Punjab-Haryana High Court

Geeta Devi vs State Of Haryana And Others on 3 July, 2009

Author:
Jaswant Singh

Bench:
Jaswant Singh

CWP No. 21663 of 2008 1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.

CWP No. 21663 of 2008
Date of decision 3.7.2009

Geeta Devi ... Petitioner
Versus

State of Haryana and others ... Respondents.

CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR. JUSTICE JASWANT SINGH

Present: Mr.Yash Pal Malik ,Advocate for the petitioner
Ms. Ritu Bahri, DAG Haryana for respondent nos. 1 and 2
Mr.Parveen Gupta, Advocate for respondent no.3
1. Whether Reporters of local papers may be allowed to see the judgement ?
2. To be referred to the Reporter or not ?
3. Whether the judgement should be reported in the Digest ?

M.M.KUMAR, J.

The petitioner, who is a Senior Lecturer in Mathematics, has

approached this Court with a prayer for declaring the Haryana Technical

Education Department (Group A) Service (Amendment) Rules, 2008 as

unconstitutional which have been notified on 11.11.2008. The grievance

made by the petitioner is that the explanation added by amendment in

Column 4 of Appendix B referred to by Rule 7 is obnoxious and offends

her right to seek promotion to the post of Head of the Department which is a

promotional post from the feeder cadre of Senior Lecturer. She has also

prayed for quashing order dated 19.12.2008 granting promotion to Smt.

Benu Bajaj- respondent no.3 to the post of Head of Department on the

ground that she is junior to the petitioner.

FACTS : Smt.Geeta Devi had acquired the qualification of

M.Sc. (Maths) and is pursuing her Ph.D programme. Before her

appointment on the post of Sr. Lecturer in Applied Sciences (Maths) in the

respondents department she had acquired rich experience of working as a

CWP No. 21663 of 2008 2

Lecturer in Government Polytechnic or Private Polytechnic Colleges. She

was appointed as Lecturer in Maths at Government Polytechnic College,

Sonepat on 24.8.1995 where she served till 11.11.2002. The post was

declared surplus and she was relieved of her duties. Thereafter she served as

a Lecturer for 1 years and 4 months at Ch. Devi Lal Memorial Engineering

College, Panniwala Mota, Sirsa. She was relieved from that post on

17.12.2004. Then she applied for the post of Sr. Lecturer in Mathematics

through Haryana Public Service Commission. On the basis of her

experience of over 8 years which was a necessary requirement for

appointment as Sr. Lecturer she was selected by the Haryana Public Service

Commission and appointed as such vide appointment letter dated

15.12.2004 ( P.1). She has been serving as Senior Lecturer since 18.12.2004

and has obviously acquired more than four years experience as such.

A Senior Lecturer is entitled to be considered for promotion as

Head of the Department as per statutory rules known as Haryana Technical

Education Department (Group A) Service Rules, 1986 (for brevity 'the

Rules'). According to Rule 7, a Senior Lecturer in order to earn promotion

to the post of Head of Department (Applied Sciences) is required to fulfill

the qualifications as specified in Appendix B which in turn provides 12

years experience as a lecturer out of which two years must be as a Senior

Lecturer. It has remained undisputed that in the seniority list, the name of

the petitioner stands at serial No.3. In order to stake her claim for

promotion to the post of Head of Department (Mathematics), the petitioner

filed a representation through proper channel on 2.6.2008 (P.3). She

claimed that she was senior-most and fulfilled all the qualifications. She

also asserted that the post of Head of Department was lying vacant and

CWP No. 21663 of 2008 3

therefore she was fully entitled to be considered for promotion to that post.

However, the representation did not evoke any response. It is further

pertinent to mention that the post of Head of Department is lying vacant

earlier to June, 2008. This fact has assumed significance because the

expression 'experience' used in Appendix B in item No.20 'Head of the

Department in Applied Sciences" has been explained by amendment made

on 11.11.2008 requiring that the term 'experience' was to mean the service

rendered in the department of Technical Education Haryana after regular

appointment on the post. On account of the aforesaid amendment, the claim

of the petitioner has been rejected and her junior respondent no.3- Mrs.

