Punjab-Haryana High Court
Mrs. Achla Dogra And Others vs The Central Administrative Tribunal on 25 February, 2012
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal, T.P.S. Mann
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
C.W.P. No. 22302 of 2010 ( O&M )
DATE OF DECISION : 25.02.2012
Mrs. Achla Dogra and others
.... PETITIONERS
Versus
The Central Administrative Tribunal, Chandigarh Bench, Chandigarh and
others
..... RESPONDENTS
CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE T.P.S. MANN
Present : Dr. Balram Gupta, Senior Advocate, with
Mr. Mankik Bakshi, Advocate,
for the petitioners.
Mr. Sanjay Kaushal, Sr. Standing Counsel for U.T., with
Mr. Kabir Saini, Advocate.
Mr. Girish Agnihotri, Senior Advocate, with
Ms. Saroj, Advocate.
Mr. Ravi Kant Sharma, Advocate.
***
SATISH KUMAR MITTAL , J.
1. The petitioners, who are looking after the work of Principal in various Government Colleges in Chandigarh, which are being run by the Chandigarh Administration, have filed this petition with the prayers (i) to quash the `Chandigarh Educational Service (Group "A" Gazetted) CWP No. 22302 of 2010 -2- Government Arts and Science College Rules, 2010' (hereinafter referred to as `2010 Rules') to the extent that they provide for qualification of Ph.D for promotion to the post of Principal; (ii) to direct the respondents to get 2010 Rules relaxed with regard to the qualification of Ph.D for the purpose of promotion to the post of Principal before making any regular promotion under the directions given by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (hereinafter referred to as `the Tribunal') vide order dated 12.10.2010 (Annexure P-1); and (iii) to direct the respondents to consider and promote the petitioners against the vacant posts of Principal with effect from 1.10.2009 on regular basis.
2. It is undisputed factual position that vide notification dated 13.1.1992, the Chandigarh Administration adopted the corresponding Service Rule of Punjab with effect from 1.4.1991 to govern the conditions of service of its employees. Prior to it, there were no rules governing the matter. The Chandigarh Administration had been appointing Principal in Government Colleges by way of deputation or promoting the Lecturers of UT cadre as Principals, by adopting different eligible criteria. The effect of notification dated 13.1.1992 was that the provisions of the Punjab Educational Service (College Grade) (Class I) Rules, 1976 (hereinafter referred to as `1976 Punjab Rules') became applicable in regard to the recruitment of candidates to UT college cadre.
3. Vide notification dated 29.3.2000, published in the Gazette CWP No. 22302 of 2010 -3- dated 1.4.2000, the Chandigarh Administration, in consultation with the Union Public Service Commission (hereinafter referred to as `the UPSC'), framed and notified the Chandigarh Educational Service (Group "A" Gazetted) Government Arts and Science College Rules, 2000 (hereinafter referred to as `the Draft Service Rules') and sent the same to the Government of India for issuing Notification in the name of the President of India. Finally, after due approval, on 26.3.2010, the Draft Service Rules were notified as 2010 Rules and were published in the Official Gazette on 3.4.2010.
4. Under 2010 Rules, appointment to the posts of Principal in Government Arts and Science Colleges was to be made 25% by direct recruitment and 75% by promotion. These Rules prescribed Ph.D as essential qualification for appointment to the post of Principal by direct recruitment as well as by way of promotion.
5. Under the 1976 Punjab Rules, as far as appointment to the post of Principal by way of promotion is concerned, Ph.D was not the essential qualification. Only on the basis of requisite experience as Lecturer, the person was to be promoted as Principal.
6. Admittedly, three posts of Principal accrued in the year 2009. Instead of making regular promotion on those posts, the petitioners, on the basis of their seniority, were given the officiating charge of the post of Principal in different Government Colleges in Chandigarh, keeping in view CWP No. 22302 of 2010 -4- the fact that they, being not possessing the qualification of Ph.D., were not eligible for promotion on the post of Principal under the Draft Service Rules.
