Chandigarh Polytechnic Teachers v. Union Territory Chandigarh

I have heard counsel for the parties and have gone through the records of the case. Central Polytechnic Chandigarh (Group B) Post Recruitment Rules, 1995 as notified on 16.3.1995 (Annexure P-1) governs the appointment to the post of Foreman Instructor. As per Rule 2, these rules apply to the post specified in Column No.1 of the Schedule annexed with the Rules. Column 8 provides for the educational and other qualifications required for direct recruitment, column No.11 and 12 provide for method of recruitment and column 14 provides for circumstances in which UPSC is to be consulted while making recruitment (Annexure P-1). The relevant columns of the Schedule as have been referred to above are reproduced herein-below: C.W.P.No.10698 of 2007 -6- Name of Post Educational & other qualifications reqd. for direct recruits Method of Rectt. Whether by direct Rectt. Or by promotion or by deputation/transfer & % of the vacancy to be filled by various methods Circumstances in which UPSC to be consulted in making Rectt.

In case of Rectt. By promotion/deputat ion/transfer Grades from promotion/deputat ion/transfer to be 1 LECTURE R ETC. Lecturer/For eman- Instructor/W orkshop Suptd. a) Civil 6 b) Elect. 3 c) Mech. 4 d) Prod.2 e) Arch. 4 f) Phys. 1 g) Chem.1 h) Maths 1 i) W/S 1 Supdt. j) Foreman 1 Instr. 8 11 12 14 Consultation with UPSC necessary Essential: Decree in the concerned subject Engineering/Technolo gy from a recognized University or equivalent. OR Master's degree in the concerned subject from a recognized University or equivalent (For Science/Humanitie/C ommerce/Managemen t). NOTE: The concerned subject will be indicated at the time of recruitment. NOTE: 1 Qualifications are relaxable at the discretion of the UPSC in case of candidates otherwise well qualified. Direct Recruitment N.A. subject Note: The regular incumbents of the posts of Lecturer in the scale of pay of Rs.2130-3700 with 2 years regular service in & Demonstrator/Drg.

Instructors/Jr. Lecturer/Studio Asstt. In the scale of pay of Rs.1650-2925 with 7 Yrs. Regular service in the grade possessing a degree Engg./Technology concerned Engg./Master's Degree in the concerned Science/Humanities/Commerc e/Management assessed by the Commission for appointment to the post of Lecturer in the scale of pay of (GP.B. Rs.2200-4000 Gazetted). If assessed suitable, they shall be deemed to have been appointed to the post at the initial constitution. If assessed not suitable. His/her case will be reviewed every year. subject Rule 6 provides for the powers to relax which reads as follows:

6. Power to relax- Where the Administrator, Union Territory, Chandigarh is of the opinion that it is necessary or expedient to do, it may, by order, for reasons to be recorded in writing, and in consultation with the Union Public Service Commission, relax any of the provisions of these rules in respect of any class or category or persons.

Respondents No.3 and 4 admittedly do not possess the qualifications as mandated under the statutory rules governing the service.

C.W.P.No.10698 of 2007 -7- It is also not disputed that the UPSC was not consulted by the Chandigarh Administration before relaxation of the qualifications for adjusting the private respondents as Foreman Instructors nor was the ex-post facto consultation and approval sought or granted by the UPSC. As per the decision dated 19.9.1995 taken by the Chandigarh Administration that since the officials who were working in Central Polytechnic, Chandigarh did not fulfill the required qualification nor possess sufficient teaching experience, they would be allowed to draw their salary in their existing pay-scale against the post of Lecturers and would only be considered for adjustment in the scale of Rs.2200-4000 while they acquire the educational qualification as per notified recruitment Rules alternatively after completing 12 years of experience. In case the incumbents failed to acquire the educational qualifications, the matter was to be referred to the UPSC for giving one time relaxation in educational qualification on completion of experience of 12 years.

