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Himachal Pradesh High Court · body

2014 DIGILAW 440 (HP)

Baldev Kumar v. State of Himachal Pradesh

2014-04-23

RAJIV SHARMA

body2014
JUDGMENT Justice Rajiv Sharma, Judge. On the oral application of Mr. Ajay Sharma, Higher Education Institute Society, Government Degree College, Daulatpur Chowk, Tehsil Amb, District Una, H.P. through Principal is added as respondent No.5. 2. Applications were invited for filling up the posts of Lecturers in Education vide advertisement which appeared in the Daily Tribune dated 9.5.2005 and in the Punjab Kesari dated 7.5.2005. Petitioners submitted their applications for considering their candidature for the posts of Lecturer. Petitioners appeared before the Selection Committee on 6.7.2005. Petitioners’ names were recommended by the Selection Committee for the post of Lecturer in D.A.V. College, Daulatpur Chowk. However, they were accorded exemption of NET/SET condition as per UGC letter No. F-1-1/2003 (PS) Meeting dated 14.3.2005, subject to approval of HP University. The D.A.V. College, Daulatpur Chowk was taken over by the State Government vide notification dated 4.1.2007. Names of courses were also reflected in the report alongwith assets and liabilities in respect of D.A.V. College, Daulatpur Chowk. Names of the teachers under the category of Self-Financing Scheme were specifically stated in the report. Respondent No. 4-University approved the proceedings of the Selection Committee as per provision of Rule 3 (h) of Appendix “A” to Chapter XXXVIII paragraph 38.5 B (d) of the First Ordinances on 9.12.2008. All the streams of the DAV College, Daulatpur Chowk, were taken over except the stream of B. Ed. The Vice Chancellor of respondent No.4 University constituted a Committee on 25.3.2009 to consider the College for extension of affiliation to run the B. Ed. Course for the academic session 2009-10 for a unit of 100 seats. The inspection was carried out by the Committee on 20.7.2009. The Committee has observed as per para-5 of the report that appointment letters have not been issued to the teachers by the College authorities despite University directions vide letter dated 9.12.2008. According to para 6 of the report though the appointments were made for regular posts on UGC scale, only one teacher was being paid salary as per the UGC scale. Remaining three teachers were on fixed salary of Rs.10,000/-. Remaining three teachers were also to be paid salary as per the UGC scale alongwith other admissible allowances. The Vice Chancellor of respondent No.4 University also constituted another Committee on 14.6.2011. The Committee visited DAV College Daulatpur Chowk on 7.7.2011 for examining its case for extension of affiliation to run B. Ed. Remaining three teachers were also to be paid salary as per the UGC scale alongwith other admissible allowances. The Vice Chancellor of respondent No.4 University also constituted another Committee on 14.6.2011. The Committee visited DAV College Daulatpur Chowk on 7.7.2011 for examining its case for extension of affiliation to run B. Ed. course for the academic session 2011-12. The Committee has recommended that the College required two more regular teaching faculties to supplement existing teaching practices. It was also strongly recommended that the regular teaching staff shall be given salary according to UGC Scale alongwith prescribed annual increments. However, the fact of the matter is that despite the approval accorded by respondent No.4-University to the proceedings of the Selection Committee on 9.12.2008 and all the recommendations made by the Committee constituted to consider the college for extension of affiliation to run the B. Ed. Course, the petitioners were being paid Rs.10,000/-per month towards salary. 3. Case of the respondent-State, in a nutshell, is that petitioners did not fulfill the requisite qualification prescribed under the Recruitment & Promotion Rules for the post of Lecturer and thus, they are not entitled to regular pay scale on UGC pattern. According to the reply, petitioners have also not qualified NET and as such they could not be granted UGC scale. Petitioners have obtained their M. Phil. Degrees on 31.1.2008 and 30.1.2008, respectively. 4. Mr. M. A. Khan, learned Additional Advocate General has drawn attention of the Court to Annexure R-3 dated 29.8.2006 whereby it was decided that M. Phil. /Ph. D. Courses should not be offered through distance education from the academic year 2007-08 and they should be offered only in the regular stream. 5. Mr. Ajay Sharma, learned Advocate has drawn attention of the Court to Annexure P-5, whereby recognition has been accorded by Distance Education Council to the universities/institutions for offering programmes through distance mode including Alagappa University Karaikudi, from the year 1995 to the year 2007-2008, for M. Phil. in education. He has also drawn the attention of the Court to Annexure P-7, whereby list of Universities/ institutions accorded post facto recognition by the DEC has been notified. The name of Alagappa University Karaikudi is at Sr. No. 30 and the duration of post facto recognition is 1995 to 2008. 