CWP 15362/2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Date of Decision: May ,2008 (1) CWP 15362/2006 Inder Singh ............. Petitioner through Ms.Alka Chatrath,Advocate. Versus State of Haryana and others ..............Respondents through Mr.Mahabir Sindhu,DAG Haryana. (2) CWP No.16460/2006 Ran Singh ............. Petitioner through Mr.RS Sangwan,Advocate. Versus State of Haryana and others ..............Respondents through Mr.Mahabir Sindhu,DAG Haryana. (3)CWP No.19192/2006 Mahabir Singh Malik ............. Petitioner through Mr.RN Sharma,Advocate. Versus State of Haryana and others ..............Respondents through Mr.Mahabir Sindhu,DAG Haryana. CWP 15362/2006 2 CORAM:HON'BLE MR. JUSTICE JASBIR SINGH. HON'BLE MR.JUSTICE JASWANT SINGH 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? . ***** JASWANT SINGH, J. This judgment shall dispose of CWP Nos.15362/2006, 16460/2006 and 19192/2006 since common questions of facts and law are involved in these writ petitions. For the sake of brevity and with the consent of the counsel for the parties, facts are being taken from CWP No. 15362/2006. Petitioner, who is a retired Headmaster from the Education Department, Haryana has filed the present writ petition with a prayer to quash the letter dated 30.8.2006 (Annexure P-11) issued by respondent no.2 informing him the deletion of his name from seniority no.951 and 663 of the seniority list of Lecturers, published on 1.4.1998 and 1.4.2005 respectively, on the ground that he has/had been promoted on the post of Headmaster on 18.1.2002. Briefly, the facts are that the petitioner was appointed as a Maths Master vide order dated 15.1.1973 (Annexure P-1) by District Education Officer, Gurgaon with reference to the order dated 8.12.1972 issued by the Director of Public Instructions, Haryana, in the grade of Rs.220-400 and posted in the Government High School, Dather. The petitioner during his government service acquired the higher qualification of M.A. (History), M.Ed. and M. Com. It appears that somewhere in the late 1980s, ex-cadre posts of Lecturers in School cadre were created and were governed by the instructions issued by the State of Haryana providing 25% of such posts to be filled up by direct recruitment and 75% by promotion from amongst Masters against subject-wise availability of posts. The petitioner, being CWP 15362/2006 3 M.Com. was promoted on officiating basis as Lecturer (Commerce) in School cadre in the grade of Rs.1640/2900 vide order dated 19.6.1989 (Annexure P-1). The order dated 19.6.1989 was modified vide order dated 28.7.1995 (Annexure P-3) promoting the petitioner as such w.e.f. 9/14.2.1989, the date his immediate junior Sh. Rajinder Singh, Master was promoted. It is further apparent from the record that the post of Lecturers in the school cadre were encadred under the rules, namely, Haryana State Education Lecturers School Cadre (Group C) Service Rules,1998 (hereinafter referred to as Group-C 1998 Rules). A perusal of Appendix-A read with rule 3 of these rules shows that all the posts of Lecturers were sanctioned on temporary basis in the pay scale of Rs.2000/2900. Rule 9 of Group-C 1998 Rules provides the method of recruitment and sub-rule (1) provides that recruitment to the post of Lecturer shall be made (i) 50% by promotion from amongst Masters and Classical and Vernacular Teachers; and (ii) 50% by direct recruitment or (iii) by transfer or deputation of an official already in the service of any State Government or Government of India, and further sub-rule (2) provides that promotion shall be made on inter se seniority-cum-merit basis and seniority alone shall not confer any right of such promotion. The petitioner, though working on the post of Lecturer(School Cadre), on the basis of his seniority as Master was promoted and appointed, on officiating basis, as Headmaster in the pay scale of Rs.7500-12000 of a government high school in Haryana Education Services-Class II Cadre, vide order dated 18.1.2002 (Annexure P-4). A perusal of the said order discloses that the suitability of the petitioner and his juniors had been adjudged while making the said promotion and further condition no.6 of the terms and conditions provided that the promoted officials had to join their place of postings within 15 days of the issue of the promotion orders otherwise it was to be presumed that they were not willing to accept the said promotion and in that eventuality their juniors were to be promoted in their place. The petitioner, in pursuance of these orders, duly submitted his joining report on the post of Headmaster at Government High School, Bajghera, District Gurgaon. The said post of Headmaster is governed with effect from 2.4.1988 by the Haryana State Education (School and