HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition (S) No.6055 of2010 PETmONERS: 1. ,. ^' Pardeshi Ram Verma, S/o Shri Bishat Ram Verma, aged about 43 years, Working as Shiksha Karmi Grade-111, R/o Village Kodwa, P.0. Sasaha, Tahsil Palari, District Raipur (CG) Fanendra Kumar Darshan, S/o Nanhi Lal Darshan, aged about 26 years, working as Shiksha Karmi Grade-11, Govt. Boys Primary School Temar, Btock Sakti, District Janjgir-Champa (CG) Pushpendra Kumar Sahu, S/o Shri Dharmendra Sahu, aged about 28 years, working as Shiksha Karmi Grade-111, Primary School, Sarjuni, Block Sakti, District Janjgir-Champa (CG) Sanjay Kumar Patel, S/o Shri Devnarayan Patel, aged about 41 years, working as Shiksha Karmi Grade-III, Primary Schopl Paraskol, Block Kharsiya, District Raigarh (CG) Versus RESPQNDENTS: 1. 2. 3. 4. State of Chhattisgarh, Through The Secretary, School Education Department, DKS Bhawan, Raipur (CG) District Education Officer, Education District Office, Baloda Bazar, District Raipur (CG) District Education Officer, Bilaspur, DistrictBilaspur (CG) Directorate Public Instruction, Raipur, District Raipur (CG) PETITIONERS: AND Writ Petition (S) No.6128 of 2010 1. Ku. Shama Parveen, D/o Shri Salim Khan, aged about 42 years, working as Shiksha Karmi Class 1 2. at Govt. Higher Secondary School, Sarwani, Tehsil Kharsiya, District Raigarh (CG) Raj Kamal Patel, S/o Shri T.R. Patel, aged about 42 years, working as Shiksha KarmiClass 1 at Govt.Higher Secondary School, Botlada, Tehsil & District Raigarh (CG) Versus RESPONDENTS: State of Chhattisgarh, Through Secretary, School Education Department, DKS Bhawan, Mantralaya, Raipur, District Raipur (CG> ^ . District Education Officer, Raigarh, District Raigarh (CG) Present: Shri Pramod Verma, Sr. Advocate with Shri Ajay Shrivastava, Advocate for the petitioners in WP(S) No.6055/2010. Shri Surfaraj Khan, counsel forthe petitioners in WP(S) No.6128/2010. Shri Yashwant Singh Thakur, Deputy Advocate General for the State. Shri Rajeev Shrivastava with Shri Somkant Verma, Shri Amrito Das and Shri Prateek Sharma, counsel forthe interveners. Division Bench: Hon'ble Shri Dhirendra Mishra & Hon'ble Shri R.N. Chandrakar. JJ. ORDER (25-10-2010) \. The following order of the Court was passed by Dhirendra Mishra, J. 1. Learned counsel for the petitioners are heard on admission. 2. The petitioners inthe above two petitions have impugned the validity of condition of conducting limited examination for appointment on the post of Headmaster as provided in column No.6 at S. No.1 of Schedule II of the Chhattisgarh Non-Gazetted Class III Education Service (School Level Service) Recruitment and Promotion Rules, 2008 (for short 'the Rules, 2008'). They have further prayed for quashing the order dated 20-9-2010 (Annexure-P/2) whereby atl the District Education Officer of the State have been directed to fill in vacant posts of Headmaster by conducting limited examination of the Shiksha Karmi as provided under the Rules, 2008. They have also prayed for quashing of the advertisement (Annexure-P/3) for recruitment of Headmaster Primary School issued by the District Education Officer, Education District Baloda Bazar and District Education Officer, Raigarh. 3. Shri Pramod Verma, learned senior counselappearing on behalf of the petitioners in WP(S) No.6055/2010, argued that Rule 13 of the Rules, 2008 deals with appointment by promotion. Under this rule, a committee is to be ^ constituted consisting of the members mentioned in Schedule IV for making primary selection for promotion of eligible candidates and it also provides that the Roster shall be applicable in accordance with theChhattisgarh Public Service (Promotion) Rules, 2003 (for brevity 'the Rules, 2003'). There is no provision of limited examination as provided in Schedule II ofthe Rules, 2008 and the same iscontrary to Rule 13. The provision has also been assailed on the ground that the rules do notdefine limited examination mentioned in the Schedule nor it prescribes any procedure or syllabus for conducting the above examination. It is not clear under the Rules whether any limited examination is to be conducted at District Level or StateLevel and because of this anomaly, different procedures are being followed by the various districts by permitting Shiksha Karmis of other djstricts to participate in the limited examination. -. .1/ 4 Referring to Rule 3 ofthe Rules,2003, itwas argued that the same ovemdes the provisions made in Schedule II of the Rules, 2008 and there is no provision under the Rules, 2003 of any limited examination for the purposes of promotion in the public service of the State of Chhattisgarh and thus, the impugned provision is ultra viresthe provisions ofthe Rules, 2003 also. 5. On the other hand, Shri Yashwant Singh Thakur, learned Deputy Advocate General appearing on behalf of the State, would argue that indisputably, the petitioners, who are Shiksha Karmis, are etigible for recruitment on the post of Headmaster Primary School only on account of provisions contained in Schedule II framed under Rule 6 of the Rules, 2008. 100% posts of Headmaster are to be filled by promotion from the Assistant Teacher/ Assistant Teacher Science with 5 years teaching experience in the Govt./Panchayat School (Sr. No.2, Schedule IV). However, the State r Government has taken a policy decision and Assistant Teachers have been declared a dying cadre and, therefore, vacant posts of Headmaster Primary School are to be filled by the Shiksha Karmi Grade-1, II and III having 7 years experience through limited examination after the list of Assistant Teacher of School Education Department is exhausted. Recruitment process has been commenced under Rule 6 Schedule II after the list of Assistant Teacher has exhausted. Since number of eligible candidates amongst Shiksha Karmi is more than the vacant seats, selection is to be made by limited examination. Recruitment on the post of Headmaster Primary School from Shiksha Karmi is not by promotion but by recruitment as provided under Rule 6 read with Schedule II and, therefore, the question of applicability of Rule 13 of the Rules, 2008 or provision of the Rules, 2003 does not arise, as they are ^ / applicable only to appointment by promotion. 