Punjab-Haryana High Court
Kiran Mayee vs State Of Haryana And Others on 6 April, 2021CWP No. 11149 of 2020 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No. 11149 of 2020 (O&M)
Date of Decision: 06.04.2021
Dr. Kiran Mayee
….Petitioner
Versus
State of Haryana and others
…..Respondents
CORAM: HON’BLE MR. JUSTICE JASGURPREET SINGH PURI
Present : Mr. R.K. Malik, Senior Advocate assisted by
Mr. Samrat Malik, Advocate, for the petitioner.
Mr. Hitesh Pandit, Additional Advocate General, Haryana.
Mr. Jagdish Manchanda, Advocate, for respondent No.3.
****
JASGURPREET SINGH PURI, J.
The present civil writ petition has been filed under Article 226
of the Constitution of India seeking a writ in the nature of certiorari to quash
the decision dated 17.07.2020 (Annexure P-5) by which the additional
charge of Director, State Council of Educational Research & Training,
Haryana, Gurugram (hereinafter called as ‘Director, SCERT, Haryana,
Gurugram’) has been ordered to be given to respondent No.3, with a further
prayer to declare respondent No.3 to be not eligible for taking the additional
charge of Director, SCERT, Haryana, Gurugram.
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A brief factual matrix which has led to filing of the present
petition is that the petitioner was promoted as Additional Director in the pay
scale of schedule-I pay matrix of HSC (Revised Pay Scale) 2016 vide
Annexure P-1 dated 28.12.2017. Thereafter, on 11.12.2019 vide Annexure
P-2 the petitioner was given additional charge of Director, SCERT, Haryana,
Gurugram in addition to her present duties and no additional remuneration
was to be paid to her. However, vide impugned order Annexure P-5, a
decision has been taken to give additional charge of Director, SCERT,
Haryana, Gurugram to respondent No.3 by withdrawing the same from
petitioner. This decision has been taken by the State of Haryana. The
petitioner is aggrieved by the aforesaid action of the State in giving
additional charge to respondent No.3 who was not even eligible for being
appointed to the post of Director, SCERT, Haryana, Gurugram under the
statutory rules namely State Council of Educational Research & Training,
District Institute of Education & Training, Block Institute of Teachers
Education & Government Elementary Teachers Training Institute (Group-A)
Service Rules, 2014 (hereinafter called as ‘Rules of 2014’ ).
Mr. R.K. Malik, learned Senior Advocate with Mr. Samrat
Malik, learned Advocate while arguing on behalf of the petitioner has
submitted that giving of additional charge of Director, SCERT, Haryana,
Gurugram to respondent No.3 is totally illegal and contrary to the Statutory
Rules of 2014. The learned Senior Counsel submitted that respondent No.3
did not fulfill the basic requisite qualifications for being appointed as
Director, SCERT, Haryana, Gurugram and, therefore, he could not have
been given the additional charge of Director, SCERT, Haryana, Gurugram
and therefore, the aforesaid impugned decision Annexure P-5 is liable to be
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set aside. He has referred to Rule 9 as well as Appendix-B to submit that the
recruitment to the post of Director, SCERT, Haryana, Gurugram can be
made by direct recruitment or by transfer or deputation of an officer already
in the service of State Government or the Government of India. He
submitted that respondent No.3 has been granted additional charge despite
the fact that he was not in the service of State Government or the
Government of India. Furthermore, respondent No.3 did not fulfill the
academic qualifications and experience at all. The relevant portion of Rule 9
as well as Appendix-B is as under:-
‘9(1) Recruitment in the Service shall be made-
(a) In the case of Director, State Council of Educational
Research & Training;
i) by direct recuitment; or
ii) by transfer or deputation of an officer already in the service
of State Government or the Government of India’.
The relevant provisions of Appendix-B of the above said Rules are
also reproduced below for ready reference:-
“APPENDIX-B
(See Rule 7)
S. Designation Academic qualification Academic qualification &
of posts & exp. if any, for direct exp. if any, for
No.
recruitment appointment other than by
direct recruitment
A. State Council of Educational Research & Training
1 Director, i) Post Graduation with i) Post Graduation with
State 55% marks and Ph.D. 55% marks and Ph.D.
