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2023 DIGILAW 520 (HP)

Sanjeev Kumar v. State of Himachal Pradesh

2023-12-13

RANJAN SHARMA

body2023
JUDGMENT : Ranjan Sharma, J. Notice. Mr. Vishal Panwar, learned Additional Advocate General, appears and waives service of notice on behalf of the respondents. 2. With the consent of the parties, the instant writ petition is taken up for disposal, at this stage, in view of the peculiar facts as borne out from the pleadings. 3. The petitioner has come up before this Court seeking the following relief:- “(A) That the act and conduct of the respondents of offering appointment to the petitioners on contract basis instead of giving regular appointment under “Himachal Pradesh Education Department Class-III [School and Inspection Cadre] Services Rules, 1973” may kindly be declared illegal, unconstitutional and in violation of R&P Rules. (B) That the respondents may kindly be considered the services of the petitioners on regular basis alongwith all consequential benefits as per the provisions of the “Himachal Pradesh Education Department Class-III (School an Inspection Cadre) Services Rules, 1973” since the date of their joining on contract basis. (C) That the respondents may kindly be release the entire consequential benefits along will interest @ 9% per annum from the date of their joining to till the date of realization. (D) That the respondents may kindly be directed to give the same benefits to the petitioners as the respondents in LPA No.54/2013 and LPA No.500/2013 and the petitioners in the Civil Writ Petition No.414/2014, 416/2014 and 417/2014 has been held entitled by this Hon’ble Court and the same has been implemented vide office order dated 01.12.2023.” 4. In the background, of the reliefs prayed for above, the brief facts of the case is that the respondents commenced the selection process for recruitment to the post of Trained Graduate Teachers [Medical/ Non Medical/Arts], on regular basis, in regular pay scale, under the batch-wise quota, by holding interview(s) between August to November, 2008 in accordance with the Himachal Pradesh Education Department, Class-III (School and Inspection Cadre Services) Rules, 1973 but, instead of appointing them on regular basis, the respondents appointed them as Trained Graduate Teachers (M/NM), on contractual basis, on 25.11.2008 (Annexure P-1, colly). Left with no option, due to the unequal bargaining power, the petitioners joined the contractual appointment and they continued in service till they were regularized in accordance with the Policy of the Government with immediate effect on 22.6.2015. 5. Left with no option, due to the unequal bargaining power, the petitioners joined the contractual appointment and they continued in service till they were regularized in accordance with the Policy of the Government with immediate effect on 22.6.2015. 5. Now, the grievance of the petitioners is that though as per the Himachal Pradesh, Education Department Class-III [School and Inspection Cadre Service] Rules, 1973 once the petitioners had undergone the selection for the post of Trained Graduate Teacher, on regular basis, but were illegally appointed on contract basis, dehors the Rules of 1973, ignoring the fact that the contractual mode of appointment for TGTs was introduced in Himachal Pradesh Elementary Education Department, Trained Graduate Teacher [Class-III-Non Gazetted] Recruitment and Promotion Rules on 22.10.2009, (Annexure P-2); then, the petitioners could not have been appointed on contract basis; meaning thereby, that the petitioners have a fundamental and legal right to be appointed as TGT (M/NM) on regular basis from the date of initial appointment on contract basis. 6. The learned counsel for the petitioners submits that the inaction of the respondents in appointing the petitioners as TGTs on contract basis erroneously and dehors the Rule of 1973, when, the petitioners had a fundamental-legal right to be appointed as TGTs on regular basis, under the Rule of 1973; has resulted in depriving the petitioners of the regular appointment, regular status, higher pay fixation in regular pay scale of TGTs and the benefit of Assured Career Progression Schemes [of 8–16–24–32 years, which stood re-carved to benefits after 4–9–14 years service], by treating the petitioners as regular incumbents – TGTs from the date of initial appointment(s) in August – November 2008 and benefit of higher pay benefits in revised pay scales with every revision w.e.f. 1.1.2006 and w.e.f. 1.1.2016 is a reckoning loss till day. 7. 