Punjab-Haryana High Court
Punjab& Haryana Highcourt vs Trade on 24 April, 2014
Author: Rajesh Bindal
Bench: Rajesh Bindal
CWP No. 4274 of 2011 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP No. 4274 of 2011 (O&M)
Date of decision: 24.4.2014
Nanak Chand
PUNJAB& HARYANA HIGHCOURT
.. Petitioner
v.
State of Punjab and others
.. Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL
Present: Mr. Surmukh Singh, Mr. S. K. Rattan and
Mr. Madhav Pokhrel, Advocates for the petitioner(s).
Ms. Sudeepti Sharma, Deputy Advocate General, Punjab.
Rajesh Bindal J.
Compliance report by way of affidavit of Sanjay Kumar,
Principal Secretary to Government of Punjab, Department of General
Administration and Coordination dated 23.4.2014 and additional affidavit
of Dr. Kamal Kumar, Director of Public Instruction (Secondary Education),
Punjab filed in court, are taken on record.
This order will dispose of CWP Nos. 4274 and 24106 of 2011
and 9974 of 2012, as common questions of law and facts are involved.
However, the facts have been extracted from CWP No. 4274 of
2011.
The petitioner herein is working as Workshop Attendant and is
seeking promotion to the post of Social Study Master. For the purpose,
reliance has been placed upon the instructions dated 25.4.1972 and
26.9.2001. A reference has also been made to an earlier order passed by the
Kumar Manoj
2014.05.01 15:06
I attest to the accuracy and
integrity of this document
CWP No. 4274 of 2011 [2]
authorities, whereby promotion to similarly situated employees had been
given.
It is not in dispute that in terms of the Punjab State Education
Class III (School Cadre) Service Rules, 1978 (for short, 'the Rules'),
Workshop Attendant is not a feeder cadre for promotion to the post of
Master. In the absence thereof, no direction can be issued to the State to
consider and promote the petitioner to the post of Master. The instructions
Ems' issued by the Government, which are contrary to the Rules, do not
Ce supersede the statutory provisions of the Rules. The same are extracted
0 below:
(1) APPENDIX B
Sr. No. Designation of posts Minimum qualifications Method of recruitment
and teaching experience Direct Promotion
appointment
xx xx xx
CE xx xx
3(1)(a) to (f) xx
Z
L
ICC (g) Social Studies B.A. with subject combination Seventy Twenty
on Master/Mistress as approved by Government five five per
M from time to time with B.T. per cent cent
<or B.Ed. i) Fifteen
OR per cent
r Senior Basic Trained from trained
graduate
oes (including service of D.P.Ed.
and B.P.Ed. as Master/ amongst
OD Mistress with at least three JBT or ETT;
years actual teaching experience) and
<
..3 ii) Ten per
cent from
Z trained
= graduate
Q. from
amongst the
classical
and
vernacular
teachers.
xz xx xx"
It has been stated in the affidavit dated 24.7.2013 filed by Roop
Lal Roop, District Education Officer (SE), Kapurthala that the Rules were
amended vide notification dated 8.7.1995, which provided for promotional
avenues to the Workshop Attendants. The case of the petitioner can be
considered for promotion to the promotional post, as mentioned in the
11/ amended Rules in terms of the qualification and experience required.
Kumar Manoj
2014.05.01 15:06
I attest to the accuracy and
integrity of this document
CWP No. 4274 of 2011 [3]
Twenty-five per cent each of the posts of Work Experience Teacher,
Vocational Teacher (Carpentry), Vocation Teacher Motor Mechanical and
Vocational Teacher (Radio Mechanic) have been reserved to be filled by
way of promotion from Workshop Attendants having requisite qualification
and experience. The relevant Rules are extracted below:
APPENDIX B
Sr. No. Designation of Minimum qualifications Method of recruitment
PUNJAB& HARYANAHIGHCOURT
posts and teaching experience Direct Promotion
appointment
1 to 8 (i) xx xx xx
(ii) Work Experience Essential (i) Matric (ii) Seventy-five Twenty five per
Teachers Two years certificate per cent. cent of posts from
course from ITI or amongst workshop
National Council of attendants who
Vocational Training fulfill the
(NCVT) or National requisite
Apprenticeship Course qualification.
