Central Administrative Tribunal - Chandigarh
Ajay Kumar vs Union Territory on 9 February, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
O.A. No.060/00432/2015 Date of decision:
Reserved On: 02.02.2016
CORAM: HONBLE MR. JUSTICE L.N. MITTAL, MEMBER (J).
HONBLE MRS. RAJWANT SANDHU, MEMBER (A).
1. Ajay Kumar, JBT Teacher, Government Primary School, Sector 26, Timber Market, Chandigarh.
2. Bharat Bhushan, JBT Teacher, Government Model High School, Police Lines, Sector 26, Chandigarh.
APPLICANTS
VERSUS
1. Union Territory, Chandigarh Administration through Advisor to Administrator.
2. Education Secretary, Union Territory, Chandigarh Administration, Sector 9, Chandigarh.
3. Director Public Instructions (Schools), Union Territory, Chandigarh Administration, Sector 9, Chandigarh.
4. Ms. Sunita Devi, TGT (English), Government Model Senior Secondary School, Sector 28-D, Chandigarh.
5. Ms. Kumud Gaur, TGT (English), Government Model Senior Secondary School, Sector 20-D, Chandigarh.
(Respondents no.4 and 5 through Respondent no.3).
RESPONDENTS
PRESENT: Sh. R.K. Sharma, counsel for the applicants.
Sh. A.L. Nanda, counsel for respondents no.1 to 3.
Sh. Parmod Chauhan, counsel for respondents no.4 & 5.
ORDER
HONBLE MRS. RAJWANT SANDHU, MEMBER (A)
1. This O.A. has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:
8(i) Quash Order dated 02.01.2015 (Annexure A-1) to the extent whereby Respondent No.2 and 3 have considered and promoted juniors Respondent No.4 and 5 to the applicants from the post of JBT to TGT (English) ignoring the claim of the applicants, who are eligible in terms of the Recruitment Rules, whereas private respondents being juniors to the applicants have been promoted as such.
(ii) Quash order dated 13.04.2015 issued by Respondent no.3 (Annexure A-2) to the extent whereby juniors respondents no.4 and 5 have been promoted as TGT (English) ignoring the claim of the applicants being senior.
(iii) Issue directions to the respondents to consider the claim of the applicants for promotion as TGT (English) against the quota meant for JBT Teachers and to grant them promotion as TGT (English) with effect from the date their juniors have been considered and promoted with all consequential benefits.
2. It is stated in the O.A. that both the applicants are working as JBTs with the Chandigarh Administration. The next channel of promotion from the post of JBT is to the post of TGT vide notification dated 15.02.1991 as amended from time to time. Copy of rules in this regard is annexed (Annexure A-11). In 2014, the respondent department issued circular seeking information, particulars and option of the incumbent JBTs who were within the zone of promotion. Applicants submitted their particulars and applied for consideration for promotion for the post of TGT (English) as required qualification for promotion as TGT (English) was B.A. with English as Elective subject and B. Ed. with English as one of the teaching subjects. Both the applicants though not having English as Elective in B.A./B. Com. have the higher qualification of M.A. English.
3. It is further stated that both the applicants passed B.A. from Kurukshetra University where there is no separate Elective subject of English and subject is B.A. with English general. There is no option or choice for the candidates except to take English general. The subject of English General taught in Kurukshetra University has been declared as English Elective by Kurukshetra University. Equivalence certificate to this effect issued by Kurukshetra University vide No.ACS-II/14/10289 dated 29.08.2014 is attached as Annexure A-12.
4. In response to the circular issued by the respondent-department, and keeping in view number of vacancies available and their seniority position being at Sr. No.327 and 316, applicants submitted their option for promotion to the post of TGT (English). The department considered incumbents of the cadres of the applicants for various subjects including subject of English, but instead of considering claim of the applicants, they have considered the persons junior to them. A copy of list of candidates who applied for promotion to the post of Master/Mistress from the cadre of JBT etc. is attached (Annexure A-14). The applicants after submitting their particulars had been pursuing their case for promotion and submitted several representations in this regard (Annexure A-15 to A-22). They have verified their seniority position and had also supplied copies of the judgment of Honble jurisdictional High Court rendered in various cases including CWP No.17756 of 2010 tilted Somvir Singh Vs. State of Haryana decided on 11.03.2011, judgment dated 05.09.2012 passed in Letters Patent Appeal No.1115 of 2012 in the case of Somvir, judgment dated 18.01.2008 in CWP No.17959 of 2007 titled Ram Kumar Versus State of Haryana and Others (Annexures A-23 to A-25). However, without considering the claim of the applicants, respondents no.4 and 5, who are at seniority no.339 and 345 were promoted vide order dated 02.01.2015 and further in pursuance of orders dated 02.01.2015, respondents issued posting orders, including those of private respondents vide order dated 13.04.2015 (Annexures A-1 and A-2).
