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Judgment
Deepak Gupta, J.—This Letters Patent Appeal by the original writ petitioners (appellants herein) is directed against the judgment dated 4th May, 2010, passed by a learned Single Judge of this Court in CWP(T) No. 9567 of 2008.
The appellants, who are working as Shastris in the Education Department, are teaching Sanskrit to Classes VI to X. They filed OA No. 2189 of 2003 before the erstwhile H.P. State Administrative Tribunal claiming that the Shastri (O.T.) be treated to be equivalent to TGT from the date of their initial appointment and they be granted promotion as Lecturers in school cadre and also be promoted as Headmaster with all consequential benefits.
According to the appellants, they fulfilled all the qualifications and should have been treated equivalent to Trained Graduate Teachers (TGT), but this was not done. One of the important grounds raised by the appellants was that in fact the Education Department itself had supported their case and had proposed draft rules attached as Annexure P-7 with the original application, in which there was a proposal to treat them equivalent to TGTs, with the result that they would be eligible for promotion to the post of Lecturers/Headmaster. Under the draft rules, 3270 posts of Shastri and 2392 posts of Language Teacher were proposed to be re-designated as TGT (Sanskrit) and TGT (Hindi). The fact is that these draft rules remained draft rules and were never actually notified.
Before the learned Single Judge the only point agitated was that promotion be made as per the draft rules. The learned Single Judge held, and in our opinion rightly so, that the appellants could not claim benefit of draft rules since they had not been finalized and therefore, rejected the petition. As far as this finding of the learned Single Judge is concerned, we are in total agreement with the learned Single Judge.
However, before us Shri Amit Singh Chandel, learned counsel for the appellants raised another contention that under the old rules as they stood, Shastris fulfilled all the necessary qualifications for being promoted as Lecturers and therefore, even if the draft rules were not enforced, the appellants should have been promoted as Lecturers/ Headmaster. The relevant bio-data of the appellants is as follows:-
S .No Name appellant wise & Date of Birth Date of passing Shastri Exam. & % Date of Passing O.T. Exam (professional Qualification Date of issuance of Appointment letter Date of Joining as Shastri/OT in Edu. Dept. Date of passing B.A. Date of M.A .(Sanskrit) & % Date of passing M.Phil Date of acquiring Ph.D. Degree
Dr. Lekh Raj Sharma (15.3.1954) June, 1975 (56.63%) April, 1976 31t March, 1977 7th April, 1977 April, 1983 April 1985 (61%) -- April, 1993
Dr. Jagan Nath June, 1975 (55%) April, 1976 13th Nov, 1978 (Ad-hoc) 15th Jan,1979 (Regular appointment) -- December, 1988(56.5 %) -- Dec, 2003
Sh. Priti Chand Sharma (6.1.1960) April 1980 (73%) April 1981 16th Oct, 1999 16th Oct. 1999 April, 1987 May, 1991(55.5 %) -- --
Sh. Dharam Chand Sharma (24.3.1956) June, 1978 (52%) April, 1979 13th Nov, 1987 13th Nov, 1987 Sept, 2004 March, 1985 (50%) - -
Sh. Dhian singh Gautam (22.10.1956) June, 1977 (54.6%) Sep. 1978 1st Oct., 1986 9th Oct., 1986 April, 1982 July, 1984(64%) 1985 --
Sh. Ved Prakash Sharma (20.3.1953) Dc., 1976 (48%) April, 1973 9th April, 1974 9th April, 1974 June, 1988 November 1993 (55%) ---- --
Dr. Sandhya Prakash Sharma (15.10.1945) June, 1964 (49%) Sept., 1970 Sept., 1973 29th Sept. 1973 -- July, 1980 (57%) - 1998
From the chart, it is apparent that all the appellants are Post Graduates in Sanskrit and in fact appellants No. 1, 2 and 7 have obtained Ph.D degree in Sanskrit whereas appellant No. 5 has obtained M.Phil degree. The appellants are governed by the Himachal Pradesh, Education Department Class-III (School and Inspection Cadre) Services Rules, 1973. Lecturers were appointed only in the Higher Secondary Schools. The post of Lecturers in High Secondary Schools has to be filled in as follows:-