Council from a recognized from a recognized
Educational University. University.
Research & ii) M.Ed./B.Ed. With ii) M.Ed./B.Ed. With 55%
Training 55% marks from a marks from a recognized
recognized University. University.
iii) 15 years exp. out of iii) 15 years exp. out of
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which 5 years as which 5 years as Principal
Principal of a Post of a Post Graduate
Graduate College/ College/ College of
College of Education or Education or Professor in
Professor in Education Education in a University/
in a University/National National Council of
Council of Educational Educational Research &
Research & Training Training (NCERT)/
(NCERT)/National National University of
University of Educational Planning and
Educational Planning Administration (NUEPA).
and Administration OR
(NUEPA). 8 years as Principal in
OR Teacher Training Institute
8 years exp. as (School Education) and 5
Principal in Teacher years teaching in a Post
Training Institute Graduate College/College
(School Education) and of Education/Teacher
5 years exp. of teaching Training Institute (School
in a Post Graduate Education).
College/ College of iv) Well conversant with
Education/Teacher IT skills and should have
Training Institute knowledge of effective use
(School Education). of new technologies as
iv) Well conversant with tools for learning.
IT skills and should v) Consistent good
have knowledge of academic record;
effective use of new v) Hindi/Sanskrit upto
technologies as tools for Matric Standard or higher
learning. education.
v) Consistent good
academic record;
v) Hindi/Sanskrit upto
Matric Standard or
higher education.
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The learned Senior Counsel argued that granting of additional
charge does not fall under Rule 9(1) (a) (i) because it was not a case of direct
recruitment but would fall under Rule 9 (1) (a) (ii) as it was a case by
transfer although for the purpose of additional charge. He submitted that in
this situation only such officer can be appointed to the post of Director,
SCERT, Haryana, Gurugram who is in the service of State Government or
the Government of India. He referred to Annexure P-3 by which respondent
No.3 was appointed as Director (Prarambh) purely on deputation basis on
23.06.2017 and vide Annexure P-4 dated 09.06.2020 he was permanently
absorbed as Director (Prarambh)-State Institute of Advanced Studies in
Teacher Education, Jhajjar. The learned Senior Counsel submitted that once
respondent No.3 stands permanently absorbed as Director of the aforesaid
Institute namely, Prarambh, he ceased to be in the service of the State
Government because Prarmbh is not a Government Institute but is purely an
autonomous body which although may be funded by the State Government,
but by no means can respondent No.3 be termed to be an officer in the
service of the State Government.
Furthermore, the learned Senior Counsel submitted that
respondent No.3 did not even fulfill the basic academic qualifications as
provided in Appendix-B. It is an essential condition precedent sine qua non
for being appointed as Director, SCERT, Haryana, Gurugram that a person
must be Post Graduate with 55% marks and Ph.D. from a recognized
University. This condition is applicable to both direct recruitment as well as
by transfer or deputation. Furthermore, number of years in experience is also
provided in the aforesaid Appendix-B. He submitted that respondent No.3 is
neither a Post Graduate with 55% marks nor fulfills the requisite
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experience provided under Appendix-B as he had secured 51.10% marks in
M.A 2nd Division. He further submitted that once respondent No.3 does not
fulfill the basic qualifications, therefore, he could not have been granted
additional charge to the post of Director, SCERT, Haryana, Gurugram and
so far as the petitioner is concerned, she is fully eligible for being granted
additional charge to the post of Director, SCERT, Haryana, Gurugram.
On the other hand, Mr. Hitesh Pandit, learned Additional
Advocate General, Haryana while referring to the affidavit filed by Joint
Director, Admn. office of Director, Secondary Education, Department of
School Education, Panchkula, submitted that neither respondent No.3 nor
petitioner fulfill the essential qualifications and experience for the post of
Director, SCERT, Haryana, Gurugram. Para 5 of the affidavit in this regard
is reproduced as under:-
‘5. That it is pertinent to mention here that as per Appendix-B
of Rule 9(1) of Haryana State Education (Group-A) Service Rules,
2014, neither respondent No.3 nor petitioner fulfills the essential
qualification & experience for the post of Director, State Council
of Educational Research & Training. The comparative summary
of qualification & experience of respondent no.3 & petitioner
respectively is reproduced below:-
The qualification & experience of Respondent No.3 is as under:-
Qualification Experience
M.A. English with 51.1% i. 19 years as experience as
M.Ed. with 68% Principal in Gita Niketan
MBA with 60.7% Awasiya Vidyalaya
Ph.D. in Education Kurukshetra.
ii. 3 Years experience as Director
State Institute of Advanced
Studies in Teacher Education,
Jhajjar.
