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Himachal Pradesh High Court · body

2011 DIGILAW 2536 (HP)

Gulshan Rai Sharma v. State Of Himachal Pradesh

2011-11-04

RAJIV SHARMA

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JUDGMENT : Rajiv Sharma, J. Since common questions of law and facts are involved in all these petitions, the same were taken together for hearing and are being disposed of by this common judgment. However, in order to maintain clarity, the facts of C.W.P. (T) No. 16148 of 2008 are being extensively taken into consideration: C.W.P. (T) No. 16148 of 2008. 1. Petitioner was interviewed by a duly constituted Selection Committee on 1st September, 1996. He was offered appointment letter on 2nd September, 1996. Respondent No. 3, Himachal Pradesh University accorded approval to his appointment vide Annexure A-7 under Ordinances 38.5 B (d) on 29.11.1996. Respondent-State issued a notification on 14th September, 2006, whereby it decided to take over DAV College, Daulatpur Chowk, District Una, H.P.. Consequently, the notification was issued on 4th January, 2007, whereby services of Teaching and Non-teaching staff of D.A.V. College, Daulatpur Chowk, District Una were taken over. The services of the petitioner were not taken over. Thereafter, he made a representation vide Annexure A-16. 2. Mr. Onkar Jairath, learned counsel for the petitioner has strenuously argued that the action of the respondent-State not to take over the services of the petitioner as Lecturer (College Cadre) in the subject of Chemistry is arbitrary, unreasonable, thus, violative of Articles 14 and 16 of the Constitution of India. According to him, case of the petitioner was squarely covered by the notification dated 25.8.1994. He lastly contended that the petitioner could not be discriminated only on the ground that he was paid salary under self financing scheme. 3. Mr. R.P. Singh, learned Assistant Advocate General has vehemently argued that since petitioner's salary was paid by the D.A.V. College, Daulatpur Chowk from self financing scheme, his services could not be taken over. 4. Mr. Vinod Thakur, learned counsel for respondent No. 3-University has argued that as far as University is concerned, it has accorded approval to the appointment of the petitioner on 29.11.1996. 5. I have heard the learned counsel for the parties and gone through the pleadings carefully. 6. Petitioner was fully eligible and qualified to be considered for appointment, initially when his appointment was made on ad hoc basis on 20th December, 1988 and thereafter on 2nd September, 1996. 5. I have heard the learned counsel for the parties and gone through the pleadings carefully. 6. Petitioner was fully eligible and qualified to be considered for appointment, initially when his appointment was made on ad hoc basis on 20th December, 1988 and thereafter on 2nd September, 1996. The suitability of the petitioner has been adjudged by a duly Constituted Selection Committee comprising of Chairman, nominee of the Vice-Chancellor of the respondent- University, nominee of the Director of Education and subject expert. The University has accorded approval to the petitioner's appointment strictly as per the University's Ordinances on 29.11.1996. Petitioner has been continuously teaching after 2nd September, 1996 as Lecturer in the subject of Chemistry. It will be advantageous at this stage to refer to notification dated 25.08.1994 governing the terms and conditions of taking over of privately managed Colleges. According to this notification, the Colleges must be permanently affiliated to the Himachal Pradesh University and recognised by the Department of Education for grant-in-aid. It is also provided as per Clause-7 of the notification that services of only qualified teaching and non-teaching staff appointed one year earlier from the date of notification and who fulfilled the prescribed departmental recruitment and promotion rule condition prevalent at the time of taking over, were to be taken over. The services of superannuated, unqualified, under qualified, ad hoc, part time, contingent paid, daily wage teaching and non-teaching employees were not to be taken over. 7. In the instant case, petitioner has been appointed on regular basis. His appointment has been duly approved by respondent No. 3-University. Petitioner's salary is only being paid under self financing scheme. The self financing scheme means that the private College was generating its own funds to defray the salary of the petitioner. The private College was also dependent on grant-in-aid duly paid by the Department of Education. The Lecturers who were appointed under the self financing scheme are better than the candidates who were solely dependant on salary from the grant-in-aid to be released by the Department of Education. The Court is of the considered view that for taking over the services of duly qualified teachers there could be no discrimination on the basis of source of salary to be paid either from self financing scheme or from grant-in-aid. The Court is of the considered view that for taking over the services of duly qualified teachers there could be no discrimination on the basis of source of salary to be paid either from self financing scheme or from grant-in-aid. In the instant case, D.A.V. College, Daulatpur Chowk was permanently affiliated to the Himachal Pradesh University and the petitioner was qualified as per the Recruitment and Promotion Rules prescribed at the time of issuance of notification dated 14.09.2006. The Lecturers appointed by respondents No. 4 and 5 constitute a homogeneous class and there could not any invidious discrimination only on the basis of mode of payment of salary. The representation made by the petitioner vide Annexure A-16 has not been addressed to, though the same was made immediately after the private College was taken over. It is, thus, evident that action of respondents No. 1 and 2 of not taking over the services of the petitioner, though duly eligible and qualified, is arbitrary discriminatory, un-reasonable and, thus, violative of Articles 14 and 16 of the Constitution of India. 8. Petitioner had been getting regular salary. Only those persons who were appointed on ad hoc basis, part time, contingent paid, daily waged teaching and non-teaching were not liable to be taken over. A person who has been appointed on regular basis and getting regular salary made him eligible for taking over his services. Petitioner has been discharging the same duties which are being discharged by the persons who were getting their salary under the grant-in-aid scheme. This fact has been over looked by the respondent-State by ignoring the case of the petitioner. C.W.P.(T) No. 16147 of 2008. 9. In this case, the petitioner was appointed on regular basis as Lecturer (College Cadre) in the subject of Chemistry on 2nd September, 1996. He was interviewed by a duly constituted Selection Committee. The representative of the Director of Higher Education and Vice-Chancellor's nominee was also present. The appointment of the petitioner was approved by the respondent No. 3-University on 27.01.1999. His services have also not been taken over by the State Government on the ground that he was being paid salary out of self financing scheme. C.W.P.(T) No. 16150 of 2008. 10. The representative of the Director of Higher Education and Vice-Chancellor's nominee was also present. The appointment of the petitioner was approved by the respondent No. 3-University on 27.01.1999. His services have also not been taken over by the State Government on the ground that he was being paid salary out of self financing scheme. C.W.P.(T) No. 16150 of 2008. 10. In this case, petitioner was appointed as Lecturer in the subject of Economics, initially on ad hoc basis on 19.07.2000 and thereafter on regular basis on 18.01.2005 after his suitability was adjudged by a duly constituted Selection Committee. His appointment was approved by respondent No. 3- University. His services have also not been taken over on the ground that his salary was paid out of self financing scheme. 11. Accordingly, in view of the observations and discussions made herein above, the writ petitions are allowed. Respondents are directed to take over the services of petitioner as Lecturer (College Cadre) in the subjects of Chemistry and Economics w.e.f. 14.09.2006 with all consequential benefits, within a period of eight weeks from the date of production of a certified copy of this judgment by the petitioner. The pending application(s), if any, also stands disposed of. No costs.