26 No.18590/2013 and Mr.S.K.Dubey, learned counsel for petitioner in Writ Petition No.20635/2013 have also adopted the submissions of Mr.Rajendra Tiwari, learned senior counsel. 10. Mr.Shashank Verma, learned counsel for the petitioners in Writ Petition No. 14833/2013 submitted that in the year 2013 by way of amendment in the Rules the post of Area Education Officer has been created which carries the same scale of pay which is prescribed for the post of Headmaster and there is no career progression of the Head Masters, and the post of Area Education Officer is supervisory in nature and if the juniors to the petitioners are selected on the post of Area Education Officer, they would supervise the functioning of the petitioners who are seniors to them. It is also urged that in the Rules as amended in 2013 there is no provision regarding Head Master of Middle School. In support of his submissions, learned counsel for the petitioners has invited our attention to the averments made in paragraphs 12 & 13 of the return. Lastly, it is urged that the Head Masters and Lecturers are equivalent posts and the Lecturers can directly be promoted to the post of Principal, High School whereas Head Masters have to appear in the limited examination for recruitment to the post of Area Education Officer in order to be promoted to the post of Principal High School and the petitioners are being made to compete with their juniors. 11. Mr.Sanjay K. Agrawal, learned counsel for the petitioners in 27 Writ Petition Nos. 16867/2013 and 18260/2013 submitted that petitioners have worked on the post of ‘Adhyapaks’ for the period of 4 years and 9 months and they have been recently promoted as ‘Varishtha Adhyapaks’ and have completed 6 months on the said post. However, they are being deprived of an opportunity to seek absorption in the government service by way of recruitment on the post of Area Education Officer, which is one time exercise. The exclusion of ‘Varishtha Adhyapaks’ from recruitment process for the post of Area Education Officer is per se arbitrary as ‘Adhyapaks’ who are juniors to the petitioners have been permitted to appear in the examination. Alternatively, it is submitted that expression Adhyapak as used in the rule has to be read so as to include ‘Varishtha Adhyapaks’ as well as those ‘Varishtha Adhyapaks’ who do not have 5 years’ teaching experience. It is also urged that post of Area Education Officer is an administrative post and, therefore, the exclusion of the petitioners on the basis of experience of teaching on particular post is arbitrary. In support of his submissions learned counsel for the petitioners has placed reliance on the decisions in Kallakkurichi Taluk Retired Official Association vs. State of Tamil Nadu, (2013) 2 SCC 772, B.Manmad Reddy and others vs. Chandra Prakash Reddy and others, AIR 2010 SC 1001 and Chairman, Punjab National Bank vs. Astamija Dash, AIR 2008 SC 3182. 12. Mr. Alok Pathak, learned counsel for the petitioners in WP No.16423/2013, WP No.16435/2013, WP No.18648/2013 and WP 28 No.16430/2013 has submitted that the petitioners are Adhyapaks and even though they do not have requisite teaching experience of five years, yet they are entitled to appear in the examination in question. 13. Mr.D.K.Dixit, learned counsel for the petitioner in Writ Petition No.15270/2013 has submitted that under Rule 6(4) of 1982 Rules, the Government has the power to prescribe method of appointment to a post after consultation with the General Administration Department. However, in the instant case no consultation with General Administration Department has been made. It is further submitted that the examination ought to have been held by the Public Service Commission and all eligible persons ought to have been allowed to appear in the examination. It is also submitted that ‘Varishtha Adhyapak’ should be allowed to appear in the process of appointment for the post of Area Education Officer. In support of his submissions, learned counsel for the petitioner has placed reliance on the decision of the Supreme Court in the case of Dr.Subramanian Swamy vs. Director, Central Bureau of Investigation and another, AIR 2014 SC 2140 and Renu and others vs. District & Sessions Judge, Tis Hazari and another, AIR 2014 SC 2175. 14. Mr.Nikhil Tiwari, learned counsel for the petitioner in Writ Petition No.15355/2013 has submitted that even though the petitioner holds substantive post of ‘Varishtha Adhyapak’ and has 5 years of teaching experience, however, he is not being permitted to participate 29 in the process of recruitment for the post of Area Education officer on the ground that by order dated 24.7.2012 his services have been lent on deputation. 15. Mr.Rajesh Dubey, learned counsel for the petitioner in Writ Petitions No.16292/2013 and 17789/2013 has submitted that the expression “Adhyapak” employed by the State Legislature in the amendment should be read as including ‘Varishtha Adhyapaks’. In this connection, our attention has been invited to section 2(k) of M.P. Jan Shiksha Adhiniyam, 2002 and section 2(f) of M.P. Panchayat Adhyapak Samwarg (Employment and Conditions of Service) Rules, 2008. 