Chattisgarh High Court
(Deleted) Pradeep Chandra Bhoi vs The Commissioner on 20 December, 2023
Author: Rajani Dubey
Bench: Rajani Dubey
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Order Reserved on : 26/09/2023
Order passed on : 20/12/2023
WPS No. 4503 of 2010
1. Smt. Indira Choubey, W/o Shri Rajesh Choubey, aged about 47
years, Upper Division Teacher, Saraswati Girls Higher
Secondary School, Nayapara, Raipur, R/o D-408, Sunder Nagar,
Raipur, Distt. Raipur (CG)
2. Manoj Bongilwar S/o Late Shri HR Bongilwar, aged about 43
years, Upper Division Teacher, Saraswati Girls Higher
Secondary School, Nayapara, Raipur, R/o Near Durga Mata
Mandir, Netaji Chowk, New Shanti Nagar, Raipur (CG)
---- Petitioners
Versus
1. The Commissioner, Municipal Corporation, Raipur (CG)
2. The Deputy Commissioner, Education, Municipal Corporation,
Raipur (CG)
3. The Office-In-Charge, Administration of General Department,
Municipal Corporation, Raipur (CG)
4. The Education Officer, Municipal Corporation, Raipur (CG)
5. The Mayor, Municipal Corporation, Raipur (CG)
6. Smt. Urwashi Chaturvedi, W/o Shri Vinod Kumar Chaturvedi,
aged about 55 years, Occupation - Lecturer, Economics, Acting
Principal, Saraswati Girls Higher Secondary School, Nayapara,
Raipur (CG).
7. Shri Sitaram Pandey, S/o Late Sundarlal Pandey, aged about 63
years, Lecturer, Sanskrit, near Durga Mandir, Sabzi Bazaar
Road, Telibandha, Raipur (CG)
8. Shri Sudarshan Jain S/o Shri Bisan Chand Jain, aged about 52
years, Lecturer, Commerce, R/o near Gopal Mandir, Sadar
2
Bazar, Raipur (CG)
9. Dr. Arvind Bagh, S/o Ramchandra Vinayak Bagh, aged about 54
years, Acting Principal, Municipal Corporation Higher Secondary
School, Khamtarai, Raipur (CG)
10. Arun Kashyap, S/o Late KB Kashyap, aged about 52 years,
Lecturer, Commerce, BP Pujari Hr. Sec. School, Raipur (CG)
11. Murlidhar Sahu, S/o Shri Khushal Ram Sahu, aged about 54
years, Lecturer, Commerce, Ramdayal Tiwari Hr. Sec. School,
Raipur (CG)
12. Devlal Soni S/o Nanku Prasad Soni, aged about 54 years,
Lecturer, History, Nivedita Girls Higher Secondary School,
Raipur (CG)
13. Ku. Kiran Tiwari, aged about 54 years, Lecturer, Political
Science, Nivedita Girls Higher Secondary School, Raipur (CG)
14. Smt. Jakiya Shaheed, W/o Late Shaheed Khan, aged about 53
years, Lecturer, Political Science, Naveen Saraswati Girls Higher
Secondary School, Purani Basti, Raipur (CG)
15. Smt. Neela V. Bhandari, W/o Shri Bhandari, aged about 54
years, Lecturer, Home Science, Naveen Saraswati Girls Higher
Secondary School, Purani Basti, Raipur (CG)
---- Respondents
For Petitioners : Mr. Rajat Agrawal, Advocate.
For Respondents No. : Mr. R.S. Baghel, Advocates.
1 to 5
For other respondents : None though served.
Hon'ble Smt. Justice Rajani Dubey, J
CAV ORDER
This petition has been filed by the petitioners under Article 226 of the Constitution of India against the proceedings of the Departmental Promotion Committee dated 7.7.2008 (Annexure P/1) and also the 3 order dated 3.9.2008 (Annexure P/2) passed by the Commissioner, Municipal Corporation, Raipur whereby respondents No. 6 to 15 have been promoted contrary to the set up and sanctioned posts.
