Smt. Prabha Bhatnagar vs State of U.P. and others

B. Dikshit, J.—The question which arise for determination in this petition is as to whether a Professor at Government Central Pedagogical Institute, Allahabad (in short ''Institute'') belonging to Women''s Branch and appointed under Rule 5 (4) of U. P. Educational Teaching (Subordinate Gazetted) Rules. 1993 (in short ''Subordinate Gazetted Service Rules'') is entitled for the benefit so that her service may come to an end at the end of academic session on 30th June in view of Government Order No. 7022/15 (1)/83-31 (16)/77 dated 21.3.1934 read with Government Order No. 1239/19-93-31 (14)/95 dated 20.4.1995? The question has arisen as petitioner attained the age of superannuation in the month of October, 1998 when a notice dated 13.10.1998 was served on her by Principal of Institute to hand over charge on 31.10.1998 to another Professor on attaining the age of superannuation.

The facts, in brief, relevant for determining present controversy are that petitioner was working as an Assistant Teacher (Music) L.T. Grade at Rajkiya Kanya Vidyalaya, Handia, district Allahabad in the year 1987 when she was transferred to institute as Assistant Teacher L.T. Grade (Music). During her continuance at Institute, she was promoted as Lecturer (Music). When Uttar Pradesh Subordinate Educational (Lecturer''s Cadre) Service Rules. 1992 (in short Lecturer''s Cadre Service Rules) were enforced, she became member of that cadre and her service conditions stood governed by said Rules. Subsequently, she was promoted as Professor in Women''s Branch during her continuance at Institute. The, present controversy has arisen as Principal of Institute served a notice dated 13.10.1998 on petitioner directing her to hand over charge of the post to another Professor on 31.10.1998. The reason given in said letter for such a direction is that the petitioner was completing age of 58 years, i.e., the age of superannuation. The petitioner being aggrieved by said direction has filed this petition. According to petitioner, she could not be directed to hand over charge in view of Government Order No. 1239/19-93-31 (14)/95 dated 20.4.1995. The said Government Order provides that teachers of Government institutions shall continue, under certain conditions, till end of the academic session on attaining age of superannuation, which means till 30th June next after attaining the age of superannuation. The petitioner''s case is that as she fulfils the condition mentioned in Government Order, she is entitled to continue till end of academic session 1998-99, which is till 30th June. 1999.

The condition which is attracted, which entitles her to continue till end of academic and known as Session''s benefit, according to petitioner is that teachers who were actually teaching some subject regularly are entitled to continue till end of academic session. The petitioner''s case is that as she is holding a teaching post of professor and is teaching psychology to students of L.T. Course, therefore, she is entitled to such a benefit. The Principal of institute has disputed petitioner''s claim that she is regularly teaching. According to Principal, petitioner is a Research Professor and is not associated with the teaching work and is not entitled for the benefit claimed. The Principal in counter-affidavit has claimed that the institute is a department of State Council for Educational Research and Training. Lucknow and its main function is to conduct research on various educational subjects, conduct surveys on educational problems and arrange workshop on these topics. Besides aforesaid functions. It has also to look after development of curriculum of secondary and primary education as well as preparation of textbooks for them. As according to Principal, the petitioner is associated with research work, therefore, she is not entitled for session''s benefit. Counter-affidavit and rejoinder-affidavit have been exchanged and as the counsel for petitioner and standing counsel agreed that the writ petition be heard and disposed of finally at this stage of admission, therefore, the writ petition has been heard and is being finally disposed of in accordance with rules of the Court.

The learned counsel for petitioner argued that the petitioner being member of Lecturers cadre under Lecturer''s Service Rules, she is entitled to continue till end of academic session, which has been opposed by learned standing counsel. The learned standing counsel contended that the service condition of petitioner are to be governed by U. P. Educational Teaching (Subordinate Gazetted) Service Rules. 1993 (in short ''Subordinate Gazetted Service Rules''). The learned counsel for petitioner also argued that as petitioner was not doing teaching work, therefore, she is not entitled to continue till end of academic session.

