c^' ^^ IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR PETITIONERS: .,'•*. ;»**' ..•&.ts ^?^)^;/- 2) o..-' s~^'°^ .^^'^" ^y'- .eril ^-u W.P.fS.) N0. ^^^& /2010 1) Pritam Lal Sahu S/o Shri S.R. Sahu, Aged about 50 years, ^ Occupation Service presently posted as Upper Division Teacher in Govemment Pre-Middle School, Birgahni, Block Baloda, District Janjgir -Champa (C.G.) Sushil Kumar Shukla S/o Late Pila Babu Shukla, Aged about 52 years, Occupation Service presently posted as Upper Division Teacher in Govemraent Pre-Middle School, Bhadesar, Block Navagarh, District Janjgir - Champa (C.G.) 3) Madan Singh Kshatri S/o Shri Madhav, Aged about 50 years, Oceupation Service, presently posted as Upper Division Teacher in Government Pre-Middle School, Basantpur, Block Baloda, District Janjgir -Champa (C.G.) / 4) Kirti Bilas Sharma S/o Shri Dhanu Lal, Aged about 49 years, Occupation Service, presently posted as Upper Division Teacher in Government Pre-Middle School, Awrind, Block Navagarh, District Janjgir -Champa (C.G.) ^"^^ .^is^SSsS^i^' .>^«^te^SK. ^••c-^'?^*^ ^.—^. , 5) Pratap Das Mahant S/o Shri Dhum Das Mahant, Aged about 50 years, Occupation Service, presen'tly posted as Upper Division Teacher in Government Pre-Middle School, Bhadesar, Block Navagarh, District Janjgir - Champa(C.G.) 6) Rajkumar Dwivedi S/o Shri Prahlad Dwivedi, aged about 52 years, Occupation Service presently posted as Upper Division Teacher in Government Pre-Middle School, Dhaneli, Block Navagarh, District Janjgir - Champa (C.G.) 7) Surendra Singh Rathore S/o Shri Girdhari Lal Rathore, Aged about 56 years, 'Occupation Sendce presently posted as Upper Division Teacher in Government Pre-Middle School, Jarve(C), Block Baloda, District Janjgir - Champa (C.G.) 8) Govind Das Chandra S/o Bodhi Ram Chandra, Aged about 60 years, Occupation Service presently posted as Upper Division Teacher in Government Pre-Middle Schpol, Datoud, Block Jaijaipur, District Janjgir Champa (C.G.) 9) Fatte Lal Tandon S/o Shri Pyare Lal Tandon, agedabout 52 years, Occupation Service presently posted as Upper Division Teacher in Government Pre-Middle School, Datoud, Block Jaijaipur, District Janjgir -Champa (C.G.) VERSUS RESPONDENTS State of Chhattisgarh Through Secretary School Education Department, D.K.S. Bhawan Raipur (C.G.) District Education Officer Janjgir, District Janjgir-Charapa (C.G.) WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA FQR ISSUANCE OF WRIT IN NATURE OF MANDAMUS CERTIORARY OR ANY OTHER WRIT OF LIKE NATURE ETC. •>:,,..v iiriafe Bench: Hon'ble Shri Manindra Mohan Shriva; WRIT PETITSON (S) N0.4326/2010 Pritam Lal Sahu and Others State of Chhattisgarh and Anothe? WR!T PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDtA Present: - Shri Rajesh Kumar Sharma, counse! for the petltioners. Shri V. V. S. Generai for the >th Heard onadmission. ie (2) By this petition, the petitioners have assaiied the action respondents in initiating selection process for promotion to the post of Head Master, Pre-Middle School through departmenta! llmited examination vide advertisement dated 14-07-2010 (Annexure P-1). (3) Learned counsel appearing for the petitioners submits that the action of the respondents In holding departmental !imited examination for filling-up the promotional post of Head Master, Pre-Middie School is an act of harassment. It is submitted that the petitioners are holding the post of Upper Division Teacher. It is also submitted fhat earlier respondents had proceeded to make promotion of Upper Division Teacher to the posf of Head Master, Pre-Middle School without taking any departmenta! examination giving benefit to those Upper Division Teachers, who have not completed three years, vide order dated 1-05-2010 (Annexure P-5) and vide order dated 03-08-2010 (Annexure P-6). Learned counsel further submits that the same procedure ought to be fol!owed •'>> 's&"\ ^ / .s^' ws'y- and the action of the respondents in holding departmental limited examination is JSSegal and discriminatory. Next submisslon of learned counsel for the petitioner is Shat in view of the provisions contained in Rule 13 of the Chhattisgarh School Education Gazetted Service (School Level) Recruitment and Promotion Rules, 2008 (!n short "She Ruies of 2008") (Annexure P-3) for the purpose of promotion, Chhattisgarh Public Servant (Promotion) Rules, 2003, (In short "Rules of 2003") would be applicable, and therefore, for the purpose of making promotion only D.P.C. is required to be constituted and the respondents couid not have taken recourse to the process of promotion through departmenta! iimited competitive examination. The last submission of learned counssl for the petitioner is that in view of the amendment vide notification dated 28 August, 2008, as the posts of Upper Division Teacher and Head Master, Pre-Middie School are of the same cadre, there is no need to hold departmental limited competitive examination for considering the Upper Division Teacher for promotion to the post of Head Master, Pre-Middle School. (4) The petitioners have ptaced on record the ruies regulating promotion to the post of Head Master, Pre-Middle Schoo! as