Uttarakhand High Court
Trivuwan Chandra Lobiyal And Others ... vs State Of Uttarakhand And Others on 8 April, 2024
Author: Pankaj Purohit
Bench: Manoj Kumar Tiwari, Pankaj Purohit
HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (S/B) No. 135 of 2024
Trivuwan Chandra Lobiyal and others ........Petitioners
Versus
State of Uttarakhand and others ........Respondents
With
Writ Petition (S/B) No. 139 of 2024
Writ Petition (S/B) No. 141 of 2024
Present:-
Mr. Vinay Kumar and Mr. Vikas Pandey, learned counsel for the
petitioners in WPSB No.135 of 2024.
Mr. Vinod Tiwari, learned counsel for the petitioners in WPSB No.139 of
2024.
Mr. M.C. Upadhyaya and Mr. A.M. Saklani, learned counsel for the
petitioners in WPSB No.141 of 2024.
Mr. G.S. Negi, learned Additional Chief Standing Counsel with Mr.
Shushil Vashistha, learned Standing Counsel for the State.
Dated: 08th April, 2024
Coram : Hon'ble Manoj Kumar Tiwari, J.
Hon'ble Pankaj Purohit, J.
Per: Hon'ble Manoj Kumar Tiwari, J.
Since common question of law and facts are involved in
these writ petitions, therefore these are being heard and decided by this
common judgment, however for the sake of brevity facts of WPSB
No.135 of 2024 alone are being considered and discussed.
2. The reliefs sought in Writ Petition (M/S) No.135 of 2024
are reproduced below:
"(i) Issue a writ, order or direction in the nature of Mandamus declaring the Rule 8
and Proviso to Rule 5(3)(b) of the Service Rules,2022 (Annexure No. 1 to this writ
petition) as Ultravires to Article 14 and 16 of the Constitution of India being
Arbitrary, irrational, unreasonable and discriminatory in nature in as much as it
deprives the Petitioners from participating in Limited Departmental Examination on
an irrational and unreasonable differentiation criteria.
(ii)Issue a writ, order or direction in the nature of Certiorari calling for the record and
quashing the Clause 4 of the advertisement dated 11th March 2024 (Annexure No...2
this Writ Petition) so far as it prescribe that the candidates should have minimum 50%
marks in Post Graduation in as much as there was no such requirement at the time of
induction in service on the post of Lecturer.
iii) Issue a Writ, order or direction in the nature of mandamus directing the
Respondents to treat the Petitioners candidature as eligible for participating in the
Limited Departmental Examination for promotion on the post of Principal
Government Inter College of the State, pursuant to the advertisement dated 11th
March, 2024, based on the Educational and Training qualification possessed by the
petitioners.
(iv)Issue a Writ, order or direction in the nature of mandamus directing the
Respondents to grant relaxation in the conditions of service of having 50% in Post
Graduation, in view of the provisions contained in Rule 20. of the Principal Service
Rules, 2022 (Annexure No.1 to the Writ Petition), in order to enable the Petitioners to
participate in the Limited Departmental Examination pursuant to the advertisement
dated 11th March 2024 (Annexure No.2 to the Writ Petition)."
3. Petitioners are serving as Lecturer in different Government
Intermediate Colleges ('G.I.C.' for short), within State of Uttarakhand.
Some of them were appointed by direct recruitment through Public
Service Commission; while, others were initially appointed as Assistant
Teacher, L.T. Grade and, thereafter, were promoted to the post of
Lecturer. The next promotional post available to Lecturer is Head
Master, Government High School, which impart education upto Xth
Standard.
4. Government of Uttarakhand, in exercise of its Rule making
power under proviso to Article 309 of the Constitution, framed
Uttarakhand State Education (Teaching Cadre) Gazetted Service Rules,
2022, which were notified, on 15.09.2022. The said Rules deal with
recruitment and other conditions of service of Head Master/Head
Mistress, Government High Schools and Principal of Government
Intermediate Colleges (for short 'G.I.C.'). Rule 5(1) of the said Rules
provides that 45% of the total posts of Head Master/Head Mistress,
Government High Schools, shall be filled by promotion of Lecturers
serving in G.I.C. and 55% of the posts shall be filled by promotion of
Assistant Teacher, L.T. Grade serving in Government High Schools.