Benu Bajaj has been promoted on the post of Head of the Department in

Applied Sciences (Maths). The petitioner has also asserted that respondent

no.3. Benu Bajaj had been appointed on the post of Senior Lecturer on

16.1.2006 when a new post for her was created in the cadre of Senior

Lecturers. According to the petitioner, all this has been done on extraneous

considerations. It is in the aforesaid circumstances that the petitioner has

approached this Court asserting her claim for promotion to the post of Head

of the Department.

In the written statement, the broad factual matrix has not been

disputed. It remains uncontroverted that the petitioner is senior to

respondent no.3- Benu Bajaj in the seniority list of Senior Lecturers and her

name in the gradation list (P.2) figures at serial no.3 whereas that of

respondent no.3. Benu Bajaj is shown at serial No.4. It has also not been

disputed that the petitioner has worked on the post of Lecturer albeit on

adhoc basis. The whole case of the respondents hinges on the amendment

incorporated on 11.11.2008. It has been asserted that the petitioner did not

CWP No. 21663 of 2008 4

have experience in accordance with the amended definition of term

'experience' added by explanation on 11.11.2008 and only the experience

which is gained by a Lecturer during regular service was to be counted for

promotion to the post of Head of the Department. The stand of the

respondents becomes more pronounced from the panel of Senior Lecturers

prepared in order of their seniority for consideration of various names for

promotion to the post of Head of the Department, which reads as under:

Name No. of Name of Experience Experience Remarks.

of the posts incumbent to be as Lecturer as Senior
post to be considered for the in regular Lecturer in
filled promotion, in service regular
up by order to their service
promot seniority
ion
HOD i)Geeta Devi, Nil 18.12.04 to Smt.Geeta Devi
Senior Lecturer in till date = 4 has only
Mathematics, GP years experience of 4
Sonepat years after her
regular
appointment in
the Department,
hence not
eligible for
promotion due
to shortage of
requisite
1 experience.
ii) Benu Bajaj, Sr. 9.5.95 to 3.12.04 to Smt. Benu Bajaj
Lecturer in 2.12.04 9 till date 4 has completed
Mathematics, GP years 7 years requ8isite
Nilokheri months experience of 12
years out of
which 2 years as
Senior Lecturer
after her regular
appointment
hence eligible
for promotion.
Iii) Roshan Lal, 6.5.1995 to 24.2.06 to Sh.Roshan Lal
Senior Lecturer in 23.6.2006 till date = 2 has completed
Mathematics, regular basis years 9 requisite
GPW, Ambala = 10 years 9 months experience of 12
months years out of
which 2 years as
Senior Lecturer
after his regular
appointment
hence eligible
for promotion.

CWP No. 21663 of 2008 5

Accordingly it has been claimed that respondent no.3 Benu

Bajaj has experience of 13 ½ years of regular service as Lecturer/ Senior

Lecturer whereas the petitioner had only 4 years experience after her regular

appointment as Sr. Lecturer in the respondent- Department, which has been

determined as per the amended rule. It has thus been submitted that the

same cannot be regarded as sufficient. It has further been asserted that on

the date of making representation on 2.6.2008, the petitioner had only 10

years 8 months experience which she has gained as Lecturer in Mathematics

(adhoc basis) at Govt. Polytechnic, Sonepat from 24.8.1995 to 11.11.2002

(7 years 2 months and 15 days) and of Senior Lecturer from 18.12.2004 to

2.6.2008 (3 years 5 months and 18 days). It has accordingly been claimed

that she has only 10 years 8 months total experience of service on adhoc/

regular basis and in any case she did not fulfill the requirement of 12 years

experience. It is thus obvious that the experience gained by the petitioner

while working at Ch. Devi Lal Memorial Engineering college Panniwala

Mota, Sirsa for 1 year 4 months has not been considered which would show

that she had acquired more than 12 years experience even on the date of

making representation. The respondents have also placed reliance on Rule 9

(2) of the Rules to argue that seniority alone cannot be the rationale basis

for earning promotion and merit of a candidate is also required to be

considered and that in any case no one can claim promotion as a matter of

right. The respondent nos. 1 and 2 have therefore defended the promotion

granted to respondent no.3. Benu Bajaj who is stated to have joined as Head

of the Department in Mechtronics at Government Polytechnic, Nilokheri

(R.2) on 22.11.2008.

