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2024 DIGILAW 174 (HP)

Kamlesh Chand v. State of H. P.

2024-03-14

SUSHIL KUKREJA, TARLOK SINGH CHAUHAN

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JUDGMENT : TARLOK SINGH CHAUHAN, J. 1. Even though, the petition filed by the writ-petitioner (appellant herein) was allowed by the learned writ Court, however, he is still aggrieved by the same and seeks modification to the extent that he be granted actual benefits from 24.07.2012 and the rider imposed by the learned writ Court restricting the actual benefits to the date of joining his duties be set aside. 2. The facts are not in dispute and can be enumerated thus: 3. The appellant, after rendering services as Instructor AEC Special in the Indian Army, retired from Army Education Corps on 30.11.2009 and thereafter got himself enrolled with the Ex-servicemen Cell, Hamirpur for re-employment. Pursuant to the requisition sent by the Department of Education, name of the appellant, as “Ex-serviceman” came to be sponsored by the Ex-servicemen Cell, Hamirpur, vide communication dated 21.04.2012. However, the Directorate of Higher Education, Himachal Pradesh, vide communication dated 07.08.2012 rejected his candidature/nomination on the ground that he was not fulfilling the norms of Recruitment and Promotion Rules for the post in question. 4. In addition to above, the Department also claimed that clarification regarding equivalence of concerned diploma to that of B.Ed. had been sought from the H.P. University. Meaning thereby, the case of the appellant came to be rejected on the ground that at the time of consideration of his candidature/nomination, he did not possess the requisite professional qualification i.e. B.Ed. from the recognized University. 5. The Recruitment and Promotion Rules for the post of lecturer (Regular/Contract) (School Cadre), Class-III, Non-Gazetted in the Department of Higher Education, Himachal Pradesh, provide as under: “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. (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.” 6. It would be evident from the aforesaid rules that the candidates applying for the post of Lecturer (School Cadre), besides having Master’s Degree in the concerned subject, were also required to possess Degree in Bachelor of Education. Whereas, in the instant case, the appellant at the time of consideration of his candidature, only possessed Master’s Degree in Political Science and did not possess qualification of Bachelor of Education Degree. 7. Whereas, in the instant case, the appellant at the time of consideration of his candidature, only possessed Master’s Degree in Political Science and did not possess qualification of Bachelor of Education Degree. 7. The learned writ Court, after relying upon the instructions of the Directorate General of Employment and Training, Ministry of Labour, Government of India, whereby the post of Instructor AEC Special was equated with that of TGTs, allowed the petition in the following terms: “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.” 8. Now, the grievance of the appellant as mentioned above is that instead of granting notional benefits, the appellant ought to have been held entitled for actual benefits from 24.07.2012 because he was always ready and willing to work but was denied the opportunity illegally by the respondents and in order to buttress his arguments, strong reliance has been placed on the judgment rendered by the Hon’ble Supreme Court in State of Bihar and Others vs. Kripa Nand Singh and Another, (2014) 14 SCC 375 , wherein it was held that even though “no work, no pay” is the rule while “no work, yet pay” is the exception, but compulsory waiting period is one such exception, to qualify for which employee has to prove that he had made earnest endeavours despite which he was not able to join his duties for no fault of his. 9. We have heard the learned counsel for the parties and have gone through the material placed on record. 10. At the outset, it needs to be observed that it is a trite in law that judgments cannot be applied without appreciating their context. 9. We have heard the learned counsel for the parties and have gone through the material placed on record. 10. At the outset, it needs to be observed that it is a trite in law that judgments cannot be applied without appreciating their context. The judgments must be read as a whole and the observations are to be considered in light of the questions which were before the Court leading upto the judgment as the decision takes the colour from the questions involved in the case in which it is so rendered. 11. We may, at this stage, fruitfully refer to the observations made by three Judge Bench of the Hon’ble Supreme Court in Haryana Financial Corporation and Another vs. Jagdamba Oil Mills and Another, (2002) 3 SCC 496 , relevant portion whereof reads as under: “19. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are not to be read as Euclid's theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statues, they do not interpret judgments. They interpret words of statutes, their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. vs. Horton, 1951 AC 737 at P. 761, Lord Mac Dermot observed: (All ER p. 14C-D) “The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge.” 20. In Home Office vs. Dorset Yacht Co. 1970 (2) All ER 294 Lord Reid said, (at All ER p. 297g-h) “Lord Atkin's speech is not to be treated as if it was a statute definition. