C.W.P.No.10698 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.10698 of 2007 Date of Decision:- 02.07.2010 Chandigarh Polytechnic Teachers Association (Regd.) and another ....Petitioner(s) vs. Union Territory Chandigarh through its Home Secretary, UT Secretariat Chandigarh and others ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.D.S.Nalwa, Advocate, for the petitioner. Mr.Vinod S. Bhardwaj, Advocate, for respondents No.1 and 2. Mr.J.R.Syal, Advocate, for respondents No.3 and 4. *** AUGUSTINE GEORGE MASIH, J. By way of present writ petition, a writ of quo-warranto has been sought directing respondents No.3 and 4 to vacate the posts of Foreman Instructor held by them on the ground that they do not possess the requisite qualifications as required under the Rules nor their appointment had been made as per the Statutory Rules governing the service and to declare the said post as vacant. A writ of certiorari has also been prayed for quashing the order dated 22.8.2006 (Annexure P-2) vide which C.W.P.No.10698 of 2007 -2- respondents No.3 and 4 have been adjusted against the post of Foreman Instructors. Petitioner No.1 is the Chandigarh Polytechnic Teachers Association having its registered office at Chandigarh Engineering College of Technology, Sector 26, Chandigarh. The writ petition has been filed through petitioner No.2-Sh. Charanjit Singh, Vice President of the Association, who has been duly authorized in this behalf. According to the petitioners, private respondents No.3 and 4, Sh.Karnail Singh and Sh.Sarvjit Singh respectively have been adjusted to the post of Foreman Instructors in total contravention of the Central Polytechnic Chandigarh (Group B) Posts Recruitment Rules, 1995 (hereinafter referred to as 1995 Rules) as notified on 6.3.1995 as the said private respondents do not possess the requisite qualifications as prescribed under the 1995 Rules and their adjustment has been made by a mode which is not provided for under the statutory rules governing the service. The only mode of appointment to the post of Foreman Instructor is by way of direct recruitment, which procedure has not been adopted by the respondents while making the said adjustment. Counsel for the petitioner contends that as per the 1995 Rules, there is no other source of appointment except by way of direct recruitment. The Rules further mandate mandatory consultation with the Union Public Service Commission ( hereinafter referred to as the UPSC) which again has not been done by the respondent-Chandigarh Administration. Rule 6 of the 1995 Rules does provide for relaxation by the Administrator, Union Territory of Chandigarh but the same also can be done in consultation with the UPSC. As per the 1995 Rules, the C.W.P.No.10698 of 2007 -3- post of Foreman Instructor, to be filled up by direct recruitment, requires essential qualification as degree in the concerned subject of Engineering/Technology from a recognized University or equivalent or master's degree in the concerned subject from a recognized University or equivalent. Note-I to the said Rules provides that the qualifications are relaxable at the discretion of the UPSC in case of candidates otherwise being well qualified. Since no consultation, as per the Rules, has been done by the Chandigarh Administration with the UPSC, the relaxation, if granted in the case of respondents No.3 and 4, is not as per the Rules and, therefore, the continuance of these private respondents on the said posts is not in accordance with law. Accordingly, he prays that the present writ petition may be allowed. On the other hand, counsel for respondents No.1 and 2 submits that the petitioners have no locus standi to file the instant writ petition as no right of theirs has been violated. No statutory or fundamental right of the petitioners has been denied to them which would give them some credence to approach this Court by way of present writ petition. He submits that the Chandigarh Administration granted the relaxation in the qualifications to the post of Foreman Instructors and respondents No.3 and 4 have been adjusted against the said posts. Respondent No.3-Karnail Singh was working against the post of Workshop Instructor while respondent No.4 Sarvjit Singh on the post of Boiler In-charge, for a period of approximately 12 years. They were adjusted as Foreman Instructors after relaxation was granted to them by the Departmental Promotion Committee (for short DPC). The adjustment of the private respondents was by a Competent Authority after recommendations C.W.P.No.10698 of 2007 -4- made by the DPC which were later on duly approved by the Advisor to the Administrator on 18.8.2006. The Administrator is competent to delegate his powers to any such officer as may be notified in the Official Gazette as per Section 3 of the Chandigarh ( Delegation of Powers ) Act, 1987. Vide Notification dated 25.2.1988, the Administrator delegated various functions to be discharged by the Advisor to the Administrator. According to the said Notification, the Advisor was the Competent Authority with regard to the appointment of respondents No.3 and 4 as Foreman Instructors. His further contention is that the Government of India vide office memo. Dated 25.1.1999 issued orders identifying