Central Administrative Tribunal - Chandigarh
Unknown vs Union Territory Chandigarh Through Its ... on 10 April, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
OA. No. 339/CH/2013
Reserved on: 07.04.2015
Pronounced on: 10.04.2015
CORAM: HONBLE MRS. RAJWANT SANDHU,MEMBER (A)
HONBLE DR. BRAHM A.AGRAWAL,MEMBER (J)
Harmail Singh Bhatti s/o Sh. Maghar Singh Bhatti, r/o H. No. 2773, Sector 49-D, Chandigarh, presently working as Hindi Master in Government Model Sr. Secondary School, Sector 46, Chandigarh.
Applicant
Versus
1. Union Territory Chandigarh through its Secretary Education, UT Secretariat Building, Sector 9, Chandigarh.
2. Director Public Instructions (Schools), UT Police Headquarters Building, Sector 9, Chandigarh.
3. Sh. Vinod Kumar Sharma, Headmaster, Government Model High School, Sector 34, Chandigarh.
4. Sh. Ram Kumar, Headmaster, Government High School, Sector 32, Chandigarh.
5. Smt. Sunita Kandwal, Headmistress, Government High School, Kajheri.
Respondents
Present: Sh. G.S. Sathi, counsel for the applicant.
Sh. Aseem Rai, counsel for respondents No. 1 & 2.
Sh. R.K. Sharma, counsel for respondents No. 3-5.
ORDER
HONBLE MRS. RAJWANT SANDHU, MEMBER(A):-
1. This OA has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:-
(i) Set aside the agenda Annexure A-4 to the extent it provided for reservation of one post for promotion as Head Masters/Mistresses from amongst the Language Masters/Mistresses against Physically Handicapped Quota and out of 36 posts of Head Masters/Mistresses, 29 had been determined for Masters/Mistresses and 7 for Language Masters/Mistresses (Hindi, Punjabi & Sanskrit) as against correct determination of 27 and 9 for the above said categories respectively and accordingly set aside the proceedings of the DPC thereby setting aside promotions of respondents No. 3 to 5.
(ii) Set aside order Annexure A-1 in so far as it relates to promotion of respondent No. 3 as Headmaster by giving him reservation as Handicapped (Language Master).
(iii) Set aside order Annexure A-2 related to promotion of respondent No. 4 as Headmaster.
(iv) Set aside order Annexure A-3 whereby respondent No. 5 has been promoted as Headmistress (School Cadre).
(v) Direct the official respondents to consider and promote the applicant as Headmaster w.e.f. 11.5.2012/3.10.2012 (with all consequential benefits), from the date when respondent Nos. 3, 4 were promoted as Headmasters by denying right of consideration to the applicant by miscalculating vacancy position.
2. The background of the matter is that the applicant belongs to SC Category. He joined as Hindi Master in the Education Department (School Cadre) UT Chandigarh on 28.7.1980. On completion of five years of regular service, he was eligible for consideration for promotion to the post of Headmaster. The promotion to the post of Headmaster/Headmistress is governed under Chandigarh Education Service (School Cadre) Recruitment Rules, 1991. As per copy of the agenda (Annexure A-4), the strength of the cadre of Headmasters/Headmistress is 45 and the criteria for poromotion to the post of Headmasters is as under:-
80% of the posts (45/100 x 80 = 36 posts are to be filled up by way of promotion from amongst Masters/Mistresses and other TGTs (Sanskrit, Hindi and Punjabi) Teachers on the basis of joint seniority from two feeder cadres according to ratio to be determined on 1st January each year with five years regular service in the grade and having the qualification of Graduate with B. Ed/B.T. Degree or its equivalent (as per Sr. No. 3 of amendment dated 13.7.1992); 20% posts (i.e. 09 posts) by way of taking officials on deputation from other States/UTs.
3. As per the information supplied by the office of respondent No. 2 vide letter dated 2.1.2013 (Annexure A-5), the sanctioned strength of the Masters/Mistresses as on 1.1.2011 is 1335 and that of Language Masters/Mistresses is 440.
