^ '^7. 'ftiVS IN THE HIGH COURT OF CHHAmSGARH AT.BILA-SPUB SGARH] ISo /2010 (D.B.) (Arising out oforder dated 14-01-201.0 passed by the Learned -^o^fy ^' ..••".^^••'' ^^••^-^ ^^Y- 9-^y ^' y Ki' y Dr. Baldau Prasad Sharma, S,/o. Pt. Sharma, a< v y^years, , R/o 26 1. State of Madhya Pradesh, through the Secretary, Deptt. Of School Education, Vallabh "iH / 2. Director of Public Instruction, p tl-irough the Secretary, Deptt. Of School Education, Bhawan, Raipur (C.G.). Secondary School, Utal now sted as . Asstt. Director. ^'\ ~<»e Gupta, Dy. Director of through the Director, Public Instruction, 7. A. B. Dubey, Jt. ^Director, Education, Raiptir Division, Raipur (M.P.) WRIT APPEAL UNDER SECTION 2 (1) OF THE CHHATTISGARH 'a«!i •sgs'i, % 's^^ ^9 « Ss' HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.: Hon'ble Shri Justice Satish K. Aanihotri and Hon'ble Shri Justice Radhe Shvam Sharma Writ Appeal No.180 of 2010 Dr. Baldau Prasad Sharma versus State of Madhya Pradesh and others JUDGMENT FOR CONSIDERATION Sd/- ^S. Sharma Judge Hon'ble Shri^atish K. Aanihotri. J.: saf^-l Sd/- SatishK.Agnihotn Judge Postfor L*?-08-2011 Sd/- R.S. Sharma Judge u Sa.K'sB^t&^ ^^^^.^^^•©i HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.: Hon'ble Shri Satish K. Agnihotri and Hon'ble Shri Radhe Shyam Sharma, JJ. WritAppeal No.180 of 2010 Appellant Dr. Baldau Prasad Sharma versus Respondents State of Madhya Pradesh and others Present: ShriAman Kesharwani, counsel forthe appellant. Shri M.P.S.Bhatia, Deputy Government Advocate for'the State of Chhattisgarh. Appeal under Section 2(1) ofthe Chhattisaarh Hiah Court (Appeal to Division Bench) Act. 2006 JUDGMENT (Delivered on ^August, 2011) Per Radhe Shyam Sharma, J.: The instant appeal has been preferred by petitioner Dr. Baldau Prasad Sharma against order dated 14-1-2010 (Annexure A-1) passed by learned Single Judge in Writ Petition (S.) No.1245/2005, whereby the writ petition filed by the appellant/petitioner has been dismissed. 2. The appellant moved the writ petition praying for issuance of command by suitable wriVorder or direction to promote and post him on the post of Deputy Director, Joint Director of Education, over and above respondents No.5, 6 and 7, tierein, on the pay scale admissible to the above post. The appellant further prayed that respondents No.1 to 3 be directed to grant him seniority over and above respondents No.5, 6 and 7 and to pay all arrears of salary and other emoluments. ^ ^' Ks9esISS^ 3. The appellant was initially appointed as Lower Division Teacher in the Department of Education on 1-8-1960 and was, thereafter, promoted as Upper Division Teacher on 10-8-1966. He was further promoted on the post of Lecturer on 31-1-1970. Time bound promotion and higher pay scale of senior Lecturer was also granted to the appellant in the year 1983. At the time of filing of the writ petition, the appellant was working as Vice-Principal in Government Multipurpose Higher Secondary School, Durg, where he was posted on 1 9-8-1994. The details of the service career of the appellant and respondents No.5, 6 and 7 have been stated in Annexure A-3 along with the writ petition. 4. It is the case of the appellant that respondents No.5, 6 and 7 were serving in private schools having been appointed on various dates and were later on absorbed in Government service by orders of absorption issued on different dates, the details of which have been annexed by the appellant in the Annexure A-3 along with the writ petition. According to the appellant, he came to know about the absorption of respondents No.5, 6 and 7 in the year 1995 and their promotion to the post of Principal in the Higher Secondary Schools. According to the appellant, respondent No.5 was posted as Assistant Director of Education at Durg in the office of Deputy Director. Respondent No.6 has been promoted as Deputy Director of Education on 30-5-1992 and respondent No.7 has been promoted and posted as Joint Director in the month of June, 1994. Having come to know about the said promotions, postings of respondents ^ Sli: |i^5;'^SsSf^SS^ No.5, 6 and 7, the appellant made representation vide Annexure A-1 annexed with the writ petition ventilating grievances to the effect that respondents No.5, 6 and 7 are much junior to the appellant in the service career and they have been promoted to the post of Deputy Director, Assistant Director and Joint Director of Education, whereas the appellant is senior to them as he has been working as Lecturer right from 31-1-1970, whereas respondent No.5 was appointed as Lecturer on 17-3-1981, respondent No.6 as Upper Division Teacher ori 1-7-1967 and respondent No.7 as Upper Division Teacher on 1- 10-1969 as per the information of the appellant. Referring to the details given in the writ petition vide Annexure A-3, it has been claimed that the appellant is much senior to respondents No.5, 6 and 7 in all respects and, therefore, he is entitled to be promoted on the post of Deputy Director and Joint Director in the Department, but has been illegally ignored despite repeated representations. 