(NAC) in Radio and T.V.
Mechanic or +2 Vocational
pass in R&M of Radio and
TV Mechanical, Electrical
Furniture Making trade Course
from recognised State Board
of Education. Preferential-
Three years teaching/Practical
working experience in the
concerned trade.
(iii) Vocational Essential-(i) Matric (ii) Seventy-five Twenty five per
Teacher (Carpentry) Certificate course from per cent cent of posts from
ITI-National Council of amongst workshop
Vocational Training (NCVT)/ attendants who
National Apprenticeship fulfill the
Course (NAC) in carpentry requisite
trade or +2 vocational pass qualification.
in furniture making and
designing from any recognised
State Board:
Preferential-(iii) Three year
teaching/practical working
experience in the concerned
trade.
(i) Vocational Essential: (i) Matric (ii) Seventy-five Twenty five per
Teacher (Motor certificate course in motor per cent cent of posts from
Mechanical) mechanic from ITI amongst workshop
National Council of Vocational attendants who
Training (NCVT)/National fulfill the
apprenticeship course (NAC) requisite
or +2 vocational pass in qualification.
auto engg. tech. trade from
State Board of Education.
Preferential: Three years
teaching/practical experience
in the concerned trade.
Kumar Manoj
2014.05.01 15:06
I attest to the accuracy and
integrity of this document
-
• CWP No. 4274 of 2011 [4]
(v) Vocational Essential: (i) Matric (ii) Seventy-five Twenty five per Teacher Certificate course in Radio per cent. cent of posts from (Radio Mech.) & T.V. Mechanic from amongst workshop ITI/National Council of attendants who vocational Training (NCVT)/ fulfill the National apprenticeship requisite Course (NAC) or +2 qualification.
vocational pass in R&M Radio and T. V. trade from State Board of Education.
Preferential: Three years teaching/practical experience in the concerned trade.
xx xx xx"
Considering the aforesaid factual matrix, the petitioner cannot 0 claim promotion from the post of Workshop Attendant to that of Social Studies Master, hence, his claim to that extent is rejected. However, as there CD- in the Rules itself, promotional avenues have been provided to the Workshop Attendants, the case of the petitioner and all other similarly situated employees be considered for promotion as per the quota prescribed in case he fulfils the requisite qualification and have the experience.
The writ petitions are disposed of accordingly. The matter cannot be left at this stage. This Court in CWP No. cgs 4208 of 1996--Gurdeep Singh Gill v. State of Punjab and others, decided CO on 21.3.1996, while dealing with the prayer of the petitioner therein for Z promotion as Art and Craft Teacher from the post of Workshop Attendant in terms of the circular dated 25.4.1972, opined that once the State had decided CL to frame the rules in exercise of its power under the Constitution of India for recruitment of teachers, that field must be deemed to have been occupied by those rules. If the rules do not provide for promotion to the post of teachers from a particular post, it is not open to the Government to issue administrative instructions to create new source of recruitment. Any such instructions are liable to be ignored being contrary to the statutory rules. Despite this fact, even subsequent to the aforesaid judgment, the State had issued instructions dated 26.9.2001, 17.4.2003 and 2.5.2003 providing for promotional avenues to certain employees, who were not part of the feeder cadre for a post as per the statutory notified rules. On 4.2.2014, this court ib" had passed the following order:
Kumar Manoj 2014.05.01 15:06 I attest to the accuracy and integrity of this document CWP No. 4274 of 2011 [5]"The claim made by the petitioners in the present cases is regarding their promotion from Workshop Attendants to that of Masters. It is not in dispute that Punjab State Education Class III (School Cadre) Service Rules, 1978, do not provide for Workshop Attendants as a feeder cadre for the promotion to the post of Masters. Learned counsel for the petitioners have placed reliance upon instructions issued by the Government on 25.4.1972, 26.9.2001, 17.4.2003 and 2.5.2003. In fact, all these PUNJAB&HARYANAHIGH COURT instructions have been issued in contravention to the statutory rules governing the post of Masters. An identical issue has already considered by this Court in CWP No. 4208 of 1996, decided on 21.3.1996, Gurdeen Singh Gill v. State of Punjab and others, wherein it was opined that where the Government has decided to frame rules in exercise of its power under the Constitution of India or an Act for recruitment to the post of teachers that field must be deemed to have been occupied by those rules. If the rules do not provide for promotion to the post of teachers from Class IV post, it is not open to the Government to issue administrative instructions to create any source of recruitment/promotion. Instructions issued on 25.4.1972 were under consideration in the aforesaid judgment.
