Union of India v. The Central Administrative Tribunal & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 9.1.2008CORAM:THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAOANDTHE HONOURABLE MR.JUSTICE S.R.SINGHARAVELUWrit Petition No.20959 of 20021.Union of India, rep.by its Secretary, Education Department, Pondicherry.2.The Director of Education, Government of Pondicherry, Pondicherry.... Petitioners Vs.1.The Central Administrative Tribunal, rep.by the Registrar, Chennai-104.2.The Physical Education Teachers' Association, rep.by its President G.Xavier, Kamaraj Government Boys School, Muthialpet, Pondicherry.3.V.S.Thiagarajan4.P.Perumal5.S.Balakrishnan6.The Physical Directors and Directress Association rep.by its President, Pondicherry.... RespondentsWrit Petition filed under Article 226 of the Constitution ofIndia, praying to issue a Writ of Certiorari calling for the recordspertaining to the order passed in O.A.No.414 of 1999, dated 7.6.2001on the file of the Central Administrative Tribunal, Madras Bench andquash the same. https://hcservices.ecourts.gov.in/hcservices/ For petitioners: Mr.Syed Mustafa, Govt.Advocate (Pondy)For R.2 : Mr.C.Chinnasamy, Senior Counsel for Mr.E.SampathkumarO R D E RELIPE DHARMA RAO, J.The respondents 3 to 5 are working as Physical Education Teachersin the Schools of Pondicherry and the second respondent is thePhysical Education Teachers Association. There is no disputeregarding the fact that the respondents 3 to 5 were appointed as perthe Government of Pondicherry Education Department Group-C PostsRecruitment Rules, 1978, prescribed as per G.O.Ms.No.59/78-Edn./SO(E), dated 3.6.1978. The qualification prescribed for the post ofPhysical Education Teacher, as per the said Recruitment Rules of 1978is 'SSLC and lower grade certificate in Physical Education' and themode of appointment is by direct recruitment. Thereafter, during theacademic year, 1979-80, Higher Secondary School System was introducedin the Union Territory of Pondicherry and the posts of PhysicalDirector/Physical Directress in the scale of pay of Rs.440-750 werecreated and the Recruitment Rules to the post of PhysicalDirector/Physical Directress were framed vide G.O.Ms.No.11/SO(E)/Edn., dated 8.2.1983. 2. Admittedly, the next avenue for promotion to the PhysicalEducation Teachers is to the post of Physical Director/PhysicalDirectress. Subsequent to the appointment of the respondents, thePhysical Education Teacher Recruitment Rules were amended byG.O.Ms.No.17, dated 14.3.1988. By these amended Recruitment Rules,the educational qualification for the post of Physical EducationTeacher has been changed and prescribed as '(i) a Degree of arecognised University with a Diploma in Physical Education of arecognised institution or (ii) a Degree in Physical Education of arecognised University'. 3. As has already been stated supra, the Government has framedthe Government of Pondicherry Education Department Group-C Posts ofPhysical Director and Physical Directress Recruitment Rules, 1983 byG.O.Ms.No.11/SO(E)/Edn., dated 8.2.1983. According to Clause 6 ofSchedule appended to these Rules, the age-limit for direct recruitswas between 18 and 30 years and according to clause 6, theeducational and other qualifications required for direct recruits isa Degree in Arts or science and B.P.Ed. of a recognised University;or a Degree in Physical Education (three years course) of arecognised University and according to Clause 8, though it was stated https://hcservices.ecourts.gov.in/hcservices/ that the age prescribed for direct recruits will not apply to thepromotees, it was stated that the educational qualificationsprescribed for direct recruits will also apply in the case ofpromotees. That means, if a person is to be promoted from the feedercadre of Physical Education Teacher to that of the promotioncategory of Physical Director/Physical Directress, he must possess adegree in Arts or Science and B.P.Ed. of a recognised University; ora degree in Physical Education (three years course) of a recognisedUniversity. This Clause 8 of the Schedule, requiring even thepromotees to acquire a degree in Arts or Science and B.P.Ed. of arecognised University; or a degree in Physical Education (three yearscourse) of a recognised University, was challenged by the respondents2 to 5 herein before the Tribunal on the ground that prescription ofsuch condition for the promotees is arbitrary since as on the date oftheir appointment, no such condition of acquiring Degree was inexistence and the only qualification for promotion to the post ofPhysical Director/Physical Directress was to put in five years ofservice in the post of Physical Education Teacher and these Rulescannot be given retrospective effect, so as to defeat their interest.4. It is seen from the records placed before us that upto4.9.1981, the scale of pay for the post of Physical Education Teacherwas Rs.425-640 and that of Physical Director/Physical Directress wasRs.440-750 and with effect from 5.9.1981, the scale of pay of thepost of Physical Educational Teacher was enhanced to Rs.440-750 witheffect from 5.9.1981, thus making the scale of pay of the post ofPhysical Education Teacher on par with that of PhysicalDirector/Physical Directress and thereafter, both the posts ofPhysical Educational Teacher and