C.W.P. No.19788 of 2008 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.19788 of 2008 Date of Decision.02.07.2012 Sukhbir Singh son of Sh. Ramphal, officiating Head of the Department of Electronics & Communication Engineering Department, Chhotu Ram Polytechnic Rohtak (Haryana) .....Petitioner Versus State of Haryana through Secretary, Technical Education Department, Haryana, Civil Secretariat, Chandigarh and others .....Respondents Present: Mr. R.K. Malik, Senior Advocate with Mr. Vijay Dahiya, Advocate for the petitioner. Mr. Kshitij Sharma, AAG, Haryana for respondent Nos.1 and 2. Mr. Nilesh Bhardwaj, Advocate for respondent Nos.3 and 4. Mr. Girish Aganihotri, Senior Advocate with Mr. Arvind Seth, Advocate, Mr. Gunjan Mehta, Advocate and Mr. Vijay Pal, Advocate for respondent No.5. 2. C.W.P. No.1915 of 2009 Jat Education Society (a society registered under the Societies Registration Act), Delhi Road, Rohtak, Haryana through its President and another .....Petitioners Versus The State of Haryana, Technical Education Department through the Financial Commissioner and Secretary, Haryana Civil Secretariat, Chandigarh and another .....Respondents Present: Mr. Nilesh Bhardwaj, Advocate for the petitioner. Mr. Kshitij Sharma, AAG, Haryana for respondent Nos.1 and 2. 3. C.W.P. No.1975 of 2009 Parveen Kohar son of Sh. Chander Bhan Kohar, resident of B-16, Staff C.W.P. No.19788 of 2008 -2- Quarters, C.R. Polytechnic, Rohtak .....Petitioner Versus State of Haryana through its Financial Commissioner and Principal Secretary, Technical Education Department at Haryana Civil Secretariat, Chandigarh and others .....Respondents Present: Mr. Gunjan Mehta, Advocate for the petitioner. Mr. Kshitij Sharma, AAG, Haryana for respondent Nos.1 and 2. Mr. Ravinder Malik, Advocate for respondent Nos.3 and 4. 4. C.W.P. No.2838 of 2009 Jai Kanwar son of Sh. Pali Ram, Head of the Department of Electronics and Communication Engineering, resident of House No.B-22, Staff Quarters, C.R. Polytechnic, Rohtak .....Petitioner Versus State of Haryana through its Financial Commissioner and Principal Secretary, Technical Education Department at Haryana Civil Secretariat, Chandigarh and others .....Respondents Present: Mr. Gunjan Mehta, Advocate for the petitioner. Mr. Kshitij Sharma, AAG, Haryana for respondent Nos.1 and 2. Mr. Nilesh Bhardwaj, Advocate for respondent No.3 and 4. 5. C.W.P. No.14868 of 2011 Jai Kanwar son of Sh. Pali Ram, Head of the Department of Electronics and Communication Engineering, resident of House No.888, Sector 3, Rohtak (Haryana) .....Petitioner Versus State of Haryana through its Financial Commissioner and Principal Secretary to Government Haryana, Technical Education Department Haryana Civil Secretariat, Chandigarh and others .....Respondents C.W.P. No.19788 of 2008 -3- Present: Mr. Girish Agnihotri, Senior Advocate with Mr. Arvind Seth, Advocate Mr. Gunjan Mehta, Advocate and Mr. Vijay Pal, Advocate for the petitioners. Mr. Kshitij Sharma, AAG, Haryana for respondent Nos.1 and 2. Mr. Nilesh Bhardwaj, Advocate for respondent No.3 to 5. Mr. R.K. Malik, Senior Advocate with Mr. Vijay Dahiya, Advocate for respondent No.6. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes/No 2. To be referred to the Reporters or not ? Yes/No 3. Whether the judgment should be reported in the Digest? Yes/No -.- K. KANNAN J. 1. The petitioner challenges the action of the Jat Education Society arrayed as the 3rd respondent in its decision to fill up the post of the Head of the Department, Electronics and Communication Engineering in the college that it is running namely Chhotu Ram Polytechnic, Rohtak arrayed as the 5th respondent by way of direct recruitment, which is purported to be in violation of the Rules and the directions given by the State Government. The petitioner's case is rested on a contention that the relevant Rules governing the appointment to the post as the Head of the Department provide for appointment by promotion to 75% of the posts and by directment recruitment to 25% of the posts, and having regard to the fact that the post of Head of the Department is a single post, in terms of the Government instructions dated 14.03.2008, it has to be filled up only by C.W.P. No.19788 of 2008 -4- promotion. The cause of action for the petition is an advertisement notification issued on 25.11.2008 calling for eligible candidates for appointment to the post, inter alia, for Head of the Department by direct recruitment. The petitioner's further contention is that as per the relevant Rule, which is the Haryana Technical Education Department (Group A) Service Rules, 1986, the requirement of academic qualification and experience is 12 years as Lecturer in Electronics and Communication Engineering out of which 2 years experience must be as Senior Lecturer in Electronics and Communication Engineering and that the candidate must have a 1st Class Bachelor's degree in Electronics and Communication Engineering and Technology from a recognized University/Institute with 8 years experience as Lecturer in Electronics and Communication Engineering in a University or College affiliated to University or 8 years professional experience on a gazetted Electronics & Communication Egnineering post with knowledge of Hindi upto matriculation standard. The petitioner would contend that he had the necessary experience and he had actually been working as Head of the Department since 17.09.2001 itself and the selection, which is purported to have been made through direct recruitment of the 5th respondent was irregular against the relevant Recruitment Rules. 