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Dwaraka Prasad Bhardwaj Vs. State of U.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAllahabad High Court
Decided On
Judge
Reported in(1977)ILLJ251All
AppellantDwaraka Prasad Bhardwaj
RespondentState of U.P. and ors.
Excerpt:
.....5. there is no dispute that the assistant masters of the government schools as well as sub-deputy inspectors of schools belong to the cadre of special subordinate educational service (non-gazetted). in practice, however, the sub-deputy inspectors of school carry on the work of supervision and control of primary schools while assistant masters carry on the work of teaching in high school at>d intermediate institutions of the government. siddhanti (1974)illj312sc ). 8. in the instant case assistant masters as well as sub-deputy inspectors of schools both belong to the subordinate educational service (non-gazetted). initially an assistant master and a sub-deputy in specter of schools form same class of service as both the services form part of the cadre of subordinate educational..........colleges run and maintained by the government. on the inspecting side it consists of sub-deputy inspectors of primary schools. the special subordinate educational service (non-gazetted) consists of only lecturers of intermediate classes of the government educational institutions. the subordinate educational service (gazetted) consists of the posts of headmasters of high schools and normal schools in the teaching side and deputy inspector of schools and additional deputy inspectors of schools and other ex-cadre posts in the inspecting side. the provincial educational service (gazetted) class ii consists of principals and district inspectors of schools, while the provincial educational service class i consists of deputy directors, directors and principals of government degree.....
Judgment:
ORDER

K.N. Singh, J.

1. The petitioner is Assistant Master in Government Junior Training College, Agra. He has challenged the validity of the order of the State Government dated 3rd December, 1947, which makes 40% reservation in favour of the Sub-Deputy Inspectors of Schools for promotion to the post of Headmasters. He has claimed relief for the issue of a mandamus directing the State Government and the Director of Education not to give effect to the order dated 3rd December, 1947, and not to promote any Sub-Deputy Inspector of Schools to the post of Headmaster.

2 In the State of Uttar Pradesh, Educational Service consists of the following gazetted and non-gazetted cadres of service :

1. provincial Educational Service Class I.

2. provincial Educational Service Class II.

3. Subordinate Educational Service (Gazetted).

4. Special Subordinate Educational Service (Non-Gazetted).

5. Subordinate Educational Service (Non-Gazetted).

The above cadres include teachers as well as officers appointed for the supervision and inspection of educational institutions. Subordinate Educational Service (non-Gazetted) is the lowest cadre of service which consists of both teaching and inspecting side. On the teaching side it consists of Assistant Masters of high schools, normal schools and intermediate colleges run and maintained by the Government. On the inspecting side it consists of Sub-Deputy Inspectors of Primary Schools. The special Subordinate Educational Service (Non-Gazetted) consists of only lecturers of intermediate classes of the Government educational institutions. The subordinate educational service (Gazetted) consists of the posts of Headmasters of high schools and normal schools in the teaching side and Deputy Inspector of Schools and Additional Deputy Inspectors of Schools and other ex-cadre posts in the inspecting side. The Provincial Educational Service (Gazetted) Class II consists of Principals and District Inspectors of Schools, while the Provincial Educational Service Class I consists of Deputy Directors, Directors and Principals of Government degree college.

3. By the Government order dated December, 3, 1947, the Governor laid down the ratio in accordance to which promotion is made from the Subordinate Educational Service (Non-Gazetted) and Special Subordinate Educational Service (Non-Gazetted) to the higher cadre of Subordinate Educational Service (Gazetted). By means of this order, the Government directed that 25% of the vacancies in the post of the Headmasters of Government High Schools, belonging to Subordinate Educational Service (Gazetted) shall be filled by direct recruitment and the remaining 75% of the vacancies shall be filled by promotion from amongst the Assistant Masters of the ordinary and Special Subordinate Education Service in the proportion of 2 : 1. The order further laid down that the vacancies among the Headmasters of Government Normal Schools shall be filled by promotion as well as by direct recruitment, 10% of the vacancies shall be filled by direct recruits and the remaining vacancies shall be filled by promotion from amongst Assistant Masters of ordinary and special Subordinate Educational Service possessing Training Qualifications (40 per cent) and Sub-Deputy Inspectors of Schools (40 per cent) and Lecturers of Training Colleges (10 per cent). Thus the order earmarks 40% of the vacancies in the posts of Headmasters of the Normal Schools for promotion of Sub-Deputy Inspectors of Schools. As already noted the post of Headmaster of Normal School is borne on the cadre of Subordinate Educational Service (Gazetted) promotion to which according to the Government order is made from amongst the employees working in teaching and inspecting side.