7. Respondents No.7 and 8, who are junior to the petitioners but possessing the essential qualification of Ph.D., filed Original Application No. 898-CH of 2009 before the Tribunal with a prayer to quash the orders giving officiating charge of the post of Principal to the petitioners. Simultaneously, the petitioners also filed Original Application No. 998-CH of 2009 for issuing direction to the respondents to promote them regularly on the post of Principal under 1976 Punjab Rules, as the Draft Service Rules were not applicable to them. The petitioners raised the plea before the Tribunal that all the vacancies accrued prior to 3.4.2010 were required to be filled up in accordance with the 1976 Punjab Rules. Therefore, the petitioners should be regularly promoted on the post of Principal, which accrued prior to the said date. The petitioners also challenged the constitutional validity of 2010 Rules on the ground that the qualification of Ph.D for promotion to the post of Principal was first time introduced, which was not the essential qualification for promotion, prior to the notified date i.e. 3.4.2010. It was contended that by introducing the qualification of Ph.D under 2010 Rules, even the right of consideration for one step promotion in the entire service career stood excluded. Therefore, 2010 Rules were violative of Articles 14 and 16 of the Constitution of India. CWP No. 22302 of 2010 -5-
8. The Tribunal, vide its order dated 12.10.2010, disposed of the aforesaid two Original Applications by a common order. The validity of 2010 Rules were upheld. However, the respondents were directed to consider amending the rules in so far as they relate to promotion to the post of Principal, so as to provide at least upto some percentage for promotion of those Lecturers to the post of Principal for whom Ph.D was not the qualification at the time of recruitment and who have put in a substantial number of years in service. It was further ordered that in the meantime, the respondents may initiate appropriate action to fill up the vacant posts of Principal as per the notified rules, preferably within a period of six months from the date of receipt of a copy of the order. In the last, it was observed that "It is again reiterated that the respondents may take action strictly as per the notified rules and in this respect they are free to utilize the option regarding relaxation of the rules, if they so desire. It is also clarified that no person may be ordered to hold the post of Principal on officiating basis, if he or she is not eligible to hold the post under the notified rules unless relaxation has been ordered as per the notified Rules."
9. The petitioners have challenged the aforesaid order in the instant petition.
10. It is pertinent to mention here that the Chandigarh Administration has sent a proposal for amendment of the Notified Rules in the Recruitment Rules for promotion to the post of Principal, but the CWP No. 22302 of 2010 -6- Government of India, Ministry of Human Resource Development, vide letter dated 31.1.2011, has rejected the proposal for amending the prescribed minimum qualification in the Recruitment Rules for the post of Principal, which is in accordance with the UGC guidelines. Learned counsel for the Union Territory, Chandigarh, while placing on record the letter dated 31.1.2011, stated that in view of this letter, the Chandigarh Administration has no proposal to relax the essential qualification prescribed for promotion to the post of Principal. In view of these facts, we have heard learned counsel for the parties.
11. Learned counsel for the petitioners made two fold submissions. Firstly, that the vacancies, on which the petitioners are working on Officiating basis, accrued prior to the coming into force of 2010 Rules, therefore, these old vacancies should be filled up in accordance with the old Rules, in view of the principle of law laid down by the Hon'ble Supreme Court in Y.V. Rangaiah Vs. J. Sreenivasa Rao and others, (1983) 3 SCC
284. Secondly, learned counsel argued that in case, this submission is not accepted, then 2010 Rules, to the extent that they provide for qualification of Ph.D for promotion to the post of Principal, are violative of Articles 14 and 16 of the Constitution of India, as these Rules even deny the right of the petitioners for being considered for one step promotion in their entire service career.
