1. Heard Shri H.N. Pandey, learned counsel appearing for the petitioner and Shri Prashant Mathur, Advocate appearing for respondent Nos. 1 to 3. None has appeared on behalf of respondent No. 5, though the case has been called out in the revised list.
2. Aggrieved by the resolution dated 29.11.1997 passed by the Cantonment Board, Allahabad promoting respondent No. 5 Smt. Rajpati Yadav as Head Mistress, Cantt. Junior High School, the present writ petition has been filed for quashing the same and also for issuance of mandamus directing respondents No. 1 to 4 to promote petitioner on the post of Head master, Cantt. Junior High School, Allahabad.
3. The facts in brief stated in the writ petition are as follows:-
4. The petitioner was appointed as Assistant Teacher on 28.1.1985 in Primary School and was posted at Cantonment Junior High School, Sadar Bazar, Allahabad maintained by the Cantonment Board, Allahabad.
5. In the year 1986, the petitioner was selected for higher grade post of Assistant Teacher, Junior High School, competing with the candidate sponsored by the employment exchange and also departmental candidates including respondent No. 5. Petitioner was selected and appointed on the said post of Assistant Teacher, Cantonment Board Junior High School in the pay-scale of Rs.1350-2070 w.e.f.5.11.1986. (Earlier pay-scale was Rs.450-720 revised to 1350-2070 by 4th Pay Commission).
6. On the contrary, respondent No. 5 Smt. Rajpati Yadav was appointed as Assistant Teacher in 1968 and posted in Weaker Girls Primary School, Sadar Bazar, New Cantt. Allahabad. Subsequently, she was promoted as Head Mistress of Primary School in the scale of Rs.1350-2070 in 1987.
7. The post of Head Master Cantt. Junior High School fell vacant due to retirement of Shri R.M. Yadav on 30.6.1997. The petitioner was given officiating charge of the post of Head Master of the Cantt. Junior High School, Sadar Bazar, Allahabad on oral direction of Executive Officer, Cantonment Board, Allahabad. However, another oral direction was issued to petitioner to hand over charge to respondent No. 5 and under pressure the petitioner had to comply the same. Respondent No. 5 thereafter continued to perform the duties of Head Master without there being any written order by the competent authority. Later on selection for substantive appointment on the post of Head Master in the Junior High School was held in accordance with Rules 5 B (8) of "The Cantonment Fund Servants Rules, 1937" (hereinafter referred to as '1937 Rules')..The respondents, Cantonment Board on account of mis-representation of facts has treated respondent No. 5 senior to the petitioner and since criteria for promotion was seniority-cum-merit, resolved to promote respondent No. 5 only on the ground that she was senior though she was actually junior to the petitioner. It is thus contended that the aforesaid resolution promoting respondent No. 5 is wholly illegal and arbitrary hence, deserves to be set aside.
8.A counter affidavit on behalf of Cantonment Board, respondent Nos. 1 to 3 sworn by Shri R.A. Verma, Cantonment Executive Officer, Cantonment Board, Allahabad has been filed. It is not disputed that there are two schools namely, Primary and Junior Sections which are maintained by the Cantonment Board, Allahabad. It is also said that the pay-scale of Assistant Teacher of a Junior High School and Head Master for Primary School is same. It is also not disputed that service conditions are governed by 1937 Rules. The total length of service of respondent No. 5 was much more than that of the petitioner and thus she is senior to petitioner. Length of service of respondent No 5 was 29 years while petitioner's was 13 years only. The criteria for promotion is seniority. While appointment is to be made by promotion, it is on the basis of seniority-cum-merit.
9.The only question came up for consideration in the case in hand is "whether promotion of respondent No. 5 is valid and in accordance with law i.e. with the relevant statute".
10.It is admitted in para 14 of the counter affidavit of respondent Nos. 1 to 3 that post of Head Master in Junior High School is classified as a promotional post and criteria for appointment on promotional post is seniority subject to rejection of unfit. Rule 5 B paras (4) and (8) of 1937 Rules reads as under:
4. "Appointment to all posts under a Board shall be either by direct recruitment or by promotion or as provided under Rule 5-C."
