Acharya salig ram vs Director of Education and Others

H.S. Thakur, J.—Aggrieved by the judgment of the learned single Judge of this Court, dated November 15, 1978, the Appellant has preferred this Letters Patent Appeal. It may be pointed out that Respondent No. 5 died during the pendency of the appear and his name was accordingly struck off, by an order of this Court dated 26-4-1985 in C.M.P. No. 751 of 1985.

A few facts relevant to decide this appeal may be briefly stated.

The Appellant (hereinafter to be referred to as the Petitioner) qualified the degree of ''Darshan Acharya'' equivalent to M.A. from the Banaras Sanskrit University. He also passed the degree of ''Vyakarna Acharya'' equivalent to M.A. from the Punjab University in the year 1964. The Petitioner applied for the post of ''Jyotish Pandit'' in the pay scale of Rs. 150-10-250/- on the advertisement issued by the Department of Education, Himachal Pradesh, dated July 20, 1960. The qualifications prescribed for the said post were as under:

Shastri with specialisation in Jyotish preferably Acharya with specialisation in Jyotish 3/5 years teaching experience of Jyotish.

The Petitioner after having been selected for the said post, joined the Education Department in the year 1961, as such. On September 23,1970, he was promoted to the post of ''Darshan Acharya'' in the pay scale of Rs. 200-10-300/- (vide Annexure-C) and was posted in Nehru Sanskrit College, Shimla. The scale of pay of the Petitioner was, however, subsequently revised to Rs. 220-10-500/- with effect from 1-11-1966. In August, 1972, he was transferred to Sanskrit College, Sundernagar, as Principal, in an officiating capacity. The Petitioner alongwith Respondents 4 and 5 was confirmed (vide Annexure-E) on January 7, 1974 in the pay scale of Rs. 220-500/-. In the seniority list (Annexure-D), dated December 7, 1972, he was shown below the Respondents 4 and 5. It was stressed by the Petitioner that Respondent No. 4 was not ''Acharya'' and had been wrongly mentioned as such in the office order (Annexure-P) and that thereby the Petitioner had been adversely affected. It was also stated that Respondent No. 4 was a ''Shiksha Shastri'' from Triputi, which is equal to B. A. and that it was not a degree of higher learning in Sanskrit language or literature like ''Acharya''. It was further pointed out that the department of Education had wrongly recognized this qualification of ''Shiksha Shastri'' of Tirupati equivalent to ''Acharya''. According to him, this had been done purposely to give benefit to Respondent No. 4.

It may be noticed that the Director of Education vide office order (Annexure-G), dated 19th June, 1974, on the re commendations of the Departmental Promotion Committee promoted Respondents No. 4 and 5 as Head Pandits in the pay scale of Rs. 300-25-600/- and ordered their posting in the institutions mentioned in the order. It may further be noticed that before the promotion of the said Respondents was made, the Himachal Pradesh Government, ''Education Department, framed the Rules known as "Himachal Pradesh Education Department Class-Ill (Cadre of Head Pandits, Pandits and other teaching personnel of Sanskrit College and Sanskrit Pathshalas) Service Rules, 1973. Alongwith the said rules, in the annexure thereto the recruitment and promotion Rules for Class-Ill posts/services of Sanskrit Colleges/Pathshalas of Education Department (H.P.) were also framed. Under these rules, the qualifications prescribed for the post of Head Pandit are as under:

(i) Acharya from a recognized University/Institution or its equivalent,

or

(ii) Two years teaching experience as Pandit or in an equivalent post in a traditional type of Sanskrit Institution.

The Petitioner contended that according to Section 7(2) of the Himachal Pradesh University Act, the Government Sanskrit College, Solan, Government Sanskrit College, Sunder-nagar and Government Sanskrit College, Shimla, are deemed to have been admitted to the privileges of the Himachal Pradesh University. According to the Petitioner, the said institutions are recognized institutions and governed by the Statutes, Ordinances and the provisions of the Himachal Pradesh University Act. On this account, it is contended that the appointment of such persons can only be made to the posts of Head Pandits and Pandits who are eligible under the relevant provisions of the Ordinances, Statutes and the Himachal Pradesh University Act. Reference has been made to Section 7(2) of the Himachal Pradesh University Act, 16(i)(ii) of First Statute and 39.5 of the First Ordinance of the Himachal Pradesh University.