Inspection CWP 15362/2006 4 Cadre) (Group-B) Service Rules,1998 (hereinafter referred to as Group-B Rules 1998). The method of recruitment to the post of Headmaster of High School is provided under clause (d) of sub-rule (1) of Rule 9 of Group-B Rules 1998. Further, sub-clause (i) of clause (d) provides quota of 60% by promotion from amongst Headmasters of Middle School/ Masters as per roster given in Appendix E. The petitioner continued to work on the post of Headmaster since the date of his joining. A provisional gradation list (Annexure P.5) of the Lecturers School Cadre as it stood on 1.4.2005 and as on 1.4.1998 was circulated and the name of the petitioner stood at Serial No.663 and 951 respectively. Thereafter, the Government of Haryana issued orders dated 18/19.1.2006 under Haryana State Education (School and Inspection Cadre) (Group-B) Service Rules,1998 promoting 104 Headmaster and 205 Lecturers in HES Class-Class II Cadre on officiating basis in the pay scale of Rs.8000-13500/-. It is stated that respondents No.4 & 5, who were placed at Serial No.1207-A and 1209 in the gradation list of Lecturers appended herewith as Annexure P.5, were promoted as Principals ignoring the petitioner, whose seniority number in the gradation list of Lecturers was 951/663. Petitioner submitted a representation dated 15.1.2006 (Annexure P.7) to the Commissioner-cum-Director General, School Education, Haryana and requested that he may be considered for promotion to the post of Principal in the grade of Rs.8000-13500/- with all consequential benefits with retrospective effect i.e the date the Lecturers, who were junior to the petitioner, hade been promoted as Principals. Petitioner submitted another representation dated 20.2.2006 (Annexure P.8) and also served a legal notice dated 25.4.2006 (annexure P.9). Thereafter, the petitioner filed a petition bearing CWP No.11279 of 2006, which was disposed of by this Court vide order dated 18.8.2006 directing the respondents to take a final decision on legal notice dated 25.4.2006 (Annexure P.9) filed by the petitioner, within a period of two months from the date of receipt of certified copy of the order. Thereafter vide order dated 30.8.2006 (Annexure P.11) issued by the Commissioner-cum-Director General, School Education, Haryana, Chandigarh (Respondent No.2), petitioner was informed that due to his promotion as Headmaster on 18.1.2002, his CWP 15362/2006 5 seniority No.951 and 663 in the provisional grade list of Lecturfersas it stood on 1.4.1998 and 1.4.2005 respectively, has been deleted. Aggrieved by the same, present writ petition has been filed. When the present petition came up for motion hearing on 25.9.2006, the same was adjourned on the request of the petitioner's counsel to show that in accordance with Rule 9 (1)(b) of Group B 1998 Rules, petitioner being a Lecturer was entitled to be considered for promotion to the strengh of 45% posts as per roster given in Appendix 'C' and the same was placed on record by way of Civil Miscellaneous No.18892 of 2006 and was taken on record as Annexure P.12 vide order dated 13.11.2006. Respondents, upon notice, have filed their written statement and contested the claim of the petitioners. It has been stated that prior to the promulgation of Group-B 1998 Rules, the post of Master was not a promotional channel for Lecturers on the basis of seniority. The petitioner was promoted on officiating basis on account of his possessing higher qualification of M.A. (Commerce). It has been further stated that promotion to the post of Heasmaster in the year 2002 had been made according to Group-B 1998 Rules and the petitioner had been promoted as Head Master on the basis of availability of the post in his quota and on the basis of his seniority in the feeder cadre of Masters. It was further stated that the petitioner has no legal right to be promoted as Principal, HSES-Class II Service from the post of Lecturer, due to the reason that Rule 3.12 of the Punjab Civil Service Rules Volume I Part I speaks of the circumstances under which an employee acquires a lein on a permanent post. Rule 3.12 of the Punjab Civil Service Rule Volume I, Part I, for ready reference, is reproduced as under: "Unless in any case it be otherwise provided in these rules a government employee on substantive appointment to any permanent post acquires lein on that post and ceases to hold any lien previously acquired of any other post." It is further stated that the petitioner was recruited by way of promotion as per Rule 9(1)(d) and (2) of the Group B 1998 Rules as Head Master in Govt High School and he joined as such on 23.1.2002 and after completion of probation period of one year on the said promotional post of CWP 15362/2006 6 Head Master, his services