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2020 DIGILAW 704 (HP)

Raj Kumar v. State of Himachal Pradesh

2020-10-08

SANDEEP SHARMA

body2020
JUDGMENT Sandeep Sharma, J. - The petitioner was engaged as JBT Teacher on tenure basis in the respondent-department vide order dated 27.7.1988. Since, petitioner remained absent willfully and unauthorizedly from duty with effect from May 1991 to July 13, 1992, his services were terminated w.e.f. May 9, 1991. 2. Being aggrieved with the aforesaid termination order dated 9th May, 1991, petitioner preferred Original Application bearing No. 211/93 before the erstwhile Himachal Pradesh State Administrative Tribunal, but same was ordered to be treated as representation with the direction to Secretary (Education) to consider and decide the same. Secretary (Education) considered the representation and rejected the same and as such, petitioner was once again compelled to file Original Application bearing No. 1613/1993 before the erstwhile Himachal Pradesh State Administrative Tribunal. On 27.02.2002, learned Tribunal having taken note of the fact that department failed to produce the appointment letter/record of the case despite repeated opportunities allowed the petition and set-aside the termination order of the petitioner. While passing aforesaid order, learned tribunal directed the respondents to consider the petitioner for appointment in terms of his qualifications and experience in any institution under their charge, however, while passing aforesaid direction in favour of the petitioner Tribunal below did not held him entitle to seniority or back wages(Annexure P-1). 3. Pursuant to aforesaid direction issued by learned Tribunal, respondent-department, vide order dated 18.9.2002 (Annexure P-2), reinstated the petitioner against the post of JBT teacher on tenure basis in the pay scale of Rs. 4550- 7220/- and posted him in Government Primary School, Jetehri Block Bangana, District Una, H.P., with condition that that he will be entitled for regularization after 10 years of service as JBT and non-duty period will not be counted towards qualifying service of 10 years. On 30th June, 2020, petitioner has superannuated, but since services rendered by him prior to his termination was not taken into consideration by respondent-department while calculating his services for the purpose of pension, he approached this Court by way of instant petition, praying therein following reliefs:- i) That the respondents may be directed to regularize the services of the petitioner as JBT Teacher w.e.f. due date with all consequential benefits, in the interest of justice. ii) That the petitioner may be held entitled for grant of regular pay-scale w.e.f. his initial date of appointment on tenure basis and the arrears accrued, may be ordered to be paid with interest. 4. Having heard learned counsel representing the parties and perused the pleadings adduced on record by the respective parties, this Court finds that there is no dispute interse parties that prior to issuance of order dated 17.09.2002, whereby, petitioner came to be re-instated in terms of the judgment dated 27.2.2002, passed by the erstwhile Himachal Pradesh State Administrative Tribunal, petitioner had already worked as JBT on tenure basis w.e.f. 27.8.1988 to May, 1991 and in case aforesaid period is counted towards the total services rendered by the petitioner in the department, he would become entitled for pension as well as regularization in terms of the policy framed by the Govt. of Himachal Pradesh for regularization. 5. Respondents in their reply while admitting the aforesaid facts as have been taken note hereinabove, have stated that since petitioner was given fresh appointment in the year 2002 pursuant to judgment dated 27.02.2002, passed by Tribunal, no benefit, if any, can be claimed by him qua the services which he rendered in the department on tenure basis prior to his termination in the year 1991. 6. Mr. Arvind Sharma, learned Additional Advocate General, while inviting attention of this Court to judgment dated 27.2.2002, passed by the erstwhile Himachal Pradesh State Administrative Tribunal (Annexure P-1), contends that since it stands recorded in the judgment that petitioner shall not be entitled for seniority or back-wages, he is not entitled to the reliefs as have been prayed in the instant petition. Besides above, Mr. Sharma further contends that otherwise also, petitioner could not be regularized because he did not possess the requisite qualification. He further contends that after the introduction of Right to Education Act and NCTE Guidelines, no untrained teacher can be appointed as JBT. Besides above, Mr. Sharma further contends that otherwise also, petitioner could not be regularized because he did not possess the requisite qualification. He further contends that after the introduction of Right to Education Act and NCTE Guidelines, no untrained teacher can be appointed as JBT. He submits that as per the guidelines issued by the NCTE, minimum qualifications for a person to be eligible for appointment as JBT Teacher is Senior Secondary (or its equivalent) with at least 50% marks and four years Bachelor of Elementary Education (B.E.I.ED) or Senior Secondary (or its equivalent) with at least 50% marks and two years Diploma in Elementary Education and pass in the teacher eligibility test (TET) to be conducted by the authority designated by the H.P.State Government. 