8. "Appointment to promotion posts shall be made (by the appointing authority) on the basis of seniority lists maintained for this purpose by the Board, subject to rejection of those considered unfit :"
Provided that promotion to selection posts shall be made on the basis of seniority-cum-merit. "
11. Schedule to the aforesaid Rule shows that at the lowest level is the post of Assistant Teacher primary school. The post of Assistant Teacher Junior High School and Head Master of Primary School are at par. Cantonment Board, Allahabad's schedule provides that post of Head Master/Head Mistress of Junior High School is to be filled in by promotion, of the persons from feeder cadre i.e. persons eligible for consideration of such promotion are those working as Head Master, Primary School and Assistant Teacher, Junior High School. It is thus evident that for the purpose of making promotion on the post of Head Master Junior High School, the Head Master/Mistress, Primary School and Assistant Teacher of Junior High School are treated equally and at par. Hence, for the purpose of seniority the two would have to stay in queue on the basis of length of service, the nature of duties irrespective. Their status is equal and both are in same pay-scale. Admittedly, in the case in hand, petitioner was appointed as Assistant Teacher, Junior High School on 5.11.1986 vide appointment letter dated 28.10.1986 (Annexure 3 to the writ petition). This fact stated in paragraph 11 of the writ petition has not been disputed by respondent Nos. 1 to 3 in para 9 of the counter affidavit. So far as respondent No. 5 is concerned, she was an Assistant Teacher in a Primary School i.e. in a grade lower than the petitioner in the year 1986. The respondent No. 5 was admittedly promoted as Head Mistress, Primary School in 1987. This fact stated by the petitioner in para 12 of the writ petition has also not been disputed by the respondent, Cantonment Board in para 10 of its counter affidavit.
12. This Court failed to understand how respondents could treat petitioner junior to respondent No. 5 by taking into account her (respondent No. 5) service rendered in the lower post, as Assistant Teacher in Primary School she was in a lower pay-scale and by no stretch of imagination could be considered at par with the post of Assistant Teacher, Junior High School or Head Master/Head Mistress of a Primary School. It is evident from the impugned resolution that the respondents have given due weightage to the service rendered by respondent No. 5 as Assistant Teacher, Primary School and taking into account the aforesaid length of service, respondent No. 5 has been treated senior to the petitioner which is ex-facie illegal and cannot sustained. Moreover, criteria for promotion is seniority subject to rejection of unfit. The senior most person has to be promoted unless found unfit. This is what has been held by this Court in a catena of decisions.
13. In Dharmendra Singh Vs. State of U.P. & ors 2008 (4) ESC 2579(All.), Para 5 of the said judgment reads as under:-
5. The criteria "seniority subject to rejection of unfit" is admittedly different than the criteria of merit". In a case where the promotion is to be made on the criteria seniority, subject to rejection of unfit individuals on the basis of their seniority are required to be considered without going into a comparative assessment of merit and if the senior most person fulfills the minimum required fitness or merit, he shall be selected without undergoing assessment of merit with others. This is how the Apex Court has also interpreted the criteria of seniority subject to rejection of unfit in B.V. Sivaiah and others v. K. Addanki Babu & others AIR 1998 SC 2565, Union of Inia & others V. Lt. General Rajendra Singh Kadyan and another, JT 2000(8) SC 276, Central Council for Research in Ayurveda and Siddha v. Dr. K. Santhakumari, AIR 2001 SC 2306, Diploma Engineers Sangh V. state of U.P. & others, JT 2007 (4) SC 532."
14. Equation of posts in Cantonment Board Schools have also been considered and explained by this Court in Vibha Srivastava, Vs. Cantonment Board, Varanasi 2010 (2) ESC 1125 (All.) wherein after referring to Rule 5(B) and Schedule though relating to Cantonment School, Varanasi, this Court held in paras 12 and 13 which are as follows:-
12. A perusal of Annexure ''C' shows that the post of Assistant Teacher, Boys High School and Assistant Lady Teacher as well as Assistant Teacher, Primary School are to be filled in by direct recruitment. The post of Head Master, Primary School, Assistant Teacher, Junior High School and Head Master, Junior High Schools are to be filed in by promotion. The feeder cadre for the post of Head Master, Primary School is Assistant Teacher, Primary School. Similarly, for Assistant Teacher, Junior High School it is the Head Master, Primary School and for Head Master, Junior High Schools it is Assistant teacher, Junior High School. There is no provision for relaxation of any of the above rules except that of an executive order dated 4.12.1976 as amended on 3.6.1978 which provide that where in a case of promotion, no suitable employee in the feeder cadre is available, the post temporarily may be filled in from the next lower cadre before resorting to direct recruitment. The relevant extract of the said decision may be reproduced as under:
"(f) In case of a promotion post where no suitable employees in the line of promotion in a particular Board is available the post may be filled temporarily from among suitable candidates holding posts one grade below the posts included in the field of considerations. Where this is also not feasible or no suitable candidates are available, the post may be filled temporarily by following the normal procedure applicable to direct recruitment. The question whether an employee in the lien of promotion in a Cantt. Board is fit for promotion or not would be decided by the G.O.C.-in-C, after scrutinising the relevant service records of the concerned employee before authorising direct recruitment."
