AI Structured Summary
Not yet generated for this judgment
Judgment
This two groups of writ petitions challenge different provisions of Chhattisgarh Tribal and Scheduled Caste Development Department Educational Cadre (Gazetted), Service Recruitment Rules, 2011 (the 2011-Rules) and are opposite to each other in the sense that if one is to be allowed the other is to be dismissed:
� The first group namely WP(S)-1407, and 2241 of 2012 (serial-1 and 2) is by directly recruited Lecturers and they substantially challenged the equivalence granted to Headmasters, Middle School with the Lecturers;
� The second group of writ petitions namely WP(S)-2349, 2674, 2675, 2676, 3150 of 2012 and WP(S)-1449 of 2013 (serial-3 to 8) is by Lecturers, who are promoted from the post of Head Masters, Middle School for not including the period of their service as Head Master, Middle School for calculating the period of their qualifying service as has been in the case of those Head Masters middle school who continue to hold such post.
The Facts
Historical--The Earlier Rules
Initially, in the State, the school teachers (upto class XII) were under the following categories:
(i) Assistant Teachers upto class-V;
(ii) Head Master, Primary School (upto class V);
(iii) Upper Division Teachers (upto class-VIII);
(iv) Head Master of Middle School (upto class VIII);
(v) Lecturers (teachers from class IX to class XII); and
(vi) Principal/Vice-Principal of the Higher Secondary School (upto class XII).
The post of the Assistant Teacher was entry level post. A teacher could be promoted to the higher post and there could be direct appointment to the higher post as well.
Before the 2001-Rules, the Head Master Middle School with post graduate degree could be promoted as the Lecturers and only then to the post of Principal/Vice-Principal. There was no direct promotion to the post of Principal/Vice-Principal from the post of Head Master, Middle School. At that time, the post of Head Master, middle school was the subordinate post.
In the 1990''s, the entry level post of Assistant Teacher was declared to be a dying cadre and the power of recruitment to the different posts were given to the Panchayats. The Panchayats started recruiting Shiksha Karmis Grade-I to Grade-III instead of levels of teachers previously mentioned. Broadly, Shiksha Karmi Grade-III is equivalent to Assistant Teacher; Shiksha Karmi Grade-II is equivalent to Upper Division Teacher; and Shiksha Karmi Grade-I is equivalent to the post of Lecturer.
The aforesaid arrangement was being done under different rules made from time to time. They are jointly referred to as ''the Earlier-Rules''.
The First Group
It appears that there was some stagnation in the post of Head Master, Middle School and their experience as administrator in those schools was not properly utilised. In order to give relief to the Head Master, Middle School and utilise their experience, the State Government framed the 2011-Rules under Article 309 of the Constitution. Under the 2011-Rules, equivalence was granted between the post of Head Master Middle School and the post of Lecturer. The 2011-Rules also provide recruitment and promotion to the different posts.
The result of granting equivalence between the post of Head Master, Middle School and the post of Lecturer, is that now there is no question of promoting Head Master Middle School to the post of Lecturer but if they have minimum qualification namely a post graduate degree then they can be directly promoted to the post of Principal/Vice-Principal instead of first being promoted to the post of Lecturer. This has come about because of column-6 of serial-5 and 7 of Schedule-I, column-7 of serial-3 of Schedule-II, and column-2 of serial-3 of Schedule-IV.
In the first group of writ petitions, the Petitioners have challenged the inclusion of the words ''Head Master (Post Graduate)'' in column-7 of serial-3 of Schedule-II as well as the words ''Head Master, Middle School (Post Graduate)'' in column-2 of serial-3 of Schedule-IV. However, there is no specific challenge to column-6 of serial-7 of Schedule-I.
The Second Group
Rule 15 of the 2011-Rules is titled as ''Conditions of eligibility for promotion''. It provides the procedure and for computation for eligibility for promotion.
In pursuance of rule 157, the State has prepared a list of eligible persons. In view of the explanation to sub-rule (1) of rule 15 {15(1)}, the qualifying service of the Lecturers and Head Master Middle School (post graduate) has been computed from the date of attaining pay scale of that cadre. The result is that while those Head Masters Middle School (post graduate), who continue as such their length of service is from the first date of appointment but in case of those, who had been promoted to the post of Lecturer earlier, their length of service is being computed from the date of their becoming Lecturer: their experience as a Head Master is ignored.