5. In the grounds for relief, it has been states as follows:
i. Admittedly, the applicants are senior to the private respondents as per seniority list (Annexure A-10) and they possess higher qualification in addition to subject of General English at Graduation level, which has been declared equivalent to Elective English and thus applicants cannot be ignored in terms of the law laid down by the jurisdictional High Court as well as this Tribunal in judgments appended as Annexures A-13 and A-19 to A-21.
ii. It is well settled that nobody has got right for promotion, yet he has got right of consideration. Therefore, non-consideration of the case of the applicants by respondents is illegal, arbitrary and non-est in the eyes of law.
6. In the written statement filed on behalf of the respondents no.1 to 3, facts of the matter have not been disputed. However, it has been stated that the judgment referred by the applicants (Annexure A-13) is distinguishable because in that case the Tribunal allowed the O.A. because a clarification was given by the Kurukshetra University that the compulsory subject of English passed by the applicant be treated as equivalent to elective subject of any other examining body whereas in the present case the Kurukshetra University vide their letter dated 22.08.2014 attached at Annexure A-12 changed their stand and have stated that for all practical purposes the compulsory English subject may be treated as equivalent to English (Elective). The word may be makes distinction from the judgment quoted above where the word may be was not used. The Kurukshetra University is/was never specific about its stand regarding equivalence of its English Compulsory to English Elective, as in another recent clarification on this very issue, Kurukshetra University vide its letter dated 24.09.2014 (Annexure R-1) has clarified to Respondent No.3 that in syllabus of B.A. there is no provision of English Elective and there is provision of English Compulsory only in the syllabus of Bachelor of Arts of Kurukshetra University, Kurukshetra. The English Compulsory is taught in all the affiliated colleges of Kurukshetra University at under graduate level. It is also stated that judgments at Annexure A-23 and A-24 are also distinguishable. Besides, the Apex Court had adjudicated the claims for recruitment in view of the higher qualifications of applicants vide its judgment dated 24.09.2014 in the case of State of Punjab vs. Anita Devi and has held that unless it is specifically mentioned in the rules that higher qualification will pre-suppose the possession of lower qualifications, the applicants with higher qualifications cannot be considered for appointment in violation of the notified qualifications at the time of recruitment. Since in the present case the prescribed qualification advertised was B.A. with English as an Elective subject and both the applicants do not possess this, their cases have rightly been ignored for promotion as TGT English by the respondents. Hence the application is liable to be dismissed.
7. In the written statement filed on behalf of respondents no.4 and 5 it has been stated that acquisition of higher qualification per se does not necessarily pre-suppose possession of lower qualification in all the cases especially when the rules relating to recruitment, selection and appointment of a particular cadre, as in the instant case, do not specifically provide for extensive knowledge of a given subject acquired by the holder of higher education. It is also submitted that legislative intent and wisdom of State being employer laying down the eligibility criterion and requisite qualification for a particular post/cadre cannot be interpreted otherwise. None of the judgments relied upon by the applicants postulate that this proposition of law has been repelled. Even otherwise, if the present claim of the applicants is accepted, it would be unjust and unfair to those who did not apply in view of the requirement of job and rules relating to the recruitment process despite having similar and higher qualification etc. Moreover, the applicants have not challenged the rules of promotion in accordance with which the promotions of the answering respondents have been ordered by keeping in view their merit/eligibility etc. It is also mentioned that Chandigarh Administration in Education Department has passed a detailed order bearing No.1435-DPS-UT-52-II(50) 2015 dated 16.09.2015 qua subject matter wherein the stand of the Government has been reiterated and emphasized with regard to the eligibility criterion and requisite qualification etc. for the purpose of appointment to the post of TGT English/Hindi/Sanskrit and particularly when the syllabus and scope of study relating to English compulsory is quite distinct to that of English Elective. It is also stated that promotion cannot be claimed as a matter of right as held in several judgments pronounced by the Apex Court and keeping in view the fact that the names of the applicants were duly considered and they were found eligible in respect of S.S. Teachers only and not for TGT English, as is evident from Annexure A-10 itself, and also keeping in view their choice, vacancy position and seniority etc. they were not promoted and hence there arises no question of discrimination. Hence on all counts, the application is liable to be dismissed.
8. In the replication filed on behalf of the applicants in response to written statement filed by respondents no.1 to 3, some more judgments of the Tribunal, Punjab and Haryana High Court and the Apex Court have been cited to press the contention that since the applicants possess qualification of M.A. (English) which was higher qualification than B.A. with English Elective, the applicants were entitled to be considered for TGT (English).