It is not disputed that under Ordinance 39.5 the minimum educational qualifications for the teachers for Sanskrit Examination in Shastri, prescribed therein are ''Acharya'' or M.A. (Sanskrit) with Shastri. It is, however, to be seen whether it was incumbent on the Government to appoint a Head Pandit to the above named institutions who should have passed such qualifications.

The Petitioner has emphasised that the Respondent No. 4 was not qualified as ''Acharya'' and, as such, was not eligible to be promoted as a Head Pandit. The Petitioner also attacked the promotion of Respondent No. 4 on the ground that although he was junior to him but had been wrongly shown senior to him.

It may be noticed that the dispute in this appeal is confined to the appointment by promotion of Respondent No. 4 as a Head Pandit. It may also be noticed that the learned single Judge in his judgment has observed that "there were other grounds of attack also but the same were not pressed or argued by the learned Counsel for the Petitioner, Shri S. S. Ahuja. Therefore, those grounds of attack shall be deemed to have been given up. The Petitioner prayed for quashing the order as contained in Annexure-G, dated June 19, 1974 and also sought a direction to promote him as Head Pandit in the pay scale of Rs. 300-25-600/. In so far as the other reliefs for striking down the Service Rules, prescribing qualifications for the post of Head Pandit are concerned, the same have been given up."

The Petitioner has challenged the promotion order of Respondent No. 4 (Annexure-G). It is desirable to extract the same:

DIRECTORATE OF EDUCATION HIMACHAL PRADESH

No. 16-6/73-Edu-Estt-III, dated Shimla-1, the

OFFICE ORDER

On the recommendations of the Departmental Promotion Committee, S/Shri Hira Mani Acharya, Govt. Sanskrit College, Solan and Rama Kant Joshi, Acharya, Govt. Sanskrit College, Simla are hereby Promoted as (Head Pandits) Pradhancharya in the scale of Rs. 300-25-600 and are posted in the institutions indicated against the name of each:

Shri Hira Mani, Govt. Sanskrit College, Sunder-Head Pandit. nagar.

Shri Rama Kant Govt. Sanskrit College, Solan.

Joshi, Head Pandit. 3. Shri Salig Ram, Acharya, Govt. Sanskrit College, Sundernagar, is hereby transferred and posted as such viz. Acharya in the Govt. Nehru Sanskrit College, Simla, vice Shri R. K. Joshi, promoted.

Sd/-Director of Education, Himachal Pradesh.

According to the Himachal Pradesh Education Department Class-Ill (Cadre of Head Pandits, Pandits and other teaching personnel of Sanskrit Colleges and Sanskrit Pathshalas), Service Rules, 1973, (Annexure-1), the minimum educational and other qualifications for the post of Head Pandit for Sanskrit Colleges are prescribed as under:

Essential:

"Minimum educational and other qualification required for direct recruits. (i) Acharya from a recognized University/Institution or its equivalent.

or

Shiksha Shastri from Ken-driya Sanskrit Vidyapath Tirupati (Madras).

(ii) Two years teaching experience as a Pandit or in an equivalent post in a traditional type of Sanskrit Institution."

