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2019 DIGILAW 241 (HP)

Joginder Pal v. State of H. P.

2019-03-08

AJAY MOHAN GOEL, SURESHWAR THAKUR, SURYA KANT

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JUDGMENT : SURYA KANT, J. 1. - Cmp No. 11859 of 2018 in CWP No. 337 of 2018 The captioned application came up for hearing on 20th December, 2018 when the Division Bench (comprising Justice Dharam Chand Chaudhary and Justice Chander Bhusan Barowalia) perceived a conflict between earlier decisions of this Court in LPA No. 4062 of 2013, titled State of H.P. & Another versus Meena Kumari on one hand and CWP No. 2149 of 2017, titled as Pawan Chauhan & others versus State of H.P. & others and connected matters, on the other. The Division Bench was considering the extent of applicability of the Himachal Pradesh Elementary Education Department Junior Basic Trained Teacher, Class-III (Non-Gazetted) Recruitment and Promotion Rules, 2012 (hereinafter referred to as the 2012 Rules) in respect of the selection process which had been initiated before the 2012 Rules were repealed and replaced by a new set of Rules known as Himachal Pradesh Elementary Education Department Junior Basic Trained Teacher, Class-III (Non-Gazetted) Recruitment and Promotion Rules, 2017 (hereinafter referred to as the 2017 Rules). The Division Bench deemed it appropriate to list the matter before a Bench in which both the Hon'ble Judges were not Members. The case thereafter came up for hearing on 7th January, 2019 before a Division Bench (comprising Chief Justice and Justice Ajay Mohan Goel) when it was felt that if there were any conflict between two Division Bench judgments then the matter ought to be heard by a Three-Judge Bench. This is how the case has been listed before us. 2. The question thus which falls for consideration is whether there is any conflict of opinion between the judgments rendered by this Court in Meena Kumari and Pawan Chauhan's cases (supra) and if so, which view represents the correct statement of law. 3. We have heard learned Counsel for the parties at a considerable length and have gone through the pleadings and record of both the above cited cases as also the averments made in the connected Review Petition and other miscellaneous applications. 4. 3. We have heard learned Counsel for the parties at a considerable length and have gone through the pleadings and record of both the above cited cases as also the averments made in the connected Review Petition and other miscellaneous applications. 4. The final judgment dated 28th August, 2018 in Meena Kumari's case (supra) unveils the twin issues which arose for consideration, namely, 'whether the petitioners may be treated as JBT of 2002-2004 and 2003-2005 Batch irrespective of they having appeared in the examination along with 2008-2010 Batch of JBT and being appointed as JBT Teachers without insisting upon the eligibility criteria laid down in the Right of Children to Free and Compulsory Education Act, 2009' 5. The Division Bench held that keeping in view the mandate behind Section 23(1) of the Right of Children to Free and Compulsory Education Act, 2009 read with Notification dated 23rd August, 2010 issued by National Council for Teachers Education prescribing Teachers Eligibility Test (TET) as an essential qualification for appointment to the post of teachers coupled with the fact that the State of Himachal Pradesh had also amended the Rules whereby TET was made an essential qualification for appointment to the post of JBT Teachers, the candidates who appeared in the examination along with 2008-2010 Batch of JBT cannot be assigned the Batch of 2002-2004 and 2003-2005, as the expression "batch" is to be construed from the date a candidate qualifies the examination and not the date on which he is admitted to the course. 6. So far as the judgment in Pawan Chauhan's case (supra) is concerned, the issue debated before the Division Bench pertained to the legality of the order passed by Himachal Pradesh Administrative Tribunal whereby Clauses (2) & (4) of Rule 15 of the 2012 Rules were struck down, as according to the Tribunal, the merit in TET could not be made the sole criteria for selection to the post of JBT Teachers. The Division Bench disapproved the view taken by the Tribunal and held that the subordinate legislation, namely, 2012 Rules could not be faulted with by the Tribunal as the eligibility condition based upon TET was prescribed keeping in view the Legislative mandate contained in National Council for Teacher Education Act, 1993. The Division Bench thus held as follows: "33. The Division Bench disapproved the view taken by the Tribunal and held that the subordinate legislation, namely, 2012 Rules could not be faulted with by the Tribunal as the eligibility condition based upon TET was prescribed keeping in view the Legislative mandate contained in National Council for Teacher Education Act, 1993. The Division Bench thus held as follows: "33. Thus, under these circumstances, we are of the considered view that the Tribunal seriously erred in allowing the Original Applications, by quashing the legislation. 34. In view of the aforesaid discussion, we quash and set aside the impugned orders, referred to in Para-1 supra. We clarify that the recruitment process so undertaken under the 2012 Rules shall be completed, in terms thereof." 7. Let us now examine, is there any conflict in the views taken by this Court in Meena Kumari's and Pawan Chauhan's cases (supra)? 8. Before adverting to the core issue, it will be useful to mention that the 2012 Rules prescribing inter-se merit in the TET as the sole criteria for appointment as JBT Teachers were subsequently repealed by the Government of Himachal Pradesh vide Notification dated 22nd September, 2017, by virtue whereof, a new set of Rules known as 2017 Rules' have been brought into force. Both sets of Rules were/have been formulated in exercise of powers under proviso to Article 309 of the Constitution. 