the area where consultancy with the UPSC could be dispensed with and it was decided that the UPSC need not be consulted while making direct recruitment to Group B services or posts which is in the scale of pay, the maximum of which is below Rs.10,500/- (Annexure A/4). Notification in this regard was also issued in the Gazette of India dated 21.5.1999 (Annexure A/5). Since the private respondents were in the grade, the maximum of which is below Rs.10,500/-, the consultation with the UPSC was not necessary. As the proceedings of the DPC have been approved by the Advisor, it shall be deemed that relaxation has been duly given to the respondents in the qualifications. As per the adjustment, the private respondents shall not be entitled to any consequential benefits or promotion on account of their adjustment. The adjustment of the private respondents was done in pursuance of the decision taken by the Chandigarh Administration accepting the recommendations of the Madan Committee for restructuring the pattern of staff and for adjustment of the appointed staff ( Annexure R-1/1). C.W.P.No.10698 of 2007 -5- The recommendations made by the Madan Committee have been accepted by the All India Council for Technical Education, which is the apex body exercising control over Institutions imparting technical education. The Chandigarh Administration vide its memo. dated 16.2.1995 (Annexure R1/2) directed the implementation of the recommendations of the Madan Committee and as per these recommendations relaxation could be extended to the existing staff. Counsel, on this basis, contends that the writ petition deserves to be dismissed being devoid of any merit. Counsel for respondents No.3 and 4 has adopted the submissions as made by counsel for respondents No.1 and 2. I have heard counsel for the parties and have gone through the records of the case. Central Polytechnic Chandigarh (Group B) Post Recruitment Rules, 1995 as notified on 16.3.1995 (Annexure P-1) governs the appointment to the post of Foreman Instructor. As per Rule 2, these rules apply to the post specified in Column No.1 of the Schedule annexed with the Rules. Column 8 provides for the educational and other qualifications required for direct recruitment, column No.11 and 12 provide for method of recruitment and column 14 provides for circumstances in which UPSC is to be consulted while making recruitment (Annexure P-1). The relevant columns of the Schedule as have been referred to above are reproduced herein-below: C.W.P.No.10698 of 2007 -6- Name of Post Educational & other qualifications reqd. for direct recruits Method of Rectt. Whether by direct Rectt. Or by promotion or by deputation/transfer & % of the vacancy to be filled by various methods In case of Rectt. By promotion/deputat ion/transfer Grades from which promotion/deputat ion/transfer to be made Circumstances in which UPSC to be consulted in making Rectt. 1 8 11 12 14 LECTURE R ETC. Lecturer/For eman- Instructor/W orkshop Suptd. a) Civil 6 b) Elect. 3 c) Mech. 4 d) Prod.2 e) Arch. 4 f) Phys. 1 g) Chem.1 h) Maths 1 i) W/S 1 Supdt. j) Foreman 1 Instr. Essential: Decree in the concerned subject of Engineering/Technolo gy from a recognized University or equivalent. OR Master's degree in the concerned subject from a recognized University or equivalent (For Science/Humanitie/C ommerce/Managemen t). NOTE: The concerned subject will be indicated at the time of recruitment. NOTE: 1 Qualifications are relaxable at the discretion of the UPSC in case of candidates otherwise well qualified. Direct Recruitment Note: The regular incumbents of the posts of Lecturer in the scale of pay of Rs.2130-3700 with 2 years regular service in the grade & Demonstrator/Drg. Instructors/Jr. Lecturer/Studio Asstt. In the scale of pay of Rs.1650-2925 with 7 Yrs. Regular service in the grade possessing a degree in Engg./Technology in the concerned subject of Engg./Master's Degree in the concerned subject of Science/Humanities/Commerc e/Management will be assessed by the Commission for appointment to the post of Lecturer in the scale of pay of Rs.2200-4000 (GP.B. Gazetted). If assessed suitable, they shall be deemed to have been appointed to the post at the initial constitution. If assessed not suitable. His/her case will be reviewed every year. N.A. Consultation with UPSC necessary Rule 6 provides for the powers to relax which reads as follows: “6. Power to relax- Where the Administrator, Union Territory, Chandigarh is of the opinion that it is necessary or expedient to do, it may, by order, for reasons to be recorded in writing, and in consultation with the Union Public Service Commission, relax any of the provisions of these rules in respect of any class or category or persons.” Respondents No.3 and 4 admittedly do not possess the qualifications as mandated under the statutory rules governing the service. C.W.P.No.10698 of 2007 -7- It is also not disputed that the UPSC was not consulted by the Chandigarh Administration before relaxation of the qualifications for adjusting the private respondents as Foreman Instructors nor was the ex-post facto consultation and approval sought or granted by the UPSC. As per the decision dated 19.9.1995 taken by the Chandigarh Administration that since the officials