4. Averment has been made in the OA that in the agenda (Annexure A-4) for the DPC meeting, out of 36 posts meant for promotion, 29 had been calculated for Masters/Mistresses and 7 for Language Masters/Mistresses which determination is contrary to the criteria laid down in the rules which is to be determined on 1st January each year. As per the details given, there are 1335 posts of Masters/Mistresses and 440 posts of Language Masters/Mistresses and by arithmetical calculations, the share to the category of the applicant comes to 9 posts instead of 7 and 27 posts fall to the share of Masters/Mistresses instead of 29, as per details given below:-
a. Number of posts of Headmasters/Headmistresses for UT Cadre = 36 b. Total posts of Masters/Mistresses including language masters 1335 + 440 = 1775.
c. Share of Masters/Mistresses other than language Masters = 36/1775 x 1335 = 27.07 d. Share of Language Masters 36/177 x 1335 = 8.92 The applicant is placed at Sr. No. 3 in the common seniority list of language teachers as made out from the agenda Annexure A-4. In the agenda, the respondents no. 1 and 2 had wrongly calculated one post from Language Master/Mistress for Physically Handicapped person. However, by taking into consideration the quota of 8.9 posts for the category of Language Masters, no post would fall for reservation to handicapped category. Furthermore, respondent No. 3 is far junior to the applicant. The respondent No. 2 vide order dated 11.5.2012 (Annexure A-1) promoted respondent No. 3 as Headmaster from amongst Language Masters by giving him the benefit of reservation as handicapped candidate. The excess posts of Headmasters/Headmistresses have been given to the category of Masters/Mistresses against which respondent No. 4 was promoted vide order dated 3.10.2012 alongwith one Smt. Bharti Sharma (Annexure A-2) and respondent No. 5 was promoted as Headmistress vide order dated 13.12.2012 (Annexure A-3). Respondents No. 4 and 5 have usurped the post meant for the category of the applicant and respondent No. 3 (Annexure A-4) has been wrongly promoted by giving benefit of reservation against handicapped quota.
5. In the written statement filed on behalf of the respondents No. 1 & 2, the facts of the matter have not been disputed. It has further been stated that the ratio between these two feeder cadres i.e. Masters/Mistresses and other TGTs (Hindi/Punjabi/Sanskrit) has been fixed as 4 : 1 on the basis of their respective cadre strength, which implied 4 Masters/Mistresses and 01 Language Master (Hindi/Punjabi/Sanskrit) being considered by the Departmental Promotion Committee (DPC) for being promoted to the post of Headmaster/Headmistress. In the year 2012, a meeting of DPC was convened to consider the case for filling 10 vacant posts of Headmasters/Headmistresses under promotion quota vide order dated 11.05.2012 (Annexure A-1). At that time the position of 36 posts of Headmasters/Headmistresses under promotion quota was as under:-
1 2 3 4 5 6 7 8 9 10Sr. No. Cadre Total Posts Total General Quota Posts General Quota Posts Filled General Quota Posts Vacant Total SC Quota Posts SC Quota Posts Filled SC Quota Posts Vacant Remarks
1.
Masters/ Mistresses 29 25 17 08 04 03 01 09 posts
2. Language Masters/ Mistresses (Hindi, Punjabi & Sanskrit) 07 06 05 01 01 01 NIL 01 post Total 10 posts By Promotion
1. General Stream Masters/Mistress - 9 Posts (General Category - 7 posts) (S.C. Category - 1 post) (P.H. Category - 1 post)
2. Language Masters/Mistresses (Hindi/Punjabi/Sanskrit) (General Category/P.H.- 1 post) Total - 10 posts
6. It is also stated that there is reservation for the physically handicapped category in Union Territory of Chandigarh on the pattern of Central Government. According to the instructions, 3% reservation has been provided for this category. This percentage has to be calculated on the total cadre strength. Thus, taking into consideration total cadre strength of the cadre of Headmasters to be 45, at least 02 posts fall to the share of Physically Handicapped and therefore, two Masters namely (i) Vinod Kumar Sharma (Respondent No. 3) from the Cadre of Language Master and (ii) Devinder Singh from General Master Cadre were promoted as Headmaster.
7. In the written statement filed on behalf of respondents No. 3-5, preliminary objection has been taken that the applicant has no locus standi to file the present OA as his name in the Seniority List of C & V Masters/Mistresses is at Sr. No. 3 and there are two candidates above him. Moreover, he has not spelled out how the vacancies have been miscalculated. Promotion of answering respondents has been made as per rules and instructions and there is no illegality and infirmity.
