- (1.) THIS is a writ petition under Art. 226 of the Constitution by one Shri Amarchand, a Senior Teacher in the Education Department of Rajasthan, for an appropriate writ, direction or order. The petitioner questions the vires of a portion of the Schedule appended to the Rajasthan Educational Service Rules, 1970, hereinafter to be referred as "the Rules," occurring in Group F thereof whereby the Teachers in Grade II have been placed at par with Senior Teachers for purposes of promotion to the Rajasthan Educational Service. The petitioner prays that this rule be struck down and the Government directed to comply with the provisions of R. 24 of the Rules before making promotions to the Rajasthan Educational Service from the Rajasthan Educational Subordinate Service on the basis of seniority-cum-merit.
(2.) THE petitioner obtained his Master's Degree in Commerce in the year 1952 and his Bachelor's Degree in Education in the year 1959. He entered Government service as a Teacher in the Untrained Graduate Grade after being selected by the Rajasthan Public Service Commission on 15-7-53. This appointment was on probation. THE petitioner came to be confirmed on completion of the period of one year's probation. At that time the Untrained Graduate Grade was Rs. 90 5 120. With the creation of Multipurposes Higher Secondary Schools a new cadre of Senior Teachers was created. Second Class Post-graduates were eligible for appointment as Senior Teachers. THE pay scale of the Senior Teachers at that time was Rs. 200-10-280. EB-350. THE petitioner was appointed as a Senior Teacher on 28 5-55. THE petitioner's appointment, to start with, was in officiating capacity. THEreafter certain posts of Senior Teachers were advertised by the Rajasthan Public Service Commission and the petitioner was appointed a Senior Teacher in the substantive capacity on being selected by the Commission by order dated 15 9 58. At that time the grade of Senior Teachers was Rs. 200-350, which was later on revised to Rs. 200- 400 THE Trained Graduate Grade of Teachers was having a pay scale of Rs. 110-225 and the Untrained Graduate Grade was of Rs. 90-5-140. THEre was revision of pay grades in 1961. THE Teachers were put in three categories, the first one was of Senior Teachers in Grade I. It carried the pay scale of Rs. 225 485 which was again revised in 1969 to Rs. 25-525. THE Second Grade consisted of Trained and Untrained Graduate Grade Teachers. This grade carried pay scale of Rs. 115-300 which was later on revised to Rs. 160 360. THE Third Grade of Teachers which comprised the rest of the Teachers carried the pay scale of Rs. 75 200 in 1961. which was later on raised to Rs. 110-230. THE posts in Grades II and III were outside the purview of the Commission and the appointments could be made by the appointing authority without reference to the Commission. THE channel of promotion for Grade II Teachers was from Grade III Teachers. THEn in 1970 the rules were framed. In 1971 the Governor made the rules known as the Rajasthan Educational Subordinate Service Rules, 1971, hereinafter to be referred as "the Subordinate Service Rules". THE Rajasthan Educational Service consisted of posts arranged in the various Groups as specified in the Schedule thereto. THE post of Headmasters was in Group F and were thus included in the Rajasthan Educational Service. I may read the relevant portion whose vires is challenged: (omitted from report) The Rajasthan Subordinate Service consisted of posts as arranged in the 5 sections as specified in Schedule appened thereto. The posts of Senior Teachers and Teachers Grade II occur in sec 5 headed 'general-Teachers'. The petitioner's contention against the vires of the rule is that unequals in the Rajasthan Subordinate Service namely, Second Grade Teachers, have been made equals with Senior Teachers in the Rajasthan Subordinate Service for purposes of promotion to the Rajasthan Educational Service and this is violative of Art. 14 of the Constitution. The writ petition has been opposed by the State. It is denied that the rule is ultra vires or that the Senior Teachers are to be treated otherwise than at par with the Secondary Teachers for appointment as Headmasters. Now, there is no doubt that Senior Teachers are higher in rank than Second Grade Teachers. It is remarkable that promotion to the posts of Senior Teachers is made from: (1) Enforcement Officers, (2) Instructors in B. S. T. C. Schools (Junior Grade), (3) Teachers Grade II, and (4) Technical Testing Assistants in Bureau of Education and Vocational Guidance. A post to which promotion is made from another post is undoubtedly higher to the post from which a promotion is made. The attack against the vires of the rule is, however, not sustainable. It is open to the rule making authority to make Senior Teachers as well as Teachers Grade II both eligible for promotion as Headmasters who are members of the Rajasthan Educational Service. I need not go far but may draw attention to Art. 217 of the Constitution by way of analogy. Munsiffs, Civil Judges or District Judges who fulfil the qualifications for appointment as a Judge of the High Court can be appointed as such if they have put in 10 years Judicial Service but no one has ever pretended that this makes unequals as eqiuals. Likewise, in many service rules persons holding lower posts are also made higible along with those who are holding higher posts when promotion to the still elgher posts are to be made. Therefore, there is no substance in the contention that the rule is ultra vires. The next point viz, how the Departmental Promotion Committee has to proceed while making recommendations for promotion to the Rajasthan Educational Service presents difficulties. R. 24 of the Rules which lay down the procedure for promotion may be read: - R. 24. Procedure for selection on the basis of seniority-cum-merit.