Jiwan Lal Tandiyal vs Sainik Schools Society and Others

A.M. Khanwilkar, C.J.—Heard counsel for the parties. Both these matters can be disposed of by this common order, as the issues are overlapping. The LPA arises out of the judgment of the learned Single Judge of this Court dated 8th May, 2012 in CWP No. 11127 of 2011. That writ petition was filed by the petitioner challenging the action of respondent Management in not promoting the petitioner to the post of Master (Maths). The learned Single Judge partly allowed the said writ petition. The relevant observation of the learned Single Judge, which is subject matter of the LPA, can be discerned from Paragraphs-27 and 28 of the impugned decision. The same reads thus:-

Consequently, the respondents are directed to consider the case of the petitioner for promotion subject to his "suitability" and on "merit". The DPC shall be at liberty to adopt the course of a written test with prior notice to the petitioner notifying the syllabus for such a test ad fixing a bench mark to qualify in written test or any other mode known to law to assess the merit of the petitioner for the post of Master (Maths).

The above process shall be completed by the respondents within a period of one month from today. Till then the interim arrangement as per order dated 11.1.2012 by the Principal Division Bench shall continue. With these directions the petition stands disposed of, so also the pending applications, if any.

It is not in dispute that pursuant to the abovesaid directions, given by learned Single Judge, the respondent Management invited the writ petitioner to appear before the DPC for consideration for promotion, subject to his suitability and merit. The petitioner did not respond to the said invitation. As a result, the respondent Management had no other option but to advertise the post, to be filled in by direct recruitment, which is permissible under Rule 5.26 of the extant Rules. Immediately after issuance of such advertisement, the petitioner has approached this Court by way of second writ petition i.e. CWP No. 5926 of 2012 challenging the method of recruitment resorted to by the respondent Management in appointment to the post of Master (Maths). During the pendency of this writ petition, in terms of interim order, passed by this Court, the petitioner appeared and participated in the selection process commenced pursuant to the impugned advertisement dated 26.6.2012 without prejudice to his contentions in the pending appeal before this Court. It now transpires that in the written test, conducted pursuant to the impugned advertisement, the petitioner has secured only 26 marks out of 100 marks and, therefore, has been treated as unfit for the post of Master (Maths).

Ordinarily, in view of the performance of the petitioner in the written test, which has now come on record, the challenge to the impugned advertisement, at the instance of the petitioner, cannot be countenanced. However, since the petitioner has also filed LPA, challenging the directions given by the learned Single Judge, which are reproduced in the earlier part of this order, we are required to consider the said challenge on its own merits.

The argument of the petitioner, is that, since the appointment was to be on promotion, requiring the petitioner to appear in the written test is unknown to the service jurisprudence. This argument, in our opinion, is justly repelled by the counsel for the respondents by relying on Rule 7.2. The validity of the said Rule is not put in issue by the petitioner. As aforesaid, it is not in dispute that Rule 5.26 permits recruitment to the post of Master (Maths) in the School by direct recruitment in case suitable, qualified and experienced person, already employed in the school, is not available. Rule 7.2, however, makes it amply clear that the promotion of the person, already in employment in the school, must be subject to merit; and suitability of the candidate and fulfillment of prescribed qualifications. Rule 7.2 reads thus:-

7.2 Promotion shall be made on merit, subject to suitability of the candidates and fulfillment of prescribed qualifications.

The emphasis in this Rule is on the "merit". Suitability and fulfillment of qualification of the candidate would be relevant only if the candidate is meritorious and, therefore, entitled to be promoted. It is not a rule of simplicitor evaluation of the suitability of the candidate and looking at the prescribed qualification possessed by him. The criteria for determining the merit includes requiring the candidate to appear in the written test or interview (viva voce). The modality of evaluation of merit is the prerogative of the DPC while taking the selection process forward.

In the context of the grievance of the petitioner, this Court called upon the respondents to disclose whether other schools, run by the respondent Management across the country, also follow the norm of written test to determine the merit of the in service candidate. The respondents have filed affidavit, sworn by Rabindra Prasad, Honorary Secretary of Sainik School Society, which reads thus:-

In view of the above, it is intimated that relevant provisions of SSSR & R are being followed in regard to composition of DPC and procedures. Promotions are made on merit, subject to suitability of the candidates and fulfillment of prescribed qualifications. While conducting DPC, it is ensured that the candidate actually deserves to be promoted. The composition of the interview Board/DPC is so designed that the members are best judge on the subject since technical expert and nominee of Director Higher Education are independent members and they are from the field of education. Further, every appointment/promotion is ratified by Local Board of Administration of each school.

In all Sainik Schools, Departmental Promotion Committee follows the provisions of Rules 5.05, 5.06, 5.26, 5.27 and 7.02 of Sainik Schools Society Rules and Regulations, 1997. To ascertain suitability, Departmental Promotion Committee (DPC) devises its own methodology. Accordingly Sainik Schools do conduct written test to ascertain the professional knowledge and the merit of the feeder category Trained Graduate Teacher (TGT) candidates for promotions pertaining to the post of Post Graduate Teacher (PGT) in cases such methodology devised by the DPC. To fill-up authorized post which has fallen vacant for promotions from TGT to PGT, Sainik School, Ghorakhal (Uttrakhand) and Sainik School, Kodagu (Karnataka) have recently conducted written test. Therefore, conduct of DPC for the post of PGT (Maths) at Sainik School, Sujanpur Tira is neither unprecedented nor arbitrary.

The position, so stated, has not been controverted by the petitioner. Suffice it to observe that Rule 7.2 is wide enough to permit the DPC to require in-service candidate to be considered for the appointment on the post of Master (Maths) on promotion, to appear in the written examination or interview. That is the prerogative of the DPC. We are not impressed by the argument that the DPC has been given unguided powers in that behalf.

Counsel for the petitioner has placed reliance on the decision of the Apex Court in the case of Valsala Kumari Devi M. Vs. Director, Higher Secondary Education and Others, in particular, on the exposition in Paragraphs-17 and 20. In that case, the Apex Court was considering the provisions contained in the order which stated that the consideration would be on the basis of seniority and suitability of the candidate. The Court went on to observe that once the requirement of the prescribed qualification is satisfied, selection must be made on the basis of seniority and suitability and there is no scope for making comparison of qualification or comparative assessment of suitability. The Court further observed that the expression ''suitability'' means that the person to be appointed shall be legally eligible and ''eligible'' should be taken to mean fit to be chosen.

In the present case, the Rule in question i.e. Rule 7.2, does not limit the consideration of the issue of suitability of the candidate and his qualification but opens in unmistakable terms with the expression that the promotion shall be made on merit. That is the guiding factor to be observed by the DPC while selecting the candidate for the purpose of direct recruitment or promotion of the in-service candidate, as the case may be.

In our opinion, the challenge to the direction, given by the learned Single Judge to the respondents, to conduct fresh DPC for assessing the petitioner does not require any interference. The petitioner, having failed to avail of that option, cannot be heard to complain about the justness of the action of the respondents in inviting applications from public by issuing public advertisement. As aforesaid, the petitioner has secured only 26 marks out of 100 marks in the given subject which itself is good reason to reject the writ petition. Accordingly, both the proceedings fail and the same are dismissed.

With the dismissal of the appeal as well as the writ petition, interim order stands vacated forthwith.