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SATYEN VAIDYA, J. –

Aggrieved against the unequal allocation of quota allotted to the Principals having been promoted from the cadre of Head Masters vis-a-vis those promoted from the cadre of Lecturers, for placement to the post of Deputy Director of Education (Schools and Plus Two) vide Recruitment and Promotion Rules, 1992 and as amended vide notification dated 14.09.2005, the petitioners have approached this Court for grant of following substantive reliefs:-

“i. That appropriate writ order of direction may very kindly be issued and the Recruitment and Promotion Rules of the post of Deputy Director as contained in Annexures P-2 and P-3 being completely illogical, illegal and arbitrary may very kindly be ordered to be quashed and set aside, in the interest of law and justice.

ii. That appropriate writ order or direction may very kindly be issued directing the respondent to frame the fresh Recruitment and Promotion Rules for the post of Deputy Director by further directing the respondent to make the post of Deputy Director a promotional post by granting the financial benefits of promotions as are available, in the interest of law and justice.

iii. That appropriate writ order or direction may very kindly be issued and the respondent may very kindly be directed to frame an integrated seniority list of the post of Principal and the separate seniority list of the Principal belonging to the cadre of Lecturers and cadre of Headmasters may very kindly be made inoperative, in the interest of law and justice.

iv. That appropriate writ order or direction may very kindly be issued directing the respondent to make promotions to the post of Deputy Director strictly on the basis of the seniority from the post of Principal by counting their seniority from the date of their promotion as Principal, in the interest of law and justice.”

2. The post of Deputy Director in the Department of Education, Government of Himachal Pradesh is filled by placement from the post of Principal.

3. The post of Principal is a promotional post having two separate feeder categories i.e. Headmasters and Lecturers. The Recruitment and Promotion Rules for the post of Principal provide 50% quota for promotion to the post of Principal from the cadre of Headmasters and 50% from the cadre of Lecturers.

4. The Recruitment and Promotion Rules for the post of Lecturers provide for 50% posts to be filled by direct recruitment and remaining 50% by promotion from the cadre of Trained Graduate Teachers (TGTs).

5. The impugned Recruitment and Promotion Rules for the post of Deputy Director provide for 60% quota to the Principals promoted from the cadre of Headmasters and 40% to the Principals promoted from the cadre of Lecturers for being placed as Deputy Directors. Petitioners are the Principals promoted from the cadre of Lecturers. Their grievance is that the provision of 60% quota to the Principals promoted from the cadre of Headmasters for placement to the post of Deputy Director violates Articles 14 and 16 of the Constitution. According to the petitioners, there is no rational in cutting down the quota of Principals promoted from the cadre of Lecturers to 40%. The framing of Recruitment and Promotion Rules to the post of Deputy Direction, Education to the above extent have been alleged to be arbitrary and discriminatory.

6. The petitioners have contended that by making an unreasonable classification, by way of impugned Recruitment and Promotion Rules, the State has in fact denuded the chances of the Principals promoted from the cadre of lecturers for further progress in career as the next promotional post after Deputy Director is that of Joint Director.

7. On the other hand, the respondent-State has tried to justify its stand by asserting that the incumbents are promoted to the post of Headmaster after serving for long years as TGT and in such background the persons appointed as lecturer is at a beneficial position, who gets promotion to the post of Principal after rendering lesser years of service than the one rendered by others as TGT and Headmaster.

8. Respondents No. 2 to 6 were impleaded as respondents on their application vide order dated 02.11.2023. They have not filed any separate reply.

9. We have heard learned counsel for the parties and have also gone through the entire record carefully.

10. Notwithstanding the fact that the promotional post of Principal has two separate feeder categories of Headmasters and Lecturers, undisputably, there is one single cadre of Principals in the department of Education (School and Plus Two).

11. The question that arises for determination is whether the unequal quota provided to the Principals promoted from the cadre of Lecturers and Principals promoted from the cadre of Headmasters for further placement to the post of Deputy Director satisfies the rule of reasonable classification?

