Allahabad High Court
Gyanendra Pratap Bhadoria S/O Subedar ... vs State Of U.P. Through Special Secretary ... on 26 July, 2007
Author: V.C. Misra
Bench: Amitava Lala, V.C. Misra
JUDGMENT V.C. Misra, J.
1. On the joint request of the learned Counsel for the parties, this writ petition has been heard and is being disposed of finally at the admission stage itself. Counter and rejoinder affidavits have been exchanged in the matter.
2. This writ petition has been filed by the petitioners for quashing the impugned order dated 25.8.2006 (Annexure No. 11 to the writ petition) issued by the Suite Government declaring the final seniority list wherein the names of the petitioners are not included though were in the tentative list and restraining the respondents from taking any action on the basis of the aforesaid impugned order. It has been further prayed that the respondents be directed to include the names of the petitioners in the seniority list of U.P. Educational (General Education) Cadre Group 'B' and to restore the position as shown in the provisional seniority list notified by the office order dated 12.12.2005 which is their main grievance.
3. The facts of the case in brief are that the petitioners were selected as senior lecturers in the years 1997 and 1999 through U.P. Public Service Commission (hereinafter referred to as 'the Commission') to be posted in District Institutes of Education and training (in short DIETs) established under the National Policy of Education of Central Government and the object of the same was laid down in the Guide Lines published by the Government of India. The posts of senior lecturers were created for different DIETs in the State under the Central Government Sponsored Scheme and the posts for DIETs have been created pursuant to the direction given in Chapter VI of the Guide Lines. For being appointed as senior lecturer a person is required to possess a Post Graduate degree together with a training qualificatin and is supposed to have some teaching experience. The minimum and maximum age provided is 30 years to 35 years. In the absence of any service rules or cadre the posts of senior lecturers in DIETs were made temporarily as ex-cadre posts by the Government Orders under the U.P. Educational (General Education Cadre) Service Rules, 1992 (hereinafter referred to as 'the Rules, 1992') initially for one year which was extended from time to time. The funds for the said posts was coming from the Central Government.
4. Learned Counsel for the petitioners contended that the State Government by means of Government Orders dated 16.3.1989, 3.8.1995. 14.8.1995 and 23.9.1998 sanctioned the posts of senior lecturers in DIETs though initially as ex-cadre posts but subsequently as general cadre posts in accordance with the Rules, 1992. The petitioners were selected through the U.P. Public Service Commission though for the posts of senior lecturers in DIETs but were interchangeable against other equivalent general cadre posts which included Basic Shiksha Adhikari, Additional District Inspector of Schools, Deputy Secretary of Board of Secondary Education, Assistant Deputy Director of education and Principals of Government Inter Colleges. It is because of this reason their names were included in the tentative seniority list dated 12.12.2005. Learned Counsel for the petitioner further contended that since the names of the petitioners were included in the provisional seniority list, no objections were filed by the petitioners. It is further contended that on the objections filed by the respondents No. 5 and 6 (Rajesh Kumar Sriwas and Skand Shukla, respectively) which have been accepted by the State Government, the names of the petitioners have been excluded from the seniority list treating them as holding ex-cadre posts without affording any opportunity of hearing to the petitioners and thereby they have been deprived of normal avenue of promotion available to the members of the cadre.
5. Learned Counsel for the petitioners submitted that assuming the posts of senior lecturers in DIETs are ex-cadre posts as the same does not find place under Rule 5(18) of the Rules, 1992 but cadre of the service is defined under Rule 4 of the Rules, 1992 which specifies that on the date of the commencement of the Rules the cadre comprised of category and number of posts specified in Appendix-I to the Rules which confers power upon the State Government to determine the strength of service in each category of posts and consequently the State Government while exercising the power under Rule 4(1) of the Rules, 1992 issued the Government Orders whereby the posts of senior lecturers in DEITs have been sanctioned as addition to the cadre. He further submitted that the Central Government had funded the DIETs at the time of initial establishment only till the year 1989 but presently all such institutes are State funded.
6. Learned Counsel for the petitioners lastly submitted that the State Government has not passed any order to the effect that the post of DEITs would be treated as posts outside the cadre rather this is discriminatory stand of the respondents in which the posts of senior lecturers are being treated as ex cadre post excluding them from consideration of promotion to higher posts in education department while filling up the posts of Vice Principal and Principal of DIETs by according promotion to members of General Education Cadre.
7. Learned Counsel for the petitioners in support of his submissions has placed reliance upon the decisions in the case of Union of India and Anr. v. P.K. Roy and Ors. wherein following the decision in the case of Sri Bhagwan v. Ram Chand reported in A.I.R. 1965 SC 176, the Hon'ble Apex Court while dealing with the extent and applicability of the Doctrine of Natural Justice held that it cannot be imprisoned within the straight jacket of a rigid formula. The application of the 'doctrine depends upon the nature of the jurisdiction conferred, the scheme and policy of the statute and other relevant circumstances disclosed in the particular case. In N.K. Durga Devi v. Commissioner of Commercial Taxes, Hyderabad and Ors. the Hon. Apex Court held that in the matter of retrospective exercise of power of relaxation of Service Rules it was necessary to afford opportunity to the affected parties before passing of reversion order on the principles of 'Audi alteram partem'. In Markandey Singh, I.P.S. and Ors. v. M.L. Bhanoi, I.P.S. and Ors. in respect with seniority and promotion it has been held that notice to the adversely affect person is required on the basis of principles of Natural Justice.
