WP(C)/18/2003 of Damber Kumari Pradhan Vs State Of Sikkim on 19 December 2003

JUDGMENT

R. K. PATRA

In this writ petition under Article 226 of theConstitution of India the petitioner has prayed for a direction .to

I.

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@be a the respondents to promote her to the post of primary teacherwith retrospective effect from the date when Arati Gurung waspromoted as the primary teacher. She has also prayed forquashing of the order contained in the Education Departmentletter no. 757/DOP(E) dated 22nd September, 1999 (Annexure P-7) communicating to her tha.t for appointment of primary teacher,the minimum educational qualification was class X (pass).

2. Briefly stated the case of the petitioner is tha.t shewas appointed as a school mother in the year 1977 and has beencontinuing in the said post since then. As per the practiceprevailing in the state of Sikkim, the school mother is eligible tobe considered for promotion as primary teacher if she gainssufficient experience as a school mother. In the year 1999, shecame to know that Arati Gurung who was appointed as schoolmother four days after her appointment was promoted to the postof primary teacher. She made representations in February 1986,September 1998, July 1999, January 2000 and February 2002(copies of representations are at annexures P-1 to P-5) saying tha.tshe stands in the same footing as that of Arati Gurung and assuch, she should also be promoted as primary teacher. TheDepartment of Education although was sympathetic to her but forthe reasons best known to it she has been deprived of herlegitimate claim. Surprisingly, she was communicated in theimpugned letter no.757/DOP(E) dated 22nd September, 1999(annexure P-7) to the effect that as per the existing rules theschool mother can be appointed as primary teacher provided she a ray 0 -a possesses minimum educational qualification of class X pass andshe should also qualify in the interview. According to her, shehas been denied the promotion illegally violating equality clauseenshrined in Article 14 of the Constitution of India.

3. Counter-affidavit has been filed on behalf of therespondents. Their case is that prior to 1982 there was noexecutive instruction nor any rule governing appointment ofprimary teachers. As a matter of practice, school mothers werebeing promoted as primary teachers subject to availability ofvacancies in the school and preference was given to those schoolmothers who had appeared or passed class X. In the year 1982,the petitioner made a representation for absorbing her as primaryteacher but her case could not be considered due to non-availability of vacancies. Her educational qualification at thattime was only class VIII pass. From the year 1983, the previouspractice of promoting school mothers as primary teachers hasundergone change and it was decided that only those schoolmothers having educational qualification of class X pass were tobe considered for promotion to the post of primary teachers. Thiswas done in public interest to ensure that all primary teachersshould have educational qualification of class X pass and tomaintain quality education at the primary level. During theperiod 1970-80, a number of under.matrics including schoolmothers were recruited/appointed as primary teachers on thecondition that they would clear matriculation examination withinthree years of appointment falling which their appointment would be terminated. The Department later noticed that large numberof such primary teachers could not fulfil the above conditions butthey continued in service for a pretty long period and most ofthem were about to attend the age of superannuation. In view ofsuch prevailing situation, the government in public interest tooka policy decision as per the Cabinet Memorandum dated 14thFebruary, 2002 at annexure R-1. The relevant portion of the saidmemorandum reads as follows :- ``As most of the teachers have very few years ofservice left, this is submitted for obtainingGovernment approval to waive the conditions that"their service would be terminated if they fall to passthe Class-X Board Examination" and the services ofthese teachers be regularised. These teachers wouldbe put through a one-year teachers' training courseat the D.I.E.T. at Gangtok.

Cabinet Memorandum is prepared with theapproval of the Honble Minister, Education.

It is therefore, submitted for the considerationand approval of the Council of Ministers."

This was approved in the cabinet meeting held on 8th February,2002 at annexure R-2 which is as follows:- "EDUCATION DEPARTMENT.

3.3 Proposal seeking approval to waive certainconditions of service of the under matric teachers asmentioned in the cabinet Memorandum No.475/EST/Edn dated 14.2.2000.

APPROVED."