7. However, having carefully perused the material available on record, especially reply filed by the respondents, this Court is not inclined to accept the aforesaid submission made by learned Additional Advocate General. Bare perusal of judgment dated 27.2.2002 (Annexure P-1), suggests that petitioner is/was not held entitled to seniority or back wages, but in the case at hand, petitioner has neither claimed seniority nor back-wages, rather his innocuous prayer is that services rendered by him in the year 2000 may be taken into consideration, while calculating his entire service for determining the qualifying service for the purpose of pension and regularization. Similarly, this Court finds from the judgment dated 27.2.2002 passed by learned tribunal below that respondents were directed to consider the petitioner for appointment in terms of his qualifications and experiences in any institution under their charge. In the aforesaid proceedings plea with regard to petitioner having no requisite qualifications never came to be raised and as such, learned Tribunal below directed the respondents to offer appointment to the petitioner in terms of his qualification and experience. Accordingly, respondents offered appointment to the petitioner against the post of JBT in the year, 2002, as has been fairly admitted by the respondents in the reply. It stands duly admitted in the reply that the petitioner was possessing degree in Art and Craft. Other candidates, who have been possessing said qualification stands appointed against the post of JBT as per decision of the Government and their services were regularized after 10 years of service and as such, presently they are working as regular JBT Teacher. It stands duly admitted in the reply that the petitioner was possessing degree in Art and Craft. Other candidates, who have been possessing said qualification stands appointed against the post of JBT as per decision of the Government and their services were regularized after 10 years of service and as such, presently they are working as regular JBT Teacher. Since, it clearly emerge from the reply filed by the respondents that JBT teacher with 10 years of service were awarded Special JBT Certificate for regularization of their services, similar treatment is required to be given to the petitioner, who admittedly worked for more than 10 years as JBT Teacher. 8. It is relevant to mention here that petitioner was ordered to be reinstated in the year 2002 by learned Tribunal having taken note of the fact that prior to his alleged termination petitioner had rendered regular services w.e.f. 27.7.1988 to May 1991 and if aforesaid period is counted towards total service of petitioner, he also deserves to be awarded Special JBT certificate after completion of 10 years service, so that his services are regularized as has been done in the case of the other similar situate persons. Moreover, issue with regard to eligibility, if any, in terms of R&P Rules cannot be raised in the case of the petitioner, who admittedly was given appointment by the respondents on the basis of qualification possessed by him initially in the year, 1988 and thereafter 2002 on the basis of the judgment rendered by Tribunal below. 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. 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. 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. 9. In the aforesaid judgment, it has been categorically held that 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. The writ petitions are accordingly allowed, but without costs. 9. In the aforesaid judgment, it has been categorically held that 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 petitioner was appointed as JBT and he was allowed to work for considerable length of time, it would be hard and harsh to deny him regularization /confirmation in the respective post on the ground that he lacks the prescribed educational qualification. 10. Besides above, respondents have stated in their reply that there is no service record available in the office of Deputy Director of Elementary Education, Una as well as in the concerned BEEO on the basis of which services rendered by the petitioner as JBT in Govt. Primary School, Guling, District Lahul & Spiti w.e.f. 27.07.1988 to May 1991 can be counted for qualifying service of 10 years, but such plea is wholly untenable for the reasons that factum with regard to service rendered by the petitioner during aforesaid period as JBT at Government Primary School, Guling, District Lahul & Spiti and thereafter in District Una stands duly admitted in the reply filed by the respondents and as such, claim of the petitioner cannot be rejected on account of non-availability of record, which was/ is to be kept in safe custody by the respondents till the time same is weeded out in accordance with law after expiry of statutory retention period. It is none of the case of the respondents that record with regard to appointment of petitioner as JBT at Primary School, Guling, District Lahul & Spiti stands weeded out on account of expiry of statutory period of retention. 11. Consequently, in view of the above, present petition is allowed and services rendered by the petitioner w.e.f.27.7.1988 to May 1991 prior to his termination order, are ordered to be to be taken into consideration while calculating entire service of the petitioner for determining the qualifying service for the purpose of pension. Besides above, respondents are also directed to regularize the services of the petitioner from the date when he had completed 10 years complete service alongwith consequential benefits. In the aforesaid terms, present petition is disposed of, so also, pending application(s), if any.