IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 9.1.2008 CORAM: THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR.JUSTICE S.R.SINGHARAVELU Writ Petition No.20959 of 2002 1.Union of India, rep.by its Secretary, Education Department, Pondicherry. 2.The Director of Education, Government of Pondicherry, Pondicherry. ... Petitioners Vs. 1.The Central Administrative Tribunal, rep.by the Registrar, Chennai-104. 2.The Physical Education Teachers' Association, rep.by its President G.Xavier, Kamaraj Government Boys School, Muthialpet, Pondicherry. 3.V.S.Thiagarajan 4.P.Perumal 5.S.Balakrishnan 6.The Physical Directors and Directress Association rep.by its President, Pondicherry. ... Respondents Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorari calling for the records pertaining to the order passed in O.A.No.414 of 1999, dated 7.6.2001 on the file of the Central Administrative Tribunal, Madras Bench and quash the same. https://hcservices.ecourts.gov.in/hcservices/ For petitioners : Mr.Syed Mustafa, Govt.Advocate (Pondy) For R.2 : Mr.C.Chinnasamy, Senior Counsel for Mr.E.Sampathkumar O R D E R ELIPE DHARMA RAO, J. The respondents 3 to 5 are working as Physical Education Teachers in the Schools of Pondicherry and the second respondent is the Physical Education Teachers Association. There is no dispute regarding the fact that the respondents 3 to 5 were appointed as per the Government of Pondicherry Education Department Group-C Posts Recruitment Rules, 1978, prescribed as per G.O.Ms.No.59/78-Edn./SO (E), dated 3.6.1978. The qualification prescribed for the post of Physical Education Teacher, as per the said Recruitment Rules of 1978 is 'SSLC and lower grade certificate in Physical Education' and the mode of appointment is by direct recruitment. Thereafter, during the academic year, 1979-80, Higher Secondary School System was introduced in the Union Territory of Pondicherry and the posts of Physical Director/Physical Directress in the scale of pay of Rs.440-750 were created and the Recruitment Rules to the post of Physical Director/Physical Directress were framed vide G.O.Ms.No.11/SO(E)/ Edn., dated 8.2.1983. 2. Admittedly, the next avenue for promotion to the Physical Education Teachers is to the post of Physical Director/Physical Directress. Subsequent to the appointment of the respondents, the Physical Education Teacher Recruitment Rules were amended by G.O.Ms.No.17, dated 14.3.1988. By these amended Recruitment Rules, the educational qualification for the post of Physical Education Teacher has been changed and prescribed as '(i) a Degree of a recognised University with a Diploma in Physical Education of a recognised institution or (ii) a Degree in Physical Education of a recognised University'. 3. As has already been stated supra, the Government has framed the Government of Pondicherry Education Department Group-C Posts of Physical Director and Physical Directress Recruitment Rules, 1983 by G.O.Ms.No.11/SO(E)/Edn., dated 8.2.1983. According to Clause 6 of Schedule appended to these Rules, the age-limit for direct recruits was between 18 and 30 years and according to clause 6, the educational and other qualifications required for direct recruits is a Degree in Arts or science and B.P.Ed. of a recognised University; or a Degree in Physical Education (three years course) of a recognised University and according to Clause 8, though it was stated https://hcservices.ecourts.gov.in/hcservices/ that the age prescribed for direct recruits will not apply to the promotees, it was stated that the educational qualifications prescribed for direct recruits will also apply in the case of promotees. That means, if a person is to be promoted from the feeder cadre of Physical Education Teacher to that of the promotion category of Physical Director/Physical Directress, he must possess a degree in Arts or Science and B.P.Ed. of a recognised University; or a degree in Physical Education (three years course) of a recognised University. This Clause 8 of the Schedule, requiring even the promotees to acquire a degree in Arts or Science and B.P.Ed. of a recognised University; or a degree in Physical Education (three years course) of a recognised University, was challenged by the respondents 2 to 5 herein before the Tribunal on the ground that prescription of such condition for the promotees is arbitrary since as on the date of their appointment, no such condition of acquiring Degree was in existence and the only qualification for promotion to the post of Physical Director/Physical Directress was to put in five years of service in the post of Physical Education Teacher and these Rules cannot be given retrospective effect, so as to defeat their interest. 