Punjab-Haryana High Court
Baljinder Kaur & Ors vs State Of Punjab & Anr on 7 May, 2010
Author: Surya Kant
Bench: Surya Kant
CWP No. 16301 of 2008. ::-1-::
IN THE HIGH COURT FOR THE STATES OF PUNJAB
AND HARYANA AT CHANDIGARH.
C.W.P. No. 16301 of 2007. [O&M]
Date of Decision: 7th May, 2010.
Baljinder Kaur & Ors. Petitioner through
Mr. T.S.Dhindsa, Advocate
Versus
State of Punjab & Anr. Respondents through
Mr. B.S.Chahal, DAG, Punjab.
Mr. Nakul Sharma, Advocate.
CORAM:
HON'BLE MR. JUSTICE SURYA KANT
HON'BLE MR. JUSTICE SHAM SUNDER
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
JUDGMENT
In this Civil Writ Petition, the petitioners seek quashing of the One-Time-Transfer Policy dated 11.07.2007 [Annexure P-8] whereby the teachers appointed under one Zila Parishad have been enabled to seek their transfer to other Zila Parishads outside their Districts.
[2]. Shorn of the details, the case set up by the petitioners is that they applied for recruitment to the post of ETT Teachers in District SAS Nagar, Mohali pursuant to an advertisement dated 26.06.2007 whereby applications for recruitment to 1569 posts of Teachers in Primary Schools under various Zila Parishads in the State of Punjab were invited. After the advertisement, the official respondents circulated a revised list of the vacancy position [Annexure P-3] wherein 63 posts of ETT teachers were shown for District SAS Nagar, Mohali. According to the petitioners is that had CWP No. 16301 of 2008. ::-2-::
the respondents made recruitment against all the 63 posts, they would have also been selected as per their merit position. However, by virtue of the impugned policy dated 11.07.2007, the respondents have permitted the teachers who are already working in other Districts to seek their transfer against the vacant posts in District Mohali and resultantly, the vacant posts have been reduced from 63 to 12 only as rest of the vacancies stand occupied by the 'transferees', thereby depriving the petitioners from appointment against the advertised posts.
[3]. What emerges from the record is that there were total 63 vacant posts in different blocks of Zila Parishad, SAS Nagar, Mohali, out of which 47 posts were in Dera Bassi block which was earlier in District Patiala. 16 posts were for Kharar and Majri blocks which were earlier in District Ropar but have now been merged with District Mohali. According to the respondents, 42 teachers sought and have been transferred against the vacant posts in Dera Bassi Block, whereas, 12 teachers applied for their transfer from Dera Bassi to other blocks of Patiala District. In this manner, 30 posts of Dera Bassi block have been filled in by way of transfer. In the same manner, 14 ETT teachers, i.e., 10 in Kharar and 4 in Majri Blocks have also been transferred to Zila Parishad, Mohali from other districts. Likewise, 9 teachers have been transferred from other Districts to Mohali district on the ground of their marriage in District Mohali but only two teachers sought their transfer outside the District Mohali. In this manner, only 12 out of 63 posts remain vacant in Zila Parishad, SAS Nagar, Mohali. The respondents have further averred that none of the petitioners figures amongst 12 selected candidates CWP No. 16301 of 2008. ::-3-::
as per their respective merit position.
[4]. Vide our order dated 12.03.2010, the Additional Deputy Commissioner-cum-Chairman, Selection Committee was directed to file an additional affidavit explaining as to whether or not the petitioners [two of whom had already been appointed] would have been amongst the selected candidates, if there were to be a selection list of 63 candidates.
[5]. In deference thereto, Mr. Iqbal Singh Brar, Additional Deputy Commissioner [Development], SAS Nagar, Mohali has filed his affidavit dated 21.04.2010 explaining that in the event of preparation of selection list for 63 posts, petitioners No. 12, 5 and 7 in the General Category and petitioners No. 3, 10 and 1 in the reserved category of Scheduled Caste would have been amongst the selected candidates. Their merit position has also been placed on record [Annexures R-2 and R-3].