8. It has further been stated that the respondents No. 4 & 5 belong to Master Category and the applicant has no right to claim promotion in that category as the applicant belongs to Language category. In the Language category, there are two persons senior to him, namely, Mrs. Baljeet Kaur and Smt. Kamlesh Kumari and they would be entitled for promotion if any additional post is sanctioned while the applicant would not automatically be considered for promotion. Hence, he cannot challenge the promotion made from the category of Language teachers. Besides prescribing the percentage of the posts that are to go to different categories is the prerogative of the administrative authorities which cannot be challenged by an employee such as the applicant who is far junior in the language teacher category.
9. It has further been stated that 3% posts are reserved for physically handicapped persons in promotions for A, B, C and D category, meaning thereby if there are 100 posts, the posts reserved for physically handicapped will be such as 1 to 33 = 1 post, 34 to 66 = 2 posts and 67 to 100 = 3 posts. First available post from the block of 1-33 is required to go to the physically handicapped candidate. In case of unsuitability factor, 2nd available post is reserved for physically handicapped candidate. Total posts of Headmasters/Headmistresses in UT Education Department are 45 out of which 80% are to be filled by promotion and 20% by deputation. Thus, 36 posts are divided between general Masters/Mistresses and language Masters/Mistresses (TGTs) on the basis of ratio i.e. 4 : 1. The ratio is determined by the department. Out of 45 sanctioned posts of Headmasters/Headmistresses, only two posts are filled from among handicapped persons as per the roster system and notification issued from time to time by Government of India and the UT Chandigarh Administration. Two posts reserved for disabled persons are supposed to fill up on the basis of seniority of handicapped persons. Dr. Vinod Kumar Sharma was senior most candidate among physically handicapped persons in both cadres i.e. language Master/Mistress and General Master/Mistress. Therefore, first available posting of Headmaster went to Mr. Devender Singh, Fine Arts Master in General Master Cadre as per the guidelines of roster system and notification issued from time to time in this regard. Even if the calculation is made on the basis of 7 or 9 posts determined for language cadre, one post of Headmaster goes to Dr. Vinod Kumar Sharma, being senior most physically handicapped candidate among both cadres i.e. language master/mistress and General Master/mistress. Thus, there is no illegality in the action of the official respondents and promotion of answering respondents.
10. Affidavit was filed on behalf of the respondents No. 1 & 2 on 20.2.2015 wherein it has been stated as follows:-
1. ......................................
2. ..................... there are total 45 sanctioned posts of Headmasters / Headmistresses in the Education Department, U.T., Chandigarh in the pay scale of Rs. 10300-34800 + 5400 Grade Pay. These posts are being filled up in accordance with the Chandigarh Education Service (School Cadre) (Group C) Recruitment Rules, 1991. Out of 45 posts 9 posts (20%) are to be filled up on deputation and 36 posts (80%) are to be filled by way of promotion from amongst Masters/ Mistresses & Other TGTs (Sanskrit, Hindi and Punjabi) teachers on the basis of Joint Seniority from two feeder cadres according to ratio to be determined on 1st January each year. The said provision in the 1991 Rules is enabling and not mandatory in nature. If necessary said ratio may be reviewed on 1st January each year. It does not mean that it is compulsorily to be so reviewed each year. The ratio is to be fixed on the basis of inter-se cadre strength of the two feeder cadres. Admittedly no new posts had been created between 2003 and 2014. Therefore there arose no need to review the ratio 4 : 1 fixed in 2003, till 2014.
3. That vide order No. DPI-UT-S1-11(47)2001 dated 21.2.2003 (Annexure R-2), the Respondents has fixed the ratio of 4:1 between Masters/ Mistresses and other TGT (Sanskrit, Hindi & Punjabi) for their promotion to the post of Headmasters/ Headmistresses subject to its revision as per Rules of 1991. According to this ratio of 4:1, out of 36 promotional posts of Headmasters, 29 were to be filled-up from Masters/ Mistresses and 7 posts from Language Masters/ Mistresses (i.e. TGT Sanskrit, Hindi & Punjabi).
4. That admittedly the applicant had never challenged the ratio between Masters/Mistresses and other TGT (Sanskrit, Hindi & Punjabi) for their promotion to the post of Headmasters/Headmistresses.
5. That now after the creation of 683 posts of Masters/ Language Masters in 2014, the ratio of 4:1 between Masters/ Mistresses and other TGT (Sanskrit, Hindi & Punjabi) for their promotion to the post of Headmasters/ Headmistresses has been re-fixed to 3:1 vide order No. 203-DPI-UT-S-11(13)2013 dated 5.2.2015.
