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2020 DIGILAW 538 (HP)

Kamlesh Chand v. State of Himachal Pradesh

2020-08-28

SANDEEP SHARMA

body2020
JUDGMENT Sandeep Sharma, J. - Being aggrieved and dis-satisfied with issuance of communication dated 07.08.2012 by the Director of Higher Education, Himachal Pradesh, whereby, candidature/nomination of the petitioner for the post of Lecturer/PGT (School Cadre) in the subject of Political Science came to be rejected, petitioner has approached this Court in the instant proceedings filed under Article 226 of the Constitution of India praying therein for the following reliefs: "1. To issue writ in the nature of certiorari for quashing the impugned letter Annexure P-1 vide which the appointment of the petitioner for the post of lecturer (School cadre) Political Science has been rejected. 2. To issue writ in the nature of Mandamus with a direction to respondents to issue appointment letter to petitioner for the post of lecturer (School cadre) Political Science against vacancy of ex-servicemen category with its all consequential monetary benefits from the date when his counterparts were being appointed on contract basis." 2. Though, notice in the case at hand for the first time was issued on 25th April, 2014, but no reply ever came to be filed on behalf of the respondents till passing of order dated 10th August, 2020, when this Court on the vehement request on behalf of the learned Additional Advocate General, granted last opportunity to file reply, by specifically stating in the order that in case reply is not filed on or before the next date of hearing, right to file the same shall be deemed to have been closed and, as such, this Court has no option but to decide the petition at hand on the basis of material available on record. 3. For having bird's eye view, the facts of the case as emerge from the record are that the petitioner after having rendered services as Instructor AEC Special in the Indian Army, retired from Army Education Cops on 30th November 2009, as is evident from discharge book, (Annexure P-3 (colly.) and, therefore, got himself enrolled with Ex-servicemen Cell Hamirpur, for re-employment. For having bird's eye view, the facts of the case as emerge from the record are that the petitioner after having rendered services as Instructor AEC Special in the Indian Army, retired from Army Education Cops on 30th November 2009, as is evident from discharge book, (Annexure P-3 (colly.) and, therefore, got himself enrolled with Ex-servicemen Cell Hamirpur, for re-employment. Though, pursuant to requisition sent by the Department of Education, name of the petitioner as Ex-serviceman came to be sponsored by Ex-servicemen Cell Hamirpur, Himachal Pradesh vide communication dated 21st April, 2012, however, Directorate of Higher Education, Himachal Pradesh, vide communication dated 7th August, 2012 (Annexure P-1), rejected the candidature/ nomination of the petitioner on the ground that he does not fulfill the norms of Recruitment & Promotion Rules for the post in question. Besides above, Department also stated in the communication as referred to above that clarification regarding equivalency of concerned diploma to that of B.Ed., has been sought from Himachal Pradesh University. 4. Primarily, the case of the petitioner came to be rejected on the ground that at the time of consideration of his candidature / nomination, he did not possess professional qualification i.e., B.Ed., from the recognized University. Recruitment and Promotion Rules (Annexure P-4) for the post of Lecturer (Regular/Contract) (School Cadre) Class-III (Non-Gazetted) in the Department of Higher Education, Himachal Pradesh, provide for following minimum qualifications required for direct recruits:- "7. Minimum educational qualification and other qualifications required for direct recruits.- ESSENTIAL QUALIFICATIONS.- (1) Academic Qualification. - Master's Degree in the subject concerned from a recognized University and (2) Professional Qualification.- Bachelor of Education (B.Ed.) as professional qualification from a recognized University. OR Two years integrated M.Sc. Ed. Course or an equivalent course from a recognized University." 5. It is quite apparent from the aforesaid Rule that the candidates applying for the post of Lecturer (School Cadre) besides having Master's Degree in the subject concerned from recognized University should also possesses Degree in Bachelor of Education. In the case at hand, there is no dispute that the petitioner, at the time of consideration of his candidature, possessed Master's Degree in Political Science, but since he did not possess qualification of Bachelor of Education degree, letter dated 7th August, 2012 (Annexure P-1), came to be issued. 6. Mr. In the case at hand, there is no dispute that the petitioner, at the time of consideration of his candidature, possessed Master's Degree in Political Science, but since he did not possess qualification of Bachelor of Education degree, letter dated 7th August, 2012 (Annexure P-1), came to be issued. 6. Mr. Kumar Verma, learned counsel representing the petitioner, while inviting attention of this Court to judgment dated 18th June, 2011, passed by a Co-ordinate Bench of this Court in CWP No. 4420 of 2010, titled Pratap Singh Verma versus State of HP & Anr., contends that since the petitioner prior to his retirement, rendered his services against the post of Instructor AEC Special in the Army, he was not required to have Bachelor of Education degree while applying for the post of Lecturer (School Cadre). He further contends that in the aforesaid judgment, it has been categorically held that once the post of Instructor AEC Special has been equated to that of TGTs, the State cannot deny the benefit of the service rendered in the Indian Army by the petitioner and, as such, his candidature should not have been rejected on the ground of qualification. 