Amandeep Kaur v. State Of Punjab And Others
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH 102+208 CWP-33364-2019 (O&M) Date of Decision: 10.05.2024 1) Amandeep Kaur
...Petitioner
Versus
State of Punjab and others
...Respondents
CWP-26808-2019 (O&M) 2) Neha Kaushal
...Petitioner
Versus
State of Punjab and another
...Respondents
3) CWP-27874-2019 (O&M) Baljeet Singh and others
...Petitioners
Versus
State of Punjab and others
...Respondents
4) CWP-33663-2019 (O&M) Gurdev Singh
...Petitioner
Versus
State of Punjab and others
...Respondents
5) CWP-31361-2019 (O&M) Satnam Singh
...Petitioner
Versus
State of Punjab and another
...Respondents
6) CWP-31734-2019 (O&M) Satnam Singh
...Petitioner
Versus
State of Punjab and another
...Respondents
7) CWP-15717-2022 (O&M) Kalu Ram
...Petitioner
Versus
State of Punjab and another
...Respondents
CORAM: HON'BLE MR. JUSTICE AMAN CHAUDHARY ****
Present:
Mr. Rishav Sharma, Advocate for the petitioners in CWP-26808, 31361 & 31734-2019 and CWP-15717-2022 Mr. Jasbir Mor, Advocate for the petitioners in CWP-27874 & 33663-2019 Mr. Bhavyadeep Walia, Advocate for the petitioners in CWP-33364-2019 Mr. Manipal Singh Atwal, DAG, Punjab *****
AMAN CHAUDHARY J. (Oral) 1.
These cases involve similar issues and therefore, are being disposed of together by this common judgment. 2.
The prayer in the present petitions is for quashing the impugned action of the respondents of withholding the result of the petitioners for recruitment to the post of Head Teacher and to select and appoint them on the said post.
3.
Learned counsel submits that the petitioner in CWP-33364-2019 had applied against the advertisement dated 08.03.2019 for the post of Head Teacher under the General Category and had secured 158 marks, whereafter, her name figured in the merit list at serial No.65, whereas, the last selected candidate, scored 156 marks. Her candidature had been rejected only on the premise that she gained experience as Guest Faculty and from the State of Haryana.
4.
Learned counsel in connected matters, submit that candidature of the petitioners has been primarily rejected on the ground that their experience gained was as Guest Faculty, that too from the States other than Punjab, however, they are in merit, having obtained marks higher than the last selected candidate.
5.
This Court had, vide interim orders passed in CWP-27874, 33663, 31361 and 31734-2019 directed the respondents to keep one post vacant for each petitioner therein.
6.
The issues involved in these cases are covered on all fours by the judgment by this Court in Jyoti Bala vs. State of Punjab and others, CWP-14513-2020, decided on 12.03.2024, wherein the experience garnered
by the petitioner therein as 'Guest Faculty' and from a State, other than Punjab was ordered to be considered valid in terms of the Rules and the advertisement by observing thus:
"4. Having heard the learned counsel on either side, the questions that arise for consideration would be: i. Whether only the experience that was gained from a service rendered in a government school of State of Punjab was to be taken into consideration ? ii. Can by way of a decision taken in a meeting of the administrative authorities, the Statutory Rules be clarified/ over-ridden/ amended?
iii. Whether the required experience has to be whilst working on regular basis?
5. Apropos the main pivot of resistance offered on behalf of the State, it would be apposite to refer to the qualifications and experience required as per the 2018 Rules, in accordance with which, the advertisement was taken out, which read thus:
"(i) should possess Bachelor's Degree from a recognised university or institution with atleast 50% marks as per guidelines of the University Grants Commission.
(ii) Should possess two years Elementary Teachers Training course from a recognized university or institution or two years Diploma in Elementary Education (D. El. Ed.) as per guidelines of the National Council for Teachers Education or Bachelor Degree in Education (B. Ed) from a recognised university or institution as per guidelines of the University Grants Commission and (iii) should possess teaching experience of working as Primary School Teacher for a minimum period of three years in a Central/State Government School. However, a prospective candidate must have acquired such experience after acquiring the minimum educational and professional qualifications specified for the posts under these rules."