6 Shri Rajeev Shrivastava with Shri SomkantVerma, Shri Prateek Sharma and Shri Amrito Das, learned counsel appearing on behalf of the interveners namely, Chhabi Shyam Verma, Bhojram Sahu and Ashok Kumar Mishra, respectively, argued that the interveners are Shiksha Karmis and eligible candidates as per conditions of the advertisement and have applied for advertised posts and as such, any order staying departmental examination would adversely affect their rights and, therefore, they may be permitted to intervene. They further argued that the instant petition challenging the validity of Schedule II which provides for limited examination from amongst Shiksha Karmi Grade-1, II, III for the purpose of recruitment on the.posts of 'Headmaster Primary Schoot' on the ground that the same is inconsisterit with Rule 13 ofthe Rules 2008 and the provisions ofthe Rules, 2003 wherein there is no provision for limited examination for promotion to the posts of public service is misconceived as vacant posts of 'Headmaster Primary School' are to be filled by the Shiksha Karmi Grade-1, II & III having 7 years experience through limited examination only after the list of Assistant Teacher of School Education Department is exhausted. 7. Relying upon the judgment of the Supreme Court in the matter of ICICI Bank and another Vs. Municipal Corpn. of Greater Bombay and others {(2005) 6 Supreme Court Cases 404}, it wasargued that the words 'limited examination' used in the rules are to be understood in the natural, ordinary x and popular sense. The above provisions cannot be held to be ultra vires on the ground that the rules do not define limited examination or that no procedure or syllabus has been prescribed for conducting the above examination. 8. Heard learned counsel for the parties. 9. Indisputably, the challenge to the impugned provisions of Schedule II is only on the ground that the same is in contravention of Rule 13 ofthe Rules, 2008 and the provisions of Rules, 2003. It has been argued by learned counsel for the petitioners that for the purpose of promotion to the post of Headmaster, no examination is contemplated underRule 13 which provides for appointment by promotion. The Rules, 2003 deals with the basis of promotion on the public services and the posts within the State and there is no provision forlimited examination under the Rules, 2003 and the promotion is to be made on the basis of "seniority subject to fitness". 10. Rule 6 ofthe Rules, 2008 reads thus:- "6. Method of Recruitment.- (1) Recruitment to the Service after commencement of these rules shall be by the following methods, namely:- (a) Direct recruitment by selection; (b) By promotion of substantive members of Chhattisgarh School Education Service from a lower cadre to a higher cadre as specified in Schedule IV. (c) By transfer of persons who hold in substantive or temporary capacity such posts in such services, as may be specified in this behalf. (2) The number of persons recruited under clause (b) or clause (c) of sub-rule (1) shall not at any time exceed the percentage shown in Schedule II of the number of duty posts, (as specified schedule I). (3) Subject to the provisions of these rules, the method or methods of recruitment to be adopted for the purpose of filling any particular vacancy or vacancies in the sen/ices as may be required to be filled during any particular period of recruitment and the number or persons to be recruited byeach method shall be determined on each occasion by the appointing authority. (4) Notwithstanding anything contained in sub rule (2), if in the opinion of the Appointing Authority the exigencies of the service so required, he may, after seeking the approval of the Government adopt such methods of recruitment to the service other than those specified in sub rule as it may, by order issued in this behalf prescribe." 11. Schedule II ofthe Rules, 2008 reads as under- Schedule II i2.Thus from perusal of the aboveprovisions, it is manifestly clear that vacant posts of "Headmaster Primary School' are to be filled in firstly by 100% promotion of the membersof the service i.e. Assistant Teacher/Assistant Teacher Science and only after the list of Assistant Teacher of School Education Department is exhausted. Those posts are to be filed by Shiksha Karmi Grade-1, II & III having 7 years experience through limited examination. 13. ln the instant case, recruitment on the post of 'Headmaster Primary School' is being made by a limited examination from amongst Shiksha Karmi Grade-1, II Sr. No. Name of Post No. of Posts Percentage of number of Posts to be filled Remarks By direct recruitment By promotion of the member of service (W w ^3) (4) (5) (0) 1. Head Master Primary School 22285 100% As the'lst of Assistant Teacher of Schoot Education Departments is exhausted this post will be filled by Shiksha Karmi Grade 1, 2 and 3, having 7 years experience through limited examination by Panchayat and / Urban AdminiNratio^ and Development Department. & III having 7 years experience as provided in Schedule II made under Rule 6 and it is not the case of promotionof Shiksha Karmis. 14. In view of the above specific provisions in the Rules, the impugned schedule framed under Rule 6 prescribing the limited examination for filling vacant posts of (Headmaster Primary School1 cannot be struck off on the ground that the same is not in conformity with Rule 13 of the Rules, 2008 or the Rules, 2003. 15. Inthe result, we find no substance in these petitions, the same deserve to be ^' and are hereby dismissed. ^ Sd/- ra Mishra Judge Sd/- R.N.Chandrakar Judge Barve w