Punjab-Haryana High Court
Geeta Devi vs State Of Haryana And Others on 3 July, 2009
Author: Jaswant Singh
Bench: Jaswant Singh
CWP No. 21663 of 2008 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
CWP No. 21663 of 2008
Date of decision 3.7.2009
Geeta Devi ... Petitioner
Versus
State of Haryana and others ... Respondents.
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR. JUSTICE JASWANT SINGH
Present: Mr.Yash Pal Malik ,Advocate for the petitioner
Ms. Ritu Bahri, DAG Haryana for respondent nos. 1 and 2
Mr.Parveen Gupta, Advocate for respondent no.3
1. Whether Reporters of local papers may be allowed to see the judgement ?
2. To be referred to the Reporter or not ?
3. Whether the judgement should be reported in the Digest ?
M.M.KUMAR, J.
The petitioner, who is a Senior Lecturer in Mathematics, has approached this Court with a prayer for declaring the Haryana Technical Education Department (Group A) Service (Amendment) Rules, 2008 as unconstitutional which have been notified on 11.11.2008. The grievance made by the petitioner is that the explanation added by amendment in Column 4 of Appendix B referred to by Rule 7 is obnoxious and offends her right to seek promotion to the post of Head of the Department which is a promotional post from the feeder cadre of Senior Lecturer. She has also prayed for quashing order dated 19.12.2008 granting promotion to Smt. Benu Bajaj- respondent no.3 to the post of Head of Department on the ground that she is junior to the petitioner.
FACTS : Smt.Geeta Devi had acquired the qualification of M.Sc. (Maths) and is pursuing her Ph.D programme. Before her appointment on the post of Sr. Lecturer in Applied Sciences (Maths) in the respondents department she had acquired rich experience of working as a CWP No. 21663 of 2008 2 Lecturer in Government Polytechnic or Private Polytechnic Colleges. She was appointed as Lecturer in Maths at Government Polytechnic College, Sonepat on 24.8.1995 where she served till 11.11.2002. The post was declared surplus and she was relieved of her duties. Thereafter she served as a Lecturer for 1 years and 4 months at Ch. Devi Lal Memorial Engineering College, Panniwala Mota, Sirsa. She was relieved from that post on 17.12.2004. Then she applied for the post of Sr. Lecturer in Mathematics through Haryana Public Service Commission. On the basis of her experience of over 8 years which was a necessary requirement for appointment as Sr. Lecturer she was selected by the Haryana Public Service Commission and appointed as such vide appointment letter dated 15.12.2004 ( P.1). She has been serving as Senior Lecturer since 18.12.2004 and has obviously acquired more than four years experience as such.
A Senior Lecturer is entitled to be considered for promotion as Head of the Department as per statutory rules known as Haryana Technical Education Department (Group A) Service Rules, 1986 (for brevity 'the Rules'). According to Rule 7, a Senior Lecturer in order to earn promotion to the post of Head of Department (Applied Sciences) is required to fulfill the qualifications as specified in Appendix B which in turn provides 12 years experience as a lecturer out of which two years must be as a Senior Lecturer. It has remained undisputed that in the seniority list, the name of the petitioner stands at serial No.3. In order to stake her claim for promotion to the post of Head of Department (Mathematics), the petitioner filed a representation through proper channel on 2.6.2008 (P.3). She claimed that she was senior-most and fulfilled all the qualifications. She also asserted that the post of Head of Department was lying vacant and CWP No. 21663 of 2008 3 therefore she was fully entitled to be considered for promotion to that post. However, the representation did not evoke any response. It is further pertinent to mention that the post of Head of Department is lying vacant earlier to June, 2008. This fact has assumed significance because the expression 'experience' used in Appendix B in item No.20 'Head of the Department in Applied Sciences" has been explained by amendment made on 11.11.2008 requiring that the term 'experience' was to mean the service rendered in the department of Technical Education Haryana after regular appointment on the post. On account of the aforesaid amendment, the claim of the petitioner has been rejected and her junior respondent no.3- Mrs. Benu Bajaj has been promoted on the post of Head of the Department in Applied Sciences (Maths). The petitioner has also asserted that respondent no.3. Benu Bajaj had been appointed on the post of Senior Lecturer on 16.1.2006 when a new post for her was created in the cadre of Senior Lecturers. According to the petitioner, all this has been done on extraneous considerations. It is in the aforesaid circumstances that the petitioner has approached this Court asserting her claim for promotion to the post of Head of the Department.
