Harmohinder Kaur Sandhu, J. - (1.) The petitioner has challenged the order of the Director Public Instruction (Schools), Punjab as contained in Endst. No. 10/104-71-I(1), dated January 31, 1983 fixing her seniority at Sr. No. 284-A in the tentative gradation list of Headmistresses in the pay scale of Rs. 300-600 dated December 31, 1977, in this petition under Articles 226/227 of the Constitution of India.
(2.) The undisputed facts, briefly, are that the petitioner was appointed as officiating Headmistress in P.E.S. (Non-gazetted) Class III(b) School Cadre (Women Branch) in the pay scale of Rs. 250-10-350 by the Director of Public Instruction, Punjab, vide order dated May 21, 1966, on the recommendations of the Punjab Public Service Commission. On November 1, 1966, she was allocated to the State of Punjab and she continued to work as Headmistress for about six years. On her representation, she was allocated to the State of Haryana on October 4, 1972 in that capacity. Vide orders passed by the Director of Public Instruction, Haryana contained in Endst. No. 8/24-74-E-II(1), dated January 1, 1975 the petitioner was placed in the pay scale of Rs. 400-30-540/40-800 in H.E.S. Class III (Non-gazetted School Cadre). She was taken as such in the Punjab Education Department by transfer vide orders contained in Memo No. 657/EDII (2)-76/1416, dated January 14, 1976, addressed by the Secretary to Government Punjab, Education Department to the director of Public Instruction, Punjab, Chandigarh. The order provided that the petitioner would make no claim whatsoever in the matter of seniority and would rank at the bottom. The Director of Public Instruction, Punjab, Chandigarh, vide his order dated February 25, 1976, allowed her the pay scale of Rs. 300-25-450/25-500, although she was in a higher grade of Rs. 400-30-640/40-800 while in the service of the Haryana Government. On her representation, she was allowed the grade in which she was while in the service of the Haryana Education Department. However, it was made clear that she would have no claim whatsoever in the matter of seniority and would rank at the bottom of the seniority list of Headmistresses Class III (Nongazetted) and her seniority would be determined from the date of her joining in the State of Punjab. She was placed at serial No. 60-A in the seniority list of Headmistresses dated May 1, 1975. The tentative seniority list was revised on December 31, 1977 and the petitioner was placed at serial No. 284-A. She was also placed in the pay scale of Rs. 300-25-450/25-600. She made representation against the order fixing her in the grade of Rs. 300-25-450/25-600 and placing her at Serial No. 284-A on the tentative seniority list. The representation filed by her was considered and rejected by the Director of Public Instruction (Schools), Punjab, vide orders contained in Endst. No. 10/104-71-I(1), dated January 13, 1983 and this order has been assailed in this petition. It is unfortunate that respondent No. 2 did not take into consideration the Rules called the Punjab Educational Service Class III (School Cadre) Rules, 1955 (for Short, the Rules) framed by the Governor of Punjab, in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India and all other powers enabling him in this behalf. These Rules were framed for regulating recruitment and conditions of service of persons appointed to the Punjab Educational State Service Class III (School Cadre) and were published in the Punjab Government Gazette Notification No. 31070-E.I dated May 30, 1957. Rule 2(c) of the Rules says that the "services" means the Punjab Educational Service, Class III, School Cadre. Rule 6 says that the "Service" shall comprise the posts shown in Appendix 'A' to the Rules. Appendix 'A' provides for permanent and temporary posts for Men's Branch and Women's Branch. Headmistresses. Mistresses, District Inspectresses of Schools, Assistant Inspectresses of Schools for P.T. and Assistant Inspectresses of Schools for Domestic Science, etc. in the Women's Branch were placed in the pay scale of Rs. 250-10-350. This was the grade allowed to the petitioner when she had joined the service. Rule 7 provides for methods of recruitment. Post in the service can be filled by the following three methods : (a) by direct appointment, or (b) by transfer of an official from other services or posts of Government in Education Department of any Government in India, or (c) by promotion from lower grade in the service. In conformity with Rule 7(v) of the Rules, the petitioner was taken by transfer from the Department of Education, Haryana in the Punjab Education Department. Her salary was also protected. However, she was not allowed the seniority as provided for in Rule 9 of the Rules and the same reads this : "9. Seniority of members of the service. The seniority inter-se of members of the service holding the same class of posts and in the same or indentical grades of pay shall be determined by the dates of their confirmation in such posts; provided that if two or more members are confirmed in the same class of posts and in the same or identical grades of pay on the same date, their seniority shall be determined as follows : (a) A member appointed by promotion within the service shall be considered senior to member appointed otherwise; (b) a member appointed by transfer from another department of any Government in India shall be senior to a member recruited by direct appointment; (c) in the case of members who are appointed by promotion, seniority shall he determined according to the seniority in the appointment last held; (d) in the case of members who are recruited by transfer from other services or posts in Education Department of Government or any other Department of any Government in India, seniority shall be determined according to seniority in the appointment previously held in the cadre of that service; (e) In the case of members who were both or all recruited by direct appointment and confirmed on the same date, their seniority shall be determined according to the seniority before appointment and if their appointment were made on the same date, an older member shall be senior to a younger member; (f) in the case of members who are recruited by transfer from different departments, seniority shall be determined according to the scale of pay, preference being given to a member who was drawing a higher rate of pay, in his previous appointment and if the rate of scale of pay drawn is the same, an older member shall be senior to a younger one." Clause (d) of Rule 9 postulates that where a member of the service has been recruited by transfer from other services or posts in the Education Department of Government or any other Department of any Government in India, his/her seniority shall be determined according to the seniority in the appointment previously held in the cadre of that service. An employee who has been appointed by transfer from the service in the Education Department of Government carries his or her seniority in the service of the transferee Government. The rule protects the seniority of the employee who has been appointed by transfer under Rule 7(b) of the Rules. It is not disputed that the petitioner was appointed by transfer in the Punjab Education Department. It was stated in the order that the petitioner would be placed at the bottom of the seniority list. The condition in the appointment order runs counter to the statutory Rules. The condition in the order cannot be held valid being repugnant to the Rules. Respondent No. 2 has allowed her the grade in which she was placed by the State of Haryana before her transfer to the Punjab Education Department. While fixing her seniority as Headmistress, she has been treated to be in the grade of Rs. 300-600. This is impermissible. Her salary having been protected, she is not entitled to any further relief in this behalf. Her seniority has to be determined in terms of the provisions of clause (d) of Rule 9 of the Rules.
(3.) For the reasons stated above, the petition succeeds and respondent No. 2 is directed to refix the seniority of the petitioner in terms of the provisions of Rule 9(d) of the Rules. There will be no order as to costs. Petition allowed.;