5. Rule 5(3)(a) of the said Rules provides that 50% post of
Principal, G.I.C. shall be filled by promoting Head Master, Government
High School on the criteria of seniority subject to rejection of unfit. Rule
5(3)(b) however provides that the remaining 50% posts of Principal,
G.I.C. shall be filled by limited departmental examination from amongst
Head Master, Government High Schools and Lecturers of G.I.C. Rule
5(3)(b) thus opens an additional promotional avenue for Lecturers of
G.I.C. to the post of Principal, G.I.C., which was not available to them
earlier. Petitioners are aggrieved by the requirement of passing Post
Graduate examination with minimum 50% marks, which is added as a
condition of eligibility for participating in the limited departmental
examination, by Rule 8 of the aforesaid Rules.
6. For ready reference Rule 5(3)(b) and Rule 8 of the aforesaid
Rules are extracted below:
"5. Different category of posts in the service shall be filled from the following
sources:
(1)..........
(2).........
(3) Principal, Government Inter College (General Cadre)
(a) 50 percent by promotion from amongst such substantively appointed Headmaster,
Government Higher Secondary school who possess degree of Post Graduation from
university established under law in India and who have completed atleast five years of
continuous service as such on the first day of year of recruitment, through selection
committee on the basis of Seniority subject to rejection of unfit.
(b) 50 percent by promotion from amongst Headmaster, Government Higher
Secondary School working under the State Government and Lecturer Government
Inter College (General Branch) as per the Merit list of the Limited Departmental
Examination to be conducted by Public Service Commission.
Substantively appointed such Head Master who have completed 02 years continuous
satisfactory services in the said capacity on the first day of year of recruitment and
compulsorily possess the Educational and Training qualification as prescribed in Rule
8, will be eligible for participating in Limited Departmental Examination.
Substantively appointed such Lecturer Government Inter College (General Branch)
who have completed 10 years continuous satisfactory services in the said capacity on
the first day of year of recruitment and compulsorily possess the Educational and
Training qualification as prescribed in Rule 8, will be eligible for participating in
Limited Departmental Examination.
Substantively appointed such Assistant Teacher (L.T.) grade who have been promoted
on the post Lecturer but they have completed minimum 10 years substantive services
as Lecturer and compulsorily possess the Educational and Training qualification as
prescribed in Rule 8, will be eligible for participating in Limited Departmental
Examination
Note:- Concerned Appointing Authority will issue certificate regarding satisfactory
service of the candidate applying for Limited Departmental Examination.
Essential Educational/ Training Qualification:
8. Candidate eligible for the Limited Departmental Examination should possess the
Degree of Post Graduation with minimum 50% marks from any University or
Institution established under Law AND should compulsorily possess B.Ed. or
Equivalent qualification.
7. All the petitioners possess Post Graduate Degree in different
subjects, however, the marks scored by them in Post Graduate
examination is less than 50%, therefore, by virtue of Rule 8 read with
Rule 5(3)(b) of the aforesaid Rules, they are rendered ineligible for
appearing in the limited departmental examination, consequently, they
have challenged validity of Rule 8 and Rule 5(3)(b) of the Rules
governing recruitment to the post of Principal, G.I.C. It is not in dispute
that as Lecturer, mode of recruitment and conditions of service of the
petitioners are governed by different set of Service Rules.
8. Heard learned counsel for the parties and perused the
record.
9. Learned counsel for the petitioners contended that
petitioners meet all conditions of eligibility for appearing in the limited
departmental examination, as they have completed 10 years continuous
satisfactory service as Lecturer; they possess B.Ed. qualification and they
all are below 50 years of age, therefore, denying them the opportunity to
participate in limited departmental examination only on the ground that
their score of marks in Post Graduate examination was less than 50%, is
unjust and irrational. It is further contended that for appointment by
direct recruitment as Lecturer, there is no such condition of scoring
minimum 50% marks in Post Graduate examination, therefore, this
condition of 50% marks could not have been added so as to exclude the
petitioners from the zone of consideration for promotion to the post of
Principal, G.I.C.