In view of the aforesaid Division Bench judgment of this Court, prima facie, the instructions issued subsequently providing for additional sources for promotion to the post of Masters, which is not provided for in the statutory rules, are clearly violative of law laid down by this Court.
Let Ms. Anjali Bhawra, Principal Secretary, Education, appear in person in Court, on the next date of hearing and explain why the State has issued instructions which run contrary to Rules and the law laid down by this Court."
In the affidavit of Dr. Kamal Kumar, Director of Public Instruction (Secondary Education), Punjab filed today, it is stated that instructions dated 26.9.2001 and 2.5.2003, which are in knowledge of the Kumar Manoj 2014.05.01 15:06 I attest to the accuracy and integrity of this document CWP No. 4274 of 2011 [6] department, have been withdrawn with immediate effect vide letter dated 6.3.2014. It is further stated that vide letter dated 22.4.2014, it has been decided that till such time necessary provisions are made in the service rules, no promotion should be made keeping in view the instructions issued. Further, it is stated that efforts are being made to trace out other instructions, which have not been included in the service rules. As and when these come to their notice, the same shall be withdrawn.
In the affidavit of Sanjay Kumar, Principal Secretary to PUNJAB&HARYANA HIGH COURT Government of Punjab, Department of General Administration and Coordination, which has been filed today, it is stated that instructions have been issued to all the departments concerned on 22.4.2014 to the following effect:
"3. That vide the above mention instructions dated 22.4.2014 (R-1) all the concerned have been instructed as under:
1. That it is brought to your notice that all the instructions/ circulars issued till date which are contrary to the statutory Rules in Departments should not be implemented.
2. That it should be brought to the notice of all the concerned officers/officials so that all the instructions/ circulars issued till date which are contrary to statutory Rules be withdrawn.
3. That in future, if any instruction/circular is to be issued that should be in accordance with the law."
Be that as it may, no doubt, the aforesaid two affidavits have been filed on behalf of the State, but still the fact remains that despite specific judgment pertaining to the Education Department being there dealing with the issue that no promotion should be made on the basis of administrative instructions if the statutory rules do not provide for such a promotion, still the instructions were issued on 26.9.2001, 17.4.2003 and 2.5.2003. The same has not only resulted in creating avoidable litigation but shows conduct of the officer issuing instructions that he has no respect for the judgment of this court. The action of the officer concerned is prima fade contemptuous.
Kumar Manoj 2014.05.01 15:06 I attest to the accuracy and integrity of this document CWP No. 4274 of 2011 [7]Learned counsel for the State seeks time to apprise the court about the officer, who had approved issuance of these instructions so as to proceed against him in accordance with law.
It is directed that in future, if any instructions are to be issued, the same shall be first got vetted from Law Department, which shall specifically deal with and mention in the instructions the provisions in the statutory Rules, vis-a-vis instructions. PUNJAB&HARYANAHIGHCOURT The cases be listed for the purpose on 1.5.2014. Copy of the order be sent to Chief Secretaries and Legal Remembrancers of Punjab and Haryana.
(Raj es Bmdal) Judge 24.4.2014 mk (Refer to Reporter) Kumar Manoj 2014.05.01 15:06 I attest to the accuracy and integrity of this document