Himachal HC judgement in PTA, PAT and Para teachers matter : See here

North Gazette News/ Shimla
Himachal High Court Judgement on PTA, PAT and Para teachers matter
See here

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 6916 of 2011 a/w LPAs No. 504, 507, 512 ofn2012, 203 of 2014, CWPs No. 7728 and 8412 of 2013 Reserved on: 18.11.2014 Decided on: 9.12.2014
1. CWP No. 6916 of 2011
Pankaj Kumar …Petitioner.
Versus
State of Himachal Pradesh & others …Respondents.
……………………………………………………………………………………………….
2. LPA No. 504 of 2012
Kamla Devi …Appellant.
Versus
State of Himachal Pradesh & others …Respondents.
……………………………………………………………………………………………..
3. LPA No. 507 of 2012
Himachal Pradesh Primary Assistant Teachers …Appellant.
Association through its President
Versus Chander Mohan Negi & others …Respondents.
……………………………………………………………………………………………….
4. LPA No. 512 of 2012
Vijay Kumar & others …Appellants.
Versus State of Himachal Pradesh & others …Respondents.
……………………………………………………………………………………………….
5. LPA No. 203 of 2014
State of Himachal Pradesh & another …Appellants.
Versus Chander Mohan Negi & others …Respondents.
………………………………………………………………………………………………
6. CWP No. 7728 of 2013
Shikha Mankotia & others …Petitioners.
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Versus State of H.P. & others …Respondents.
……………………………………………………………………………………………….
7. CWP No. 8412 of 2013
Rajesh Thakur & others …Petitioners.
Versus
State of Himachal Pradesh & others …Respondents.
Coram
The Hon’ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? Yes.
CWP No. 6916 of 2011
For the petitioner: Mr. Bipin C. Negi, Advocate.
For the respondents: Mr. Shrawan Dogra, Advocate General, with
Mr. Anup Rattan & Mr. Romesh Verma, Additional Advocate Generals, and Mr. J.K.
Verma, Deputy Advocate General, for respondents No. 1 to 4.
Nemo for respondent No. 5.
Respondent No. 6 already ex-parte.
Mr. Naveen K. Bhardwaj, Advocate, for respondent No. 7.
Mr. Surender Sharma, Advocate, for respondent No. 8.
Mr. Shyam Chauhan, Advocate, for respondent No. 9.
Mr. Ajay Mohan Goel, Advocate, for respondents No. 10 to 14.
Mr. Mohit Thakur, Advocate, for respondent No. 15.
…………………………………………………………………………………………………..
LPA No. 504 of 2012
For the appellant: Mr. Kulbhushan Khajuria, Advocate.
For the respondents: Mr. Shrawan Dogra, Advocate General, with Mr. Anup Rattan & Mr. Romesh Verma, Additional Advocate Generals, and Mr. J.K.Verma, Deputy Advocate General, for respondents No. 1 and 2. Ms. Ranjana Parmar, Advocate, for
respondents No. 3 to 5. Mr. Ajay Mohan Goel, Advocate, for respondent No. 6.
…………………………………………………………………………………………………..
LPA No. 507 of 2012
For the appellant: Mr. Ajay Mohan Goel, Advocate.
For the respondents: Ms. Ranjana Parmar, Advocate, for respondents No. 1 to 3.
Mr. Shrawan Dogra, Advocate General, with Mr. Anup Rattan & Mr. Romesh Verma, Additional Advocate Generals, and Mr. J.K. Verma, Deputy Advocate General, for
respondents No. 4 and 5.
…………………………………………………………………………………………………..
LPA No. 512 of 2012
For the appellants: Mr. Avneesh Bhardwaj, Advocate.
For the respondents: Mr. Shrawan Dogra, Advocate General, with
Mr. Anup Rattan & Mr. Romesh Verma, Additional Advocate Generals, and Mr. J.K. Verma, Deputy Advocate General, for respondents No. 1 and 2.
Ms. Ranjana Parmar, Advocate, for respondents No. 3 to 5.
Mr. Ajay Mohan Goel, Advocate, for respondent No. 6.
…………………………………………………………………………………………………..
LPA No. 203 of 2014
For the appellants: Mr. Shrawan Dogra, Advocate General, with
Mr. Anup Rattan & Mr. Romesh Verma, Additional Advocate Generals, and Mr. J.K. Verma, Deputy Advocate General. For the respondents: Ms. Ranjana Parmar, Advocate, for respondents No. 1 to 3. Mr. Ajay Mohan Goel, Advocate, for respondent No. 4.
