Satya Narain Shankhla and Others vs Board of Secondary Education and Others

M.N. Bhandari, J.—1. By this writ petition, a challenge is made to the order dated 1st October, 2014 passed by the Deputy Secretary, Department of Education, State of Rajasthan.

Learned counsel for petitioners submits that this case has a chequered history thus needs to be explained for proper consideration of the issue. It is submitted that petitioners were appointed on the post of Jr. Stenographer from time to time starting from the year 1984 and last appointment of Dhirendra Sharma is in the year 1997. They were governed by the Board of Secondary Education Rajasthan Employees Service Regulations 1972 (in short "the Regulations of 1972"). As per regulations, Stenographers were having avenue of promotion upto the post of Director and their hierarchy of promotion has been narrated in the writ petition. A Junior Stenographer was eligible for promotion to the post of Stenographer followed by promotion on the post of Senior Stenographer/P.A. He/she was then eligible for promotion to the post of Personal Secretary and alternatively Assistant Director and then Deputy Director and lastly on the post of Director. For promotion to the post of Director, one was required to give option for the post of Assistant Director and if one opts for the post of Personal Secretary then not entitled to go upto the post of Director. All the petitioners were appointed under the Regulations of 1972, thus are entitled for their promotion as per avenue then existing. The promotion was not given and in the meanwhile, the Board of Secondary Education, Rajasthan Employees Service Regulations, 2004 (in short "the Regulations of 2004") were brought providing different avenue of promotion thus a dispute arose as to whether existing employees working on the post of Stenographer are entitled for promotion as per avenue available under the Regulations of 1972. The Board took a decision to allow promotion to the Stenographer as per avenue existing earlier. It was vide their resolution dated 25th August, 2008. The resolution however could not be carried out as it was stayed by the Secretary under the direction of the Chairman. A challenge to the order passed by the Secretary was made by filing a writ petition bearing No. 10660/2008. This court granted interim order against the order passed by the Secretary. The Board thereupon made promotion as per hierarchy of promotion existing under the Regulations of 1972. It was vide order dated 21st December, 2010. It was however made subject to final outcome of the writ petition. The promotion was against the vacancy year of 2008-09, 2009-10 and 2010-11. Subsequent to the promotion of the petitioners, no dispute remain but at the instance of a Union of Scheduled Caste and Scheduled Tribe Candidates, impugned order was passed by none else but by the Deputy Secretary, Education Department, Government of Rajasthan. It was even in ignorance of the earlier decision of the Board. A decision was taken by the Board to keep three posts of Assistant Director/Personal Secretary reserved for Stenographers. In pursuance to the subsequent resolution, an order was passed thereupon on 22nd January, 2013. There was no occasion for the Deputy Secretary, Education Department, Government of Rajasthan to issue impugned letter. The new issue raised was pertaining to denial of reservation to the SC and ST candidates. A direction was given to hold review DPC as per the Regulations of 2004. It was without considering the fact that subsequent to the Regulations of 2004, the option was to be taken from the existing employees, whether to be governed by the Regulations of 1972 or by the Regulations of 2004. In any case, some of the petitioners were given promotion vide order dated 12th February, 2013. In the background aforesaid, a direction of review DPC in accordance with the Regulations of 2004 is illegal. Once the Board has passed resolution on 25th August, 2008 followed by another resolution taking a decision to provide three posts of Assistant Director/Personal Secretary to the Stenographer cadre, then a direction to hold review DPC goes contrary to resolution of the Board. In view of above, impugned order deserves to be quashed.

Per contra, learned counsel appearing for the respondents submit that impugned order is nothing but a direction to act as per Regulations of 2004. The said order has been passed by the Deputy Secretary, Education Department, Government of Rajasthan by exercising powers under Section 28 of the Secondary Education Act, 1957 (in short "the Act of 1957"). The exercise of powers was in the background that in violation of the Regulations of 2004, promotion was made from time to time. If promotion was made in pursuance to the resolution of the Board then also it is contrary to the Regulations of 2004, thus, should not have been carried out. In the background aforesaid and taking overall facts into consideration, the Government is directed to hold review DPC.