who were working in Central Polytechnic, Chandigarh did not fulfill the required qualification nor possess sufficient teaching experience, they would be allowed to draw their salary in their existing pay-scale against the post of Lecturers and would only be considered for adjustment in the scale of Rs.2200-4000 while they acquire the educational qualification as per notified recruitment Rules alternatively after completing 12 years of experience. In case the incumbents failed to acquire the educational qualifications, the matter was to be referred to the UPSC for giving one time relaxation in educational qualification on completion of experience of 12 years. Thus, it is clear that not only the statutory rules provide for consultation with the Union Public Service Commission in case of relaxation of the qualifications but even the decision of the Chandigarh Administration dated 19.9.1995 mandates required reference to the UPSC for giving one time relaxation in educational qualification, which has not been done by respondents No.1 and 2. Even if the contention as has been submitted by the counsel for respondents No.1 and 2 is accepted that the relaxation in qualifications would be deemed to have been granted by the Advisor to the Administrator when he approved the proceedings of the DPC, the consultation with the Union Public Service Commission was mandated as per the statutory rules and the decision of the Chandigarh Administration dated 19.9.1995 which in the present case has not been C.W.P.No.10698 of 2007 -8- done. The decision of the Government of India dated 21.5.1995 (Annexure A-4) identifying the areas for which the consultancy with the UPSC could be dispensed with would not be ipso facto applicable to the Union Territory of Chandigarh nor would the Notification dated 21.5.1999 (Annexure A-5) be applicable as the same relates to persons serving in the Indian Audit and Accounts Department. This annexure is Notification of Statutory Rules called the Central Civil Services and Civil Posts (Consultation with Union Public Service Commission) Rules, 1999. As per Rule 2, these Rules shall apply to all Central Civil Services and Civil posts under the Union. It has neither been pleaded by respondents No.1 and 2 nor has any document been placed on record to show or suggest that the same was accepted or adopted by the Chandigarh Administration. Mere issuance of the Notification would not ipso facto make it applicable to the posts which are other than civil posts under the Union. Admittedly, the post of Foreman Instructors is not a civil post under the Union and, therefore, the said Notification would not be applicable to the case in hand. Since consultation with the UPSC is mandated for recruitment and relaxation of qualifications under the 1995 Rules and even as per the decision dated 19.9.1995, the adjustment of respondents No.3 and 4 on the posts of Foreman Instructors vide order dated 22.8.2006 (Annexure P-2) cannot be sustained as they do not possess the qualification prescribed under the statutory rules governing the service. That apart, the method of recruitment as provided in column 11 of the Schedule to 1995 Rules for filling up the posts of Foreman Instructors is direct recruitment only and as per column 12 which provides for other methods of recruitment such as promotion, deputation, transfer etc., it has been mentioned to be not applicable to the post of Foreman C.W.P.No.10698 of 2007 -9- Instructors. The filling up of the posts, thus, by way of adjustment by the impugned order also cannot be sustained. Power of relaxation as provided under Rule 6 of the 1995 Rules cannot be exercised in such a manner as to amend the Rules or to delete or add thereto. Even if the contention of the counsel for respondents No.1 and 2 with regard to giving effect to and implementation of the Madan Committee recommendation is taken to be the ground for adjustment of respondents No.3 and 4, a perusal of the recommendation of the Madan Committee report (Annexure R-1/1) would show that the transitory provision has been provided in para 3 of the minutes of the meeting which reads as follows:- “3) Transitory Provision The Committee noted that by designating lectures in the lowest formation in the teaching category, several practical problems are bound to arise, in view of the fact that at present a large number of people are in position in various institutions who are designated as assistant lecturers, demonstrators, senior and junior instructors etc. In this connection, the Committee noted that the full implementation of its recommendations as a measure desire to improve the quality and salaries in technical institutions might take a period of time. However, the main objectives should be to implement these recommendations in full by the end of the Fifth Plan. It should be possible during this interim period of make necessary arrangements to absorb the existing teachers C.W.P.No.10698 of 2007 -10- below the level of lecturers. Some of them who already fulfill the minimum qualifications for the post of a lecturer could be adjusted against the new posts of lecturers created by the implementation of these recommendations while those who do not fulfill these qualifications could be given adequate