Thus, it is clear that not only the statutory rules provide for consultation with the Union Public Service Commission in case of relaxation of the qualifications but even the decision of the Chandigarh Administration dated 19.9.1995 mandates required reference to the UPSC for giving one time relaxation in educational qualification, which has not been done by respondents No.1 and 2. Even if the contention as has been submitted by the counsel for respondents No.1 and 2 is accepted that the relaxation in qualifications would be deemed to have been granted by the Advisor to the Administrator when he approved the proceedings of the DPC, the consultation with the Union Public Service Commission was mandated as per the statutory rules and the decision of the Chandigarh Administration dated 19.9.1995 which in the present case has not been C.W.P.No.10698 of 2007 -8- done. The decision of the Government of India dated 21.5.1995 (Annexure A-4) identifying the areas for which the consultancy with the UPSC could be dispensed with would not be ipso facto applicable to the Union Territory of Chandigarh nor would the Notification dated 21.5.1999 (Annexure A-5) be applicable as the same relates to persons serving in the Indian Audit and Accounts Department.

This annexure is Notification of Statutory Rules called the Central Civil Services and Civil Posts (Consultation with Union Public Service Commission) Rules, 1999. As per Rule 2, these Rules shall apply to all Central Civil Services and Civil posts under the Union. It has neither been pleaded by respondents No.1 and 2 nor has any document been placed on record to show or suggest that the same was accepted or adopted by the Chandigarh Administration. Mere issuance of the Notification would not ipso facto make it applicable to the posts which are other than civil posts under the Union. Admittedly, the post of Foreman Instructors is not a civil post under the Union and, therefore, the said Notification would not be applicable to the case in hand. Since consultation with the UPSC is mandated for recruitment and relaxation of qualifications under the 1995 Rules and even as per the decision dated 19.9.1995, the adjustment of respondents No.3 and 4 on the posts of Foreman Instructors vide order dated

22.8.2006 (Annexure P-2) cannot be sustained as they do not possess the qualification prescribed under the statutory rules governing the service. That apart, the method of recruitment as provided in column 11 of the Schedule to 1995 Rules for filling up the posts of Foreman Instructors is direct recruitment only and as per column 12 which provides for other methods of recruitment such as promotion, deputation, transfer etc., it has been mentioned to be not applicable to the post of Foreman C.W.P.No.10698 of 2007 -9- Instructors. The filling up of the posts, thus, by way of adjustment by the impugned order also cannot be sustained. Power of relaxation as provided under Rule 6 of the 1995 Rules cannot be exercised in such a manner as to amend the Rules or to delete or add thereto. Even if the contention of the counsel for respondents No.1 and 2 with regard to giving effect to and implementation of the Madan Committee recommendation is taken to be the ground for adjustment of respondents No.3 and 4, a perusal of the recommendation of the Madan Committee report (Annexure R-1/1) would show that the transitory provision has been provided in para 3 of the minutes of the meeting which reads as follows:- “3) Transitory Provision The Committee noted that by designating lectures in the lowest formation in the teaching category, several practical problems are bound to arise, in view of the fact that at present a large number of people are in position in various institutions who are designated as assistant lecturers, demonstrators, senior and junior instructors etc.

In this connection, the Committee noted that the full implementation of its recommendations as a measure desire to improve the quality and salaries in technical institutions might take a period of time. However, the main objectives should be to implement these recommendations in full by the end of the Fifth Plan. It should be possible during this interim period of make necessary arrangements to absorb the existing teachers C.W.P.No.10698 of 2007 -10- below the level of lecturers. Some of them who already fulfill the minimum qualifications for the post of a lecturer could be adjusted against the new posts of lecturers created by the implementation of these recommendations while those who do not fulfill these qualifications could be given adequate opportunities to improve their qualifications. The Committee however emphasized that in no case should any relaxation be made in the minimum qualifications for the post of lecturer merely to provide for the absorption of these categories of teachers.