It is admitted case of parties that petitioner''s conditions of service are governed by Lecturers Service Rules after their enforcement in the year 1994. It is also not disputed that before her becoming Professor also, the Lecturer''s Service Rules were applicable to her. The appointment of petitioner as Professor has been under Rule 5 of Subordinate Gazetted Service Rules. Rule 5 of Subordinate Gazetted Service Rules is as under :

"5. Source of recruitment.--Recruitment to the various categories of posts in the service shall be made from the following sources : Provided that if sufficient number of suitable eligible persons are not available for promotion to the posts mentioned at serial numbers (1) and (3) above the field of eligibility may be extended by the Government giving relation in the length of service."

Men''s Branch

(1) Head Master. Government Higher Secondary School ; Head Master, Normal School Head Master, Training College : Head Matter, Extension Teachers Training Centre, Government Inter College : Vice �Principal Government Junior Basic Training College : Research Professor/ Professor/Project Officer. State Hindi Institute. Varanasi: Assistant Officer. Text Books Office: Deputy Registrar. Departmental Examination: Assistant Secretary; Assistant Takniki Board of High School and Intermediate Education Uttar Pradesh, Allahabad and its regional offices.

By promotion through the Selection Committee In the ratio of 34 per cent and 55 per cent respectively from amongst substantively appointed men''s branch:

(i) Lecturers who have completed three years service as such on the first day of the year of recruitment ; and

(ii) Assistant master (L.T. Grade) who have completed twelve years service as such on the first day of the year of recruitment.

(2) Professor. Government Central Pedagogical Allahabad English Language Teaching Institute. Allahabad: Lecturer, State Institute of Science Education, Allahabad: Production Officer. Text Book Office. Lucknow, and Superintendent Agriculture. Directorate of Education. Uttar Pradesh, Allahabad.

By Transfer from amongst officers who possess the qualifications Appendix 11.

Women''s Branch

(3) Head Mistress Government Girls Higher Secondary School, Head Mistress. Government Girls Normal School: Vice-Principal, Government Girls

By Promotion though the Selection Committee in the ratio of 45 per cent and 55 per cent respectively from amongst substantively

Intermediate College; Vice-Principal Government Girls C.T. Training College. Lucknow -Professor. Government L.T. Training College For Women. Allahabad and Sanyukt Adhikshika, Bal Bhawan, Lucknow.

appointed. (i) Lecturers who have completed three years service as such on the first day of the year of recruitment ; and

(ii) Assistant Mistress (L.T. Grade) who have completed twelve years service as such on the first day of the year of recruitment.

(4) Vice-Principal. Government Girls Home Science Training College, Research Lecturer. Home Science Training College. Allahabad; Vice-Principal. Government Girls Physical Training College. Allahabad; Vice-Principal. Nursery Training College. Allahabad; Professor.Government Central Pedagogical institute. Allahabad; Assistant Professor English Language Allahabad and Lacture. Institute of Science Education, Ailahabad:

By Transfer from Serial Number (3).qualifications mentioned against each post in Appendix II.

Provided that if sufficient number of suitable eligible persons are not available for promotion to the posts mentioned at serial numbers (1) and (3) above the field of eligibly may be extended by the Government giving relation in the length of service."

The above rule lays down that posts mentioned at serial Nos. (1) and (3) of Rule 5 are to be filled up by promotion while those at serial Nos. (2) and (4) by transfer. The difference of filling up of post by promotion and transfer is well known under service jurisprudence. The rule-making authority was well aware about the distinction of the two and, therefore, it has used word ''promotion'' in respect of posts at serial Nos. (1) and (3) whereas those under serial numbers (2) and (4) have been left to be filled by transfer. The post in question is mentioned under serial No. (4) of Rule 5 to be filled up by transfer by transferring either a lecturer who has completed three years as lecturer or an Assistant Mistress (L.T. Grade) who has completed twelve years service as such. As by transferring an employee from one post to another does not affect the status of an employee, so far his membership of cadre to which he or she belongs, the lecturer neither ceases to be member of Lecturer''s Service Cadre nor she becomes member of Uttar Pradesh Educational Teaching (Subordinate Gazetted) Service. A transfer normally involves transfer to a post of cadre and not outside it. There is nothing In the rule to indicate that on transfer to a post mentioned under Rule 5 at serial No. (4), the cadre of the lecturer serving under Lecturer''s Service Rule will change. Thus, by being posted as Professor on a post created under serial No. (4) of Rule 5, the petitioner did not cease to be member of cadre created under Lecturer''s Grade Service Rules and her condition of service continued to be governed by said rule.