4. In September, 1949, the petitioner was appointed Assistant Master in the Subordinate Educational Service (Non-Gazetted). In the year 1950 he was selected for appointment to the post of Sub-Deputy Inspectors of Schools also but he did not join the same because the post of Sub-Deputy Inspector of Schools carried the same initial pay scale and grade as that of Assistant Master. The petitioner has alleged that though Assistant Masters and Sub-Deputy Inspectors of Schools form part of the same service, in matters relating to promotion to the cadre of Subordinate Educational Service (Gazetted) the Government order makes reservation to the extent of 40 per cent in favour of Sub-Deputy Inspectors of Schools who are eligible for promotion to the post of Deputy Inspector of Schools in the Subordinate Educational Service (Gazetted). Even though they are entitled to promotion as Headmaster in the Subordinate Educational Service (Gazetted1, the Assistant Masters are not entitled to similar opportunity of promotion to the post of Deputy Inspectors of Schools or Additional Deputy Inspectors of Schools in the Subordinate Educational (Gazetted). Thus the Government order dated 3rd December, 1947, confers undue preference to the Sub-Deputy Inspectors of Schools by making them eligible for promotion to the post of Headmaster in the teaching branch of the Subordinate Educational Service (Non-Gazetted). The petitioner challenges the validity of the Government order dated 3rd December, 1947, on the ground that it practises discrimination against the members be-longing to the teaching side of Subordinate Educational Service (Non-Gazetted) in contravention of Article 16 of the Constitution.

5. There is no dispute that the Assistant Masters of the Government Schools as well as Sub-Deputy Inspectors of Schools belong to the cadre of Special Subordinate Educational Service (Non-Gazetted). In practice, however, the Sub-Deputy Inspectors of School carry on the work of supervision and control of primary schools while Assistant Masters carry on the work of teaching in High School at>d Intermediate institutions of the Government. Similarly, Subordinate Educational Service (Gazetted) consists of two class of Officers, namely, the officers who are required to teach students in institutions, namely, Head, masters of normal schools, and Deputy Inspectors of Schools and Additional Deputy Inspec ors of Schools who carry on the work of supervision of educational institutions in the district. In the instant case the dispute relates to promotion to the cadre of Subordinate Educational Service (Gazetted). As already noted even though the Assistant Masters and Sub-Deputy Inspectors of Schools belong to the same cadre, namely, the Special Subordinate Educational Service (Non Gazetted) but in matters relating to promotion to the Subordinate Educational Service (Gazetted) they are not treated equally. The Sub. Deputy Inspectors of Schools are eligible for promotion to the post of Deputy Inspectors of Schools and Additional Deputy Inspectors of Schools while Assistant Masters are not eligible for those posts. Under the impugned Government Order 40%, posts of Headmasters of Normal Schools are reserved for promotion to the Sub-Deputy Inspector of Schools. On these facts the Government order is assailed on the ground that it violates the Constitutional guarantee of equality in matters relating to employment under the State.

6. Learned counsel for the petitioner urged that on account of the discrimination practised by the Government Order dated 3rd December, 1947, the petitioner who joined service in 1949 could not be promoted to the post of Headmaster of Normal School borne on the cadre of Subordinate Educational Service (Gazetted) although a number of Sub-Deputy Inspectors of Schools who joined the service later in time have been promoted to the said post. Thus the juniors in service have been promoted in preference to the petitioner on account of the reservation made by the impugned Government order. The reservation of 40% posts in the vacancies of Headmasters of Normal Schools adversely affects the petitioner's chances of promotion. The petitioner's assertion that respondent No. 4 to the petition, who joined service after ten years, has been promoted to the post of Headmaster of Normal School against the reserved vacancies of 40% in accordance with the Government order dated 3rd December, 1947, is not controverted. The question of discrimination is, therefore, necessary to be examined on the admitted facts.