12. With regard to the first contention, learned counsel for the CWP No. 22302 of 2010 -7- Chandigarh Administration argued that all the posts, on which the petitioners were given the Officiating charge of Principal, accrued in the year 2009, i.e. much after the notification of the Draft Service Rules. While referring to the judgment of the Hon'ble Supreme Court in the case, titled as `Chandigarh Administration Vs. Usha Kheterpal Waie and others' (Civil Appeal No. 7570 of 2011, decided on 2.9.2011) (Annexure R-2), wherein the very same Rules of 2010 were challenged, though pertaining to the direct appointment, it has been argued that the recruitment is to be made according to the qualifications prescribed in 2010 Rules and not under the old Rules. In this regard, learned counsel referred to the following observations of the Hon'ble Supreme Court in the said judgment :
"10. The first question for our consideration is whether the appellant could have prescribed in the advertisement, the educational qualifications for the post of Principal in terms of its 2000 Recruitment Rules. The Administrator of the Chandigarh Administration made the Chandigarh Educational Service (Group A) Gazetted Government Arts & Science College Rules, 2000 vide notification dated 29.3.2000 and published it in the Gazette dated 1.4.2000. The said Rules were made in consultation with the UPSC, taking note of the UGC guidelines prescribing Ph.D degree as an eligibility criteria for the post of Principals to be filled by direct recruitment. The Rules were sent to the Central Government for being notified in the name of the President of India and were pending consideration. It is in these circumstances the appellant CWP No. 22302 of 2010 -8- advertised the post in terms of the said Rules, by prescribing the educational qualification of Ph.D for direct recruitment to the post of Principal. In Abraham Jacob Vs. Union of India [1998 (4) SCC 65], this Court held that where draft rules have been made, an administrative decision taken to make promotions in accordance with the draft rules which were to be finalized later on, was valid. In Vimal Kumari Vs. State of Haryana [1998 (4) SCC 114], this Court held that it is open to the Government to regulate the service conditions of the employees for whom the rules were made, even if they were in their draft stage, provided there is a clear intention on the part of the Government to enforce those rules in the near future. In this case, the High Court however rejected the advertisement on the ground that regular rules were not notified by the President of India even after five years, when the High Court decided the matter. But what is relevant to test the validity of the advertisement, was the intention of the appellant when the advertisement was issued. At that time, the appellant had the clear intention to enforce the Recruitment Rules in future as they had been made in consultation with UPSC, in accordance with the UGC guidelines and the Rules had been sent to the Central Government for being notified by the President and the matter was pending consideration for a few months when the advertisement was issued. The appellant at that time had no inkling that there would be inordinate delay or the Rules may not be notified by the President. Therefore, the advertisement in terms of the 2000 Recruitment Rules was valid.
11. Even in the absence of valid rules, it cannot be said that the advertisement was invalid. In exercise of its executive CWP No. 22302 of 2010 -9- power, the appellant could issue administrative instructions from time to time in regard to all matters which were not governed by any statute or rules made under the Constitution or a Statute. In fact it is the case of the respondents that the appellant had issued such instructions on 20.8.1987 directing that the lecturers from UT cadre should be promoted as Principals. In fact, the Administrator of appellant had issued a notification on 13.1.1992 adopting the corresponding Punjab Rules to govern the service conditions of its employees. If so, the Administrator of appellant could issue fresh directions in regard to qualifications for recruitment. The Recruitment Rules made by the Administrator were duly notified. Though they were not rules under Article 309, they were nevertheless valid as administrative instructions issued in exercise of executive power, in the absence of any other Rules governing the matter. Once the Recruitment Rules, made by the Administrator, were notified, they became binding executive instructions which would hold good till the Rules were made under Article 309. Therefore, the advertisement issued in terms of the said Recruitment Rules was valid."
In reply to the aforesaid submissions, learned counsel for the petitioners argued that the principles laid down in Abraham Jacob and others Vs. Union of India (1998) 4 SCC 65 and Vimal Kumari Vs. State of Haryana and others (1998) 4 SCC 114 are not applicable in the instant case, as in those cases, there was no statutory Rule before the Rules were notified, and in absence of the statutory Rules, the Hon'ble Supreme Court held that the Draft Rules would hold good till the Rules were made under Article 309 of CWP No. 22302 of 2010 -10- the Constitution of India. Learned counsel argued that it was precisely in this background that the Hon'ble Apex Court held the Draft Rule as `Administrative Instructions' issued in exercise of the executive power in the absence of any other Rules governing the matter. Learned counsel further argued that so far as the instant case is concerned, 1976 Punjab Rules were in operation before 2010 Rules were notified. In such a situation, the following observations of the Hon'ble Supreme Court in Union of India and another Vs. V. Ramakrishnan and others, (2005) 8 SCC 394 are applicable :
"Valid rules made under proviso appended to Article 309 of the Constitution operate so long as the said rules are not repealed and replaced. The draft rules, therefore, could not form the basis for grant of promotion, when Rules to the contrary are holding the field. It can safely be assumed that the principle in Abraham Jacob, Vimal Kumari and Gujarat Kishan Mazdoor Panchayat that draft rules can be acted upon, will apply where there are no rules governing the matter and where recruitment is governed by departmental instructions or executive orders under Article 162 of the Constitution."