6. Notably from the above, it transpires that the Rule making authority had in its wisdom sought to enlarge the scope and ambit of the participation by opening the doors
of candidacy to those employed in the Central Government schools, that would ipso facto imply to those spread across the nation. Reading in conjunction with the above, the word 'State' incorporated therewith, would expressis verbis reveal that the Rule envisaged that the service for the experience to be taken into consideration of those desirous of being appointed can be from the government schools beyond the territory of its own State. Thought behind it, apparently was to give a wider competition base and to choose the best.
7. The submission of the learned State counsel that the meaning of service in the 'State' as per 2018 Rules, of which the experience is required, is liable to be construed as acquired only from the Government schools of the respondent-State, is on the anvil of the clarification given by an administrative authority, being in teeth with the fundamental proposition of service jurisprudence, that administrative instructions cannot supplant the statutory rules, as held in State of Haryana vs. Shamsher Jang Bahadur, (1972) 2 SCC 188, reiterated on numerous occasions including S. Sivaguru vs. State of Tamil Nadu , 2013 (7) SCC 335. The power to issue these is even otherwise, vested only in the authority that is competent to frame the statutory rules under proviso to Article 309 of the Constitution of India, in absence of rules. [See Ajay Kumar Bhuyan vs. State of Orissa , (2003) 1 SCC 707]
8. Limiting the scope of the advertisement to a particular State is a way of fostering and strengthening narrow parochial loyalties to that State, or in other words the 'sons of the soil' policy, which was explained in and cautioned against by Hon'ble the Supreme Court in the case of Dr. Pardeep Jain and others vs Union of India and others, (1984) 3 SCC 654. Appointments to public posts should be strictly in accordance with Articles 14 and 16 of the Constitution of India. Eligibility criteria should be uniform and there cannot be scope of arbitrary selections by unfettered discretion being vested in the authorities, as was held by Hon'ble the Supreme Court whilst approving the conclusion arrived at by the Division of the High Court. (See State of Jammu and Kashmir vs. Shaheena Masarat , (2021) 13 SCC 304).
9. On a panoramic evaluation, firstly, there can be no restrictive interpretation as sought to be projected, that would result in the infringement of the rights of citizens for the purpose of appointment; secondly, the professional qualifications required for the post by the 2018 Rules, are as per guidelines of the NCTE/UGC, that have a uniform
application across board; thirdly, it is not a case set up that the post of a teacher in a government school in the State of Haryana, is not equivalent in terms of duties and responsibilities in any manner, to that in the respondent-State; and the above, when coupled with the usage of the word 'Central' in the Rules/Advertisement, would necessarily include all those candidates, who work in schools run under the aegis of the Central Government and its instrumentalities, in the entire country, as eligible to apply, this Court is impelled to answer the first two questions against the respondent-State. As a sequitur, the cancellation of the candidature of the petitioner on the premise of, she having worked in a government school, beyond the territorial boundaries of the respondent-State, is hereby declared to be perverse and illegal, having in it, no nexus with the object sought to be achieved.
10. Moving ahead, to the third question, of teaching experience required of working in primary schools, the word 'regular', is conspicuous by its absence, in the Rules ibid.
11. To proceed further to determine the aforesaid, it would be profitable to refer to Dr. Ravinder Pal Kaur vs. State of Punjab and others , (1979) 2 SLR 645, wherein it had been observed and held that, there is hardly any difference insofar as teaching experience is concerned whether gained on ad hoc appointment or on regular, since the Statutory Rules do not confine it to regular appointment, thus that of the petitioner as Assistant Professor Radiology on ad hoc basis from May 11, 1973 to February 19, 1976, cannot be ignored to determine her eligibility for appointment as Professor in Medical College, Patiala. Further, in CWP-2246-2008 titled as Rai Singh vs. Kurukshetra University, Kurukshetra , decided on 18.08.2008, it was held that appointment on contract basis is also a type of adhoc service.
Even the mere fact that nominal breaks are given or lesser pay is given or increments are not granted, is no ground to treat the said service differently. Denial of benefit to those working on contract basis, cannot be held to be any rational basis, as they stand on same footing as employees appointed on adhoc basis.
12. This Court in Baljit Kaur vs. State of Punjab, CWP-421-2008 decided on 21.04.2009, observed and held that, "...It is now admitted position on record that the petitioner secured the highest marks on the basis of laid down criteria in Female B.C. Category. The certificate issued in favour of the petitioner indicates that the petitioner had the requisite experience though the
certificate indicates that the petitioner was a part-time Lecturer. The statutory rule only prescribes seven years teaching experience. It is not provided under the Rules that the experience should be as a whole timer or in a particular institution. Only teaching experience is required which the petitioner had to her credit at the time of making application for selection/ appointment."