4. It is seen from the records placed before us that upto 4.9.1981, the scale of pay for the post of Physical Education Teacher was Rs.425-640 and that of Physical Director/Physical Directress was Rs.440-750 and with effect from 5.9.1981, the scale of pay of the post of Physical Educational Teacher was enhanced to Rs.440-750 with effect from 5.9.1981, thus making the scale of pay of the post of Physical Education Teacher on par with that of Physical Director/Physical Directress and thereafter, both the posts of Physical Educational Teacher and Physical Director/Physical Directress were given the same scales of pay viz. Rs.1400-2600 with effect from 1.1.1986 and Rs.5000-9000 with effect from 1.1.1996. Though both the posts of Physical Education Teacher and Physical Director/Physical Directress were having the same scale of pay, still, the post of Physical Director/Physical Directress was considered to be the promotional post to the post of Physical Education Teacher and the pay of the persons who were promoted to the post of Physical Director/Physical Directress from the post of Physical Education Teacher was fixed under FR 22(1)(a)(i). 5. It is also seen from the materials placed on record that one A.Ramachandran and seven others, who were working as Physical Education Teachers filed O.A.No.647 of 1994 before the Central Administrative Tribunal, Madras Bench seeking for a declaration that the post of Physical Education Teacher and the post of Physical Director/Physical Directress were one and the same, which was dismissed by the Tribunal, by its order dated 5.12.1997, holding that the duties and responsibilities of these posts were different, which was confirmed by a Division Bench of this Court by the order dated 21.7.1998 in W.P.No.6747 of 1998. https://hcservices.ecourts.gov.in/hcservices/ 6. Further, one B.Ilangovan and five others working as Physical Directors/Physical Directress in the Education Department, Government of Pondicherry filed O.A.No.1074 of 1998 before the Central Administrative Tribunal, Madras Bench to direct the Government to revise the scale of pay applicable to the post of Physical Director/Physical Directress to a higher level than that of Physical Education Teacher with effect from 1.8.1983 on the ground that the post of Physical Director/Physical Directress is a promotional post and it carries higher responsibility than that of the post of Physical Education Teacher. The said O.A. was allowed by the Tribunal, by its order dated 12.4.2001 and the pay of the post of Physical Director/Physical Directress was revised vide G.O.Ms.No.43, dated 16.4.2002 as follows: (a) with effect from 18.8.1983 : Rs.550-25-EB-30-900 (b) with effect from 1.1.1986 : Rs.1640-60-EB-60-2360-EB 60-2600-75-2750-EB-75-2900 (c) with effect from 1.1.1996 : Rs.6500-200-10500 subject to the condition that the Recruitment Rules to the post of Physical Director/Physical Directress shall be revised prescribing educational qualification as Master's Degree in Physical Education for both direct recruits and promotees. Accordingly, the Recruitment Rules for the post of Physical Director/Physical Directress were revised prescribing Master's Degree in Physical Education as essential qualification, which is applicable for direct recruits as well as promotees, vide G.O.Ms.No.44, dated 16.4.2002. 7. Thus, now, there is no dispute that the post of Physical Director/Physical Directress is a promotional post from that of the Physical Education Teacher, carrying a higher pay scale also. It is also now a well settled position that the post of Physical Director/Physical Directress carries more responsibilities than that of the Physical Education Teacher since it is seen that the Physical Education Teacher has to handle students of High School and Physical Director/Directress are to handle students of Higher Secondary classes. 8. The question that requires for consideration is 'whether imposition of clause 8, requiring even the promotees to acquire the educational qualification mentioned therein, so as to get promotion to the post of Physical Director/Physical Directress is sustainable'? 9. The Tribunal has answered the question in favour of the promotees, holding that such condition cannot be imposed on the promotees since it amounts to giving a Rule a retrospective effect, detrimental to the candidates, who are otherwise eligible for promotion to the post of Physical Director/Physical Directress. Aggrieved, the Government of Pondicherry has come forward with this writ petition. https://hcservices.ecourts.gov.in/hcservices/ 10. The writ petitioners submitted that consequent on the implementation of the order dated 12.4.2001 of the Tribunal in O.A.No.1074 of 1998, the scale of pay of the Physical Director/Physical Directress was revised as Rs.6500-10500 and in view of the higher responsibilities attached to the post, the Department is bound to revise the Recruitment Rules to the post of Physical Director/Physical Directress and therefore, the Department framed the Government of Pondicherry Education Department Group 'C' post of Lecturer (Physical Education) Recruitment Rules, 2002, wherein the requisite educational qualification as Master's Degree in Physical Education both for the direct recruits and promotees has been prescribed