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2016 DIGILAW 161 (UTT)

Bhawana Kothari v. State of Uttarakhand

2016-04-11

SUDHANSHU DHULIA

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JUDGMENT : Sudhanshu Dhulia, J. 1. The present petitioners had appeared for an examination, which was conducted by Uttarakhand Technical Education Board (in short “Board”) for the selection of Assistant Teacher (L.T. Grade) in the State of Uttarakhand. According to the petitioners, after selection, they were appointed as Assistant Teacher (L.T. Grade) in various Government Schools/Colleges in the State of Uttarakhand, depending upon their merits. The petitioners before this Court have primarily challenged the order dated 28.01.2016 which says that the results shall be declared in three phases. As per the order dated 28.01.2016, the appointments on the post of Assistant Teacher (L.T. Grade) have to be done in phased manner where in the first phase 1500 posts have to be filled, in the second phase 1000 posts have to be filled and in the third phase all the remaining posts have to be filled by the State Government. The order dated 28.01.2016 further states that the posts on which Guest Teachers/Visiting Teachers are working shall not be disturbed. In other words, no appointment shall be made on the posts, which are occupied by the Guest Teachers/Visiting Teachers, although, the aspect of Guest Teachers has already been discussed in detail in the interim order dated 29.02.2016 by this Court in WPSS No. 318 of 2016 (with connected matters), which needs a reproduction here. The relevant portion of the interim order dated 29.02.2016 reads as under:- “5. The scheme for Guest Teachers/Visiting Teachers came into existence by the Government Order dated 13.04.2015, in which a district-wise committee was constituted which consisted of District Magistrate, Chief Education Officer, Chief Education Officer Higher Secondary, etc. By the said order, the Committee was to prepare a block level list of Guest Teachers/Visiting Teachers. From this pool of such Guest Teachers/Visiting Teachers requisitions would be supplied to such schools and colleges in the block where a temporary vacancy has come up due to long leave, death, transfer, paternity leave etc. of an employee. In fact the subject of the said order dated 13.04.2015 clearly states that this arrangement is being made purely as a temporary measure. 6. of an employee. In fact the subject of the said order dated 13.04.2015 clearly states that this arrangement is being made purely as a temporary measure. 6. The said Government Order dated 13.04.2015 was challenged before this Court in WPSS No. 598 of 2015 on the ground that one of the essential conditions for appointment of a teacher under the said scheme was that he should be residing at that block, which is violative of Constitutional Provision contained in Article 16 of the Constitution of India as well as full bench judgment of this Court in the Triveni Chandra Pandey Vs. State of Uttarakhand and others (SPA No. 360 of 2012, decided on 26.11.2013), inasmuch as place of residence cannot be a criteria for appointment on a public post. All the same the contention of the petitioners in that petition was rejected by this Court on grounds since these appointments (of Visiting Teachers), were purely temporary in nature. Further it did not debar a person to apply in another block provided, he resides in another block and that being purely a temporary measure to meet a particular contingency, it was held that such a scheme does not violate the provisions of the Constitution of India as submitted for the reason that the state here is not giving any “employment”, as it is normally contemplated. It is a temporary measure to meet a contingency, till regular selections are made where “residence” cannot be a criteria. Moreover, it is made clear that the government must clarify this aspect to such “teachers” who are being appointed as Visiting Teachers that they are being employed purely for a temporary period and their engagement and being temporary part time visiting teacher will not give them any lien whatsoever for absorption as “teachers” in future. It was held as under :- “Primarily such a scheme does not violate the provisions of the Constitution of India as submitted for the reason that the state here is not giving any “employment”. It is a temporary measure to meet a contingency, till regular selections are made when residence cannot be a criteria. Moreover, it is made clear that the government must clarify to such “teachers” that they are being employed for a temporary period and their engagement as temporary part time visiting teacher will not give them any lien whatsoever for absorption as “teachers” in future.” 7. Moreover, it is made clear that the government must clarify to such “teachers” that they are being employed for a temporary period and their engagement as temporary part time visiting teacher will not give them any lien whatsoever for absorption as “teachers” in future.” 7. This order dated 27.04.2015 passed in WPSS 598 of 2015 is challenged by the petitioner-Ravikant, which is pending for consideration before the Division Bench of this Court. 8. In any case, this has been the constant stand of the State Government before this Court that the appointment and filling of Guest Teachers/Visiting Teachers is purely a temporary arrangement to meet a particular contingency so that students may not suffer. 9. Logically, therefore, this temporary arrangement, which is without a due process of law, cannot continue for long, particularly now in the light of the fact that a regular exercise, in accordance with law, has already been made and results have to be declared. For reasons, best known to the Government, results are to be declared in a phased manner, more particularly, such posts which are presently occupied by these Guest Teachers/Visiting Teachers are not to be filled.” 2. This Court vide the above interim order held that the order dated 28.01.2016 though prima facie is violative of law inasmuch as it does not assign any reason as to why the vacancies presently occupied by “Guest Teachers” are not to be filled even by the candidates who have been selected in a regular selection exercise, such as the present petitioners, however, give time to the State to file its counter affidavit. 3. Counter affidavit has been filed by the State. A vague excuse has been taken in the counter affidavit as regarding the appointment of Guest Teachers, though it is admitted by the State that none of the Guest Teachers have been appointed by way of a regular selection nor were there any considerations of reservation while making such appointments, which was purely to meet an emergency and it is a stop gap arrangement. 4. All the same, today Ms. 4. All the same, today Ms. Sushma Singh, Regional Additional Director (Intermediate Education), Kumaon Region, Nainital is present before this Court and she has given a statement that she has instructions from the Director General of Education in this regard that the Government has taken a decision not to renew the period for the Guest Teachers after 31.03.2016 and therefore as of now there are no Guest Teacher is working in the State of Uttarakhand. This Court has further been informed by her that the vacancies, which were at one time occupied, even though temporarily, by the Guest Teachers are now vacant and hence the selected candidates for the post of Assistant Teacher (L.T. Grade) will be appointed on these posts. 5. In any case, the scheme for appointment of Guest Teachers was only there to cater to a contingency where teachers were on leave due to sickness, maternity or any such contingency. These appointments are absolutely temporary and stop gap arrangement and the persons who occupy such posts have absolutely no right to continue on the said post endlessly. All the same, since the decision has been taken by the Government itself not to continue with the Guest Teachers and such posts which were earlier occupied by them will now be filled by regular selection candidates, nothing further needs to be said on this. The order dated 28.01.2016 which is impugned in the petitions and which had directed that Guest Teacher will not be disturbed, now loose its significance and effect. 6. In view thereof, the writ petitions succeed. The respondents are directed to fill all the vacancies of teachers, keeping 10% posts vacant for “Rajya Andolankaris”, as that is still a subject matter pending before the Division Bench of this Court in a Public Interest Litigation. Let the remaining 90% of the posts be filled by way of regular selection. Let the appointments be made, in accordance with law. 7. The State Government shall declare the result for the Assistant Teacher (L.T. Grade) forthwith, and make appointments.