…………………………………………………………………………………………………..
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CWP No. 7728 of 2013
For the petitioners: Mr. Ashok Tyagi and Mr. Mukul Sood,
Advocates.
For the respondents: Mr. Shrawan Dogra, Advocate General, with
Mr. Anup Rattan & Mr. Romesh Verma,
Additional Advocate Generals, and Mr. J.K.
Verma, Deputy Advocate General, for
respondents No. 1 to 4.
Ms. Archana Dutt, Advocate, vice Ms. Aruna
Sharma, Advocate, for respondent No. 5.
Mr. D.K. Khanna, Advocate, for respondent
No. 6.
……………………………………………………………………………………………….
CWP No. 8412 of 2013
For the petitioner: Ms. Ranjana Parmar, Advocate.
For the respondents: Mr. Shrawan Dogra, Advocate General, with
Mr. Anup Rattan & Mr. Romesh Verma,
Additional Advocate Generals, and Mr. J.K.
Verma, Deputy Advocate General, for
respondents No. 1 to 3.
Ms. Archana Dutt, Advocate, for respondent
No. 4.
Mr. Avneesh Bhardwaj, Advocate, for
respondent No. 5.
Mr. Mohit Thakur, Advocate, for respondent
No. 6.
Mansoor Ahmad Mir, Chief Justice.
These Writ Petitions and the Letters Patent Appeals are the outcome of the policies, i.e. The Himachal Pradesh Gram Vidya Upasak Yojna, 2001 (Annexure P-3), Himachal Pradesh Prathmik Sahayak Adhyapak/Primary Assistant Teacher (PAT)
Scheme, 2003 and The Himachal Pradesh Para Teachers (Lecturer School Cadre), Para Teachers (T.G.T’s) and Para Teachers (C&V) Policy, 2003 (Annexure P-4), which were made by the State Government in the years 2001 and 2003, respectively.
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2. The State, after noticing the dire need of providing education at grass root level and particularly, in tribal and hard/difficult areas, made the policies/schemes in the years 2001 and 2003, appointed Gram Vidya Upasaks, Primary Assistant Teachers and Para Teachers. It is apt to reproduce the relevant portion of one of the policies, i.e. the Himachal Pradesh Gram Vidya Upasak Yojna-2001 herein:
“2. Rationale:-
The task of universalization of Primary Education in Himachal Pradesh is a gigantic
one keeping in view the tough geographical conditions of the State and the non-availability
of trained teaching man power. The trained teachers available in the urban and other
developed areas are reluctant to serve in the remote areas as a result of which most of our
schools in these areas are without teachers. In the remote and inaccessible areas of the State,
the Department of Primary Education faced many problems like teacher absenteeism, poor
scholastic standards which led to irregular functioning of primary schools and increaseddrop-out rate. In order to counter these problems effectively and to translate the vision
of the State Govt. reflected in the NINE POINT CHARTER announced by Hon’ble ChiefMinister, Himachal Pradesh, Prof. Prem Kumar Dhumal, to bring REFORMS and to accelerate the pace of development, by decentralising the power to panchayats, the HP GRAM VIDYA UPASAK YOJNA has been visualised.The Department of H.P. Primary Eduction has
conceived this innovative scheme of H.P. Gram Vidya Yojna-2001 to relate it to the concept of
Para Teachers keeping in view the problem of teacher absenteeism in the remote and difficult
rural areas. It is difficult to find fully qualified teachers who would willingly accept posting in remote villages, far less actually take up residence there. A primary school in such a
village actually tends to become dysfunctional, and parents as well as children fail to relate to
such an institution, leading to high drop out rates. One of the ways to solve this problem is
the concept of Para Teachers. The use of Para Teachers in formal schools began with the
Himachal Pradesh Volunteer Teachers Scheme in 1984 and replicated by Vidya Upasaks Yojna
in the year-2000 which was followed in Primary Education by other States.”
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3. The State, after taking into consideration their work, conduct and output, decided to regularize the services of Gram Vidya Upasaks and Para Teachers in terms of Annexures P-7 and P-8.