2. The contention of the petitioner is contested by the 5th respondent on the ground that the direct recruitment was always permissible under the Rules if there was no person eligible for consideration for appointment by promotion and the petitioner's qualifications themselves did not merit consideration of the petitioner to the post. The objection with reference to the qualification is on the C.W.P. No.19788 of 2008 -5- basis that the petitioner deliberately does not give the necessary details of his teaching experience as Lecturer and the documents produced by the petitioner as Annexure P-1 merely describes himself as follows:- "05.02.1996 to 28.06.1996 Lecturer 06.08.1996 to 12.02.1997 Lecturer 01.04.1997 to 14.08.1997 Lecturer 22.09.1997 to 30.08.2006 Lecturer 31.08.2006 to till date Senior Lecturer" From the above information, according to the learned Senior Counsel for the 5th respondent, the petitioner did not have a continuous service of 8 or 12 years as contemplated by the Rules. He had been a conractual appointee in various institutes at various times and he had been regularly appointed only on 22.09.1997 with the 4th respondent institute. His experience would, therefore, count only from 1997 and this was made clear through the amendment brought in the Rules through a notification dated 11.11.2008. The 1986 Rules provide for an explanation that reads as follows:- "Explanation: The term 'experience' as used herein shall mean the service rendered in the Department of Technical Education, Haryana after regular appointment on the post." The contention by the 5th respondent is, therefore, that admittedly the petitioner did not have a regular appointment before 1997 and hence, he did not have the requisite qualification for consideration. This contention is itself the basis for the writ petition filed by the 5th respondent-Jai Kumar in C.W.P. No.14868 of 2011 where he has contended that he should be allowed to continue working as Head of the Department in terms of the appointment order that had been already C.W.P. No.19788 of 2008 -6- issued and to quash the subsequent decision taken by the Board of Management on 25.07.2011 purporting to revise the decision taken by the previous Board of Management regarding the filling up of the post of Head of the Department through direct recruitment and to allow for consideration of appointment by promotion and particularly accepting the candidature of the petitioner as eligible for consideration for promotion. 3. Incidentally, it could be seen that the decision in C.W.P. No.19788 of 2008 regarding the eligibility of the petitioner for consideration for appointment will also decide the issue raised by the 5th respondent through his own writ petition in C.W.P. No.14868 of 2011. The other three writ petitions enumerated above, both the counsel argued that they would follow the decision taken in the above two writ petitions and therefore, the facts for the other three writ petitions are not discussed now and they will be set out after the consideration of relevant issues brought through these two writ petitions. 4. Learned Senior Counsel, Sh. Malik, would support the contentions of the pre-eminent claims of the petitioner for consideration for appointment to the Head of the Department on the ground that the Rules do not stipulate anywhere that it should be continuous service and all that it requires is 8 years or 12 years experience as Lecturer and it is inconsequential if there has been any breaks in service. As a second line of argument, the learned counsel would contend that the amendment in the Rules which had been provided for through the notification dated 11.11.2008 will be operative only prospectively and since a vacancy had arisen even earlier, the case would require to be considered only on the C.W.P. No.19788 of 2008 -7- basis of the unamended regulations that did not stipulate that the appointment should have been to a regular post. The fact that the petitioner had been working as a Lecturer as contractual employee, according to him, therefore would be immaterial. The learned Senior Counsel would rely on the decisions rendered by the Supreme Court and by this Court to contend for two positions: One; if there is a reference to experience, it would be irrelevant whether such experience was a contractual employee or as a regular employee. This is supported through the judgment of this Court in Geeta Devi Vs. State of Haryana and another in C.W.P. No.21663 of 2008 where the Division Bench dealing with Rule 7 of the Haryana Technical Education Rules specifically raised the question and answered as follows:- ".........It is not material whether such an experience has been gained while working on adhoc basis or on regular basis. As long as a person has earned the experience of working on teaching post like Lecturer or Senior Lecturer then such an experience cannot be ignored and on that basis the petitioner could not have been non-suited from consideration for promotion to the post of the Head of the Department. On principle and precedent both the questions have to be answered in favour of the petitioner. When the aforesaid principles are applied to the facts of the present case it becomes obvious that on the date of consideration of her case in December, 2008 the petitioner had more than 12 years service. She also fulfilled the condition of working atleast two years on the post of Senior Lecturer. Moreover, she has been senior to respondent no.3 in the cadre of Sr. Lecturers and the principle of seniority -cum- merit is applicable as provided by Rule 9(2) of the Rules. Accordingly, it is held that the case of the petitioner is required to be considered by respondents in accordance with the unamended rules. The explanation added on 11.11.2008 would not apply to her case. It is, therefore, held that the experience gained by the petitioner on adhoc basis or in a private recognized college would count for promotion to the post of Head of the Department......" Two, on the issue of that the amended Rule would apply only C.W.P. No.19788 of 2008 -8- prospectively in relation to various vacancies subsequent to the amended Rules, the learned Senior Counsel would refer to a judgment of the Supreme Court in Y.V. Rangaiah Vs. J. Sreenivasa Rao (1983) 3 SCC 285 that had been actually considered and dealt with by the Division Bench in Geeta Devi's case (supra). 5. Learned Senior Counsel Sh. Agnihotri arguing on behalf of the 5th respondent would respond to this argument by pointing out itself that the Rangaiah's case was considered and explained in subsequent judgment of the Supreme Court where they have held that the prospective application of the Rules is essentially one of question of fact of how the Government intended to apply the rule. It is not an inviolable rule and it has to be considered in the light of particular facts of the case. This was dealt with by the Supreme Court in Delhi Judicial Services Assn. Vs. Delhi High Court (2001) 5 SCC 145 where the point raised squarely was in the manner of filling up of 14 posts created in June 1986 in Delhi Higher Judicial Services through the amendment of the Rule on 17.03.1987. Applications for direct recruitment had been invited from candidates for 10 posts subsequently on 06.04.1987. This was challenged by the promotees on the ground that the posts had been created prior to the amended Rules and therefore, should be filled up according to the unamended Rules placing reliance on the judgment of the Supreme Court in Rangaiah's case . The Supreme Court distinguished the case on facts and observed that there was no obligation in the present cse to prepare a panel by any particular date and therefore, delay in filling up the created posts did not create a vested right in the promotees. Explaining to the facts of the case in C.W.P. No.19788 of 2008 -9- Rangaiah's case , the Supreme Court held in Delhi Judicial Services Assn that the Supreme Court was deciding earlier in a situation where a list of approved candidates was required to be prepared for making appointment to the grade of Sub Registrar II by transfer but no such list had been prepared and instead the same having been drawn up in 1977, by which time the amended rules had come into force, it was held that the legitimate right and expectations of those who were entitled to be included in the list which ought to have been prepared in September, 1976 could not be frustrated on account of the fact that the panel had not been prepared and that it was so prepared only in the year 1977. It was on this conclusion that the Court had held that vacancies available prior to 01.09.1976 had to be filled up under the unamended Rules. The Supreme Court was actually holding by reference to Rangaiah's case: "...The aforesaid decision will have no application to the case in hand inasmuch as in the Delhi Higher Judicial Service there is no requirement of preparation of any panel or list of candidates eligible for promotion by any particular date. Then again, merely because posts were created under Rule 16, it was not obligatory for teh appointing authority to fill up those posts immediately........That being the position, it is difficult for us to accept the contention of Mr. Mishra, appearing for the Association that the posts were required to be filled up only by way of promotion under the pre-amended Rules, notwithstanding the fact that the advertisement itself was issued subsequent to the Rules being amended and notwithstanding the fact that this Court earlier had indicated that the process of selection even by direct recruitment should take effect, without waiting for the Rules being finally enforced......" 