9. Arguments advanced by learned counsel for the parties were heard. Learned counsel for the applicants narrated the background of the matter. He pressed that in Kurukshetra University there was no subject of English (Elective) while English (General) was taught for all the 3 years. The applicants had got the higher qualification of M.A. (English). They also possessed qualification of B.Ed. with English as the teaching subject. Learned counsel stated that Kurukshetra University had issued equivalence certificate in this regard and the respondent Administration could not ignore the applicants for consideration for promotion as TGT (English) on the ground that they had not studied English (Elective) at the graduation level. He also cited following:
i. Judgment dated 06.11.2015 of the Apex Court in Civil Appeal No.13368 of 2015 (arising out of SLP (C) No.26131/2013 in Parviaz Ahmad Parry Vs. State of Jammu & Kashmir & Ors., where while considering appointments to the post of Range Officer (Forest) eligibility qualification being specified as B.Sc. degree in Forestry and the applicants did not have B.Sc. degree with Forestry but had M.Sc. Degree in Forestry was held to be eligible for the post.
ii. Judgment dated 11.03.2011 in CWP No.17756 of 2010 tilted Somvir Singh Vs. State of Haryana (A-23) as well as judgment dated 21.10.2015 in O.A. No.060/00016/2015 Ambika Vs. U.T. Chandigarh & Ors. (A/28) to press that person with a higher qualification of M.A. (English) could not be ignored for recruitment just because she did not have the English (Elective) subject on the graduation level.
10. Sh. A. L. Nanda, counsel for the respondents no.1 to 3 placed reliance on judgment dated 09.10.2013 in C.W.P. Nos.14939 and four others titled Rakesh & Ors. Vs. State of Haryana & Others wherein it has been held as follows:
A. Constitution of India, Articles 14 and 16-Haryana Subordinate Agriculture (Group C) Service Rules, 1993-Recruitment-Qualification-Equivalence-Qualification prescribed for the post of ADOs degree in B.Sc. (Honours) in Agriculture from any recognized university-Challenge by petitioners who are having qualification of a plain degree in B.Sc. (Agriculture) and some of them holding degree of M.Sc. (Agriculture) as they were not considered-Held that what may be difference between B.Sc.(Agriculture) and B.Sc. (Honours) in the Court since the rule/advertisement lay down emphatically, unambiguously and without doubt the degree the department needs to carry out its work-Nothing can be added, subtracted or dovetailed into or injected into the rule, which is clear enough. Learned counsel also referred to judgment dated 19.03.2015 of the Apex Court in Civil Appeal Nos.3057-3058 of 2015 (arising out of SLP (C) Nos.22345-22346 of 2013) in Prakash Chand Meena & Ors. Vs. State of Rajasthan & Ors.
11. Learned counsel for respondents no.4 and 5 adopted arguments put forth by learned counsel for respondents no.1 to 3.
12. We have given our careful consideration to the matter. A distinction needs to be drawn here between the claim of the applicants in the present case where they are seeking promotion from the post of JBT to the post of TGT (English) and the judgments that have been cited all of which refer to direct recruitment to various posts. The respondent administration has itself issued order No.1435-DPI-UT-52/11(50) 2015 dated 16.09.2015 (Annexure R-1/4). Para 9 of this reads as follows:
9. After going through documents submitted by candidates in support of eligibility for the post of TGT (English), provisions of Chandigarh Education Service (school cadre) Recruitment Rules, 1991, as amended from time to time and notified by competent authority in exercise of the powers under the provision of Article 309, contradictory clarifications given by the Universities regarding English as an elective subject and the recommendations submitted by the Committee, the undersigned is of opinion that candidates who have passed only English as compulsory subject cannot be considered as eligible for the post of TGT English. Candidates who have passed English as an elective subject or English Honours or English Literature or Functional English or Additional/Optional paper of English by opting/choosing are to be considered eligible for the post of TGT English keeping in view requisite provision of Chandigarh Education Service (school cadre) Recruitment Rules, 1991 as amended from time to time. From a reading of this para an inescapable conclusion has to be drawn that a person who has studied English Literature is to be considered eligible for the post of TGT (English). In the instant case, it is clear that although the applicants did not have English as Elective subject at the Graduation level (assuming that the equivalence certificate issued by Kurukshetra University cannot be relied upon), the applicants have the qualification of M.A. (English), which actually covers the subject of English literature at a higher level than the graduation level. Other related subjects within the scope of English are also taught at the M.A. level.
13. There appears to be some contradiction in judgments cited by learned counsel for the respondents in case of Prakash Chand Meena (Supra) and judgments cited by learned counsel for the applicants in case of Parviaz Ahmad Parry (Supra). Hence we place reliance on the Chandigarh Administrations own order of 16.09.2015 and conclude that the applicants have to be considered eligible for promotion to the post of TGT (English) in terms of their educational qualification of M.A. (English). Hence the respondents are directed to review the promotions for TGT (English) issued vide order dated 02.1.2015 (Annexure A-1) qua respondents no.4 and 5 and due consideration may be afforded to the applicants and other similarly situated JBTs who are senior to these respondents. If vacancies are available, respondents no.4 and 5 may be allowed to continue as TGTs. Such consideration may be completed within six weeks of a certified copy of this order being served upon the official respondents and consequential action taken by the respondents.
(RAJWANT SANDHU) (JUSTICE L. N. MITTAL)
MEMBER (A) MEMBER (J)
Date:
Place: Chandigarh.
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O.A. No.060/00432/2015