5. The appellant has also stated that the respondents were not qualified to be appointed and absorbed on the post of Principal. According to him, in view of the Government Circular dated 21-12- 1967, vide Annexure A-4 (in the writ petition), respondents No.5, 6 and 7 were not eligible for being absorbed on the post of Principal. The appellant further says that he is highly qualified and awarded Ph.D. Degree in Hindi and has also completed B.Ed. Training in the year 1965. He has a blotless career in the Depari:ment of Education and his work has been appreciated by all concerned. 6. In the return filed by respondents No.1 to 3 to the writ petition, the claim of the appellant has been denied by stating that in view of the policy decision taken by the Government to take over various schools run by Non-Government agencies, respondents No.5, 6 and 7, who were working in the private schools, taken over by the Government, were absorbed. Policy letter dated 21-12-1967 (Annexure R-1 in the writ petition), which has also been referred to by the appellant, is claimed to have been followed in the matter of absorption on the post of Head Master, Principal of High/Higher Secondary Schools. ^ ; ^^Sfe^^^^^ 7. It has been further stated in the aforesaid return that respondents No.5, 6 and 7 were absorbed in the colleges, wherein they were working and the same were taken over in accordance with the said policy. It has been further stated that the qualification and experience of respondents No.5, 6 and 7 were taken into account by the State Government and it was found that they all were qualified in accordance with the policy letter dated 21-12-1967 (Annexure R-1 in the writ petition). It has been stated that respondents No.5, 6 and 7 were working on the post of Principal of Higher Secondary School since long. Respondents No.1 to 3 have also denied that the appellant was promOted to the post of Lecturer in the year 1970. They have stated that from records/service book of the appellant, it is revealed that earlier he was working as Lower Division Teacher/Upper Division Teacher and was appointed as a fresh Lecturer by an order dated 20-1-1970, which is clear from a relevant extract of service book filed as Annexure R-3 (with the writ petition). Respondents No.1 to 3 have further stated that the policy decision of the Government to take over private colleges and consequent ^ absorption of the services of the Teachers, Head Masters and Principals of those colleges cannot be questioned by the appellant, which had been taken in the interest of public at large and the same cannot be said to be in any manner bad and illegal. According to respondents No.1 to 3, the said policy is reasonable and rational and being in the realm of policy decision, could not be interfered with and is beyond scope of judicial review unless it is shown to be arbitrary, ma/a fide or unreasonable. According to respondents No.1 to 3, the appellant has failed to demonstrate that the policy is in any manner arbitrary, ma/a fide or unreasonable. It is further submitted that as far as claim based on acquisition of Ph.D. Degree is concerned, separate rules for grant of benefit to persons holding Ph.D. Degree have been framed and the appellant has received additional increments being holder of Ph.D. Degree. S!!:E4.:iiS»-;iiaNe; ^••'•^'•^^'ys^Ms1 8. After perusal of the pleadings and the documents available on record of the writ petition and hearing learned counsel for the parties, the learned Single Judge has arrived at the findings as under: "12. ....... The policy of absorption has not been challenged by the petitioner. Therefore, the petitioner's claim for promotion on the ground that he was senior to respondents No.4 to 6 on the post of Principal deserves to be rejected. 13. It has been lastly submitted that the petitioner having been possessed of Ph.D. Degree should have been considered for promotion in preference to respondents No.4 to 6 also cannot be accepted as respondents No.1 to 3 have clearly stated in their return i-T-:~K that as per rules, the benefits admissible upon acquisition of Ph.D. Degree in the shape oftwo additional increments have been granted to the petitioner. 