12. For the above purpose, it is to be seen if there is an intelligible defferentia between two separate classified groups and if there exists a nexus between defferentia and the object sought to be achieved.

13. Since, the Principals, whether promoted from the Lecturers or Headmasters, constitute a single common cadre, the allotment of unequal quota to these categories for further placement to the post of Deputy Director deserve to be declared as arbitrary, discriminatory and violative of Articles 14 & 16 of the Constitution, on the principle that so long as the Principals are part of the same cadre, their birth marks, based on how they joined the cadre is not relevant. To support this view, there is a long line of decisions rendered by the Hon’ble Supreme Court.

14. In Roshan Lal Tandon and Anr. vs. Union of India and others, AIR 1967 SC 1889, the Hon’ble Supreme Court has observed as under:

“5. ………...In our opinion, the constitutional objection taken by the petitioner to this part of the notification is well founded and must be accepted as correct. At the time when the petitioner and the direct recruits were appointed to Grade ‘D’, there was one class in Grade ‘D’ formed of direct recruits and the promotees from the grade of artisans. The recruits from both the sources of Grade ‘D’ were integrated into one class and no discrimination could thereafter be made in favour of recruits from one source as against the recruits from the other source in the matter of promotion to Grade ‘C’. To put it differently, once the direct recruits and promotees were absorbed in one cadre, they form one class and they cannot be discriminated fro the purse of further promotion to the higher Grade ‘C’…...”

15. In the same context, it will be relevant to notice the following extract from the Constitutional Bench judgment of Hon’ble Supreme Court in Col. A.S. Iyer and others v. Balasubramanyam and others, 1980(1) SCC 634:-

“45. Let us eye the issue from the egalitarian angle of Articles 14 and 16. It is trite law that equals shall be treated as equals and, in its application to public service, this simply means that once several persons have become members of one service they stand as equals and cannot, thereafter, be invidiously differentiated for purposes of salary, seniority, promotion or otherwise, based on the source of recruitment or other adventitious factor. Birth- marks of public servants are obliterated on entry into a common pool and our country does not believe in official casteism or blue blood as assuring preferential treatment in the future career. The basic assumption for the application of this principle is that the various members or groups of recruits have fused into or integrated as one common service. Merely because the sources of recruitment are different, there cannot be apartheidisation within the common service.”

16. In Union of India and others vs. Atul Shukla and others, (2014) 10 SCC 432 same principle has been reiterated with approval in following terms:-

“24. The Tribunal has rejected both the reasons aforementioned and, in our opinion, rightly so. Classification of employees based on the method of their recruitment has long since been declared impermissible by this Court. There can be no differential treatment between an employee directly recruited vis-a-vis another who is promoted. So long as the two employees are a part of the same cadre, they cannot be treated differently either for purposes of pay and allowances or other conditions of service, including the age of superannuation. Take for instance, a directly recruited District Judge, vis-a-vis a promotee. There is no question of their age of superannuation being different only because one is a direct recruit while the other is a promotee. So also an IAS Officer recruited directly cannot for purposes of age of superannuation be classified differently from others who join the cadre by promotion from the State services. The underlying principle is that so long as the officers are a part of the cadre, their birth marks, based on how they joined the cadre is not relevant. They must be treated equal in all respects salary, other benefits and the age of superannuation included.”

17. Thus, following the above principle, we have no hesitation to hold that the Recruitment and Promotion Rules to the post of Deputy Director in the Department of Education, Annexures P-2 and P-3 to the extent of providing unequal quota to the Principals promoted from the cadre of lecturers and Principals promoted from the cadre of Headmasters is in clear violation of the principle laid down as noticed above and hence such classification cannot be termed to be reasonable and is thus violative of Articles 14 and 16 of the Constitution.

