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Himachal Pradesh High Court · body

2014 DIGILAW 32 (HP)

STATE OF H. P. v. GANGA DHAR SHARMA

2014-01-06

KULDIP SINGH, MANSOOR AHMAD MIR

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JUDGEMENT 1. THE State has filed this petition for quashing order dated 28.2.2007 passed by erstwhile Himachal Pradesh Administrative Tribunal (hereinafter 'Tribunal') in Original Application No. 609 of 2002 whereby it has been held that Original Application No. 609 of 2002 is fully covered by judgment dated 16.11.2000 passed by the Tribunal in Original Application No. 1111 of 1994. 2. THE pleaded case of the petitioners is that respondent is working as Shastri in School Cadre of petitioners, which is a Class -III (Non -Gazetted) post. The appointment to the post of Shastri (School Cadre) is made as per the Himachal Pradesh Education Department Class -III (Cadre of Head Pandits, Pandits and other Teaching Personnel of Sanskrit Colleges and Sanskrit Pathshalas) Service Rules, 1973 (for short 'Rules'). The respondent was transferred to Government Sanskrit College, Sundernagar to teach the subject of Sanskrit. The respondent had filed Original Application No. 609 of 2002 which was contested by the petitioners. The Tribunal allowed the petition on 28.2.2007 in terms of decision in Original Application No.1111 of 1994 with a direction to treat the respondent as Lecturer /Pandit from the date he joined the Sanskrit College and to pay him the pay scale as applicable to similarly situated persons. The Tribunal did not appreciate that respondent was appointed under the Rules and his appointment cannot be deemed to have been made ipso facto to the post of College Lecturer, which is a Class -I Gazetted post and to be filled through Himachal Pradesh Public Service Commission by way of direct recruitment. The Rules have not been set aside, the Tribunal has granted the relief to the respondent which cannot be granted unless the Rules are quashed. The Tribunal has failed to appreciate that no appointment can be made to a post de hors the Recruitment and Promotion Rules. The respondent had been transferred from Govt. Sanskrit College, Sundernagar back to the school, which is the cadre of the respondent, therefore, the respondent has no right to claim Class -I post of Lecturer in College Cadre. The respondent cannot be designated as Lecturer College Cadre merely on the basis of his transfer to Sanskrit College. The respondent has contested the petition by filing reply. Sanskrit College, Sundernagar back to the school, which is the cadre of the respondent, therefore, the respondent has no right to claim Class -I post of Lecturer in College Cadre. The respondent cannot be designated as Lecturer College Cadre merely on the basis of his transfer to Sanskrit College. The respondent has contested the petition by filing reply. In the preliminary objections, it has been pleaded that no writ lies against the judgment of Tribunal, the petition suffers from delay and laches which has been filed more than three years after the decision dated 28.2.2007. The petitioners are estopped from filing the petition inasmuch as the decision on 16.11.2000 in Original Application No. 1111 of 1994 was not assailed by the petitioners, rather the decision dated 16.11.2000 in Original Application No. 1111 of 1994 was implemented by the petitioners, the service conditions of respondent and the petitioner in Original Application No. 1111 of 1994 were identical. On merits, the stand taken by the respondent in preliminary objections has been repeated. It has been stated that the transfer order of the respondent is against law, he could not have been transferred from Govt. Sanskrit College, Sundernagar in view of decision of the Tribunal, the respondent is entitled to be designated and appointed as Lecturer. The respondent has prayed for dismissal of the petition. 3. WE have heard learned counsel for the parties, who have reiterated their stand taken in the pleadings. 4. THE respondent has prayed mainly the following reliefs in the Original Application: "(i) That this Original Application may please be allowed. (ii) That the artificial division between Shastries and Sanskrit Teachers/ Pandits made in the R and P Rules, 1973 vide Annexure P -6 may please be struck down as violative of Articles 14 and 16 of the Constitution of India. (iii) That the applicant, who is holding Acharya qualification may please be directed to be appointed as Pandit/Lecturer in Sanskrit College, Sundernagar, with all consequential benefits, more particularly, in view of Govt. decision contained in Annexure P -8 being further supported by H.P. University vide Annexure P -5. (iii) That the applicant, who is holding Acharya qualification may please be directed to be appointed as Pandit/Lecturer in Sanskrit College, Sundernagar, with all consequential benefits, more particularly, in view of Govt. decision contained in Annexure P -8 being further supported by H.P. University vide Annexure P -5. (iv) That the respondents may further be directed to regularise and absorb the applicant as Pandit/ Lecturer in Sanskrit College with all consequential benefits as other similarly situated persons have been granted same relief by this Hon'ble Tribunal vide Annexure P -10." The impugned order is extracted below: "28.02.2007 Present: Shri Dharamvir Sharma, Advocate, for the applicant. Shri D.C.Pathik, Addl. Advocate General, for respondent -State. The learned counsel for the applicant has stated that applicant is still continuing with the respondent department and this contention has not been denied by the learned Additional Advocate General. The present case is fully covered by the judgment passed by this Tribunal in OA 1111/94 titled as Shri Hem Prabh vs. State of H.P. decided on November 16, 2000. The relevant paras of the aforesaid judgment passed in OA No. 1111/94 paras No. 23 and 24 is reproduced as under: facts the judgment delivered by the Hon'ble Member (Adm.) cannot be agreed upon but on the other hand, I agree with the judgment passed by Mr. Justice D.P.Sood, allowing the prayer of the applicant. 