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2014 DIGILAW 484 (UTT)

BADRI SINGH BHAINSORA v. STATE OF UTTARAKHAND

2014-10-27

SUDHANSHU DHULIA

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JUDGMENT Hon’ble Sudhanshu Dhulia, J. (Oral) 1. All the petitioners before this Court, in the above bunch of writ petitions, are primarily teachers, either in Elementary Schools or Assistant Teacher in Higher Secondary Schools, run by the government in Uttarakhand. They have been working, however, as “Coordinators” which is an Administrative job for the Elementary Schools in the State. The common factors which runs in all the writ petitions is that all the petitioners before this Court were initially appointed as Teachers in Primary Schools or Higher Secondary Schools, and subsequently, after responding to an advertisement and going through a selection process, have been appointed in the capacity of “Coordinators”, in various capacities such as Cluster Resource Centre (in short ‘CRCC’) or Block Resource Centre (in short ‘BRCC’) or Coordinators in District levels in District Resource Centre Coordinator/Project Officer. They are all aggrieved by an order dated 27.06.2014 by which fresh appointments are to be made for the various posts of Coordinators for which the nomenclature has been changed to Cluster Resource Persons (hereinafter referred to as “CRP”) and Block Resource Persons (hereinafter referred to as “BRP”). The work, however, remains broadly the same as it was earlier. 2. Their first contention is that even as per the new advertisement vacancies are to be filled only on the “existing vacant posts” by way of fresh recruitment, and therefore they would argue that the posts on which they are working cannot be called “Vacant Posts”, therefore they cannot be touched. Secondly, the petitioners have already faced a regular selection process and thereafter were appointed as CRCC or BRCC, and therefore, there is no point in repatriating them to their original post, as they are occupying these posts after facing a duly appointed Selection Committee. 3. By an interim order of this Court certain protection has been granted to the petitioners, inasmuch as, they are to remain on the post, on which they are working, till the final disposal of the writ petition. 4. The State Government in its counter affidavit, which has been filed in some of the writ petitions on behalf of respondent nos. By an interim order of this Court certain protection has been granted to the petitioners, inasmuch as, they are to remain on the post, on which they are working, till the final disposal of the writ petition. 4. The State Government in its counter affidavit, which has been filed in some of the writ petitions on behalf of respondent nos. 2 and 5, (and which they have adopted in all the remaining writ petitions) have taken a stand that the petitioners were appointed as Teachers in Primary Schools or Higher Secondary Schools, as the case might be, and their lien continues to remain on such posts i.e. of teachers in government schools. Merely because they have been selected and appointed as CRCC or BRCC, it will not mean that they have been appointed as such for all times to come, nor have they been appointed on substantive or permanent vacancies. These posts are project posts, which are presently being funded by the Central Government under the “SARVA SHIKSHA ABHIYAN” which would literally mean “Education for all”. Hence these are not permanent appointments on substantive vacancies. It has further been submitted that the appointment of petitioners as CRCC or BRCC, is purely on “deputation”, and a deputationist has no right of being absorbed on that post. 5. The question is as to what right the petitioners have to remain on the post of CRCC or BRCC, as the case might be, whose nomenclature has now been changed to CRP and BRP. Admittedly the petitioners were appointed as Teachers. The documents furnished by the petitioners before this Court categorically show that the lien of the petitioners remains on the original post of teacher. 6. It is, however, true that the petitioners have been appointed after facing a selection process where Selection Committee was constituted as per the Government Order dated 19.03.2003, which was a District Level Committee and the petitioners had faced a written examination and group test and after its evaluation they were finally selected. It is therefore wrong to revert the petitioners back to their original posts and ask them to face a fresh selection process as this actually has no nexus with the object sought to be achieved. 7. It is therefore wrong to revert the petitioners back to their original posts and ask them to face a fresh selection process as this actually has no nexus with the object sought to be achieved. 7. In its rebuttal the Government has said that earlier though there was a selection process but now considering the utility of these posts a more vigorous as well as transparent process is in place. The Committee will be chaired by a High State Level Authority instead of a District Level Officer. 8. Be that as it may, this itself cannot be a ground for discarding such persons who have already faced the selection process. The present selection process may be a better selection process but the fact still remains that the petitioners who have already faced a selection process and after successfully qualifying a due process were so appointed as CRCC or BRCC, hence their appointments as CRCC or BRCC cannot be said to be arbitrary, illegal or in violation of law. 9. At the same time, the fact remains that the petitioners’ lien remains, as that of teachers, be that in Elementary Schools or in the Higher Secondary Schools, as the case might be. Their appointment as CRCC or BRCC is only on deputation. 10. The reliance of the petitioners on a Government Order dated 31.03.2008 wherein the Government has stated that their deputation would be treated as posting (as CRCC or BRCC as the case might be) is of no help to the petitioners as effectively the appointments of the petitioners can be nothing but on a deputation. In fact, this Court in a different case in Dharmendra Rawat & others Vs State of Uttarakhand & others (WPSS No. 1732 of 2007 decided on 26.07.2011) has already discarded the view of the respondents that they were not working as deputationist. Actually they have been working on deputation and hence liable to a higher pay scale as was advertised by the authority. This is an order which has been upheld in the Division Bench of this Court, though the matter is pending before the Hon’ble Apex Court, as informed by Mr. Bhagwat Mehra, learned counsel for the petitioner. 11. Actually they have been working on deputation and hence liable to a higher pay scale as was advertised by the authority. This is an order which has been upheld in the Division Bench of this Court, though the matter is pending before the Hon’ble Apex Court, as informed by Mr. Bhagwat Mehra, learned counsel for the petitioner. 11. It has not been categorically stated in its counter affidavit that the petitioners have been working as a deputationist, but learned Chief Standing Counsel for the State fairly admits that the posting of the petitioners as CRCC or BRCC, as the case might be, nothing more than a deputation. This Court also is also of the view that the status of the petitioners will be that of a deputationist. 12. In view of that the petitioners cannot claim a right to be absorbed on the post, more so on the posts which are not permanent posts and only project posts. At the same time though this Court feels that since the petitioners have already faced a regular selection process, as such, even though a new selection process has come it should not itself be a cause for repatriating the petitioners to their original posts. The final determination to the dispute here would be that merely because a new selection process has now come in place to an earlier selection process the petitioners shall not be repatriated to their parent department or posts, as a matter of course. Yet the government or the appointing authority can always repatriate the petitioners to their parent department, if they so choose, as the status of the petitioners remains that of a deputationist. 13. Consequently, with the above determination, all the writ petitions stands disposed of and the interim protection provided to the petitioners, though on different dates, are also vacated.