(Emphasis added)
13. After considering the submissions, made by learned counsel for the parties on this issue, we do not find any force in the submission made by learned counsel for the petitioners. It is undisputed position that vide notification dated 13.1.1992, the Chandigarh Administration has adopted the CWP No. 22302 of 2010 -11- corresponding Service Rule of Punjab with effect from 1.4.1991 to govern the conditions of all its employees, where there were no rules governing the matter. By the said Administrative Instructions, impliedly the provisions of the 1976 Punjab Rules became applicable with regard to recruitment of candidates in the UT college cadre. As observed by the Hon'ble Supreme Court in Usha Kheterpal's case (supra), the notification dated 13.1.1992 issued by the Chandigarh Administration adopting the corresponding 1976 Punjab Rules were Administrative Instructions issued in exercise of the executive power and were not issued under Article 309. Those Instructions cannot be termed as Rules and can also be modified and supplemented by issuing further instructions. The Draft Service Rules have to be taken as binding instructions, which are to be followed in the matter of recruitment and appointment, which the Chandigarh Administration has followed in the matter of recruitment. In this situation, the Draft Service Rules hold the field, until the Rules are framed. Therefore, the Draft Service Rules, which were subsequently notified, were to be made applicable on the posts which accrued in the year 2009 and were not to be governed by the 1976 Punjab Rules. In the facts and circumstances of the case, it cannot be said that the Chandigarh Administration was not interested to implement the Draft Service Rules. After publication of these Rules in the Gazette, these were sent to the Government of India and ultimately, the matter was finalised in the year 2010, when these Draft Service Rules were notified on 3.4.2010. In CWP No. 22302 of 2010 -12- this background, the Hon'ble Supreme Court in Usha Kheterpal's case (supra) has held that the Chandigarh Administration was having clear intention to enforce the Draft Service Rules, though these were not notified for a long period. This issue has been considered and decided by the aforesaid judgment, wherein it has been held that the advertisement made in accordance with the Draft Service Rules is valid, in view of the principle laid down in Abraham Jacob's case and Vimal Kumari's case (supra). In our view, the judgment cited by learned counsel for the petitioners, i.e. V. Ramakrishnan's case (supra), is not applicable to the facts and circumstances of the present case, as prior to notification of 2010 Rules, only Administrative Instructions were governing the filed and there were no Service Rules. Even the said judgment laid down that `the principle in Abraham Jacob, Vimal Kumari and Gujarat Kishan Mazdoor Panchayat that draft rules can be acted upon, will apply where there are no rules governing the matter and where recruitment is governed by departmental instructions or executive orders under Article 162 of the Constitution.'
14. While addressing the arguments on the issue of constitutional validity of 2010 Rules to the extent that they provide for qualification of Ph.D for promotion to the post of Principal, learned counsel for the petitioners argued that by introducing the minimum qualification of Ph.D for promotion to the post of Principal in 2010 Rules, the only opportunity of the CWP No. 22302 of 2010 -13- petitioners to be promoted on the post of Principal has been taken away. Learned counsel further argued that the petitioners were having 30 years of teaching experience to their credit, therefore, they cannot be denied the right of consideration for promotion to the post of Principal. Such denial is arbitrary and violative of Articles 14 and 16 of the Constitution of India. He further argued that in the feeder cadre i.e. for appointment to the post of Lecturer/Assistant Professor, there is no essential requirement of qualification of Ph.D. When the petitioners were initially appointed on the post of Lecturer, at that time, there was no essential requirement of qualification of Ph.D. Now, after more than 30 years, when the petitioners have acquired vast experience, prescribing the minimum qualification of Ph.D for promotion to the post of Principal is totally arbitrary. It will mean that in the entire service career of the petitioners, there would be no opportunity of their promotion. While referring to Raghunath Prasad Vs. The Secretary, Home (Police) Department, Government of Bihar and others, 1988 (1) SLR 347, learned counsel for the petitioners argued that reasonable promotional opportunities should be available in every wing of public service. That generates efficiency in service and fosters the appropriate attitude to grow for achieving excellence in service. In the absence of promotional prospects, the service is bound to degenerate and stagnation kills the desire to serve properly. Learned counsel further argued that 2010 Rules even deny the fundamental right of consideration of CWP No. 22302 of 2010 -14- promotion to the post of Principal. He further argued that all the petitioners have administrative experience, as they have worked as Head of the Department and Dean of the faculty, therefore, they are conversant with the nature and duties of the post of Principal and there is no justification to deny them consideration for promotion to the post of Principal, only on the ground that they do not possess the qualification of Ph.D.
