examination with Sanskrit medium from a University established by Law in India. The respondents therefore cannot be allowed to argue that amended provisions would apply even to the vacancies of the previous years as the case of the eligible candidates for promotion was considered much before amendment in the rules, as per the unamended rules. Learned Single Judge, in our considered view, was therefore not justified in applying the ratio of the judgment of this Court in Pawan Kumar Jain & Another (supra), ignoring the ratio of the judgment of this Court in the State of Rajasthan & Others v. Jeta Ram Khawa & Others (supra). Reliance on the Single Bench judgment of this Court in Garima Mani Sharma (supra) also therefore could not be of any help because even that judgment was based on the judgment in Pawan Kumar Jain & Another (supra) as the issue involved in that case was the same being dispute with regard to appointment on the post of Teacher Grade-II in the subject of Sanskrit by way of direct recruitment. 15. In view of above discussion, present appeals deserve to succeed and the same are hereby allowed. Impugned judgment dated 25.08.2015 passed by the learned Single Judge is set aside and the judgment dated 08.11.2013 passed by the Tribunal is restored. The appellants are held entitled to all the consequential benefits. Compliance of the judgment of the Tribunal shall now be made by the respondents within a period of three months from the date copy of this judgment is produced before them. 16. All the pending applications are disposed of. 17. Office is directed to place a copy of this judgment on record of each connected appeal.