shathiyo order dekhe 29. In the case of Dr.N.C.Singhal vs. Union of India, (1980) 3 SCC 29, it has been reiterated that the Government is a better judge of the interests of general public and if it is a better judge, it must have power to create a post depending upon exigency of service and requirements of general public. In Pushpa Rani (supra) it is held that the Court can not sit in appeal over the judgment of employer and ordain that a particular post be filled up by direct recruitment or promotion or by transfer. 30. It is well settled in law that power of creation of posts rests, with the State Government and whether a particular post is necessary is a matter which depends upon exigencies of situation and administrative necessity. [See: State of Haryana vs. Navneet Verma, 41 (2008) 2 SCC 65]. It is equally settled legal proposition that power to reorganize the cadre is a policy deicision which is not open to judicial review unless it is malafide, arbitrary or bereft of any discernible principle. [See: Director Lift Irrigation Corporation vs. P.K.Mohanty, (1991) 2 SCC 295.]. In P.U.Joshi (supra) it has been held that questions relating to the constitution, parttern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotion and criteria to be fulfilled for such promotion pertain to the field of policy and is within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India. It has further been held that State Government is well within its right to amend the Rules to constitute different categories of posts or cadres and to reconstitue and restruture the pattern and cadres/ categories of service as may be required from time to time by abolishing the existing cadres/posts and creating new cadres/posts. 31. In the background of aforesaid legal position we may now consider the petitioners grievances. The educational qualifications and nature of duties for the posts of Lecturer, Higher Secondary School, Varishtha Adhyapak of local body, Head Master of Middle School, Upper Division Teacher, Adhyapak and Assistant Teacher are as follows:- 42 S.No. Post Educational Qualification Nature of Duties (i) Lecturer, Higher Secondary School Post Graduate Degree in concerned subject-minimum second division or equivalent qualification Imparts Education in Higher Secondary School (ii) Varishtha Adhyapak Masters Degree in II Division in concerned subject of equivalent and B.Ed./B.Ed. special education Imparts Education in Higher Secondary School (iii) Head Master of Middle School Graduate Imparts Education in Middle School (iv) Upper Division Teacher Graduate Imparts Education in Middle (v) Adhyapak Bachelors Degree in Second Division in concerned subject or equivalent and B.Ed./B.Ed. (Special Eduation/ B.T.C.D.Ed./D.S.E.) Imparts Education in Middle &High School (vi) Assistant Teacher Higher Secondary School Certificate Examination Imparts Education in Primary School In the instant case there is no merger of cadre by amendment in the Rules. But, only a new post of Area Education Officer has been created at the Sub Block Level in the set up of posts. The minimum qualification for the aforesaid post is Graduate Degree and Bachelor Degree in Education. The nature of duties performed by the Area Education Officer is administrative in nature and the primary function is to supervise the elementary education of Primary and Middle Schools. The posts of Varishtha Adhyapak of local body cadre is a higher post, taking into account the educational qualification prescribed for the post and the nature of duties performed by Varishtha Adhyapaks of local bodies. For the post of Varishtha Adhyapak the minimum qualification prescribed is the Post Graduate Degree in the concerned subject in second division and Varishtha Adhyapak imparts education in Higher Secondary School. Similarly, for the post of Assistant Teacher the minimum qualification is Higher Secondary School Certificate Examination. The aforesaid post has lower qualification than the qualficiation presecribed for the post of Head Master Middle School, Upper Division Teacher and Adhyapak of local body. Thus, the pool 43 of employees from which Area Education Officers has to be selected has been created on the basis of educational qualification and, therefore, the Varishtha Adhyapaks and Assistant Teachers have rightly been excluded from pool from which the post of Area Education Officer is to be filled up. A careful scrutiny of the nature and duties of the post of Area Education Officer it is evident that the post is supervisory in nature and the Area Education Officer would not, in any manner, be supervising the work of their seniors as they do not have any power to write the confidential report of their seniors. Therefore, the contention that Area Education Officer who may be junior to the petitioners, namely, Head Master and Lecturers would supervise their work, cannot be accepted. 