7. The matter involved in the present case as to whether the Trained Graduate Teacher who had undergone selection for regular appointment could be appointed on contractual basis, in contravention of the Recruitment and Promotion Rules, 1973 and when the contractual mode of appointment was introduced only on 22.10.2009 stands adjudicated by this Court in CWP No.7602 of 2010, titled as Om Parkash Versus State of Himachal Pradesh alongwith connected matters, decided on 02.05.2012; CWP No.3143 of 2011, titled as Manju Devi versus State of Himachal Pradesh and others, decided on 7.11.2012; and CWP No. 3144 of 2011, titled as Anju Devi vs. State of Himachal Pradesh and others, decided on 8.10.2012 and the judgments passed by the Coordinate Bench of this Court have also been affirmed in LPA No. 21 of 2013 alongwith other connected LPA’s titled as State of Himachal Pradesh and others vs. Ravinder Kumar, decided on 4.10.2019, and in LPA No. 4059 of 2013, titled as State of Himachal Pradesh & others vs. Anju Devi; LPA No. 4060 of 2013, titled as State of Himachal Pradesh & others vs. Manju Devi; and LPA No. 54 of 2013, titled as State of Himachal Pradesh & others vs. Om Prakash (Annexure P-3), whereby, the Division Bench of this Court, has recorded its findings as under:- “4. Observations: 4(i) It is not in dispute that even though the State Government on 12.12.2003 had requested all the Heads of Departments to amend Clause-10 of R&P Rules, for including contractual appointment as one of the mode of recruitment in accordance with the decision taken by the State, yet, Recruitment & Promotion Rules for lecturers (school cadre) were not amended in tune with 12.12.2003 decision of the State Government. The mode of recruitment under the Recruitment & Promotion Rules for appointment lecture (School cadre) continued to be only on regular basis. It was only on 20.9.2010, that Clause-10 of the R&P Rules for the posts in question was amended and notified, incorporating contractual appointments, as one of the mode of recruitment. 4(ii) The college in question was taken over by the State on 6.2.2007. In terms of notification dated 25.8.1994, services of the eligible staff were also required to be taken over w.e.f. 6.2.2007. State though had taken over the services of the staff of the Kanwar Durga Chand Memorial College, Jaisinghpur only on 21.6.2010. 4(ii) The college in question was taken over by the State on 6.2.2007. In terms of notification dated 25.8.1994, services of the eligible staff were also required to be taken over w.e.f. 6.2.2007. State though had taken over the services of the staff of the Kanwar Durga Chand Memorial College, Jaisinghpur only on 21.6.2010. Fact remains that services of writ petitioners were taken over prior to amendment of R&P Rules. The services of the petitioners were required to be taken over in terms of Recruitment & Promotion Rules, which were in existence on the date of taking over the college i.e. 6.2.2007. The R&P Rules as they existed on 6.2.2007 did not provide for contractual appointments. The Rules only provided for regular recruitments. Service of petitioners were taken over w.e.f. 6.2.2007. College itself was taken over on 6.2.2007. Therefore, clause providing appointment on contractual basis inserted in the R&P Rules by way of amendment of Rules on 20.09.2010, could not be retrospectively applied to the petitioners. It is apt to refer the judgment passed by this Court, in CWP No.1811 of 2008, titled Dev Raj Vs. State of H.P & others, relevant segment reproduced hereinafter:- “25………………….Government appointments are made in accordance with the Rules framed under Article 309 of the Constitution of India. When such Rules are framed the Government is expected to act and make appointments in accordance with the Rules. If the Rules do not permit the Government to make appointment on contract basis they must be made on regular basis. 4(iii) The notification dated 25.8.1994, under which State Government took over the privately managed colleges as well as services of staff working there, provides for granting them Government scales as admissible to their respective corresponding categories. Clause-9 of this notification reads as under:- “9. 