superceding the Recruitment Rules to the post of Physical Director/Physical Directress framed vide G.O.Ms.No.11/SO(E)/Edn., dated 8.2.1983 and therefore, the Physical Education Teachers who have put in five years of regular service in the grade with Master's Degree in Physical Education alone can be considered for promotion to the post of Physical Director/Physical Directress. It is further stated that there are 59 Physical Education Teachers, who already possess a Master's Degree in Physical Education, who are eligible to be considered for promotion to the post of Physical Director/Physical Directress and the officials in the cadre of Physical Education Teacher, who do not possess the required educational qualification, will be permitted to acquire the required qualification by sanctioning their eligible leave including study leave, as per their eligibility. 11. The firm stand of the respondents/promotees, accepted by the Tribunal, is that the said imposition cannot be given retrospective effect. 12. The Government of Pondicherry would argue that the claim of the applicants/promotees has to be rejected even on the ground of laches, since even though the Rule was in force from the year 1983, they ventured to file the O.A. before the Tribunal only in the year 1999. It is also the case of the writ petitioners that to bring quality in the field of education, the National Council for Teacher Education has prescribed higher standards and would produce a copy of the Extraordinary Gazette of India Part-III, Section 4, No.238, dated 4.9.2001. 13. No doubt, the recommendations of NCTE, aiming to bring quality in the field of education, are laudable. However, a careful perusal of these Recommendations, would show that it recommends prescription of minimum qualifications for recruitment of teachers in schools only that means for direct recruits and it does not recommend any such insistence by the State Governments on the existing incumbents, who were appointed well prior to the amended rules, following the then existing rules. Para No.3 of these recommendations would show that 'these regulations will have prospective effect' and the State Governments have been given time https://hcservices.ecourts.gov.in/hcservices/ upto three years for modifying the existing recruitment rules for recruitment of teachers to bring them in conformity with the qualifications prescribed in the Schedules to the Regulations. It is also mentioned that 'an enabling provision has been made, vide Section 5 of the regulations, empowering the Council, on recommendation from the State Government to grant relaxation of any of the provisions to such extent and subject to such conditions as may be considered necessary.' Therefore, the National Council for Teacher Education (Determination of Minimum Qualifications for Recruitment of Teachers in Schools) Regulations, 2001, on which much reliance has been placed by the petitioners, came into force from 3.9.2001and they will be only prospective in operation that too only regarding the new direct recruits. As has already been observed supra, nowhere these Regulations prescribe that even the teachers working in the feeder category of posts, shall acquire the newly prescribed qualifications, so as to become eligible for the promoted categories, for which new qualifications have been prescribed. 14. The undisputed fact is that at the time of creation of the post of Physical Director/Physical Directress which was the promotional category post to the post of Physical Education Teacher, the only condition required to be eligible is to put in a service of five years in the feeder category viz. the post of Physical Education Teacher. No doubt, the post of Physical Director/Physical Directress carry more responsibilities, considering which fact alone, by virtue of the orders of the Tribunal and the Division Bench of this Court, a higher pay scale has been fixed to the post of Physical Director/Physical Directress. At the same time, it is also not in dispute that the applicants are serving in the same field of imparting physical education to the school children for the last 25 to 30 years and the new condition prescribing higher educational qualification to the promotional post of Physical Director/Physical Directress has been brought into existence well after the appointment of the applicants. There is no doubt that this new rule has been framed in the year 1988, while the applicants have come forward to challenge the same only in the year 1999. Therefore, the Government of Pondicherry would argue that the claim of the applicants needs to be rejected on the ground of laches. But, in the considered opinion of this Court, when a legally accrued right has been sought to be taken away, which they would be otherwise eligible, by introducing a new rule and giving a retrospective effect to the same, causing detriment to the interest of the candidates who are already in service, rejection of the genuine claim of such candidates merely on the ground of laches amounts to denial of justice, which should not be permitted to allow. 