Hira Lal vs Government Of Nct Of Delhi And Ors.
2001 Latest Caselaw 1913 Del

JUDGMENT

D.K. Jain, J.

1. Rule.

2. Since the issue raised in the petition lies within a very narrow compass, with the consent of counsel for the parties, the petition is taken up for final disposal.

3. By this petition Under Article 226 of the Constitution the petitioner seeks to challenge the order dated 22 December 1999, whereby the Education Officer has declined to approve the promotion of the petitioner to the post of PGT (Pol. Science). the petitioner also prays for quashing of the order dated 4/6 January 2000, whereby he has been informed by the school that in view of the said communication from the Education Officer he cannot be promoted to the said post.

4. The petitioner was appointed in Atma Ram Sanatan Dharam Senior Secondary School (respondent No. 4 herein) as a language teacher against Scheduled Caste quota and at the time of his appointment he was holding a degree of M.A. in Hindi. However, in the year 1996 he acquired the degree of M.A. in Pol. Science from Meerut University by correspondence. The post of PGT (Pol. Science) in the school fell vacant on 31.8.1997. Since respondent No. 4 had considered the petitioner to be qualified and fit for promotion to the said post, it proposed his name for promotion but the DPC, scheduled to be held on 25 January 1999 was postponed. However, subsequently in February 1999 respondent No. 4 recommended the name of the petitioner for promotion to the said post to the Director of Education for approval, as according to it the petitioner was eligible for promotion in terms of recruitment rules amended vide Notification dated 26 February 1996. As noted above, the Director, by the impugned order declined to grant the approval. Hence the petition.

5. Reply-affidavits have been filed on behalf of the school and the Director of Education. Insofar as the school is concerned, it still stands by its recommendation. However, the petition is opposed on behalf of Director of Education, mainly on the ground that in view of the amendment to the recruitment rules vide Notification No. F.27(3)/94-Edn/1065-1076, dated 4 November 1999, the petitioner being a language teacher (Hindi), he was not eligible for promotion to the post of Post-Graduate Teacher (Political Science). It is pointed out that insofar as Notification dated 26 February 1996 is concerned the same had not been implemented and has been replaced by Notification dated 4 November 1999 because it had created a number of difficulties in the implementation of the recruitment rules. It is however, not disputed that if recruitment rules, as amended vide Notification dated 26 February 1996 were to be applied to the case of the petitioner, he was eligible for promotion to the said post.

6. Thus, the short question for consideration is as to whether the case of the petitioner for promotion is to be considered in terms of the recruitment rules as amended by Notification dated 26 February 1996 or the recruitment rules as amended vide Notification dated 4 November 1999.

7. I have heard learned counsel for the parties. The basic difference brought about in the recruitment rules by the said two notifications is that whereas according to the Notification dated 26 February 1996 any trained graduate teacher possessing requisite qualification, irrespective of the subject, could be promoted to the post of Post Graduate Teacher but according to the recruitment rules, as amended vide Notification dated 4 November 1999, for the post of Post Graduate Teacher in Hindi, Sanskrit etc. only trained graduate teachers/language teachers in Sanskrit and Modern Indian language could be considered for promotion to their respective subjects. Similarly, for the post of Post Graduate Teacher in other subjects only TGT (Science A, Science B, Commerce and Agriculture and General) can be considered. Therefore, according to the Director of Education, the petitioner being a language teacher (Hindi) he could not be considered for promotion to the post of Post Graduate Teacher (Political Science). However, it is not disputed on behalf of the Director that as per recruitment rules as they existed prior to the said amendment, the petitioner is eligible for promotion to the said post.

8. In my view the issue raised is no longer res integra. It is now well settled that selection to a post, whether by way of direct recruitment or by promotion is to be governed by the recruitment/promotion rules in force on the date when the relevant vacancy arose. (See: Y.V. Rangaiah v. J. Sreenivasa Rao, , Food Corporation of India v. Om Prakash Sharma, and Union of India v. Tushar Ranjan Mohanty, ). In Chairman, Railway Board v. C.R. Rangadhamaiah, , the Constitution Bench of the Supreme Court observed as follows:

"In many of these decisions the expression "vested rights" or "accrued rights" have been used while striking down the impugned provisions which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc., of the employees. The said expressions have been used in the context of a right following under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employees under the existing rules is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution."

9. In State of Rajasthan v. R. Dayal, , the Apex Court again observed that the posts which fell vacant prior to the amendment of the rules would be governed by the original rules and not by the amended rules. The Court went to the extent of saying that the vacancies that arose subsequent to the amendment of the rules are required to be filled up in accordance with the law existing as on the date when the vacancies arose and even a carry forward vacancy is required to be considered in accordance with the law existing unless suitable relaxation is made by the Government.

10. In the instant case, as noticed above, the post of PGT (Pol. Science) fell vacant on 31 August 1997 and for some reason the DPC held on 25 January 1999 could not take decision on the promotion. However, petitioner's name was sponsored for promotion in February 1999. Therefore, in view of the aforesaid settled legal position the case of the petitioner for promotion had to be considered as per the recruitment rules amended vide Notification dated 26 February 1996. A valuable right had accrued in favor of the petitioner on the amendment of the promotion rules by virtue of the said notification. This right could not be taken away by the subsequent Notification dated 4 November 1999. Admittedly, the petitioner fulfills the requisite qualification/criteria for promotion to the said post in terms of Notification dated 26 February 1996. In my opinion, therefore, the Directorate of Education was not justified in declining to grant approval to the recommendation of respondent No. 4 for promotion of the petitioner on the basis of Notification dated 4 November 1999. The impugned decision is not in consonance with the settled legal position and therefore, cannot be sustained.

11. For the foregoing reasons the petition is allowed and the rule is made absolute. Order dated 22 December 1999 is set aside. The Director of Education is hereby directed to consider the recommendation of respondent No. 4 in terms of the recruitment rules amended vide notification dated 26 February 1996. The final decision in this behalf shall be taken as expeditiously as practicable but not later than ten weeks from today. It goes without saying that if, in view of the above observations the Director comes to the conclusion that the recommendation of respondent No. 4 has to be approved, he would also fix the date from which the petitioner is deemed to have been promoted to the said post.

12. For the view I have taken it is unnecessary to go into the validity of Notification dated 4 November 1999.

13. There will be no order as to costs.