24. In view of the foregoing reasons, the present application preferred by Shri Hem Prabh Sharma, applicant is allowed as decided by Mr. Justice D.P.Sood, in his judgment dated March 30, 1998 and the present application by majority stands disposed of in favour of the applicant. The parties are however, left to bear their own costs." In view of the above the present original application stands finally disposed of." 5. THE paragraphs 23, 24 of the judgment dated 16.11.2000 in O.A. No. 1111 of 1994 noticed in the impugned order have connection with paragraphs 2 and 3 of the judgment dated 16.11.2000, therefore, those paragraphs are reproduced hereinbelow: "2. This Original Application was finally heard and decided by the Division Bench comprising of Mr. Justice D.P.Sood, Chairman and Hon'ble Mr. Attar Singh, Member (Admn.). The two Hon'ble Members did not agree while finally disposing of the original application. Mr. This Original Application was finally heard and decided by the Division Bench comprising of Mr. Justice D.P.Sood, Chairman and Hon'ble Mr. Attar Singh, Member (Admn.). The two Hon'ble Members did not agree while finally disposing of the original application. Mr. Justice D.P.Sood, the Hon'ble Chairman while concluding the judgment passed the following operative order: "Thus, the application is allowed in the light of the observations made above. Respondents are directed to deem the appointment of the applicant as Pandit and allow him to continue as such. We further direct that as a consequence thereof he be paid the pay scale of Rs.700 -1600 with difference of arrears of pay since 21.11.1984 the date of issuance of letter issued by the Registrar, Himachal Pradesh, University approving his appointment as Lecturer in the Sanskrit College, Sundernagar with all consequential benefits like that of Mahidhar Sharma, Trained Graduate Teacher. The application stands disposed of but with no order as to costs." 3. On the other hand the concluding para of the judgment passed by the Hon'ble Member (Admn.) is as under: - In view of the above discussion, I am very clear in my mind that the applicant belongs to District Cadre. He joined at Sanskrit College, Sundernagar because it was most convenient to him and freed him from the problems associated with the transfer. As per transfer order, he was transferred to the Sanskrit College in his own pay scale and grade. He has raised this issue of equal pay for equal work after working in this institution for 15 years. He has not been appointed in accordance with the Recruitment and Promotion Rules as Pandit but he has been appointed under different set of Rules as a Shastri. Granting the pay scale of lecturer as sought by the applicant would amount to; firstly, the creation of post of lecturer and secondly it would amount to relaxation of the rules regarding appointment as Lecturer/Pandit. As stated earlier, the Lecturer/ Pandit are appointed by the Public Service Commission while the applicant has not been appointed through Public Service Commission. Thus, granting applicant the status and pay scale of Pandit Lecturer would not be in accordance with Recruitment and Promotion Rules for the post of Lecturer/Pandits. Again the applicant is not entitled to the payment of equal wages so long as there is no post created of Lecturer/ Pandit. Thus, granting applicant the status and pay scale of Pandit Lecturer would not be in accordance with Recruitment and Promotion Rules for the post of Lecturer/Pandits. Again the applicant is not entitled to the payment of equal wages so long as there is no post created of Lecturer/ Pandit. By allowing the higher scale it would amount to creation of post in that behalf. Creation of post is not the function of this Forum. In view of the discussion as above, I am of the view that the applicant has failed to convince me and so the application deserves to be rejected and I order accordingly with no order as to costs." 6. IT is the admitted case of the respondent in the Original Application that he was appointed as Shastri in School Cadre of Education Department of Himachal Pradesh and was posted as such on 20.3.1979. According to him, he was transferred and posted as Pandit in Govt. Sanskrit College, Sundernagar. He has taken the plea that the Himachal Pradesh University on 29.4.1986 had approved his appointment as teacher (Pandit) in Govt. Sanskrit College, Sundernagar. The teachers in the Sanskrit Colleges, belong to Class -III category and their service is governed by the Rules. The respondent earlier filed Original Application No. 1721 of 1997, the Tribunal vide order dated 24.12.2001 directed the Commissioner -cum -Secretary (Education) to the Government of Himachal Pradesh to treat the Original Application No. 1721 of 1997 as representation of respondent and decide the same