6. Learned counsel appearing for the respondent would, therefore, contend that there was no particular mandate for the immediate filling up of the post of Head of the Department nor was there a compulsion for preparing a panel as soon as a vacancy arose. C.W.P. No.19788 of 2008 -10- Consequently, when the Rules were amended on 11.11.2008 and when an advertisement notification had been issued subsequently on 15.11.2008, it must be only taken that the amended Rules alone would apply. I would uphold this contention to find that the amended Rules alone applied to this case since the Government surely had taken a conscious decision to provide for appointment only through direct recruitment and it is clearly established by the fact that the sanction had been obtained by the amendment for filling up the posts by direct recruitment. 7. This contention of the learned senior counsel appearing for the 5th respondent, which I have upheld, should also be tested from the contention which the counsel appearing for the petitioner makes with reference to the fact that the Government itself retraced its steps by a letter dated 20.01.2009. The learned counsel for the petitioner would refer to the fact that the administrative approval for recruitment rules through direct recruitment, which was issued by the Financial Commissioner to the Director, Technical Education with the copy marked to the Principal, Chhotu Ram Polytechnic, Rohtak was subsequently withdrawn on 20.01.2009. The letter refers to the fact that as per the 1986 Rules, the posts were meant for promotional quota and not for direct recruitment being single cadre posts. If these posts are filled up through direct recruitment, this action would definitely create blockage in promotional avenues working on feeder post in the instututes and the incumbents would be stagnated at the poss of Senior Lecturers in relevant disciplines. The letter of withdrawal dated 21.01.2009, therefore, states that if there are eligible persons not C.W.P. No.19788 of 2008 -11- available in the feeder cadre, then alone the post could be considered for beign filled up by direct recruitment. This communication, according to me, will not alter the situation, for the issue would still be whether the petitioner was duly qualified for such a consideration. There could be no two opinions on both the facts that for the single cadre posts, the preference was always only to a promotee but then the fundamental issue would be whether the petitioner could be treated as fully eligible for such consideration. That has to again depend upon whether the petitioner's experience as ad hoc Lecturer or a Lecturer on contractual employment during various spells could be considered as sufficient. Thuogh the learned Senior Counsel appearing for the 5th respondent would contend that the petitioner did not have continuous service, I will not make any issue about it, since the Rules did not make any reference to continuous service. The 8 or 12 years experience as the Rules provide for, could be treated as satisfied even if there had been breaks in service. However, if the Rules have been amended on 11.11.2008 and the explanation provided that the experience must be treated as experience in regular posts, it must be treated at all times as explaining the existing qualification and ought not to be taken as a new qualification brought through an amendment. It is an essential princple of the rules of interpretation that explanation, which is clarificatory must be taken as explaining an already existing position and consequently it must be application even for situations where the period of experience has to be determined in a particular fashion. If no vested right has already accrued and where no promotion had been made on the basis of unamended Rules, then the fact that an amendment is C.W.P. No.19788 of 2008 -12- brought on 11.11.2008 and recruitment was made only subsequently would make the amended provisions applicable to all candidates whether a vacancy had arisen before or afterwards. This would also close the option for the petitioner to contend that the notification dated 11.11.2008 is only prospective. I have already held with reference to the judgment of the Supreme Court in Delhi Judicial Services Assn's case that it cannot be merely taken as prospective in a situation where