IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 196 of 2009 Smt. Neelam Bisht & another. …Appellants. Versus Smt. Bhagwati Rawat & others. …Respondents. Mr. D.S. Patni, Advocate for the appellants. Mr. H.M. Raturi, Advocate for respondent nos. 1 to 3. Mr. Manoj Tiwari, Senior Advocate with Mr. Sandeep Adhikari, Advocate for respondent nos. 1 and 2. Coram: Hon’ble J.S. Khehar, C.J. Hon’ble Sudhanshu Dhulia, J. J.S. Khehar, C.J, (Oral) 1. Appellant no. 1 Neelam Bisht was inducted into the service of the Lalita Arya Mahila Inter College, Haldwani as a teacher in L.T. Grade in 1991. She was subsequently promoted to the post of Lecturer in 2006. Likewise appellant no. 2 Asha Kanaujiya was inducted into the service of the Nagar Palika Balika Inter College, Haldwani as Lecturer in 1992. The appellants were allegedly affected by the order passed by this Court in Writ Petition (SS) No. 1173 of 2008, vide which a learned Single Judge of this Court had allowed the claim of respondent nos. 1 and 2 (the petitioners in the aforesaid writ petition for re- designation as Lecturers). 2. The factual position, insofar as respondent nos. 1 and 2 are concerned, is that, respondent no. 1 Bhagwati Rawat was inducted into the service of the Nagar Palika Balika Inter College, Haldwani as an Assistant Teacher in 1982. Based on the Government Order dated 25.10.2000, she was designated as a Lecturer with effect from 5.2.2002. By the aforesaid re-designation with effect from 5.2.2002, respondent no. 2 was allegedly granted a seniority status above both the appellants. Likewise 2 respondent no. 2 Shailja Malhotra was appointed as an Assistant Teacher in the Lalita Arya Mahila Inter College, Haldwani in 1982. Again based on the Government Order dated 25.10.2000, she was designated as a Lecturer with effect from 3.2.2002. Based on the aforesaid designation, respondent no. 2 also came to enjoy a status superior to the appellants in the cadre of Lecturers. 3. The orders granting respondent nos. 1 and 2 re- designation as Lecturers was sought to be withdrawn on the basis of Government Order dated 13.9.2008. The same was communicated to the respondents by the District Education Officer on 22.10.2008. The orders dated 13.9.2008/22.10.2008 were assailed by respondent nos. 1 and 2 by filing Writ Petition (S/S) No. 1173 of 2008. A learned Single Judge of this Court allowed the aforesaid claim made by respondent nos. 1 and 2 and thereby restored the Lecturers’ status/designation granted to respondent nos. 1 and 2 with effect from 5.2.2002 and 3.2.2002 respectively. Since the order rendered by the learned Single Judge affected the rights of the appellants, although the appellants were not party respondents in Writ Petition (S/S) No. 1173 of 2008, they have approached this Court by filing the instant Special Appeal. Since prima facie it stands established that the appellants would be affected by the order passed by a learned Single Judge disposing of Writ Petition (S/S) No. 1173 of 2008, we have permitted the appellants to assail the order passed by the learned Single Judge through the instant Special Appeal. 4. The primary contention advanced at the hands of the learned counsel for the appellants was based on the Government Order dated 25.10.2000. It is the submission of the learned counsel for the appellants, 3 that the issue of designation while granting the status of Lecturers to respondent nos. 1 and 2 was based on the Government Order dated 25.10.2000. It is further submitted by the learned counsel for the appellants, that there is no other communication of the State Government allowing designation/status, and as such, the rightful claim of granting designation to the respondents has to be evaluated only on the basis of the Government Order dated 25.10.2000. In this behalf, the solitary contention of the learned counsel for the appellants is, that the respondents were not entitled to designation as Lecturers, even as per Government Order dated 25.10.2000. 