Annexure P-3, known as ChhatEisgarh School Education Gazetted Service (School Level) Recruitment and Promotion Rulss, 2008. A perusal of Scheduie-lt appended to the Rules wouid show that the post of Head Master, Pre-Middle School is 100% pfQmotiona! post to be fiiled up from amongst eiigible Upper Divislon Teacher & Assistant Teacher. The aforesaid rule has been amended vide notification dated 28-08-2008, and thereafter, further amended vide notification dated 21-04,.2010, placed on record as Annexure P/3 and Annexure P-6(along with an application for taking document on record). From perusal of the statutory scheme of the Ruies of 2008, it is clear that the post of Head Master, Pre- Middie Schooi is to be filled up by v/ay of promotlon from amongst eiigib'e 'A *'•• •'. an Upper Division Teachers, who have completed minimum five years of service. In such case, there is no requirement of holding departmenta! examination. Under the statutory scheme, if such eligible Upper Division Teachers with minimum five years of experience are not avaitable, then the post would be filled up from amongst those teachers who have thres years of experience. In case, even such teachers with three years of experience are not available, graduate teachers with less than three years experience and Assistant Teachers with 12 years of experience may be promoted subject to they being successful in the departmental limited examination. It is the case of the petitioners themselves that Shey ai! have been promoted to the post of Upper Division Teacher vide order dated 18-08-2008, therefore, on the date of issuance of impugned advertisement dated 14-07-2010 (Annexure P-1), they were possessed of even less than two years experience on the post of Upper Division Teacher. The advertisement clearly records that the post of i-1ead Master, Pre-Middle School would be fiiled up from Upper Diviston Teachers with iess than three years experience on 31-07-2010, Graduate Head Master, Primary School, Assistant Teacher and Assistant Teacher (Science), who have completed 12 years of experience on 31-07-2010. Therefore, the advertisement is in accord with the Rules of 2008. Petitioners' claim that they are not iiabte to face departmental examination for the purpose of promotion to the post of Head Master, Pre-Midd!e School does not hold water, as petitioners experience on the post of Upper Division Teacher is less than three years. Only those Upper Division Teachers, who have minimum five years experience, are entitled to be promoted on the post of Head Master, Pre-Middle School through D.P.C. without facing departmental examination and if such teachers are not availabie, then, those teachers are entitled who have completed three years of experience. Petitioners did not belong to either of the categories as their experience on the post of Upper Division Teacher is less than three years. As such, Shey are entitled to be considered for promotion subject to they being successfu! in departmenta! examination as prescribed in clause(2) of cotumn (7) corresponding to Serial No.3 of Schedule-il appended to the Ruies of 2008. (5) Submission that vide order dated 01-05-2010 (Annexure P-5), Upper Division Teachers, who have not completed three years of service on the post, were promoted as Head Master, Pre-Middle School without subjecting them to departmentai Simited examination, is not supported by any material on record. The petiti'oners have not even placed on record the date of the appointments of those Upper Division Teachers. (6) Further subrriission that vide order dated 03-08-2010 (Annexure P-6), Upper Division Teachers have been promoted as Head Master, Pre-Middle Schoof without subjecting them to departmentai limited competiti':^ examination is also not made out, as the said order cleariy states that promotion has been granted to those Upper Division Teachers, who have completed three years of semce. (7) Submission of leamed counsel for the petitioner that for the purpose of mafa'ng promotion, the rules of general applicatiQn namely Ruies of 2003 ought to be foHowed is aiso liable to be rejected. A perusal of Rule 13 of the Ruies of 2008 would show that for the purpose of making reservation and preparins mode! roster, it has been provided that the provisions contained in the Rules of 2003 wouid be applicable. Thus, the application of Ruies of 2003 js for limited purpose of mato'ng reservation and preparing model roster. (8} 'The last submission of learned counsel for the petitioner that as the posfs of Upper Division Teacher and Head Master, Pre-Middle School are of Tumane the same cadre and there is no need to subject the Upper Division Teacher to competitive examination before promoting to the post of Head Master, Pre- Middle School, is also not tenable in the eye of law. Two posts are dectared as belonging to the cadre of Teachers by adding a note under Schedule-4 appended to the Rules of 2008. However, the post of Head Master, Pre-Middie Schoo! remains a promotiona! post. (9) There is no merit in this petition and is accordingty dismissed at the stage of admission. Sd/- Manindra Mohan Shrivastava Judge