In the written statement, the broad factual matrix has not been disputed. It remains uncontroverted that the petitioner is senior to respondent no.3- Benu Bajaj in the seniority list of Senior Lecturers and her name in the gradation list (P.2) figures at serial no.3 whereas that of respondent no.3. Benu Bajaj is shown at serial No.4. It has also not been disputed that the petitioner has worked on the post of Lecturer albeit on adhoc basis. The whole case of the respondents hinges on the amendment incorporated on 11.11.2008. It has been asserted that the petitioner did not CWP No. 21663 of 2008 4 have experience in accordance with the amended definition of term 'experience' added by explanation on 11.11.2008 and only the experience which is gained by a Lecturer during regular service was to be counted for promotion to the post of Head of the Department. The stand of the respondents becomes more pronounced from the panel of Senior Lecturers prepared in order of their seniority for consideration of various names for promotion to the post of Head of the Department, which reads as under:
Name No. of Name of Experience Experience Remarks.
of the posts incumbent to be as Lecturer as Senior
post to be considered for the in regular Lecturer in
filled promotion, in service regular
up by order to their service
promot seniority
ion
HOD i)Geeta Devi, Nil 18.12.04 to Smt.Geeta Devi
Senior Lecturer in till date = 4 has only
Mathematics, GP years experience of 4
Sonepat years after her
regular
appointment in
the Department,
hence not
eligible for
promotion due
to shortage of
requisite
1 experience.
ii) Benu Bajaj, Sr. 9.5.95 to 3.12.04 to Smt. Benu Bajaj
Lecturer in 2.12.04 9 till date 4 has completed
Mathematics, GP years 7 years requ8isite
Nilokheri months experience of 12
years out of
which 2 years as
Senior Lecturer
after her regular
appointment
hence eligible
for promotion.
Iii) Roshan Lal, 6.5.1995 to 24.2.06 to Sh.Roshan Lal
Senior Lecturer in 23.6.2006 till date = 2 has completed
Mathematics, regular basis years 9 requisite
GPW, Ambala = 10 years 9 months experience of 12
months years out of
which 2 years as
Senior Lecturer
after his regular
appointment
hence eligible
for promotion.
CWP No. 21663 of 2008 5
Accordingly it has been claimed that respondent no.3 Benu Bajaj has experience of 13 ½ years of regular service as Lecturer/ Senior Lecturer whereas the petitioner had only 4 years experience after her regular appointment as Sr. Lecturer in the respondent- Department, which has been determined as per the amended rule. It has thus been submitted that the same cannot be regarded as sufficient. It has further been asserted that on the date of making representation on 2.6.2008, the petitioner had only 10 years 8 months experience which she has gained as Lecturer in Mathematics (adhoc basis) at Govt. Polytechnic, Sonepat from 24.8.1995 to 11.11.2002 (7 years 2 months and 15 days) and of Senior Lecturer from 18.12.2004 to 2.6.2008 (3 years 5 months and 18 days). It has accordingly been claimed that she has only 10 years 8 months total experience of service on adhoc/ regular basis and in any case she did not fulfill the requirement of 12 years experience. It is thus obvious that the experience gained by the petitioner while working at Ch. Devi Lal Memorial Engineering college Panniwala Mota, Sirsa for 1 year 4 months has not been considered which would show that she had acquired more than 12 years experience even on the date of making representation. The respondents have also placed reliance on Rule 9 (2) of the Rules to argue that seniority alone cannot be the rationale basis for earning promotion and merit of a candidate is also required to be considered and that in any case no one can claim promotion as a matter of right. The respondent nos. 1 and 2 have therefore defended the promotion granted to respondent no.3. Benu Bajaj who is stated to have joined as Head of the Department in Mechtronics at Government Polytechnic, Nilokheri (R.2) on 22.11.2008.