The contention of the Petitioner that he was senior to Respondents 4 and 5 and that they were wrongly shown senior to him may be considered. In the reply-affidavit filed by Respondents 1 and 2, it has been asserted that the Respondents 4 and 5 are senior to the Petitioner. The Petitioner has not chosen to challenge the seniority list circulated during the month of October, 1972. It is contended by the learned Counsel for the Respondents 1 and 2 that since the seniority list had not been challenged by the Petitioner even in the writ petition, he has no legal foundation to challenge the promotion of Respondents 4 and 5. It is further emphasised that the seniority list on this basis alone has to be treated as final. Respondent No. 4 also in his written statement has asserted that he has been shown senior to the Petitioner and the Petitioner never questioned such seniority. The Petitioner in his rejoinder no doubt pointed out that the tentative seniority list alleged to have been circulated in October, 1972 and the final seniority list alleged to have been circulated in December, 1972, were never brought to his notice and he came to know about them, after June 19, 1974, when the impugned office order dated 19th June, 1974 (Annexure G) was issued. He also contended that the Petitioner never admitted Respondent No. 4 as senior to him and that the final seniority list was prepared in an arbitrary manner. The Respondents 1 and 2 in the supplementary affidavit have asserted that the tentative seniority list was despatched to all the Principals of Government Sanskrit Pathshalas Solan, Sundernagar and Shimla vide memo. No. 5-51/71-Edu (Estt-II), dated 9-10-1972, by the Director of Education with the directions that the list be circulated to all concerned and in case anybody intended to represent against the seniority, he should do so within 14 days, failing which no representation will be entertained. It is also stated that the despatch register maintained by the Directorate of Education also shows that the aforesaid letters were actually despatched to the institutions concerned on 9th October, 1972. It is alleged that since no representation against the tenta-tivelist was made within the stipulated period, the list became final on 8-12-1972. It may be noticed that although the promotion order does not indicate the seniority number of the incumbents, but the confirmation order (Annexure-E) of the Petitioner and Respondents 4 and 5 in the pay scale of Rs. 220-500 apparently shows the name of the Petitioner at Sr. No. 3, whereas the name of Respondent No. 4 is shown at Sr. No. 2. The Petitioner has, however, not challenged even the said order. It can hardly be believed that the Petitioner was not aware of the tentative seniority list or the final seniority list. The learned single Judge as such was fully justified in holding that the Petitioner was aware about the circulation of the said seniority lists. We have, therefore, no reason to differ with the view taken by the learned single Judge.

The next ground of the Petitioner that the Respondent No. 4 did not fulfil the requisite qualifications may also be considered. The Rules framed in 1973, a copy whereof (Annexure I) is filed by the Petitioner, shows that the minimum qualifications for the posts of Head Pandits were as under:

(i) Acharya from a recognized University/Institution or its equivalent,

OR

Shiksha Shastri from Kendriya Sanskrit Vidyapath, Tirupati (Madras).

(ii) Two years teaching experience as Pandit or in an equivalent post in a traditional type of Sanskrit institution.

The Respondent No. 4 admittedly possesses the qualifications of ''Shiksha Shastri'' from Tirupati. This degree is recognized and is equal to B.Ed or B.T. according to the letter from the Secretary (Education) to the Government of Himachal Pradesh. As such, under the aforesaid Rules, the Respondent No. 4 was eligible to be appointed as a Head Pandit.

We may now refer to Section 7 of the Himachal Pradesh University Act. Sub-section (2) of Section 7 reads as under:

Notwithstanding anything contained in any other law for the time being in force, no educational institution situated within the territorial limits of the University shall be admitted to any privileges of any other University, incorporated by law in India, and any such privilege granted by any such other University to any such educational institution prior to the commencement of this Act, shall unless otherwise directed by the State Government be deemed to be withdrawn on the commencement of this Act, and any such institution shall be deemed to be admitted to the privileges of the Himachal Pradesh University.

It is not disputed that the Respondents 4 and 5 were promoted in the institutions prior to the establishment of the Himachal Pradesh University Act, but were affiliated to the Punjab University. Rule 16 of the First Statutes of the Himachal Pradesh University provides for the affiliation and privileges of the University. Clause (1) of Rule 16 of the First Statutes says that Colleges and other Institutions within the limits of Himachal Pradesh may be admitted to such privileges of the University as the Executive Council may decide, on the condi tions mentioned thereunder. The second proviso to the condi tions laid down thereunder, however, reads as under:

Provided further that the said condition shall not apply in the case of colleges and institutions maintained by Government...