5. In order to appreciate the contention advanced by the learned counsel for the appellants, we have perused the Government Order dated 25.10.2000. Insofar as the present controversy is concerned, the subject, as also, the opening paragraph of the Government Order is relevant (to determine the issue canvassed at the hands of the learned counsel for the appellants), accordingly, the subject, as also, the opening paragraph of the said Government Order are being extracted hereunder:- Þfo"k;%& v’kkldh; lgk;rk izkIr ek/;fed fo|ky;ksa ds dyk] O;k;ke] Hkk"kk] f’kYi vkfn fo"k;ksa ds v/;kidksa dks izoDrk in dh fu/kkZfjr vgZrk j[kus ij ßizoDrk in ukeÞ fn;s tkus ds lEcU/k esaA egksn;] mi;ZqDr fo"k;d funs’kky; ds i=kad% lk[k¼1½@f’k0@8744@2000&2001] fnukad% 4 flrEcj] 2000 ds lUnHkZ eq>s ;g dgus dk funs’k gqvk gS fd v’kkldh; lgk;rk izkIr ,sls ek/;fed fo|ky;ksa ¼b.Vj dkystksa½] tks dyk] O;k;ke] Hkk"kk] f’kYi vkfn fo"k;ksa ls b.Vj Lrj rd ekU;rk izkIr gS] esa dk;Zjr mDr fo"k;ksa ds ,sls v/;kidksa] tks fujUrj 10 o"kZ ls 4 b.Vj esa i<+k jgs gS rFkk izoDrk osrueku izkIr dj jgs gS dks fuEu 'krksZa ,oa izfrcU/kksa ds v/khu izoDrk in uke fn;s tkus dh Jh jkT;iky lg"kZ Lohd`fr iznku djrs gSaAÞ Translated in English, the mandate of the aforesaid Govt. Order dated 25.10.2000 is, that the same would be applicable only to private recognized institutions receiving grant-in-aid. Insofar as such institutions are concerned, the aforesaid Government Order further stipulates, that in respect of the subjects of Art, Physical Education, Language, Craft etc., re-designation would be permissible only if the institution, where the institution has obtained recognition for teaching the subjects of Art, Physical Education, Language, Craft, etc. at the intermediate level. Based on the Government Order dated 25.10.2000, it is the submission of the learned counsel for the appellants, that the respondents were engaged as Assistant Teachers in the subject of Physical Education, but the institutions where they were engaged did not have the subject of Physical Education as a recognized subject at the intermediate level. In addition to the communication dated 25.10.2000, learned counsel for the appellants has also placed reliance on a Government Order dated 13.9.2008. Relevant extract of the aforesaid Government Order dated 13.9.2008 is also being reproduced hereunder: “fo"k; % v’kkldh; lgk;rk izkIr ek/;fed fo|ky;ksa ds dyk] O;k;ke] Hkk"kk] f’kYi vkfn fo"k;ksa ds v/;kidksa dks izoDrk in dh fu/kkZfjr vgZrk j[kus ij izoDrk inuke fn;s tkus ds laca/k esaA mi;ZqDr fo"k;d vklids i= la0@ek/;fed@10149@O;k;ke f’k{kd@2008&09 fnukad 23 twu 2008 ds lUnHkZ esa eq>s ;g dgus dk funs’kd gqvk gS fd v’kkldh; lgk;rk izkIr ek/;fed fo|ky;ksa ds dyk] O;k;ke] Hkk"kk] f’kYi vkfn fo"k;ksa ds v/;kidksa dks izoDrk in dh fu/kkZfjr vgZrk j[kus ij izoDrk inuke fn;s 5 tkus fo"k;d 'kklukns’k la0 3263@15&8&200@3227@90 fnukad 25&10&2000 esa mfYyf[kr 'krksaZ ds vuqlkj ,sls fo|ky; tgka dyk] O;k;ke] Hkk"kk] f’kYi vkfn fo"k;ksa dh b.Vj Lrj ij ekU;rk ugha gS ogka izoDrk inuke vuqeU; ugha fd;k tk ldrk gSAÞ Yet again the instant Government Order dated 13.9.2008, reiterates the position expressed in the earlier Government Order dated 25.10.2000. The only difference being that the language herein is negative, inasmuch as, persons engaged in institutions, which do not impart education in the subjects concerned as recognized subjects at the intermediate level, are not entitled to be designated as Lecturers. It is, therefore, the submission of the learned counsel for the appellants, that since respondent nos. 1 and 2 did not fulfil the mandatory conditions stipulated in the Government Order dated 25.10.2000, they were not entitled to re-designation as Lecturers. 6. While appreciating the contention advanced by the learned counsel for the appellants, the issue canvassed at his hands may be summarised as follows. Only such individual teaching the subjects stipulated in the Government Order dated 25.10.2000 would be entitled to re-designation as Lecturer, who are teaching in an institution, where the said subject is taught at the intermediate level, as a recognised subject. To support his contention, learned counsel for the appellants states that Physical Education was not taught in the institutions, where respondent nos. 1 and 2 were engaged, as a subject at the intermediate level. Secondly, it is the contention of the learned counsel for the appellants that the institutions, where respondent nos. 1 and 2 are engaged, have not obtained recognition for teaching the subject of Physical Education, at the 6 intermediate level. As such, it is submitted, that respondent nos. 1 and 2 could not be designated as Lecturers, under the Government Order dated 25.10.2000. 