In the Earlier-Rules, 5 years of minimum period of service was necessary as Lecturer for promotion to the post of Principal/Vice Principal. Now under the 2011-Rules, it has been increased to 10 years as Lecturer or Head Master Middle School (post graduate).
In the second group of writ petitions, the Petitioners have challenged,
� The validity of the aforesaid explanation and in the alternative, they claimed that this be read down so as to include their experience as Head Master, Middle School;
� The minimum period of service of 10 years prescribed in column-4 in serial-3 of Schedule IV for being promoted to the post of Principal/Vice-Principal. According to them, it should be the same as in the previous year, namely five years.
Points for Determination
We have heard counsel for the parties. The following points arise for determination in these cases:
(i) Whether equating the post of Head Master, Middle School with the post of Lecturer is illegal;
(ii) Whether providing 10 years of minimum service for promotion to the post of Principal/Vice-Principal in column-4 of serial-3 of Schedule-IV of the 2011-Rules is invalid;
(iii) Whether explanation to Rule 15(1) of the 2011-Rules is illegal.
1st Point: Equivalence is not Illegal
Rule 5 of the 2011-Rules is titled as ''Classification, scale of pay etc.'' It provides classification, posts and pay scales of the posts in service. Schedule-I is framed under this rule. Its serial-5 and 7 are as follows:
Schedule-I
(See Rule-5)
Chhattisgarh Tribal and Scheduled Caste Development Department Educational Cadre (Gazetted), Service
Rule 6 of the 2011-Rules is titled as ''Method of Recruitment''. It provides method of recruitment to different posts. Schedule-II is framed under it. Its serial-3 is as follows:
Schedule-II
(See Rule-6)
Chhattisgarh Tribal and Scheduled Caste Development Department Educational Cadre (Gazetted), Service
Rule 14 of the 2011-Rules is titled as ''Appointment by promotion''. It provides how appointment by promotion is to be made. Schedule-IV is framed under it. Its serial-3 of schedule-IV is as follows:
Schedule-IV
(See Rule-14)
Chhattisgarh Tribal and Scheduled Caste Development Department Educational Cadre (Gazetted), Service
The Petitioners in the first group of writ petitions are the directly recruited Lecturers. They have challenged the addition of the words ''Head Masters (Post Graduate)'' in column-7 of serial-3 of Schedule-II as well as addition of these words in column-2 of serial-3 of Schedule-IV.
The words ''Head Master (Post Graduate)'' in the aforesaid column has been added in pursuance of the equivalence granted to Head Masters, Middle School with the post of Lecturer. This has been done by serial-5 & 7 of Schedule-I. This is not challenged in the first group of petitions. The equivalence and the schedule is supported by State as well by the Petitioners in the second group of the WPs.
In case, the equivalence granted to the Head Master, Middle School, to the post of Lecturer is not challenged, then the challenge to the aforesaid in Schedule-II and IV in the first group of writ petitions, automatically fails. Nonetheless, without going into the technicalities of the same, we will consider whether the equivalence is illegal or not.
In order to become Lecturer or Vice Principal or Principal, the minimum educational qualification is Post Graduate. Though in Schedule-I, the post of Head Master, Middle School and Lecturer has been made equivalent, yet so far as the promotion to the post of Principal/Vice-Principal is concerned, only those Head Masters Middle School are considered, who are post graduate and are qualified to be so promoted.
The basic job of a Lecturer is to teach from class IX to class XII; whereas, the basic job of a Head Master, Middle School is to administer a school upto class VII. It is true that the Head Master does not teach class XI or XII. However, he has more experience in administering a school.
The Principal or Vice Principal is appointed in a school, which is upto class XII. Nonetheless, their basic job is administration that a Head Master of the Middle School has in abundance.
There was stagnation among the persons working on the post of Head Masters, Middle School. In order to remove the stagnation and frustration, the State Government has restructured the cadre and in its wisdom kept the experience of Lecturers in teaching class IX to XII and the experience of the Head Masters in administering the Middle School on the same level. There is neither any assertion in the writ petition, nor anything pointed to us that this equivalence is unreasonable or arbitrary.
It is essential in every service that promotional avenues are adequately provided. The entire purpose of the 2011-Rules is to give more avenues, remove stagnation and provide balance in service. It is in order to achieve this purpose that the State Government has treated the administering experience equivalent to the teaching experience in the higher school in the interest of service. Unless it is shown to be arbitrary or unreasonable, it cannot be struck down.