A separate written statement has also been filed by respondent

CWP No. 21663 of 2008 6

no.3. Benu Bajaj. According to the preliminary objection raised by her it has

been asserted that the expression 'experience' has always been construed as

experience gained by an incumbent within the department and in order to

remove the ambiguity the explanation was added on 11.11.2008. According

to the averments made in the written statement the amendment is the result

of circular letter issued by the Chief Secretary, Government Haryana on

8.8.2007 to all the Departments asking them to amend the departmental

service rules by replacing the term' experience' as 'service rendered in the

Department of Technical Education' for promotion to the higher post. A

copy of the circular has been placed on record as Annexure R/3/1. As a

result of the circular, the amendment has been incorporated on 11.11.2008.

Respondent no.3 Benu Bajaj has also asserted that she was appointed on

regular basis as Lecturer w.e.f. 9.5.1995 to 2.12.2004 and thereafter she

joined as Senior Lecturer on regular basis w.e.f. 3.12.2004. Accordingly she

has claimed experience of working on regular basis for more than 13 years

whereas regular experience of the petitioner is only of four years.

RIVAL CONTENTIONS: Mr. Y.P. Malik, learned counsel for

the petitioner has submitted that any vacancy which has arisen before the

amendment of the rules is required to be filled up in accordance with un-

amended rules.
According to the learned counsel 'experience' gained by the

petitioner while working as Lecturer even on adhoc basis cannot be ignored

merely because amendment has been incorporated on 11.11.2008 in

Appendix "B" read with Rule 7 of the rules. He has maintained that the

expression 'experience' cannot be restricted in its meaning by the

amendment made on 11.11.2008. Therefore it has been urged that the un-

amended rules would apply and the expression 'experience' would be wide

CWP No. 21663 of 2008 7

enough to include that experience which she gained while working on the

post on adhoc basis which may be in other department . For the proposition

that a vacancy which has to be filled up by promotion would be governed by

the un-amended rules, learned counsel has placed reliance on para 9

judgement of Hon'ble the Supreme Court in the case of
Y.V.Rangaiah v.

J.Sreenivasa Rao
(1983) 3 SCC 285.

Ms. Ritu Bahri, learned State counsel has, however, argued that

the respondent state has taken a conscious decision to avoid consideration

of experience gained by the candidate outside the department and

accordingly amendment has been incorporated on 11.11.2008. According to

her such an amendment could not be regarded as mala-fide because it would

apply to a large number of other employees who are to be considered for

promotion to the post of Head of Department in other disciplines, as is

evident from the perusal of Appendix B. She has argued that the experience

gained by the petitioner while working on adhoc basis as Lecturer cannot be

taken into count nor her experience gained while working in a private

college would be relevant. It has thus been submitted that the petitioner is

totally ineligible for consideration for promotion to the post of Head of the

Department.

Mr. Parveen Gupta, learned counsel for respondent no.3 has

vehemently argued that respondent no.3 is a regularly recruited Lecturer

through Public Service Commission and she has been working on regular

basis w.e.f. 9.5.1995 upto 2.12.2004 and thereafter she has joined as Senior

Lecturer w.e.f. 3.12.2004. According to the learned counsel it would be very

harsh if her claim is to be ignored as against the claim of the petitioner who

had gained her whole experience as Lecturer while working on adhoc basis.

CWP No. 21663 of 2008 8

He has maintained that the petitioner has regular experience of working of

only for four years as Senior Lecturer which according to the amended rules

could be taken into account.

