K.KANNAN J - (1.) THE petitioner challenges the action of the Jat Education Society arrayed as the 3rd respondent in its decision to fill up the post of the Head of the Department, Electronics and Communication Engineering in the college that it is running namely Chhotu Ram Polytechnic, Rohtak arrayed as the 5th respondent by way of direct recruitment, which is purported to be in violation of the Rules and the directions given by the State Government. The petitioner's case is rested on a contention that the relevant Rules governing the appointment to the post as the Head of the Department provide for appointment by promotion to 75% of the posts and by directment recruitment to 25% of the posts, and having regard to the fact that the post of Head of the Department is a single post, in terms of the Government instructions dated 14.03.2008, it has to be filled up only by promotion. The cause of action for the petition is an advertisement notification issued on 25.11.2008 calling for eligible candidates for appointment to the post, inter alia, for Head of the Department by direct recruitment. The petitioner's further contention is that as per the relevant Rule, which is the Haryana Technical Education Department (Group A) Service Rules, 1986, the requirement of academic qualification and experience is 12 years as Lecturer in Electronics and Communication Engineering out of which 2 years experience must be as Senior Lecturer in Electronics and Communication Engineering and that the candidate must have a 1st Class Bachelor's degree in Electronics and Communication Engineering and Technology from a recognized University/Institute with 8 years experience as Lecturer in Electronics and Communication Engineering in a University or College affiliated to University or 8 years professional experience on a gazetted Electronics & Communication Egnineering post with knowledge of Hindi upto matriculation standard. The petitioner would contend that he had the necessary experience and he had actually been working as Head of the Department since 17.09.2001 itself and the selection, which is purported to have been made through direct recruitment of the 5th respondent was irregular against the relevant Recruitment Rules.
(2.) THE contention of the petitioner is contested by the 5th respondent on the ground that the direct recruitment was always permissible under the Rules if there was no person eligible for consideration for appointment by promotion and the petitioner's qualifications themselves did not merit consideration of the petitioner to the post. The objection with reference to the qualification is on the basis that the petitioner deliberately does not give the necessary details of his teaching experience as Lecturer and the documents produced by the petitioner as Annexure P-1 merely describes himself as follows:- "05.02.1996 to 28.06.1996 Lecturer 06.08.1996 to 12.02.1997 Lecturer 01.04.1997 to 14.08.1997 Lecturer 22.09.1997 to 30.08.2006 Lecturer 31.08.2006 to till date Senior Lecturer" From the above information, according to the learned Senior Counsel for the 5th respondent, the petitioner did not have a continuous service of 8 or 12 years as contemplated by the Rules. He had been a conractual appointee in various institutes at various times and he had been regularly appointed only on 22.09.1997 with the 4th respondent institute. His experience would, therefore, count only from 1997 and this was made clear through the amendment brought in the Rules through a notification dated 11.11.2008. The 1986 Rules provide for an explanation that reads as follows:- "Explanation: The term 'experience' as used herein shall mean the service rendered in the Department of Technical Education, Haryana after regular appointment on the post." The contention by the 5th respondent is, therefore, that admittedly the petitioner did not have a regular appointment before 1997 and hence, he did not have the requisite qualification for consideration. This contention is itself the basis for the writ petition filed by the 5th respondent-Jai Kumar in C.W.P. No.14868 of 2011 where he has contended that he should be allowed to continue working as Head of the Department in terms of the appointment order that had been already issued and to quash the subsequent decision taken by the Board of Management on 25.07.2011 purporting to revise the decision taken by the previous Board of Management regarding the filling up of the post of Head of the Department through direct recruitment and to allow for consideration of appointment by promotion and particularly accepting the candidature of the petitioner as eligible for consideration for promotion. Incidentally, it could be seen that the decision in C.W.P. No.19788 of 2008 regarding the eligibility of the petitioner for consideration for appointment will also decide the issue raised by the 5th respondent through his own writ petition in C.W.P. No.14868 of 2011. The other three writ petitions enumerated above, both the counsel argued that they would follow the decision taken in the above two writ petitions and therefore, the facts for the other three writ petitions are not discussed now and they will be set out after the consideration of relevant issues brought through these two writ petitions.
(3.) LEARNED Senior Counsel, Sh. Malik, would support the contentions of the pre-eminent claims of the petitioner for consideration for appointment to the Head of the Department on the ground that the Rules do not stipulate anywhere that it should be continuous service and all that it requires is 8 years or 12 years experience as Lecturer and it is inconsequential if there has been any breaks in service. As a second line of argument, the learned counsel would contend that the amendment in the Rules which had been provided for through the notification dated 11.11.2008 will be operative only prospectively and since a vacancy had arisen even earlier, the case would require to be considered only on the basis of the unamended regulations that did not stipulate that the appointment should have been to a regular post. The fact that the petitioner had been working as a Lecturer as contractual employee, according to him, therefore would be immaterial. The learned Senior Counsel would rely on the decisions rendered by the Supreme Court and by this Court to contend for two positions: One; if there is a reference to experience, it would be irrelevant whether such experience was a contractual employee or as a regular employee. This is supported through the judgment of this Court in Geeta Devi Vs. State of Haryana and another in C.W.P. No.21663 of 2008 where the Division Bench dealing with Rule 7 of the Haryana Technical Education Rules specifically raised the question and answered as follows:- ".........It is not material whether such an experience has been gained while working on adhoc basis or on regular basis. As long as a person has earned the experience of working on teaching post like Lecturer or Senior Lecturer then such an experience cannot be ignored and on that basis the petitioner could not have been non-suited from consideration for promotion to the post of the Head of the Department. On principle and precedent both the questions have to be answered in favour of the petitioner. When the aforesaid principles are applied to the facts of the present case it becomes obvious that on the date of consideration of her case in December, 2008 the petitioner had more than 12 years service. She also fulfilled the condition of working atleast two years on the post of Senior Lecturer. Moreover, she has been senior to respondent no.3 in the cadre of Sr. Lecturers and the principle of seniority -cum- merit is applicable as provided by Rule 9(2) of the Rules. Accordingly, it is held that the case of the petitioner is required to be considered by respondents in accordance with the unamended rules. The explanation added on 11.11.2008 would not apply to her case. It is, therefore, held that the experience gained by the petitioner on adhoc basis or in a private recognized college would count for promotion to the post of Head of the Department......" Two, on the issue of that the amended Rule would apply only prospectively in relation to various vacancies subsequent to the amended Rules, the learned Senior Counsel would refer to a judgment of the Supreme Court in Y.V. Rangaiah Vs. J. Sreenivasa Rao (1983) 3 SCC 285 that had been actually considered and dealt with by the Division Bench in Geeta Devi's case (supra).;