[6]. There is indeed no dispute that recruitment and appointment to the posts of ETT teachers is governed by the Rules known as the Punjab Panchayati Raj Primary Teachers [Recruitment and Conditions of Service] Rules, 2006. Rule 2[e] defines "service" to mean 'Zila Parishad Service' constituted under Rule 3 of these Rules. The recruitment is to be made by the 'Selection Committee' as per its composition given in Rule 5 thereof. The Chief Executive Officer of the Zila Parishad is the Appointing Authority as provided under Rule 4 of these Rules. It would, thus, be seen that under the Scheme of the Rules, the ETT teachers constitute a District Cadre and no transfer outside the District is permissible except on the grounds mentioned in Rule 11[2] of the Rules ibid. The total posts CWP No. 16301 of 2008. ::-4-::
notified under Appendix 'A' of the rules are also sum total of the cadre strength sanctioned for all the districts in the State. [7]. The Rules further provide that a selected candidate shall be given option for his posting through counseling and all the vacancies would be filled up block-wise and within a Block in alphabetic [English] order of the villages. The Rule further provides that for a particular vacancy in a village, the vacant post would be filled up in the order of preference to be obtained from the candidates, namely, [i] the village in which school is situated; [ii] adjoining village or town; [iii] block and town contiguous with the block; [iv] adjoining blocks and contiguous towns; and [v] the district. The Rules, thus, contemplate the entire selection and appointment process confined within the territorial limits of a District, leaving no scope for a candidate to apply and compete for the vacancies outside his own District.
[8]. Keeping this factual back-drop in view, we find that the candidates belonging to District Mohali were initially entitled to compete for 63 vacancies of District Mohali. However, a substantial number of these vacancies having been filled in by transferring the candidates from outside the District, the opportunity given to the petitioners to compete and seek appointment within their own District of SAS Nagar Mohali was effectively reduced to their disadvantage. It may be mentioned here that the ETT Teachers were not transferred to District Mohali, from other districts along with their respective posts. The candidates belonging to District Mohali, thus, appear to have been seriously prejudiced due to implementation of the transfer policy in question.
CWP No. 16301 of 2008. ::-5-::
[9] However, in their counter-affidavit, the official respondents have also come up with an explanation which merits consideration. According to them the teachers who have been transferred from Patiala and Ropar districts had earlier competed for the vacant posts of Dera Bassi, Kharar and Majri Blocks which were, at that point of time, part of the Patiala and Ropar districts but have been later on merged with Mohali district. It is maintained that transfer of these teachers is in consonance with the criteria of posting laid down in the Rules ibid as the 'transferee teachers' have been brought back to their original blocks only. The afore-stated factual plea being not under challenge by the petitioners, the action of the respondents in adjusting these teachers in District Mohali can not be termed per-se illegal, rather is a step towards achieving the object of the Rules, namely, ensuring the appointment of the candidates within their own District.
[10]. In order to strike balance between the two sets of candidates, it can not be over-looked that even if the plea raised on behalf of the petitioners is accepted, yet only six of them would have made it to the selection list. Rest of the petitioners who could not be amongst the 63 selected candidates as per their merit, have no claim whatsoever. The writ petition qua them is liable to be dismissed and we order accordingly.
[11]. So far as the six petitioners who would have been in the selection-list had it been prepared for 63 posts, Mr. Chahal, learned DAG, Punjab, on instructions from the Chief Executive Officer, SAS Nagar, Mohali, states that there are sufficient vacancies available to accommodate them without disturbing the teachers, who have been CWP No. 16301 of 2008. ::-6-::
transferred from Patiala and Ropar Districts and are working for the last more than two years.
[12]. Having given our thoughtful consideration to the rival submissions, we are of the view that in addition to the six petitioners who would have figured in the selection list of 63 posts, the candidates who are higher in merit than these six petitioners are also entitled to appointment as their preferential right can not be over- looked merely because they have not approached this Court. [13]. We accordingly allow the writ petition in part and direct the respondents that petitioners No. 12, 5 and 7 [General Category] and 3, 10 and 1 [Reserved Category of Scheduled Caste] as well as the candidates who are above them in the merit-list, be offered appointment against the vacant posts in District Mohali strictly in accordance with the criteria laid down in the Rules. The needful shall be done within a period of one month from the date a certified copy of this order is received.
[14]. We, however, clarify that this order shall not be taken as a precedent to seek appointment by the candidates who are lower in merit, especially when the future vacancies have been ordered to be utilized so that the candidates already transferred from Patiala and Ropar districts are not uprooted at this juncture.
[15]. Dasti.
( SURYA KANT )
JUDGE
May 07, 2010. ( SHAM SUNDER)
dinesh JUDGE