6. That after the re-fixation of ratio of 3:1 between Masters/ Mistresses and Language Masters/ Mistresses for their promotion to the post of Headmasters/ Headmistresses, out of 36 promotional posts of Headmasters, 27 are to be filled-up from Masters/ Mistresses and 9 posts from Language Masters/ Mistresses (i.e. TGT Sanskrit, Hindi & Punjabi).
7. That in respect of Language Masters/ Mistresses 7 posts of Headmasters/ Headmistress have been filed-up and now to fill-up the 2 more posts, the cases of Language Masters/Mistresses are to be considered on the basis of their Seniority.
8. As mentioned in the details of Agenda (Annexure A-4) the applicant falls at Sty. No.4 and two persons senior to him (i.e. Mrs. Baljit Kaur, Punjabi Mistress, Sty. No.2 & Mrs. Kamlesh Kumari, Hindi Mistress, Sty. No.3) are to be promoted prior to the applicant. Rebuttal was also filed in this regard by the counsel for the applicant.
11. Arguments advanced by learned counsel for the parties were heard. Learned counsel for the applicant narrated the background of the matter and stated that the ratio of 4 : 1 for promotion from the category of Masters/Mistresses and Language Headmasters/Headmistresses had been arbitrarily fixed. This ratio was required to be reviewed every year and promotions were to take place accordingly, but this had not been do so far. He also stated that the persons with disabilities were entitled to reservation of 3% in promotion and this was to be trifurcated amongst the hearing handicapped, visually handicapped and the orthopedically handicapped. Since there were only 45 posts of Headmasters/Headmistresses, at best, not even one post could be kept for orthopaedically handicapped while the respondents had promoted two persons from this category. He stated that the respondents No. 3, 4 & 5 had encroached on the promotion vacancies for the Language teacher category. The applicant was at Sr. No. 2 of the seniority list of language teachers and hence was entitled for promotion if the promotions allowed to the respondents No. 3, 4 & 5 were set aside.
12. Learned counsel for the respondents No. 1 & 2 stated that since no additional posts of teachers had been sanctioned since 2003, there was no reason to review the ratio of 4 : 1 fixed at tht time. Recently, the additional posts of teachers had been sanctioned and the ratio had been fixed as 3 : 1, but this would have prospective effect. He also clarified that ratio was fixed on the basis of cadre strength and not on the basis of number of filled posts as was being claimed by the learned counsel for the applicant.
13. Learned counsel for respondents No. 3, 4 & 5 stated that respondent no. 3 was the senior most physically handicapped person in the category of language teacher and since promotion was to be carried out keeping in view the roster point and roster point was earmarked for the physically handicapped category, respondent No. 3 had been rightly promoted against this reserved vacancy. He further stated that respondents No. 4 & 5 were in a category different from the applicant and the applicant could not impugn their promotions as he himself had to be promoted from the Language teacher category. Learned counsel also stated that the applicant was not the senior most person in the Language category. There were two persons senior to him and even if the additional posts did become available, these persons had to be considered prior to the consideration of the applicant for promotion. These two persons had not impugned the selection of 2012 and the applicants OA appeared to be of the nature of a PIL.
14. We have given our thoughtful consideration to the matter keeping in view the pleadings of the parties, the material on record and the arguments advanced by the learned counsel. Since the ratio of 4 : 1 was fixed in 2003 by the Education Department of Chandigarh Administration and no posts of teachers were added between 2003 and 2013, there was no reason to change this ratio. In any case, fixation of the ratio is an administrative decision and appears to be based on the rationale of the cadre strength of the two categories to be considered for promotion to the post of Headmasters/Headmistresses. The impugned promotion order is of 2012. Hence, there is no merit in the claim of the applicant that this ratio had been wrongly fixed and hence, excess promotions had been allowed to the Masters/Mistresses category vis-`-vis the Language teacher category.
15. So far as the position of the private respondents is concerned, it is quite clear that respondent No. 3 was promoted from the physically handicapped category as per the roster points falling to this category. Respondents No. 4 & 5 are from the category of Masters/Mistresses and the applicant cannot have any claim against them once it is decided that the ratio of 4 : 1 fixed in 2003 was valid. We note that additional posts of teachers have been sanctioned in 2014 and the ratio has been revised in 2015 to 3 : 1, thus improving the chances of the applicant for promotion against the Language teacher category.
16. Keeping in view the above discussion, the OA is rejected. No costs.
(RAJWANT SANDHU)
MEMBER(A)
(DR. BRAHM A.AGRAWAL)
MEMBER(J)
Dated: 10 .04 .2015
ND*