S. No Name of post No of posts Classification Scale of pay Whether selection or non selection post Age for direct recruitment Minimum Educational qualifications for direct recruits Whether age and educational qualifications prescribed for direct recruits will apply in case of promotees Period of probation Method of Rectt. Whether by direct recruitment or by transfer/promotion/deputation In case of rectt. By promotion/deputation/transfer grade from which promotion/deputation/transfer to be made Composition of D.P.C. Circumstances under which H.P. P.S.C. is to be consulted
Lectures in Higher Secondary Schools 312 Class-III 1. For M.A. (I & II) Rs. 300-600 2. for M.A.(II I)Rs.25 0-550 Non-selection 27years and below but not less than 18 years Essential Master''s degree in the subject concerned from a recognized university of its equivalent. Desirable (2) Knowledge of customs, manners and dialects of H.P. Age No. Qualification yes. -do-. 50% by promotion 50%by direct recruitment Promotion:- from amongst the Trd. Graduate teacher /Home Science/Mistresses/Commerce teachers/Agril. Masters possessing qualifications prescribed for direct recruits (the distribution of posts subject wise shall be made by the head of the Department according to the requirements of various subjects). For the purpose of considering them for promotion the names of the incumbents of these categories of posts mentioned above will be arranged in a combined seniority list based upon the length of regular service for each in the respective grades -do -do-
There were no separate rules/conditions for filling up the posts of Lecturers in the subject of Sanskrit though for the Lecturers in the Tibetan, separate provisions exist. The stand of the State appears to be that promotion has to be made only from amongst Trained Graduate Teachers, Home Science Mistresses, Commerce Teachers, Agriculture Teachers as per the rules and therefore, Shastris were not eligible for the post.
It would be pertinent to mention that new rules being the Himachal Pradesh Higher Education Department, Post Graduate Teacher Class-III (Non-Gazetted), Recruitment and Promotion Rules were framed in the year 2010 and as per these rules the post of Post Graduate Teacher in Sanskrit has to be filled by a person who holds a Master''s Degree in Sanskrit which would be the subject concerned.
On 31st August, 1982, the State Government issued a notification wherein the degrees awarded by the Rashtriya Sanskrit Sansthan were equated with degree granted by other Universities in the following manner:
Name of the examination as equivalent to
Prathama Middle School
Madhyama Higher Secondary
Shasti B.A.
Acharya M.A.
Shiksha-Shastri B.Ed.
Vidya-Varidhi Ph.D.
Vachaspati D.Litt,
As such, there is no dispute that Shastri was equated with Graduation, Acharya with Post Graduation and Shiksha-Shastri with B.Ed. Vidya-Varidhi was equated with Ph.D. There is no dispute with regard to these aspects. It is also not disputed that the appellants had represented time and again that they were not being promoted, they have no avenues of promotion and they should be treated equivalent to Trained Graduate Teachers for the purpose of promotion since they were getting identical pay as Trained Graduate Teachers. They fulfilled all the eligibility criteria as far as the educational qualifications are concerned.
The representation of the appellants for being treated equivalent to Language Teachers was virtually accepted by the Secretary (Education) to the Government of Himachal Pradesh who vide his letter dated 23.3.1999 wrote as follows:-
Thus it is clear from the above facts that O.T. (Sanskrit) course for Shastri from a recognized University/Institution is a professional course like that of B.Ed. Course for those degree holder who had done their B.A. with Sanskrit as an elective subject and B.Ed. with Sanskrit as an teaching subject are the same and needs not to be equated. So far4 as the recognition of the O.T. from the Chandigarh Administration Institute is concerned, the same is a recognized institution as intimated by the Registrar Education(S), under Secretary (Education), Chandigarh, Administration (copy enclosed). You are therefore, advised to make necessary amendments in the Recruitment and Promotion Rules of the Sanskrit teacher (Shastri) incorporating the said qualification for appointing (TGT Sanskrit) teachers as per provisions of the notification of the revised pay scale of the post with which all the officials having the requisite qualification would be eligible for the pay scale of Rs. 1640-2925 as desired by you.