10. Elaborating his submission, learned counsel for the
petitioners contended that the condition of having 50% marks inserted by
Rule 8 of the relevant rules, creates a class within a class and Lecturers,
who scored less than 50% marks in Post Graduate examination, are
altogether ousted from the field of eligibility for limited departmental
examination. This, according to him, amounts to hostile discrimination,
without any valid reason. He further contended that the classification
made by Rule 8 between Lecturers, who constitute a homogeneous class,
based on score of marks in Post Graduate examination alone, has neither
any intelligible differentia nor any nexus with the object sought to be
achieved. He further contended that since petitioners have served as
Lecturer for sufficiently long period of time, therefore, the marks scored
by them in Post Graduate examination cannot now be taken as a yardstick
for adjudging their suitability for promotion through limited departmental
examination.
11. Learned State Counsel points out that before enforcement of
the Rules in question, which were notified on 15.09.2022, Lecturers had
only one promotional avenue i.e. to the post of Head Master, Government
High School, which has not been disturbed and petitioners can be
promoted as Head Master, based on their seniority notwithstanding the
fact that they scored less than 50% marks in Post Graduate examination.
He, thus, contends that the new avenue of promotion to the post of
Principal, G.I.C., which has been opened by the Rules notified on
15.09.2022, is in addition to the quota, which was available to Lecturers,
G.I.C. earlier.
12. Learned State Counsel points out that the post of Head
Master, which was the only promotional post available to Lecturers
earlier, is subordinate to the post of Principal, G.I.C. and the Rules in
question provide 50% quota to Head Master, Government High School
for promotion to the post of Principal, G.I.C. Thus, he submitted that a
Lecturer, who gets selected in limited departmental examination held as
per Rule 5(3)(b) of the Service Rules, will be directly promoted as
Principal, G.I.C. bypassing the intermediate level post of Head Master,
while Lecturers, who are not promoted under Rule 5(3)(b), will be
promoted as Headmaster, Government High School against 45% quota
available to them under Rule 5(1). Thus, he submits that, for promotion
to the post of Principal, G.I.C. under Rule 5(3)(b), a Lecturer should be a
cut above the other Lecturers, therefore, the prescription of condition of
50% marks in Post Graduate examination is necessary to ensure that only
persons with calibre are permitted to sit in the limited departmental
examination. He submits that a Lecturer, with less than 50% marks, if
directly promoted as Principal, G.I.C., through limited departmental
examination, will set a poor role model for the students, thus, the State
Government was justified in putting a condition that for limited
departmental examination, a candidate should be academically sound, as
reflected from his/her performance in Post Graduate examination.
13. In the case of State of Jammu & Kashmir Vs. Shri Triloki
Nath Khosa & others, reported in (1974) 1 SCC 19, it has been held by
Constitution Bench of Hon'ble Supreme Court that classification based
on educational qualification, is valid. It was further held in the said
judgment that where a party seeks to impeach the validity of a rule made
by a competent authority on the ground that the Rule offends Article 14,
the burden is on him to plead and prove the infirmity and further that
there is always a presumption in favour of the constitutionality of an
enactment and the burden is upon him who attacks it to show that there
has been a clear transgression of the constitutional principles.
14. Learned State Counsel has defended Rule 8 and Rule
5(3)(b) of the Service Rules by contending that classification, based on
marks scored in Post Graduate examination, has a definite purpose,
namely, to promote academic excellence in the cadre of Principal, G.I.C..
Learned State Counsel contended that young students of High School and
Intermediate classes have a impressionable mind and if a person with
poor academic record is given accelerated promotion as Principal through
limited departmental examination, then it will set a wrong example and
negative feeling would develop amongst students that performance in
School/University examinations is of little significance and the students
may thus become lax in their attitude.