32. Now, we may deal with the grievance of the Lecturers that by permitting the Head Masters, Upper Division Teachers, Adhyapaks of local body cadres to participate in the process of recruitment for the post of Area Education Officer, they are being treated at par with the Lecturer and would compete with the Lecturers for promotion to the post of Principal, High School. In substance, the grievance of the petitioners, who are Lecturers, appears to be that their chances of promotion are diminished. The aforesaid submission looks attractive at the first blush, however on a deeper probe, the same does not deserve acceptance. Taking into account the nature of duties performed by the Lecturer, Higher Secondary School as well as the qualification prescribed, the post of Lecturer is a higher post than that of Area 44 Education officer. The Lecturer, Higher Secondary School on completion of 5 years is entitled to be considered for promotion to the post of Principal, Higher Secondary School, whereas the Area Education Officer is required to have 5 years experience on the post in order to be eligible for consideration for promotion to the post of Principal, High School. It is pertinent to mention here that quota has also been prescribed for promotion to the post of Principal, High School under the executive instructions and suitable amendment in the Rule will be made by the State Government, as has been stated before us. The aforesaid quota provides that the post of Principal High School shall be filled in by promotion to the post to the extent of 75%. Out of aforesaid 75%, 50% post shall be filled up from the cadre of Lecturers, High School and remaining 25% posts shall be filled up from the cadre of Area Education Officers. The remaining 25% post of Principal High School shall be filled up by direct recruitment, in which, Lecturers of Higher Secondary as well as Varishtha Adhyapaks can participate. 33. Thus, two cadres have been constituted for promotion to the post of Principal, High School. The post of Principal, High School is an administrative post. There is need of persons having administrative experience as well as teaching experience. The post of Principal, High School is sought to be filled up by two different cadres i.e. Area Education Officers and the Lecturers and separate quota, as stated above, has also been prescribed for them. For the post of Principal, 45 High School, mixed cadre is sought to be prepared of the persons who have administrative and teaching experience. It is well settled in law that government can provide two cadres for promotion to the post. Reference in this connection may be made to the case of Dwarka Prasad and others vs. Union of India and others, (2003) 6 SCC 535. Once separate quotas are prescribed for promotion to the post and two cadres/channels are created for promotion to a particular post, the plea of discrimination does not arise. In this connection we may refer to a decision of Supreme Court in the case of Secretary to the Government of Orissa vs. Laxmikant Nanda and others, (1994) 1 SCC 587. It is also well settled in law that mere chances of promotion are not conditions of service, and the fact there is reduction in the chances of promotion does not tantamount to a change in the conditions of service. A right to be considered for promotion is a term of service, chances of promotion are not. [See: State of Maharashtra vs. Chandrakant Anant Kulkarni, (1981) 4 SCC 130, Union of India vs. S.L.Dutta, (1991) 1 SCC 505 and Panchraj Tiwari vs. Madhya Pradesh State Electricity Board and others, (2014) 5 SCC 101. Therefore, the contentions raised by the petitioners that unequals are sought to be treated as equals does not commend to us. We may point out that it is not the case of petitioners that action of respondents in creating post of Area Education Officer is either actuated by malafides or amounts to colourable exercise of power. 34. That apart, the challenge to the process of recruitment to the 46 post of Area Education Officer at the instance of Lecturer is premature at this stage, as after recruitment on the post of Area Education Officer, they would require 5 years experience on the post of Area Education Officer in order to be eligible for promotion to the post of Principal, High School and they would be promoted to the post of Principal, High School against their quota of 25%. 