7. Article 16 ensures equality of opportunity in public employment. It prohibits discrimination in matters relating to promotion of persons belonging to the same class of service. It is, however, permissible for the State to make classification based on reasonable grounds with a view to achieve administrative e0fficiency. The constitutional code of equal opportunity is a charter for equals; equality of opportunity in matters of promotion means equal promotional opportunity for persons who fall substantially within the same class or runt of service. Guarantee of equality is not applicable as between members of different and distinct classes of service. Once the persons recruited from two different sources are absorbed into one integrated class with identical service conditions they cannot be discriminated against with reference to the original source for the purpose of absorption and seniority. (See Central Manager, South Central Rly. Secunderabad v. A.V.R. Siddhanti : (1974)ILLJ312SC ).

8. In the instant case Assistant Masters as well as Sub-Deputy Inspectors of Schools both belong to the Subordinate Educational Service (Non-Gazetted). Initially an Assistant Master and a Sub-Deputy In specter of Schools form same class of service as both the services form part of the cadre of Subordinate Educational Service (Non-Gazetted; but for promotion Assistant Masters are treated differently. The Government order dated 3rd December, 1947, makes reservation in favour of Sub-Deputy Inspectors of Schools for their promotion to the post of Headmasters which are borne on the teaching side in the cadre of Subordinate Education Service (Gazetted) but a similar opportunity of promotion is denied to the Assistant Masters for the posts borne in the inspecting side. Headmasters of High Schools, Normal Schools and Deputy Inspectors of Schools, Additional Deputy Inspectors of Schools and Assistant Inspectors of Schools belong to the same class of service, (namely, Subordinate Educational Service (Gazetted) promotion to which is made from the members of service belonging to the Subordinate Educational Service (Non-Gazetted) which include the teaching as well as inspecting side. Assistant Masters of High Schools, Normal Schools and Inter Colleges are not eligible for promotion to any of the posts of Deputy Inspector of Schools, Additional Deputy Inspector of Schools, Assistant Inspector of Schools in the inspecting branch of the Subordinate Educational Service (Gazetted) whereas Sub-Deputy Inspector of Primary Schools are eligible for promotion not only to the post of Deputy Inspector of Schools and Additional Deputy Inspector of Schools but also to the posts of Headmasters of Normal Schools, namely, the posts borne on the teaching branch of the Subordinate Educational Service (Gazetted). Thus a twofold discrimination is practised against Assistant Masters in matters relating to promotion. Assistant Masters of High Schools and Normal Schools and Inter Colleges are not eligible for promotion to any post of inspecting branch is Gazetted cadre and the Sub-Deputy Inspectors of Schools have exclusive privilege of promotion to the posts borne on Inspection Branch of the Subordinate Educational Service (Gazetted). Secondly, Assistant Masters are not eligible for promotion to all the posts borne on the teaching branch of the Subordinate Educational Service (Gazetted) as 40 % of the posts in the teaching branch of Subordinate Educational Service are earmarked for promotion of Sub-Deputy Inspector of Schools. The Government order dated 3rd December, 1947, clearly shows that persons holding the posts in the Inspecting Branch of the Subordinate Educational Service (Non-Gazetted) are eligible to the higher posts in teaching branch but no person belonging to the teaching side of Subordinate Educational Service (Non-Gazet.ed) is entitled to promotion -towards inspection branch in Subordinate Educational Service (Gazetted). The Government order on the one hand treats the Sub-Deputy Inspectors of Schools and Assistant Masters of Schools as falling within one class but on the other hand the Assistant Masters are denied opportunity of promotion to Subordinate Educational Service (Gazetted).