A separate written statement has also been filed by respondent CWP No. 21663 of 2008 6 no.3. Benu Bajaj. According to the preliminary objection raised by her it has been asserted that the expression 'experience' has always been construed as experience gained by an incumbent within the department and in order to remove the ambiguity the explanation was added on 11.11.2008. According to the averments made in the written statement the amendment is the result of circular letter issued by the Chief Secretary, Government Haryana on 8.8.2007 to all the Departments asking them to amend the departmental service rules by replacing the term' experience' as 'service rendered in the Department of Technical Education' for promotion to the higher post. A copy of the circular has been placed on record as Annexure R/3/1. As a result of the circular, the amendment has been incorporated on 11.11.2008. Respondent no.3 Benu Bajaj has also asserted that she was appointed on regular basis as Lecturer w.e.f. 9.5.1995 to 2.12.2004 and thereafter she joined as Senior Lecturer on regular basis w.e.f. 3.12.2004. Accordingly she has claimed experience of working on regular basis for more than 13 years whereas regular experience of the petitioner is only of four years. RIVAL CONTENTIONS: Mr. Y.P. Malik, learned counsel for the petitioner has submitted that any vacancy which has arisen before the amendment of the rules is required to be filled up in accordance with un- amended rules. According to the learned counsel 'experience' gained by the petitioner while working as Lecturer even on adhoc basis cannot be ignored merely because amendment has been incorporated on 11.11.2008 in Appendix "B" read with Rule 7 of the rules. He has maintained that the expression 'experience' cannot be restricted in its meaning by the amendment made on 11.11.2008. Therefore it has been urged that the un- amended rules would apply and the expression 'experience' would be wide CWP No. 21663 of 2008 7 enough to include that experience which she gained while working on the post on adhoc basis which may be in other department . For the proposition that a vacancy which has to be filled up by promotion would be governed by the un-amended rules, learned counsel has placed reliance on para 9 judgement of Hon'ble the Supreme Court in the case of Y.V.Rangaiah v. J.Sreenivasa Rao (1983) 3 SCC 285.
Ms. Ritu Bahri, learned State counsel has, however, argued that the respondent state has taken a conscious decision to avoid consideration of experience gained by the candidate outside the department and accordingly amendment has been incorporated on 11.11.2008. According to her such an amendment could not be regarded as mala-fide because it would apply to a large number of other employees who are to be considered for promotion to the post of Head of Department in other disciplines, as is evident from the perusal of Appendix B. She has argued that the experience gained by the petitioner while working on adhoc basis as Lecturer cannot be taken into count nor her experience gained while working in a private college would be relevant. It has thus been submitted that the petitioner is totally ineligible for consideration for promotion to the post of Head of the Department.
Mr. Parveen Gupta, learned counsel for respondent no.3 has vehemently argued that respondent no.3 is a regularly recruited Lecturer through Public Service Commission and she has been working on regular basis w.e.f. 9.5.1995 upto 2.12.2004 and thereafter she has joined as Senior Lecturer w.e.f. 3.12.2004. According to the learned counsel it would be very harsh if her claim is to be ignored as against the claim of the petitioner who had gained her whole experience as Lecturer while working on adhoc basis. CWP No. 21663 of 2008 8 He has maintained that the petitioner has regular experience of working of only for four years as Senior Lecturer which according to the amended rules could be taken into account.
CONCLUSION: After hearing learned counsel for the parties, perusing the record with their able assistance and the rules it would first be imperative to examine the rules which are applicable. Rule 7 of the Rules specify the qualifications for appointment to any post in service i.e. Haryana Technical Education Department (Group A) Service which in turn refers to Appendix B for qualification and experience. Accordingly rule 7 of the rules alongwith relevant portion of Appendix 'B' is set out below:
"7. Qualifications.- No person shall be appointed to any post in the service, unless he is in possession of qualifications and experience specified in column 3 of Appendix B to these rules in the case of direct recruitment and those specified in column 4 of the aforesaid Appendix in the case of appointment other than by direct recruitment:
Provided that in the case of direct recruitment, the qualifications regarding experience shall be relaxable to the extent of 50% at the discretion of the Commission or any other recruiting authority in case sufficient number of candidates belonging to Scheduled Castes/ Backward Class/ Ex- servicemen and physically handicapped candidates, possessing the requisite experience, are not available to fill up the vacancies reserved for them, after recording reasons for so doing in writing."
xx xx xx xx xx xx xx CWP No. 21663 of 2008 9 APPENDIX- B Sl. Description Academic qualifications and experience, Academic No of post if any, for direct recruitment qualifications and experience, if any, for appointment other than by direct recruitment 1 2 3 4 1 to 19 xx xx xx xx xx xx Head of i) First Class Master's degree in 12 years experience Department Physics/Chemistry/ Mathematics/ English as Lecturers in in Applied from a recognized University/ Institute Applied Sciences Sciences ii) 8 years experience as Lecturer in a out of which 2 years
University or college affiliated to a as Senior Lecturer in Applied Sciences.
recognized University/ Institute;
iii) Knowledge of Hindi upto Matric 20 standard.
A perusal of the aforesaid Rule 7 read with Appendix 'B' would show that for promotion to the post of Head of the Department in Applied Sciences, 12 years experience as Lecturer in Applied Sciences is required with a further stipulation that out of those 12 years atleast two years must be spent as a Senior Lecturer. Therefore the expression 'experience' used in column 4 of Appendix B did not have any further limitation. It is further specified by adding the Explanation on 11.11.2008 at the end of column No.4 as under:
" Explanation.- The term 'experience' as used herein shall mean the service rendered in the Department of Technical Education, Haryana, after regular appointment on the post."