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge.” 20. In Home Office vs. Dorset Yacht Co. 1970 (2) All ER 294 Lord Reid said, (at All ER p. 297g-h) “Lord Atkin's speech is not to be treated as if it was a statute definition. It will require qualification in new circumstances.” Megarry, J. in (1971) 1 WLR 1062 observed: “One must not, of course, construe even a reserved judgment of even Russell L.J. as if it were an Act of Parliament.” And, in Herrington vs. British Railways Board, (1972) 2 WLR 537 Lord Morris said: (All ER p. 761c) “There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case.” 21. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.” 12. Adverting to the facts in Kripa Nand Singh’s case (supra), it would be noticed that therein respondent Kripa Nand Singh had been appointed as a teacher in Political Science as per Memo No. 400-548 dated 05.02.1986 and he was directed to join the High School, Kisko, Lohardagga within 21 days. He reported for duty on 24.02.1986. However, his appointment order was returned by the Headmaster with the endorsement as under: “According to the memo No. 400-548 dated 5th February, 1986 Shri Kripanand Singh (Assistant Teacher) has been appointed in Political Science subject issued by the Deputy Director of Education Secondary, Budhmarg, Patna. In this School already Teachers in Political Science and History subjects are working. In this school there is only one vacant post of Hindi subject. Therefore, it is not possible to accept joining of him in this School.” 13. After five years, by Memo No. 1736-1779 dated 17.07.1991 issued by Deputy Director Education, Patna, first respondent was posted in the High School Sahjadpur (Madhepura). However, there also, there was no vacant post. Therefore, by Memo No. 333-6 dated 24.07.1991 issued by Additional Director of Education, Darbhanga and Kosi Division, first respondent was directed to join in the High School Balwahat (Sarharsa). 14. However, there also, there was no vacant post. Therefore, by Memo No. 333-6 dated 24.07.1991 issued by Additional Director of Education, Darbhanga and Kosi Division, first respondent was directed to join in the High School Balwahat (Sarharsa). 14. After ten years of his joining, the respondent filed a writ petition before the High Court of Judicature of Patna for payment of salary for the period with effect from 24.02.1986 to 16.07.1991. The said writ petition was disposed of with a direction to make fresh representation. However, it was made clear in that order as follows: “In case the petitioner was unable to join due to defective orders of posting and in case he was not at fault for not being able to join any post during the period in question, there should be no reason to deny him the salary for the mistakes committed by the department officials.” 15. The representation made by the respondent was turned down vide order dated 21.09.2002 and the same thereafter came to be challenged by filing another writ petition before the High Court. The learned Single Judge took the view that the Government had not passed proper order as per the directions issued by the Court. It was further held that rejection of the claim for salary for the period 24.02.1986 to 16.07.1991 was not explained in the counter-affidavit. According to the learned Single Judge, the Headmaster, having not permitted the first respondent to join duty on account of non-availability of vacant post and posting having been made thereafter in 1991, pursuant to which, the respondent therein joined duty on 17.07.1991, held him entitled to salary for the period 24.02.1986 to 16.07.1991. The judgment of the learned Single Judge was challenged before the Division Bench of the High Court, however, the same was dismissed by passing the following order: “.........the learned Single Judge has rightly issued direction of payment of salary to the respondents. As concluded by the learned Single Judge, the writ petitioner was not able to join on account of defect in the order of transfer and not on account of his own.” 16. It was in this background that the State of Bihar assailed both the orders before the Hon’ble Supreme Court and it is then that the Hon’ble Supreme Court came to the aforesaid conclusion. 17. This is not the fact situation obtaining in the present case. It was in this background that the State of Bihar assailed both the orders before the Hon’ble Supreme Court and it is then that the Hon’ble Supreme Court came to the aforesaid conclusion. 17. This is not the fact situation obtaining in the present case. There was a genuine dispute in the instant case regarding eligibility of the appellant as he admittedly did not possess a degree in Bachelor of Education. It is only on the basis of the instructions dated 09.12.1999 of the Government of Himachal Pradesh which in turn were based on the instructions issued by the Directorate General of Employment and Training, Ministry of Labour, Government of India, whereby the post of Instructor AEC Special was equated with the Trained Graduate Teachers, that the appellant was held to be eligible and granted the relief as reproduced above. 18. In the given facts and circumstances, it cannot be held that the stand of the State was in any manner cantankerous and in absence of allegations of mala-fides, it is all the more difficult to grant the appellant the benefit of “no work, yet pay” which even as per the Hon’ble Supreme Court is an exception. Rather, the principle of “no work, no pay” is fully applicable to the facts of the instant case. 19. Consequently, we find no merit in this appeal and the same is accordingly dismissed, leaving the parties to bear their own costs.