13. Annexure ''C' has also been issued by the Government of India, Ministry of Defence in exercise of power under Rule 5-B (5) of 1937 Rules. It is not the case of any of the parties that the channel of promotion provided in Annexure ''C' has been changed at any point of time or the competent authority has granted any relaxation to provide substantive appointment/promotion otherwise. Though, some argument has been advanced by Sri Sahai with respect to the promotion to the post of Assistant Teacher, Junior High School and Head Master, Junior High School in the light of the Government Order dated 4.12.1976 as amended on 3.6.1978 , but in my view, that may not be relevant for the reason that neither any pleading nor any material has been placed on record that at any point of time, before the promotion of the petitioner on the post of Assistant teacher, Junior High School, any exercise of promotion was undertaken by the respondents considering the persons working as Head Master, Primary School for being promoted to the post of Assistant Teacher, Junior High School and after finding them unsuitable for promotion to the post of Assistant Teacher, the petitioner was considered for such promotion and promotion was granted. Sri Sahai candidly stated that neither any such material is on record nor it appears to have been done by the respondents. He, however, submits that so far as the petitioner is concerned, she was considered for promotion on the basis of her merit and high educational qualification, therefore, she cannot be made to suffer if even fault exist on the part of the respondents. From the facts stated above, once it evident that the petitioner never came to be promoted as Head Master, Primary School, it is difficult to hold that her promotion directly to the post of Assistant Teacher, Junior High School was valid and in accordance with law. Feeder post for promotion to the post of Assistant Teacher, Junior High School is Head Master, Primary school. The petitioner having never been promoted to the post of Head Master, Primary School, she never fell in the zone of consideration and field of the eligibility for being considered for promotion to the post of Assistant Teacher, Junior High School. The hierarchy provided in Annexure ''C' read with rule 5-B (5) of 1937 Rules could not have been breached by the Cantonment Board, Varanasi. I have no manner of doubt that such promotion of the petitioner was clearly illegal and contrary to the rules."
15. In view of the aforesaid expositions of law as well as discussions made above, the impugned resolution in favour of respondent No. 5 cannot sustained
16. However, a suggestion is made by Shri Prashant Mathur, learned counsel for the respondents that respondent No. 5 having worked for sufficient time, her promotion may not be disturbed at this stage. A similar suggestion was made in Vibha Srivastaba (Supra) but this Court while turning down the same, said in Paras 22 to 28 as under:-
22. "Now coming to the second question, I am of the view that the appointment made on a post which is not in accordance with law would not confer any right upon the incumbent either to hold the post or to continue in service on such post in any manner. Mere length of service or lack of any fault on the part of the employee concerned is not relevant inasmuch it is the observance of statutory provisions and not the personal or individual act on the part of the parties concerned which would decide the rights of the persons to hold the post. If a person does not possess the requisite qualification or is otherwise appointed on a particular post in violation of the statute, he/she cannot claim to have a right to continue in service simply because it has worked for a long time for the reason that estoppel does not apply against statute and any appointment against the statute is void ab initio. Even, on the ground of sympathy, no such relief can be granted since a Court of law is primarily concerned with rule of law consistent with constitutional provision and mere sympathy, which is directly against the statute and constitutional provisions would be a case of misapplication of the understanding of principles of equity and justice. It would be difficult to hold that an action which would be contrary to statute has the effect of violating others' fundamental right of equal opportunity of employment, can be equitable and sympathetic though it is otherwise unconstitutional. A sympathy or equity which will result in upholding illegal and unconstitutional orders or acts can not be considered to be within the four corners of principles of administration of justice in equitable exercise of power under Article 226 of the Constitution. It would be a travesty of justice if we allow the concept of sympathy or equity to influence the mind of the Court even when the action is ex facie illegal and unconstitutional, violative of Article 16 (1) of the Constitution. Recently, the Apex Court has declined to grant any relief to a person merely because it has worked for long time though did not possess requisite qualification at the time of appointment in accordance with rules and the appointment is not in accordance with the procedure prescribed. In Shesh Mani Shukla Vs. District Inspector of Schools Deoria and others J.T. 2009 (10) SC 309, the Court said :- :