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The qualification of the petitioner is as under:-
Qualification Experience
M.A. Sanskrit Sahitya with i. Joint Director in the O/o
60% SCERT for 6.5 yrs
M.Ed. with 50% ii. As Addl. Dir. for 2 years
B.Ed. With 62% iii. As DEEO Panipat for 1.2 years
Ph.D. Sanskrit iv. As DEO Rohtak for 3.6 years
v. As Dy. Director for 11 months
The learned Additional Advocate General, Haryana however
argued that the impugned order Annexure P-5 was only a proposal to be
given additional charge of Director, SCERT, Haryana, Gurugram to
respondent No.3 and now orders granting additional charge have been
passed on 04.08.2020 vide Annexure R-1. He further submitted that another
reason as to why the additional charge was withdrawn from the petitioner
and given to respondent No.3 is that the petitioner is the First Appellate
Authority of the Directorate under RTI Act, 2005 and there are lot of
appeals pending against the order of State Public Information Officer of the
Directorate and these appeals are to be decided by the petitioner within a
time bound manner. Moreover, the place of additional charge i.e SCERT,
Gurugram is at a distance of approximately 260 KM from Panchkula where
the Directorate is situated and the petitioner is posted as Additional Director
(Academic) in the office of Director, Secondary Education, Haryana,
Panchkula and, therefore, it would incur lot of expenditure on the
Government exchequer in the form of TA/DA whereas the Prarambh
Institute is only 45 KM from SCERT, Gurugram. He also referred to Rule
17 of Haryana Government Gazette (Extra), June 10, 2014 of Group-A to
the effect that relaxation can be made in the provisions of the rules in respect
of any class or category of persons. However, nothing specific was shown as
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to whether any relaxation was made in the present case or not.
In the replication which was filed by the petitioner to the
affidavit filed by the respondent-State, it has been specifically stated that no
relaxation has been granted to respondent No.3 with regard to any of the
essential conditions. Furthermore, when the petitioner was earlier given the
additional charge of Director, SCERT, Haryana, Gurugram no extra
expenses of TA/DA etc. were taken by the petitioner and she had not
charged a single penny of TA/DA. Furthermore, although the petitioner is
First Appellate Authority under the RTI but no case is pending with the
petitioner even today and, therefore, the reasoning given by the State is
perverse and contrary to record.
Mr. Jagdish Manchanda, Advocate, appearing on behalf of
respondent No.3 submitted that respondent No.3 has been granted additional
charge under due procedure and it is not a permanent appointment and,
therefore, writ petition is not maintainable. He further submitted that the
petitioner has challenged Annexure P-5 which is a decision of respondent
No.1 to give additional charge of Director, SCERT, Haryana, Gurugram to
respondent No.3 but has not challenged the order dated 04.08.2020
(Annexure R-1) by which the order was passed in this regard. He further
submitted that appointment of respondent No.3 was in view of the provision
of the MOA as well as under the provision of the service by-laws of the
Prarambh State Institute of Advanced Studies in Teacher Education and
respondent No.3 was permanently absorbed as Director of the Institute vide
Annexure P-4 and, therefore, there is no illegality in granting the additional
charge to respondent No.3 as the same can be given in addition to his
present duties. He further submitted that present petition is barred by
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limitation and is liable to be dismissed on the ground of delay and laches.
On 01.12.2020 this matter was adjourned in order to enable the
learned counsel for the State to get the file whereby the appointment of
respondent No.3 was made after giving him the benefit of relaxation under
Rule 17 of Haryana Government Gazette (Extra), June 10, 2014 of Group-A
and that he shall place on record the said decision. However neither any
decision has been placed on record nor it has been produced in the Court at
the time of arguments and, therefore, it can be safely presumed that no such
decision has been taken for grant of relaxation in favour of respondent No.3.