6. Petitioners and one Ms. Mamta Thakur are discharging same and similar duties. The name of Alagappa University Karaikudi is at Sr. No. 30 and the duration of post facto recognition is 1995 to 2008. 6. Petitioners and one Ms. Mamta Thakur are discharging same and similar duties. A specific averment has been made in the reply filed by the respondent-State that Ms. Mamta Thakur was appointed on regular basis and University has accorded approval on 9.6.2005 and she has qualified the NET when the interview was conducted under the Self-Financing Scheme. The petitioners have been appointed on 6.7.2005 and respondent No.4- University has accorded approval to the proceedings of the selection committee, as per Annexure P-1 on 9.12.2008. 7. Now, so far as qualifying the NET is concerned, Mr. Ajay Sharma, Advocate has specifically drawn attention of the Court to letter dated 14.6.2006. The relevant extract of the letter dated 14.6.2006, reads as under: “NET shall remain the compulsory requirement for appointment as Lecturer for those with post-graduate degree. However the candidates having Ph.D. degree in the concerned subject are exempted from NET for PG level and UG level teaching. The candidates having M. Phil. degree in the concerned subject are exempted from NET for UG level teaching only” 8. It is evident from the contents of letter dated 14.6.2006 that the candidates having Ph.D./M. Phil. degree in the concerned subject are exempted from NET for Under Graduate level teaching only. Petitioners are taking B. Ed. classes and not post graduate classes. Respondent No. 3 was looking after B. Ed. classes also however, in the year 2011; the Higher Institution of Education Society has been constituted. The society has decided in its own wisdom to grant scale of Rs.15600 to the petitioners. However, fact of the matter is that though they are being paid scale of Rs.15600 but they have not been granted UGC scale. The inspection committee vide Annexure P-3 has recommended that the petitioners who are being granted fixed salary of Rs.10,000/-should be paid salary as per UGC scale alongwith admissible allowances. Similar recommendations were also made by the committee vide Annexure P-2. These recommendations have been made by the Committee to consider the college for extension of affiliation to run the B. Ed. course. It was incumbent upon respondents No.1 to 3 to grant salary to the petitioners and similarly situate persons as per the UGC scale alongwith other admissible allowances. Similar recommendations were also made by the committee vide Annexure P-2. These recommendations have been made by the Committee to consider the college for extension of affiliation to run the B. Ed. course. It was incumbent upon respondents No.1 to 3 to grant salary to the petitioners and similarly situate persons as per the UGC scale alongwith other admissible allowances. The recommendations made by the selection committee, as noticed above, already stood approved by respondent No. 4 University on 9.12.2008 and in case of Ms. Mamta Thakur, these were approved on 9.6.2005. Petitioners had obtained their degrees in M. Phil. These degrees are duly recognized as per the discussion made herein above. Since the petitioners had also obtained their M. Phil. degrees on 31.1.2008 and 30.1.2008, respectively, they were not required to qualify NET examination as per letter dated 14.6.2006. 9. Since the petitioners are discharging same duties which are being discharged by their counterparts, they are entitled to the UGC scale being paid to their counterparts on the principle of ‘Equal Pay for Equal Work”. 10. The plea raised by Mr. M.A. Khan, learned Additional Advocate General, that petitioners can not be granted regular pay scales, since they are appointed under self-financing scheme, merits rejection. Similarly situated Ms. Mamta Thakur, appointed under self-financing scheme is being paid regular scale as per UGC norms and as such, the petitioners can not be discriminated against. The State has also not brought to the notice of the Court that the degree of M. Phil. obtained through distance education was not recognized for recruitment to the post of Lecturer. 11. In a recent judgment their Lordships of the Hon’ble Supreme Court in Naushad Anwar and others vs. State of Bihar and others, JT 2014 (4) SC 526 while dealing with the degrees awarded by Alagappa University, have held that though Alagappa University was not recognized by Distance Education Council, but was a deemed University and degree conferred by it was recognizable. The Alagappa University was granted recognition by IGNOU on ex-post-facto basis. Their Lordships have further held that candidates have to satisfy the eligibility conditions on the date of application but the candidates were allowed to participate in selection process under orders of Court. Since record showed that selection process was not over till mid of 2012, their Lordships held that there was no reason to disallow those candidates from being considered. Their Lordships have further held that candidates have to satisfy the eligibility conditions on the date of application but the candidates were allowed to participate in selection process under orders of