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PETITIONER: K.S. YADAV

       Vs.

RESPONDENT: STATE OF HIMACHAL PRADESH & ORS.

DATE OF JUDGMENT:       28/11/1997

BENCH: SUJATA V. MANOHAR, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:                THE 28TH DAY OF NOVEMBER, 1997 Present:                Hon’ble Mrs.Justice Sujata V.Manohar                Hon’ble Mr.Justice D.P.Wadhwa Rakesh Dwivedi, Sr.Adv. Rajesh Kumar, Ms.Smita Shanker Rajiv Dutta, Advs. With him for the appellant Shiv Pujan  Singh, Tufail A.Khan and T.Sridharan, Advs., for the Respondents.                       J U D G M E N T      The following Judgment of the Court was delivered: Mrs.Sujata V.Manohar.J.      This appeal  is from  an order  of the Himachal Pradesh Administrative Tribunal dated 6th of July, 1994. It pertains to the promotion of Headmasters/Headmistresses of Government High School  and Lecturers  of Higher  Secondary Schools  to Class II (Gazetted) posts in the school and Inspection cadre of the  State of  Himachal Pradesh under the Recruitment and Promotion Rules of 1980.      Prior to  the coming into force of the  Recruitment and Promotion Rules  for Class II posts (Gazetted) in the School and  Inspection  cadre  (hereinafter  referred  to  as  ‘the Recruitment Rules  of 1980’) in the Department of Education, Himachal Pradesh,  which Rules  came into force on 7.6.1980, the relevant Rules in force were the Rules of 1968. It seems that there  were irregularities  in complying with the Rules of 1968.  After the  Recruitment Rules  of  1980  came  into force, these Rules were also not being properly implemented. The Education  Department, State  of Himachal  Pradesh  had, from  time   to  time,  after  1980,  entered  into  various agreements  with  Headmasters/Headmistresses  of  Government High School or Lecturers of Higher Secondary Schools, and/or other employees for the purpose of granting them promotions. The disputes ultimately came before the Supreme Court in the case of  Sunita Sharma  & Ors  vs.  The  State  of  Himachal Pradesh & Ors. (1993 Supp. [4] SCC 686). This Court observed that the  State Government’s  action  in  keeping  the  said Recruitment Rules  of 1980  in cold  storage,  and  with  no regard to  them entering  into ad  hoc agreements  with  its employees from  time to  times, was  unjustifiable  and  had resulted in  the disputes between the Headmasters and School

