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2020 DIGILAW 575 (HP)

Swami Raj v. State of Himachal Pradesh

2020-09-07

SANDEEP SHARMA

body2020
JUDGMENT Sandeep Sharma, J. - In the year 2003, the Government of Himachal Pradesh took a conscious decision to start the classes of "Bhoti Language" in the Government Schools located in tribal areas and pursuant to aforesaid decision, Block Elementary Education Officer, Pangi at Killar sent a communication dated 2.6.2003 addressed to the Head Teacher Government Primary School Parmar, Bhatori, asking him to recommend the names of suitable/eligible candidates for being appointed on the post of Bhoti Language Teacher in accordance with law (Annexure A-1). Pursuant to aforesaid communication dated 2.6.2003, the process for appointing the suitable incumbents in terms of the direction issued by Block Primary Education Officer came to be initiated. Name of the petitioner being fully eligible and qualified came to be recommended for appointment as Bhoti Language Teacher. Head Teacher concerned after completion of due formalities appointed the petitioner as Bhoti Teacher on contract basis vide officer order dated 2.9.2003 issued from the office of respondent No.2 and directed him to join at Government Primary School, Parmar Bhatori (Annexure A-2). Since 2.9.2003 petitioner has been regularly rendering his services as Bhoti Teacher on contract basis in the school concerned. 2. Having taken note of requirement/necessity of the Bhoti teacher in tribal area, Government of Himachal Pradesh vide communication dated 12.12.2003 created two posts of Bhoti Teachers after consultation with the Finance Department. One post of Bhoti Teacher was assigned to Government Primary School Parmar, Bhatori, as is evident from communication dated 23.12.2005 addressed to the Deputy Director Elementary Education by the Director of Elementary Education (Annexure A-3), against which petitioner was already working in pursuance to his appointment vide office order dated 2.9.2003, whereas second post was assigned to Government School, Hudan Bhutori. 3. Precisely, the claim of the petitioner is that since he has been continuously working without there being any interruption against sanctioned post of Bhoti language teacher in the school concerned for more than 17 years, respondent-State ought to have regularized his services as Bhoti teacher in terms of the regularization policy. 3. Precisely, the claim of the petitioner is that since he has been continuously working without there being any interruption against sanctioned post of Bhoti language teacher in the school concerned for more than 17 years, respondent-State ought to have regularized his services as Bhoti teacher in terms of the regularization policy. Since, aforesaid prayer made on behalf of the petitioner never came to be paid any heed by the respondents, he was compelled to approach the erstwhile Himachal Pradesh Administrative Tribunal by way of O.A. No.206 of 2015, praying therein following relief:- "(i) That the Respondents may be directed to regularize the services of the Applicant form the date on which the applicant is entitled to be regularized on the post of Bhoti Language Teacher in the pay scale which is being paid to the JBT Teacher in the State of Himachal Pradesh." 4. After abolition of erstwhile Himachal Pradesh Administrative Tribunal, aforesaid Original Application came to be transferred to this Court and stands re-registered as CWPOA No.5015 of 2019. 5. Having heard learned counsel representing the parties and perused the material available on record, this Court finds that respondent-State having felt need of promoting Bhoti language in tribal areas of Himachal Pradesh decided to create/sanction 43 posts of Bhoti teachers in Spiti area of Lahaul & Spiti District. In the year, 2003, Government created two more posts of Bhoti Teacher on part time basis to start teaching of Bhoti language in Pangi area of Chamba District and such teachers were to be appointed for two hours in the first year, for four hours in the second year and in the third year it was on Spiti pattern, as is evident from Annexure A-3. 45 Bhoti teachers appointed on part time basis are being paid honorarium at the rate 3000/- per month for 10 academic months in a year, meaning thereby they are not getting any salary during winter vacation. 6. Mr. Sudhir Bhatnagar, learned Additional Advocate General while referring to the reply filed on behalf of the respondents, contends that since petitioner alongwith other Bhoti teachers came to be appointed on requirement basis without fulfilling qualification criteria, he cannot claim any parity with the JBT teachers, who are admittedly appointed on the basis of the qualification as prescribed under the Recruitment and Promotion Rules. Besides above, learned Additional Advocate General contends that with the implementation of Right to Education Act, 2009, person aspiring to be appointed as teacher is required to possess minimum qualification and as such, prayer made in the instant petition for regularization cannot be accepted. 7. However, having carefully perused the pleadings adduced on record by the respective parties, especially reply filed by respondents No.1, 3 and 4, this Court finds that the petitioner was initially appointed in the year, 2003 on the recommendation made by education department, which having felt necessity to appoint Bhoti teacher in Schools of tribal areas, specially called upon school Head Teachers to forward bio-data of a person having sufficient knowledge in Bhoti language. Since initial engagement of petitioner was made by school Head Teacher Government Primary School, Hudan Bhatori on the instructions of Deputy Director Elementary Education, this Court is not persuaded to agree with the contention of learned Additional Advocate General that since the initial appointment of the petitioner is dehors the rules, he cannot claim any regularization. No doubt, as per Right to Education Act, 2009, a person aspiring to be a teacher for class I to IV is required to possess minimum qualification i.e. Senior secondary (or its equivalent) with at least 50% marks and two years Diploma in Elementary Education or Senior Secondary (or its equivalent) with at least 45% marks and two years Diploma in Elementary Education or Senior Secondary (or its equivalent) with at least 50% marks and four years Bachelor of Elementary Education or Senior Secondary (or its equivalent) with at least 50% marks and two years Diploma in Education (Special Education) or Graduation and two years Diploma In Elementary Education and pass in the Teacher Eligibility Test to be conducted by the authority designated by the Himachal Pradesh State Government, but such condition definitely cannot be made applicable in the case of Bhoti language that too in the case of the petitioner, whose services came to be engaged prior to implementation of Right to Education Act, 2009. Moreover, Bhoti language being a tribal language is only to be taught in tribal areas that too in the District of Lahaul & Spiti and Pangi area in Chamba District and as such, persons having special knowledge to teach such language cannot be made to compete or equate with the persons having qualification in other fields. 