Nanak Chand vs State of Punjab

Rajesh Bindal, J.—Compliance report by way of affidavit of Sanjay Kumar, Principal Secretary to Government of Punjab, Department of General Administration and Coordination dated 23.4.2014 and additional affidavit of Dr. Kamal Kumar, Director of Public Instruction (Secondary Education), Punjab filed in court, are taken on record. This order will dispose of C.W.P. Nos. 4274 and 24106 of 2011 and 9974 of 2012, as common questions of law and facts are involved.

However, the facts have been extracted from C.W.P. No. 4274 of 2011.

The petitioner herein is working as Workshop Attendant and is seeking promotion to the post of Social Study Master. For the purpose, reliance has been placed upon the instructions dated 25.4.1972 and 26.9.2001. A reference has also been made to an earlier order passed by the authorities, whereby promotion to similarly situated employees had been given.

It is not in dispute that in terms of the Punjab State Education Class III (School Cadre) Service Rules, 1978 (for short, ''the Rules''), Workshop Attendant is not a feeder cadre for promotion to the post of Master. In the absence thereof, no direction can be issued to the State to consider and promote the petitioner to the post of Master. The instructions Ems'' issued by the Government, which are contrary to the Rules, do not Ce supersede the statutory provisions of the Rules. The same are extracted 0 below:

It has been stated in the affidavit dated 24.7.2013 filed by Roop Lal Roop, District Education Officer (SE), Kapurthala that the Rules were amended vide notification dated 8.7.1995, which provided for promotional avenues to the Workshop Attendants. The case of the petitioner can be considered for promotion to the promotional post, as mentioned in the amended Rules in terms of the qualification and experience required. Twenty-five per cent each of the posts of Work Experience Teacher, Vocational Teacher (Carpentry), Vocation Teacher Motor Mechanical and Vocational Teacher (Radio Mechanic) have been reserved to be filled by way of promotion from Workshop Attendants having requisite qualification and experience. The relevant Rules are extracted below:

Considering the aforesaid factual matrix, the petitioner cannot claim promotion from the post of Workshop Attendant to that of Social Studies Master, hence, his claim to that extent is rejected. However, as there CD-in the Rules itself, promotional avenues have been provided to the Workshop Attendants, the case of the petitioner and all other similarly situated employees be considered for promotion as per the quota prescribed in case he fulfils the requisite qualification and have the - experience.

The writ petitions are disposed of accordingly.

The matter cannot be left at this stage. This Court in 1996 (2) S.C.T. 727 : C.W.P. No. 4208 of 1996, Gurdeep Singh Gill v. State of Punjab and others, decided on 21.3.1996, while dealing with the prayer of the petitioner therein for Z promotion as Art and Craft Teacher from the post of Workshop Attendant in CL terms of the circular dated 25.4.1972, opined that once the State had decided to frame the rules in exercise of its power under the Constitution of India for recruitment of teachers, that field must be deemed to have been occupied by those rules. If the rules do not provide for promotion to the post of teachers from a particular post, it is not open to the Government to issue administrative instructions to create new source of recruitment. Any such instructions are liable to be ignored being contrary to the statutory rules. Despite this fact, even subsequent to the aforesaid judgment, the State had issued instructions dated 26.9.2001, 17.4.2003 and 2.5.2003 providing for promotional avenues to certain employees, who were not part of the feeder cadre for a post as per the statutory notified rules. On 4.2.2014, this court had passed the following order:

"The claim made by the petitioners in the present cases is regarding their promotion from Workshop Attendants to that of Masters. It is not in dispute that Punjab State Education Class III (School Cadre) Service Rules, 1978, do not provide for Workshop Attendants as a feeder cadre for the promotion to the post of Masters. Learned counsel for the petitioners have placed reliance upon instructions issued by the Government on 25.4.1972, 26.9.2001, 17.4.2003 and 2.5.2003. In fact, all these instructions have been issued in contravention to the statutory rules governing the post of Masters. An identical issue has already considered by this Court in 1996 (2) S.C.T. 727 : C.W.P. No. 4208 of 1996, decided on 21.3.1996, Gurdeen Singh Gill v. State of Punjab and others, wherein it was opined that where the Government has decided to frame rules in exercise of its power under the Constitution of India or an Act for recruitment to the post of teachers that field must be deemed to have been occupied by those rules. If the rules do not provide for promotion to the post of teachers from Class IV post, it is not open to the Government to issue administrative instructions to create any source of recruitment/promotion. Instructions issued on 25.4.1972 were under consideration in the aforesaid judgment.

In view of the aforesaid Division Bench judgment of this Court, prima facie, the instructions issued subsequently providing for additional sources for promotion to the post of Masters, which is not provided for in the statutory rules, are clearly violative of law laid down by this Court.

Let Ms. Anjali Bhawra, Principal Secretary, Education, appear in person in Court, on the next date of hearing and explain why the State has issued instructions which run contrary to Rules and the law laid down by this Court. In the affidavit of Dr. Kamal Kumar, Director of Public Instruction (Secondary Education), Punjab filed today, it is stated that instructions dated 26.9.2001 and 2.5.2003, which are in knowledge of the department, have been withdrawn with immediate effect vide letter dated 6.3.2014. It is further stated that vide letter dated 22.4.2014, it has been decided that till such time necessary provisions are made in the service rules, no promotion should be made keeping in view the instructions issued. Further, it is stated that efforts are being made to trace out other instructions, which have not been included in the service rules. As and when these come to their notice, the same shall be withdrawn."

In the affidavit of Sanjay Kumar, Principal Secretary to Government of Punjab, Department of General Administration and Coordination, which has been filed today, it is stated that instructions have been issued to all the departments concerned on 22.4.2014 to the following effect:

"3. That vide the above mention instructions dated 22.4.2014 (R-1) all the concerned have been instructed as under: 1. That it is brought to your notice that all the instructions/circulars issued till date which are contrary to the statutory Rules in Departments should not be implemented.

That it should be brought to the notice of all the concerned officers/officials so that all the instructions/circulars issued till date which are contrary to statutory Rules be withdrawn.

That in future, if any instruction/circular is to be issued that should be in accordance with the law."

Be that as it may, no doubt, the aforesaid two affidavits have been filed on behalf of the State, but still the fact remains that despite specific judgment pertaining to the Education Department being there dealing with the issue that no promotion should be made on the basis of administrative instructions if the statutory rules do not provide for such a promotion, still the instructions were issued on 26.9.2001, 17.4.2003 and 2.5.2003. The same has not only resulted in creating avoidable litigation but shows conduct of the officer issuing instructions that he has no respect for the judgment of this court. The action of the officer concerned is prima fade contemptuous.

Learned counsel for the State seeks time to apprise the court about the officer, who had approved issuance of these instructions so as to proceed against him in accordance with law. It is directed that in future, if any instructions are to be issued, the same shall be first got vetted from Law Department, which shall specifically deal with and mention in the instructions the provisions in the statutory Rules, vis-�-vis instructions.

The cases be listed for the purpose on 1.5.2014.

Copy of the order be sent to Chief Secretaries and Legal Remembrancers of.