4. Three persons filed a writ petition, being CWP No. 3303 of 2012, titled as Chander Mohan Negi & others versus State of Himachal Pradesh & others, and sought following reliefs amongst others:
“i) That the respondents may kindly be directed to fill up the available vacancies of the
Junior Basic Trained teachers in accordance with Recruitment and Promotion Rules.
ii) That the respondents may further be restrained from regularizing the Primary Assistant Teachers who have been appointed in violation of Constitutional Schemes and Law established and settled by the Hon’ble Apex Court with further directions to the respondents to advertise all the available vacancies of Junior Basic Trained teachers in the Education Department to be filled inaccordance with Recruitment and Promotion Rules without any further delay and all the
vacancies may be filled up in accordance with Recruitment and Promotion Rules available at
the time of occurrence of the vacancies.”
5. The Writ Court vide judgment and order, dated 18th October, 2012 (hereinafter referred to as “the impugned judgment”) held that the appointments of the teachers made under The Himachal Pradesh Prathmik Sahayak Adhyapak/Primary Assistant Teacher (PAT) Scheme, 2003, have not been made in accordance with the Rules and accordingly, directed to phase out the said teachers in a phased manner, constraining the appellants, i.e. the persons appointed as Primary Assistant Teachers, Himachal Pradesh Primary Assistant Teachers Association and the State of
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Himachal Pradesh to question the impugned judgment by the medium of LPAs No. 504, 512, 507 of 2012 and 203 of 2014, respectively, on the grounds taken in the respective memo of appeals.
6. Three writ petitions, being CWPs No. 6916 of 2011, 7728 and 8412 of 2013, also came to be filed in this Court, whereby the writ petitioners have sought quashment of all the appointments made by the State in terms of the said policies on the grounds that the appointments are illegal and have deprived them to participate, though, they are eligible in all respects and have a right to participate in the selection process.
7. All the Letters Patent Appeals and the Writ Petitions came to be clubbed in view of the fact that the common questions of facts and law were involved in all the appeals and the writ petitions.
8. The moot question for consideration in these appealsand the writ petitions is – whether the selection/engagement of the teachers made in terms of the policies made by the State aimed at to provide primary education to the needy and poor hailing from tribal, hard/difficult areas, who are entitled to it as a matter of right, being a fundamental right, and are poor read with the fact that the regular/contractual teachers were not interested to work in the said areas, is illegal and not entitled for regularization?
9. In order to ascertain what was the background of framing of these policies, the State has produced the relevant record and the notings, perusal of which do disclose that the policies were aimed at to achieve the purpose, the reference of
which is made hereinabove.
10. The appointments/engagements were made subject to the conditions contained in the policies and one of the conditions was that the appointees will not seek regularization/absorption.
However, the State, after noticing their work, conduct and the zeal they have shown in the hard areas read with the fact that huge number of vacancies were available; the appointees were working for the last 8-10 years on these posts, had completed the Special Teacher Training Qualifying Condensed Course and had obtained the special JBT certificate after five years’ continuous service in terms of the Himachal Pradesh Education Code, 1985, decided to regularize the Gram Vidya Upasaks. The respondents-State in the supplementary affidavit filed in CWP No. 7728 of 2013 has explained what were the basis for regularizing their services and how they have been able to engage teachers on a meager amount. They have also given the details as to what was the difference in the salary of regular teachers and teachers engaged in terms of the schemes and have also given details of percentage-wise benefit earned in each year.
They have also given the output, mention of which has been made in paras 11 to 15 of the affidavit. It is apt to reproduce relevant portion of para 13 and para 14 of the
supplementary affidavit herein:
“13. That is is relevant to submit that in case regular recruitments were made in the teaching sector the State Government would not have been able to increase the Pupil Teacher Ratio (PTR) as maximum part of financial resources would have been consumed in meeting the salary component of Regular Teachers. For quick perusal of the court the salary component of one Regular teacher and comparative payments made to the Para, PAT, PTA teachers, for the year 2003-04, 2006-07 and 2011-12, are reproduced as under:
………………………………..
14. That with the passage of time the services of PTA under GIA, Para Teachers and PAT had
to be continued as their engagement was obtaining the desired results as the number of schools had also drastically increased and the State was also facing financial constraints to engage regular teachers.”
11. Accordingly, the Gram Vidya Upasaks came to be regularized. No doubt, the posts against which they were regularized, were direct recruitment posts and were to be filled in by a selection process as per the Rules occupying the field, but, at the same time, it is to be kept in mind that the State has power to make one-time measure schemes/policies in order to achieve the goal of the Constitution, i.e. Right of Education and to provide education to the needy/poor, who hail from the tribal and
difficult/hard areas.