8. Learned Chief Standing Counsel appearing for the State respondents has submitted that in absence of any service rules or cadre for the posts of senior lecturers in DIETs which were temporarily created as ex cadre post by Government Orders under the Rules 1992 initially for one year, had been extended from time to time in anticipation of specific service rules for the post in DIETs and a draft amendment has already been prepared by suitably amending the Rules, 1992 providing for avenues for promotion of the senior lecturers on the post of Vice Principal in DIETs. The DIETs are running under the funds of Central Government and the appointment to the said posts are made with a specific object to be achieved as prescribed under the guidelines and these posts cannot be substituted, exchanged or replaced by equivalent posts in general education cadre. He has submitted that after temporary inclusion of these posts in the cadre the senior lecturers were also transferred and posted on the cadre posts of Basic Shiksha Adhikari, Additional District Inspector of Schools, Deputy Secretary of Board of Secondary Education and Principal of Government Inter Colleges etc., and that is why in the tentative seniority list dated 12.12.2005 the were included but after realizing the mistake the post of senior lecturers in DIETs were excluded: in the final seniority list dated 25.8.2006 and the seniority list of senior lecturers in DIETs would be prepared sep irately after framing of service rules for them. Learned Chief Standing Counsel contended that if the petitioners, in exigency having been temporarily transferred and posted on the general cadre posts, they cannot claim their permanent absorption in the general cadre posts and it is exclusive domain of the State Government to rectify the mistake on the administrative side. He specifically submitted that the petitioners were appointed for the posts of senior lecturers in DIETs and their names have been rightly excluded from the final seniority list of those which are available to the General Education Cadre in the Rules, 1992.
9. Sri G.K. Singh, learned Counsel appearing for respondents No. 5 and 6 has submitted that for universalisation of elementary education and eradication of adult illiteracy which are basic goals of educational development, the Parliament adopted a national policy and approved a detailed programme of action for its implementation in the year 1986 under the Central sponsored scheme for restructuring and reorganization of teacher education and one of its components was establishment of DIETs. He submitted that proper guidelines were prepared by the Central Government and in Chapter I of the said guidelines the reasons and objects for which the DIETs were to be established were set out and chapter-VI laid down the procedure according to which the whole scheme was to be implemented. He submitted that in the guidelines regarding requirement, procedure, eligibility criteria and cadre management, Annexure- 12, at para 2 it is specifically provided that free transferability between the DIETs and other positions in the State Education Department must at all cost be avoided. At para. 6.1.4, it has been provided that promotion opportunities within DIETs should be available to personnel of DIETs on career basis. It is contended that the eligibility criteria and the minimum requisite qualifications which were required for being selected and appointed as senior lecturers in DIETs as well as holding the administrative posts in the Education department governed by the Rules, 1992 were altogether different. The minimum and maximum age prescribed in the Rules 1992 is 21 years to 32 years. whereas for the DIETs, the requisite age is 30 years to 35 years, likewise for being appointed on the posts of senior lecturer a person is required to possess a Post Graduate Degree together with a training qualification whereas for the General Education Cadres such requisite qualifications are not required and there are some other requisite qualifications for the said posts, therefore, the persons belonging the cadre in DIETs cannot form part of the persons who have been appointed in the educalional cadre by the Rules 1992 and they cannot be posted in DIETs because they neither have a training qualification nor have and teaching experience. Learned Counsel for the respondents submitted that in the year 1997 in all 548 posts for senior lecturers in DIETs and Principals of Government Inter Colleges had been advertised by the Commission. For the sake of convenience the Commission advertised these posts alongwith 200 posts of Dy. Collectors, Dy. Superintendent of Police and other allied services and conducted one common examination but those who had applied for the posts of senior lecturers could not be selected and appointed as Dy. Collector etc., likewise the persons who applied for the posts of Dy. Collectors etc., could not be selected and appointed on the posts of senior lecturers, likewise for the posts of Principal in the Government Intermediate Colleges, their merit list/select list was prepared separately by the Commission.
10. Learned Counsel for the respondents has also submitted that Government Order dated 3.8.1995 relates only to the post of Vice Principal appointed in various DIETs and no other posts, whereas the Government Order dated 23rd September, 1998 is concerned in respect with the posts of senior lecturers and other cadres of poses which are below the post of senior lecturers and were issued in respect of only 40 persons in DIETs. He contended that the petitioners had never applied for being appointed in the Educational Officer's cadre. The ex-cadre posts of senior lecturers in DIEts and U.P. Educational (General Education Cadre) Services have never been merged and both the cadres are totally different, one has to have requisite teaching experience which is not a requirement for being appointed in the educational service cadre governed by the Rules, 1992. Learned Counsel for the respondedts lastly submitted that merger of two cadres is a policy decision and it is for the Government to decide as to whether the petitioners and other senior lecturers were entitled to be included in the cadre of General Education Officers Cadre.