CONCLUSION: After hearing learned counsel for the parties,

perusing the record with their able assistance and the rules it would first be

imperative to examine the rules which are applicable. Rule 7 of the Rules

specify the qualifications for appointment to any post in service i.e. Haryana

Technical Education Department (Group A) Service which in turn refers to

Appendix B for qualification and experience. Accordingly rule 7 of the

rules alongwith relevant portion of Appendix 'B' is set out below:

"7. Qualifications.- No person shall be appointed to any post in

the service, unless he is in possession of qualifications and

experience specified in column 3 of Appendix B to these rules

in the case of direct recruitment and those specified in column 4

of the aforesaid Appendix in the case of appointment other than

by direct recruitment:

Provided that in the case of direct recruitment, the

qualifications regarding experience shall be relaxable to the

extent of 50% at the discretion of the Commission or any other

recruiting authority in case sufficient number of candidates

belonging to Scheduled Castes/ Backward Class/ Ex-

servicemen and physically handicapped candidates, possessing

the requisite experience, are not available to fill up the

vacancies reserved for them, after recording reasons for so

doing in writing."

xx xx xx xx xx xx xx

CWP No. 21663 of 2008 9

APPENDIX- B

Sl. Description Academic qualifications and experience, Academic
No of post if any, for direct recruitment qualifications and
experience, if any,
for appointment
other than by
direct recruitment

1 2 3 4

1 to 19 xx xx xx xx xx xx

Head of i) First Class Master's degree in 12 years experience
Department Physics/Chemistry/ Mathematics/ English as Lecturers in
in Applied from a recognized University/ Institute Applied Sciences
Sciences ii) 8 years experience as Lecturer in a out of which 2 years

University or college affiliated to a as Senior Lecturer
in Applied Sciences.

recognized University/ Institute;

iii) Knowledge of Hindi upto Matric
20 standard.

A perusal of the aforesaid Rule 7 read with Appendix 'B' would show

that for promotion to the post of Head of the Department in Applied

Sciences, 12 years experience as Lecturer in Applied Sciences is required

with a further stipulation that out of those 12 years atleast two years must be

spent as a Senior Lecturer. Therefore the expression 'experience' used in

column 4 of Appendix B did not have any further limitation. It is further

specified by adding the Explanation on 11.11.2008 at the end of column

No.4 as under:

" Explanation.- The term 'experience' as used herein shall mean

the service rendered in the Department of Technical Education,

Haryana, after regular appointment on the post."

A perusal of the added explanation shows that the term 'experience' is

to mean service rendered by a candidate in the department of Technical

Education, Haryana after his appointment on regular basis on the post. In

other words, the explanation has excluded any experience gained by the

CWP No. 21663 of 2008 10

petitioner while working on a post other than on regular basis or in a private

recognised institution.

The method of recruitment for the post of Head of the

Department in Applied Sciences, however, has been provided by Rule 9(i)

(q) of the Rules. Rule 9.2 of the Rules further provides criterion to be

followed for promotion. It would be necessary to read the aforementioned

rule which reads as under:

"9. Method of recruitment.- (1) Recruitment to the Service shall

be made-

(a) to (p) xx xx xx xx

(q) in the case of Head of Department in applied Sciences,-

ii) 75% by promotion from amongst Senior Lecturers in

Applied Sciences, and

iii) 25% by direct recruitment; or

iv) by transfer or deputation of an officer already in the service

of any State Government or the Government of India."

" 9(2) All promotions, unless otherwise provided, shall be made

on seniority cum merit basis and seniority alone shall not give

any right to such promotions."

It is thus evident that 75% of the posts of Head of the Department in

Applied Science are to be filled up by promotion from amongst the Senior

Lecturers and 25% by direct recruitment on the basis of seniority-cum-merit

although seniority alone is not to be taken into as determinating factor. It is

well settled that when any promotions are to be made on the basis of

seniority cum merit, the element of seniority is to be given due

consideration unless on merit the service record has been found to be so

CWP No. 21663 of 2008 11

adverse which renders him useless. The meaning assigned to 'seniority

-cum- merit rules' is that given the minimum necessary merit requisite for

efficiency of the service, the seniority is to be given priority although senior

may be lesser meritorious than his junior.
In that regard reliance may be

placed on the observations made by a Constitution Bench of Hon'ble the

Supreme Court in the case of
State of Kerala v. M.M.Thomas
(1976)2 SCC

310;
M.M.Gupta v. State of Jammu and Kashmir
(1982) 3 SCC 412.

