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2023 DIGILAW 133 (HP)

Renuka Dogra v. State of Himachal Pradesh

2023-03-10

AJAY MOHAN GOEL

body2023
JUDGMENT : Ajay Mohan Goel, J. The case of the petitioner is that she was appointed against the post of TGT (Arts) vide Office Order dated 29.09.2017 (Annexure P6) consequent upon her selection in the counseling which was done of the qualified candidates by respondent No.2. She continued to serve as such being duly qualified for being appointed as such. At the time when the petitioner was appointed as TGT (Arts) on contract basis vide Annexure P6, she was possessing the qualification of B.Sc. (Home Science) which she had done from Kurukshetra University in the year 1997 and also the qualification of B.Ed which qualification she again acquired from Kurukshetra University in the year 1998. The petitioner had also done her M.A. (English) from Himachal Pradesh University, in November, 2002 and she had also successfully passed the Teachers Eligibility Test for teaching category i.e. TGT (Arts) held in the year 2011-2012. 2. The grievance of the petitioner started when in terms of the policy of the State Government, the incumbents who were appointed on contract basis as TGT (Arts) alongwith the petitioner were regularized by the State Government upon completion of three years of service, but the services of the petitioners were not regularized as such. The regularization order of colleagues of the petitioner is placed on record as Annexure P9 and the same is dated 30.04.2021. The petitioner made a representation in terms of Annexure P10, dated 18.06.2021 and vide Annexure P11, i.e. Office Order dated 12.07.2021, Director of Elementary Education withdrew/cancelled the appointment of the petitioner as TGT (Arts) with immediate effect, on the ground that it had come to the notice of the said officer during scrutiny of the case of the petitioner for regularization that she was not possessing the requisite qualification for appointment against the post of TGT (Arts) as per Recruitment & Promotion Rules dated 31.05.2012 as the petitioner had done her B.Sc. (Home Science), which was not a valid qualification for the post of TGT (Arts). 3. (Home Science), which was not a valid qualification for the post of TGT (Arts). 3. Learned counsel for the petitioner has argued that the act of the respondent-Department of: (a) not regularizing the services of the petitioner as TGT (Arts) upon completion of three years of service on contract basis and (b) cancellation of her appointment on contract basis in terms of Annexure P11 is arbitrary, discriminatory and not sustainable in the eyes of law as the authority concerned has erred in not appreciating that it was a fortuitous circumstances that the degree granted in the stream of Home Science by Kurukshetra University is termed as a B.Sc. degree, whereas similar degree granted by other Universities is termed as B.A. degree. He has further submitted that it has not been appreciated that the subject which the petitioner studied while acquiring the graduation qualification in Home Science from Kurukshetra University were same and similar as are imparted to the students who undergo graduation in Home Science including from Himachal Pradesh University. He further submitted that otherwise also in terms of the Recruitment & Promotion Rules, B.A./B.Com was the minimum qualification prescribed for being eligible for appointment as TGT (Arts) and as the petitioner on the date when she was initially appointed on contract basis was possessing the qualification of M.A. (English), therefore also she was eligible for being considered for appointment against the post of TGT (Arts). Learned counsel further submitted that otherwise also the act of the respondents is discriminatory and harsh, for the reason that after appointment of the petitioner on contract basis she imparted education for three years as TGT (Arts) and there was no complaint etc. against her efficiency with regard to imparting education to the children and in these circumstances, the act of the respondents of not regularizing her services is not sustainable in the eyes of law. Learned counsel further submitted that the respondents have ignored the fact that the petitioner had duly qualified the Teachers Eligibility Test for being appointed as TGT (Arts). 4. Learned counsel further submitted that the respondents have ignored the fact that the petitioner had duly qualified the Teachers Eligibility Test for being appointed as TGT (Arts). 4. The petition is opposed by the respondents, inter alia, on the ground that there was no infirmity in the decision of the respondents, for the reason that as the petitioner was not fulfilling the eligibility criteria prescribed in the Recruitment & Promotion Rules for appointment against the post of TGT (Arts), therefore, she had neither right of regularization nor right of continuation. 5. Learned Additional Advocate General has argued that Recruitment & Promotion Rules are unambiguous with regard to the essential qualifications for appointment against the post of TGT (Arts) and the illegality which stood committed at the time when the petitioner was appointed on contract basis, stood subsequently corrected by way of issuance of P11 and therefore also, there is no merit in the present petition. He argued that it is settled law that when Recruitment & Promotion Rules prescribe essential qualifications for appointment against a post then an incumbent who does not fulfills the eligibility criteria cannot stake any claim for being appointed against the post in question. Accordingly, he submitted that as there is no merit in the present petition the same be dismissed. 6. I have heard learned counsel for the parties and have also gone through the pleadings as well as the documents appended therewith. 