CWP NO.15765 OF 2007 :1: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: 24 .7.2009 Sukhwinder Kaur & Ors. ...Petitioners VERSUS The State of Punjab & Others …Respondents CORAM HON'BLE MR.JUSTICE PERMOD KOHLI PRESENT: Mr.R.K.Arora, Advocate for the petitioners Mr.BS Chahal, DAG, Punjab Mr.Balbir Singh, Advocate Permod Kohli, J. (Oral) Vide notification dated 3.3.2006 (Annexure P-1) issued by the Government of Punjab Department of School Education, as many as 3949 Government Primary Schools were transferred to the Department of Rural Development and Panchayats and 232 Govt. Primary Schools were transferred to the Department of Local Government for management and running of the School. Paragraph 2 of the aforesaid Notification further provided that the department of Rural Development and Panchayats and the Department of Local Government will frame service rules for recruitment of 10004 ETT teachers. The notification further lays down that the teachers so CWP NO.15765 OF 2007 :2: recruited will be employees of the PRIs/ULBs and not of the Government of Punjab. Consequent upon the aforesaid notification, the respondents issued an advertisement published in Daily Tribune in its issue dated 4.3.2006 inviting applications for appointment of teachers. This advertisement came to be challenged in various writ petitions before this Court. A Division Bench vide its order dated 17.4.2004 held that no final selection to the advertised posts can be made without finalising the statutory rules. Consequent upon the aforesaid directions, the Government framed the rules, namely, Punjab Panchayti Raj Primary Teachers (Recruitment and Conditions of Service) Rules, 2006. These rules were notified vide Notification dated 25.5.2006. On framing of the rules, a fresh advertisement was published on 27.5.2006 in the Tribune inviting applications for appointment of 9384 teachers in Primary Schools in rural areas of Punjab. It was further provided that those who have already applied need not apply again. The qualification for appointment was 10+2 or equivalent diploma as recognized by the Punjab Government with ETT recognized by any State Education Board and equivalent course from defence services only. It was further provided that in case of non- availability of ETT candidates upto district level, the candidates with BA/BSc/B.Com plus B.Ed. (from any university recognized by UGC) will be considered. All the petitioners possessed B.A./B.Ed qualification. They applied and were recruited and appointed as ETT teachers. Since the date of their selection/appointment, they are performing their duties as ETT teachers. Since a large number of posts remained vacant, the State Government issued another advertisement dated 28.6.2006 (Annexure P-5) inviting applications to fill up the vacant posts. Already appointed teachers CWP NO.15765 OF 2007 :3: also applied for transfer on the vacant posts on the ground that their original postings were not made in a systematic manner or were not made on the basis of their merit. The State Government examined this question and issued a transfer policy dated 28.6.2007 being one time transfer of teachers in regard to posting in schools transferred to Zila Parishads. Paragraph 2 of the aforesaid policy deals with the transfer of teachers already appointed. On the basis of the aforesaid policy instructions, respondent no.3 invited applications from all the ETT teachers on prescribed proforma who were desirous of their transfer. In the meanwhile, the Government of Punjab, Department of Rural Development issued a clarification dated 11.7.2007 with regard to the issue of adjustment of teachers possessing ETT and B.A/B.Ed qualification. Under this clarification two separate composite rosters, one for ETT and one for B.Ed teachers have been ordered to be prepared. Paragraph 4 (2) of the aforesaid clarificatory Circular provides for giving preference to ETT teachers or B.Ed teachers regarding transfer. The relevant clause reads as under:- “4.Other Qualfications: (1)Requirement of roster under 2 (5): Some of the Additional Deputy Commission (Dev.) have enquired about the necessity of preparing composite roster register as explained in para 2 (5) of the instructions dated 28.6.2007. The vacancies would be filled up as per criteria mentioned in para 2 (7). But in case there are more candidates of similar nature for a single vacancy and there is a tie between them then that tie would be resolved only CWP NO.15765 OF 2007 :4: on the basis of merit. No composite merit list was prepared and there are different merit lists for general category and reserved category candidates. It is necessary that all these merit lists be merged into one composite roster for the purpose of determining their inter-se merit. (2)Some of the Additional Deputy Commissioners (Dev.) have asked about the ETT teachers and B.Ed teachers. At the time of requirement ETT teachers were given preference over B.Ed teachers and B.Ed. teachers were recruited only when no eligible ETT teachers were available. It is accordingly advised that 2 separate composite rosters, one for ETT and one for B.Ed teachers be prepared and in case of