Rajasthan High Court - Jodhpur

Smt. Shanti Choudhary vs State Of Rajasthan ... on 19 May, 2023

Bench: Vinit Kumar Mathur

[2023/RJJD/016366]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 2144/2023

Smt. Shanti Choudhary W/o Late Dilip Kumar Dudi D/o Mahendra Singh Choudhary, Aged About 41 Years, Resident of Chokhla, Tehsil Baytu, District Barmer (Raj.).

----Petitioner Versus

1. The State of Rajasthan, through the Secretary, Department of Education, Government of Rajasthan, Secretariat, Jaipur.

2. The Director (Secondary Education), Government of Rajasthan, Bikaner, Rajasthan.

----Respondents

For Petitioner(s) : Mr. Devkinandan Vyas For Respondent(s) : Mr. Hemant Choudhary, GC

HON'BLE MR. JUSTICE VINIT KUMAR MATHUR Order

19/05/2023

Heard learned counsel for the parties.

The present writ petition has been filed with the following

prayers:-

"(i) By an appropriate writ, order or direction, the Petitioner may kindly be granted benefit of notional Seniority and other consequential benefits while considering her date of appointment as 16.09.2013 as per order dated 04.07.2022.

(ii) By an appropriate writ, order or direction, the Respondents authorities may kindly be directed to conduct review DPC for the promotion year 2018-2019 for post of Principal, Senior Secondary School and to include the Petitioner therein while granting benefit of Seniority from 16.09.2013.

(iii) By an appropriate writ, order or direction, the Respondent authorities may kindly be directed to grant promotion to the Petitioner against the vacancies of the year 2018-2019 for the post of Principal, Sr. Secondary School.

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(iv) By an appropriate writ, order or direction, the Respondents may kindly be directed to grant all consequential benefits to the Petitioner after giving promotion against the vacancy for the year 2018- 2019."

Initially, the petitioner has filed a writ petition at Jaipur

Bench of this Court being S.B. Civil Writ Petition

No.10590/2014 (Smt. Shanti Choudhary Vs. State of

Rajasthan & Ors.) and the same has been allowed by the

Hon'ble Court in the following terms:-

"Keeping in view thereof, while setting aside the decision of the RPSC in denying the experience gained by the petitioners, cost of Rs.25,000/- is imposed on the respondents to be paid to the petitioners. Further, the respondents are directed to consider the case of the petitioners for appointment on the post of Headmaster in terms of their merit and also give all the consequential benefits of notional seniority etc. from the date their juniors have been so appointed. The actual payment shall be made from today. Exercise aforesaid shall be completed positively within a period of 15 days from the date of production of this order to the respondents."

In pursuance of the judgment of this Court dated

20.09.2019, the petitioner joined on the post of

Headmaster/Lecturer on 05.08.2020.

The petitioner is working on the post of Headmaster (now re-

designated as Vice Principal), Secondary School. One of the

petitioner's junior namely Sunita Kumari Meena, who was

appointed on 16.09.2013 was considered and promoted for the

post of Principal vide order dated 29.05.2018. The petitioner

preferred a representation dated 28.10.2022 for grant of

promotion on the post of Principal at par to his junior Sunita

Kumari Meena. The representation of the petitioner has yet not

[2023/RJJD/016366] (3 of 6) [CW-2144/2023]

been decided and is still pending consideration with the

respondent department. Hence, the present writ petition.

Learned counsel for the petitioner vehemently argued that

since the petitioner's writ petition was allowed by this Court vide

order dated 20.09.2019 with a direction to the respondents to

grant all consequential benefits, therefore, the petitioner is also

entitled to be promoted on the post Principal vis-a-vis Sunita

Kumari Meena w.e.f. the order dated 29.05.2018. Learned counsel

further submits that the order of notional benefits includes

consideration of the petitioner's case for promotion on the post of

Principal even though she is not having requisite experience of

three years to her credit. He also submits that in identical

situation, this Court has allowed the writ petitions by passing an

order in S.B. Civil Writ Petition No.4479/2022 (Rakesh

Kumar Meena and Ors. Vs. State of Rajasthan & Ors.)

decided on 04.02.2023. He submits that the writ petition may be

allowed and the respondents may be directed to grant promotion

to the petitioner on the post of Principal w.e.f. the date on which

Sunita Kumari Meena was granted promotion on the post of

Principal.

