IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 9567 of 2008. Reserved on: 23.04.2010. Decided on 04.05.2010. _____________________________________________________ Dr. Lekh Raj Sharma and others. …Petitioners. -Versus- State of Himachal Pradesh and another. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1No. __________________________________________________________ For the petitioners. : Mr. Amit Singh Chandel, Advocate. For the respondents. : Mr. R.K. Sharma, Senior Additional Advocate General with Mr. Anil Jaswal, Deputy Advocate General. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: Material facts necessary for the adjudication of this petition are that the petitioners are working as Shastris (O.T.) in the Education Department. They teach Class-VI to Class-X. The precise case of the petitioners is that they should be equated with T.G.Ts. and there should be promotional avenues for them at par with T.G.Ts. for higher posts of Head Master and Lecturer (School Cadre). 2. The case of the respondent-State, in a nut-shell, is that it is the prerogative of the State to frame the Recruitment and Promotion Rules. 1 Whether the reporters of the local papers may be allowed to see the judgment?.No. 3. I have heard the learned counsel for the parties and gone through the pleadings carefully. 4. It is true indeed that petitioners have been working as Shastris in the Education Department. Mr. Amit Singh Chandel, learned counsel for the petitioners, has placed strong reliance upon Annexures P-1, dated 23.03.1999, P-2, dated 19.02.1999 and P-3, dated 31.08.1982 to substantiate that his clients have also been equated with T.G.Ts.. A bare perusal of these Annexures reveal that they only talk of equivalence of educational qualifications, i.e., Oriental Teacher Training with B.Ed.. The equivalence of the post is required to be determined by the employer under the well known principles of the service jurisprudence. The equivalence is determined on the basis of educational qualification, existing Recruitment and Promotion Rules, functions and duties of the post in question. It is more or less a policy decision. The Court only intervenes, if the equivalence is not in conformity with Articles 14 and 16 of the Constitution of India. In the instant case, as of today, there is no equivalence arrived at by the employer by treating Shastris (O.T.) with T.G.Ts. The Shastris are appointed under separate set of Recruitment and Promotion Rules and the T.G.Ts. are also recruited under distinct Recruitment and Promotion Rules. It is true that an attempt has been made by the respondent-State to frame Rules with regard to T.G.T. category by including T.G.T. (Sanskrit) therein as is evident from Annexure P-7, dated 2nd February, 2002. However, these rules have not been finalized till date. The T.G.Ts. are eligible as per the existing Recruitment and Promotion Rules for promotion to the posts of Lecturer (School Cadre) and Head Master. The O.Ts. have no claim, what- so-ever, to be considered for the posts of Lecturer (School Cadre) and Head Master till the Recruitment and Promotion Rules for these posts are suitably amended. This Court cannot issue any directions to the respondents to frame a particular set of Recruitment and Promotion Rules. 5. Their Lordships of the Hon’ble Supreme Court in Malikarjuna Rao and others versus State of Andhra Pradesh and others (1990) 2 Supreme Court Cases 707 have held that it is neither legal nor proper for the High Courts or the Administrative Tribunals to issue directions or advisory sermons to the executive in respect of the sphere which is exclusively within the domain of the executive under the Constitution. Their Lordships have further held that the power under Article 309 of the Constitution of India to frame rules is the legislative power. This is to be exercised by the President or the Governor of a State as the case may be. The High Courts or the Administrative Tribunals cannot issue a mandate to the State Government to legislate under Article 309 of the Constitution of India. Their Lordships have held as under: “11. The observations of the High Court which have been made as the basis for its judgment by the Tribunal were only of advisory nature. The High Court was aware of its limitations under Article 226 of the Constitution and as such the learned Judge deliberately used the word "advisable" while making the observations. It is neither legal nor proper for the High Courts or the Administrative Tribunals to issue directions or advisory sermons to the executive in respect of the sphere which is exclusively within the domain of the executive under the Constitution. Imagine the executive advising the judiciary in respect of its power of judicial review under the Constitution. We are bound to react scowlingly to any such advice. 13. The Special Rules have been framed under Art. 309 of the Constitution. The power under Art. 309 of the Constitution to frame rules is the legislative power, This power under the Constitution has to be exercised by the President or the Governor of a State as the case may be. The High Courts or the Administrative Tribunals cannot issue a mandate to the State Government to legislate under Article 309 of the Constitution. The Courts cannot usurp the functions assigned to the executive under the Constitution and cannot even indirectly require the executive to exercise its rule making power in any manner. The Courts cannot assume to itself a supervisory role over the rule making power of the executive under Article 309 of the Constitution.” 6. Mr. Amit Singh Chandel, learned counsel for the petitioner has relied upon Annexure P-4, dated 13.03.2000. There is no contemporaneous material on record to suggest, even remotely that there is any nomenclature in the name and style of T.G.T. (Sanskrit). There was only a proposal mooted by way of draft rules as per Annexure P-7. However, the same has not been finalized till date. He has also relied upon Union of India through Govt. of Pondicherry and another versus V. Ramakrishnan and others (2005) 8 Supreme Court Cases 394 to substantiate that the promotions can be made from the category of O.Ts. to the posts of Lecturer (School Cadre) and Head Master under the executive orders under Article 162 of the Constitution of India. This submission merits rejection. In the present case, as noticed above, there are two set of rules determining the service conditions of Shastris and T.G.Ts. The promotion to the posts of Lecturer (School Cadre) and Head Master is governed under separate Recruitment and Promotion Rules. Till the amendment is carried out or new set of Recruitment and Promotion Rules are framed under Article 309 of the Constitution of India, petitioners do not have any claim to be considered for the posts of Lecturer (School Cadre) and Head Master. They are not entitled to any promotion by invoking the powers of the State under Article 162 of the Constitution of India. Even, Annexure P-7 cannot be termed as executive instructions, as claimed by Mr. Amit Singh Chandel. It is merely a proposal and an initial step for the purpose of framing the Recruitment and Promotion Rules. This was initiated on 2nd February, 2002 and till date these have not been finalized. Petitioners can only get the benefit as and when these rules are finalized and notified/published in accordance with law. 7. The judgment cited by Mr. Amit Singh Chandel does not support his contention. What has been held by the Hon’ble Supreme Court in paragraph -28, is that the rules framed under Article 309 of the Constitution operate so long the said rules are not repealed and replaced. The draft rules, therefore, can not form the basis for grant of promotion, when duly framed rules to the contrary are holding the field in the instant case. It is reiterated that there are existing Recruitment and Promotion Rules for filling up the posts of Lecturer (School Cadre) and Head Master and the post of T.G.T. is a feeder cadre. These rules have neither been repealed nor replaced. It is only in those cases where there are no Recruitment and Promotion Rules and the recruitment is governed by departmental instructions or executive orders under Article 162 of the Constitution of India, that the draft rules can be acted upon. This is not the position here. In this case, the recruitment to the posts of Shastris (O.T.), T.G.T., Lecturer (School Cadre) and Head Master is governed under the Recruitment and Promotion Rules framed validly under Article 309 of the Constitution of India and not by departmental instructions or executive orders under Article 162 of the Constitution of India. In view of the observations made hereinabove, there is no merit in this petition and the same is dismissed. No costs. (Rajiv Sharma) Judge May 04, 2010. (bhupender)