- (1) Aa soon as it is decided that a certain number of posts shall be filled by promotion, the Director shall prepare a correct and complete list containing names not exceeding five times the number of vacancies, out of the senior most persons as mentioned in column 5 of the Schedule, who are qualified under the rules for promotion to the posts concerned. He shall forward this list along with their confidential rolls and personal files to the Secretary to the Government in the Education Department. (2) (a) For the posts appointments whereto are to be made by Government a Committee consisting of the Chairman of the Commission or his nominee being a member thereof nominated by him, the Secretary to Government in the Appointments Department or his representative not below the rank of Deputy Secretary as member and the Director as Member Secretary, and for the posts, appointments whereto are to be made by the Director, a Committee consisting of a Member of the Commission nominated by the Chairman of the Commission. Dy. Secretary to Government in the Education Department and Deputy Secretary to Government in the Appointments Department as members and the Director as Member Secretary shall consider the cases of all persons included in the list, interviewing such of them as it may deem necessary and shall prepare a list containing names of suitable candidates up to twice the number of such posts as are indicated in sub-rule (1 ). (b) The Chairman or the member of the Commission shall preside at all meetings of the committee at which he is present. (3) The Committee shall prepare a Separate list containing names of persons who may be considered/suitable to fill temporary or permanent vacancies already existing or are likely to occur till the next meeting of the Committee on a temporary or officiating basis and the list so prepared shall be reviewed and revised every year and shall remain in force untill it is so reviewed or revised. (4) The Committee may co-opt a expert from outside to assist the Committee for selection of candidates for such posts as are to be filled by promotion. (5) The names of the candidates selected as suitable shall be arranged in the order of seniority. (6) The lists prepared by the Committee shall be sent to the appointing authority together with the confidential rolls and personal files of the candidates included in them as also of those superseded, if any. (7) Where consultation with the Commission is necessary the lists prepared in accordance with sub-R (2) and (3) shall be forwarded to the Commission by the appointing authority along with (a) confidential rolls and personal files of persons whose names are included in the lists; (b) confidential rolls and personal files of all persons who are proposed to be superseded by the recommendations made by the Committee. The Commission shall consider the lists prepared by the Committee along with the other documents received from the appointing authority and unless it considers any change to the necessary to be made shall approve the lists but if the Commission considers such change as aforesaid to be necessary it shall inform the appointing authority of the changes proposed by it and after taking into account the comments, if any, of the Commission the appointing authority may approve the list finally with such modifications, as may in its opinion, be just and proper. " The rule contemplates that as soon as a certain number of posts are to be filled up by promotion the Director shall prepare a correct and complete list containing the names not exceeding five times the number of vacancies out of the senior-most persons as mentioned in column No. 5 of the Schedule who are qualified under the rules for promotion to the post concerned Now, column No 5 of Group-F of the Schedule, provides that Teachers Grade II and above from the General cadre of Educational Subordinate Service are eligible for promotion as Headmasters, Secondary Schools and for other posts included in the Schedule under serial No 1 of Group F. How the seniority list is to be prepared in respect of persons mentioned in column No. 5 is not an easy matter. R. 24 does not lay down how a list of senior-most persons in column No. 5 shall be prepared. It is remarkable that the seniority list of Senior Teachers is to be prepared State-wise whereas the seniority list of Teachers Grade II is to be prepared range-wise as is mentioned in column No. 8 of the Schedule. R. 29 of the Subordinate Service Rules, 1971 lays down that seniority in each section of the service shall be determined as mentioned in column No. 8 of the Schedule by the year of substantive appointment to a post in particular section. This clearly implies that whereas seniority list in respect of Senior Teacher is prepared State-wise such a seniority list of Second Grade Teachers is prepared range-wise. How they will form the ground work for preparation of a list of seniority as contemplated by R. 24 of the Rules has not been indicated. In the absence of anything in the statutory rules the normal thing to be taken is that a person who is holding a post to which promotions are made from other posts will be senior to the holders of posts from which promotions are made. For example, if promotions to the cadre of a Civil Judge are made from that of the Munsiffs, a Civil Judge will undoubtedly be senior to a Munsiff, on being substantively appointed. Likewise, a Senior Teacher who is substantive is certainly senior to a Second Grade Teacher from which post promotions are to be made to the post of Senior Teachers. The State Government could have provided a suitable criterion for preparing a common seniority list of Senior Teachers and Teachers Grade II for purposes of R. 24 of the Rules. It could have been done by treating the service in higher grade as equivalent to a certain multiple of the period of service in the lower grade. That could be one way. Another way could be by fixing a proportion for filling up the post in the Rajasthan Educational Service. Certain percentage could be given to Senior Teachers and others and certain specified percentage, to the Second Grade Teachers and others. However, the Government are the best Judge how they should arrive at such a seniority list for purposes of R. 24 of the Rules as would be just and fair to all concerned. I have only indicated a line of approach. However, one thing that stares me is that persons who are having their seniority only range-wise and are on lower posts cannot be tagged mechanically with those who are having their seniority State-wise and are on higher posts. In the circumstances I allow the writ petition in part. While I uphold the validity of Group F of the Schedule II of the Rajasthan Educational Service Rules, 1970 (Group-5), I direct the respondents to prepare a common seniority list of Senior Teachers and Second Grade Teachers and others on a just and fair basis before proceeding to make promotions to the Rajasthan Educational Service from the members of the Rajasthan Educational Subordinate Service. The parties are left to bear their own costs. . ;