7. The interesting aspect of the present controversy is that learned counsel for respondent nos. 1 and 2 does not dispute the factual position depicted by the learned counsel for the appellants. It is not denied by the learned counsel for the respondents that Physical Education is not taught as a subject, at the intermediate level, in the two institutions, where respondent nos. 1 and 2 are engaged. It is also not disputed that the two institutions, where respondent nos. 1 and 2 are engaged, have not formally obtained recognition for imparting education in the subject of Physical Education. 8. Inspite of the stand adopted by the learned counsel for respondent nos. 1 and 2, it is the submission of the learned counsel for the respondents, that by way of inference the institutions, where respondent nos. 1 and 2 were engaged as Assistant Teachers, in the first instance must be deemed to be formally imparting training in Physical Education. Insofar as the instant submission is concerned, reliance at the hands of the learned counsel for the respondents has, first of all been placed on Regulation 5 contained in Chapter XIV of Regulations framed under the U.P. Intermediate Education Act. Regulation 5 is being extracted hereunder :- “5. Except the examinees of Agriculture and Commerce (Third) (Commercial Education) categories each examinee of Intermediate Examination shall be examined in five subjects as follows : In addition to these subjects teaching of Physical Exercise and Moral Education shall be compulsory for all students.” 7 9. We have given our thoughtful consideration to the first contention advanced by the learned counsel for the respondents. It is not possible for us to accept the same. The main clause of Regulation 5 postulates that each examinee at the intermediate level is to qualify in 5 subjects. Besides the aforesaid 5 subjects, the aforesaid Regulation 5 postulates the teaching of Physical Exercise and Moral Education as compulsory. Based on the compulsory mandate contained in Regulation 5 for imparting teaching in Physical Exercise, it is the submission of the learned counsel for the respondents, that it is implicit to infer that teaching of Physical Education was imparted in the institutions where respondent nos. 1 and 2 were engaged. This submission advanced at the hands of the learned counsel for the respondents is not acceptable from a plain reading of Regulation 5. Teaching in Physical Exercise and Moral Education, referred to in Regulation 5, is not within the framework of the compulsory 5 subjects postulated for qualifying the examination at the intermediate level. In fact, there is a vast difference between teaching of “Physical Exercise” and “Physical Education”. Whilst Physical exercise is not a subject, Physical Education may be a recognised subject, one of which was required to be qualified in the five compulsory subjects stipulated in Regulation 5. It is not the case of the respondents, that an examination is conducted in the subject of Physical Exercise or that candidates admitted to the intermediate examinations had to qualify the subject of Physical Exercise, or that, students are graded in Physical Exercise. In the absence of the aforesaid assertions at the hands of the learned counsel for the respondents, it is 8 imperative to conclude that “teaching of Physical Exercise” cannot be equated to teaching of a subject which a candidate has to qualify in the intermediate examination. Thus viewed, we are satisfied that two inference, as has been suggested, can be drawn in favour of the respondents on the basis of Regulation 5, extracted hereinabove. 10. The second contention advanced by the learned counsel for the respondents was based on information sought by respondent nos. 1 and 2 under the Right to Information Act, 2005. Our pointed attention was invited by the learned counsel for respondent nos. 1 and 2 to Annexure -1 appended to the supplementary rejoinder affidavit in Writ Petition (S/S) No. 1173 of 2008. During the course of hearing, learned counsel for respondent nos. 1 and 2 invited our attention to the following two clauses contained in the communication dated 13.1.2009 wherein information sought by the respondents was supplied to them :- “fcUnq &4 ¼v½& ifj”kn~ }kjk fo|ky;ksa dks gkbZLdwy rFkk b.Vj Lrj ij vkosfnr fo”k;ksa esa gh ekU;rk iznku dh tkrh gS A b.VjehfM,V f’k{kk vf/kfu;e 1921 ds v/;k; & 14 ¼5½ ds vuqlkj b.VjehfM,V ijh{kk ds izR;sd ijh{kkFkhZ ds fy, ‘kkjhfjd O;k;ke ,oa uSfrd f’k{kk dk f’k{k.k vfuok;Z gS vr% bu