On 10.12.2020, the learned State counsel sought time to clarify as to
whether as per order dated 09.06.2020 (Annexure P-4), respondent No.3
after being permanently absorbed as Director of the Institute is to be taken to
be Government service of the State of Haryana. In response thereto, an
affidavit dated 16.03.2021 has been filed by the Director, Secondary
Education, Haryana, Panchkula. In the affidavit it has been stated that the
Prarambh-State Institute of Advanced Studies in Teacher Education is an
Autonomous Institute run in the Society mode namely Prarambh-State
Institute of Advanced Studies in Teacher Education Society, Jhajjar and the
services of the employees of the Institute are governed by the Service Bye-
laws of the Society. Furthermore, respondent No.3 has been permanently
absorbed as Director, Prarambh by the Government and approved in
Governing Body of Prarambh-State Institute of Advanced Studies in Teacher
Education Society, Jhajjar on 11.06.2020. Para 4 and 5 of the aforesaid
affidavit are reproduced as under:-
‘4. That the Prarambh-State Institute of Advanced Studies in
Teacher Education is an Autonomous Institute run in the
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Society mode namely Prarambh-State Institute of Advanced
Studies in Teacher Education Society Jhajjar. Hon’ble Chief
Minister of the State is the President of the Governing Body
of Additional Chief Secretary to Govt. Haryana, School
Education Department is the Chairperson of the Executive
Council of the Society. This Institute is funded through 100%
Grant-in-aid and controlled by the State Government. The
services of employees of the institute are governed by the
Service Bye-laws of the society. Copy of the service Bye
Laws are annexed herewith as Annexure R/A.
5. That it is, furhter, submitted that respondent No.3 was
initially appointed as Director on deputation basis from
Geeta Niketan School, Kurukshetra, (Private School) where
he was working as Principal, by inviting applications for the
same by Haryana School Shiksha Pariyojna Parishad in
2018. Thereafter, the services of respondent No.3 have been
permanently absorbed as Director, Prarambh, by the
Government and approved in Governing Body of Prarambh-
State Institute of Advanced Studies in Teacher Education
Society, Jhajjar held on 11.06.2020 as per clause 16(1)
MOA and Services Bye Laws (Amended) 2019.
Keeping in view of the submission made above, it is,
therefore, respectfully prayed that the present writ petition
may be dismissed in the interest of justice’.
I have heard the learned counsel for the parties.
The core issue which arises for consideration in the present case
is as to whether respondent No.3 could have been granted additional charge
of Director, SCERT, Haryana, Gurugram even although admittedly he did
not fulfill the basic qualifications and experience to the aforesaid post.
As per Rule 9(1) (a) a Director, SCERT can be appointed either
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by direct recruitment or by transfer or deputation of an officer already in the
service of State Government or the Government of India. In the affidavit
filed by the Director, Secondary Education, Haryana, Panchkula, it has been
specifically stated that respondent No.3 was permanently absorbed as
Director of Prarambh and approved by the Governing Body on 11.06.2020
and that the Prarambh Institute is an Autonomous Institute run in the Society
mode namely Prarambh-State Institute of Advance Studies in Teacher
Education Society, Jhajjar and the services of the employees of the Institute
are governed by the Service Bye-laws of the Society. Therefore, there is
force in the argument raised by the learned Senior Counsel for the petitioner
that respondent No.3 was not in the service of State Government or the
Government of India and, therefore, was not eligible for being appointed as
Director, SCERT, Haryana, Gurugram.
So far as the academic qualifications and experience are
concerned, respondent No.3 did not fulfill the qualification of 55% marks in
Post Graduation as he had passed M.A 2nd Division with 51.10 % marks
and, therefore, one of the basic academic qualification was not fulfilled.
Furthermore, the State Government in its affidavit has itself admitted that
respondent No.3 did not fulfill the essential qualification and experience for
the post of Director, SCERT, Haryana, Gurugram.
