Punjab-Haryana High Court
Padam Kumar & Others vs State Of Haryana & Others on 18 November, 2010
Author: Ranjit Singh
Bench: Ranjit Singh
CIVIL WRIT PETITION NO.7957 OF 2010 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: NOVEMBER 18, 2010
Padam Kumar & others
.....Petitioners
VERSUS
State of Haryana & others
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
PRESENT: Mr. R.K.Malik, Senior Advocate with
Mr.Kohal Sharma, Advocate,
for the petitioners.
Mr. Harish Rathee, Sr.DAG, Haryana,
for the State.
****
RANJIT SINGH, J.
Common question of law arises in Civil Writ Petition Nos.7957 of 2010 (Padam Kumar & others Vs. State of Haryana & others),7098 of 2010 (Saravjeet Singh Vs. State of Haryana & others), 7197 of 2010 (Mohan Lal & others Vs. State of Haryana & others), 7263 of 2010 (Vijay Parkash Vs. State of Haryana & others), 7317 of 2010 (Sangeeta Rani & others Vs. State of Haryana & others), 7505 of 2010 (Devinder Mohan Singh & others Vs. State of CIVIL WRIT PETITION NO.7957 OF 2010 :{ 2 }:
Haryana & others), 7663 of 2010 (Vijay Parkash son of Ram Kumar Vs. State of Haryana & others), 7973 of 2010 (Lal Bahadur & others Vs. State of Haryana & others), 8910 of 2010 (Harvindra Hiranwal Vs. State of Haryana & others) and 9599 of 2010 (Krishan Kumar & another Vs. State of Haryana & others). Accordingly, these writ petitions are being disposed of through this common orders.
The issue involved in all these writ petition relates to giving of charge to the senior-most language teacher/Master on the post of Head Master lying vacant in the different schools. The petitioners in all these cases are Language Teachers in the language of Hindi/Sanskrit/Punjabi. They are having the same pay scale and the qualifications and are statedly performing the similar duties and responsibilities as that of Master. As per the averments, they are also having the same channel of promotion.
Reference is made to a decision dated 29.5.2000 to fill up the posts of Head Masters lying vacant by giving charge either to the Language Teacher or Master, whosoever was the senior-most. This decision was reiterated on 14.1.2008. Petitioner No.1 in CWP No.7957 of 2010 was given charge of Head Master on 27.4.2007, though he was Language Teacher, but senior-most in the School. Similarly, petitioner No.2 was given charge of Head Master on 15.4.2008 and petitioner Nos.3 and 4 w.e.f. 29.8.2008 and 14.12.2008 respectively. The decision taken earlier to give charge to the senior-most teacher has been withdrawn w.e.f. 16.4.2010 and the petitioners in all the petitions have accordingly filed the writ petitions to impugn the said order with a prayer that this order be quashed and the charge and responsibility of the post given to them be continued.
CIVIL WRIT PETITION NO.7957 OF 2010 :{ 3 }:
Plea is that there is no justification to withdraw the charge from the senior-most teacher and handed over to another person who may be a Master as it would lead to discrimination.
Reply has been filed by the respondents. It is pointed out that petitioner Nos.2 and 3 are holding the posts of Hindi Teacher and Sanskrit Teacher respectively and power of drawing and disbursing Officer (for short, "DDO") were delegated to the petitioners, when no other senior Teacher than the petitioners was working in the schools. This was in view of the departmental instructions issued on 14.1.2008. These instructions were applicable in cases, when the post of Head Master had not been filled by regular incumbent. This was an internal adjustment to delegate powers of DDO in a particular school, where the post of Head Master was lying vacant. The delegation of powers to a Master and person holding the post of C&V with Master qualification is stated to be a temporary arrangement to ensure that regular functions of DDO is executed without any benefit to the person, whom the powers were so delegated. This is, thus, stated to be a departmental strategy and not a policy.
As per the stand in the replies, seniority/cadre of Master is the State level whereas C&V Cadre have the District level seniority and Cadre. So, the person appointed as Master being a State cadre, is senior to the Teacher appointed in C&V Cadre and a regular Master in a School is only entitled to function as D.D.O instead of C&V Teacher in case the post of Head Master is vacant. It is stated that School Education Department is a big department and despite best efforts, the posts of Teachers, including Head Masters, of CIVIL WRIT PETITION NO.7957 OF 2010 :{ 4 }:
High/Middle Schools remained vacant due to retirement/promotion and up-gradation. To ensure that the work of Head Master in the Institution does not suffer, the powers of drawing and disbursing is delegated to senior-most person in the School.
Stand in reply filed in one of the cases also is that the post of Language Teacher is a feeder cadre post for promotion to the post of Master. Reference is made to Appendix B of Rule 7 of the Service Rules, 1978 to aver that educational qualification required for the appointment on the post of Master is much higher than that of the Language Teacher. It is accordingly stated that the post of Master is senior to the post of Language Teacher. It is accordingly maintained that the petitioners would not have any right to claim that they be given charge of DDO, in case the post of Head Master is vacant in the School.