stood automatically confirmed in the cadre of Head Master. Therefore, in view of afore quoted Rule 3.12 of C.S.R, the petitioner acquired a lien on the post of Head Master and he ceases to have a lien on the post of Lecturer. It is further stated that no person junior to the petitioner in the cadre of Head Master has been promoted as Principal. It has been further stated that after his appointment by way of promotion as Head Master and on completion of probation period of one year, his lien on the post of Lecturer stood automatically terminated and, therefore, his name from the provisional gradation list of Lecturers was removed. We have heard the learned counsel for the parties. It was contended by learned counsel for the petitioner that the petitioner had worked for more than three years on the post of Lecturers viz completed maximum period of probation and thus he had acquired a lien on the said post and, although they had accepted their appointment by promotion as Head Master, in view of his seniority as Lecturer, he was entitled to be promoted as Principal with effect from the date, persons juniors to him as Lecturters were promoted. On the other hand, learned counsel for the respondents contended that the appointment of the petitioner on the ex-cadre post of Lecturer was on officiating basis and even after the enforcement of Group-C 1998 Rules, his appointment as Lecturer was never made according to the rules and, therefore, he never acquired a lien on the post of Lecturer. He further contended that it is due to this reason that his lien on the post of Master had continued, which gave him a right for consideration for appointment by way of promotion to the post of Head Master, though working on officiating basis on the post of Lecturers for many years, which he voluntarily accepted in the year 2002 and thus he is estopped from raising any claim on the basis of the seniority as Lecturers. Before proceeding to deal with the contention of the parties, it is necessary to reproduce the provisions of the Rules governing the posts of Principals, Head Masters of a High School and post of Lecturer. Rule 9 of Group B 1998 Rules and Rule 9 of Group C 1998 Rules are reproduced hereunder: CWP 15362/2006 7 Group-B 1998 Rules 9. Method of recruitment (1) Recruitment of the Service shall be made- (a) xxxx xxxx xxx xxxx (b) in case of Principal/Senior Specialist: (i) (I) 30% by promotion from amongst the Headmasters of High School as per roster given in Appendix E, and (II) 45% by promotion from amongst the Lecturers, as per roster given in Appendix E; and (ii) 25% by direct recruitment, as per roster given in Appendix E- or (iii) by transfer or deputation of an officer already in service of any State Government or the Government of India; (c) xxxx xxxx xxxx xxx xxx xxx (d) in case of Headmaster of High School/Junior Specialist/Programme Assistant- (i) (1) 60% by promotion from amongst the Heasmasters of Middle School/Master, as per roster given in the Appendix E; and (II) 7% by promotion from amongst the Saznskrit Teachers as per roster given in Appendix E; and (III) 7% by promotion from amongst the Hindi Teachers as per roster given in Appendix E; and (IV) 1% by promotion from amongst the Punjabi Teachers as per roster given in Appendix E; and (ii) 25% by direct recruitment, as per roster given in Appendix E; or (iii) by transfer or deputation of an officer already in service of any State Government or the Government of India. (2) xxx xxx xxx Group-C 1998 Rules "9. Method of recruitment-(I)Recruitment to the Service in case of lecturer shall be made, (i) 50% by promotion from amongst Masters and CWP 15362/2006 8 Classical and Vernacular teachers; and (ii) 50% by direct recruitment; or (iii) by transfer or deputation of an official already in the service of any State Government or Government of India; [Note- In case of direct recruitment, 33% posts shall be reserved for women and 50% shall be reserved for rural youth, who have acquired matriculation qualification from a school situated in rural area of Haryana. This reservation shall be horizontal.] (2) All promotions unless otherwise provided, shall be made on inter se seniority-cum-merit basis and seniority above shall not confer any right to such promotion." Let us first deal with the question of the petitioner acquiring lien on the post of Lecturer, School Cadre. It is an admitted case that ex-cadre subjectwise posts of Lecturers were created during late 1980s and the petitioner and other similarly situated Masters were adjusted/promoted on officiating basis on account of their possessing higher qualifications( post graduation) in different subjects. The masters like the petitioner had accepted these appointments on the post of Lecturers