7. The date of appointment of the petitioner on contract basis as TGT (Arts) has already been referred by me hereinabove and I have also referred to the order, in terms whereof, her services were dispensed with. 8. Recruitment & Promotion Rules to the post of TGT (Arts) are appended with the petition as Annexure P4. A perusal thereof demonstrates that the essential academic and professional qualifications prescribed therein for appointment against the post of TGT (Arts) are as under: “Amendment of Annexure-A (a) For the existing provisions against Col. No.7 the following shall be substituted, namely:- “(1) ESSENTIAL ACADEMIC & PROFESSIONAL QUALIFICATION:- 1. TRAINED GRADUATE TEACHER (ARTS):- I) B.A./B.Com with at least 50% marks and 1-year Bachelor in Education (B.Ed.) OR B.A./B.Com with at least 45% marks an 1-year Bachelor in Education (B.Ed.) in accordance with NCTE (Recognition norms and procedure) regulations issued from time to time in this regard. TRAINED GRADUATE TEACHER (ARTS):- I) B.A./B.Com with at least 50% marks and 1-year Bachelor in Education (B.Ed.) OR B.A./B.Com with at least 45% marks an 1-year Bachelor in Education (B.Ed.) in accordance with NCTE (Recognition norms and procedure) regulations issued from time to time in this regard. OR Senior Secondary (or its equivalent) with at least 50% marks an 4 year Bachelor in Elementary Education (B.EI.Ed.). OR Senior Secondary (or its equivalent) with at least 50% marks and 4 year B.A.Ed. OR B.A./B.Com with at least 50% marks and 1-year Bachelor in Education (B.Ed.) (Special Education) AND ii) Pass in Teacher Eligibility Test (TET), to be conducted by HP Subordinate Services Selection Board in accordance with the guidelines framed by the NCTE for the purpose.” 9. The qualifications which were possessed by the petitioner as on the date when she was initially appointed on contract basis was B.Sc. (Home Science), B.Ed. and M.A. (English). In addition, she also passed the Teachers Eligibility Test for the post of TGT (Arts). In the present case, in terms of order dated 17.12.2021, Himachal Pradesh University was impleaded as party respondent and said University filed response to the writ petition and also filed an affidavit on the asking of the Court in terms of order dated 27.05.2022. In nutshell, the stand of the respondent University is that Himachal Pradesh University is not conferring under graduate degree in the subject of Home Science and further those students who have obtained under graduate degrees from any university established by law in India, may pursue the degree of Master of Arts as per the provisions of Ordinance 1.4 of the First Ordinance of respondent/University. It is also the stand of the respondent University that the degree of B.Sc.(Home Science) issued by Kurukshetra University that as per copy of Ordinance 9.20(a) of the respondent/University, the B.Sc. (Home Science) degree of Kurukshetra University obtained by a candidate cannot be equated in Science degree awarded by the respondent/University. 10. Be that as it may, in terms of the Recruitment & Promotion Rules, the essential academic qualification for T.G.T. (Arts) is B.Sc./B.Com. In the present case, when the petitioner was appointed on contract basis as T.G.T. (Arts), it is not the case of the respondent-Department that said appointment was offered to her as he had concealed the qualifications which she possessed at the relevant time from the Selection Committee. In the present case, when the petitioner was appointed on contract basis as T.G.T. (Arts), it is not the case of the respondent-Department that said appointment was offered to her as he had concealed the qualifications which she possessed at the relevant time from the Selection Committee. Besides this, it is not in dispute that on the relevant date the petitioner was possessing besides other qualifications, the qualification of M.A. (English). 11. This Court is of the considered view that if graduation degree in the subject of Arts was good enough for a candidate to be eligible for appointment against the post of T.G.T. (Arts), then by no stretch of imagination, it can be said that a person who was possessing the post-graduation qualification in the subject of Arts was ineligible for being considered for appointment against the post of T.G.T. (Arts) on the strength of said qualification. Of course, all other rigors were to apply, but the factum of the candidate being in possession of higher qualification could not have been ignored and in the peculiar facts and circumstances of this particular case, where initial appointment to the petitioner on contract basis was granted by the Department being fully aware of the qualifications possessed by her, it would have been in the interest of justice in case the services of the petitioner had been regularized by taking into consideration the fact of her possessing the qualification of M.A. (English) on the requisite date. This not having been done, the act of the respondents of firstly not regularizing the services of the petitioner alongwith the incumbents similarly situated like her and thereafter dispensing with her services in terms of Annexure P11 is in fact arbitrary and not sustainable in the eyes of law. 12. This Court is again stressing that had it not been a case where the petitioner in fact had been engaged by the Department on contract basis and further her services were dispensed with when the Department was considering her case for regularization, may be a different view might have been taken by the Court. 12. This Court is again stressing that had it not been a case where the petitioner in fact had been engaged by the Department on contract basis and further her services were dispensed with when the Department was considering her case for regularization, may be a different view might have been taken by the Court. But, herein as the stage at which respondents took objection to the qualification of the petitioner was when her services were being considered for regularization and that too, in the background that there was no complaint against the petitioner that she was not imparting education to the students as was expected from a T.G.T. (Arts), the act of the respondents/ Department in fact was harsh. 13. Accordingly, in view of the above discussion, this writ petition is allowed, with the following directions: “The respondents are directed to regularize the services of the petitioner as from the date when T.G.T. (Arts) candidates appointed on contract basis alongwith the petitioner were regularized and suitable seniority be granted to her by applying the parameter applied for granting seniority to the person similarly situated as the petitioner. Office Order dated 12.07.2021 (Annexure P11) and Office Order dated 23.07.2021 (Annexure P12) are ordered to be quashed and set aside. It is further ordered that the petitioner will be entitled to seniority etc. as from the date of her regularization, but the monitory benefits will be notional as till the date of pronouncement of the judgment and from thereafter, actual benefits shall accrue to her.” The judgment be implemented within a period of one month. The petition is disposed of, so also the pending miscellaneous applications, if any.