In view of above,
� The equivalence given to the Head Master, Middle School to the Lecturer cannot be said to be illegal or invalid;
� The first group of writ petitions have no merit and they are liable to be dismissed.
2nd Point: Minimum Service Period--not Illegal
The counsel for the second group of writ petitions submit that:
� Under the Earlier-Rules, the Lecturer could become Vice Principal or Principal within five years;
� In the 2011-Rules, this has been increased to 10 years;
� It is illegal.
It is for the employer to consider how much experience should a person have before being promoted to the higher post and often the minimum period of service is prescribed considering the number of vacancies, the number of employees, and stagnation present in that service.
The State Government has provided minimum period of service of 10 years. There is no unreasonableness in the same. It equally applies to the Lecturers as well as Head Masters, Middle School (Post Graduate). Nothing has been pointed out as to how it is unreasonable or arbitrary.
It is relevant to point out that directly appointed Lecturer, the Petitioners in the first group of WPs, have not challenged this provision.
In our opinion, the minimum period of service of 10 years provided for promotion to the post of Principal/Vice Principal is valid.
3rd Point: Explanation to Rule 15(1) is Discriminatory
Rule 15 of the 2011-Rules is titled as ''Conditions of eligibility for promotion. It provides conditions of eligibility, its computation as well as procedure for promotion.
The relevant part of Rule 15(1) of the 2011-Rules is as follows:
Conditions of eligibility for promotion.-(1) Subject to the provisions of sub-rule (2) the committee shall consider the cases of all persons who on 1st Day of January of that year had completed such number of years of service (whether officiating or substantive) in the posts, from which promotion is to be made, as specified in column (4) of Schedule-IV or any other post or posts declared equivalent there to by the Government, and are within the zone of consideration in accordance with the provisions of sub-rule (2).
Explanation-Method of computation for eligibility for promotion: The calculation of the period of qualifying services on the 1st January of the relevant year in which Departmental Promotion Committee/Scrutiny Committee is called for meeting is done from the year when the Government servant has attained the pay scale of the respective feeder cadre/post of service/post, and not from the date he has attained the pay scale.
Under the explanation, the calculation of period of qualifying service is to be taken when the government servant attains the pay scale of respective feeder/post of service/post.
There is no injustice, no difficulty in case of appointment of Head Master Middle School or directly appointed Lecturers. This date will be the date of their appointment. But the injustice arises in those cases of Lecturers, who were promoted to the post of Lecturers from the post of Head Master, Middle School.
Under the explanation to rule 15(1) of the 2011-Rules, in case Head Master Middle School was promoted to the post of Lecturer, then the period of qualifying service is the date of promotion to the post of Lecturer. Their experience as Head Master Middle School is ignored.
There are two classes, namely, those Head Masters Middle Schools who were not promoted to Lecturer and those who were so promoted. In case of the first, their experience as Head Master is being taken into account but in case of later, their experience as Head Master Middle School is being ignored. This classification is being challenged as discriminatory, unreasonable, and violative of Article 14 of the Constitution.
The courts have laid down two tests that must be satisfied before a classification may be held to be reasonable. They are as follows:
(i) The classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of this group; and
(ii) The differentia must have a rational relationship to the object sought to be achieved.1 What is necessary is that there must be a nexus between the basis of classification and the object of the provisions under consideration2.
The object of the 2011-Rules is to remove stagnation as well as provide equivalence between administrative experience and teaching class IX to XII. But this object is not achieved by ignoring experience of Head Master Middle School in cases of Lecturer, who were promoted from that post; especially when such experience is being counted for those Head Masters who could not be so promoted.
The classification--in counting the experience of Head Master Middle School who continued to be Head Master Middle School but not counting the same in case of those promoted as Lecturer--has no reasonable nexus with the object sought to be achieved; rather it defeats the same. There is no difference between those two classes so far as wanting experience of administering a Middle School is concerned.
This can be looked into from another angle as well. The courts have held (see below)3 treating unequal as equal to be violative of article 14 of the Constitution. The explanation treats the following two different classes mentioned in the next paragraph into one. This is discriminatory.