because the post of Lecturer carried higher pay scale than the Masters. These posts of Lecturers were encadred by the promulgation of Group C 1998 Rules, which were enforced with effect from 1.12.1998 on their publication in the Haryana Gazette. Petitioner has neither pleaded nor placed any document on record to show that he was ever appointed as Lecturer in terms of the provisions of Rule 9(1)(b) of the Group C 1998 Rules nor has he shown that he was ever appointed on substantive basis against any permanent post. A perusal of Rule 3 read with Appendix 'A' of the said rules clearly indicates that all the sanctioned posts of Lecturers were temporary in nature. Thus it is absolutely clear that the petitioner was appointed merely on officiating basis and on account of his possessing higher qualifications and further even after coming in force of Group C 1998 Rules, the nature of his appointment continued to be the same. He was never appointed on substantive basis against any permanent post as in any case, no permanent post was available under Group C 1998 Rules. It is settled principle of law CWP 15362/2006 9 that an employee can be said to have acquired lien on the post on which he has been confirmed and made permanent and not earlier. Hon'ble Supreme Court has so held in its judgment reported in Ali M.K and Others v. State of Kerala and others, (2003), 11 SCC, 632, paragraph 18 of which is reproduced below: "18. A faint attempt was made to submit that the non-official respondents had lost their lien as they were appointed to posts of substantive nature. Reference was made to Rule 28 to submit that on completion of probation and in case of promotion, it is to be presumed that there was substantive appointment. The Full Bench has recorded a factual finding that the non-official respondents have not been confirmed in the posts in the Cooperative Department. It has been specifically recorded that no material was placed to show that any order has been passed by the Cooperative Department confirming the employees concerned in their posts. With reference to Rule 24 it was noted that mere completion of probation does not result in automatic confirmation. It is a settled position in law that a person can be said to acquire a lien on a post only when he has been confirmed and made permanent on that post and not earlier." (emphasis supplied) Hon'ble Supreme Court in S. Narayana v. Md Ahmedulla Khan and Others, (2006) 10 SCC 84 in paragraph 18 has held as under: "18. The learned counsel for the appellant also urged that the High Court had misunderstood the concept of a lien on a post. He contended, and rightly in our view, that there was nothing like lien on a post, unless a person was made permanent in a post. Strong reliance was placed on the observations of this Court in Triveni Shankar Saxena v. State of U.P wherein after examining the concept of lien in government service, it was observed (SCC p.531, para 24) "a person can be said to acquire a lien on a post only when he has been confirmed and made permanent on that post and not earlier." with which view, we are in agreement. It is further discernible from the aforesaid facts that it is on account of the petitioner not acquiring any lien on the post of Lecturer, CWP 15362/2006 10 though having worked for more than 12 years on officiating basis, that he was promoted in the year 2002 as Head Master on his seniority in the rank of Master subject to the promotional criteria on the factual premise that he retained his lien on the post of Master, which he held from 5.1.1973 till 1989. Still further reading of relevant rule 3.12 of the Punjab Civil Service reproduced hereinabove makes it clear that the petitioner never acquired lien on the post of Lecturer because of lack of substantive appointment and on that account, his lien on the post of Master never ceased. Therefore, it is held that petitioner did not acquire any lien on the post of Lecturer. Learned counsel for the petitioner had also made a grievance that his name in the gradation list of Lecturers (School Cadre) (Annexure P.5) has been illegally deleted. It is admitted that list was a provisional gradation list depicting relative seniority and it has never been finalized. The said list was/is subject to changes keeping in view various principles of determination of seniority. Petitioner has not shown either in the pleadings or at the time of arguments as to what provision of the statutory rules have been violated in deletion of his name from the gradation list as Lecturer, which in any case, is justified in view of our discussion hereinabove. Therefore, the argument of counsel for the petitioner that lien on the post of Lecturer subsisted even after his appointment as Headmaster in the