after giving personal hearing to the respondent, who rejected the representation on 16.3.2002. The respondent thereafter filed the Original Application No. 609 of 2002 for the reliefs noticed above. The petitioners in their reply to Original Application before the Tribunal have pleaded that there are separate Recruitment and Promotion Rules for the post of Lecturer in Sanskrit Colleges. The respondent was appointed as Shastri, Class -III (District Cadre), under the separate Rules. The respondent was temporarily adjusted in Government Sanskrit Pathshala, Sundernagar to work against the post of Pandit. The respondent was never appointed by transfer but was temporarily adjusted against the post of Pandit. The temporary adjustment of respondent does not confer any right upon him for his retention against higher post for which Recruitment and Promotion Rules are different. The respondent was rightly taken back to the school as he was initially appointed as Shastri. The respondent was never appointed by transfer but was temporarily adjusted against the post of Pandit. The temporary adjustment of respondent does not confer any right upon him for his retention against higher post for which Recruitment and Promotion Rules are different. The respondent was rightly taken back to the school as he was initially appointed as Shastri. The respondent is not entitled to equal pay for equal work. The petitioners in their reply before the Tribunal prayed for dismissal of the Original Application. 7. THE learned counsel for the respondent has submitted that the petition is barred by delay, laches which has been filed 3 years 3 months and 14 days after the decision dated 28.2.2007 of the Tribunal. He has also submitted that the petition in the High Court is not maintainable under the Administrative Tribunals Act, 1985 (for short 'Act'). These contentions have no force. The petition was admitted on 21.12.2010 in presence of counsel for the respondent. At the time of admission, no objection was taken by learned counsel for the respondent that the petition is barred by delay and laches, nor the question of delay and laches was left open by the Court when the petition was admitted. Once the petition has been admitted in presence of learned counsel for the respondent without any objection of delay and laches, then it will be deemed that the respondent has waived objection of delay and laches in filing the petition. The respondent lateron is precluded from raising objection that the petition is barred by delay and laches. Once the petition has been admitted, it is to be decided on merits and not to be thrown out on delay and laches. In L. Chandra Kumar vs. Union of India and others (1997) 3 SCC 261 , the Supreme Court has considered the Act and has held that all decisions of the Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the Tribunal concerned falls. In view of law laid down by the Supreme Court, the petition against the impugned decision dated 28.2.2007 is maintainable in the High Court. 8. THE respondent was adjusted in Govt. In view of law laid down by the Supreme Court, the petition against the impugned decision dated 28.2.2007 is maintainable in the High Court. 8. THE respondent was adjusted in Govt. Sanskrit Pathshala, Sundernagar, the relevant office order is extracted below: The pleaded case of the respondent in the Original Application is that he was initially appointed as Shastri in School Cadre of Education Department, Himachal Pradesh and was posted as such on 20.3.1979. He has also pleaded that he was transferred and posted as Pandit in Govt. Sanskrit College, Sundernagar. The petitioners case is that the appointment of respondent is regulated by 1973 Rules and the respondent was posted on Class -III School (District Cadre). The post of College Lecturer is Class -I post, which is regulated by different set of Recruitment and Promotion Rules and is hundred percent by way of direct recruitment through Public Service Commission. It is not the case of the respondent that the procedure prescribed under the Recruitment and Promotion Rules for the post of Lecturer was followed for his appointment on College Cadre post. On the contrary, merely on the basis of his transfer order which the petitioners have claimed to be only adjustment, the respondent is claiming his right on College Cadre post. In J. & K. Public Service Commission, etc. vs. Dr. Narinder Mohan and others etc.etc. AIR 1994 SC 1808 , the Supreme court has held as follows: "The next question is whether the direction given by the High Court to regularise the services of the respondents is valid in law. It is true that the ad hoc appointees have been continuing from 1986 onwards but their appointments are de hors the Rules. Rules prescribe only two modes of recruitment, namely, direct recruitment or promotion by selection. As regards the Lecturers are concerned, it is only by direct recruitment. The mode of recruitment suggested by the High Court, namely, regularisation by placing the service record of the respondents before the PSC and consideration thereof and PSC's recommendation in that behalf is only a hybrid procedure not contemplated by the Rules. Moreover, when the Rules prescribe direct recruitment, every eligible candidate is entitled to be considered and recruitment by open advertisement which is one of the well accepted modes of recruitment. Moreover, when the Rules prescribe direct recruitment, every eligible candidate is entitled to be considered