The Committee also felt that the fulfillment of the minimum qualifications should be made an essential condition for promotion to senior positions from the post of lecturer and above and it should not be automatic on the revision of staff structure. The Committee also recommended that in so far Government Institutions are concerned, the State Governments in consultation with their Public Service Commission should workout a way to consider the cases of existing staff members for promotion to various posts after they have fulfilled the minimum qualifications prescribed for the purpose.” A perusal of the above would show that the exception with regard to non-fulfillment of the qualifications for the post of Lecturer, if any, was not encouraged by the Committee. The Committee also recommended consultation with the Public Service Commission. In C.W.P.No.10698 of 2007 -11- any case, the relaxation in the qualification was for the incumbents holding the posts at that moment.

It would not be out of way to mention here that the decision to accept the recommendation of the Madan Committee (Annexure R-1/1) and to implement the same was taken by respondent No.1 on 16.2.1995 (Annexure R-1/2) with effect from 1.3.1995 and also abolished the posts of Workshop Instructors existing in Chandigarh College of Engineering and Technology, Sector 26, Chandigarh-respondent No.2 whereas strangely, respondent No.3 was appointed as Workshop Instructor on 19.9.1995 while respondent No.4 was appointed as Boiler In-charge with respondent No.2 and had been performing the duties since 8.3.1996. A perusal of the Note of the DPC meeting and Clarifications by the Department to the DPC (Annexure R1/5) and DPC meetings and proceedings (Annexure R-1/6) would show that the adjustment of respondent No.3 Karnail Singh as Foreman Instructor was shown to have been made against a post which had fallen vacant with effect from

2.10.2003 when the services of Sh.Amarjit Singh, Foreman Instructor, were terminated by respondent No.1 vide order dated 1.10.2003 and respondent No.4 Sarvjit Singh was shown to have been adjusted against a vacant post of Foreman Instructor which had fallen vacant with effect from

1.10.2005 on account of retirement of Sh.S.S.Lamba, on 3.9.2005. This finds mention in Annexure R-1/6 i.e. minutes of the meeting of the DPC held on 21.6.2006. It would not be out of way to mention here that the Committee had recommended that the case of Karnail Singh and Sarvjit Singh, respondents No.3 and 4 respectively, be referred to UPSC for giving one time relaxation in educational qualification. This shows that no decision had been taken by the Chandigarh Administration nor had it C.W.P.No.10698 of 2007 -12- adopted the decision of the Government of India dated 21.5.1999 (Annexure A-4) and the Notification dated 21.5.1999 (Annexure A-5) and it is merely an afterthought on the part of the respondents that they have pressed these documents into service to justify non-reference of the cases of respondents No.3 and 4 to the UPSC for consultation as mandated by the Statutory Rules and decision dated 19.9.1995, Clarifications as sought by DPC (Annexure R-1/5) and the DPC meetings and recommendations dated 21.6.2006 ( Annexure R-1/6).

It is, thus, apparent that the recommendations of the Madan Committee as accepted with effect from 1.3.1995 by respondent No.1 vide decision dated 19.2.1995 (Annexure R-1/2) would not be applicable to the case of respondents No.3 and 4 as they were not incumbents on the date of acceptance of the report of the Madan Committee by the Chandigarh Administration. Further, respondent No.4 Sarvjit Singh was working on the post of Boiler In-charge, which post does not find mention in the Madan Committee report and this fact finds mention in Annexure R- 1/5. It had also been mentioned there that all available posts were upgraded as per the recommendation of the Madan Committee and 23 officers were adjusted in relaxation of the recruitment rules/instructions. When the incumbents who were working with respondent No.2 at the time of acceptance of recommendation of the Madan Committee stood already absorbed by granting relaxation of the Rules while implementing the Madan Committee report, respondents No.3 and 4 could not have been considered for appointment as Foreman Instructors.