15. On the other hand, learned counsel for the respondents argued that under 2010 Rules, which have finally been notified, the qualification of Ph.D was consciously made essential in both types of recruitment, i.e., direct recruitment as well as recruitment by promotion. He further argued that the Career Advance Scheme has also been made applicable on the pattern of the Punjab Government Notification dated 2.9.2009 in respect of the College Lecturer/Assistant Professor. They are given higher pay grade after specified time. Learned counsel further argued that revision of the pay scales of the teaching faculty and the Career Advance Scheme has been adopted on the basis of the pattern governed by the University Grants Commission. He further argued that the petitioners have accepted the UGC guidelines in totality and fixing of the minimum qualification of Ph.D for promotion as Principal. Therefore, it cannot be said that there is any stagnation. Learned counsel further argued that it is for the Rule making authority to prescribe the qualification and other conditions of service, including the avenue of promotion. The Hon'ble Supreme Court, while CWP No. 22302 of 2010 -15- upholding these Rules in Usha Khetarpal's case (supra) has observed that the Tribunal and the High Court have committed an error in holding that the appellant could not prescribe the qualifications of Ph.D for the post of Principal merely because earlier the said educational qualification was not prescribed or insisted. The Recruitment Rules were made in consultation with UPSC to give effect to the UGC guidelines which prescribed Ph.D degree as the essential qualification for direct recruitment of Principals. While upholding the qualification of Ph.D for direct recruitment, it was observed that prescribing of this qualification is reasonably relevant to maintain the high standards of education and there is absolutely no reason to interfere with the provision of the said requirement as an essential requirement.
16. After considering the submissions made by learned counsel for the parties, we do not find any force in the contention of learned counsel for the petitioners that prescribing Ph.D qualification as essential qualification for promotion to the post of Principal is arbitrary, illegal and discriminatory, being violative of Articles 14 and 16 of the Constitution of India. We are of the view that the Ph.D qualification for the post of Principal, either for direct recruitment or by promotion, cannot be said to unrelated to the duties and functions of the post of Principal. In order to maintain high standard of education in the Art and Science Colleges in Chandigarh, the requirement of Ph.D qualification for the post of Principal cannot be said to be CWP No. 22302 of 2010 -16- unreasonable. It is well settled that it is for the rule-making authority or the appointing authority to prescribe the mode of selection and minimum qualification for any recruitment. Courts and the Tribunals can neither prescribe the qualifications nor encroach upon the power of the concerned authority so long as the qualification prescribed by the employer is reasonably relevant and has a rational nexus with the functions and duties attached to the post. This principle has been laid down by the Hon'ble Supreme Court in J. Rangaswamy Vs. Government of Andhra Pradesh and others, (1990) 1 SCC 288 and P.U. Joshi and others Vs. Accountant General, Ahmedabad and olthers, (2003) 2 SCC 632. In Usha Khetarpal's case (supra), the Hon'ble Supreme Court, while upholding the qualification of Ph.D for the post of Principal by direct recruitment, has held that the Chandigarh Administration has power to prescribe such essential criteria/qualification as it considers to be necessary and reasonable. It has also been observed that the requirement of Ph.D qualification for the post of Principal is essential to maintain the high standard of education. Once the Ph.D qualification has been held to be essential to maintain the high standard, then it makes no difference whether the recruitment to the said post is made by direct recruitment or by promotion. In both the methods of recruitment, in our opinion, requirement of Ph.D qualification for holding the post of Principal is essential. Prescribing of different qualifications for both the methods of recruitment, in our view, will result into anomalous CWP No. 22302 of 2010 -17- situation. A Lecturer/Assistant Professor who does not possess Ph.D qualification, cannot be said to be in better situation to perform the duties and functions of the post of Principal and to maintain the high standard of education in the Colleges. Now, after the revision of pay scales and with the introduction of Career Advance Scheme, on the recommendation of the UGC the time bound scales have been given to the Lecturers of the Colleges/University. The UGC has also prescribed the essential qualifications for various posts, including the post of Principal. Keeping in view the same, the rule-making authority has prescribed Ph.D as the essential qualification in the cases of promotion to the post of Principal. In this situation, it cannot be said that there is stagnation in the cadre of Lecturers. Thus, we do not find any illegality or arbitrariness in prescribing Ph.D degree as the essential qualification for promotion to the post of Principal.
17. No other point was raised or argued by learned counsel for the petitioners.
18. Consequently, for the reasons recorded above, the instant petition is dismissed.
( SATISH KUMAR MITTAL )
JUDGE
February 25, 2012 ( T.P.S. MANN )
ndj JUDGE