In the aforesaid factual backdrop following two substantive

questions of law which would arise for determination are:

(1)Whether the vacancy of Head of Department in Applied

Sciences which has arisen before 11.11.2008 would be

governed by the amended definition of expression

'experience' or the un-amended rules would continue to

apply to it;

(2) Whether the expression 'experience' used in un-amended

rules would include the experience gained while working on

adhoc basis on the post of Lecturer in a Government

Polytechnic College as well as in a private recognised

institute.

Re. Question no. 1.

The question whether amended rules could be applied to the

vacancy which has arisen before the amendment is no longer res-integra.

Hon'ble the Supreme Court in the case of
Y.V.Rangaiah
(supra) has

considered the aforesaid question as early as in 1983 and has concluded in

para 9 of the judgement as under:

"9. Having heard the counsel for the parties, we find no force in

CWP No. 21663 of 2008 12

either of the two contentions. Under the old rules a panel had to

be prepared every year in September. Accordingly, a panel

should have been prepared in the year 1976 and transfer or

promotion to the post of Sub-Registrar Grade II should have

been made out of that panel. In that event the petitioners in the

two representation petitions who ranked higher than the

respondents Nos. 3 to 15 would not have been deprived of their

rights of being considered for promotion. The vacancies which

occurred prior to the amended rules would be governed by the

old rules and not by the amended rules. It is admitted by

counsel for both the parties that henceforth promotion to the

post of Sub-Registrar Grade II will be according to the new

rules on the zonal basis and not on the Statewide basis and

therefore, there was no question of challenging the new rules.

But the question is of filling the vacancies that occurred prior to

the amended rules. We have not the slightest doubt that the

posts which fell vacant prior to the amended rules would be

governed by the old rules and not by the new rules." (emphasis

added).

The afore-mentioned view has been followed and applied repeatedly

by Hon'ble the Supreme Court.
In the case of
State of Rajasthan v.

R.Dayal and others
(1997) 10 SCC 419 the principles have been reiterated

in para 8 of the judgement. The relevant extracts are set out below:

" ......................But the question is whether selection would be

made, in the case of appointment to the vacancies which

admittedly arose after the amendment of the Rules came into

CWP No. 21663 of 2008 13

force, according to the amended Rules or in terms of Rule 9

read with Rules 23 and 24-A, as mentioned hereinbefore? This

Court has considered the similar question in paragraph 9 of the

judgment above cited. This Court has specifically laid that the

vacancies which occurred prior to the amendment of the Rules

would be governed by the original Rules and not by the

amended Rules. Accordingly, this Court had held that posts

which fell vacant prior to the amendment of the Rules would be

governed by the original Rules and not the amended Rules. As

a necessary corollary, the vacancies that arose subsequent to the

amendment of the Rules are required to be filled in accordance

with the law existing as on the date when the vacancies

arose.............." (emphasis added)

The principles
laid down in

Y.V.Rangaiah
's case (supra) have further

been applied and followed by Hon'ble the Supreme Court in the case of

Delhi Judicial Service Association v. Delhi High
Court and
others (2001) 5

SCC 145 and Arjun Singh Rathore and others v. B.N.Chaturvedi and others

(2007)11 SCC 605.

It is pertinent to notice that no contrary view has been cited

before us and therefore we will take it a well settled principle of service

jurisprudence that a vacancy which has arisen before the amendment of the

Rules has to be filled up in accordance with the un-amended rules and not

as per the provisions of the amended rules.

