Vijay Kumar vs Union of India (UOI) and Others

M.M. Kumar, J.—The instant petition filed under Article 226 of the Constitution is directed against the order dated 22.09.2006 (P-6) passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for brevity, �the Tribunal�) dismissing O.A. No. 1192-CH-2003 filed by the applicant-Petitioner, whereby his challenge to the legality of the order dated 17.09.2003 (P-1/A-1) has been rejected to the extent that instead of promoting him as Lecturer in Physics from 20.07.1990, he had been promoted with immediate effect despite the fact that his juniors had been promoted as Lecturers in various subjects from the aforesaid date.

The facts which led to the present controversy are that the Petitioner joined as a Science Master with the Respondents in the year 1982. In 1988, he was deputed to work in the Government Model Senior Secondary School, Sector-23, Chandigarh, in his own pay scale of Master. It is claimed that he was deputed to work on the post of Lecturer in Basic Electronics. He has also claimed that his juniors have been promoted as Lecturers in various subjects excluding Physics in the year 1990-92. He has also referred to the rules for group �C�, which are known as �the Educational Services (School Cadre), Chandigarh Administration Rules, 1991� as notified on 06.02.1991 (for brevity, �the Rules�), were again amended on 03.07.1992.

When the Petitioner was not promoted as Lecturer in Physics or Electronics he preferred O.A. No. 884/CH/99 claiming promotion to the post of Lecturer. It was decided with a direction to the Respondents to consider the case of the applicant-Petitioner for his promotion to the post of Lecturer or to whichever post he is found eligible under the rules.

However, the orders passed by the Tribunal were not implemented and then he preferred C.P. No. 69/2003. During the pendency of contempt proceedings Respondents produced a copy of the order dated 09.05.2003 in which claim of the Petitioner for promotion to the post of Lecturer in Basic Electronics was rejected, he being not eligible and qualified for the said post as per orders of the Administration dated 17.07.1989. This action on the part of the Respondents was, however, challenged by him in OA No. 593/CH/2003.

With regard to the claim of the Petitioner for promotion as Lecturer in Physics, the plea of the Respondents was that no person junior to him has ever been promoted as Lecturer in Physics while denying the benefit of pay and allowances and seniority etc. to the Petitioner from due date. Aggrieved, the Petitioner filed OA No. 1192-CH-2003, questioning the legality of the order dated 17.09.2003 (P-1/A-1) to the extent that instead of promoting him as Lecturer in Physics from 20.07.1990 he had been promoted with immediate effect despite the fact that his juniors had been promoted as Lecturers in various subjects and praying for considering his case for promotion to the said post from July, 1990 vis-a-vis his juniors from the combined seniority list of integrated cadre of Masters/Mistresses with all consequential benefits, which was dismissed.

It is contended by the learned Counsel for the Petitioner that statutory rules do not require that any person is to be promoted in the subject concerned and the Respondents had been promoting the masters to the post of Lecturer irrespective of subject as would be clear from the order dated 08.10.1991 (A-13). Moreover, the learned Tribunal has wrongly read order dated 21.7.1994 (A-14) to conclude that there was no vacancy of Lecturer in Physics in the year 1994 whereas the said order clearly spell out that only one person is eligible for promotion to the post of Lecturer in Physics and at that time in the Union Territory only the Petitioner was eligible to be considered for promotion to the post of Lecturer in Physics which fact the learned Tribunal has failed to appreciate.

It has further been argued by the counsel for the Petitioner that for promotion one has to be considered on the basis of his service record when the vacancy is available for promotion and one has not to apply for promotion. Moreover, the Petitioner had submitted a representation to consider his case for promotion to the post of Lecturer in Physics and again one such representation was made on 8.4.1994 (A-15), which the Tribunal failed to look into. It has also been argued that if a person is eligible for two posts, he can apply for anyone of them. It is not that if he is working on one post for the last so many years under the valid orders of the Administration, he cannot be considered for the other post for which he is eligible.

