1. Petitioner Gurcharan Singh in S.S. Master in Government Senior Secondary School. By virtue of the present writ petition, he seeks a mandamus to be issued to the Director, Secondary Education, Haryana, to consider his claim for promotion as Lecturer in Punjabi w.e.f. the date respondent No. 3 had been promoted.
2. The relevant facts are that the petitioner was appointed as a Punjabi teacher on ad hoc basis on 25.7.1979. His services were regularised from 15.9.1982. He was promoted-as S.S. Master on 28.2.1991. 50% of the posts of Lecturers in Senior Secondary Schools are to be filled up by way of promotion and 50% posts are to be filled up by way of direct recruitment. The qualifications prescribed for the post of Lecturer were that a candidate should have 50% marks in post-graduation. Respondent No. 3 is stated to have been appointed as Drawing Teacher on 11.2.1985 and promoted as Lecturer on 20.4.1998. The grievance of the petitioner is that he is senior to respondent No. 3 but his claim for promotion has not been considered. He is duly qualified to the appointed as a Lecturer. The reason for not appointing the peti-
tioner as a Lecturer recorded is that a seniority list has been drawn of Masters/Mistresses and C&V teachers on the basis of their dates of appointments. It is contended that in C&V Category, there are teachers in different scales. The said policy decision is stated to be arbitrary and it is claimed that since the petitioner was in a higher scale, he should be given a priority right.
3. In the written statement filed, the petition as such has been contested. It has been pointed out that, as per policy decision, promotion against the post of Lecturer is to be made from Masters and Classical & Vernacular teachers on the basis of their joint seniority. The petitioner has been promoted as S.S. Master on 28.2.1991. He ceased to be a member of C&V Cadre and as such he is to be considered for the post of Lecturer in Punjabi on the basis of seniority from the cadre of Masters and not from the cadre of C&V i.e. Punjabi teacher. It is asserted that no person junior to the petitioner has since been promoted.
4. The only argument advanced at the time of making submissions on behalf of the petitioner was that the petitioner was in a higher scale and since" he was in a higher scale, he should have been considered first for the post of Lectuer because, according to the learned counsel, earlier he was also in C&V Cadre and was senior to respondent No. 3.
5. On behalf of the respondents, our attention has been drawn to the earlier decision Annexure R-1 which reads as under :-
"Subject : Change of policy of promotion of Masters/Mistresses & C & V Teachers as School Lecturers.
Reference to Government Memo No. 35/32/92 Edu.II(2) dated 22.10.92 on the subject noted above.
2. Government on reconsideration have revised the policy laid down vide letter referred above and taken the following decisions :
i) The Masters/Mistresses and C&V Teachers be given promotion as Lecturers in which they have done their post-graduation irrespective of the subjects they are actually teaching as Masters.
ii) The condition of experience of 5 years for promotion for the post of Lecturer is reduced from 5 years to 2 years.
iii) A joint seniority list of Masters/Mistresses and C&V Teachers eligible for promotion as Lecturers will be drawn on the basis of date of their substantive appointed.
It is requested to take further action as per decision taken above and this may be brought to the notice of all concerned for compliance.
Deputy Director Estt-IV.
for Director Secondary Education, Haryana, Chandigarh".
On the strength of this policy decision, it was urged that the petitioner had opted and was promoted as a Master and his seniority has to be counted from that date. In other words, his earlier service while working as C & V teacher cannot be counted for his seniority.
6. The contention of the respondents must fail. As per written statement, the petitioner was earlier in C & V Cadre as a Punjabi teacher. He was promoted as a Master. For the post of Lecturer, the Masters and persons in the cadre of C&V were eligible. Once it is so, it looks illogical, unreasonable and unconscionable that the years of service rendered by the petitioner in the cadre of C&V should be lost to him. A person who has not even been promoted as Master would get his entire service in the cadre of C&V so counted. To that extent, therefore, the policy decision Annexure R-l, indeed, cannot be sustained.
7. There is another way of looking at the matter. The petitioner, who is otherwise senior to respondent No. 3 in C&V cadre, could not have been ignored merely because he was promoted as Master. He was in a higher scale. In the case of Rameshwar Dass and another v. The State of Haryana, Civil Writ Petition No. 4196 of 1983 decided on 13.7.1992, this question had come up for consideration. This Court while dealing with somewhat similar situation had held as under :-
"....If more than one categories are eligible for promotion to the next higher rank, it is always open to . the State Government to provide certain quota for each category, but in the absence of any such quota, according to me, the higher rank has to be exhausted first before going to the lower rank, which may also be eligible for promotion to a particular post. It has not been suggested on behalf of the State Government that any quota has been fixed for all the eligible categories for being promoted to Class II Service. This being the factual matrix, since the Inspectors, Cooperative Societies, are eligible forpromotion to class II Service, there is no reason to deny the same right of consideration for promotion to Statistical Assistants. The denial of such right would be, to my mind, violative of class II Rules as also the equality clause enshrined in Article 16 of the Constitution of India."
8. Once again in the case of Rattan Singh v. The State of Haryana and others, 1999(3) Recent Services Judgments 179, this question in another form arose. This Court again held as under :-"We do not find any substance in the argument of the learned counsel for the respondents that as Assistants, the respondents had become eligible for consideration prior to the petitioner as Senior Scale Stenographer and, therefore, irrespective of their date of promotion as Personal Assistant or Head Assistant, the date of attaining eligibility for promotion as Superintendent would be relevant as to who has the prior right for consideration for promotion to the post of Superintendent. According to us, when the post by promotion is to be filled up, all eligible persons irrespective of the date of acquiring eligibility have to be considered in accordance with the seniority as men-
tioned above. Since we are of the view that the petitioner is senior as Personal Assistant as compared to the private respondents in the rank of Head Assistant, he had a prior right of consideration for promotion as Superintendent." We find ourselves in agreement with the aforesaid view and taking totality of the facts and circumstances of the present controversy, it is clear that the claim of the petitioners cannot be ignored and that of respondent No. 3 preferred. The petitioner for all practical purposes has to be termed as senior to respondent No.
9. For these reasons, we allow the writ petition and direct the State to reconsider the case of the petitioner in the light of the abovesaid findings and all other facts. The case of the petitioner for promotion should be decided preferably, within six months from today. Thereafter, consequential benefits, if any, shall be given to him.
10. Petition allowed.