Learned counsel for respondents have made clarification about the regulations applicable from time to time. It is submitted that Regulations of 1972 were repealed by the Regulations of 2004. After repeal and without a provision to seek option for application of the earlier regulations, the decision of the Board becomes illegal being contrary to law. A repealed provision cannot have effect unless saved specifically. In view of above, resolution dated 25th August, 2008 was in violation of the Regulations. It is moreso when no amendment in the Regulations of 2004 was made so as to provide avenue of promotion as was existing under the Regulations of 197 Under the Regulations of 2004, different avenue of promotion has been provided for the post of Stenographer. The avenue of promotion between two cadres has been separated. The promotion thus needs to be made as per avenue of promotion provided under the Regulations of 2004. It is moreso when all the vacancies on which promotions have been given arose subsequent to the Regulations of 2004. The subsequent resolution of the Board to keep three posts of Assistant Director/Personal Secretary reserved for the Stenographer was also not in consonance to the Regulations of 2004 rather it was in violation, as it was without amendment. The promotion of few petitioners was made contrary to the avenue of promotion available to them under the Regulations of 2004. In the light of the aforesaid, review DPC is directed so as to make promotion in accordance with the Regulations of 2004.

The argument of the learned counsel that by virtue of the Board resolution dated 25th August, 2008 or subsequent resolution passed in January, 2013, amendment was made but I find no resolution for amendment in the Regulation. It thus remains to be nothing but accommodation of few employees in violation of the Regulations of 2004. In one of the resolution, one Kamal Kishore was extended benefit at the instance of the then Chairman by applying repealed regulations and position of fact is similar in the subsequent resolutions also. In absence of amendment in the Regulations, the petitioners were not entitled for promotion in the hierarchy meant for Ministerial Staff.

In the impugned order, direction is nothing but to hold review DPC for promotion as per Regulations of 2004. In absence of amendment in the regulations, the Board was not having powers to pass resolution to accommodate one or two persons working on the post of Stenographer or to reserve three posts for Stenographers for promotion to the post of Assistant Director/Personal Secretary.

It is however true that impugned order has been passed on the representation made by the Union of SC and ST candidates. It is for the reason that while making promotion, rights of reservation were violated. While considering their representation, it was found that promotion has not been made as per Regulations of 2004 thus appropriate direction for review DPC was given.

I have considered the rival submissions made by the parties and perused the record.

The petitioners were appointed from time to time on the post of Jr. Stenographer and last appointment was of Dhirendra Sharma vide order dated 28th November, 1979. Satya Narain Shankhla was appointed on the post of Junior Stenographer on 16th May, 1984. Their appointments were made when Regulations of 1972 were existing. The Regulations of 1972 got repealed on bringing new Regulations of 2004. It is not in dispute that Board is having power to make regulations and even amend it. In pursuance to Section 36 of the Act of 1957, Regulations of 2004 were brought. In the Regulations of 2004, avenue of promotion for Junior Stenographer was made different than what was existing under the Regulations of 1972. Under the Regulations of 1972, a Junior Stenographer was entitled for promotion upto the post of Director if not opted for the post of Personal Secretary. After the new Regulations of 2004, different avenue of promotion exists. According to it, a Junior Stenographer is entitled for three promotion in his service.

The Board was expected to act strictly as per Regulations brought by them itself. The deviation from the Regulations was made when Board took a decision on 25th August, 2008. The resolution was contrary to the Regulations of 2004. It is to provide avenue of promotion to the Stenographer different than existing at the relevant time. The Secretary of the Board stayed the resolution on the instruction of the Chairman and in my opinion rightly so. The challenge to the order of Secretary was made and stayed in the earlier writ petition bearing No. 10660/2008. Due to interim order, the Board conducted the DPC and made promotion as per the avenue of promotion existing under the Regulations of 1972. The order of promotion was made in the year 2010. It was however made subject to final outcome of the writ petition. The writ petition was finally withdrawn by the petitioners in pursuance to the subsequent resolution of the Board dated 21st January, 2013. The Board agreed to keep three posts of Assistant Director/Personal Secretary reserved for the Stenographers. The Board resolution was again contrary to the Regulations of 2004.