02. Brief facts of the case, as mentioned in the writ petition, are that the petitioners No. 1 & 2 were initially appointed on 25.11.1985 and 18.1.1989 respectively on ad hoc basis and thereafter, their services were regularized on the post of Upper Division Teacher on 21.9.1993 by the Commissioner, Municipal Corporation, Raipur vide Annexure P/3. Out of total 13 school run by the Municipal Corporation, Raipur, 07 schools are grand-in-aid school namely MR Sapre Higher Secondary School, Pandit Ramdayal Tiwari Higher Secondary School, Shahid Smarak Higher Secondary School, BP Purari Higher Secondary School, Nivedita Girls Higher Secondary School, Saraswati Girls Higher Secondary School and Naveen Saraswati Girls Higher Secondary School. As per the set up, in these 13 school there are only two faculties i.e. Arts and Science and there would be maximum 6 Lecturers, 3 of Arts and 3 of Science. There were 39 vacancies declared for promotion from the post of Upper Division Teacher (UDG) to the post of Lecture and as per set up, 50% ought to have been from Arts faculty and 50% from the Science faculty. As such, 19 UDT from Arts faculty and 20 UDT from Science faculty ought to have been promoted. Although as per the old set up there is no post for Commerce faculty, but the respondent authorities have promoted four persons from Commerce faculty out of no sanctioned post and reserved 24 posts for Arts faculty, although ought to have reserved 19 4 posts and promoted 20 persons whereas only 8 persons from Science faculty have been promoted, although 20 posts ought to have been reserved for Science faculty, but no teacher is available in the respondent department as scheduled caste and scheduled tribe, therefore, total 32 UDT have been promoted out of total 39 sanctioned post.
As per the circular, since there is no set up for Commerce faculty for the post of Lecturer, the UDT of Commerce faculty will teach in the Higher Secondary School but would not be promoted vide Annexure P/6. Further, in violation of the set up, they have promoted UDT to the post of Lecturer of Sanskrit and Economics but despite there being need of Lecturer of Mathematics and Physics, they have not promoted the UDT for the said post. The petitioners made various representations against the said act of the respondent authorities but of no avail. Though the petitioners are eligible for being promoted to the post of Lecturer in the respective subjects but the respondent authorities in connivance with the private respondents deprived them of their promotion and promoted respondents No. 6 to 15 contrary to the set up. Hence this petition for the following reliefs:
"10.1 That this Hon'ble Court may kindly be pleased to call the entire records pertaining to the case of the petitioner.
10.2 That this Hon'ble Court may kindly be pleased to quash the impugned proceedings of Departmental Promotion Committee dated 07.07.2008 5 (Annexure P/1) and the orders dated 03.09.2008 passed by Commissioner, Municipal Corporation, Raipur (Annexure P/2) and further be pleased to direct the respondents to conduct the Departmental Promotion Committee as per the old set-up by considering to promote 19 posts for Arts and 20 of Science subject and further considered the petitioners in the D.P.C. to be promoted to the post of Lecturer.
10.3 Any appropriate writ, direction or order may also kindly be passed in favour of the petitioner, which this Hon'ble Court deems fit in the circumstances of the case."
03. Learned counsel for the petitioners submits that the impugned recommendation of the DPC dated 7.7.2008 and impugned order dated 3.9.2008 are unreasonable, unwarranted, passed with malafide intention and therefore, liable to be quashed. As per the applicable set up of the respondent corporation, on the total sanctioned post of Lecturer, promotion ought to have been made 50% from the Arts faculty and 50% from the Science faculty but the respondent authorities have promoted 20 employees from Arts and only 8 from Science faculty and also promoted 4 employees from Commerce faculty to accommodate the UDT of their own choice in violation of the set up. If the Lecturers of Sanskrit and Economics faculty are allowed to teach Science and Maths subjects, it will ruin the future prospects of the students.
04. It has been further argued that respondent No.12 is of Arts 6 faculty and was also appointed as Assistant Superintendent in the process of DPC and respondent No.12 with malafide intention increased the post of Arts faculty, so that he could be promoted. As per the letter dated 10.3.2008 the Dy. Commissioner has informed that Sanskrit and Economics are not being taught in Nivedita Girls Higher Secondary School, Raipur and further vide letter dated 30.9.2009 it was informed to the petitioners that there is no Class 11th and 12th student of Economics and Sanskrit since 2006 till date. As per letter dated 20.8.2007 of the Education Officer, Municipal Corporation, Raipur, prior to new set up, there were total 37 sanctioned posts of Lecturer of Science and Arts faculty only. Though the petitioners submitted several applications before the respondent authorities in this regard, but no satisfactory reply was given by them. In view of above submission, the impugned DPC proceedings and the impugned promotion order dated 3.9.2008 are liable to be set aside and the petitioners be granted the reliefs sought for.