8. Moreover, Bhoti language being a tribal language is only to be taught in tribal areas that too in the District of Lahaul & Spiti and Pangi area in Chamba District and as such, persons having special knowledge to teach such language cannot be made to compete or equate with the persons having qualification in other fields. 8. Though there is no material available on record suggestive of the fact that special diploma, if any, in "Bhoti language" is being imparted by Government or private institutions, but if it is so, it is not understood that why respondents in the year, 2003, directed the school Headmaster to send the name of persons having special knowledge in Bhoti Language. Learned Additional Advocate General on instructions informs this Court that since the year, 1987 Himachal Pradesh University has been awarding diploma in "Bhoti language". If it is so, it is not understood why respondent in the year, 2003 directed the school Head Teacher to send names of the persons having special knowledge in "Bhoti language". By the aforesaid action of the respondent, this Court is compelled to presume/infer that though in the year, 1987 Himachal Pradesh University had started awarding Diploma in "Bhoti language", but since there was no qualified candidate, Deputy Director Elementary Education with a view to safeguard interest of the students studying in Tribal areas called upon Central Head Teacher concerned to recommend the names of persons having knowledge of "Bhoti language". 9. Since the petitioner has been working continuously without there being any interruption against the post of Bhoti language teacher in tribal area of Pangi in Chamba, District, he can be said to have acquired expertise by now and as such, his case cannot be allowed to be denied on the ground that he does not possess requisite qualification and his services cannot be regularized. Hon, ble Apex Court in Bhagwati Prasad versus Delhi State Mineral Development Corporation, (1990) 1 SCC 361 has held as under:- "6. The main controversy centres round the question whether some petitioners are possessed of the requisite qualifications to hold the posts so as to entitle them to be confirmed in the respective posts held by them. Hon, ble Apex Court in Bhagwati Prasad versus Delhi State Mineral Development Corporation, (1990) 1 SCC 361 has held as under:- "6. The main controversy centres round the question whether some petitioners are possessed of the requisite qualifications to hold the posts so as to entitle them to be confirmed in the respective posts held by them. The indisputable facts are that the petitioners were appointed be tween the period 1983 and 1986 and ever since, they have been working and have gained sufficient experience in the actual discharge of duties attached to the posts held by them. Practical experience would always aid the person to effectively discharge the duties and is a sure guide to assess the suitability. The initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned with, but it is so at the time of the initial entry into the service. Once the appointments were made as daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualifications. In our view, three years' experience, ignoring artificial break in service for short period/periods created by the respondent, in the circumstances, would be sufficient for confirmation. If there is a gap of more than three months between the period of termination and re-appointment that period may be excluded in the computation of the three years period. Since the petitioners before us satisfy the requirement of three years' service as calculated above, we direct that 40 of the senior-most workmen should be regularised with immediate effect and the remaining 118 petitioners should be regularised in a phased manner, before April 1, 1991 and promoted to the next higher post according to the standing orders. All the petitioners are entitled to equal pay at par with the persons appointed on regular basis to the similar post or discharge similar duties, and are entitled to the scale of pay and all allowances revised from time to time for the said posts. We further direct that 16 of the petitioners who are ousted from the service pending the writ petition should be reinstated immediately. Suitable promotional avenues should be created and the respondent should consider the eligible candidates for being promoted to such posts. We further direct that 16 of the petitioners who are ousted from the service pending the writ petition should be reinstated immediately. Suitable promotional avenues should be created and the respondent should consider the eligible candidates for being promoted to such posts. The respondent is directed to deposit a sum of Rs. 10,000 in the Registry of this Court within four weeks to meet the remuneration of the Industrial Tribunal. The writ petitions are accordingly allowed, but without costs. 10. Leaving everything aside, it is not in dispute before this Court that since the year, 2003 petitioner had been continuously serving the education department as Bhoti teacher in tribal area of Pangi in Chamba District and as such, his case for regularization deserves to be considered at par his counterparts in other departments as per the policy framed by the Government of Himachal Pradesh, especially when it stands duly established on record that at present there exist 43 sanctioned posts of Bhoti Teachers in the education department. 11. Consequently, in view of the above, the present petition is allowed and respondents are directed to consider the case of the petitioner for regularization in terms of the policy framed by the government of Himachal Pradesh. Having taken note of the fact that the petitioner is serving department for more than 20 years, this Court hopes and trust that needful shall be done by the respondents expeditiously, preferably within a period of six weeks. Pending applications, if any, also stand disposed of.