Des Raj vs The State of Himachal Pradesh and Others

V.K. Sharma, J.—The petition has been filed on the following prayer vide para 7 (i):

That in the facts and circumstances mentioned above, the applicant prays that the impugned order (Annexure A/2) withdrawing the promotion of the applicant as TGT (Arts) with immediate effect, may be quashed and set aside and the Respondents may be directed to permit the applicant to continue as a TGT (Arts) at his present station of posting.

In reply, the following stand has been taken on behalf of the Respondents vide paras 3 and 6(ii) and (iii):

(3) That the present original application filed by the applicant is not maintainable, because he was not eligible to be promoted as T.G.T. but due to wrong mention of date of joining the applicant was promoted. Be it submitted that 75% posts of TGTs are filled up by way of direct recruitment and batchwise under 50: 50 ratio and rest of 25% posts are filled up from amongst JBT and C & V teacher under 15% and 10% ratio. The Respondent department has promoted those C & v. teachers who have joined this department upto 31.12.1997. In the instant case, the applicant was initially appointed as J.B.T in the year 1976 and worked as such w.e.f. 27.5.1976 to 18.4.2000. The applicant was promoted as Language Teacher under 10% quota meant for C & v. category in the year 2000 and joined as such on 19.4.2000. The applicant submitted his claim for promotion to the post of TGT intimating his date of joining as Language Teacher 27.5.1976 instead of 18.4.2000 and on the wrong information supplied by the applicant. He was promoted as T.G.T. because all the language teachers having B. Ed. degree appointed upto 31.12.1997 have been promoted to the post of TGT under 10% ratio. In fact, date of joining as Language Teacher of the applicant is 18.4.2000, therefore, he was not eligible to be promoted as T.G.T. It is made clear that promotion of the applicant to the post of T.G.T. was made u7nder 10% ratio meant for C & V category not under 15% ratio reserved for J.B. Ts. Since the applicant had joined as Language Teacher on 18.4.2000 therefore, he ceased to be J.B.T. on the date of joining as J.B.T. and for further promotion, date of joining as language teacher her will be taken into consideration. The applicant was succeeded in getting promotion as T.G.T. on the basis of wrong date of joining, therefore, he is estopped by his own act and conduct to raise this dispute before this Hon''ble Tribunal because he was not eligible to be promoted. In view of this submissions the present O.A. having no merit is liable to be dismissed straightway.

6(ii) That the contents of this para also call for no submissions being a matter of record. However, it is submitted that the teachers having higher qualification are given higher pay scale as an incentive but they are never included in the seniority list of higher posts unless promoted to those posts. In the instant case, admittedly, the applicant was given pay scale of language teacher but he was J.B.T. for all intents and purposes till 18.4.2000 unless and until the applicant was promoted as language teacher he could not be included in the seniority list of language teacher because he was JBT at that point of time. A person who is not borne on cadre cannot be assigned seniority whereas, giving higher pay scale on acquiring higher education is a different thing. The applicant has not disclosed the names of those JBTs who were placed in the cadre of LTs. The applicant should put strict proof in his contention and if it is so, their case will be re-examined.

(iii) That in reply to this para it is submitted that the applicant was eligible to be placed in the cadre of LTs after promotion as Language teacher from the date of joining as LT not due to pendency of OA No. (D) 28/2000 filed by him. So far as the question of promotion as TGT vide Annexure A/1 is concerned, it is respectfully submitted that the applicant had supplied wrong date of joining as Language teacher and on the basis of wrong information he succeeded in getting promotion as T.G.T. The applicant was promoted as TGT under 10% quota reserved for C & V teachers and the C & V teachers who had joined as such upto 31.12.1997 were considered and promoted as T.G.T, whereas the applicant entered the cadre of language teacher on 18.4.2000, therefore, he could not have been promoted had he mentioned his correct date of joining as 18.4.2000 instead of 27.5.1976. After joining as language teacher the applicant was no more on the cadre of J.B.T. because one person cannot hold two posts on different cadre. Moreover, department of both the cadre are different i.e JBTs cadre lies with Primary Department and C & V with Secondary department.

The Learned Counsel for the Petitioner submits at the very outset that the connected petition being CWP(T) No. 7204 of 2008, titled Des Raj v. The State of Himachal Pradesh and Ors. has since been disposed of vide judgment dated 26.10.2010, rendered by a Division Bench of this Court, copy whereof has been brought on record at the time of hearing.

In view of the above, the petition is disposed of with a direction to the Respondents that subject to the Petitioner making a detailed representation supported by documents, if any, along with copy of this judgment to Respondent No. 1 within one month from today, who shall consider and take final decision in the matter within further two months in accordance with law, after affording an opportunity of being heard to the Petitioner, if so desired.

The petition stands disposed of, so also pending application(s), if any.