As such, it can be easily inferred that sub-rule (1) of Rule 16 cannot be applied in the case of institutions maintained by the Government. Clause (ii'') of the sub-rule (1) of Rule 16 provides for the conditions of affiliations and the management of every such college or institution. However, the proviso to sub-rule (2) of Rule 16 provides as under:

Provided that the provisions of this clause shall not apply in the case of colleges and institutions maintained by the Government.

In view of this proviso, it can be legitimately concluded that the institutions maintained by the Government are not subject to the conditions laid down in Rule 16 of the First Statutes.

Reference may now be made to Ordinance 39 of the First Ordinances of Himachal Pradesh University. A bare perusal of Ordinance 39.5 shows that the same applies to the nongovernment institutions and not to the government institutions. Sub-section (2) of Section 7 of the Himachal Pradesh University Act has already been extracted earlier above.

The above-named Sanskrit Institutions were previously affiliated to Punjab University. After the passing of the Himachal Pradesh University Act, these institutions were deemed to be admitted to the privileges of the Himachal Pradesh University. Reply-affidavit has been filed on behalf of the Himachal Pradesh University. The Registrar of the University, inter alia, has deposed that Ordinance 39 is framed under Statute 16 of the First Statutes for''the purpose of laying down the qualifications of staff and other conditions. It is further stated that the appointment of the teaching staff of colleges or institutions which are maintained by the Government are not to be governed by the Ordinance 39.1 of the First Ordinances as is intended by Statutes 16(2) of the First Statutes of the University. It is asserted that reference to Ordinance 39.1 with regard to the appointment and salary of the staff subject to the approval of the Vice Chancellor is wholly irrelevant as the present case relates to the institutions which are maintained and run by the Government. It is further emphasised that qualifications for the appointment of Head Pandit are prescribed by the Rules of 1973 and the same are not prescribed in Ordinance 39.1 of the First Ordinances. It is also pointed out that Ordinance 39.1 will not apply to the Government institutions and colleges.

The learned Counsel for the Petitioner has contended that the Service Rules of 1973, to the extent that the Respondent No. 4 was held eligible to be appointed as a Head Pandit, being violative of the Himachal Pradesh University Act, Statutes and Ordinances, deserves to be struck down. It is also contended that the seniority list is liable to be struck down, though no specific prayer is made in the writ petition in this behalf. As pointed out earlier above, such contentions were not pressed before the learned single Judge. In fact, the learned Counsel appearing for the Petitioner had specifically stated that so far as other reliefs for striking down the Service Rules for the post of Head Pandits are concerned, the same are given up. In the face of this position, it is not fair on the part of the Petitioner to press those very grounds in this appeal. We have otherwise also considered these contentions but find no merit therein.

In the reply-affidavit filed on behalf of the University, it is clarified that the Government was fully competent to frame the Rules and prescribe the qualifications for the appointment of Head Pandits and Pandits etc. A perusal of the said Rules clearly shows that the Respondent No. 4 was eligible to be appointed as a Head Pandit. So far as the seniority list is concerned, as indicated earlier above was not prayed to be struck down by the Petitioner. Otherwise also, it was too late for the Petitioner to seek such a relief. It may also be noticed that the Director of Education in his supplementary affidavit has deposed that seniority had to be determined keeping in view inter alia the length of service, date of confirmation and date of appointment. It is further clarified by him that the Petitioner joined duties as a Pandit with effect from 21-3-1961 whereas Respondent No. 4 joined as such on 19-11-1960, and thereby the Respondent No. 4 became senior to the Petitioner. These facts are not challenged by the Petitioner. Keeping in view the above position, we have no other alternative but to hold that the Petitioner in the matter of seniority is rightly placed below the Respondent No. 4.

No other point has been pressed on behalf of the Petitioner.

The result of the above discussion is that there is no merit in this Letters Patent Appeal and the same is dismissed. The parties are, however, left to bear their own costs.