Court. Since record showed that selection process was not over till mid of 2012, their Lordships held that there was no reason to disallow those candidates from being considered. Their Lordships issued the necessary directions. Their Lordships have held as under: “4. The appellants in these appeals also applied for appointment against posts of Librarians in response to the above notification. Their claim for such appointments was, however, turned down on the ground that they did not satisfy the conditions of eligibility prescribed for such appointments as they did not possess a Bachelor’s Degree in Library Science from a recognised university. Aggrieved, the appellants filed Writ Petition No.17734 of 2009 before the High Court of Judicature at Patna which petition was dismissed by the High Court holding that the degrees in library science obtained by the appellants through Distance Education were not recognised. The Distance Education Council had, observed the High Court, in terms of its letter dated 2nd December, 2008 clearly stated that Alagappa University from where the appellants had obtained the said degrees was not recognised till 24th November, 2009 when the said University was granted recognition for the first time. The High Court was also of the view that the process of appointment and selection stood completed by January, 2009, i.e. long before Alagappa University was recognised. The High Court, therefore, saw no reason to permit the appellants to compete for appointment with other candidates. The High Court observed: “From the aforesaid factual narration, the core question that emerges for consideration is whether the students, who have passed from Alagappa University through Distance Education, can be allowed to participate in the counselling. There is no shadow of doubt that the Alagappa University did not have the recognition from the distance Education Council at the time of examination. It obtained post facto recognition on 24.11.2009, that is, at a very belated stage.” 5. When the matter came up for hearing before this Court on 1st May, 2013, Mr. P.S. Patwalia, learned senior counsel appearing for the appellants argued that the reason given by the High Court for refusing relief to the appellants was unsustainable. It obtained post facto recognition on 24.11.2009, that is, at a very belated stage.” 5. When the matter came up for hearing before this Court on 1st May, 2013, Mr. P.S. Patwalia, learned senior counsel appearing for the appellants argued that the reason given by the High Court for refusing relief to the appellants was unsustainable. He submitted that the process of selection had not been completed in January, 2009 as held by the High Court, but had continued till January, 2012. He contended that so long as the process of selection was on, the appellants’ claim for consideration against the vacancies notified by the Government, could not be ignored or rejected by the State. Reliance in support of that submission was placed by Mr. Patwalia on certain documents filed by the appellants to show that the selection process had not concluded in January 2009 as observed by the High Court but continued till as late as the year 2012. After hearing the matter at some length we had by our order dated 1st May, 2013 directed the State Government to file an appropriate affidavit answering the following queries: “(1) What is the total number of appointments made in each District/unit so far, whether by the State or by the concerned authorities, against the posts of librarian. (2) How many of such appointments had been made up to 24th December, 2008, the last date fixed for completing the process of selections, in terms of the advertisement notice. (3) Under whose Orders was the date for completion of the selection process extended beyond 24th December, 2008 and in exercise of what authority. Copies of the order under which the date for completion of the selection process was extended shall be filed along with affidavit. (4) When was the last counselling/verification of documents of the candidates, who applied for appointment in each district, conducted. (5) What were the norms and procedure adopted by the concerned Selection Committees for evaluating the inter se merits of the candidates. 13. (4) When was the last counselling/verification of documents of the candidates, who applied for appointment in each district, conducted. (5) What were the norms and procedure adopted by the concerned Selection Committees for evaluating the inter se merits of the candidates. 