A post could not have been reserved for Stenographer, which does not exist under the new Regulations. In any case, the writ petition was withdrawn in the light of subsequent resolution thus issue in reference to the order passed by the Secretary remain undecided. Prior to the aforesaid, when Regulations of 2004 were ordered to be effected, the Board in its meeting held on 24th September, 2004 took a decision to accommodate one Kamal Kishore by providing him avenue of promotion different than existing under the Regulations of 2004. It was with the approval of the Chairman. In my opinion, it was contrary to the Regulations of 2004. The Chairman or the Board are not having authority to act or pass resolution in violation of the Regulations. Definitely they have powers to amend or make Regulations but unless amendment in the regulations is made, they are required to act strictly as per regulations. The accommodation of Kamal Kishore at the instance of the Chairman shows nothing but a favoritism in violation of the regulations.

It is not expected from the Chairman or the Board to act contrary to the regulations. If the said Chairman would have been continued as on the date, stricture would could been passed by the court. Three posts of Assistant Director/Personal Secretary have been reserved for Stenographer without having avenue of promotion on those post under the Regulations of 2004. How post can be reserved contrary to the avenue of promotion, could not be explained. The resolution of the Board itself shows nothing but voice of arbitrariness and it is to favour one or other individual person. It may be at the instance of the union but the Board was expected not to circumvent the regulations for the benefit of individual. In fact, such act of the Board has given rise to the present litigation. After going through the resolutions referred by the learned counsel for petitioners, I do not find any amendment in the Regulations of 2004 to seek option from the Stenographers as to whether they would like to be governed by the Regulations of 1972 or by the Regulations of 2004.

Taking into consideration overall facts, impugned order was passed by the Government by invoking Section 28 of the Act of 1957. It may be that issue was brought in a different manner by the SC and ST Union whose rights were effected by virtue of the order passed by the Board. It is however a fact that after the order of promotion in the year 2010, further order of promotion was made in the year 2013 but learned counsel appearing for the Board could not justify those orders, issued contrary to the Regulations of 2004. Learned counsel of the Board is fair enough to draw attention of the court in regard to all the relevant provisions. If rights of SC and ST candidates are effected by illegal exercise of powers by the Board. The Government is having powers to issue appropriate direction, as given herein. If a direction has been given to hold review DPC in accordance with the Regulations of 2004, I do not find anything illegal therein. The issue of illegality was brought by SC and ST Union but while considering case, this court made scrutiny of the exercise undertaken by the Board in reference to the argument raised by the respective parties and find that the Board resolutions from time to time were contrary or in violation of the Regulations of 2004. It is moreso when Regulation 44 does not provide that whoever was eligible for promotion under the Regulations of 1972 would be entitled to be governed by those regulations. In the instant case, petitioners have been promoted in the year 2010 and 2013 but it was much subsequent to the new Regulations of 2004. A reference of the judgments of the Apex Court in the case of Kolhapur Canesugar Works Limited & Anr. v. Union of India & Ors., reported in , AIR 2000 SC 811 and in the case of P. Mahendran & Ors. v. State of Karnataka & Ors., reported in , AIR 1990 SC 405 apart from judgment of the Apex Court in the case of Mohammad Shujat Ali & Ors. v. Union of India & Ors., reported in , AIR 1974 SC 1631 has been given and supports the case of non-petitioners.

In the light of discussion made above, I do not find any ground to cause interference in the impugned order. The writ petition is accordingly dismissed having no merit. The Board would be expected now to act strictly as per Regulations of 2004.

Before parting with the judgment, it needs to be observed that the Chairman and the Board have passed the resolution contrary to the Regulations of 2004. The perusal of Regulations shows it to be nothing but under the pressure of the union or to extend undue favour to the individual. The Board Members need to be vigilant and to follow the rules instead of deviating from it. A direction for action against the Chairman or the Board members would have been given, if same Board, which passed the resolution in the year 2004 and subsequently on 21st August, 2008, would have been existing. The Board is now directed to act strictly as per law otherwise specific direction for action against them would be given because on account of undue favour to the individual person, litigation has come to the court.