A perusal of the added explanation shows that the term 'experience' is to mean service rendered by a candidate in the department of Technical Education, Haryana after his appointment on regular basis on the post. In other words, the explanation has excluded any experience gained by the CWP No. 21663 of 2008 10 petitioner while working on a post other than on regular basis or in a private recognised institution.
The method of recruitment for the post of Head of the Department in Applied Sciences, however, has been provided by Rule 9(i)
(q) of the Rules. Rule 9.2 of the Rules further provides criterion to be followed for promotion. It would be necessary to read the aforementioned rule which reads as under:
"9. Method of recruitment.- (1) Recruitment to the Service shall be made-
(a) to (p) xx xx xx xx
(q) in the case of Head of Department in applied Sciences,-
ii) 75% by promotion from amongst Senior Lecturers in Applied Sciences, and
iii) 25% by direct recruitment; or
iv) by transfer or deputation of an officer already in the service of any State Government or the Government of India."
" 9(2) All promotions, unless otherwise provided, shall be made on seniority cum merit basis and seniority alone shall not give any right to such promotions."
It is thus evident that 75% of the posts of Head of the Department in Applied Science are to be filled up by promotion from amongst the Senior Lecturers and 25% by direct recruitment on the basis of seniority-cum-merit although seniority alone is not to be taken into as determinating factor. It is well settled that when any promotions are to be made on the basis of seniority cum merit, the element of seniority is to be given due consideration unless on merit the service record has been found to be so CWP No. 21663 of 2008 11 adverse which renders him useless. The meaning assigned to 'seniority
-cum- merit rules' is that given the minimum necessary merit requisite for efficiency of the service, the seniority is to be given priority although senior may be lesser meritorious than his junior. In that regard reliance may be placed on the observations made by a Constitution Bench of Hon'ble the Supreme Court in the case of State of Kerala v. M.M.Thomas (1976)2 SCC 310; M.M.Gupta v. State of Jammu and Kashmir (1982) 3 SCC 412.
In the aforesaid factual backdrop following two substantive questions of law which would arise for determination are:
(1)Whether the vacancy of Head of Department in Applied Sciences which has arisen before 11.11.2008 would be governed by the amended definition of expression 'experience' or the un-amended rules would continue to apply to it;
(2) Whether the expression 'experience' used in un-amended rules would include the experience gained while working on adhoc basis on the post of Lecturer in a Government Polytechnic College as well as in a private recognised institute.
Re. Question no. 1.
The question whether amended rules could be applied to the vacancy which has arisen before the amendment is no longer res-integra. Hon'ble the Supreme Court in the case of Y.V.Rangaiah (supra) has considered the aforesaid question as early as in 1983 and has concluded in para 9 of the judgement as under:
"9. Having heard the counsel for the parties, we find no force in CWP No. 21663 of 2008 12 either of the two contentions. Under the old rules a panel had to be prepared every year in September. Accordingly, a panel should have been prepared in the year 1976 and transfer or promotion to the post of Sub-Registrar Grade II should have been made out of that panel. In that event the petitioners in the two representation petitions who ranked higher than the respondents Nos. 3 to 15 would not have been deprived of their rights of being considered for promotion. The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of Sub-Registrar Grade II will be according to the new rules on the zonal basis and not on the Statewide basis and therefore, there was no question of challenging the new rules. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules." (emphasis added).
The afore-mentioned view has been followed and applied repeatedly by Hon'ble the Supreme Court. In the case of State of Rajasthan v. R.Dayal and others (1997) 10 SCC 419 the principles have been reiterated in para 8 of the judgement. The relevant extracts are set out below:
" ......................But the question is whether selection would be made, in the case of appointment to the vacancies which admittedly arose after the amendment of the Rules came into CWP No. 21663 of 2008 13 force, according to the amended Rules or in terms of Rule 9 read with Rules 23 and 24-A, as mentioned hereinbefore? This Court has considered the similar question in paragraph 9 of the judgment above cited. This Court has specifically laid that the vacancies which occurred prior to the amendment of the Rules would be governed by the original Rules and not by the amended Rules. Accordingly, this Court had held that posts which fell vacant prior to the amendment of the Rules would be governed by the original Rules and not the amended Rules. As a necessary corollary, the vacancies that arose subsequent to the amendment of the Rules are required to be filled in accordance with the law existing as on the date when the vacancies arose.............." (emphasis added) The principles laid down in Y.V.Rangaiah's case (supra) have further been applied and followed by Hon'ble the Supreme Court in the case of Delhi Judicial Service Association v. Delhi High Court and others (2001) 5 SCC 145 and Arjun Singh Rathore and others v. B.N.Chaturvedi and others (2007)11 SCC 605.