tie, the ETT teachers should be given preference over B.Ed. teacher.” After this clarificatory notification, the counselling was fixed for considering the claim of ETT teachers for their transfer against vacant posts. On the day of counselling, another clarificatory letter dated 4.10.2007 (Annexure P-8) has been issued which, inter-alia, provides for preference to the teachers possessing ETT qualifications and the B.Ed teachers will be considered for transfer only if the teachers possessing ETT qualification is not available. The relevant clause of the clarificatory letter (Annexure P-8) reads as under:- “2.At the time of transfers, the teachers possessing ETT qualification will be preferred. Where more CWP NO.15765 OF 2007 :5: than one teacher having ETT qualification applied for transfer, they will be considered as per their own merit. The B.Ed teacher will be considered for transfer only if the teachers possessing ETT qualification is not available. Similarly, if more than one B.Ed teacher have applied for transfer, they will be considered as per their own merit.” It is this condition which has been challenged in the present writ petition. The main ground on which the aforesaid condition has been challenged is that the aforesaid condition is arbitrary, discriminatory in nature and violative of Article 14 of the Constitution of India. The respondents justified the aforesaid condition on the premises that at the time of recruitment, ETT teachers were given preference over B.Ed teachers and B.Ed teachers were recruited only when no eligible ETT teachers were available and thus preference given to ETT teachers for one time is legally valid. I have heard learned counsel for the parties. It is not in dispute that the B.Ed teachers were recruited when no ETT teachers were available. However, the fact remains that after the recruitment, ETT teachers possessing ETT and B.Ed qualification become members of the cadre of service irrespective of their qualification. The posts are inter-changable. They are placed in the same pay scale. Once appointees become members of the same cadre whether they can be subjected to any hostile discrimination merely on the ground of different qualifications. It is also admitted position that the petitioners have better qualification than the ETT teachers. Once the persons even belonging to different categories merged in CWP NO.15765 OF 2007 :6: a single cadre, on recruitment/appointment they cannot be discriminated against. In the case of S.M.Pandit and others etc. v. The State of Gujarat and others etc., AIR 1972 Supreme Court 252, it has been held that when directly recruited Mamlatdars and promotee Mamlatdars having same designation, same pay scale, and same functions and their posts being inter- changeable, they therefore form one class and government cannot discriminate between them in the matter of their further promotion to the posts of Deputy Collectors. A similar view has been taken by a Constitution Bench of this Court in the case of Ramchandra Shankar Deodhar and Ors. vs. The State of Maharashtra and Ors., 1974 (1) SLR 470 wherein following observations have been made:- “16.So far as the question of validity of the second proviso to rule 1 of the Rules of 20th July, 1959 is concerned, there can be no doubt that the Bombay High Court was right in declaring it to be valid. It can hardly be disputed that both the directly recruited Mamlatdars as well as the promotee Mamlatdars form one class. They are both known by the same designation. They have same scales of pay. They discharge the same functions. The posts held by them are interchangeable. There is nothing to show that the two groups are kept apart. Both are merged together in the same class. It is not competent to the Government thereafter to discriminate between directly recruited Mamlatdars and promotee Mamlatdars in the CWP NO.15765 OF 2007 :7: matter of further promotion to the posts of Deputy Collector. That would be violative of Article 16 of the Constitution....” In the present case also ETT trained and B.Ed qualified teachers constitute one cadre on appointment, their emoluments, conditions of service being same notwithstanding qualifications, they cannot be subjected to different treatment. Mere fact that B.Ed teachers were appointed on account of non-availability of ETT teachers is of no consequence, they being in one single cadre. The distinction sought to be drawn is artificial unrealistic and illusory. In view of the above factual and legal position, condition no.2 in the policy decision dated 4.10.2007 (Annexure P-8) is liable to be quashed being discriminatory in nature as it treats the ETT and B.Ed qualified teachers differently though in the same cadre of service. This petition is accordingly allowed. Condition No.2 contained in the policy decision dated 4.10.2007 (Annexure P-8) is hereby quashed and it is ordered that the ETT teachers with B.Ed qualification will also be entitled to be considered for transfer in terms of the transfer policy dated 28.6.2007 (Annexure P-5) irrespective of their qualification. (PERMOD KOHLI) JUDGE 14.7.2009 MFK Note:Whether referred to Reporter or not:YES