13. The short question that falls for our determination in the above backdrop, therefore, is whether the academic qualification acquired by the petitioners is recognized for the purposes of appointment as Librarians against the vacancies in question, having regard to the fact that the Distance Education Council of Indira Gandhi National Open University has granted ex post facto recognition to Algappa University from where the petitioners have secured their degrees in library science. The High Court has, as noticed above, taken the view that recognition by Distance Education Council was granted belatedly inasmuch as such recognition had come after the conclusion of the entire selection process hence was of no avail to the petitioners. There can indeed be no quarrel with the abstract proposition of law that any recognition granted after the conclusion of the selection process cannot possibly help the candidates concerned who ought to satisfy the conditions of eligibility according to the relevant Rules on the date the applications are submitted and scrutinised to determine their eligibility. The difficulty, however, is that the relevant Rules, did not in the case at hand stipulate whether a degree in library science obtained by Distance Education mode will constitute a recognized qualification. All that Rule 4 (vii) (b) stipulated was that the candidates should have a degree in library science recognised by the Department of Education. The Department of Education has not by itself recognised any university or academic qualification awarded whether by regular or Distance Education mode. It was only when candidates who had secured degrees in Library Science by Distance Education mode applied for appointment that the Government issued a clarification that such degrees will be recognised provided the University awarding the same has been recognised by the Distance Education Council. There was in other words considerable confusion as to what would constitute a recognised qualification for purposes of appointment as Librarians. There was in other words considerable confusion as to what would constitute a recognised qualification for purposes of appointment as Librarians. Such being the case, the normal rule that candidates must satisfy the conditions of eligibility on the date of the applications will have to be applied liberally so as to prevent injustice to candidates who possessed the requisite degree qualification but such qualification required recognition by another statutory authority which came during the selection process but was effective from a date earlier than the date on which the applications were made. The fact that the candidates were in the meantime allowed to participate in the selection process under Orders of the Court and their result kept in a sealed cover makes it so much easier for the Court to apply the relaxed standard for determination of the conditions of eligibility especially when the consideration of such candidates will in no way prejudice any other candidate already appointed or selected for appointment. 14. We may now examine whether the selection process had indeed been concluded before the recognition was granted by the Distance Education Council in the instant case. The version of the petitioners consistently has been that the selection process was not concluded as on the date the recognition order was passed by the Distance Education Council and even three years thereafter till the year 2012. Whether or not that was so, is what we intended to discover from the answers provided by respondents to the queries extracted in the earlier part of this order. In answer to query no.2 the respondents have on the affidavit of Secretary to Government, Education Department, Government of Bihar, stated that no appointments could be made till 24th December, 2008 the last date fixed for completing the process of selection in terms of the advertisement notice. In answer to query no.3 the respondents have stated that appointment orders issued against the vacancies of Teachers and Librarians were not issued on account of certain allegations that forged and fabricated documents were being used to secure such appointments and also on account of instructions issued by the Government to the effect that degrees obtained by some of the candidates from universities like Hindi Vidyapeeth Deogarh were being used for claiming appointments. The affidavit goes on to state that in terms of instructions issued by the Government on 17th February, 2010 a fresh schedule for issuing appointment letters was published stipulating different dates for completion of the process by the Nagar Nigams, Nagar Prashids, Nagar Panchayats and Zila Parishads between 25th February, 2010 to 8th March, 2010. Since the process could not be completed yet another schedule was published for all the four local bodies mentioned above asking them to conclude the selection process on different dates between 10th May, 2010 to 20th May, 2010. Yet another schedule was notified for completion of the selection process by the State Government’s letter dated 11th June, 2010 asking the local bodies concerned to complete the selection process on different dates between 5th July, 2010 to 15th July, 2010. That was not however, the end of the matter as the selection and appointment process could not be completed by the local bodies which led to the publication of yet another schedule stipulating dates for completion of the selection process between 10th August, 2010 to 13th August, 2010. As if that was also not enough, the entire selection process was in terms of a fresh schedule to be completed on different dates between 8th July, 2011 to 12th July, 2011 followed by yet another schedule stipulated by the Government in terms of its letter dated 18th October, 2011 that required the local bodies to complete the process of selection