One of the arguments raised by the learned counsel for the
respondent is that in the present writ petition, Annexure P-5 has been
challenged which was only a proposal to grant additional charge of Director,
SCERT, Haryana, Gurugram to respondent No.3 and in fact the order was
passed vide Annexure R-1 on 04.08.2020 which has not been challenged by
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the petitioner. The argument raised by the learned counsel for respondents
seems to be attractive but does not cut any ice. A perusal of Annexure P-5
would show that the same was not merely a proposal but it was a decision
taken on the proposal and has been approved till the level of Education
Minister and the Chief Minister. So far as the Annexure R-1 dated
04.08.2020 is concerned, although it was a formal order passed by the
Additional Chief Secretary to the Government of Haryana but it was a
consequential order passed in pursuance of the decision already taken vide
Annexure P-5. Once the decision itself is under challenge before this Court,
then the consequential formal order passed during the pendency of the
present petition need not be challenged separately and, therefore, the
argument raised by the learned counsel for the respondent cannot be
sustained.
Another argument raised by the learned counsel for the
respondent is that the grant of mere additional charge would not be
amenable to judicial review in exercise of power under Article 226 of the
Constitution of India. It is correct that a writ of quo warranto would not lie
unless a public post is being held substantively and it can be shown that the
holder of the post was not having essential qualifications. But a writ of
Certiorari can certainly be issued where the action of the respondents is
totally contrary to law and is arbitrary in nature. A Constitutional Bench
of Hon’ble Supreme Court in ‘A.K. Kraipak and others’ V/s. Union of
India’ [1969(2) SCC 262] observed that the dividing line between an
administrative power and a quasi-judicial power is quite thin and is being
gradually obliterated. Furthermore, in our Constitution, the rule of law
pervades over the entire field of administration. The concept of rule of law
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would lose it’s vitality if the instrumentalities of the State are not charged
with the duty of discharging their functions in a fair and just manner. Para 13
and 20 of the judgment are reproduced as under:-
’13. The dividing line between an administrative power and
a quasi-judicial power is quite thin and is being gradually
obliterated. For determining whether a power is an
administrative power or a quasi-judicial power one has to
look to the nature of the power conferred, the person or
persons on whom it is conferred, the framework of the law
conferring that power, the consequences ensuing from the
exercise of that power and the manner in which that power
is expected to be exercised. Under our Constitution the rule
of law pervades over the entire field of administration. Every
organ of the State under our Constitution is regulated and
controlled by the rule of law. In a welfare State like ours it is
inevitable that the jurisdiction of the administrative bodies is
increasing at a rapid rate. The concept of rule of law would
lose its vitality if the instrumentalities of the State are not
charged with the duty of discharging their functions in a fair
and just manner. The requirement of acting judicially in
essence is nothing but a requirement to act justly and fairly
and not arbitrarily or capriciously. The procedures which
are considered inherent in the exercise of a judicial power
are merely those which facilitate if not ensure a just and fair
decision. In recent years the concept of quasi-judicial power
has been undergoing a radical change. What was considered
as an administrative power some years back is now being
considered as a quasi-judicial power. ‘Me following
observations of Lord Parker C.J. in Beging v. Criminal
Injuries Compensation Board, Ex. Parte Lain (1967)2 Q.B.
864 are instructive.
“With regard to Mr. Bridge’s second point 1 cannot think
that Atkin, L.J. intended to confine his principle to cases in
which the determination affected rights in the sense of
enforceable rights. Indeed, in the Electricity Commissioners
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case, the rights determined were at any rate not immediately
enforceable rights since the scheme laid down by the
commissioners had to be approved by the Minister of
Transport and by resolutions of Parliament. The
commissioners nevertheless were held amenable to the
jurisdiction of this court. Moreover, as can be seen from
Rex. v. Postmaster-General, Ex-parte Carmichael (1928)1
K.B. 291 and Rex. v. Boycott Ex parte Kessles(1939)2 K.B.
651 the remedy is available even though the decision is
merely a step as a result of which legally enforceable rights
may be affected.