14. I do not find any reason to interfere with the order passed by the respondent authorities with regard to promotion, seniority and absorption of the respondents No.4 to 6. The claim of the petitioner is therefore devoid of any substance and the petition deserves to be and is accordingly dismissed. No order as to cost." ssisssns& 9. Shri Aman Kesharwani, learned counsel for the appellant has submitted written submission. The grounds taken by the appellant/petitioner in the writ appeal are reiterated by him in the written submission. 10. Shri M.P.S.Bhatia, learned Deputy Government Advocate for the State of Chhattisgarh supported the impugned order passed by the learned Single Judge. 11. We have heard learned counsel appearing for the parties and perused the written submission submitted by learned counsel for the appellant as also the record. 12. In P. hflohan Reddy vs. E.A.A. Charles and others, AIR 2001 SC 1210, the Hon'ble Supreme Court has held thus: "17. A conspectus of the aforesaid decisions of this Court would indicate that even though an employee cannot claim to have a vested right to have a particular position in any grade, but all the same he has the right of his seniority being determined in accordance with the Rules which remained in force at the time when he was borne in the Cadre. ......." ^•S-.-VS^^:^ ^^-tSSS-^^f^ @i' R-g'itiftS.^.^j-gi^gf 13. Where statutory provisions or administrative instructions provided for the factors to be taken into consideration and the manner to be adopted in fixation of seniority, then subject to such provisions or instructions, being constitutionally or otherwise valid, seniority has to be fixed in accordance with such provisions. The State Government has framed policy guideline vide its letter dated 21-12-1967, which is placed as Annexure R-1 in the writ petition. Relevant provisions contained in Annexure R-1 (in the writ petition) read thus: "3. Absorption—The upper Division teachers, lecturers and other staff will be absorbed on the posts held by them at the time of taking over of the institutions under Govt. control provided— 1. He is qualified for the post held by him. 2. and he is receiving the prescribed scale of pay of the grade. A person who does not fulfill the conditions laid down in sub para (i) and (ii) above may be absorbed in lower grade post for which he is entitled on the strength of his qualifications and pay. 3. A person should fulfill all formalities terms and conditions that need to be complied with as in the case of first entry into Govt. service verification of antecedents/medical fitness. No one who has attained the age of supper annuation according to Govt. rules shall be absorbed, Only such persons shall be retrenched whose physical disability or -€ ssu.s& undesirable activities make it necessary not to absorb them. For absorption on the post of Head Masters, principal of a high/higher sec. school, the person concerned should possess the post graduate degree and should have worked on the post for minimum period of 7 years in the same institution and should have 10 years teaching experience in any of the recognized institution of M.P. The ministerial and other if any working under the management of non-Govt/local body school is under qualified shall be absorbed in a post suitable to his qualification for be retained if he has put in 5 years service and has a good record of work, in which case the under qualified person shall get the seniority only from , dateofabsorption. 4. Seniority—The seniority of an absorbed employee in the post/cadre of absorption shall be determined from the date he held the post/cadre or on the date on which he was qualified for the post which over is letter. His seniority will take place in the combined graduation list below the Govt. servants appointed/promoted to the Corresponding post under Govt. in that year. ......." 14. From perusal of Annexure A-3 (in the writ petition), it appears that the seniority among respondents No.5, 6 and 7 and the appellant has been fixed according to the policy guideline dated 21- 12-1967 (Annexure R-1 in the writ petition). The appellant did not challenge the said policy guideline in his writ petition nor did he establish any ground on the basis of which it could be held that respondents No.5, 6 and 7 wereineligible for promotion. The claim ofthe appellant that he, having been in possession of Ph.D. Degree, should have been considered for promotion in preference to I ^i'it;^'i^?; f*;3^ -I respondents No.5, 6 and 7 is also unacceptable, as, he has been granted the admissible benefit therefor in the shape of two additional increments asper rules. We find that the impugned order passed by the writ Court does not suffer from any illegality or infirmity. GCi'T- 8:iiWliSl*l 15. For the foregoing reasons, the appeal deserves to be and is accordingly dismissed. No order as to costs. _^-- Sd/- Satish K. Agnihotri Judge Sd/- R.S. Sharma Judge