As per the respondents, the issue of delegating the power of DDO is purely an administrative act to ensure smooth functioning of the day to day activities of the Institution and no one can claim it as a matter of right. As a practice, the powers are being delegated to the senior-most teacher.
The counsel appearing for the petitioners, however, would claim that the Language Teachers and the Masters are both eligible for consideration for promotion to the post of Head Master and Lecturer and as such, these can not be said to be different cadres. Reliance is also placed on a decision in Civil Writ Petition No.3390 of 2010 (Surender Singh Vs. State of Haryana and others), decided on 25.2.2010, where it is observed that authority for drawing and disbursing can be conferred upon any official, but the senior-
CIVIL WRIT PETITION NO.7957 OF 2010 :{ 5 }:
most person should not be deprived of administrative work in the absence of Head Master. While disposing of Surender Singh's case (supra), the respondents were directed not to permit any junior in the school to exercise administrative powers but were given liberty to confer power of drawing and disbursing upon any person including the respondents therein, who were so delegated these powers, though was stated to be junior. The stand of the respondents that the powers of DDO could be delegated to any Teacher, it being administrative, thus, would appear in consonance with the observation made by the Court.
There does not seem to be any dispute that responsibility of DDO is an administrative duty and no one claim as a matter of legal right that he alone be given this administrative responsibility even on the basis of his seniority. The respondents have clearly maintained in the stand projected before this Court that cadre of Master and that of Language Teacher is not common and rather, Language Teacher is a feeder cadre for the post of Master. If that be so, the petitioners, who all are Language Teachers, can not claim that they are senior and so should be allowed to perform the duties of either the DDO or any other administrative duties. These petitions do not contain any clear pleadings to show that cadre of Language Teacher and that of Master is same. The respondents have also not explained as to how the earlier instructions were issued, reference to which is made in the petitions that the charge of the post of Head Master lying vacant be given by considering seniority of the Language Teacher/Master and whosoever was senior-most, be given the said charge. Subsequent decision was that Language Teacher, CIVIL WRIT PETITION NO.7957 OF 2010 :{ 6 }:
who was possessing the educational qualification of a Master and was senior-most, be given the charge of Head Master, if the post was lying vacant. These instructions have now been modified.
These instructions were issued on behalf of Director and are Departmental instructions issued for the Schools. These seem to be issued as information and guidance for the department authorities concerned. These apparently are not issued by even the head of the Department. Prima-facie, these instructions, which are purely to administer the functioning in Schools and are not in the nature of statutory rule having force of law. The writ would issue where the order affects the right of the subject and such rights are legally enforceable rights. These instructions contain administrative or executive directions, their breach, even if patent, would not justify issue of writ. The executive orders properly so-called do not confer any legal enforceable rights on any persons and impose no legal obligations on the subordinate authorities for whose guidance they are issued; that is not to say that the directions are not valid and should not be followed by the said authorities; the said authorities are undoubtedly expected to follow the said directions and their breach may expose them to disciplinary or other appropriate action. The direction itself, though valid, and in a sense binding on the subordinate authorities is not a statutory rule and has not the force of law and so its misconstruction cannot be said to be an error of law. [See R.Abdulla Rowther Vs. The State Transport Appellate Tribunal, Madras and others, AIR 1959 Supreme Court 896].
The distinction between statutory rule having force of law and administrative and executive instructions has been CIVIL WRIT PETITION NO.7957 OF 2010 :{ 7 }:
emphasized in Nagendra Nath Bora v. Commissioner of Hills Division, AIR 1958 Supreme Court 398. It is held:-
"...........these are only Executive Instructions which have no statutory force. Hence, even assuming, though it is by no means clear, that those instructions have been disregarded, the non-observance of those instructions cannot affect the power of the Appellate Authority to make its own selection, or affect the validity or the order passed by it."
These departmental instructions issued by Director earlier have now been modified. These, thus, would stand withdrawn. If earlier instructions could be enforced, as is sought, then the modified instructions can not be ignored as these would also be then enforceable. This is purely an administrative matter and would not be a justiciable. The writ will not lie for breach of executive instructions even though these may be enforceable against inferior Tribunal by departmental action.
Even otherwise, the stand now is that the cadre being different, the inter-se seniority can not be determined in these two different cadres and the Master is a promotional cadre for Language Teacher. More appropriately, it is for the head of department to see the correct position to issue any appropriate instructions to regulate the issue properly. No legal right or legal issue is noticed in the prayer made.
These writ petitions, therefore, are disposed of with a direction to the Secretary, Education Haryana (respondent No.1) to consider the issue and pass an appropriate order in this regard. No CIVIL WRIT PETITION NO.7957 OF 2010 :{ 8 }:
direction needs to be issued, it being purely an administrative matter, which would call for no interference in exercise of writ jurisdiction.
November 18, 2010 ( RANJIT SINGH ) khurmi JUDGE