9. It is relevant to refer Rule 2 (1) of the 2017 Rules whereby 2012 Rules were repealed as well as its sub Rule (2) which opens up with a non-obstante Clause, and explicitly provides that notwithstanding such repeal, any appointment made or anything done or action taken under the 2012 Rules, shall be deemed to have been validly made, done or taken under these Rules. Rule 2 of 2017 Rules reads as follows: "Repeal and savings: 2(1) The Himachal Pradesh, Elementary Education Department, Junior Basic Trained Teacher, Class-III (Non-Gazetted) Recruitment and Promotion Rules, 2012, notified vide notification No. EDN-C-A(3)- 1/2002, dated 23-08-2012, as published in the Rajpatra Himachal Pradesh vide notification of even number dated 25th August, 2012 are hereby repealed. (2) Notwithstanding such repeal, any appointment made or anything done or any action taken under the rules, so repealed under sub-rule (1) supra shall be deemed to have been validly made, done or taken under these rules" 10. (2) Notwithstanding such repeal, any appointment made or anything done or any action taken under the rules, so repealed under sub-rule (1) supra shall be deemed to have been validly made, done or taken under these rules" 10. It is well known that a non-obstante clause is a Legislative device which is invariably employed to give over-riding effect to certain provisions over some contrary provisions contained in the same Statute or Statutory Rules or any other enactment. [Ref.(i) Union of India & Anr. versus G.M. Kokil & Ors., (1984) Supp1 SCC 196; (ii) R.S. Raghunath versus State of Karnataka & Anr., (1992) 1 SCC 335 ]. The Rule Making Authority, in the case in hand, thus consciously inserted sub Rule (2) in Rule 2 of 2017 Rules to expressely protect the action taken or anything done under the 2012 Rules. It being alive of the conflict between 'selection criteria' as it stood incorporated in 2012 Rules viz-a-viz the criteria introduced under the 2017 Rules, the very purpose of introduction of sub Rule (2) with a non-obstante clause was to ensure that the selection made in accordance with 2012 Rules remained unaffected by virtue of changed selection criteria. 11. We are thus of the considered opinion that Para-34 of the judgment in Pawan Chauhan's case is mere re-statement of Rule 2(2) of the 2017 Rules. To say it differently, the Division Bench rightly directed the State of Himachal Pradesh to proceed with the selection process concluded under the 2012 old Rules, for such an action is duly protected under the Saving Clause contained in Rule 2 (2) of 2017 Rules. 12. The selection process completed under 2012 Rules before these Rules were repealed on 22.09.2017, has to be taken to its logical conclusion in terms of Rule 2(2) of the 2017 Rules. However, if the recruitment process for the posts of JBT Teachers was initiated after the 2017 Rules came into process, the selection criteria of such process needs to be in conformity with the provisions of 2017 Rules as notified on 22nd September, 2017. Once the two sets of Rules and their interplay is understood in the above explained manner, it is difficult to accept that there is any conflict, implied or express, between the two judgments of this Court in Meena Kumari and Pawan Chauhan cases. 13. Once the two sets of Rules and their interplay is understood in the above explained manner, it is difficult to accept that there is any conflict, implied or express, between the two judgments of this Court in Meena Kumari and Pawan Chauhan cases. 13. We say so also for the reason that the issues which came up for consideration before the Division Benches in the above cited cases were totally distinct from each other and both cases were decided keeping in view their own facts and circumstances. After the new Rules of 2017 have occupied the field w.e.f. 22.09.2017, the selection criteria has substantially changed, which has to be adhered to in any fresh selection process. 14. It is well settled principle of interpretation that every Statute or Statutory Rule is prospective unless it is given retrospective effect expressly or by necessary implication. In the instant case, Rule 2 of 2017 Rules does not permit any debate on the question of prospectivity of 2017 Rules, for the Competent Authority, in so many words, has not permitted the new selection criteria to affect the selection process already concluded under the 2012 Rules. As noticed earlier, these Rules have been enacted in exercise of powers conferred under proviso to Article 309 of the Constitution and partake the character of Statutory Rules, so long as are not replaced by an Act of Legislature. These Rules thus enjoy the same protection as is admissible to a piece of Legislation and the same can be annulled, partly or in toto, only if the same are found to be head on collision with any provision of the Constitution or a Statute or some other settled law. 15. In response to the query of the Court, learned Advocate General, on instructions informed that recruitment process was initiated on three different occasions as per 2012 Rules. He also informed that the candidates stand appointed on the basis of the two recruitment processes initiated and with regard to the third one, all codal formalities stood completed before 2017 Rules came into force and now only appointment letters remain to be issued. 16. He also informed that the candidates stand appointed on the basis of the two recruitment processes initiated and with regard to the third one, all codal formalities stood completed before 2017 Rules came into force and now only appointment letters remain to be issued. 16. The action of the Department in taking steps for concluding the selection process initiated and completed before 22.09.2017 as per the 2012 Rules, therefore, cannot be faulted, for anything contrary thereto would negate the mandate of sub Rule (2) of Rule 2, which has an over-riding effect on the other provisions of 2017 Rules. The Reference stands accordingly answered in above terms. 17. All these matters stand disposed of in the above terms along with pending applications, if any. 18. All interim orders also stand vacated.