S.C.AGRAWAL, J. - (1.) MADAN lal petitioner, in this writ petition filed under Article 226 of the Constitution of India, joined service of the Government of Rajasthan in the Education Department as Teacher Grade III on August 24, 1960. At the time of his recruitment in the service, the petitioner was holding the qualification of Intermediate (Commerce). While in the scrivce, the petitioner completed graduation in Commerce in 1972 and also obtained B. Ed. degree in Commerce and in 1978, he passed the M. Com. (Business Administration) exmination. The posts of teachers form part of the Rajasthan Subordinate Educational Service and recruitment to the conditions of service of persons appointed to the Rajasthan Educational Subordinate Service are governed by the Rajasthan Educational Subordinate Service Rules, 1971 (hereinafter referred to as 'the Rules'). Under Schedule II of Rules the various posts of teachers have been classified in to various categories vis., Craft Teachers, Music Teachers, Drawing Teachers In the category of General Teachers fall the posts of Senior Teacher, Teachers Grade II and Teachers Grade III. Appointment on the posts of Teacher Grade II is 25% by direct recruitment and 75% by transfer from the schools run by the Panchayat Samities of the concerned district. The qualification that is prescribed for appointment on the post of Teachers Grade III is Secondary or an equivalent examination recognised by the Rajasthan Government and Teachers' training certificate recognised by the Rajasthan Government. Appointments on the post of Teachers Grade II/Enforcement Assistant are 50% by direct recruitment and 50% by promotion from amongst Teachers Grade III, Library Assistants and Teachers in deaf, dumb and blind schools. The qualifications that have been prescribed for appointment on the post of Teachers Grade II by direct recruitment as well as by promotion are graduate or equivalent examination with aleast two subjects taught in school with a decree or diploma in education or Montessory training. The posts of Senior Teachers are divided in two groups viz. (1) Humanities acd Commerce Grop; and (ii) Science. Appointment on the posts of Senior Teachers is 50% by promotion from amongst Extension Officers. Instructions in B.S.T.C. Schools (Junior Grade), Teachers Grade II and Techical/Testing Assistant in Bureau of Education and Vocational Guidance. The qualifications that are prescribed for promotion to the post of Senior Teachers are of Master's Degree in the relevant subject and a degree or diploma in Education from a recognised institution and teaching experience as Teacher Grade II for five years. In so far as promotions to the posts of Teachers Grade II from Teachars Grade III are concerned, the explanation to Rule 23 of the Rules provides that such promotion shall be made on the vacancies available at each district level on the basis of district -wise seniority of Grade III teachers.
(2.) THE case of the petitioner, in this writ petition, is that for the purpose of making appointment on the 50% posts of Teachers Grade II, which are required to be filled by promotion, the vacancies in the cadre of Teachers Grade II should be determined on subject -wise basis and that 50% of the vacancies should be filled by promotion and the remaining 50% of the vacancies should be filled by direct recruitment The petitioner has submitted that if the aforcesaid procedure had been followed, the petitioner would have been entitled to be promoted to the post of Teacher Grade II in Commerce in the year 1972 it self and that as a result of not following the aforesaid procedure, the petitioner has been denied his right to equality In the matter of employment as guaranteed under Articles 14 and 16 of the Constitution.
(3.) I have heard Mr. N. P. Gupta, the learned Counsel for the petitioner, and the learned Deputy Government Advocate. The contention of Mr. Gupta was that in view of the provisions in the Rules requiring 50% of the vacancies on the post of Teachers Grade II to be filled by direct recruitment and 50% of the vacancies to be filled by promotion, it was incumbent upon the authorities to determine the vacancies on the post of Teachers Grade II subject -wise and make promotion of Teachers Grade III after preparing separate Seniority List of Teachers Grade III subject -wise. The submission of Shri Gupta was that if the aforesaid procedure had been followed, the petitioner would have been promoted as a Teacher Grade II as far back in 1972 and that on account of the failure to follow the aforesaid procedure, the right of the petitioner guaranteed under Articles 14 and 16 has been violated. The learned Deputy Government Advocate has, on the other hand, submitted that under the Rules there is a common cadre of Teachers Grade III and a common cadre of Teachers Grade II and the promotion to the post of Teachers Grade II has to be made at the district level on the basis of district wise Seniorty List of all Teachers Garde III and that there are no separate cadres Teachers Grade III subject -wise. The learned Deputy Government Advocate has further submitted that even amongst Teachers Grade II, there are no separate cadres subject -wise and, therefore, the petitioner cannot claim that promotion from the post of Teachers Grade III to the post of Teacher Grade II should be made on subject -wise basis.;