fo”k;ksa dh ekU;rk fo|ky; dh ekU;rk ds lkFk Lor% izkIr gks tkrh gS A fcUnq &4 ¼Ck½& ‘kkjhfjd O;k;ke rFkk uSfrd f’k{kk dh ekU;rk dk i`Fkd ls dksbZ izkfo/kku ugh gS A” A perusal of the first of the two clauses, extracted hereinabove, reveals that recognition is granted to an institution for subjects in respect of which a specific requisition/request is made. It is not the case of the respondents that the institution, wherein respondent nos. 1 and 2 were teaching as Assistant Teachers, had made a request for recognition of the subject of Physical Education. The contention, however, is based on the 9 second of the two clauses, extracted hereinabove, which on English translation postulates, that there is no separate provision for recognition of subject of Physical Exercise and Moral Education. This submission of the learned counsel for respondent nos. 1 and 2 is akin to the first submission advanced by him. Having concluded that “Physical Exercise” is not a separate subject in which a candidate has to appear and qualify at the intermediate level, the same cannot be deemed to be a recognised subject for imparting training. Moreover, the term “Physical Exercise” cannot be equated with the term “Physical Education”. In our view, the aforesaid two terms are not even synonyms. Recognition being a subject matter distinct and separate from the provision of ensuring that the students at the aforesaid level are engaged in the “physical exercise”. The emphasis, by the learned counsel for the respondents, that recognition is automatic in “Physical Exercise” and “Moral Education”, is clearly unacceptable as the Government Order dated 25.10.2000 mandates/express recognition in certain subjects. Moreover, this communication relied upon postulates that “recognition is only given for those subjects which are requisitioned”. There being admittedly no requisition by the institutions, where respondent nos. 1 and 2 were engaged, for teaching the subject of Physical Education, there could have been no recognition thereof. 11. Much reliance has been placed upon three annexures by respondent nos. 1 and 2, which were appended as Annexure Nos. 7, 8 and 9 with the writ petition. Annexure 7 is a letter dated 29.11.1978 passed by the Director of Education, U.P. to the District 10 Education Officers, etc. in the erstwhile State of U.P. Relevant extract thereof is reproduced below :- “fo”k; % bkbZLdwy rFkk b.Vj dkfytksa esa ‘kkjhfjd f’k{kk dh O;oLFkk djkus dk izdj.k egksn;@egksn;k] vkidks Kkr gS fd ‘kkjhfjd f’k{kk gkbZLdwy ,oa b.Vj d{kkvksa ds ikB~;dze esa vfuok;Z :Ik ls fu/kkZfjr gS A dfri; vUpyksa ls f’kdk;rsa izkIr gks jgh gSa fd dfri; v’kkldh; ekU;rk izkIr laLFkkvksa esa O;k;ke f’k{kd miyC/k ugha gSa QyLo:Ik ‘kkjhfjd f’k{kk dh leqfpr O;oLFkk ugh gS A blls Li”V gksrk gS fd laLFkkf/kdkjh le;&le; ij ‘kklu }kjk fu/kkZfjr v/;kidksa ds ekud dh lhek ds Hkhrj vuqeU; v/;kidksa dh ekax izLrqr djrs le; leLr ekU;rk izkIr fo”k;ksa ds v/;kiu dh O;oLFkk dk /;ku ugha j[krs gSa ftlds dkj.k dfri; laLFkkvksa esa O;k;ke f’k{kd miyC/k ugha gS A ,slh n’kk esa ;g mfpr izrhr gksrk gS fd vc fdlh laLFkk esa ,y0Vh0@ lh0Vh0 ds v/;kidksa ds in l`tu fd;s tk;sa ;k fdlh v/;kid dh e`R;q] lsok fuo`fRr ;k vU; dkj.kksa ls dksbZ in fjDr gks rks /;ku j[kk tk; fd ;fn laLFkk esa O;k;ke f’k{kk gsrq vgZ v/;kid miyC/k u gks rks O;k;ke f’k{kd dh fu;qfDr dh O;oLFkk gsrq izcU/kd ls fuosnu fd;k tk;s A 2- vkils ;g Hkh vuqjks/k djus dh vis{kk dh xbZ gS fd layXu izi= ij O;k;ke f’k{kdksa dh fLFkfr dk fooj.k vki d`I;k ;Fkk’kh?kz Hkstsa A d`Ik;k bl i= dh izkfIr Lohdkj djsa AÞ In the above letter, the Director of Education has mentioned that he has been receiving complaints from various quarters, about private education institutions under grant in aid, which do not have services of Physical Education Teachers. The letter emphasises that there is no proper arrangement for physical education, though physical education is compulsory in high school and intermediate classes. The letter requires that managements of such institutions should keep in mind, that while making requests for posts of teachers in their institute, they should also request for posts of Physical Education teachers. It further states that it seems now necessary, that as and when in future a post of LT grade or CT grade teacher is created in the institute, or due to death or retirement of a teacher a post becomes vacant, then if such an institute is not having the services of a Physical Instructor/teacher then the management 11 committee should formally apply for a post of Physical Education teacher. 