There is another reason due to which we consider that the petitioner did not cease to be member of Lecturers Cadre. The power to transfer an employee embeds in it power to transfer a person from time to time. There is nothing in the rule to indicate that once the Director of Education (Secondary) Uttar Pradesh (in short "Director of Education'') exercised his power, then it stood exhausted. If petitioner is accepted as member of Subordinate Gazetted Service by transfer, then on transfer, it is to be concluded that power of Director of Education stands exhausted. No such intention of rule-making authority has been shown by learned standing counsel and therefore, if the Director of Education in exercise of power posted petitioner, who is a lecturer on a post mentioned in Rule 5 at serial No. (4). then that lecturer can be posted back on the post from which she was transferred. It is surprising that petitioner is being dealt with as member of Subordinate Gazetted Service. Therefore, we are of opinion that petitioner''s services being governed by Lecturers Service Rules. the posting of petitioner as Professor at Central Pedagogical Institute did not have the effect of making her member of Subordinate Gazetted Service Rules.

Even under Subordinate Gazetted Service Rules petitioner did not become its Member. This is apparent from perusal of said rules. Rule 3 (f) defines "Member of Service" a person substantively appointed under rules or orders in force prior to commencement of Subordinate Gazetted Services Rules, to a post in the cadre of the service. According to Rule 3 (g), "service" means Uttar Pradesh Educational Teaching (Subordinate Gazetted) Service. Under Rule 3 (h) "substantive appointment" means an appointment not being an ad hoc appointment on a post in the cadre of the service, made after selection in accordance with the procedure prescribed for the time being or by executive instructions issued by the Government Part IV, of the Subordinate Gazetted Service Rules provides for recruitment. Rule 8 deals with recruitment by promotion through a selection committee. It lays down procedure for preparing select list. Part V of said Rules provides for appointment, probation, confirmation and seniority. Under Rule 9 appointing authority has to make appointment by taking the name of the candidates in order in which they stand in list. Rule 10 provides for probation for a period of three years, which can be extended upto two years. Rule 11 provides for confirmation of probationer after expiry of period of promotion if work and conduct is reported satisfactory and integrity is certified. Rule 12 provides that persons substantively appointed in any category of posts in the service shall be determined in accordance with the Uttar Pradesh Government Servants Seniority Rules. 1991, as amended from time to time. These rules speak about selection. probation and confirmation of service in cases of promotions only and not those who are transferred. They also lay down that only those persons are members of Uttar Pradesh Educational Teachers (Subordinate Gazetted) Service who are promoted, after selection. The rules provide for only such persons to be member of cadre. As those who are transferred are not selected and substantively appointed, therefore, they continue in the cadre from which they are transferred. Therefore, the petitioner being a transferee continued as member of lecturers cadre.

The question then arise for consideration is if petitioner can continue till end of academic session in view of Government Order No. 7022/15 (I)/83-31 (16)/77 dated 21.3.1984. The petitioner case is to be considered keeping in view the position mentioned earlier. The petitioner is seeking session''s benefit in this case in view of Government Order No. 7022/15 (1)/83-31 (16)/77 dated 21.3.1984. One of the condition for granting benefit of said Government Order is that the teacher must be teaching one of the subject regularly at the time of attaining age of superannuation during mid-academic session. There is dispute between parties about work, which was being done by petitioner. The petitioner claims that she was teaching on the date when she attained the age of superannuation while according to Principal she was looking after research work and was not teaching. This Court while considering case of a Professor working at Central Pedagogical Institute held in Civil Miscellaneous Writ Petition No. 29756 of 1998. Rajput Pandey v. State of U. P. and others, decided on 2.5.1997 that the Professor, who was doing teaching work at institute, is entitled for benefit under Government Order. As to whether petitioner is actually teaching a subject regularly or not is a question of fact for which parties have filed documentary evidence to support their contention but the disputed question of fact cannot be determined by this Court in a writ petition. Faced with such a situation. the learned counsel for parties confined themselves to legal aspect on admitted facts. The learned counsel for petitioner, keeping in view that this Court cannot determine factual dispute, contended that the claims of petitioner be examined assuming that petitioner was assigned some research work. We proceeded to hear arguments on that basis.