12. The policies, in terms of which the said teachers came to be engaged, were not questioned by any person initially and the persons, who have now questioned these policies/regularization policy, perhaps, may be the students of those very teachers.
13. We have perused the record, read with the writ petitions and the appeals. The writ petitioners in the writ petitions have averred that now by subsequent developments and by efflux of time, they have acquired qualification and have a right of consideration.
14. It is apt to record herein that the writ petitioners were not eligible at the relevant point of time and no one questioned the selection of the teachers at the relevant point of time, even at the time when regularization was made.
15. In CWP No. 3303 of 2012, it has been specifically averred that the writ petitioners became eligible much after these teachers, who were appointed in the years 2001 and 2003, i.e. in the year 2010, the writ petitions came to be filed at least after eleven years and it is not mentioned in the writ petition that the writ petitioners were eligible at the particular point of time, is suggestive of the fact that they were not eligible at the relevant time and had no locus to question the selection/appointments made in the years 2001 and 2003. It is apt to reproduce para 7 of the preliminary submissions of the reply filed by State-respondents No.
1 and 2 in CWP No. 3303 of 2012 herein:
“7. That PAT were engaged in the year 2003,
whereas the petitioner have completed the JBT
in 2010. In view of the above the petitioner
have no claim against the posts occupied by
the PAT whereas which were lying vacant in
the year 2003.”
16. It has also been averred by the respondent-State in its reply on merits filed in CWP No. 3303 of 2012 that the appointment of these teachers has not affected the writ petitioners in any way. It is apt to reproduce para 11 of the reply on merits herein:
“11. That in reply to this para it is submitted
that the Department was not in a position to
leave the schools teachers deficient for long
since it would have affected the studies of the
students very badly. Therefore, teachers had
been appointed under various schemes at
various point of time. Such appointments had
been made up to year-2007 and have no impact
on the petitioners since they have completed
their 2 year JBT training in the year-2010 and
are required to qualify the TET as submitted in
the preliminary submissions.”
17. It is apt to record herein that the writ petitioners have chosen not to file rejoinder and the stand taken by the State has remained uncontroverted.
18. The core question is – Can the person(s), who became eligible later on and had no locus at the particular point of time, question the same on the ground that the appointments are bad?
19. The Apex Court in Secretary, State of Karnataka and others versus Umadevi (3) and others, reported in (2006) 4 Supreme Court Cases 1, held that the back door appointment, i.e. illegal appointment, cannot be regularized. It further held that
if irregular appointment is outcome of a conscious decision of the State, can be regularized. It is apt to reproduce relevant portion of para 49 and para 53 of the judgment herein:
“49. ……………..Considered in the light of the
very clear constitutional scheme, it cannot be
said that the employees have been able to
establish a legal right to be made permanent
even though they have never been appointed in
terms of the relevant rules or in adherence of
Articles 14 and 16 of the Constitution.
50. to 52. ………………..
53. One aspect needs to be clarified. There
may be cases where irregular appointments
(not illegal appointments) as explained in State
of Mysore v. S.V. Narayanappa, (1967) 1 SCR
128 : AIR 1967 SC 1071, R.N. Nanjundappa v.
T. Thimmiah, (1972) 1 SCC 409 : (1972) 2 SCR
799, and B.N. Nagarajan v. State of Karnataka,
(1979) 4 SCC 507, and referred to in para 15
above, of duly qualified persons in duly
sanctioned vacant posts might have been made
and the employees have continued to work for
ten years or more but without the intervention
of orders of courts or of tribunals. The question
of regularization of the services of such
employees may have to be considered on
merits in the light of the principles settled by
this Court in the cases above referred to and in
the light of this judgment. In that context, the
Union of India, the State Governments and
their instrumentalities should take steps to
regularize as a one time measure, the services
of such irregularly appointed, who have
worked for ten years or more in duly
sanctioned posts but not under cover of orders
of courts or of tribunals and should further
ensure that regular recruitments are
undertaken to fill those vacant sanctioned
posts that require to be filled up, in cases
where temporary employees or daily wagers
are being now employed. The process must be
set in motion within six months from this date.
We also clarify that regularization, if any
already made, but not subjudice, need not be
reopened based on this judgment, but there
should be no further by-passing of the
constitutional requirement and regularizing or
making permanent, those not duly appointed
as per the constitutional scheme.”