It has also been contended by the learned Counsel that it is wrong that the Petitioner on his own accepted to teach the subject of Basic Electronics rather he was appointed there in his own pay scale vide orders dated 04.12.1990 by the Administration and that the Tribunal has confused the issue by intermingling the two OAs of the applicant-Petitioner. The claim of the Petitioner for the post of Lecturer in Physics was different than that of Lecturer in Basic Electronics. Furthermore, the Petitioner has been working as Lecturer since 12.02.1988 itself and he is entitled to the salary and allowances for the post of Lecturer under the rules and law and cannot be denied the same by the Respondents.

The learned Counsel appearing on behalf of the Respondents has argued that the Petitioner�s claim for promotion as Lecturer in Physics w.e.f. 20.07.1990 on the ground that on the said date persons junior to him were promoted as Lecturer is misconceived and no person junior to him has ever been promoted as Lecturer in Physics prior to the date of his promotion in 2003. The promotions are made subject to acquiring qualification and C.W.P. No. 16764-CAT OF 2006 availability of posts in the relevant subject and not just on the basis of seniority as alleged by the Petitioner. Therefore, the Petitioner cannot claim seniority on the ground that other persons in different subjects were promoted earlier.

It has further been contended by the Respondents that prior to the framing of the rules in the year 1991, no promotions were made to the post of Lecturer and appointments to the post were made by way of direct recruitment. The Masters serving with various schools in the U.T. Chandigarh were also eligible to appear for the interviews along with the candidates sponsored by the Employment Exchange. It was only after promulgation of the rules in the year 1991 that the posts were sought to be filled up by way of promotion. The Petitioner was eligible to the post of Lecturer in Physics but he never applied for the same when applications were called from the schools rather, he insisted for promotion to the post of Lecturer in Basic Electronics to which he was not eligible as per instructions dated 17.07.1989. Since nobody claimed promotion to the post of Lecturer in Physics, hence nobody could be considered for the same. It has also been argued that as the Petitioner had himself agreed to work against the post of Lecturer in his own pay scale, he is thus stopped from claiming the salary and allowances for the post of Lecturer retrospectively.

We have heard both the learned Counsel and perused the paper book with their able assistance. The only question before us for determination is �whether the Petitioner is entitled to be promoted to the post of Lecturer in Physics w.e.f. 20.07.1990 instead of 17.09.2003 with all the consequential benefit�.

After careful consideration of the facts and legal position on record, we find no substance in the claim of the Petitioner to give directions to the Respondents to consider his case for promotion to the post of Lecturer in Physics w.e.f. 20.07.1990 as he has failed to show us that any person junior to him has been promoted from the combined seniority list to the post of Lecturer in Physics prior to him. Petitioner�s name in the said seniority list is at Sr. No. 340 and he has also not shown us any document or order of promotion of any person below him in the seniority list who had been promoted as Lecturer in Physics prior to his promotion in 2003. Apart from this the Petitioner is found to be interested in teaching the subject of Basic Electronics which he willingly did, inspire of not being eligible for the said post as he did not possess the requisite qualifications as per the Administration�s letter dated 17.07.1989.

It is also noticed after perusal of the representations preferred by the Petitioner that he himself was not sure for which post he should be considered for promotion as sometimes he requested for promotion as Lecturer in Physics and at other times for Basic Electronics. Even regular subject of Basic Electronics has not been introduced so far in the schools and it is taught under Vocational stream.

Therefore, the Petitioner cannot claim his promotion irrespective of the vacancy in his discipline or subject on the basis of the combined seniority list prepared by the Respondents unless he shows to this Court that any person junior to him has in fact been promoted in that subject. He cannot be promoted against any other subject except Physics even if vacancy has arisen in some other subject.

After overall analysis of the facts and circumstances of the present case, we are of the view that there is no infirmity in the order dated 22.09.2006 passed by the Tribunal and in the order dated 17.09.2003 passed by the Respondents promoting the Petitioner to the post of Lecturer in Physics from immediate effect on a vacancy being available instead of promoting him from July, 1990. Therefore, the instant petition is dismissed being devoid of merit. No order as to costs.