opportunities to improve their qualifications. The Committee however emphasized that in no case should any relaxation be made in the minimum qualifications for the post of lecturer merely to provide for the absorption of these categories of teachers. The Committee also felt that the fulfillment of the minimum qualifications should be made an essential condition for promotion to senior positions from the post of lecturer and above and it should not be automatic on the revision of staff structure. The Committee also recommended that in so far Government Institutions are concerned, the State Governments in consultation with their Public Service Commission should workout a way to consider the cases of existing staff members for promotion to various posts after they have fulfilled the minimum qualifications prescribed for the purpose.” A perusal of the above would show that the exception with regard to non-fulfillment of the qualifications for the post of Lecturer, if any, was not encouraged by the Committee. The Committee also recommended consultation with the Public Service Commission. In C.W.P.No.10698 of 2007 -11- any case, the relaxation in the qualification was for the incumbents holding the posts at that moment. It would not be out of way to mention here that the decision to accept the recommendation of the Madan Committee (Annexure R-1/1) and to implement the same was taken by respondent No.1 on 16.2.1995 (Annexure R-1/2) with effect from 1.3.1995 and also abolished the posts of Workshop Instructors existing in Chandigarh College of Engineering and Technology, Sector 26, Chandigarh-respondent No.2 whereas strangely, respondent No.3 was appointed as Workshop Instructor on 19.9.1995 while respondent No.4 was appointed as Boiler In-charge with respondent No.2 and had been performing the duties since 8.3.1996. A perusal of the Note of the DPC meeting and Clarifications by the Department to the DPC (Annexure R1/5) and DPC meetings and proceedings (Annexure R-1/6) would show that the adjustment of respondent No.3 Karnail Singh as Foreman Instructor was shown to have been made against a post which had fallen vacant with effect from 2.10.2003 when the services of Sh.Amarjit Singh, Foreman Instructor, were terminated by respondent No.1 vide order dated 1.10.2003 and respondent No.4 Sarvjit Singh was shown to have been adjusted against a vacant post of Foreman Instructor which had fallen vacant with effect from 1.10.2005 on account of retirement of Sh.S.S.Lamba, on 3.9.2005. This finds mention in Annexure R-1/6 i.e. minutes of the meeting of the DPC held on 21.6.2006. It would not be out of way to mention here that the Committee had recommended that the case of Karnail Singh and Sarvjit Singh, respondents No.3 and 4 respectively, be referred to UPSC for giving one time relaxation in educational qualification. This shows that no decision had been taken by the Chandigarh Administration nor had it C.W.P.No.10698 of 2007 -12- adopted the decision of the Government of India dated 21.5.1999 (Annexure A-4) and the Notification dated 21.5.1999 (Annexure A-5) and it is merely an afterthought on the part of the respondents that they have pressed these documents into service to justify non-reference of the cases of respondents No.3 and 4 to the UPSC for consultation as mandated by the Statutory Rules and decision dated 19.9.1995, Clarifications as sought by DPC (Annexure R-1/5) and the DPC meetings and recommendations dated 21.6.2006 ( Annexure R-1/6). It is, thus, apparent that the recommendations of the Madan Committee as accepted with effect from 1.3.1995 by respondent No.1 vide decision dated 19.2.1995 (Annexure R-1/2) would not be applicable to the case of respondents No.3 and 4 as they were not incumbents on the date of acceptance of the report of the Madan Committee by the Chandigarh Administration. Further, respondent No.4 Sarvjit Singh was working on the post of Boiler In-charge, which post does not find mention in the Madan Committee report and this fact finds mention in Annexure R- 1/5. It had also been mentioned there that all available posts were upgraded as per the recommendation of the Madan Committee and 23 officers were adjusted in relaxation of the recruitment rules/instructions. When the incumbents who were working with respondent No.2 at the time of acceptance of recommendation of the Madan Committee stood already absorbed by granting relaxation of the Rules while implementing the Madan Committee report, respondents No.3 and 4 could not have been considered for appointment as Foreman Instructors. On this ground also, the impugned order dated 22.8.2006 (Annexure P-2) deserves to be set aside. C.W.P.No.10698 of 2007 -13- In view of the above, the present writ petition is allowed; the impugned order dated 22.8.2006 (Annexure P-2) is hereby quashed and a writ in the nature of quo-warranto is issued directing Karnail Singh- respondent No.3 and Sarvjit Singh-respondent No.4 to vacate the post of Foreman Instructors held by them in pursuance of order dated 22.8.2006 (Annexure P-2) passed by respondent No.1 forthwith. The said posts held by them are declared as vacant. July 02, 2010 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE Whether referred to Reporters. Yes/No