IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 6101 of 2008. Reserved on: 14.09.2010. Decided on: 21.09.2010. _____________________________________________ Surinder Kumar Kaundal. …Petitioner. -Versus- State of H.P. and others. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. __________________________________________________________ For the petitioner. : Mr. Ajay Sharma, Advocate. For the respondents. : Mr. P.M. Negi, Deputy Advocate General with Mr. R.P. Singh, Assistant Advocate General. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: Petitioner has passed his matriculation examination from Himachal Pradesh Board of School Education. He was appointed as a teacher on 15.04.1991 in Sudha Model High School. The experience certificate to this effect was issued by the Principal of the School on 16.03.1999. 2. Mr. Ajay Sharma, learned counsel for the petitioner has strenuously argued that his client was entitled for J.B.T. Special Certificate on the basis of amendment carried out in Education Code vide Annexure A-3, dated 11th December, 1998 read with Rule 145 of the Education Code after working for a period of five years. He further contended that Rule 145 of the Education Code could not be modified/ substituted by Annexure 1 Whether the reporters of the local papers may be allowed to see the judgment? No. A-4, dated 17.04.1999 without carrying out necessary amendments. 3. Mr. P.M. Negi, learned Deputy Advocate General has vehemently argued that as per Annexure A-4, dated 17.4.1999, only those teachers in Primary Education Department who have worked for not less than five years on the day of application are eligible for the award of Special J.B.T. certificate. In other words, the argument of Mr. P.M. Negi, learned Deputy Advocate General is that petitioner is not entitled to issuance of Special J.B.T. Certificate. 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. 5. The school where the petitioner was working as teacher is duly recognized and affiliated with the Himachal Pradesh Board of School Education, Dharamshala. As per certificate dated 16.03.1999, the petitioner was appointed as teacher on 15.04.1991 in Sudha Model High School. The respondent-State has framed “The Himachal Pradesh Education Code”. It applies to all the Government and the recognized educational institutions in the Himachal Pradesh. According to Sub-rule 24 of Rule 2, Recognized School is a public school in which the course of study conforms to the standards approved by the department and which is inspected by the department. Rule 145 of the Education Code reads thus: “145. Conditions for the award of JBT Special Certificate- JBT Special Certificate may be granted to teachers who have put in approved continuous service in Primary Department of a recognized school for not less than 10 years and have attained the age of 35 years on the day of submission of application. The awardee should have at least passed the Middle Standard Examination and he/she should be a teacher of good moral character duly certified by the head of the office.” 6. A bare perusal of this Rule makes it abundantly clear that the J.B.T. Special Certificate should be granted to teachers who have put in approved continuous service in Primary Department of a recognized school for not less than 10 years and have attained the age of 35 years on the day of submission of application. The respondent-State has carried out the amendment in the Education Code on 11th December, 1998. The relevant portion of the same reads thus: “J.B.T. Special Certificate may be granted to teachers who have put in approved continuous service in Primary Department of a recognized school for not less than five years on the day of submission of application. The awardee should have at least passed the Middle Standard Examination and he/she should be a teacher of good moral character duly certified by the Head of Office.” 7. The provision has been made effective from 1st August, 1998. Petitioner submitted an application as per the contents of Annexure A-3, dated 11th December, 1998 to respondent No. 3 on 08.07.1999. However, the same was not considered by the respondents in view of Annexure A-4, dated 17.04.1999. The respondent-State has not carried out any amendment in Rule 145, which was further amended on 11th December, 1998. However, the same stood modified by executive instructions on 17.04.1999. Now, as per Annexure A-4, the J.B.T. Special Certificate can be granted to those teachers who have put in approved continuous service in Primary Education Department for not less than five years. In other words, the petitioner could not be considered on the basis of Annexure A-4 as he had been working in a private school since 1991 though in a primary wing. The petitioner has acquired the right to get his case considered for the award of Special J.B.T. certificate on the basis of Rule 145, as amended on 11th December, 1998. He fulfilled the eligibility criteria as per letter dated 11th December, 1998. He has put in five years service and was also matriculate. A vested right acquired by the petitioner to get a Special J.B.T. certificate cannot be defeated by issuing Annexure A-4, dated 17.4.1999. Moreover, the rule notified in the Education Code, as amended, could not be substituted/modified vide Annexure A-4, dated 17.04.1999. In case the respondent-State wanted to modify Rule-145, it was required to amend the same, as has been done on 11th December, 1998. The respondents without amending Rule-145, could not issue Annexure A-4. Annexure A-4 is only an executive instruction and it cannot substitute Rule-145. The matter is required to be considered from another angle. Annexure A-4, assuming hypothetically, could be issued by the respondent-State, even in that eventuality, it would apply prospectively and could not operate to the detriment of the petitioner. 8. Accordingly, in view of the observations made hereinabove, the petition is allowed. Annexure A-4, dated 17.04.1999 is quashed and set aside. Respondents are directed to consider the case of the petitioner for the award of Special J.B.T. Certificate on the basis of Annexure A-3, dated 11th December, 1998, within a period of two months after the production of a certified copy of this judgment by the petitioner. No costs. (Rajiv Sharma) Judge September 21, 2010. (bhupender)