13. The Division Bench of this Court in D.P. Mehta (Dr.) vs. P.G.I. and its Governing Body, 1997 (1) RSJ 501, had observed that in ordinary parlance, experience means "an actual living through something and coming to know it first hand rather than through hearsay or report". According to Webster 3rd New International Dictionary, 'experience' means "being engaged in a particular activity; direct observation of or participation in events, encountering, undergoing or living through things in general as take place in the course of time." The post of Joint Medical Superintendent could be filled up "from amongst Deputy Medical Superintendents having five years experience". Since the rule did not postulate that the incumbent should have worked on the post for five years on regular basis but only required that he should have an experience as a Deputy Medical Superintendent, the plea raised that petitioner is not eligible, having worked on grant of additional duties of the post, it was held cannot, thus, be sustained.
14. In Sec., Eng. Department, U.T. Adm., Chandigarh vs. Vipin Gupta and another , CWP-12679-2010 decided on 25.10.2010, the Division Bench noticed that, a perusal of Rule 6 and Appendix 'B', made it clear that for becoming eligible for promotion to the post of Executive Engineer, a Sub Divisional Engineer must have experience of working for minimum period of eight years. It was thus held that the expression 'working experience' cannot be construed to mean that he must have gained the experience while working on a permanent substantive post on which he has been appointed on regular basis.
In other words, long term regular promotion would not be necessary to gain experience of working because whether a person works on a post in his capacity as ad hoc/current duty charge holder/temporarily his nature of duties continues to be the same which any regularly promoted person would require to discharge. Reinforcing the above, in Chief Engineer, UT. vs. Ram Sarup Walia and others, CWP-77-2012, decided on 06.01.
"...In our view, 'the working experience' cannot be construed to mean that he must have gained the regular experience while working on a permanent substantive post on which he has been appointed on regular basis."
15. The irresistible conclusion arrived at is that the term 'Guest faculty' is a misnomer, as an employee working in a stopgap arrangement, be it as part time, contractual, guest etc, are all in effect 'ad hoc'. The aspect to be seen is the sphere of their duties, responsibilities and the quantum of work in terms of classes taken and subjects taught, regarding which evidently, a certificate in this case, of the Head Teacher, Govt. Primary School, Budhi Medi (Sirsa) had been produced, which remained unrefuted, stating therein that as a J.B.T. Teacher, the subjects of regular teacher and guest teacher remained same.
16. In a comprehensive yet concise consideration of the abounding judicial pronouncements, that this Court has implored itself with, which are found to be intrinsically in favour of the proposition, in view thereof, the second plank of argument, as sought to be canvassed by the State can equally not be countenanced. As a fall out of the above, the right of the petitioner has been wrongly eclipsed, on her being a guest faculty.
17. Though there is no dispute as regards the legal proposition laid down in the judgement relied upon by the learned State Counsel, but its ratio does not apply to the facts of the present case, inasmuch as, it is not the plea taken that employees serving in the respondent-State possess special skills and knowledge by virtue of having been trained under specific State run schemes, as was the premise of the said case, nor do any of the peculiarities as referred to therein, exist.
18. Conspectus analysis of the interwoven issues, renders the action of the respondent-State, on both counts, to be palpably arbitrary and violative of Articles 14 and 16 of the Constitution. As a corollary, there being left no impediment in consideration of the petitioner, the respondents are directed to appoint her, subject to the merit position in the selection. She will be entitled to notional seniority, pay fixation etc, but not actual monetary benefits."
7.
Learned State counsel despite his best efforts, has been unable to controvert the factual position and draw out any distinctive aspects in the aforementioned judgment or cite any contrary law. However, he submits that
the State be granted liberty to verify the appointments of the petitioners, whereupon they gained experience and the certificates. 8.
In view of the aforesaid, the present petitions are disposed of directing respondents to consider and appoint the petitioners, subject to their merit positions in selection and verification of their appointment/experience certificates, within a period of two months. In case of issuance of appointment letters, it is clarified that they shall be entitled to only notional seniority, pay fixation etc, but not actual monetary benefits. 9.
Pending applications, if any, also stand disposed of. 10.
A photocopy of this order be placed on the file of connected cases.
(AMAN CHAUDHARY) JUDGE 10.05.2024 Hemant Whether speaking/reasoned :
Yes / No Whether reportable :
Yes / No