16. Mr.P.N.Dubey, learned counsel for the petitioner in Writ Petition No.15370/2013 has submitted that the petitioners are Assistant Teachers and they hold the same qualifications as of ‘Adhyapaks’ employed in government schools. However, the petitioners have been excluded from competing for appointment on the post of Area Education Officer. It is also submitted that under Rule 2(a) of the Rules, the appointing authority is the State Government whereas under the amendment made in the year 2013 in the Rules the appointing authority of the Area Education Officer is mentioned as Commissioner, Public Instructions which is hit by Article 13(2) of the Constitution of India. It is further submitted that in the Departmental 30 Examination, the persons who are not the employees of the School Education Department, namely, ‘Adhyapaks’ of Government schools managed by the local bodies are being allowed to appear. While inviting our attention to M.P. Public Service Commission (Limitation of Functions) Regulations, 1957 it is pointed out that Departmental Examination has to be conducted by M.P. Public Service Commission. In support of his submissions, learned counsel has placed reliance on the decision in Arun Singh Bhadouriya vs. State of M.P. and others, 2009 (2) MPHT 277. Mr. Manoj Soni, learned counsel for the petitioner in WP No.15814/2013, Mr. R.K. Samaiya, learned counsel for the petitioner in WP No.15753/2013 and Mr. J. Arya, learned counsel for the petitioner in WP No.14747/2013 have adopted the submissions made by Mr. P. N. Dubey. 17. Mr.Anshuman Singh, learned counsel for the petitioner in Writ Petition No.15380/2014 has submitted that the petitioners are the Lecturers and by impugned amendment of 2013 in the Rules, the State Government has permitted the Upper Division Teachers, Head Masters of Middle School and ‘Adhyapaks’ of local bodies to participate in the process of recruitment for the post of Area Education Officer. Thus, the unequals are sought to be treated as equals. It is further submitted that avenues for the petitioners who Lecturers in Higher Secondary School for promotion to the post of Principal High School have been reduced from 100% to 50% and 25% posts of the Principal High School have been reserved for recruitment from 31 ‘Varishtha Adhyapaks’ who cannot be treated at par with the petitioners as the petitioners hold class -II post whereas Adhyapaks hold local body posts and are not government servants. It is also urged that principles of merger of cadres as laid down by the Supreme Court in S.P. Shivprasad Pipal v. Union of India and Others, (1998) 4 SCC 598 and (2013) 7 SCC 335 have not been followed in the instant case. It is further contended that the classification which has been made by the respondents for participation for appointment to the post of Area Education Officer is fanciful and arbitrary. In support of the aforesaid submission, reference has been made to the decision of the Supreme Court in B. Manmad Reddy and Others v. Chandra Prakash Reddy and Others, (2010) 3 SCC 314. Mr. Rajneesh Gupta, learned counsel for the petitioner in W.P.No.16676/2013 has adopted the submissions made by Mr. Anshuman Singh. 18. While canvassing the arguments in Writ Petition No.12600/2014 Mr. Anshuman Singh, learned counsel has submitted that examination in question is not being conducted by the authority prescribed under the Rules. While inviting our attention to Annexure- P-3 it is contended that examination in question is being conducted by M.P. On-line Limited which is joint venture company and is a paid service provider. It is also submitted that aforesaid joint venture company has no specific mandate to hold the examination and no order authorizing M.P. On-line Limited to conduct the examination has been issued prior to issuance of the impugned advertisement. It is also 32 submitted that M.P. On-line is not an authority for the purpose of Rule 11(2) of the Rules as the joint venture company cannot be regarded as an authority. In support of aforesaid submission, reference has been made to the decision of Supreme Court in the case of Union of India vs. Alok Kumar, (2010) 5 SCC 349. 19. On the other hand Mr.Samdarshi Tiwari, learned Government Advocate submitted that the post of Area Education Officer has been created at the Sub Block Level to monitor the primary schools and middle schools which are situated in rural areas as well as in Tribal areas. It is further submitted that under the erstwhile Education Guarantee Schools Gurujis were appointed who were later on upgraded to the posts of Samvida Shala Shikshaks and were further upgraded to the post of Adhyapaks. It is also submitted that after commencement of Right to Education Act, 2009 the Education Guarantee Centres were converted to primary schools. Thus, Upper Division Teachers as well as Head Masters and Adhyapaks of local bodies cadre, who are already working in rural areas, are well conversant with the local conditions and, thus, are better equipped to perform the duties of Area Education Officer. Accordingly, the State Government has taken a conscious decision to fill up the post of Area Education Officer by limited examination, as the person who is not in the system, may not be able to perform duties of the post in question in the remote rural areas and tribal areas. It is also pointed out that neither any writ petition has been filed by Upper Division Teacher or
Posted on: Mon, 08 Sep 2014 16:39:37 +0000
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