20. The Apex Court has taken the same view in the case
titled as Indu Shekhar Singh & Ors. versus State of U.P. &
Ors., reported in 2006 AIR SCW 2582. It is apt to reproduce
paras 24 and 25 of the judgment herein:
“24. The State was making an offer to the
Respondents not in terms of any specific power
under Rules, but in exercise of its residuary
power (assuming that the same was available).
The State, therefore, was within its right to
impose conditions. The Respondents exercised
their right of election. They could have accepted
the said offer or rejected the same. While
making the said offer, the State categorically
stated that for the purpose of fixation of
seniority, they would not be obtaining the
benefits of services rendered in U.P. Jal Nigam
and would be placed below in the cadre till the
date of absorption. The submission of Mr.
Verma that for the period they were with the
Authority by way of deputation, should have
been considered towards seniority cannot be
accepted simply for the reason that till they
were absorbed, they continued to be in the
employment of the Jal Nigam. Furthermore, the
said condition imposed is backed by another
condition that the deputed employee who is
seeking for absorption shall be placed below the
officers appointed in the cadre till the date of
absorption. The Respondent Nos. 2 to 4
accepted the said offer without any demur on
3.9.87, 28.11.91 and 6.4.87 respectively.
25. They, therefore, exercised their right of
option. Once they obtained entry on the basis of
election, they cannot be allowed to turn round
and contend that the conditions are illegal. [See
R.N. Gosain vs. Yashpal Dhir (1992) 4 SCC 683,
Ramankutty Guptan vs. Avara (1994) 2 SCC 642
and Bank of India & Ors. vs. O.P. Swarnakar &
Ors. (2003) 2 SCC 721.] Furthermore, there is
no fundamental right in regard to the counting
of the services rendered in an autonomous
body. The past services can be taken into
consideration only when the Rules permit the
same or where a special situation exists, which
would entitle the employee to obtain such
benefit of past service.”
21. Admittedly, in terms of the policies of 2001 and 2003, the teachers-appellants/writ respondents have accepted the conditions and thereafter were appointed, but it is the State which has made another policy and decided to regularize their services. Thus, it cannot be said that they are precluded from seeking regularization. The condition was accepted by the teachers, which was imposed by the State and the State thought it proper, in its wisdom, to regularize them, made a conscious decision. Thus, keeping in view the ratio, the appellants/writ respondents have carved out a case for interference.
22. The Apex Court in a case titled as University of Rajasthan & Anr. versus Prem Lata Agarwal, reported in 2013 AIR SCW 989, held that an appointment by stop-gap arrangement cannot be regularized, but, at the same time, laid down the principle that if appointments are made under a particular scheme and continued for a pretty long time, are entitled to regularization in terms of the policy. It is apt to reproduce paras 22, 33 and 34 of the judgment herein:
“22. On a studied scrutiny, it is found that the
High Court has placed reliance on Section 3(3)
of the Act and the regulations which we have
reproduced hereinabove to arrive at the
conclusion that the respondents were entitled
to be treated as regular teachers and,
therefore, it was obligatory on the part of the
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University to extend the benefit of pension.
The provisions of the Act, when read in a
conjoint manner, make it crystal clear that the
legislature had imposed restrictions on the
appointment, provided for the constitution of
Selection Committee and also laid down the
procedure of the said committees. The
intention of the legislature is, as it seems to us,
to have teachers appointed on the basis of
merit, regard being had to transparency,
fairness, impartiality and total objectivity.
Under sub- section (2), it has been clearly
postulated that any appointment made barring
the arrangement under sub-section (3) of
Section 3 would be null and void. The language
is clear and categorical. The exception that
had been carved out under Section 3(3) is for
an extremely limited purpose. It permits stopgap
arrangements and only covers ad hoc or
part-time teachers with a small duration. It is
intended to serve the purpose of meeting the
situation where an emergency occurs. It was
never intended to clothe any authority with the
power to make any appointment beyond what
is prescribed therein. The scheme of the
aforesaid provisions go a long way to show
that the legislature, in fact, had taken immense
care to see that no one gets a back door entry
and the selections are made in a seemly
manner. A proper schematic analysis of the
provisions enumerated hereinabove do not
envisage any kind of ad hoc appointment or
part-time appointment to remain in
continuance. As is demonstrable from the
factual depiction in the present batch of cases,
some of the respondents continued with
certain breaks and also due to intervention of
the court. That apart, this Court had not
acceded to their prayer of regularization. The
only direction that was issued in Special Leave
Petition (c) No. 3238 of 1997 and other
connected matters, was that they would
continue in service till the regular selections
were made. It is noteworthy that a distinction
has to be made and we are obliged to do so
because of the language employed in the
provisions between a regular teacher and an
ad hoc teacher or a part-time teacher who
continues to work in the post sometimes due to
fortuitous circumstances and sometimes due to
the interdiction by the court. Their initial
appointment could be regarded as legal for the
limited purposes of Section 3(3) of the Act.