4(iii) The notification dated 25.8.1994, under which State Government took over the privately managed colleges as well as services of staff working there, provides for granting them Government scales as admissible to their respective corresponding categories. Clause-9 of this notification reads as under:- “9. Provided that services of only those employees will be taken over who furnish a written acceptance on non-judicial paper duly attested by the competent authority to the effect that they are willing to be absorbed in Government services on the terms and conditions laid down in these rules.” There is no provision in the above notification for taking over services of staff of privately managed colleges on contract basis, more so, in the facts of instant case, in view of Recruitment and Promotion Rules of Lecturer (School cadre) as they existed on 6.2.2007 i.e. the date of take over, whereunder no provision for appointment on contract basis was there, regular recruitment was the only prescribed mode. 5. Thus, services of the petitioners’ were thus required to be taken over w.e.f. 6.2.2007 on regular basis. There is no infirmity in the judgment passed by learned Single Judge. All these appeals are therefore dismissed alongwith pending application(s), if any.” 8. The learned counsel for the petitioners has also placed reliance on the judgment passed by this Court in CWP No. 414 of 2014, titled as Kuldip Chand vs. State of Himachal Pradesh and other connected matters decided on 24.4.2014/18.9.2014 which reads as under : “Mr. Ramakant Sharma, learned counsel for the petitioners, stated that the matters are covered in terms of judgments of this Court, passed in CWP No.7602 of 2010, titled Om Parkash Versus State of H.P. and others, and connected matters, and CWP No.3144 of 2011, titled Anju Devi Versus State of H.P. and others. Mr. Romesh Verma, learned Additional Advocate General, stated at the Bar that the State has challenged the said judgments by way of filing Letters Patent Appeals, being LPAs No.54 of 2013 and 500 of 2013, which are pending adjudication in this Court. In the given circumstances, we deem it proper to dispose of the writ petitions in terms of the judgments, referred to above, subject to the outcome of LPAs No.54 of 2013 and 500 of 2013. Ordered accordingly. In the given circumstances, we deem it proper to dispose of the writ petitions in terms of the judgments, referred to above, subject to the outcome of LPAs No.54 of 2013 and 500 of 2013. Ordered accordingly. It is made clear that no Execution/contempt Petition, on behalf of the petitioner(s), shall be entertained till the decision of the Letters Patent Appeals, referred to supra”. 9. In the background of the judgments in the case of Ravinder Kumar; Anju Devi; Mandi Devi; Om Parkash & Kuldip Chand [as referred to in Paras 7 & 8 above] the learned counsel for the petitioners states that consequent upon the approval given by the State Government, the Respondent No. 2 – Director of Elementary Education, Himachal Pradesh has issued an office order on 1.12.2023 (Annexure P-5), deciding to implement these judgments and to give the deemed regular appointment to the petitioners therein, as Trained Graduate Teachers in the pay scale of Rs.10,300 – 34,800 + 3600 GP plus other allowances with consequential benefits from the date when they were initially appointed on contract basis [in August to November 2008], with direction to the concerned DDO’s to release the eligible and admissible financial benefits to the incumbents therein. 10. Per contra, Mr. Vishal Panwar, learned Additional Advocate General submits that the mandate of this Court, in case of Ravinder Kumar (Annexure P-3) and other cases as referred to in Para-9 (supra) and the decision dated 1.12.2023 (Annexure P-5), to implement the judgments is not in dispute but the factual aspects needs to be verified/scrutinized. 11. In these circumstances, and on the request of learned counsel for the petitioner, on instructions of the petitioner, this Court permits the petitioner to make a fresh representation to the Respondent No.2-Director of Elementary Education within two weeks; with further directions to the aforesaid respondent to verify the facts and, in case, the petitioners are found to be similarly placed; then, to extend the similar benefit of deemed regular appointment as Trained Graduate Teachers (M/NM) to the petitioners, in the applicable regular pay scale of TGTs, from the date they were initially appointed on contract basis, by passing appropriate orders within six weeks from today. 12. Needless to say, that upon consideration, as aforesaid, in case, the petitioners are found to be similarly placed then, the eligible and admissible monetary benefits, in accordance with law, shall accrue to the petitioners. 12. Needless to say, that upon consideration, as aforesaid, in case, the petitioners are found to be similarly placed then, the eligible and admissible monetary benefits, in accordance with law, shall accrue to the petitioners. In the aforesaid terms, the instant writ petition is disposed of. Pending miscellaneous application(s), if any, shall also stand disposed of, accordingly.