"It is true that the appellant has worked for a long time. His appointment, however, being in contravention of the statutory provision was illegal, and, thus, void ab initio. If his appointment has not been granted approval by the statutory authority, no exception can be taken only because the appellant had worked for a long time. The same by itself, in our opinion, cannot form the basis for obtaining a writ of or in the nature of mandamus; as it is well known that for the said purpose, the writ petitioner must establish a legal right in himself and a corresponding legal duty in the State. {See Food Corporation of India & Ors. v. Ashis Kumar Ganguly & Ors. [2009 (8) SCALE 218]}. Sympathy or sentiments alone, it is well settled, cannot form the basis for issuing a writ of or in the nature of mandamus. {[See State of M.P. & Ors. v. Sanjay Kumar Pathak & Ors. [(2008) 1 SCC 456]}"
23. In State of West Bengal & others Vs. Banibrata Ghosh & others (2009) 3 SCC 250, such a request was declined to be accepted by the Apex Court observing that it would be a misplaced sympathy.
24. In D.M. Premkumari Vs. The Divisional Commissioner, Mysore Division and others 2009 (2) SCALE 731, the Court observed :
"The law is merciless", is a most frequently quoted saying. It has led people to mistakenly think that it is separated from feelings of righteousness. We have become used to the understanding that such emotions as indignation, sorrow and compassion should not exist in legal cases, especially not in judiciary. This, in our view, is a misunderstanding. Judiciary has a very strong sense of justice and it works to maintain social justice and fairness. We hasten to add, judiciary does not believe in misplaced sympathy."
25. Giving reasons for not extending the indulgence in favour of the persons, who have worked for sometimes though not validly appointed, in State of Bihar Vs. Upendra Narayan Singh & others JT 2009 (4) SC 577, the Court observed :
"...the Courts gradually realized that unwarranted sympathy shown to the progenies of spoil system has eaten into the vitals of service structure of the State and public bodies and this is the reason why relief of reinstatement and/or regularization of service has been denied to illegal appointees/backdoor entrants in large number of cases..."
26. In Om Prakash & others Vs. Radhacharan & others 2009 (6) SC 329, the Court observed :
"It is now a well settled principle of law that sentiment or sympathy alone would not be a guiding factor in determining the rights of the parties which are otherwise clear and unambiguous."
27. In Subha B. Nair & others Vs. State of Kerala & others 2008 (7) SCC 210, the Court said :
"This Court furthermore cannot issue a direction only on sentiment/sympathy."
28. In Jagdish Singh Vs. Punjab Engineering College & others JT 2009 (8) SC 501, the Court referred to the observations made earlier in Kerala Solvent Extractions Ltd. Vs. A. Unnikrishnan and another 1994 (1) SCALE 63 with approval as under:
"The reliefs granted by the courts must be seen to be logical and tenable within the framework of the law and should not incur and justify the criticism that the jurisdiction of the courts tends to degenerate into misplaced sympathy, generosity and private benevolence. It is essential to maintain the integrity of legal reasoning and the legitimacy of the conclusions. They must emanate logically from the legal findings and the judicial results must be seen to be principled and supportable on those findings. Expansive judicial mood of mistaken and misplaced compassion at the expense of the legitimacy of the process will eventually lead to mutually irreconcilable situations and denude the judicial process of its dignity, authority, predictability and respectability."
17. In the circumstances, since promotion of respondent No. 5 by treating her senior to petitioner is wholly illegal and cannot be sustained, this writ petition deserved to be allowed.
18. In the result, the writ petition is allowed. The impugned order dated. 29.11.1997 passed by Cantonment Board, Allahabad is hereby quashed.. The respondents shall re-consider the matter of promotion afresh in view of the law discussed above and shall pass appropriate order without any further delay.
Dt./2.11.2010 Pk./7753/98