11. In support of his submissions the learned Counsel for the respondents further relied upon the decisions of Hon'ble the Apex Court rendered in S.P. Shivprasad Pipal v. Union of India . The Hon'ble Supreme Court while deciding the scope and extent of judicial review in the matter of Government decision of merger of cadres, it held it to be essentially a matter of policy of Government and exclusively within its province. It is not open to the court to consider whether the equation of posts made by the Central Government is right or wrong. The Court could only enquire into as to whether the relevant factors for determining the equation of posts had been properly taken into account or not. In the present case all the relevant factors had been taken into consideration by the Government. In Union of India and Ors. v. Arun Kumar Roy , the Hon'ble Apex Court held that Government servant once appointed would be governed by service rules and not by terms of contract of service as Rules framed under Article 309 override terms of appointment order and that by subordinate legislation a notification cannot override statutory rules. In Chairman, Railway Board and Ors. v. C.R. Rangadhamaiah and Ors. the Hon'ble Apex Court deals with retrospective amendment affecting vested or accrued rights of Government employees who already stood retired on the date of the notification and held the came to be invalid.
12. In the case of Reserve Bank of India v. N.C. Paliwal and Ors. , the Hon'ble Apex Court in paras 15 & 16 held that Articles 14 & 16 of the Constitution cannot stand in the way of the State (Reserve Bank in that case) integrating different Cadres into one Cadre. It is entirely a matter for the State to decide whether to have several different cadres or one integrated cadre in its services and this is a matter of policy which does not attract the applicability of the equality clause. The Hon'ble Supreme Court further held that there can be no doubt that it is open to the State to lay down any rule which it thinks appropriate for determining seniority in service and it is not competent to the Court to strike down such rule on the ground that in its opinion another rule would have been better or more appropriate. The only enquiry which the Court can make is whether the rule laid down by the State is arbitrary and irrational so that it results in inequality of opportunity amongst employees belonging to the same, class. In the case of State of Rajasthan v. Sevanivatra Karamchari Hitkari Samiti in para 25 & 26, the Hon'ble Apex Court held that the challenge to the wisdom in a policy decision of the Government, as such, is not justiceable unless such policy decision is wholly capricious, arbitrary and whimsical thereby offending the Rule of Law as enshrined in Article 14 of the Constitution or such policy decision offends any statutory provisions or the provisions of the Constitution. Save as aforesaid, the Court need not embark on unchartered ocean of public policy.
13. Learned Counsel appearing for respondents No. 7 to 13 who have been impleaded as respondents in this writ petition vide orders of this Court, has mostly supported the submissions of learned Chief Standing Counsel who appeared for the State-respondents as well as learned Counsel appearing for respondent No. 5 and 6. He contended that the exercise for promotion on the post of District Inspector of Schools initiated by the State Government by constituting the Departmental Promotion Committee (in short D.P.C.) is confined to only hose officials who are covered by the Rules, 1992. He contended that the persons belonging upto 1996 batch alone have been considered for promotion by the D.P.C. and since the petitioners belong to 1997 and 1999 batch, they can have no grievance whatsoever and they also cannot challenge the validity of the promotion made by the State Government on the recommendation of the D.P.C.
14. Having heard learned Counsel for the parties at length it is found that the eligibility criteria including minimum requisite qualifications and minimum and maximum age required for both the services, i.e. for being selected and appointed as senior lecturers in DIETs as well as holding the administrative posts in the Education department governed by the Rules, 1992 are at variance. Therefore, the petitioners cannot form part of the persons who have been appointed in the Educational Cadre by the Rules 1992, more so, the petitioners had never applied for being appointed in the Educational Officer's Cadre. Even the ex-cadre posts of senior lecturers in DIETs and general education cadre have not been merged so far and both stand on different footing. Till the Government takes a policy decision of merger of the ex-cadre post of senior lecturers in DIETs with general education cadre, the petitioners have, on legal rights to claim the benefit of the general education cadres services governed by the Rules, 1992 merely on the basis of two Government Orders, i.e. 3rd August, 1995 and 23rd September, 1998.
15. Considering the facts and circumstances of the instant case, we find that the decisions relied upon by the learned Counsel for the petitioners do not help the petitioners at all, on the other hand the principles laid down in the decisions relied upon by the learned Counsel for the respondents would be fully applicable in the present case. We also do not find that the petitioners are being put to any loss is their separate service rules which is in a draft form is in the pipe line for final approval and its implementation. We also find that the petitioners are not to be effected by the promotion, on the post of the District Inspector of Schools already initiated by the State Government by constituting the D.P.C. confined to only those officers/officials covered by the Rules, 1992 since all such persons under consideration belong to 1996 batch whereas the petitioners admittedly belong to 1997 and 1999 batch. Under the said circumstances, the petitioners have no legal right to challenge the validity of promotion of the aforesaid persons.
16. For the reasons stated herein above the writ petition fails being devoid of merit and is hereby dismissed. No order is passed as to costs.