That would only protect the period fixed
therein. Thereafter, they could not have been
allowed to continue, as it was only a stop gap
arrangement and was bound to be so under
the statutory scheme. Their continuance
thereafter by operation of law has to be
regarded as null and void regard being had to
the language employed in Section 3(2) of the
Act.
23. to 32. …………….
33. We have already analysed the scheme of
Section 3 and stated that there could not have
been continuance of the service after the fixed
duration as provided under Section 3(3) of the
Act and such continuance is to be treated as
null and void. That is how the Act operates in
the field. That apart, regular selection was
required to be made by a High Powered
Committee as provided under Section 4. It is
also pertinent to state that the Act lays down
the procedure of the selection committee not
leaving it to any authority to provide the same
by rules or regulations.
34. In view of the aforesaid, the irresistible
conclusion is that the continuance after the
fixed duration goes to the root of the matter.
That apart, the teachers were allowed to
continue under certain compelling
circumstances and by interdiction by courts.
Quite apart from the above, this Court had
categorically declined to accede to the prayer
for regularization. In such a situation, we are
afraid that the reliance placed by the High
Court on paragraph 53 of the pronouncement
in Uma Devi, (AIR 2006 SC 1806) can be said
to be justified. In this regard, another aspect,
though an ancillary one, may be worth noting.
Prem Lata Agarwal and B.K. Joshi had retired
on 31.3.2001 and 31.1.2002, and by no stretch
of imagination, Uma Devi (supra) lays down
that the cases of any category of appointees
who had retired could be regularized. We may
repeat at the cost of repetition that the
protection carved out in paragraph 53 in Uma
Devi (supra) could not be extended to the
respondents basically for three reasons,
namely, (i) that the continuance of
appointment after the fixed duration was null
and void by operation of law; (ii) that the
respondent continued in the post by
intervention of the court; and (iii) that this
Court had declined to regularize their services
in 1998.”
23. The teachers-appellants/writ respondents were not
appointed by way of stop-gap arrangement, thus, are entitled to
regularization in terms of policy made by the Government while
applying the ratio of the judgment (supra).
24. The Apex Court has laid down the same principle also
in Chief Executive Officer, Pondichery Khadi and Village
Industries Board and Anr. versus K. Aroquia Radja and Ors.,
reported in 2013 AIR SCW 1759. It is apt to reproduce para 18
of the judgment herein:
“18. As stated by this Court in Umadevi (AIR
2006 SC 1806) (supra), absorption,
regularization or permanent continuance of
temporary, contractual, casual, daily-wage or
ad hoc employees appointed/recruited and
continued for long in public employment
dehors the constitutional scheme of public
employment is impermissible and violative of
Articles 14 and 16 of the Constitution of India.
As recorded in paragraph 53 of the report in
SCC (Para 44 of AIR 2006 SC 1806), this Court
has allowed one time measure, regularization
of services of irregularly appointed persons,
provided they have worked for ten years or
more in duly sanctioned posts. That is also not
the case in the present matter.”
25. In the case titled as Nihal Singh and others versus
State of Punjab and others, reported in (2013) 14 Supreme
Court Cases 65, the initial appointments of the appellants were
made after going through the procedure adopted by the State in
terms of the policy, the decision to resort to such a procedure was
taken at the highest level of the State consciously, a selection
process was designed and the State was directed to regularize
their services by creating necessary posts. The facts of the cases in
hand are similar. The teachers came to be appointed in terms of
the said policies by the selection committees duly constituted in
terms of the decision made by the highest authorities. It is apt to
reproduce paras 24, 27, 28 and 31 of the judgment herein:
“24. In our opinion, the initial appointment of
the appellants can never be categorised as an
irregular appointment. The initial appointment
of the appellants is made in accordance with
the statutory procedure contemplated under
the Act. The decision to resort to such a
procedure was taken at the highest level of the
State by conscious choice as already noticed
by us.