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Lecturers (inter  alia) with  regard  to  promotional  posts coming before  it. The  Court observed  that the Recruitment Rules of  1980 provide  for promotion  to the Class II posts from the  feeder posts  of Headmasters  and School Lecturers according to  a roster system which gives 55 per cent of the promotional posts  to Headmasters  and 45  per cent  of  the promotional  posts  to  School  Lecturers.  It  directed  to enforcement of  Recruitment Rules  of 1980 for promotions to class II  posts and for further promotions thereafter in the cadre. It  directed that  all agreements entered into by the State Government  after 1980 with the employees were quashed except for  the  creation  of  additional  posts  of  Deputy Director of  Education from  time to  time. It also directed that the  promotions should  be made  in accordance with the Rules of  1980. On promotion to Class II posts, there should be prepared  a common  seniority list  of promotes  for  the purposes of  further promotion  in the  cadre. It  also gave certain other directions including directions for protection of the salary received and so on.      It is  the grievance  of the  School Lecturers  in  the present proceeding  that the  directions so  given  by  this Court in  the case  of Sunita  Sharma (supra)  have not been carried out.  This contention  has  been  negatived  by  the Tribunal after  examining the  steps taken  by the  State of Himachal Pradesh  pursuant to  the directions  given in  the case of  Sunita Sharma (Supra). Being dissatisfied with this finding of  the Tribunal the appellant has filed the present appeal.      This Court in the case of Sunita Sharma (supra) has not disturbed the  position prevailing at the time when the said Recruitment Rules of 1980 came into force on 7.6.1980 on the ground that  it would  be undesirable  to upset  a  position which has  been settled  a long  time ago.  It has  directed proper implementation of the Recruitment Rules of 1980.      Under the  said recruitment  Rules 1980 the promotional posts which  are clubbed  together are  those  of  Assistant Director of  Education, District  Education Officer,  Deputy District Education  Officer, Audio Visual Education Officer, Evaluation Officer, Officer on Special Duty, Principal Basic Training  School,   Principal   Higher   Secondary   School, Counsellor  Incharge,   State  Bureau   of  Vocational   and Educational Guidance  and Headmasters/Headmistresses of High School (Gazetted). The number of promotional posts which are available are  also enumerated.  In this  category there are 237 posts  in the  pay scale  of Rs.400-800 and 142 posts in the pay  scale of  Rs. 700-1100 making a total of 379 posts. It is  further stated  that the  number of  posts in each of these scales  shall be as may be fixed in the cadre strength on percentage basis from time to time. The promotional posts are all  Class II  (Gazetted)  posts.  Since  the  posts  of Headmasters/Headmistresses of  High School  are  promotional posts, these  posts are  class II  (Gazetted) posts carrying the pay scale of Rs. 400-800 or Rs. 700-1100.      The feeder  category for  these posts  is  non-gazetted Headmasters/Headmistresses   of   Government   High   School carrying pay  scale of  Rs. 300-600  and Lecturers of Higher Secondary School  with five  years of  service in the grade. The latter  are in  the same  pay scale  of Rs. 300-600. The posts which  are available  as promotional  posts are  to be distributed between these two feeder categories in the ratio of 55  per cent  for non-gazetted Headmasters/Headmistresses of Government  High Schools and 45 per cent for Lecturers of Higher Secondary  School. There is also a roster provided in the said  Rules for  the allocation  of posts  to both these feeder categories.  Note 1 and 2 at the bottom at the roster

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state as follows:-      "Note 1:  Since the  pay scales  of      Rs.400-900 and  Rs.  700-1100  have      been  determined  as  a  result  of      revision  of   pay  scales   w.e.f.      1.11.66        onwards,         the      Headmasters/Headmistresses of State      and provincialised  Cadres will get      the above  scales on  the basis  of      their   position   in   the   final      seniority list  as  a  revised  pay      scales.      Note   2:    As   regards    School      Lecturers, it  will be  a promotion      in Rs.  400-800 (gazetted)  for all      intents and purposes. Provided that      Officers    on     their    initial      appointment shall  be placed in the      scale of Rs. 400-800 and thereafter      the grant  of the  higher pay scale      of Rs.  700-1100 would  depend upon      availability of posts on percentage      basis (as  indicated against  Co1.2      and seniority and fitness etc.)      Provided further  that  the  senior      most incumbents  in the cadre shall      be posted  as Assistant Director of      Education/District        Education      officer/Officer on Special Duty"      As a  result of  these Rules  the School Lecturers were given the  avenue of promotion as Headmasters/Headmistresses in Government Schools (Gazetted).      The dispute  in the  present case  relates to 234 posts which were  held in the pay scale of Rs. 400-800 or Rs. 700- 1100 by  Headmasters of  High Schools  at the  time when the Recruitment Rules  of 1980 came into force. According to the appellants these  234 posts  which form  a part of 379 posts which are  enumerated as promotional posts, should be filled in afresh  by promotion  in the  manner  prescribed  in  the roster; while  the respondents  contend that since these 234 posts were  already filled at the time when 1980 recruitment Rules came  into force,  the persons  occupying scale of Rs. 700-1100 making  a total  of 379 posts. It is further stated that the number of posts in each of these scales shall be as may be  fixed in the cadre strength on percentage basis from time to  time.  The  promotional  posts  are  all  class  II (Gazetted)     posts.      Since      the      posts      of Headmasters/Headmistresss of  High  School  are  promotional posts, these  posts are  Class II  (Gazetted) posts carrying the pay scale of Rs. 400-800 or Rs. 700-1100.      The feeder  category for  these posts  is  non-gazetted Headmasters/Headmistresses  of   Government   High   Schools carrying pay  scale of  Rs. 300-600  and Lecturers of Higher Secondary School  with five  years of  service in the grade. The latter  are in  the same  pay scale  of Rs. 300-600. The posts which  are available  as promotional  posts are  to be distributed between these two feeder categories in the ratio of 55  per cent  for non-gazetted Headmasters/Headmistresses of Government  High School  and 45 per cent for lecturers of Higher Secondary  School. There is also a roster provided in the said  Rules for  the allocation  of posts  to both these feeder categories.  Note 1 and 2 at the bottom at the roster state as follows:-      "Note 1:  Since the  pay scales  of      Rs. 400-900  and Rs.  700-1100 have