It is pertinent to notice that no contrary view has been cited before us and therefore we will take it a well settled principle of service jurisprudence that a vacancy which has arisen before the amendment of the Rules has to be filled up in accordance with the un-amended rules and not as per the provisions of the amended rules.
Re. Question No. 2
The second question is also not res-integra. As long as the expression 'experience' as against the word 'service' is used in the statutory CWP No. 21663 of 2008 14 rules which are applicable, the law laid down by this Court would continue to apply. It is obvious that once the unamended rules are applicable which use the expression 'experience' then the word 'experience' has to be construed. In some what similar circumstances, the expression 'experience' came up for interpretation of this Court in the case of Dr. Ravinder Pal Kaur v.State of Punjab and others 1979(2) SLR 645. In the aforesaid case, the statutory rules required teaching experience as Assistant Professor in the specialty concerned for five years. The petitioner in that case was appointed as Assistant Professor Radiology on adhoc basis. Her appointment was regularised three years later.The question before the Court was whether the experience gained by her while working on adhoc basis could be treated as 'experience' in terms of the requirement of the rules. The learned Single Judge of this Court has taken the view that there was hardly any difference so far as the teaching experience is concerned whether it is gained on adhoc appointment or on regular appointment. It was held that the teaching experience envisaged by the statutory rules was not limited to the one gained while holding appointment on regular basis under the statutory rules. Therefore the teaching experience gained by her in the Medical Colleges while working on adhoc basis is valid for the purpose of counting the requisite experience for direct appointment as Professor. Such experience could not be ignored. The aforesaid view has been followed and applied by this Court in the case of Balbir Singh Yadav and others v.State of Haryana and others 1984(1) SLR 466 and a Division Bench of this Court in the case of Dharam Singh v. State of Punjab and others 1985(1) SLR 358. Therefore, the principle which emerges from the aforesaid case law is that once an employee has gained experience of working on adhoc or regular CWP No. 21663 of 2008 15 basis then the requirement of the rule stands satisfied. It is not material whether such an experience has been gained while working on adhoc basis or on regular basis. As long as a person has earned the experience of working on teaching post like Lecturer or Senior Lecturer then such an experience cannot be ignored and on that basis the petitioner could not have been non-suited from consideration for promotion to the post of the Head of the Department. On principle and precedent both the questions have to be answered in favour of the petitioner.
When the aforesaid principles are applied to the facts of the present case it becomes obvious that on the date of consideration of her case in December, 2008 the petitioner had more than 12 years service. She also fulfilled the condition of working atleast two years on the post of Senior Lecturer. Moreover, she has been senior to respondent no.3 in the cadre of Sr. Lecturers and the principle of seniority -cum- merit is applicable as provided by Rule 9(2) of the Rules. Accordingly, it is held that the case of the petitioner is required to be considered by respondents in accordance with the unamended rules. The explanation added on 11.11.2008 would not apply to her case. It is, therefore, held that the experience gained by the petitioner on adhoc basis or in a private recognized college would count for promotion to the post of Head of the Department.
For the reasons aforementioned this petition succeeds and the same is allowed. The order of promotion issued in favour of respondent no. 3 on 22.12.2008 ( R.2) is set aside. The respondents 1 and 2 are directed to reconsider the case of the petitioner by treating her eligible as she fulfills the condition of experience of 12 years as provided in column no.4 of Appendix B attached to Rule 7 of the Rules. The needful shall be done CWP No. 21663 of 2008 16 within a period of two months from the date of receipt of copy of this order. As the promotion of respondent no.3 Benu Bajaj was given in flagrant violation of the judgement of Hon'ble the Supreme Court, we saddle respondent nos. 1 and 2 with costs of Rs. 10,000/-.
(M.M.Kumar) Judge (Jaswant Singh) 3.7.2009 Judge okg CWP No. 21663 of 2008 17 "9. Method of recruitment.- (1) Recruitment to the Service shall be made-
(a) to (p) xx xx xx xx
(q) in the case of Head of Department in applied Sciences,-
v) 75% by promotion from amongst Senior Lecturers in Applied Sciences, and
vi) 25% by direct recruitment; or
vii) by transfer or deputation of an officer already in the service of any State Government or the Government of India."