and recruitment by open advertisement which is one of the well accepted modes of recruitment. Inviting applications for recruitment to fill in notified vacancies is consistent with the right to apply for by qualified and eligible persons and consideration of their claim to an office or post under the State is a guaranteed right given under Arts. 14 and 16 of the Constitution. The direction, therefore, issued by the Division Bench is in negation of Arts. 14 and 16 and in violation to the statutory rules. The PSC cannot be directed to devise a third mode of selection, as directed by the High Court, nor be mandated to disobey the Constitution and the law." 9. THE Tribunal did not grant relief No.2 prayed by the respondent in the Original Application for quashing 1973 Rules. The respondent was adjusted at Govt. Sanskrit Pathshala, Sundernagar. On behalf of the respondent, it has been submitted that vide letter dated 29.4.1986, the H.P. University had approved the regular appointment of respondent as teacher. The letter dated 29.4.1986 of the University approving the regular appointment of respondent in Govt. Sanskrit College, Sundernagar is of no help to respondent inasmuch as the H.P. University was not the appointing authority of the respondent nor it is clear from the aforesaid letter of the University that University considered the appointment of the respondent as Lecturer in accordance with the Rules, therefore, merely on the basis of letter of the University, it cannot be held that the respondent was appointed as College Lecturer on regular basis. 10. THE petitioners contested the claim of the respondent by filing reply before the Tribunal. In the impugned judgment, the Tribunal has not recorded the consent of the petitioners that the case of the respondent is similar to the case of the petitioner in Original Application No. 1111 of 1994. The Tribunal in the impugned judgment has not marshaled the facts of the present case and the facts of the case in Original Application No. 1111 of 1994. It was incumbent upon the Tribunal to return specific findings on the contested points in the light of the facts of the present case. The Tribunal in the impugned judgment has not marshaled the facts of the present case and the facts of the case in Original Application No. 1111 of 1994. It was incumbent upon the Tribunal to return specific findings on the contested points in the light of the facts of the present case. In L. Chandra Kumar (supra), the Supreme Court has held that the Tribunals will, nevertheless, continue to act like courts of first instance in respect of the areas of law for which they have been constituted. It is the duty of the Court of first instance to consider the facts and decide the points raised on either side while rendering the judgment. This is completely lacking in the impugned order. The respondent cannot take benefit that simply decision dated 16.11.2000 in Original Application No. 1111 of 1994 was allowed to attain finality and implemented by the petitioners, therefore, the impugned order is to be affirmed even if on facts and in law it is found that the impugned order is not sustainable. In Dr. Narinder Mohan (supra), the ad hoc appointments of the respondents therein were found de hors the Rules. It was held that when Rules prescribed direct recruitment, every eligible candidate is entitled to be considered and recruited by open advertisement which is one of the accepted modes of the recruitment. It was also observed that Public Service Commission cannot be directed to adopt the third mode of selection as directed by the High Court in that case. The respondent has not pointed out from the Recruitment and Promotion Rules of College Lecturers, whether there is a provision for deemed appointment. The Tribunal by giving declaration of deemed appointment to the respondent as College Lecturer has adopted a mode of appointment to respondent as College Lecturer which has not been shown having the support of Recruitment and Promotion Rules for the post of College Lecturer. 11. IN CWP(T) No. 3238 of 2008, decided on 2.1.2009 the petitioner therein sought pay scale in accordance with the UGC norms alongwith all consequential benefits. It has been held that petitioner therein initially was not employed in the cadre of College Lecturer, she was posted in Sanskrit College only to teach upto plus two level at her own request, the petitioner therein was not entitled to such pay scale. It has been held that petitioner therein initially was not employed in the cadre of College Lecturer, she was posted in Sanskrit College only to teach upto plus two level at her own request, the petitioner therein was not entitled to such pay scale. Only such of those persons whose appointment is in accordance with the R & P Rules as College Lecturers would be entitled to the benefits and advantages contained in the Rules. In the present case also, the respondent has failed to show that he was appointed as College Lecturer in accordance with the Recruitment and Promotion Rules of College Lecturers. Therefore, the respondent is not entitled to pay equal to the pay of College Lecturer. The Tribunal has misconstrued, misinterpreted the legal position, the impugned order is not sustainable. 12. IN view of above, the petition is allowed. The order dated 28.2.2007 passed in Original Application No. 609 of 2002 by the Tribunal is quashed and the Original Application No. 609 of 2002 is dismissed with no order as to costs.