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    been  determined  as  a  result  of      revision  of   pay   scales   w.e.f      1.11.66        onwards,         the      Headmasters/Headmistresses of State      and provincialised  Cadres will get      the above  scales on  the basis  of      their   position   in   the   final      seniority list  as  a  revised  pay      scales.      Note   2:    As   regards    School      Lecturers, it  will be  a promotion      in Rs.  400-800 (gazetted)  for all      intents and purposes. Provided that      Officers    on     their    initial      appointment shall  be placed in the      scale of Rs. 400-800 and thereafter      the grant  of the  higher pay scale      of Rs.  700-1100 would  depend upon      availability of posts on percentage      basis (as  indicated against  col.2      and seniority and fitness etc.)      Provided further  that  the  senior      most incumbents  in the cadre shall      be posted  as Assistant Director of      Education/District        Education      Officer/Officer on Special Duty."      As a  result of  these Rules  the School Lecturers were given the avenue of promotion as Headmasters/Headmistress in Government Schools (Gazetted).      The dispute  in the  present case  relates to 234 posts which were  held in the pay scale of Rs. 400-800 or Rs. 700- 1100 by  Headmasters of  High Schools  at the  time when the Recruitment Rules  of 1980 came into force. According to the appellants these  234 posts  which form  a part of 379 posts which are  enumerated as promotional posts, should be filled in afresh  by promotion  in the  manner  prescribed  in  the roster; while  the respondents  contend that since these 234 posts were  already filled at the time when 1980 recruitment Rules came  into force,  the persons  occupying  these posts could not  be reverted  and the  posts filled  afresh by the application of the roster. The contention of the respondents has been rightly accepted by the Tribunal. Prior to  the coming  into force of the Recruitment Rules of 1980  the   Government  of   Himachal   Pradesh,   Education Department by  order  dated  19.1.78  had  fixed  the  cadre strength of  the School  and the  Inspection  cadre  of  the Education Department as on 1st of November 1977 as under:- -----------------------------------------------------------                          Permanent     Tempo     Total                                        -rary ----------------------------------------------------------- 15% of the posts in the pay scale of Rs. 700-1100                 85             -    85 (Gazetted) ------------------------------------------------------------ 2) 25% of the posts in the pay scale of Rs. 400-800                 142             -    142 (Gazetted) ------------------------------------------------------------ 3) 60% if the posts in the pay scale of Rs. 300-600             219           120    339 (Non-                                                  Gazetted) ------------------------------------------------------------       Total :-          446           120    566