of appointments on different dates between 14th December, 2011 to 17th December, 2011. The process of re-scheduling the selection and appointments did not end there for by another letter dated 4th January, 2012 the Government re-scheduled the selection and appointment process to be completed between 23rd January, 2012 and 2nd February, 2012. The affidavit states that no satisfactory progress in the selection of the Librarians was made in certain districts despite re-scheduling orders passed by the Government with the result a final schedule for completion of the selection process was published asking the local bodies to complete the selection and appointment process on different dates between 15th June, 2012 to 25th June, 2012. In answer to query no.4 the Government have stated that the last counselling/verification of the documents of the selected candidates was undertaken pursuant to the above final schedule. 15. In answer to query no.4 the Government have stated that the last counselling/verification of the documents of the selected candidates was undertaken pursuant to the above final schedule. 15. We are anguished by the very thought of the selection procedure dragging on for as long as four years between 2008 and 2012. Such inordinate delay and indolence is totally undesirable not only because it violates the fundamental rights of candidates who have qualified for appointment during the intervening period but also because it depicts a complete failure on the part of all concerned in regulating the selection and appointment process with a view to ensuring that the same is fair, objective and transparent. We cannot help saying that several questions have bothered us in regard to the selection process itself which leaves much to be desired but since there is no challenge to the selection or the appointments made pursuant thereto, we refrain from making any observation in regard to those aspects. All that we need say is that the selection and appointment of such a large number of employees under the local bodies ought to have been conducted in a more orderly fashion and more importantly the same should have been completed within the time frame stipulated for the purpose or such reasonable extension thereof as may have become absolutely inevitable. A selection process that lingers on for years can hardly measure up to the demands of objectivity, fairness and transparency especially when the method by which inter se merit of candidates was determined is neither stipulated in the Rules nor any guidelines issued for the Selection Committee to follow have been placed before us. Be that as it may, the question is whether the selection process stood completed before the Distance Education Council recognized Algappa University from where the petitioners have obtained their degrees. Our answer is clearly in the negative. On their own showing, the respondents had not concluded the selection process till as late as middle of 2012 i.e. more than two years after the recognition order was passed by the Distance Education Council in favour of Algappa University. Petitioners had, in the meantime, been allowed to participate in the interviews under the orders of this Court passed on 10th May, 2010. Petitioners had, in the meantime, been allowed to participate in the interviews under the orders of this Court passed on 10th May, 2010. By our order dated 14th March, 2011 we had directed the respondents not to fill up 54 posts of Librarians relevant to petitioners in SLP Nos.10964 and 12527 of 2010 and SLP (C) No.17421 of 2010 and two posts to be kept vacant relevant to SLP (C) Nos. 23850 and 23852 of 2010. It is not in dispute that the petitioners have participated in the interview under the above orders and that requisite number of vacancies have also been reserved for their appointment in the event of their succeeding in the present case. It is also not in dispute that the result of the petitioners has been kept in sealed cover awaiting the ultimate outcome of the present appeals. In the circumstances, herefore, and keeping in view the fact that the validity of the post facto recognition granted by the Distance Education Council to Algappa University has not been assailed before us nor was the same under challenge before the High Court, we see no reason why the petitioners in these petitions should not be allowed the benefit of such recognition which implies that they shall be treated as eligible for consideration and appointment against the available vacancies depending upon their inter se merit vis-a-vis other candidates competing for the same.” 12. In the instant case also, petitioners have obtained their M. Phil. degree from Alagappa University which has been granted post facto recognition as per material placed on record for the academic sessions 1995 to 2007-2008. 13. Accordingly, in view of the analysis and High Court of H.P. discussion made herein above, the writ petition is allowed. Respondents No. 1 to 3 and 5 are directed to pay to the petitioners their salary as per UGC scale alongwith admissible allowances of the post of Lecturer from their initial date of appointment i.e. 6.7.2005, within a period of ten weeks, from today.