Reliance has been placed on the decisions in the matter of Union of India Vs. N. Chandrasekharan and others, (1998) 3 SCC 694; Badrinath Vs. Govt. Of Tamil Nadu, (2000) 8 SCC 395; Union Public Service Commission Vs. LP Tiwari, (2006) 12 SCC 317; Chandra Prakash Goyal Vs. State of MP and others, 2016 SCC OnLine MP 7687 and Imtiyaz Ali Vs. State of UP and others, 2017(5) ALJ 403.
05. On the other hand, learned counsel appearing for respondents 7 No. 1 to 4 vehemently opposes the submission of the petitioners and submits that the post of Lecturer is to be filled up 100% on the basis of promotion. The State Government in its power under Section 58 of the Municipal Corporation Act, 1956 vide letter dated 21.8.2006 increased the strength of the post of Lecturer from 37 to 39 and thereafter the procedure of promotion was initiated. In the schools run by the Municipal Corporation, Arts, Science, Commerce and Home Science subjects are taught. For the purpose of promotion to the post of Lecturer (Commerce), sanction was obtained from the State Government for the schools namely Madhav Rao Sapre School, RD Tiwari School, Shahid Smarak School for the year 1981-82 and for BP Pujari Higher Secondary School for the year 1982-83 and thereafter, promotions were made. After some time, the Under Secretary, Govt. of CG, Urban Administration & Development Department vide letter dated 21.8.2006, abolished all the previous posts and sanction was given for 39 posts. After sanction of 39 posts, the procedure prescribed is that recognition for promotion was to be sent by the aforesaid seven schools to the District Education Officer, who, in turn, sent it to the Chhattisgarh Madhyamik Shiksha Mandal (in short "CGMSM") and promotions were to be made in each school on the basis of recognition granted by CGMSM which was again based on the subjects which were being taught and with regard to which, examinations were to be conducted. List of recognition granted by CGMSM for each of the seven schools is annexed as Annexure R-1-2. On perusal of the recognition granted by CGMSM for each school, it would be evident 8 that promotions have been granted in the said schools only for those subjects which were given recognition by CGMSM as has been mentioned in para 11 of the Reply. Therefore, promotions to the sanctioned 39 posts of Lecturer were proposed to be made subject- wise which would be evident from the table mentioned in para 11 of the Reply. Out of said 39 posts to which promotions were proposed to be made in the DPC, promotions were made only on 32 posts as in the remaining 7 posts, promotions were to be made as per roster and these posts were to be filled up from the persons from reserved category. Hence 7 posts are vacant and would be filled up from the candidates of reserved category.
06. It is further argued that as per Notification dated 24.1.2008 (Annexure R-1-3), the criteria for promotion has been detailed. The post of Lecturer is a Class-III post and from perusal of Rule 10(4)(a), it would be evident that the criteria adopted for promotion is seniority- subject-fitness-cum-merit. Perusal of the proceedings of DPC (Annexure R-1-4), clearly indicates the proceedings of the Mayor-in- Council for granting promotion for the post of Lecturer. It is contended that the main objection of the petitioners is that although there is need of Lecturer of Mathematics and Physics but promotions have been given to the persons belonging to Arts faculty and the petitioners state that out of 39 vacant post of Lecturer, on 20 post promotion ought to have been given to the teachers of Science faculty and on remaining 19 posts to the teachers of Arts faculty. However, here the petitioners are highly misconceived and basing their calculations on the premise 9 that 50% promotion from Arts and 50% from Science faculty is to be given whereas the same is wholly inapplicable and unprovided for as the same is applicable only in case of recruitment and not for promotion. In fact, promotions are to be made only on the basis of recognition for particular subject for each school given by CGMSM as has been stated above.
07. So far as contention of the petitioners that the respondent authorities have promoted four teachers from Commerce faculty is concerned, the same is done on the basis of sanction accorded by the State previously as would be evident from the details given in para 11 of the Reply and furthermore, promotions from the post of UDT to Lecturer of Commerce faculty were previously also made. Hence there is no basis or substance in the contention of the petitioners that no person from Commerce faculty can be promoted as Lecturer. For 39 posts of Lecturer sanction was granted, which were to be filled up 100% on the basis of promotion. The said 39 posts of Lecturer were divided in five faculties as has been described in para 16 of the Reply.