Physical Director/PhysicalDirectress were given the same scales of pay viz. Rs.1400-2600 witheffect from 1.1.1986 and Rs.5000-9000 with effect from 1.1.1996.Though both the posts of Physical Education Teacher and PhysicalDirector/Physical Directress were having the same scale of pay,still, the post of Physical Director/Physical Directress wasconsidered to be the promotional post to the post of PhysicalEducation Teacher and the pay of the persons who were promoted to thepost of Physical Director/Physical Directress from the post ofPhysical Education Teacher was fixed under FR 22(1)(a)(i).5. It is also seen from the materials placed on record that oneA.Ramachandran and seven others, who were working as PhysicalEducation Teachers filed O.A.No.647 of 1994 before the CentralAdministrative Tribunal, Madras Bench seeking for a declaration thatthe post of Physical Education Teacher and the post of PhysicalDirector/Physical Directress were one and the same, which wasdismissed by the Tribunal, by its order dated 5.12.1997, holding thatthe duties and responsibilities of these posts were different, whichwas confirmed by a Division Bench of this Court by the order dated21.7.1998 in W.P.No.6747 of 1998. https://hcservices.ecourts.gov.in/hcservices/

6. Further, one B.Ilangovan and five others working as PhysicalDirectors/Physical Directress in the Education Department, Governmentof Pondicherry filed O.A.No.1074 of 1998 before the CentralAdministrative Tribunal, Madras Bench to direct the Government torevise the scale of pay applicable to the post of PhysicalDirector/Physical Directress to a higher level than that of PhysicalEducation Teacher with effect from 1.8.1983 on the ground that thepost of Physical Director/Physical Directress is a promotional postand it carries higher responsibility than that of the post ofPhysical Education Teacher. The said O.A. was allowed by theTribunal, by its order dated 12.4.2001 and the pay of the post ofPhysical Director/Physical Directress was revised vide G.O.Ms.No.43,dated 16.4.2002 as follows:(a) with effect from 18.8.1983: Rs.550-25-EB-30-900(b) with effect from 1.1.1986: Rs.1640-60-EB-60-2360-EB 60-2600-75-2750-EB-75-2900(c) with effect from 1.1.1996: Rs.6500-200-10500subject to the condition that the Recruitment Rules to the post ofPhysical Director/Physical Directress shall be revised prescribingeducational qualification as Master's Degree in Physical Educationfor both direct recruits and promotees. Accordingly, the RecruitmentRules for the post of Physical Director/Physical Directress wererevised prescribing Master's Degree in Physical Education asessential qualification, which is applicable for direct recruits aswell as promotees, vide G.O.Ms.No.44, dated 16.4.2002.7. Thus, now, there is no dispute that the post of PhysicalDirector/Physical Directress is a promotional post from that of thePhysical Education Teacher, carrying a higher pay scale also. It isalso now a well settled position that the post of PhysicalDirector/Physical Directress carries more responsibilities than thatof the Physical Education Teacher since it is seen that the PhysicalEducation Teacher has to handle students of High School and PhysicalDirector/Directress are to handle students of Higher Secondaryclasses.8. The question that requires for consideration is 'whetherimposition of clause 8, requiring even the promotees to acquire theeducational qualification mentioned therein, so as to get promotionto the post of Physical Director/Physical Directress is sustainable'?9. The Tribunal has answered the question in favour of thepromotees, holding that such condition cannot be imposed on thepromotees since it amounts to giving a Rule a retrospective effect,detrimental to the candidates, who are otherwise eligible forpromotion to the post of Physical Director/Physical Directress.Aggrieved, the Government of Pondicherry has come forward with thiswrit petition. https://hcservices.ecourts.gov.in/hcservices/

10. The writ petitioners submitted that consequent on theimplementation of the order dated 12.4.2001 of the Tribunal inO.A.No.1074 of 1998, the scale of pay of the PhysicalDirector/Physical Directress was revised as Rs.6500-10500 and in viewof the higher responsibilities attached to the post, the Departmentis bound to revise the Recruitment Rules to the post of PhysicalDirector/Physical Directress and therefore, the Department framed theGovernment of Pondicherry Education Department Group 'C' post ofLecturer (Physical Education) Recruitment Rules, 2002, wherein therequisite educational qualification as Master's Degree in PhysicalEducation both for the direct recruits and promotees has beenprescribed superceding the Recruitment Rules to the post of PhysicalDirector/Physical Directress framed vide G.O.Ms.No.11/SO(E)/Edn.,dated 8.2.1983 and therefore, the Physical Education Teachers whohave put in five years of regular service in the grade with Master'sDegree in Physical Education alone can be considered for promotion tothe post of Physical Director/Physical Directress. It is furtherstated that there are 59 Physical Education Teachers, who alreadypossess a Master's Degree in Physical Education, who are eligible tobe considered for promotion to the post of Physical Director/PhysicalDirectress and the officials in the cadre