7. Having heard learned counsel representing the parties and perused the material available on record, this Court finds that Directorate General of Employment & Training Ministry of Labour Government of India, issued instructions to equate the post of Instructor AEC Special with that of TGT, as is evident from (Annexure P-5), available at page 28 of the paper book. Besides above, communication dated 9th December, 1999 (Annexure P-7), issued by the Under Secretary (Education) to the Government of Himachal Pradesh, clearly reveals that consequent upon the equation of trade of the Indian Armed Forces with that of Civil Trade for the employment of Ex-Servicemen on civil post by Directorate General of Employment & Training Ministry of Labour Government of India, Government of Himachal Pradesh also decided to adopt equation of trade of Instructor AEC Special with that of TGT. 8. 8. Close scrutiny of the aforesaid documents reveals that the matter with regard to equation of trades of Indian Armed Forces with that of Civil Trades for employment of Ex-servicemen on civil post in the Department of Education was hanging fire since long despite there being clear cut instructions issued by the Ministry of Labour Government of India, vide letter No. DGET.C.30018 (22)/85-EE-I, dated November, 1985, and, as such, Government of Himachal Pradesh with a view to decide the issue of all times to come, adopted the equation of Instructor AEC Special as per list attached by the Employment and Education Department in Himachal Pradesh. List annexed with aforesaid communication clearly reveals that Instructor AEC Special is/was to be equated with Trained Graduate Teachers and, as such, counsel representing the petitioner is right in contending that once instructions dated 9th December, 1999, were in vogue at the time of consideration of his candidature/nomination, Directorate of Higher Education ought not have rejected his candidature on the ground of qualification, especially, when he besides having Master's degree in Political Science also possessed Diploma in the trade of Instructor AEC Special, which is equivalent to the Trained Graduate Teacher (TGT). 9. Though, issue before the Co-ordinate Bench of this Court at the time of passing of judgment dated 18th June, 2011, in CWP No. 4420 of 2010, titled Pratap Singh Verma versus State of Himachal Pradesh and another, was with regard to promotion of Ex-serviceman from TGT to Principal, but if the aforesaid judgment is read in its entirety, the Co-ordinate Bench having taken note of the instructions issued by the Government of India as well as subsequent notification dated 9th December, 1999, issued by the State of Himachal Pradesh, has categorically held that Instructor AEC Special is equivalent to TGTs. In the aforesaid judgment, it has been categorically held that once the post of Instructor AEC Special is equated with TGT, State cannot deny benefit of the service rendered in the Indian Army by the petitioner, while considering his case for promotion. State Government having once accepted the equivalence, cannot turn around and urge that such benefit cannot be given to the petitioner. 10. State Government having once accepted the equivalence, cannot turn around and urge that such benefit cannot be given to the petitioner. 10. At this stage, reliance is placed upon judgment rendered by a Coordinate Bench of this Court in CWP No.4420 of 2010, titled Pratap Singh Verma versus State of Himachal Pradesh & Anr, decided on 18.06.2011, relevant portion whereof is extracted hereinbelow:- "The Directorate General of Employment and Training, Ministry of Labour, Government of India issued a direction for equation of service trade in the Army with civil trades. In this, Instructor AEC Special have been equated with TGTs. "10. Instructor AEC Special Graduate/Trained Graduate/MA/MSc 151.10 Higher Secondary and High (Group-A (B.Ed.) School Teacher. 151.20 Language Teacher Higher Secondary & High School 151.90 Higher Secondary & High School Teachers" This equation has been specifically accepted by the State Government vide its notification dated 9.12.1999 which read as follows:- "Consequent upon the equation of Trades of the Indian Armed forces with that of civil trade for the employment of Exservicemen on civil post vide letter No. DGET.C.30018(22)/85- EE-I, dated November, 1985 by the Ministry of Labour and Employment, Govt. of India, the matter for the adoption of equation of the trade of Instructor AEC Special was under consideration of the Govt. After due consideration, the Governor, HP is pleased to order to adopt the equation of Trade of Instructor AEC Special as per list attached for employment in the Education Deptt. in Himachal Pradesh With immediate effect. Sd/- Under Sectary (Edu.) to the Govt. of H.P." Once the post of Instructor AEC Special has been equated to that of TGTs, the State in my view cannot deny the benefit of the service rendered in the Army to the petitioner and on the ground that he has not actually worked as TGT. It may be clarified that this Court is not in any manner deciding that Army service of whatever nature rendered has to be taken into consideration for this purpose. In the present case the post which the petitioner held in the Army has been specifically equated with the post of TGTs and, therefore, in the facts of this case the service rendered by the petitioner in the Army must be taken into consideration while counting the service of the petitioner in the grade. In the present case the post which the petitioner held in the Army has been specifically equated with the post of TGTs and, therefore, in the facts of this case the service rendered by the petitioner in the Army must be taken into consideration while counting the service of the petitioner in the grade. The State Government having once accepted this equation cannot turn round and urge that this benefit cannot be given to the petitioner." 11. Consequently, in view of the detailed discussions made hereinabove, this Court finds merit in the present petition and, accordingly, the same is allowed. Communication dated 7th August, 2012, (Annexure P-1), whereby candidature/ nomination of the petitioner came to be rejected on the ground of qualification, is set aside with a direction to the Director Higher Education to consider the case of the petitioner for appointment to the post of Lecturer (School Cadre) in the subject of Political Science from the date his name came to be sponsored by Ex-servicemen Employment Cell. However, it is clarified that pursuant to the appointment, the petitioner would be entitled to actual benefits from the date he joins his duties after issuance of appointment letter in his favour. All pending applications also stand disposed of.