9. The respondents' contention that though the Assistant Masters and Sub-Deputy Inspector of Schools belong to the Subordinate Educational Service (Non-Gazetted. Cadre but in substance the Sub-Deputy Inspector of Schools do the work of inspection and supervision of Primary Schools while Assistant Masters discharge the functions of teaching students in classes. The cadre of fervice is one but it consists of two units of service, namely, Inspecting Branch and Teaching Branch. The two classes of persons do not constitute one class. I find no justification to accept this contention. No doubt, Sub-Deputy Inspectors of Schools and Assistant Masters are assigned to do different nature of work in service but the cadre of service remains the same. But even if this classification be accepted there appears to be no justification or reasonable explanation for reservation of 40i, posts to Sub-Deputy Inspectors of Schools for their, promotion in the teaching side in the Suboidinate Educational Service (Gazetted). If the States contention that the Sub-Deputy Inspectors of Schools and Assistant Masters form two different classes, then it would not be permissible to reserve posts in the teaching side for promontion of such Deputy Inspector of Schools who belong to different class. The classification suggested on the basis of experience of inspection of Primary Schools has no reasonable nexus. Assistant Masters who carry on the work of teaching are more suitable for appointment to the post of Headmasters of Normal Schools, than the Sub-Deputy Inspectors of Schools who ac-cording to the Government, form separate class. The Government order gives undue advantage to Sub-Deputy Inspectors of Schools in matters relating to promotion to the higher post in the teaching side of the Subordinate Educational Service (Gazetted) for which there appears to be no reasonable explanation. I am, therefore, of the opinion that the Government order dated 3rd December, 1947, practises a hostile discrimination against the petitioner and other Assistant Masters of the U.P. Subordinate Educational Service (Non-Gazetted) in matters relating to their promotion.

10. Learned Standing Counsel placed reliance on Rule 5 of the Sub-Deputy Inspectors of Schools Rules, 1949 which lays down that 10 & of the posts of Sub-Deputy Inspectors of Schools shall be filled by promotion of Headmasters of Junior High Schools, the remaining 90% of the posts shall be filled by direct recruitment. It is urged that the Headmasters of Junior High Schools get promotion in the Inspecting Branch on the post of Sub-Deputy Inspector of Schools, thus those rules provide opportunity of promotion to the teaching branch. In the instant case the discrimination alleged by the petitioner relates to promotion to the post of Headmaster of Normal Schools borne on the cadre of Subordinate Education Service (Gazetted). The dispute does not relate to promotion for the post of Sub-Deputy Inspectors of Schools. Moreover, Rule 5 of the Sub-Deputy Inspectors Rules, 1949, also indicates that the persons belonging to teaching branch and inspecting branch are treated as one class. In that cir. cumstance the Government cannot discriminate against Assistant Masters in matters relating to their promotion to higher post in the Gazetted cadre.

11. Learned Standing Counsel then urged that the petitioners ca-not claim any right of promotion to the post of Deputy Inspectors of Schools or Additional Deputy Inspectors of Schools as recruitment to these posts is regulated by statutory rules, namely, Subordinate Educational Service Gazetted)(Inspection Branch) Rules, 1964. Rule 5 lays down the source of recruitment to the service. The posts of Assistant Inspectors of Schools are filled by direct recruitment, while recruitment to the post of Deputy Inspector of Schools is made by promotion from amongst Sub-Deputy Inspectors of Schools and direct recruits. The rules do not permit promotion of Assistant Masters to either of the two posts, namely, Assistant Inspector of Schools or Deputy Inspector of Schools. It is urged that since the statutory rules do not contain any provision for the promotion of Asssistant Masters they cannot claim any right of promotion. It is true that in view of Rule 5 an Assistant Master is not entitled to promotion but that does not affect the validity of the reservation of 40 per cent posts of Headmasters of Normal Schools for promotion from the post of Sub-Deputy Inspectors of Schools. Even if the respondent's contention is accepted, that the Sub -Deputy Inspectors of Schools and Assistant Masters constitute two different classes, there appears to be no reasonable basis for reserving the post in teaching side to the Sub-Deputy Inspectors of Schools. If they constitute same class of service, there does not appear to be any reasonable explanation as to why the Assistant Masters are not eligible for promotion to the post of Deputy Inspector of Schools along with Sub-Deputy Inspectors of Schools. Thus in any view of the matter, the reservation of 40% of posts made in favour of Sub-Deputy Inspectors of Schools is unreasonable.

12. I am, therefore, of the opinion that the petitioner's promotion to the higher post WPS postponed due to the reservation made by the Government order dated 3rd December, 1947, in favour of Sub-Deputy Inspectors of Schools. The Government order dated 3rd December, 1947, practises discrimination in violation of Article 16 of the Constitution.

13. I, therefore, allow the petition and quash the State Government's order dated 3rd December, 1947 and direct the respondents to consider the petitioners claim for promotion and in doing that they should not give effect to the 40% reservation made in favour of Sub-Deputy Inspectors of Schools. The petitioner is entitled to his costs.


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