Later the government in the Education Department issuedexecutive instruction in their notification dated 5th F`ebruary,2002 at annexure R-3, which reads as follows :- "GOVERNMENT OF 'SIKKIMDEPARTMENT OF EDUCATION

No.:01/06/18/2000/Est/Edn/345

Dated: 5/2/2000

NOTIFICATION

Minimum es sential qualification

S1. Category of postsNo.

1. SCHOOL MOTHER ........

2. PRIMARYTEACHER Cla.ss-XII pass of a recognisedBoard with Teachers TrainingCertificate (Basic Trained) from arecognised Institute.

3. GRADUATE TEACHER ........

By Order,

Sd/-

( T. T. Dorji ) IASCommissioner-cum-Secretary-Education"

This was modified in the government notification da.ted loth August, 2001 at annexure R-4 which reads as under :- ``DEPARTMENT OF` EDUCATION

GOVERNMENT OF SIKKIM

GANGTOK -737101

SIKKIM

Re/.IVo.:DE(1)/Edn/Est/2001/671

Dated: 10/8/2001

NOTIFICATION

In partial modification of the Notification No:01/06/18/2000/Edn/345 dated 5/2/2000, the Governor is pleased to orderthat the requisite qualification for recruitment to the posts ofPrimary Teacher and Graduate Teacher shall be as under :- S l. CateEducational qualification No.

1. Primary TeacherClass-XII pass of a recognisedBoard.

Desirable:

Teachers Training Certificate (BasicTrained) from a recognisedInstituted.

2. Graduate Teacher

These provisions shall come into effect at once.

By Order.

Sd/-D. K. PRADHAN,JOINT SECRETARY, EDUCATION"

4. Shri Sharma, learned counsel strenuously arguedthat the injustice has been done to the petitioner in notpromoting her as primary teacher although she stands in thesame footing as that of Arati Gurung. He submitted that her ca.sehas been illegally ignored and her claim should not be rejected onthe ground of delay or latches. Shri Sharma also urged byreferring to annexures R-3 and R-4 that those notifications relateto recruitment of primary teachers and does not deal withpromotion. According to him, recruitment means initialrecruitment and does not cover case of promotion. IreamedAdvocate General on the other hand submitted that thepetitioner's educational qualification is only class VIII pass andeven as per the practice prevailing prior to the issuance ofexecutive instructions contained in notifications dated 5thFebruary, 2000 and loth August, 2001 the minimum qualificationrequired for considering the case of school mother for promotionwas class X which she lacked. The leaned Advocate General hasproduced before us a copy of the Education Department(Graduate and Post Graduate Teachers) Recruitment AmendmentRules, 2003 amending the (Primary Teachers, Graduate Teachersand Post Graduate Teachers) Recruitment Rules, 1991. As perthe Amendment Rules, 2003 the method of recruitment for primary teachers is 50% by direct recruitment and 50% bypromotion and so far as promotion is concerned the minimumeducational qualification is class XII or equivalent examination ofa recognised University. His submission is that since as per thelaw prevailing the petitioner does not possess the educationalqualification (class XII), question of considering her case forpromotion does not arise.

5. There is no dispute that even prior to the issuance ofthe execution instruction contained in notifications dated 5thFebruary, 2000 and loth August, 2001 (annexure R-3 and R-4)the minimum educational qualification required for consideringpromotion of a school mother to the post of primary teacher wasclass X pass. The petitioner's educational qualirication is onlyclass VIII pass. Therefore, even as per the practice prevailingprior to 2002 she was not eligible to be considered for promotionas sh: did not possess the educational qualification of class Xpass. Shri Sharma's contention is that Arati Gurung has noeducational qualification of class X pass but she was givenpromotion as primary teacher and since the petitioner stands inthe same position as that of Arati Gurung, she should be giventhe benefit which was made available to Arati Gurung. It is notknown as to the circumstances under which the said AratiGurung came to be promoted as primary teacher even though shedid not possess the minimum qualification of class X pass.Merely because some wrong was committed or some concessionwas given to Arati Gurung, this Court cannot issue a writ of S