15. Learned State Counsel is right in submitting that there is a
presumption in favour of constitutionality of a Statute and heavy burden
lies upon a person, who attacks a Statute on the ground that it is
unconstitutional. Article 16 of the Constitution ensures equality of
opportunity in matters of public employment. The equality clause
contained in Article 14, is much wider in its application. Hon'ble
Supreme Court, in the case of State of Jammu & Kashmir Vs. Shri
Triloki Nath Khosa & others (Supra), held that the concept of equal
opportunity undoubtedly permeates the whole spectrum of an individual's
employment from appointment through promotion and termination to the
payment of gratuity and pension. But the concept of equality has an
inherent limitation arising from the very nature of the constitutional
guarantee. Equality is for equals. Since the constitutional code of
equality and equal opportunity is a charter for equals, equality of
opportunity in matters of promotion means an equal promotional
opportunity for persons who fall, substantially, within the same class. A
classification of employees can therefore be made for first identifying and
then distinguishing members of one class from those of the other.
16. Learned counsel for the petitioners contended that, by the
impugned provision, classification is made not with reference to
educational qualification, but based on marks scored in Post Graduate
examination, as all Lecturers are having Post Graduate Degree and the
only basis for making classification, is marks scored in Post Graduate
examination. This, according to petitioners, is not permissible.
17. In the case of State of Jammu & Kashmir Vs. Shri Triloki
Nath Khosa & others (Supra), it was held by Hon'ble Supreme Court that
classification must be truly founded on substantial differences which
distinguish persons grouped together from those left out of the group and
such differential attributes must bear a just and rational relation to the
object sought to be achieved and further that judicial scrutiny can
therefore extend only to the consideration whether the classification rests
on a reasonable basis and whether it bears nexus with the object in view
and it cannot extend to embarking upon a nice or mathematical
evaluation of the basis of classification, for where such an inquiry is
permissible, it would be open to the Courts to substitute their own
judgment for that of the legislature or the Rule-making authority on the
need to classify or the desirability of achieving a particular object.
18. For appointment to the post of Teacher, the Employer or a
Regulatory Body like National Council for Teacher Education (N.C.T.E.)
or University Grants Commission (U.G.C.) can lay down a minimum
standard, in terms of marks scored by a candidate in any one or more than
one examination and anyone, who is not meeting the minimum standard,
may be declared to be ineligible. Such condition cannot be said to be ex-
facie arbitrary or irrational. Although, prescription of a minimum
percentage of marks as a condition of eligibility for appointment to a post
may result in classification and candidates, whose score of marks is less
than the minimum marks fixed by the Employer/Regulatory Body, would
be ousted from the field of eligibility, however, such classification cannot
be declared to be bad, so long as there is an intelligible differentia
between persons grouped together from those left out of the group and
there is nexus with the object sought to be achieved.
19. It is not the case of the petitioners that, because of the
classification made by Rule 8 read with Rule 5(3)(b) of the Service
Rules, their right to be considered for promotion has been taken away or
that they will suffer stagnation for want of promotional avenue. In fact,
the promotion avenue, which was available to them before 2022, is still
available to them and all Lecturers, irrespective of their marks in Post
Graduate examination, are eligible for promotion to the post of Head
Master, Government High School, as per their seniority.
20. In the case of "S.P. Biswas & others Vs. State Bank of
India, reported in 1991 Supp (2) SCC 354, while considering challenge
thrown to Promotion Policy, which permitted certain number of
vacancies to be filled through merit channel and the remaining through
seniority channel, Hon'ble Supreme Court held as under:
"Our conclusion is that no infirmity rendering this policy arbitrary and, therefore,
assailable on that ground is disclosed. Keeping in view the laudable object of
attracting academically brilliant candidates into the Bank's service as officers by direct
recruitment by giving incentive of accelerated promotion to the most meritorious
amongst them who maintain a high standard of achievement is conducive to public
interest and cannot be faulted. Of the several heads under which the marks are divided
for promotion to Merit Channel, written test and interview are the only ones which
depend on the current performance."
