UPTET SARKARI NAUKRI News - JRT ORDER PART 10 -
61. Whether this substitution and alteration in the source of recruitment is permissible? Instead of 100 per cent promotion on the post of Assistant Teacher, Sr.P.S. now 50 per cent shall be recruited by promotion and rest 50 per cent by direct recruitment whether it affects any vested right? In my view, none of the fundamental rights have been infringed nor any vested right has been divested.
62. The contention pre-supposes that an employee has a vested right to be governed by Rules as they stand on the date of his entry in service and rule framing authority would have no power to make amendment in the Rules in one or the other manner. Once the power of legislation is there, it can be exercised from time to time which includes new legislation or replacement of entire existing legislation by a new one. In the present case, Rule 5, as it stood earlier, provided for only source of recruitment on the post of Assistant Teacher, Sr.P.S. "by promotion". Now the rule framing authority has made a change that only 50 per cent shall be recruited by promotion and remaining 50 per cent by direct recruitment. An employee working in feeder cadre wherefrom promotion is to be made on higher post, has no vested right in respect to number of posts in higher cadre to be filled in from any particular source of recruitment. The reason being that the right conferred by Article 16 is only a fundamental right of consideration for promotion and not chance of promotion. Whenever, vacancy in higher cadre is available and under the Rules is liable to be filled in by promotion, it shall be filled in accordingly, but it cannot be said that rule framing authority cannot make any alteration with respect to quota to be determined by Rules.
63. In Dwarka Prasad and others Vs. Union of India and others 2003 (6) SCC 535, the Court said:
"Articles 14 & 16 of the Constitution of India cannot be pressed into service to describe the fixation of lower quota for POs as discriminatory. It is well established in law that the right to be considered for promotion on fair and equal basis without discrimination may be claimed as a legal and a fundamental right under Article 14 & 16 of the Constitution but chances of promotion as such cannot be claimed as of right." (emphasis added)
64. In Reserve Bank of India Vs. N. C. Paliwal AIR 1976 SC 2345, there was a integration of non clerical with clerical service. It was challenged as infringing the principles of equality. Court held that it is entirely a matter of State to decide to have the several different cadres or one integrated cadre in its service. That is a matter of policy which does not attract the applicability of equality clause.
65. In State of Mysore Vs. G.B. Purohit 1967 SLR 753, the Court said that though a right to be considered for promotion is a condition of service, mere chances of promotion are not and that a rule which merely affects chances of promotion cannot be regarded as varying a condition of service.
66. In Mohammad Shujat Ali and others Vs. Union of India (UOI) and others 1975 (3) SCC 76, a Constitution Bench said that mere chance of promotion is not a condition of service.
67. Here by altering the number of vacancies available for promotion by making amendment in Rules, only chances of promotion have been affected and not the right of promotion. Therefore, basic contention, in my view, stands on a fallacy and has to be rejected outright. No authority has been cited in favour of proposition that such alteration by amendment in Rules is not possible.
68. By amending Rules, the right to be considered for promotion to the post of Assistant Teacher, Sr.P.S. has not been denied at all but what the Rule provides is that availability of vacancies to higher post now stands reduced to 50 per cent, meaning thereby, it is the chance of promotion which has been affected and not the right of promotion. Besides, it is not the case that the Rule framing authority otherwise has any incompetency in framing the Rules, therefore, by amending Rules and changing source of recruitment by providing 50 per cent by direct recruitment and 50 per cent by promotion, in my view, no invalidity has been brought in Rules and Rule 5 cannot be said to be bad in law in any manner.
69. All these writ petitions, therefore, have no substance and deserve to be dismissed.
Group-C:
70. The two writ petitions in Group-C, i.e., Writ Petitions No. 57236 of 2013 and 2999 of 2015 are founded on patently fallacious submissions.
71. It is contended that in Sr.P.S., the post of Assistant Teacher should not be advertised subjectwise. The submission is thoroughly misconceived. It cannot be doubted that in Sr.P.Sc, specified subjects are taught to students. The Teachers, who have no knowledge of Science or Maths cannot be expected to teach students in the subjects of Maths and Science with appropriate efficiency. Therefore, the contention that recruitment cannot be made subjectwise is wholly misconceived. In Writ Petition No. 2999 of 2015, an attempt has been made to read the words "Subject Teachers" as constituting a single group irrespective of the subject. It is urged that it should be treated in contradiction with 'Language Teachers'. Here also purposive reasonable interpretation has to be given. The rule framing authority has divided, broadly the category of Teachers as Language Teachers, like, Hindi, Urdu, Sanskrit, English; and, for remaining subjects, it has used the words "Subject Teachers". This Court does not find any justification to read that for all subjects other than languages, there is no scope under Rules for making any distinction and even if the Teachers are required for imparting education in Science and Maths, recruitment can be made without specifying the aforesaid subjects and by recruiting persons who have no knowledge, whatsoever, in Maths and Science and are not competent at all to teach those subjects. These writ petitions, therefore, have no merit and deserve to fail.
Group-D:
72. The sole writ petition in Group-D is Writ Petition No. 15541 of 2015. It has been filed by 5 petitioners, namely, Rohit Kumar, Arvind Kumar, Mukesh Kumar Yadav, Buddhi Lal and Shailendra Kumar, seeking a mandamus directing respondents not to allow counselling to such professional degree holders, who are not eligible as per advertisement/notification dated 23.8.2013, as clarified by Secretary, Basic Education Board in its affidavit filed before Lucknow Bench of this Court in Writ Petition No. 5348 of 2013 and to exclude such candidates from the zone of consideration. It is suggested that the candidates possessing degree of B.Sc. (Agriculture), B.Tech., B.C.A., B.B.A., BUMS, MHMUS and B. Pharma are not eligible to apply for the post of Assistant Teacher in Sr.P.S. since these are professional degrees and cannot be treated to be Science graduation degree so as to make them eligible to participate in the aforesaid selection. Names of some of candidates are given in para 24 of the writ petition, though none of them has been made party in the writ petition.
73. I find basic submission absolutely fallacious and misconceived. Though degrees of B.Sc. (Agriculture), B.Tech., B.C.A., B.B.A., BUMS, MHMUS and B. Pharma etc. provide education in certain fields making the incumbents professional in a particular aspect, and, therefore, they are called "professional course", but it cannot be doubted at all that these all are bachelor degrees and, therefore, those, who possess these qualifications, are graduates in those disciplines. It, thus, cannot be said that when requirement is graduation, professional courses can be excluded. It is nothing but reading something which is not provided in the Rules, which, in my view, is neither permissible nor there is any compulsion to do so. In view thereof, this writ petition, in my view, lacks merits and deserves to be dismissed.
Group-E:
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