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mandamus asking the government to commit the same mistakeor to show such indulgence to the petitioner. It rna.y be notedthat the petitioner was aware of Arati Gurung's promotion asback as 1981 which is evident from her representation dated 7thJuly, 1999 at annexure P-3 wherein she stated as follows :- "That we both served till up to the year 1981when Smt. Arati Gurung got promotion to the post ofAsstt. Teacher. Accordinedv I also submitted anaDolication to the Dei]artment for mv Promotion tothe post of Asstt. Teacher and the ffle was underprocess. But with the reason, best known to thedepartment my file was kept pending."

From the above, it can be held that she had knowledge of AratiGurung's promotion since 1981. Her repeated representationswere considered and were rejected by the Department which isclear from the another paragraph of her representation dated 7thJuly, 1999 (annexure P-3). For the sake of convenience, we mayquote the same:- "I again submitted an applica.tion on the 7thday of Sept. 1998 but my request has been turneddown by the authority of Education Department."

While considering her representation the Chief Secretary in hisorder dated 7th July, 1999 noted as follows :-

"2. She, however, states that her friend AratiGurung who has also not passed Class X has beenappointed as Primary Teacher. The representationmay kindly be examined with reference to existingrules and act strictly a.ccording to rules without anyfavour to any person. If Mrs. Arati Gurung and theapplicant are similarly placed, the applicant may alsobe promoted to the post of Primary Teacher. On theother hand, if the promotion of Mrs. Arati Gurung atthe relevant time was against the rules, herpromotion my be cancelled."Gurung who has also not passed Class X has beenappointed as Primary Teacher. The representationmay kindly be examined with reference to existingrules and act strictly a.ccording to rules without anyfavour to any person. If Mrs. Arati Gurung and theapplicant are similarly placed, the applicant may alsobe promoted to the post of Primary Teacher. On theother hand, if the promotion of Mrs. Arati Gurung atthe relevant time was against the rules, herpromotion my be cancelled."

Pursuant to the said order, the dei)artment considered thematter and it was notified to the petitioner in letter dated22nd September, 1999 at annexure P-7 that the minimumqualification for appointment to primary teachers being class Xpass and as she does not possess such qualification, herrepresentation does not merit any consideration.

6. Shri Sharma is not right in his submission that theexecutive instruction of the government contained in thenotification dated 5th February, 2000 read with loth August, 2001does not deal with case of promotion. The meaning of the word+ecruitment' came to be considered by the Supreme Court in K.Nara.yanan vs. State of Karnataka AIR 1994 SC 55. In paragraph6 of the judgment the Court observed as follows :- "Art. 309 of the Constitution empowersappropriate legislature to frame rules to regulaterecruitment to public services and the post.Recruitment' according to dictionary means `enlist'.It is comprehensive term and includes anv method#tm::rL=i=CtiTng.Daro=o¥onn,Eeppuu:tconae=Ei•vvell known methods of recruitment. EvenaDDointment bv transfer is not unknown."

For the reasons mentioned above, since recruitment also includespromotion and the case of the petitioner was to be consideredpursuant to the said executive instruction and as she does notpossess the minimum qualification prescribed therein (class XIIpass) her claim has no legal foundation. In the AmendmentRules, 2003 framed under the proviso to Article 309 of theConstitution it has been provided as follows:- In view of the fact that the field of promotion to primary teacher isnow governed by the rules made under the proviso to Article 309of the Constitution of India, the case of the petitioner has to beconsidered in the light of those rules which prescribe theminimum qualification for promotion to the post of primaryteacher is class XII. As the petitioner does not possess the saidqualification, we cannot accede to her prayer.

7. In the result, we do not rind any merit in tbis writpetition which is accordingly dismissed. There shall no order asto costs.

I agree.

A.H.PeChief ±iee19.122003ici±Singh )19.12.ZOOS