of Physical EducationTeacher, who do not possess the required educational qualification,will be permitted to acquire the required qualification bysanctioning their eligible leave including study leave, as per theireligibility.11. The firm stand of the respondents/promotees, accepted by theTribunal, is that the said imposition cannot be given retrospectiveeffect.12. The Government of Pondicherry would argue that the claim ofthe applicants/promotees has to be rejected even on the ground oflaches, since even though the Rule was in force from the year 1983,they ventured to file the O.A. before the Tribunal only in the year1999. It is also the case of the writ petitioners that to bringquality in the field of education, the National Council for TeacherEducation has prescribed higher standards and would produce a copy ofthe Extraordinary Gazette of India Part-III, Section 4, No.238, dated4.9.2001. 13. No doubt, the recommendations of NCTE, aiming to bringquality in the field of education, are laudable. However, a carefulperusal of these Recommendations, would show that it recommendsprescription of minimum qualifications for recruitment of teachers inschools only that means for direct recruits and it does not recommendany such insistence by the State Governments on the existingincumbents, who were appointed well prior to the amended rules,following the then existing rules. Para No.3 of theserecommendations would show that 'these regulations will haveprospective effect' and the State Governments have been given time https://hcservices.ecourts.gov.in/hcservices/ upto three years for modifying the existing recruitment rules forrecruitment of teachers to bring them in conformity with thequalifications prescribed in the Schedules to the Regulations. It isalso mentioned that 'an enabling provision has been made, videSection 5 of the regulations, empowering the Council, onrecommendation from the State Government to grant relaxation of anyof the provisions to such extent and subject to such conditions asmay be considered necessary.' Therefore, the National Council forTeacher Education (Determination of Minimum Qualifications forRecruitment of Teachers in Schools) Regulations, 2001, on which muchreliance has been placed by the petitioners, came into force from3.9.2001and they will be only prospective in operation that too onlyregarding the new direct recruits. As has already been observedsupra, nowhere these Regulations prescribe that even the teachersworking in the feeder category of posts, shall acquire the newlyprescribed qualifications, so as to become eligible for the promotedcategories, for which new qualifications have been prescribed. 14. The undisputed fact is that at the time of creation of thepost of Physical Director/Physical Directress which was thepromotional category post to the post of Physical Education Teacher,the only condition required to be eligible is to put in a service offive years in the feeder category viz. the post of Physical EducationTeacher. No doubt, the post of Physical Director/Physical Directresscarry more responsibilities, considering which fact alone, by virtueof the orders of the Tribunal and the Division Bench of this Court, ahigher pay scale has been fixed to the post of PhysicalDirector/Physical Directress. At the same time, it is also not indispute that the applicants are serving in the same field ofimparting physical education to the school children for the last 25to 30 years and the new condition prescribing higher educationalqualification to the promotional post of Physical Director/PhysicalDirectress has been brought into existence well after the appointmentof the applicants. There is no doubt that this new rule has beenframed in the year 1988, while the applicants have come forward tochallenge the same only in the year 1999. Therefore, the Governmentof Pondicherry would argue that the claim of the applicants needs tobe rejected on the ground of laches. But, in the considered opinionof this Court, when a legally accrued right has been sought to betaken away, which they would be otherwise eligible, by introducing anew rule and giving a retrospective effect to the same, causingdetriment to the interest of the candidates who are already inservice, rejection of the genuine claim of such candidates merely onthe ground of laches amounts to denial of justice, which should notbe permitted to allow. 15. As has been stated supra, the applicants are in the samefield of imparting physical education to the school children for thelast 25 to 30 years. When a question arose as to whether experiencegained for a considerable length of time itself is a qualification, https://hcservices.ecourts.gov.in/hcservices/ the Honourable Apex Court in B.N.SAXENA vs. NEW DELHI MUNICIPALCOMMITTEE AND OTHERS [(1990) 4 SCC 205], has held that 'experiencegained for a considerable length of time is itself a qualification'.Hence, we have no hesitation to hold that the rich experience gainedby the applicants in the same field of imparting physical educationto the school children for the last 25 to 30 years itself is aqualification, making them eligible and capable to deal with thehigher responsibilities of the promotional post of PhysicalDirector/Physical Directress. It is also to be mentioned that priorto introduction of