15. As has been stated supra, the applicants are in the same field of imparting physical education to the school children for the last 25 to 30 years. When a question arose as to whether experience gained for a considerable length of time itself is a qualification, https://hcservices.ecourts.gov.in/hcservices/ the Honourable Apex Court in B.N.SAXENA vs. NEW DELHI MUNICIPAL COMMITTEE AND OTHERS [(1990) 4 SCC 205], has held that 'experience gained for a considerable length of time is itself a qualification'. Hence, we have no hesitation to hold that the rich experience gained by the applicants in the same field of imparting physical education to the school children for the last 25 to 30 years itself is a qualification, making them eligible and capable to deal with the higher responsibilities of the promotional post of Physical Director/Physical Directress. It is also to be mentioned that prior to introduction of Higher Secondary School System in the State of Pondicherry, only the Physical Education Teachers are imparting Physical Education to all the students in the School. 16. But, a strenuous argument has been advanced on the part of the writ petitioners/Government of Pondicherry that in the field of education, gaining experience itself will not be a qualification, which they are unable to substantiate before us that too in the light of the undisputed fact that prior to the introduction of Higher Secondary School System in the State of Pondicherry, only the Physical Education Teachers are imparting physical education to all the students of the School, irrespective of their class of study. Further more, at the cost of repetition, the applicants are having rich experience in the same field of imparting physical education to the school children. Therefore, following the ratio laid down by the Honourable Apex Court, it must be held that such a rich experience for a long period of 25 to 30 years of the applicants in the same field of imparting physical education to the school children itself is a qualification. 17. Admittedly, the new Rule of requiring higher educational qualification has been introduced only from 1988, and at no stretch of imagination, it could be allowed to have a retrospective effect. 18. The learned Government Advocate appearing for the petitioners/Government of Pondicherry would argue that no employee of the State could challenge the power of the Government to amend, alter and bring into force new rules relating to even an existing service. In support of his arguments, the learned Government Advocate would rely on the judgment of the Honourable Apex Court in P.U.JOSHI AND OTHERS vs. ACCOUNTANT GENERAL, AHMEDABAD AND OTHERS [(2003) 2 SCC 632]. In the said judgment, the Honourable Apex Court has held: "Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of policy is within the exclusive discretion and jurisdiction of the State, subject of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the statutory tribunals, at any https://hcservices.ecourts.gov.in/hcservices/ rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/substraction the qualification, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing the existing cadre/posts and creating new cadre/posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service." 19. There is no quarrel with regard to the proposition laid down by the Honourable Apex Court and the powers of the State Government to amend the Rules is unquestionable. Even in the case on hand, the applicants have not challenged the power or authority of the State Government in framing such Rule, but they challenge the Rule since it was given retrospective effect, detrimental to their already accrued legal rights. 20. As has already been observed supra, the applicants are in the same field of imparting physical education to the school children for the last 25 to 30 years and their avenue for promotion to the next cadre has been taken away by giving retrospective effect to the rule, causing much prejudice to the accrued rights of the applicants. Therefore, considering the length of service put in by the applicants and the fact that the impugned Rule is sought to be given a retrospective effect, we consider it appropriate to quash the impugned Rule, to the extent of giving a retrospective effect, causing prejudice to the applicants and depriving their promotional avenues. https://hcservices.ecourts.gov.in/hcservices/ With this, this Writ Petition stands disposed of. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. Rao To 1. The Registrar, The Central Administrative Tribunal, Chennai-104. 2 The Secretary to Union of India, Education Department, Pondicherry. 3. The Director of Education, Govt. of Pondicherry, Pondicherry. + 1 CC to the Sr. Government Pleader cum Senior Public Prosecutor for Pondicherry, SR NO 1803 W.P.No.20959 of 2002 ku[co] gp/24.1. https://hcservices.ecourts.gov.in/hcservices/