21. In the case of "Chandan Banerjee & others Vs. Krishna
Prosad Ghosh & others, reported in (2022) 15 SCC 453, Hon'ble
Supreme Court has summarized the legal position on the issue of
classification in the context of public employment in paragraph no.28 of
the judgment, which is reproduced below:
"28. The principles which emerge from the above line of precedents can be
summarised as follows:
28.1. Classification between persons must not produce artificial inequalities. The
classification must be founded on a reasonable basis and must bear nexus to the object
and purpose sought to be achieved to pass the muster of Articles 14 and 16.
28.2. Judicial review in matters of classification is limited to a determination of
whether the classification is reasonable and bears a nexus to the object sought to be
achieved. Courts cannot indulge in a mathematical evaluation of the basis of
classification or replace the wisdom of the legislature or its delegate with their own.
28.3. Generally speaking, educational qualification is a valid ground for classification
between persons of the same class in matters of promotion and is not violative of
Articles 14 and 16 of the Constitution.
28.4. Persons drawn from different sources and integrated into a common class can be
differentiated on grounds of educational qualification for the purpose of promotion,
where this bears a nexus with the efficiency required in the promotional post.
28.5. Educational qualification may be used for introducing quotas for promotion for a
certain class of persons; or may even be used to restrict promotion entirely to one
class, to the exclusion of others.
28.6. Educational qualification may be used as a criterion for classification for
promotion to increase administrative efficiency at the higher posts.
28.7. However, a classification made on grounds of educational qualification should
bear nexus to the purpose of the classification or the extent of differences in
qualifications."
22. In the case of Chandan Banerjee & others Vs. Krishna
Prosad Ghosh & others (Supra), Hon'ble Supreme Court has reiterated
that judicial review in cases where classification is challenged, is limited
to a determination of whether the classification is reasonable and bears a
nexus to the object sought to be achieved and further Courts cannot
indulge in a mathematical evaluation of the basis of classification or
replace the wisdom of the legislature or its delegate with their own.
23. In view of the discussion made above, the classification
made amongst Lecturers, based on the marks scored by them in Post
Graduate examination, cannot be said to be without any intelligible
differentia. Selection for public employment is merit based and the
contention raised by petitioners, if accepted, will have far reaching
consequences. The classification made by Rule 8, cannot be termed as
without nexus to the object sought to be achieved. The object is to
consider only such Lecturers for promotion to the post of Principal,
whose academic performance in Post Graduate examination is upto a
certain standard and those who are not able to meet required standard,
can still be considered for promotion to the post of Head Master,
Government High School, as per Rule 5. No argument was advanced on
behalf of petitioners regarding prospective or retrospective operation of
the Rules notified, on 15.09.2022, therefore, this Court is not considering
the said aspect in this judgment.
24. Even otherwise also, State as an employer, has certain
inherent rights. One of such right is to prescribe eligibility conditions for
appointment to a post under the State. Courts interference with the
eligibility condition prescribed by the State Government in the Service
Rules would be warranted only when it neither has any intelligible
differentia nor has any nexus with the object sought to be achieved; in
other words, the conditions prescribed are so irrational which no
reasonable person could have prescribed.
25. As per the Constitutional Scheme, appointment to services
and posts in connection with the affairs of Union or of a State has to be
made strictly as per merit and the only exception to this Rule is
appointment given to weaker sections of society by way of affirmative
action. Thus, the contention raised on behalf of petitioners that the
classification based on marks scored in Post Graduate examination is not
permissible, cannot be accepted. Since merit is a constitutionally
accepted criteria of selection for appointment to public services,
therefore, classification based on merit in the qualifying examination/
Post Graduate examination, cannot be said to be invalid. Thus, the
challenge thrown by petitioners to validity of Rule 8 read with Rule
5(3)(b) of Uttarakhand State Education (Teaching Cadre) Gazetted
Service Rules, 2022, is without any substance. The advertisement issued
in terms of the said Rules, therefore also cannot be interfered with. The
writ petitions therefore are liable to be dismissed and are hereby
dismissed. There will be no order as to costs.
(Pankaj Purohit, J.) (Manoj Kumar Tiwari, J.)
SK
