Disposed

Rajendra Kumar v. the State of Rajasthan

Rajasthan HC12 May 2023CW/1643/2023

Case brief

AI extract

What is this about?

The Court held that notional seniority benefits cannot waive the statutory condition precedent of three years actual experience for promotion to the post of Principal. The petition is disposed of with a direction to hold a review DPC upon the petitioner completing this experience, granting promotion and benefits at par with his junior from the relevant effective date.

What did the court decide?

Directed respondents to consider the petitioner's case for promotion by holding a review DPC upon completion of three years of experience, with benefits granted at par with his junior.

Rajendra Kumar Vs the State of Rajasthan — Education and Admissions | Rajasthan HC (2023)

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[2023/RJJD/014878]

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HIGH COURT of JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Writ Petition No. 1643/2023

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Rajendra Kumar S/o Rameshwar Lal, Aged About 45 Years, Resident of VPO Bhinchari, Tehsil Ratangarh, District Churu (Raj.).

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----Petitioner

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Versus

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1. The State of Rajasthan, through the Secretary, Department of Education, Government of Rajasthan, Secretariat, Jaipur.

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The Director (Secondary Education), Government of Rajasthan, Bikaner, Rajasthan.

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----Respondents

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For Petitioner(s)	: Mr. Devki Nandan Vyas
For Respondent(s)	: Mr. Hemant Choudhary, GC
	Mr. Vishal Jangid,Dy.GC

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HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

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Order

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12/05/2023

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Heard learned counsel for the parties.

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The present writ petition has been filed with the following

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prayers:-

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"(i) By an appropriate writ, order or direction, the Petitioner may kindly be granted benefit of notional Seniority and other consequential benefits while considering his date of appointment as 16.09.2013 as per order dated 12.07.2022.

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(ii) By an appropriate writ, order or direction, the Respondents authorities may kindly be directed to conduct review DPC for the promotion year 2018-2019 for post of Principal, Senior Secondary School and to include the Petitioner therein while granting benefit of Seniority from 16.09.2013.

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(iii) By an appropriate writ, order or direction, the Respondent authorities may kindly be directed to grant promotion to the Petitioner against the vacancies of the

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year 2018-2019 for the post of Principal, Sr. Secondary School.

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(iv) By an appropriate writ, order or direction, the Respondents may kindly be directed to grant all consequential benefits to the Petitioner after giving promotion against the vacancy for the year 20182019."

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Initially, the petitioner has filed a writ petition at Jaipur Bench of this Court being S.B. Civil Writ Petition No.10593/2014 (Rajendra Kumar Vs. State of Rajasthan & Ors.) and the same has been allowed by the Hon'ble Court in the following terms:-

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"Keeping in view thereof, while setting aside the decision of the RPSC in denying the experience gained by the petitioners, cost of Rs.25,000/- is imposed on the respondents to be paid to the petitioners. Further, the respondents are directed to consider the case of the petitioners for appointment on the post of Headmaster in terms of their merit and also give all the consequential benefits of notional seniority etc. from the date their juniors have been so appointed. The actual payment shall be made from today. Exercise aforesaid shall be completed positively within a period of 15 days from the date of production of this order to the respondents."

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In pursuance of the judgment of this Court dated 20.09.2019, the petitioner joined on the post of Headmaster/Lecturer on 14.08.2020.

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The petitioner is working on the post of Headmaster (now redesignated as Vice Principal), Secondary School. One of the petitioner's junior namely Sunita Kumari Meena, who was appointed on 16.09.2013 was considered and promoted for the post of Principal vide order dated 29.05.2018. The petitioner preferred a representation dated 24.10.2022 for grant of promotion on the post of Principal at par to his junior Sunita

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Kumari Meena. The representation of the petitioner has yet not been decided and is still pending consideration with the respondent department. Hence, the present writ petition.

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Learned counsel for the petitioner vehemently argued that since the petitioner's writ petition was allowed by this Court vide order dated 20.09.2019 with a direction to the respondents to grant all consequential benefits, therefore, the petitioner is also entitled to be promoted on the post Principal vis-a-vis Sunita Kumari Meena w.e.f. the order dated 29.05.2018. Learned counsel further submits that the order of notional benefits includes consideration of the petitioner's case for promotion on the post of Principal even though he is not having requisite experience of three years to his credit. He also submits that in identical situation, this Court has allowed the writ petitions by passing an order in S.B. Civil Writ Petition No.4479/2022 (Rakesh Kumar Meena and Ors. Vs. State of Rajasthan & Ors.) decided on 04.02.2023. He submits that the writ petition may be allowed and the respondents may be directed to grant promotion to the petitioner on the post of Principal w.e.f. the date on which Sunita Kumari Meena was granted promotion on the post of Principal.