35. We shall now advert to the grievance of the Head Masters that they are requied to appear in the examination for appointment on the post of Area Education Officer whereas Lecturers who hold the qualification for the post are entitled to be directly promoted as Head Master of the School on completion of 5 years service. Once again we may reiterate that the plea of discrimination is available to similarly situated persons who are differently treated. Taking into account the nature of duties performed by Head Masters of Middle School as well as the Lecturers of Higher Secondary Schools, both the posts cannot be held to be equivalent, as the Lecturers, Higher Secondary impart education in Higher Secondary Schools whereas Head Masters Middle School impart education in Middle Schools. Thus, nature of their duties are different and, therefore, the plea of discrimination is not available to them. 36. Now we shall consider the challenge to order dated 16.9.2013 as well as memo dated 24.8.2013 issued by the School Education Department as well as Commissioner, Public Instructions, 47 Government of Madhya Pradesh, Bhopal, respectively, which provide that teaching experience on the post of Adhyapak should be counted with effect from 01.4.2007 as Adhyapak cadre has been constituted from the said date and that a candidate must have teaching experience of 5 years on the post of Head Master Middle School, Upper Division Teacher and Adhyapak, respectively. 37. It is well settled rule of statutory interpretation that when the material words are capable of bearing two or more constructions the most firmly established rule for construction of such words “of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law)” is the rule laid down in Heydons case which has “now attained the status of a classic. The rule which is also known as purposive construction or mischief rule, enables consideration of four matters in construing an Act: (I) What was the law before the making of the Act, (ii) What was the mischief or defect for which the law did not provide, (iii) What is the remedy that the Act has provided, and (iv) What is the reason of the remedy. The rule then directs that the courts must adopt that construction which “shall suppress the mischief and advance the remedy”. The rule was explained in the Bengal Immunity Co. vs. State of Bihar by S.R.Das, C.J.I. as follows: “It is a sound rule of construction of a statute firmly established in England as far back as 1584 when Heydons case was decided that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are 48 to be discerned and considered: (I) What was the common law before the making of the Act, (2) What was the mischief and defect for which the common law did not provide, (3) What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth, and (4) The true reason of the remedy; and then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress sub- the inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico. [See: Anderton vs. Ryan, (1985) 2 All ER 355, Bengal Immunity Co. Vs. State of Bihar, AIR 1955 SC 661 and National Insurance Company Limited vs. Baljit Kaur, AIR 2004 SC 1340.] [See: Principles of Statutory Interpretation by Justice G.P.Singh, 13th Edition] 38. The relevant extract of the Advertisement dated 22.8.2013, order dated 16.9.2013 and clarificatory memo dated 24.8.2013 respectively are reproduced below for the facility of reference:- 2- kS{kf.kd ;ksX;rk %& e0iz0 kklu ds fo|ky;ksa esa dk;Zjr fk{kd ¼mPPk Js.kh fk{kd½ @izËkku ikBd ¼iz/kkuk?;kid½ ek?;fed kkyk @ LFkkuh; fudk; laoXkZ ds v/;kid ftUgs foKkiu fnukad dks U;wure 5 okZ dk kS{kf.kd vuqHko ¼v/;kid ds fy;s v/;kid in ij kS{kf.kd dk;Z djus dk U;wure 5 okZ dk vuqHko ½ vfuok;Z gksxk ,oa ekU;rk izkIr foofo|ky; ls Lrkkud dh mikf/k rFkk fk{kk kkL+«k esa Lukrd ¼ch‐,M½ dh mikf/k tks jkVªh; v/;kid fk{kk ifjkn 49 ls ekU;rk izkIr gksuk pkfg,A 1‐v/;kid laoxZ esa dk;Z vuqHko ds okksZ dh x.kuk vH;FkhZ ds v/;kid laoaxZ esa okLrfod fu;kstu dh frfFk ls dh tk,A pwWfd v/;kid laoaxZ dk xBu fnukad 01‐04‐2007 ls gqvk gS A ,slh fLFkfr esa bl frfFk ds iwoZ ds dk;Z vuqHko dh x.kuk u dh tk,A Þe0iz0ß kklu ds fo|ky;ksa esa dk;Zjr fk{kd ¼mPPk Js.kh fk{kd½ @izËkku ikBd ¼iz/kkuk?;kid½ ek?;fed kkyk @ LFkkuh; fudk; laoXkZ ds v/;kid ftUgs foKkiu fnukad dks U;wure 5 okZ dk kS{kf.kd vuqHko ¼v/;kid ds fy;s v/;kid in ij kS{kf.kd dk;Z djus dk U;wure 5 okZ dk vuqHko ½ vfuok;Z gksxk ,oa ekU;rk izkIr foofo|ky; ls Lrkkud dh mikf/k rFkk fk{kk kkL+«k esa Lukrd ¼ch‐,M½@izkjafHkd fk{kk kkL«k esa i«kksikf/k ¼fMIyksek½ vFkok jkVªh; v/;kid fk{kk ifjkn }kjk ekU;rk izkIr led{k ;ksX;rk A i
Posted on: Mon, 08 Sep 2014 16:29:36 +0000
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