year 2002, which entitles him to be promoted as Principal with effect from the date, other Lecturers junior to him in the cadre of Lecturers were promoted, is devoid of any substance, hence rejected. It is further not disputed that the promotion of the petitioner to the post of Head Master vide order dated 18.1.2002 (Annexure P.4) had been made under Rule 9 of Group B 1998 Rules. Petitioner in pursuance of the same, joined on the post of Head Master of his own volition. It is after having worked on the post of Head Master for a period of three years, he made a grievance of promotion to the rank of Principal from the cadre of Lecturers. The petitioner at the time of accepting the appointment by promotion as Head Master was aware of the Group B 1998 Rules, which provided a quota for the cadre of Lecturers and Head Masters for further promotion to the post of Principals. Petitioner was also aware of his comparative seniority in both the cadres viz cadre of Lecturers, which he CWP 15362/2006 11 left and cadre of Head Master, which he was voluntarily accepting. Petitioner having accepted that position and enjoyed the fruits of the post of Head Master, can not thereafter turn around and seek to unsettle settled positions. Hence his claim besides suffering from the vice of delay and laches is hit by principle of estoppel. Still further as per provosions of Appendix 'E' of Group-B 1998 Rules reproduced below, specific roster point are assigned to each category i.e for promotion as Principals from Lecturers, roster point is 2,4,7 etc and promotion from amongst Head Masters, roster points are 3,6,8 etc as detailed in Appendix 'E', relevant extract of Appendix 'E' of Group-B 1998 Rules is as under : APPENDIX 'E' "Sr.No. Designation Mode of Roster Points of posts recruitment 1. Principal/Senior By Promotion (1) Headmaster of High School (1) 3,6,8,12,15 xx xx xx x xx (II) Lecturers: 2,4,7,10,11,14,16,18,20 22,24,27,28 xx xx xx xx xxx By direct recruitment 1,5,9,13,17,21,25,29,33 37 xx xx 2. Headmaster of By Promotion (I) Headmaster of Middle High School/Junior School/Masters Specialist/Programme 2,3,4, 6, 8 ,10, 11, 15 Assistant xxx xx xx xx xx x (II) Sanskrit Teacher 12,26,40,54,67,82 xx x (III) Hindi Teacher 12,27,42,55 xx xx (IV) Punjabi Teacher 98 By direct recruitment 1, 5, 9, 13, 17, 21, 25 xx xx xx xx" Neither the petitioner has given the details that against which roster point he is claiming his promotion and against which roster point, respondents No.4 & 5 (alleged Juniors as Lecturers) have been promoted CWP 15362/2006 12 nor has he challenged their promotion on the post of Principal, so that he could occupy the said posts in the event of being successful in the instant writ petition. Records of the case reveals that respondent No.4 has not even been served due to lack of furnishing of complete address by the petitioner. Even otherwise, there is no prayer of the petitioner to quash the promotion of any alleged junior Lecturer, who have been promoted to the post of Principal. Therefore, in view of the law laid down by Hon'ble Supreme Court in para 27 of the judgment reported in Krishna Priya Ganguli v. University of Lukhnow, AIR 1984, SC 186, no relief can be granted beyond the prayer made in the writ petition. Therefore, on that account also, the petitioner is estopped from claiming his promotion for the post of Principal with effect from the date the said juniors were promoted. Counsel for the petitioner in support of his claim, he has relied on judgments reported as Beant Ram Kanda v. State of Punjab and Others, 1999(3) RSJ, 222, Surinder Kumar Nauhria v. The Registrar, Co- operative Socieities, Punjab, Chandigarh, 1993(2) P&H,800, Niranjan Singh v. State of Punjab, 1999(3) SLR 749 and judgments of Hon'ble Supreme Court reported in Ram Lal Jurana (dead) by Lrs v. State of Punjab and Others, 1989(4) SLR, State of Haryana v. Shri Des Raj Sangar and another, 1976 (1) SLR, 191, T.R. Sharma v. Prithvi Singh and another etc, 1976 (1) SLR, 55 and State of Punjab and another v. Teja Singh and Others, 2007(3) RSJ 249. From the reading of the above judgments, following principles of law, keeping in view the relevant provision of statutory rules are discernible: i) Lien connotes the right of an employee to hold the post substantively to which he was appointed; ii)that once an employee is confirmed on a post, he acquires the lien and that shall be maintained and he shall not be deprived thereof even with his consent till he acquires a lien in accordance with the rules on another post; iii)No employee can have two liens simultaneously against two posts in two different cadres; iv)Lien is not automatically suspended on appointment any of substantive CWP 15362/2006 13 capacity to permanent post outside