The draft rules were also prepared for creating the posts of TGT (Sanskrit) but they were not notified. The draft rules were sent by the Director of Education to the Commissioner-cum-Secretary (Education) on 2nd February, 2002 but these were never given effect to.
Shri Amit Singh Chandel, Advocate argued that even if the draft rules are not to be taken into consideration then as per the old rules the appellants fulfilled all the necessary criteria for being considered to the post of Lecturers (school cadre). All the appellants were Post Graduates and some of them obtained doctorate degrees also. He contends that keeping in view the recommendation of the Department while making proportion to the posts of Lecturer in the subject of Sanskrit, the State could not have ignored the Shastris who fulfilled the necessary qualifications.
We find merit in this contention. If promotion is to be made to the post of Lecturer from the post in the lower rung then in our considered view the people who were specialists in the subject and were teaching that subject should have been given preference. A TGT teaches various subjects whereas a Shastri teaches Sanskrit alone. When promotion has to be made to the post of Lecturer in the subject of Sanskrit, we fail to understand why a fully qualified Shastri should be ignored and a TGT who may also have Post Gradation in Sanskrit be promoted. When the posts of Lecturer(Sanskrit) had to be filled in, the appellants had to be considered and their claim could not have been ignored. Any other interpretation of the rules will amount to travesty of justice where a more highly qualified person or a specialist in the field is ignored and a person who is generalist is given preference. The whole scheme of the rules framed for the post of lecturer in Higher Secondary Schools clearly indicates that the eligible person should have a Master''s degree in the subject concerned from a recognized University and the desirable qualification is one year Post Graduate diploma in teaching. The appellants have not been considered for these posts only on the ground that in the feeder category the word "shastris" does not find mention. In our considered opinion, especially keeping in view the stand of the State and the letter of the Secretary (Education) quoted hereinabove, it is apparent that the intention of the State was not to ignore the Shastris but it may have been done due to oversight.
Be that as it may, we are clearly of the opinion that if the interpretation given by the State is effect to, it would amount to arbitrary and invidious discrimination against the Shastris who fulfilled all the necessary conditions for being appointed as Lecturers in Higher Secondary School. They being in the same scale and performing duties akin to that of TGT but specifically in the field of Sanskrit would be more highly suitable for promotion.
However, as far as filling up the posts of Headmaster/Headmistress are concerned, the State would be justified in excluding the Shastris since the duties of Headmaster are also administrative in nature and the Shastris having worked in a particular subject may not have knowledge of the other subjects.
Keeping in view the above discussion, we partly allow the appeal and hold that the appellants should be considered for promotion to the posts of Lecturer in Higher Secondary School cadre from the dates when they fulfilled all the necessary conditions otherwise applicable for Lectures in Higher Secondary Schools and when person(s) who had been recruited after them as TGT were considered and appointed to the post of Lecturers in the subject of Sanskrit alone. However, their prayer for being appointed as Headmaster is rejected. The State is directed to consider the cases of the appellants for promotion to the post of Lecturers in Higher Secondary Schools in view of the aforesaid observations on or before 30th June, 2012. In case the appellants are found suitable and eligible all the necessary monetary benefits shall be paid to them latest by 30th September, 2012. It is made clear that the monetary benefits, if any, shall be calculated only w.e.f. 1st August, 2002 i.e. one year prior to the filing of the original application before the erstwhile H.P. State Administrative Tribunal. In case the monetary benefits are not paid by the said date, the State shall also be liable to pay interest @ 12% per annum. On account of their promotion, in case the appellants are entitled to any further consequential benefits of promotion etc. the same shall also be granted to them latest by 30th September, 2012.
With these observations, the appeal is disposed of. No costs.