18. In addition to above, the Hon’ble Supreme Court had occasion to deal with an identical proposition in the matter titled as Sunita Sharma and others vs. State of H.P. and others, reported in 1993 Supp. (4) SCC 686. In that case also the question as to the validity of maintenance of different seniority list for the persons in one cadre on the basis of birth mark had been answered in following terms:-

“7. The promotion to the post of Deputy Director of Education is governed by rules which were framed on 31.12.1976 ['1976 Rules'). Rule 11 thereof, provides that promotion to the said post of Deputy Director would be made from among the Class II officers of School and Inspection Cadre having a common seniority list of the said Cases and with five years service as such Class II officer. The 1976 Rules, therefore, require that there should be a common seniority list of Class II officers viz., Principal/DEO/Asstt. Director. This, in turn, means that after promotion to the Class II Officers' posts from the feeder categories of the headmasters and school lecturers, their separate seniority list was to be disregarded and a common seniority list on the basis of their dates of appointment to the Class II posts had to be prepared. It does not appear that any such common seniority list was prepared. After 1980 Rules were made, the Suite on the representation either from the headmasters or from the school lecturers, resorted to an unwarranted practice of entering into ad hoc agreements with the concerned employees. During the process of arriving at these agreements from time to time [the agreements were entered into at various times between 1984 and 1990), the original two posts of Deputy Director as mentioned in 1960 Rules increased to nine, and it appears that the agreement was that four of the said posts were to be exclusively kept for the school lecturers and five for the headmasters. However, when the question of promotion to the further higher post of Joint Director arose, there was a stalemate since there was only one post of the Joint Director. It was given exclusively to the Deputy Directors who came from the category of the headmasters. This resulted in the inevitable dispute, the Government maintaining that the said post could be given only to the headmasters. We have not understood the arguments advanced on behalf of the State Government in that behalf. In fact, there could exist no separate seniority lists of the headmasters and the school lecturers as such, once they were promoted to the Class II posts of Principal/DEO/Asstt. Director of Education. There could only be a common seniority list of the said Class II employees and of the Deputy Directors who could be promoted from the seniority list of Class II officers on the basis of the recruitment Rules of 1976. As pointed out earlier, the Rules of 1976 themselves envisage a common seniority list of Class II officers, viz., Principal/DEO/Asstt. Director. We have, therefore, no hesitation in setting aside all the agreements entered into by the State Government with the employees after the 1980 Rules were framed, which rules were admittedly made under Article 309 of the Constitution. The State Government could not have entered into the said agreements in contravention of the said Rules. The present stalemate has arisen on account of the said agreements. Had the State Government followed the 1980 Rules, there would have been no occasion for raising the present dispute. The only remedy, therefore, is to direct the State Government to enforce the 1980 Rules from the date they came into operation and work out the promotions based on the said Rules and also the 1976 Rules, as if no agreements were entered into and they did not in fact exist. The 1980 Rules are of course to be enforced till the Rules of 1992 were framed to replace them.”

19. Despite above clear exposition by the Hon’ble Supreme Court in Sunita Sharma’s case (supra), the State Government had ventured to incorporate the impugned amendments in the R & P Rules for the post of Deputy Director Education and for such reason also the impugned Rules cannot be sustained and are to be declared bad in law.

20. In result, the petition is allowed and Rule 11 of the Recruitment and Promotion Rules for the post of Deputy Director Education (Schools and Plus Two), 2005 as amended vide notification dated 14.09.2005 prescribing quota of 60 % and 40% for Principals having been promoted from Headmasters and Lecturers respectively is held to be violative of Articles 14 and 16 of the Constitution and consequently is quashed to that extent. The respondent-State is directed to frame a common seniority list of Principals on the basis of date of their induction in the cadre and further to consider the candidature of incumbents for placement to the post of Deputy Director on such basis only.

21. Accordingly, the instant petition is disposed of in above terms. Pending applications, if any, also stand disposed of.

Petition allowed.

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