IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP (T)No.14932 of 2008 Date of decision 26.7.2010 Neelam Kaushal … Petitioner Versus State of H.P & others …Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta,Judge. Whether approved for reporting?1 Yes For the Petitioner : Sh. Sanjeev Bhushan, Advocate Sh. P.P Chauhan,Advocate for the applicant/respondent For the respondents : S/Sh. Rajesh Mandhotra and Vikas Rathaur Deputy Advocate Generals. Per Deepak Gupta, J This writ petition raises an interesting question of law. The question which arises is whether the trained Graduate teachers working in the department of Education in the Government of Himachal Pradesh, who were promoted as Lecturers in the Higher Secondary Schools ( now Senior Secondary Schools) can be considered to be eligible for the post of Head Master/ Head Mistress in the High Schools. 2. To appreciate the legal issue involved it would be necessary to make reference to the Recruitment and Promotion Rules for the aforesaid two posts. The post of Head Masters/ Head Mistresses in the High Schools are to be filled 100% by promotion 1 Whether reporter of local papers are allowed to see the judgment ? Yes 2 from amongst trained graduate teachers, Home Science Mistresses, Commerce teachers, and Agrl. teachers with 8 years regular service in the grade and possessing professional qualifications of BT/ B.Ed or its equivalent. 3. For the post of Lecturers in High Secondary Schools (now Senior Secondary Schools) 50% of the posts are to be filled in by promotion and 50% by direct recruitment. Promotion is to be made from amongst the trained Graduate teacher/ Home Science/ Mistresses/ Commerce teachers/ Agril. Masters possessing qualifications prescribed for direct recruits; i.e post graduation in the concerned subject. 4. It would also be pertinent to mention that the scale of pay of Head Masters is Rs. 300-25-600/- and the post is a selection post and whereas the post of Lecturer is a non-selection post and the teachers who have obtained degree in M.A in first and second division, are entitled to the scale of Rs.300-600/- and those who have obtained masters degree in third division are entitled to pay in the scale of Rs.250-550/- No minimum educational qualifications are prescribed for the post of Head Masters and Head Mistresses and therefore, all the eligible trained graduate teachers can be promoted. However, in respect of the post of Lecturers only those who have obtained masters degree in the concerned subject are eligible. 5. Thus it is apparent that for trained graduate teachers in the department there are two avenues of promotion. Those who have obtained masters degree are eligible to be considered both for the post of Head Master/ Head Mistresses as well as Lecturers. However, those who have not obtained masters degree can only be considered for promotion to the post of Head Master/ Head Mistresses. 3 6. Reference may now be made to the instructions issued by the Government vide department of Personnel letter No.H.P Govt. Deptt. Of- Personnel letter No. Per(AP-II)A(3)-4/78 dated 24-12-1981- Annexure-16.14)” which reads as follows: “Options from incumbents of posts having more than one avenue of promotion. “Various complications arise in cases where according to the Recruitment and Promotion Rules a category of post has more than one channels of promotion in-as-much as an incumbent promoted to one category of post after observing all formalities indicates that he has preference for being promoted against the second channel of promotion. To prevent this from occurring , options should invariably be obtained from the persons concerned and kept in the record before he is considered for promotion against one of the channels provided in the rules.” 7. It is apparent that as per these instructions when there is more than one channel of promotion available for a particular category of post(s) then at the time of consideration of the candidates for such post(s), the candidate must indicate his/her preference and once preference is indicated the same can not be withdrawn or changed. Pursuant to these instructions, a letter dated 23rd April, 1998 was issued by the Director of Education H.P, relevant portion of which reads as follows : “As per the R & P Rules 50% of the posts of School cadre Lecturers are filled up from the TGT teachers who are MA/MSc qualified and have got their names entered in the PGT list for the purpose of promotion. You should apprise al TGT teachers working under you that those of the TGT teachers who are promoted to the 4 post of Lecturer shall not be promoted to the post of Headmaster. The TGTs shall either be promoted to the post of Lecturer or to the post of Headmaster. Before sending cases to this Directorate for inclusion of names in the PGT list option may be obtained from the concerned teacher that he wants to be promoted to the post of Lecturer and not to the post of Headmaster. Hence, it may be ensured that the TGTs should get their names included in the list of PGT because once a person is promoted to the post of Lecturer he shall not be afforded opportunity to change the option.” 8. The case of the petitioner is that initially the respondents were following this system and persons who were promoted as Lecturers were not considered for the post of Head Masters and similarly persons who were promoted as Head Masters were not considered for the post of Lecturers. However, according to the petitioner after 2004 the Government started following a different policy and even those TGT teachers who had been promoted as Lecturers and had continued as Lecturers for many years were promoted as Head Masters/ Head Mistresses. This affected the promotional avenues of those TGTs who were not post graduates. The petitioner on these grounds filed the present petition praying that no promotee Lecturer should be promoted as Head Master in future. This petition was filed on 7.4.2007. During the pendency of this petition on 26.4.2010 an order was passed by a learned Single Judge of this Court directing that further promotions to the post of Head Master shall be subject to the out come of the writ petition. 9. The stand of the state is that the trained graduate teachers who are also having the qualifications of post graduation in the concerned subject on promotion to the post of Lecturer retain 5 their lien in the parent cadre of trained graduate teachers and therefore they can be considered again for promotion to the post of Head Masters/ Head Mistresses. 10. One person Sh. Bhag Chand has applied to be impleaded as the party respondent in this case. He is represented by Sh. P.P Chauhan Advocate who in addition to the submissions made by the State, submits that in fact the respondent is not asking the trained graduates teachers to exercise their option and therefore, the persons who were promoted as Lecturers without exercising any option have a right to be considered for the post of Headmasters. It has also been urged by Sh. Chauhan that persons who may be affected by the result of this petition are not parties to the petition and only his client has approached to this court to become a party. 11. A perusal of the rules and instructions set out in detail above clearly show that what was envisaged in the rules and instructions was that when there are two avenues of promotion, the person in the feeder category must be asked to exercise his option as to for which promotional category he wants to be considered. Once such option is exercised then the same can not be withdrawn. If options are taken then even if lien is retained that will not help the employee. However, if no options are taken then the promoted employee would be justified in claiming that he can be considered against the other post. 12. This court while disposing of the petition can not pass an order which affects parties, which are not represented before it. I have also been informed that during the pendency of the petition the petitioner has also been promoted. 13. In view of the aforesaid discussion, this petition is disposed of with the following directions: 6 a. That no promotions made prior to 26th April 2010 shall be affected by the outcome of this petition. However, since the promotions made after 26th April,2010 were made expressly subject to the result of this petition they shall abide by the following directions. b. That henceforth and w.e.f 26th April,2010 before making any promotions to the post of Lecturers or Head Masters an option shall be sought from the concerned employee . c. Once an employee gives an option he/she will not be permitted to change the option. d. Once an employee opts to be promoted as Lecturer/ Head Master he can not claim that he should be considered for the other post. e. The Principal Secretary (Education) to the Government of Himachal Pradesh, the Director of Higher Education and Director of Elementary Education i.e respondents No. 1 to 3 are made personally responsible for compliance of these directions in letter and spirit. f. All promotions, if any, made after 26th April,2010 shall be reviewed and after seeking options of the employees in terms of the aforesaid directions the promotions shall be made. The petition is disposed of in the aforesaid terms. No order as to costs. ( Deepak Gupta ) Judge 26th July, 2010 (veena)