There are two classes namely the Lecturers, who are directly appointed and the Lecturers, who have been promoted from the post of Head Master, Middle School (Post Graduate). In both the cases, it takes the seniority from the date of their becoming Lecturer. This was not discriminatory, when the post of Head Master Middle School was treated to be a lower post than the post of Lecturer but once the State Government treats the post of Head Master Middle School (Post Graduate) as equivalent to the post of Lecturer, then in not taking into account the service rendered by those Lecturers as Head Master Middle School (Post Graduate) is not proper. These two fall in different classes and ought to be differently treated.
There is one more aspect to the unreasonableness. One can also look it with another angle. In case of Head Master, Middle School (Post Graduate), the experience as Head Master Middle School is taken into account, but whereas, in case of Lecturer, who was promoted from the post of Head Master, Middle School (Post Graduate), his similar experience is not being taken into account. The result is that these Lecturers who were much senior than the Head Masters, are becoming junior. This is unreasonable and arbitrary.
Under the 2011-Rules, the Head Master, Middle School has been made equivalent to the post of Lecturer. We have also upheld this equivalence while deciding the first point. In case, the qualifying service for Head Master, Middle School (Post Graduate) is from the date of his appointment on that post and the qualifying service for the post of Lecturer is from the date on that post, it does not stand to reason as to why the Lecturer, who was promoted from the post of Head Master, Middle School (Post Graduate) is not being given seniority from the date of attaining pay scale of Head Master, Middle School.
In our opinion, the explanation to Rule 15(1) of the 2011-Rules is discriminatory and declared illegal. The State Government may frame fresh explanation/rule and till it is framed, the qualifying service of the Lecturers, who have been promoted from the post of Head Master, Middle School, (Post Graduate) will be taken from the date of their appointment as Head Master, Middle School (Post Graduate). In other words, their experience as Head Master, Middle School (Post Graduate) will be taken into account.
Conclusions
Our conclusions are as follows:
(a) The equivalence granted to the post of Head Master, Middle School with the post of Lecturer under the Chhattisgarh Tribal and Scheduled Caste Development Department Educational Cadre (Gazetted), Service Recruitment Rules, 2011 is not invalid;
(b) The addition of words in column-7 of serial-3 of Schedule-II and column-2 of serial-3 of Schedule-IV in the Chhattisgarh Tribal and Scheduled Caste Development Department Educational Cadre (Gazetted), Service Recruitment Rules, 2011 is not illegal;
(c) The minimum period of service of 10 years as Lecturer/Head Master, Middle School (Post Graduate) for promotion to the post of Principal/Vice Principal is not invalid;
(d) The Explanation to Rule 15(1) of the Chhattisgarh Tribal and Scheduled Caste Development Department Educational Cadre (Gazetted), Service Recruitment Rules, 2011 is discriminatory and ultra vires the Constitution;
(e) The State Government may frame fresh explanation/rule. However, till it is so framed. The qualifying service of the Lecturers, who have been promoted from the post of Head Master will be taken from the date of their appointment as Head Master Middle School (Post Graduate). The State Government while calculating length of qualifying service such Lecturers shall include their experience as Head Master, Middle School and proceed accordingly;
In view of our conclusions, the first group of writ petitions are dismissed and the second group of writ petitions are allowed with the aforesaid directions and observations.
Headlines
Explanation to rule 15(1) of SC & ST Development Dep. Education Cadre Recruitment Rules is discriminatory.
1 Budhan Choudhry and Others Vs. The State of Bihar, ; The State of West Bengal Vs. Anwar Ali Sarkar, ; Vajravelu v. Sp. Dy. Collector, AIR 1965 SC 10917: (1965) 1 SCR 614; Mohammad Shujat Ali and Others Vs. Union of India (UOI) and Others, ; Mohd. Hanif Quareshi and Others Vs. The State of Bihar, .
2 Budhan Choudhry and Others Vs. The State of Bihar, ; The State of West Bengal Vs. Anwar Ali Sarkar, ; Vajravelu v. Sp. Dy. Collector, AIR 1965 SC 10917: (1965) 1 SCR 614; Mohammad Shujat Ali and Others Vs. Union of India (UOI) and Others,
3 Venkateshwara Theatre Vs. State of Andhra Pradesh and Others, ; Shakuntala Sharma (Mrs) Vs. High Court of H.P. at Shimla and Another, ; Secretary, Finance Department and others Vs. West Bengal Registration Service Association and others, ; All India Station Masters'' and Assistant Station Masters'' Association, Delhi and Others Vs. General Manager, Central Railway and Others, .