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Per contra, learned counsel for the State submits that the prerequisite condition for promotion to the post of Principal is that a person must have experience of actual serving on the post of Headmaster/Lecturer for a period of three years and since the petitioner has not completed a period of three years on the post of Headmaster/Lecturer, therefore, he is not eligible to be promoted on the post of Principal. Learned counsel for the respondents

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further submits that granting of notional benefits cannot waive the condition precedent i.e. actual experience of working on the post of Headmaster/Lecturer for three years, for grant of promotional post. He, therefore, submits that the petitioner will be granted the benefit of promotion on the post of Principal at par with his junior on the date on which he attains the eligibility as per rules for promotion to the post of Principal. He, therefore, submits that the writ petition is premature and is liable to be dismissed.

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I have considered the submissions made at the Bar and have gone through the relevant record of the case.

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The facts with respect to the appointment and the earlier writ petition preferred by the petitioner are not disputed, therefore, the only point remains for consideration in the present case is that whether the petitioner is entitled for promotion on the post of Principal without having gained the experience of three years' actual working on the post of Headmaster/Lecturer.

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For better adjudication of the case, Schedule 1 of the Rules of 1970 is reproduced as under:-

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Group 'D' Section-II

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S.N o.	Name of Post	Method of recruitme nt with percentag e	Minimum qualificat ion and experien ce for direct recruitm ent	Post or posts from which promotion is to be made	Minimum qualifications and experience required for promotion	Maxim um age limit for direct recruit ment
1	2	3	4	5	6	7
[1.	(a) Principal, Higher Sec.	[33% by promotion from Headmaster Secondary	[xxx]	[Group 'F' posts]	[Master's Degree in addition to qualifications prescribed for Headmasters	[xxx]

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School/BSTC	School and 67% by	Secondary School with three years
/RTC (Boys)	promotion from Lecturer	experience on posts mentioned in column number
	School Education]	5]

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A bar perusal of the Rules and the Schedule appended to the Rules clearly show that a Headmaster/Lecturer will be considered for promotion to the post of Principal only if he has performed the duties of Headmaster/ School Lecturer for a period of three years. In the opinion of this Court, the actual working experience on the post of Headmaster/Lecturer is a condition precedent for consideration of a candidate for the post of Principal. The notional benefits as ordered by this Court cannot mean to waive the conditions of eligibility prescribed under the Rules for consideration of a candidate for higher/promoted post. The petitioner's case is liable to be considered for promotion on the post of Principal only after he gains the experience of three years' actual working on the post of Headmaster/School Lecturer besides other eligibility conditions mentioned in the Schedule.

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The view taken by this Court is fully supported by a judgment of Hon'ble the Supreme Court rendered in Union of India Vs. M. Bhaskar, reported in (1996) 4 SCC 416, which are as under:-

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"Much emphasis has been laid by the respondents on the judgment in the case of M. Bhaskar (supra) wherein, the Hon’ble Supreme Court inter-alia observed as under:

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The aforesaid decision has been challenged in this appeal by the Union of India by contending that 2 years' period of experience has to be reckoned, not from 11.10.1988, but from 21.9.1989. There is no

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dispute that the eligibility condition is 2 years experience in Grade-II. Now, this respondent having really started working in Grade-II pursuant to the order of 21.9.1989, he could not have gained experience prior to the date he had joined pursuant to this order. The mere fact that his promotion in GradeII was notionally made effective from 11.10.1988 cannot be taken to mean that he started gaining experience from that day, because to gain experience one has to work. Notional promotions are given to take care of some injustice, inter alia, because some junior has come to be promoted earlier. But we entertain no doubt that the person promoted to higher grade cannot gain experience from the date of the notional promotion; it has to be from the date of too actual promotion."

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In view of the discussion made above, the present writ petition is disposed of with a direction to the respondents to consider the case of the petitioner for promotion on the post of Principal by holding the review DPC after he completes three years of working experience on the post of Headmaster (now redesignated as Vice Principal) in accordance with the Rules. If the petitioner is promoted on the post of Principal, he shall be granted benefits at par with his junior Sunita Kumari Meena. He will be granted actual benefits from the date he assumes charge of Principal and notionally w.e.f. the date on which Sunita Kumari Meena was granted promotion on the post of Principal.

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(VINIT KUMAR MATHUR),J

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20-Shahenshah/-

Rajendra Kumar v. the State of Rajasthan

Case brief

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Rajendra Kumar v. the State of Rajasthan

Case brief

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