Higher Secondary School System in the State ofPondicherry, only the Physical Education Teachers are impartingPhysical Education to all the students in the School.16. But, a strenuous argument has been advanced on the part ofthe writ petitioners/Government of Pondicherry that in the field ofeducation, gaining experience itself will not be a qualification,which they are unable to substantiate before us that too in the lightof the undisputed fact that prior to the introduction of HigherSecondary School System in the State of Pondicherry, only thePhysical Education Teachers are imparting physical education to allthe students of the School, irrespective of their class of study.Further more, at the cost of repetition, the applicants are havingrich experience in the same field of imparting physical education tothe school children. Therefore, following the ratio laid down by theHonourable Apex Court, it must be held that such a rich experiencefor a long period of 25 to 30 years of the applicants in the samefield of imparting physical education to the school children itselfis a qualification.17. Admittedly, the new Rule of requiring higher educationalqualification has been introduced only from 1988, and at no stretchof imagination, it could be allowed to have a retrospective effect.18. The learned Government Advocate appearing for thepetitioners/Government of Pondicherry would argue that no employee ofthe State could challenge the power of the Government to amend, alterand bring into force new rules relating to even an existing service.In support of his arguments, the learned Government Advocate wouldrely on the judgment of the Honourable Apex Court in P.U.JOSHI ANDOTHERS vs. ACCOUNTANT GENERAL, AHMEDABAD AND OTHERS [(2003) 2 SCC632]. In the said judgment, the Honourable Apex Court has held:"Questions relating to the constitution, pattern,nomenclature of posts, cadres, categories, theircreation/abolition, prescription of qualifications and otherconditions of service including avenues of promotions andcriteria to be fulfilled for such promotions pertain to thefield of policy is within the exclusive discretion andjurisdiction of the State, subject of course, to thelimitations or restrictions envisaged in the Constitution ofIndia and it is not for the statutory tribunals, at any https://hcservices.ecourts.gov.in/hcservices/ rate, to direct the Government to have a particular methodof recruitment or eligibility criteria or avenues ofpromotion or impose itself by substituting its views forthat of the State. Similarly, it is well open and withinthe competency of the State to change the rules relating toa service and alter or amend and vary byaddition/substraction the qualification, eligibilitycriteria and other conditions of service including avenuesof promotion, from time to time, as the administrativeexigencies may need or necessitate. Likewise, the State byappropriate rules is entitled to amalgamate departments orbifurcate departments into more and constitute differentcategories of posts or cadres by undertaking furtherclassification, bifurcation or amalgamation as well asreconstitute and restructure the pattern andcadres/categories of service, as may be required from timeto time by abolishing the existing cadre/posts and creatingnew cadre/posts. There is no right in any employee of theState to claim that rules governing conditions of hisservice should be forever the same as the one when heentered service for all purposes and except for ensuring orsafeguarding rights or benefits already earned, acquired oraccrued at a particular point of time, a government servanthas no right to challenge the authority of the State toamend, alter and bring into force new rules relating to evenan existing service."19. There is no quarrel with regard to the proposition laid downby the Honourable Apex Court and the powers of the State Governmentto amend the Rules is unquestionable. Even in the case on hand, theapplicants have not challenged the power or authority of the StateGovernment in framing such Rule, but they challenge the Rule since itwas given retrospective effect, detrimental to their already accruedlegal rights. 20. As has already been observed supra, the applicants are in thesame field of imparting physical education to the school children forthe last 25 to 30 years and their avenue for promotion to the nextcadre has been taken away by giving retrospective effect to the rule,causing much prejudice to the accrued rights of the applicants.Therefore, considering the length of service put in by the applicantsand the fact that the impugned Rule is sought to be given aretrospective effect, we consider it appropriate to quash theimpugned Rule, to the extent of giving a retrospective effect,causing prejudice to the applicants and depriving their promotionalavenues. https://hcservices.ecourts.gov.in/hcservices/ With this, this Writ Petition stands disposed of. No costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.RaoTo1. The Registrar, The Central Administrative Tribunal,Chennai-104.2 The Secretary to Union of India,Education Department, Pondicherry.3. The Director of Education,Govt. of Pondicherry, Pondicherry.+ 1 CC to the Sr. Government Pleader cum Senior Public Prosecutor forPondicherry, SR NO 1803 W.P.No.20959 of 2002ku[co]gp/24.1.