It is not in dispute that petitioner was doing teaching work till she became professor at institute in August 1997, a post which is to be filled up by transferring a Lecturer or Assistant Mistress of L.T. Grade. There is no provision for obtaining consent of the members of Lecturer''s Service for being posted on a post of Professor at institute. The learned standing counsel could not point out anything of the kind by which a lecturer could refuse the appointment. This indicates that Director of Education is free to post any lecturer who is member of Lecturers Service on the post just by passing a transfer order. In case change of cadre by transfer is accepted in such circumstances, without the consent of affected teacher, merely by unilateral act of Director of Education, then it will be most unreasonable. The service of an employee from the cadre he is working cannot be allowed to be transferred to another cadre without his consent. It is also relevant in this respect that no guidelines as to how a person is to be selected and posted have been placed before us despite our asking and, therefore, if by such transfer a change of cadre is accepted, then it will be unreasonable as well as against the Subordinate Gazetted Service Rules In considering such a person to member of that service whom rules do not contemplate. This will also bring in accrual of benefit of academic session at the sweet will of Principal of institute. It means that if Principal entrusts teaching work to a teacher, then the teacher will continue and if he does not assign such a work, then the teacher will stand deprived of such benefit. Such a situation cannot be allowed, especially when there is no indication for any such thing in the rules.

The learned standing counsel cited a Division Bench judgment of this Court dated 14.3.1997 passed in Civil Miscellaneous Writ Petition No, 8962 of 1997. Sarju Prasad Yadav v. State of U. P. and others. The Division Bench while considering the case proceeded on the basis that the institute does not have any academic session. It appears that the finding that institute did not have any session was recorded on the basis of order passed on representation, which finding the petitioner of that case did not dispute. The case is distinguishable as in present case the petitioner disputed the finding that institute is having academic session. She claimed that the institute has been assigned teaching work also, the academic session of which begins on 1st July every year and ends on 30th June of next year. Although the averments made in writ petition that institute has academic session has been disputed by Principal of the institute, a folio in respect of introduction of institute (Annexure-C.A. 1 to counter-affidavit) provides that the work at institute is of two kind, one being that of research while the other relates to teaching for L.T. Training classes. It has also not been disputed that petitioner was initially transferred in the year 1987 as L.T. Grade Teacher (Music) and continued taking classes as Lecturer (Music) of students of L.T. Course. In such circumstances, as the own document filed by opposite party establishes that teaching work also goes on at institute, which has academic session. the case cited if distinguishable under aforesaid circumstances and it is held that the Institute is engaged in teaching besides research work.

Keeping in view the aspect that cadre of a member of Lecturer''s Service cannot get changed without the consent of concerned employee as well as considering that allowing such transfer will be unreasonable as the conditions of service by unilateral act of Director of Education will stand changed, we hold that a teacher posted by Transfer to a pos mentioned under Rule 5 at serial No. (4) of Uttar Pradesh Educational Teaching (Subordinate Gazetted) Service Rules, 1993, continues to be the member of the service from which he or she is transferred and does not become member of service constituted under Uttar Pradesh Educational Teaching Subordinate Gazetted Service Rules. We further hold that every member of lecturer cadre constituted under Lecturers Service Rules shall be entitled for the academic sessions benefit and it is not left on Principal of the institute to retire a lecturer by assigning non-teaching work.

Examining the petitioner''s case in the light of aforesaid aspects. It is to be held that petitioner continues as a member of service constituted under Lecturers Service Rules during her continuance on the post of Professor under Women''s Branch constituted under Rule 5 serial No. (4) of Uttar Pradesh Educational Teaching Service Rules. 1993 and is entitled to the sessions benefit.

For aforesaid reason the writ petition is allowed, the order dated 13.10.1998 passed by principal. Central Pedagogical Institute, Allahabad (Annexure-8 to writ petition) is quashed and the Principal of Central Pedagogical Institute is directed to re-instate the petitioner with full benefits of the academic session by continuing her till 30th June, 1999.