Per contra, learned counsel for the State submits that the

prerequisite condition for promotion to the post of Principal is that

a person must have experience of actual serving on the post of

Headmaster/Lecturer for a period of three years and since the

petitioner has not completed a period of three years on the post of

Headmaster/Lecturer, therefore, she is not eligible to be promoted

on the post of Principal. Learned counsel for the respondents

further submits that granting of notional benefits cannot waive the

[2023/RJJD/016366] (4 of 6) [CW-2144/2023]

condition precedent i.e. actual experience of working on the post

of Headmaster/Lecturer for three years, for grant of promotional

post. He, therefore, submits that the petitioner will be granted the

benefit of promotion on the post of Principal at par with her junior

on the date on which she attains the eligibility as per rules for

promotion to the post of Principal. He, therefore, submits that the

writ petition is premature and is liable to be dismissed.

I have considered the submissions made at the Bar and have

gone through the relevant record of the case.

The facts with respect to the appointment and the earlier

writ petition preferred by the petitioner are not disputed,

therefore, the only point remains for consideration in the present

case is that whether the petitioner is entitled for promotion on the

post of Principal without having gained the experience of three

years' actual working on the post of Headmaster/Lecturer.

For better adjudication of the case, Schedule 1 of the Rules

of 1970 is reproduced as under:-

Group 'D' Section-II S.N Method of Minimum Post or Minimum Maxim o. Name of recruitme qualificat posts from qualifications um nt with ion and which and experience age Post percentag experien promotion required for limit e ce for is to be promotion for direct made direct recruitm recruit ent ment

[1. [33% by [xxx] [Group 'F' [Master's Degree [xxx]

(a) Principal, promotion posts] in addition to from qualifications Higher Sec. Headmaster prescribed for Secondary Headmasters School/BSTC School and Secondary School 67% by with three years

[2023/RJJD/016366] (5 of 6) [CW-2144/2023]

promotion experience on /RTC (Boys) from posts mentioned Lecturer in column number School 5] Education]

A bar perusal of the Rules and the Schedule appended to the

Rules clearly show that a Headmaster/Lecturer will be considered

for promotion to the post of Principal only if he/she has performed

the duties of Headmaster/ School Lecturer for a period of three

years. In the opinion of this Court, the actual working experience

on the post of Headmaster/Lecturer is a condition precedent for

consideration of a candidate for the post of Principal. The notional

benefits as ordered by this Court cannot mean to waive the

conditions of eligibility prescribed under the Rules for

consideration of a candidate for higher/promoted post. The

petitioner's case is liable to be considered for promotion on the

post of Principal only after she gains the experience of three years'

actual working on the post of Headmaster/School Lecturer besides

other eligibility conditions mentioned in the Schedule.

The view taken by this Court is fully supported by a

judgment of Hon'ble the Supreme Court rendered in Union of

India Vs. M. Bhaskar, reported in (1996) 4 SCC 416, which

are as under:-

"Much emphasis has been laid by the respondents on the judgment in the case of M. Bhaskar (supra) wherein, the Hon'ble Supreme Court inter-alia observed as under:

15. The aforesaid decision has been challenged in this appeal by the Union of India by contending that 2 years' period of experience has to be reckoned, not from 11.10.1988, but from 21.9.1989. There is no dispute that the eligibility condition is 2 years experience in Grade-II. Now, this respondent having

[2023/RJJD/016366] (6 of 6) [CW-2144/2023]

really started working in Grade-II pursuant to the order of 21.9.1989, he could not have gained experience prior to the date he had joined pursuant to this order. The mere fact that his promotion in Grade- II was notionally made effective from 11.10.1988 cannot be taken to mean that he started gaining experience from that day, because to gain experience one has to work. Notional promotions are given to take care of some injustice, inter alia, because some junior has come to be promoted earlier. But we entertain no doubt that the person promoted to higher grade cannot gain experience from the date of the notional promotion; it has to be from the date of too actual promotion."

In view of the discussion made above, the present writ

petition is disposed of with a direction to the respondents to

consider the case of the petitioner for promotion on the post of

Principal by holding the review DPC after she completes three

years of working experience on the post of Headmaster (now re-

designated as Vice Principal) in accordance with the Rules. If the

petitioner is promoted on the post of Principal, she shall be

granted benefits at par with her junior Sunita Kumari Meena. She

will be granted actual benefits from the date he assumes charge of

Principal and notionally w.e.f. the date on which Sunita Kumari

Meena was granted promotion on the post of Principal.

The order has been passed based on the submissions made

in the petition, the respondents would be free to examine the

veracity of the submissions made in the petition and only in case,

the averments made therein are found to be correct, the petitioner

would be entitled to the relief.