Re. Question No. 2

The second question is also not res-integra. As long as the

expression 'experience' as against the word 'service' is used in the statutory

CWP No. 21663 of 2008 14

rules which are applicable, the law
laid down by
this Court would continue

to apply. It is obvious that once the unamended rules are applicable which

use the expression 'experience' then the word 'experience' has to be

construed. In some what similar circumstances, the expression 'experience'

came up for interpretation of this Court in the case of Dr. Ravinder Pal

Kaur v.State of Punjab and others 1979(2) SLR 645. In the aforesaid case,

the statutory rules required teaching experience as Assistant Professor in the

specialty concerned for five years. The petitioner
in that case
was appointed

as Assistant Professor Radiology on adhoc basis. Her appointment was

regularised three years later.The question before the Court was whether the

experience gained by her while working on adhoc basis could be treated as

'experience' in terms of the requirement of the rules. The learned Single

Judge of this Court has taken the view that there was hardly any difference

so far as the teaching experience is concerned whether it is gained on adhoc

appointment or on regular appointment. It was held that the teaching

experience envisaged by the statutory rules was not limited to the one

gained while holding appointment on regular basis under the statutory

rules. Therefore the teaching experience gained by her in the Medical

Colleges while working on adhoc basis is valid for the purpose of counting

the requisite experience for direct appointment as Professor. Such

experience could not be ignored.
The aforesaid view has been followed and

applied by this Court in the case of Balbir Singh Yadav and others v.State of

Haryana and others 1984(1) SLR 466 and a Division Bench of this Court in

the case of
Dharam Singh v. State of Punjab and others
1985(1) SLR 358.

Therefore, the principle which emerges from the aforesaid case law is that

once an employee has gained experience of working on adhoc or regular

CWP No. 21663 of 2008 15

basis then the requirement of the rule stands satisfied. It is not material

whether such an experience has been gained while working on adhoc basis

or on regular basis. As long as a person has earned the experience of

working on teaching post like Lecturer or Senior Lecturer then such an

experience cannot be ignored and on that basis the petitioner could not have

been non-suited from consideration for promotion to the post of the Head of

the Department. On principle and precedent both the questions have to be

answered in favour of the petitioner.

When the aforesaid principles are applied to the facts of the

present case it becomes obvious that on the date of consideration of her case

in December, 2008 the petitioner had more than 12 years service. She also

fulfilled the condition of working atleast two years on the post of Senior

Lecturer. Moreover, she has been senior to respondent no.3 in the cadre of

Sr. Lecturers and the principle of seniority -cum- merit is applicable as

provided by Rule 9(2) of the Rules. Accordingly, it is held that the case of

the petitioner is required to be considered by respondents in accordance

with the unamended rules. The explanation added on 11.11.2008 would not

apply to her case. It is, therefore, held that the experience gained by the

petitioner on adhoc basis or in a private recognized college would count for

promotion to the post of Head of the Department.

For the reasons aforementioned this petition succeeds and the

same is allowed. The order of promotion issued in favour of respondent no.

3 on 22.12.2008 ( R.2) is set aside. The respondents 1 and 2 are directed

to reconsider the case of the petitioner by treating her eligible as she fulfills

the condition of experience of 12 years as provided in column no.4 of

Appendix B attached to Rule 7 of the Rules. The needful shall be done

CWP No. 21663 of 2008 16

within a period of two months from the date of receipt of copy of this order.

As the promotion of respondent no.3 Benu Bajaj was given in flagrant

violation of the judgement of Hon'ble the Supreme Court, we saddle

respondent nos. 1 and 2 with costs of Rs. 10,000/-.

(M.M.Kumar)
Judge

(Jaswant Singh)
3.7.2009 Judge

okg

CWP No. 21663 of 2008 17

"9. Method of recruitment.- (1) Recruitment to the Service shall

be made-

(a) to (p) xx xx xx xx

(q) in the case of Head of Department in applied Sciences,-

v) 75% by promotion from amongst Senior Lecturers in

Applied Sciences, and

vi) 25% by direct recruitment; or

vii) by transfer or deputation of an officer already in the service

of any State Government or the Government of India."