The position as I see it is that the exact limits of the ancient
remedy by way of certiorari have never been and ought not
to be specifically defined. They have varied from time to time
being extended to meet changing conditions. At one time the
writ only went to an inferior court. Later its ambit was
extended to statutory tribunals determining a lis inter
parties. Later again it extended to cases where there was no
lis in the strict sense of the word but where immediate or
subsequent rights of a citizen were affected. The only
constant limits throughout were that it was performing a
public duty. Private or domestic tribunals have always been
outside the scope of certiorari since their authority is
derived solely from contract, that is, from the agreement of
the parties concerned.
Finally, it is to be observed that the remedy has now been
extended, see Reg. v. Manchester Legal Aid Committee, Ex
parte R.A. Brand & Co. Ltd.(1952)2 Q.B. 413 to cases in
which the decision of an administrative officer is only
arrived at after an inquiry or process of a judicial or quasi-
judicial character. In such a case this court has jurisdiction
to supervise that process. We have as it seems to me reached
the position when the ambit of certiorari can be said to cover
every case in which a body of persons of a public as opposed
to a purely private or domestic character has to determine
matters affecting subjects provided always that it has a duty
to act judicially. Looked at in this way the board in my
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judgment comes fairly and squarely, within the jurisdiction
of this court. It is as Mr. Bridge said, “a servant of the
Crown charged by the Crown, by executive instruction, with
the duty of distributing the bounty of the Crown.” It is
clearly, therefore, performing public duties.”
20. It was next urged by the learned Attorney-General that
the mere fact that one of the members of the Board was
biased against some of the petitioners cannot vitiate the
entire proceedings. In this connection he invited our
attention to the decision of this Court in Sumer Chand Jain
v. Union of India and another, Writ Petition NO. 237/66,
decided on 4.5.1967. Therein the Court repelled the
contention that the proceedings of a departmental promotion
committee were vitiated as one of the members of that
committee was favourably disposed towards one of the
selected candidates. The question before the Court was
whether the plea of mala fides was established. The Court
came to the conclusion that on the material on record it was
unable to uphold that plea. In that case there was no
question of any conflict between duty and interest nor any
members of the departmental promotion committee was a
judge in his own case. The only thing complained of was that
one of the members of the promotion committee was
favourably disposed towards one of the competitors. As
mentioned earlier in this case we are essentially concerned
with the question whether the decision taken by the board
can be considered as having been taken fairly and justly’.
Another argument raised by the learned State counsel is that
the reason as to why respondent No.3 has been granted additional charge
was that the Prarambh Institute is close to Gurugram whereas the office of
the petitioner is far away and, therefore, in order to save TA/DA etc. the
additional charge was given to respondent No.3. Such a justification on the
face of it cannot pass the test of reasonableness. In case a person is not even
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eligible for being appointed to a particular post is given an additional charge
then such a supportive justification is totally contrary to the Statutory Rules
and therefore cannot be sustained. Apart from this, the petitioner has
specifically stated in her replication that earlier she had never claimed any
TA/DA when she was holding additional charge of Director, SCERT,
Haryana, Gurugram.
The next argument raised by the learned counsel for respondent
that the petitioner being Appellate Authority under the RTI Act is burdened
with appeals would also not hold good in view of the fact that in the
replication filed by the petitioner, she has stated that no case is pending with
petitioner. Therefore, both the arguments raised by the learned counsel for
the respondent are without any substance.
Once it is an admitted case that respondent No.3 did not
possess the bare minimum qualification and experience under the Statutory
Rules to the post of Director, SCERT, Haryana, Gurugram, he cannot be
permitted to continue with additional charge of said post. It would be trite in
law to say that essential qualifications and experience are not required for
giving additional charge of a public post. In the present case, respondent
No.3 is neither in the service of the Government nor does he possess
requisite essential qualifications under the Statutory Rules. Therefore, it
would not only be improper and illegal but would also be contrary to the
Statutory Rules in case the respondent No.3 is permitted to continue to hold
additional charge to the post of Director, SCERT, Haryana, Gurugram.
Consequently, the present petition is allowed. The decision
taken by the Government vide Annexure P-5 dated 17.07.2020 and
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consequential order dated 04.08.2020 (Annexure R-1) are hereby quashed
and set aside.
However, there shall be no order as to costs.
(JASGURPREET SINGH PURI)
06.04.2021 JUDGE
rakesh
Whether speaking : Yes/No
Whether reportable : Yes/No
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