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------------------------------------------------------------      Under Clause 2 of the order it was stated as follows:-      "The   Governor, Himachal  Pradesh,      is further  pleased to  declare all      the posts  in the  pay-scale of Rs.      400-800 borne  on  the  School  and      Inspection  Cadre,   as   indicated      above as Gazetted."      As a  result of  his order  25 per cent of the posts in the pay  scale of  Rs. 400-800 amounting to 142 posts became gazetted posts  in Class II. Similarly, 15 per cent posts in the pay  sale of  Rs. 700-1100 were also gazetted posts. The persons who  were then occupying the posts of Headmasters in the 25  per cent  category in  the pay  scale of Rs. 400-800 came to  occupy Class  II Gazetted  posts. It is an accepted position that  on the  date when  the 1980 Recruitment Rules came into  force, 142  posts in the pay scale of Rs. 400-800 and 92  posts in  the pay  scale of Rs. 700-1100 were in the gazetted  Class   II   category   and   were   occupied   by Headmasters/Headmistresses of  High  Schools.  Thus  in  the cadre of Headmasters/Headmistresses there were three sets of pay scales:  (1) 700-1100, (2) 400-800, and (3) 300-600, the grant of  the pay  scales depending  upon seniority  and the prescribed percentage  of posts.  This was the position when the Recruitment Rules of 1980 came into force.      The  appellant   contends  that  Headmasters  who  were originally in a lower pay scale were never promoted to these Class II (Gazetted) posts. They were merely given the higher pay scale and gazetted status. The appellant has pointed out that  prior  to  the  1980  Rules  coming  into  force,  the Government itself  had not  treated the  granting  of  these higher pay  scales and  gazetted status  as  promotions.  He pointed out,  for example, a letter dated 14th of July, 1985 from  the  Joint  Secretary  (Personnel)  addressed  to  the General Secretary,  Himachal Pradesh  and Central  Scheduled Castes/Tribes  Government   and  Semi-Government   Employees Association, Mandi,  Himachal Pradesh, in which it is stated that the  grant of  revised scales  to the incumbents of the posts have not been treated as promotion.      However, on  7.6.1980 when the new Recruitment Rules of 1980     came      into     force,      the     posts     of Headmasters/Headmistresses which  were Gazetted  posts were, for the first time, put in the category of promotional posts available to  non-gazetted Headmasters/Headmistresss of High Schools as  also to  Lecturers of  Higher Secondary Schools. The existing  posts of Headmasters/Headmistresses in Class I (Gazetted) posts  were also  included in  the number  of 379 posts which  were available for promotion. Therefore, at the time when  the Rules  came into  force, for  the purposes of granting fresh  promotions under  the Rules it was necessary to examine  which of  these 379  posts were  vacant and were available for  promotion to  the feeder cadres. If the posts of Headmasters/Headmistresses  were already  occupied, there would be  no question  of any  promotion to  these  occupied posts until  they became  vacant. The  recruitment Rules  of 1980     do     not     provide     for     reversion     of Headmasters/Headmistresses  occupying  Class  II  (Gazetted) posts and their fresh promotion to the same posts in 1980.      The respondents have set out a table showing when these posts came  to be  filled. Out of these 142 posts in the pay scale of  Rs.400-800 and  92 posts  in the  pay scale of Rs. 700-1100. 37  posts had  been filled  as far back as in 1966 while 72  posts were  filled during the period 1975 to 1980. We need  not set out the entire year-wise table which merely indicates that  these 234  posts were  filled over the years

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between 1966  and 1980, mostly long prior to the coming into force of  the Recruitment  Rules of  1980. The  Tribunal has rightly held  that until  these posts become vacant they are not available for promotion from the feeder category.      In the  feeder category,  for the  first  time,  School Lecturers  have   been  included   along  with  non-gazetted Headmasters/Headmistresses because both these categories had to same  pay scale of Rs. 300-600 or its revised equivalent. The order of this Court in Sunita Sharma’s case (supra) does not set  aside what  had happened  prior to  the coming into force  of   the  Recruitment   Rules  of  1980.  It  directs implementation of  the Recruitment  Rules of  1980 from  the date when  they came  into force  and has  directed that all subsequent agreements  between the  State and  its employees must be  cancelled. An  order has accordingly been issued by the State  of Himachal Pradesh cancelling all agreements and withdrawing  all   orders  issued  after  7.6.1980.  In  the available promotional  posts, promotions  have been  made in accordance with  the roster  prescribed. It has also pointed out that a common seniority list in the promotional Class II cadre  has   been  prepared  for  the  purposes  of  further promotions.      The Tribunal  was, therefore,  right  in  holding  that there has  been no violation of the directions given by this Court in  the case  of Sunita  Sharma  (supra).  The  School Lecturers are  eligible for  promotion to the Gazetted posts of Headmasters/Headmistresses  of High Schools and for other promotional posts  enumerated there  and they  are being  so promoted in accordance with the 1980 Rules. Their contention that 234  occupied posts  of  Headmasters/Headmistresses  in Class II  (Gazetted) category  should  also  be  treated  as available for  promotion immediately  after the  coming into force of  1980 Rules  cannot  be  accepted.  The  posts  are certainly available  for promotion under the 1980 Rules when a vacancy occurs in those posts after 7.6.1980.      In the  premises the  appeal is  dismissed. There will, however, be no order as to costs.