12. Firstly, it must be remembered that this letter relates to the year 1978. This was a period when teachers imparting training in physical education were known as Physical Training Instructors. Such Instructors were either in the CT grade or in the LT grade. They were not in the Lecturer grade. They were given the status of a Lecturer only vide Government Order dated 25.10.2000 (with which we are concerned) and which was issued much after 1978. We are concerned with the status of Lecturer being given to respondent nos. 1 and 2 not with the status of C.T. grade or L.T. grade being given to Physical Training Instructors, as these teachers were called in the year 1978. Moreover, although the letter emphasizes on the importance of Physical Education in schools, it does not put them in the same bracket as teachers of other recognised subjects i.e. those subjects for which formal recognition is mandatory. 13. Learned counsel for respondent nos. 1 and 2 has also relied upon a letter dated 23.6.1979 which was issued by the Assistant Deputy Director Education (Madhyamik), Directorate of Education, Uttar Pradesh. This letter also reiterates the same position as Annexure 7, which we have already discussed above. The instant letter cannot be the basis of any inference for the same reasons as have been recorded by us in the foregoing paragraph. 14. Thereafter, learned counsel for respondent nos. 1 and 2 placed reliance on paragraph 3 of the letter dated 25.1.2002, which has been written by the Joint Director of Education, Zone-1, Meerut (Annexure 9 to the writ 12 petition). Paragraph 3 of the said letter dated 25.1.2002 is reproduced as below :- “3- tgka rd O;k;ke fo”k; dk lEcU/k gS] ;g d{kk 6 ls d{kk 12 rd vfuok;Z fo”k; gS] ftldh vyx ls ekU;rk dk dkbZ izkfo/kku ugha gS A vr% gkbZLdwy rFkk b.VjehfM,V dkystksa esa Lor% bldh ekU;rk ekuh tk;s A” By and large, what is stated in paragraph 3 of the aforesaid annexure is the same, which has been communicated to respondent nos. 1 and 2 vide letter dated 13.1.2009, which has already been discussed in paragraph 11 above. All that this communication states is, that as far as Physical Exercise is concerned, this is a compulsory subject between class 6 to 12, and there is no separate provision for recognition of this subject. Therefore, for high school and intermediate schools, recognition of Physical Exercise is automatic or implied. The relevance of this has already been discussed above. For the reasons stated above, teachers imparting education in compulsory subjects and teachers imparting training in “Physical Exercise” cannot be put at the same pedestal. 15. In view of the above, we find no merit even in the second contention advanced by the learned counsel for respondent nos. 1 and 2. 16. Having found no merit in the submissions advanced by the learned counsel for respondent nos. 1 and 2, we are of the view, that the contention advanced by learned counsel for the appellant, on the basis of Government Orders dated 25.10.2000 and 13.9.2008, is liable to be accepted. Respondent nos. 1 and 2 were not engaged in a private institution, wherein recognition has been sought for imparting education in the subject of Physical Education. The Government Orders, referred to above, mandate that re-designation is permissible only in such 13 institutions, which have obtained formal recognition. Such formal recognition is expressly required for the subjects of Art, Physical Education, Language, Craft, etc. The same having not been obtained in the institutions, where respondent nos. 1 and 2 were employed as Assistant Teachers, they could not be designated as Lecturers under the Government Orders dated 25.10.2000 and 13.9.2008. Moreover, admittedly, Physical Education is not taught as a subject, at the intermediate level, where respondent nos. 1 and 2 are engaged, there can be no justification in granting respondent nos. 1 and 2, redesignation as Lecturers. 17. In view of the above, the instant special appeal is allowed. The order dated 15.9.2009 rendered by the learned Single Judge allowing Writ Petition (S/S) No. 1173 of 2008, whereby the claim of respondent nos. 1 and 2 for being redesignated as Lecturers was upheld, is hereby set aside. (Sudhanshu Dhulia, J.) (J.S. Khehar, C.J.) 27.4.2010 Avneet