It has been further submitted that seven schools of Municipal Corporation which are in controversy in the instant petition are autonomous and semi-government schools and the Municipal Corporation has the jurisdiction and autonomy to bifurcate the posts in which promotions are to be made on language basis after obtaining recognition every year and the said system has been adhered to scrupulously. So, the entire petition is baseless and as such, liable to 10 be dismissed.
08. In their Rejoinder, the petitioners have stated that the Deputy Director, Directorate of Public Instructions, Raipur vide letter dated 30.12.2009 (Annexure P/25) answered the query that promotion rules relating to autonomous body are not with the directorate and therefore, Annexure R-1-1 filed by the respondents No. 1 to 5 is itself controversial. Thus, it is clear that if there is no such set up for Commerce faculty, then how promotion can be made by the respondent authorities to the post of Lecturer from the UDT. Hence the promotion made to the post of Lecturer from Commerce faculty is itself illegal. The respondents have not filed a single document to show that there was sanctioned set up for Commerce faculty for the post of Lecturer. Annexure P/26 is the letter dated 9.11.2010 which goes to show that the set up is not created by CGMSM and recognition of the subject is only given.
09. No one appears on behalf of respondents No.6 to 15 despite service of notice.
10. Heard learned counsel for the parties and perused the material available on record.
11. It is an admitted position in this case that the petitioners have been working since 1985 and 1989 on ad hoc basis and thereafter, their services were regularized on the post of UDT on 21.9.1993 by the Commissioner, Municipal Corporation, Raipur vide Annexure P/3. It is 11 also not in dispute that respondent No.1 to 5 promoted the other teachers whereas the petitioners were denied promotion on ground of government circulars as mentioned above and recognition of subjects by CGMSM. As per the respondents, for the purpose of promotion to the post of Lecturer, the criteria mentioned in the rules has been duly followed and according to the assessment made by DPC, promotions were made after following the roster. The respondent authorities have filed minutes of the meeting. According to them, the post of Lecturer was classified on the basis of recognition for particular subject for each school.
12. The petitioners with their Rejoinder have filed the documents of Annexures P/25 and P/26. Annexure P/26 is the letter dated 9.11.2010 issued by the Public Information Officer, CGMSM, Raipur, the relevant portion of which reads as under:
"laLFkk es a mPp Js.kh f'k{kd ls O;k[;krk in ij inksUufr gsrq e.My )kjk lsVvi rS;kj ugha fd;k tkrk gS] u gh vkns'k tkjh fd;k tkrk gSA"
13. The Hon'ble Supreme Court in the matter of Badrinath (supra) has observed in paras 58 and 79 of its judgment as under:
"58. From the above judgments, the following principles can be summarised:
(1) Under Article 16 of the Constitution, right to be 'considered' for promotion is a fundamental right. It is not the mere 'consideration' for promotion that is important but the consideration must be 'fair' according to established 12 principles governing service jurisprudence. (2) Courts will not interfere with assessment made by Departmental Promotion Committees unless the aggrieved officer establishes that the non-promotion was bad according to Wednesbury Principles or it was mala fides. (3) Adverse remarks of an officer for the entire period of service can be taken into consideration while promoting an officer or while passing an order of compulsory retirement.
But the weight which must be attached to the adverse remarks depends upon certain sound principles of fairness. (4) If the adverse remarks relate to a distant past and relate to remarks such as his not putting his maximum effort or so on, then those remarks cannot be given weight after a long distance of time, particularly if there are no such remarks during the period before his promotion. This is the position even in cases of compulsory retirement.
(5) If the adverse remarks relate to a period prior to an earlier promotion they must be treated as having lost their sting and as weak material, subject however to the rider that if they related to dishonesty or lack of integrity they can be considered to have not lost their strength fully so as to be ignored altogether.
(6) Uncommunicated adverse remarks could be relied upon even if no opportunity was given to represent against them before an order of compulsory retirement is passed.