there was no mandate for preparing a panel before any particular date. Even in the absence of such a method of consideration, when an explanation is brought to a Rule, it should be always understood as applying to every situation where a recruitment is made subsequent to the date when the amendment is made. This is held to be so by this Court itself while dealing with the manner of understanding an explanation as a principle of construction in Balraj Singh and others Vs. Dr. Ashok Khemka, IAS and others 2008(3) SCT 342 . The Division Bench was considering the fact of the amendment brought in 2005 to the Indian Administrative Service (Regulation of Seniority) Rules, 1987. The 2005 Rules sought to clarify the effect of the year of allotment. The Bench held that by virtue of 2005 amendment only the existing rule was clarified to the effect that the year of allotment was determined with reference to the year for which the meeting of the Selection Committee was to make the selection and not the current year of meeting of the Committee. The Bench ruled that the amendment did not make any new rule and the amendment of the year of allotment had not affected the direct appointees. I would apply the same principle to hold in this case that the amendment which C.W.P. No.19788 of 2008 -13- was brought by way of an explanation on 11.11.2008 must be treated as having been incorporated into the Rules even for vacancies arising earlier, so long as a recruitment had already not taken place by the time when the amendment was brought and the advertisement notification itself had been issued only subsequently. The withdrawal of the sanction given for direct recruitment must be understood as only clarifying a position that if there was no eligible candidate amongst the promotees, a single cadre post must have been only filled up through promotion and not through direct recruitment. This communication withdrawing the sanction must, therefore, be read in the context of the real position that explained that the experience was to be taken as only experience in a regular post and since the experience, which the petitioner had, was as ancontractual employee and that he had obtained a regular appointment only subsequent to 1998, he did not have the requisite experience and since there was no other candidate, who was available for being considered for the post of the Head of the Department, the appointment done through direct recruitment was perfectly justified. The petitioner's challenge to the appointment of the 5th respondent ought to fail and therefore, C.W.P. No.19788 of 2008 would require to be dismissed and accordingly dismissed. Consequently, the 5th respondent, who was come by means of writ petition C.W.P.No.14868 of 2011 would require to be allowed and he shall be treated as having been validly appointed. 8. C.W.P. No.1915 of 2009 is at the instance of the Jat Education Society and Chhotu Ram Polytechnic, Rohtak, who are themselves party respondents in C.W.P. No.19788 of 2008 challenging the order issued on C.W.P. No.19788 of 2008 -14- 20.01.2009 withdrawing the sanction to fill up the post through direct recruitment. In the manner that I have held that there was no eligible candidate for consideration for promotion to the post of Head of the Department and that the amendment in the recruitment rule would render the ineligible candidature of the petitioner, the withdrawal of the permission granted itself ought not to be material. The withdrawal ought not to be taken as a withdrawal for appointment of a direct recruitee even when there was no eligible candidate from amongst the promotees. The impugned letter dated 20.01.2009 was rendered in the context that there was an eligible candidate for consideration for promotion. I would hold that there was no such eligible candidate and therefore, the letter dated 20.01.2009 is clarified in the manner referred to above and the writ petition seeking for quashing the letter dated 20.01.2009 is deemed unnecessary, for even without quashing of the said communication the appointment of the 5th respondent as Head of the Department would require to be upheld as enumerated in C.W.P. No.19788 of 2008. C.W.P. No.1915 of 2009 would, therefore, require to be disposed of in consonance with the said line of reasoning. 9. C.W.P. No.1975 of 2009 is instituted at the instance of a person, who had not been appointed to the post of Head of the Department as a direct recruitee. He has also mounted a challenge to the letter dated 20.01.2009. In this case, the learned counsel appearing for the 5th respondent would point out that there was no other candidate vying for the post as a promotee and since he was only the eligible candidate, who had applied for the post for direct recruitment, the withdrawal of sanction was inappropriate. In terms of the above C.W.P. No.19788 of 2008 -15- reasoning, I would hold that the letter itself