79. It may be noticed that where a statute or a statutory rule constitutes a designated authority to take administrative or quasi-judicial decisions and where the person concerned is disqualified to take a decision on the principle of likelihood of bias, then the law (in certain circumstances explained below) makes an exception in the situation and the said person is entitled to take a decision 13 notwithstanding his disqualification for otherwise no decision can be taken by anybody on the issue and public interest will suffer. But the position in the present case is that there is no statute or statutory rule compelling the Chief Secretary to be a member of the Screening Committee. If the Committee is constituted under an administrative order and a member is disqualified in a given situation vis-a-vis a particular candidate whose promotion is in question, there can be no difficulty in his 'recusing' himself and requesting another senior officer to be substituted in his place in the Committee. Alternatively, when there are three members in the Committee, the disqualified member could leave it to the other two - to take a decision. In case, however, they differ, then the authority which constituted the Committee, could be requested to nominate a third member. These principles are well settled and we shall refer to them."
14. This Court in the matter of Hiran Deo Prasad (supra) observed in paras 49 and 53 of its order as under:
"49. As per pleadings made by respondent private institution that the Institution is receiving 100% aid from respondent No.1, therefore, the Institution has followed the directions issued by respondent No.1 for filling up the posts. Plea taken by respondent State that the posts of Assistant Teacher, Teacher & Lecturer have been made 'dying cadre posts', is not correct, in fact it is only that the School Education Department of the State Government vide order dated 20.1.1998 has stopped appointment on the posts of Assistant Teacher, Teacher & Lecturer by way of direct recruitment only which appears to be because of coming into force of the Rules of 1997 wherein the government schools coming within the territorial jurisdiction 14 of Janpad Panchayat and Zila Panchayat were handed over to the Panchayats. Respondents have also placed reliance on the proceeding of the Council-of-Ministers dated 25/28-2-2005 for conversion of post of Contract Teachers as Shiksha Karmi, issued by the Chief Secretary and from perusal of the contents of the order it would be clear that conversion of post of Contract Teacher as Shiksha Karmi is with regard to government schools situated within the State as it is mentioned further that creation of posts under the Sarva Shiksha Abhiyaan, which is a government scheme/drive for providing education to all. It deals with direction for appointment of Shiksha Karmis within the Rules of 1997 framed under the Chhattisgarh Panchayat Raj Adhiniyam, 1993 and the Rules of 1998 framed under the Municipalities Act. At the last it is mentioned, direction to be issued to the Local Bodies, which also makes it clear that these directions issued under the approval of the Council-of-Ministers do not include private educational institutions. The proceeding of the Council-of-Ministers is filed as Annexure P-19 in WP No.5050/2005. Respondents have taken a plea that posts have been sanctioned vide order dated 28.8.2002 (Annexure R6/2 to WP No.5050/2007) which specifically mentions about the permission granted for appointment of the employees including teachers on contract basis i.e. 21 sanctioned vacant posts of Teacher and 7 posts of non- teaching staff. From reading of this letter, it is clear that out of total sanctioned posts, the permission was granted to appoint contract teachers including others on vacant posts. It is not the sanction of the posts but only a permission granted to fill up the posts vide executive instructions.
53. Hon'ble Supreme Court in case of Punjab Water 15 Supply & Sewerage Board vs. Ranjodh Singh reported in (2007) 2 SCC 491 has held thus:-
"19. In the instant case, the High Court did not issue a writ of mandamus on arriving at a finding that the respondents had a legal right in relation to their claim for regularization, which it was obligated to do. It proceeded to issue the directions only on the basis of the purported policy decision adopted by the State. It failed to notice that a policy decision cannot be adopted by means of a circular letter and, as noticed herein before, even a policy decision adopted in terms of Article 162 of the Constitution of India in that behalf would be void. Any departmental letter or executive instruction cannot prevail over statutory rule and constitutional provisions. Any appointment, thus,made without following the procedure would be ultra vires."
15. Thus, in the facts and circumstances of the case, keeping in view the aforesaid decisions, set up of 39 posts of Lecturer and the promotion quota, this Court is of the opinion that the petitioners are also entitled for promotion from the date when other respondents were promoted to the post of Lecturer. Therefore, the respondents are directed to again conduct a review DPC for considering the case of the petitioners afresh for promotion in light of the rules and regulations and thereafter, promote them accordingly from the date when other respondents were promoted. The petitioners shall also be entitled for all the consequential benefits, except the monetary benefits, as per rules.
Sd/ (Rajani Dubey) Judge Khan