25. ……………..
26. ……………..
27. Such a procedure making recruitments
through the employment exchanges was held
to be consistent with the requirement of
Articles 14 and 16 of the Constitution by this
Court in Union of India v. N. Hargopal, (1987)
3 SCC 308: 1987 SCC (L&S) 227: (1987) 4 ATC
51.
28. The abovementioned process clearly
indicates it is not a case where persons like the
appellants were arbitrarily chosen to the
exclusion of other eligible candidates. It
required all able-bodied persons to be
considered by the SSP who was charged with
the responsibility of selecting suitable
candidates.
29. …………….
30. ……………
31. Therefore, we are of the opinion that the
process of selection adopted in identifying the
appellants herein cannot be said to be
unreasonable or arbitrary in the sense that it
was devised to eliminate other eligible
candidates. It may be worthwhile to note that
in Umadevi (3) case, this Court was dealing
with appointments made without following any
rational procedure in the lower rungs of
various services of the Union and the States.”
26. The Apex Court in the latest judgment rendered in the
case titled as Hari Nandan Prasad and Anr. versus Employer
I/R to Management of FCI and Anr., reported in 2014 AIR
SCW 1383, has laid down the same principles. It is apt to
reproduce para 34 of the judgment herein:
“34. On harmonious reading of the two
judgments discussed in detail above, we are of
the opinion that when there are posts
available, in the absence of any unfair labour
practice the Labour Court would not give
direction for regularization only because
a worker has continued as daily wage worker /
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adhoc/temporary worker for number of years.
Further, if there are no posts available, such a
direction for regularization would be
impermissible. In the aforesaid circumstances
giving of direction to regularize such a person,
only on the basis of number of years put in by
such a worker as daily wager etc. may amount
to backdoor entry into the service which is an
anathema to Art.14 of the Constitution.
Further, such a direction would not be given
when the concerned worker does not meet the
eligibility requirement of the post in question
as per the Recruitment Rules. However,
wherever it is found that similarly situated
workmen are regularized by the employer
itself under some scheme or otherwise and the
workmen in question who have approached
Industrial/Labour Court are at par with them,
direction of regularization in such cases may
be legally justified, otherwise, nonregularization
of the left over workers itself
would amount to invidious discrimination qua
them in such cases and would be violative of
Art.14 of the Constitution. Thus, the Industrial
adjudicator would be achieving the equality by
upholding Art. 14, rather than violating this
constitutional provision.”
27. It is also apt to reproduce paras 20 and 23 of the latest
judgment rendered by the Apex Court in State of Jharkhand and
others versus Kamal Prasad and others, reported in 2014 AIR
SCW 2513, herein:
“20. We have heard the factual and legal
contentions urged by the learned senior
counsel for both the parties and carefully
examined the findings and reasons recorded in
the impugned judgment with reference to the
evidence produced on behalf of the
respondent-employees. The evidence on
record produced by the respondent-employees
would clearly go to show that they have been
rendering services in the posts as ad hoc
Engineers since 1987 and have been
discharging their services as permanent
employees with the appellants. Additional 200
posts were created thereafter by the State
Government of Bihar. However, the
respondents continued in their services as ad
hoc employees without any disciplinary
proceedings against them which prove that
they have been discharging services to their
employers to their satisfaction.
The learned senior counsel on behalf of the
appellants have failed to show as to how the
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interim orders upon which he placed strong
reliance are extended to the respondents
which is not forthcoming except placing
reliance upon the decision of this Court in the
case of Amrit Lal Berry (AIR 1975 SC 538)
(supra), without producing any record on
behalf of both the State Governments of Bihar
and Jharkhand to substantiate the contention
that the interim orders obtained by the
similarly placed employees in the writ petitions
referred to supra were extended to the
respondent-employees to maintain parity
though they have not obtained such interim
orders from the High Court. Therefore, the
learned senior counsel has failed to prove that
the respondents have failed to render
continuous services to the appellants at least
for ten years without intervention of orders of
the court, the findings of fact recorded by the
Division Bench of the High Court is based on
record, hence the same cannot be termed as
erroneous in law. In view of the categorical
finding of fact on the relevant contentious
issue that the respondent-employees have
continued in their service for more than 10
years continuously therefore, the legal
principle laid down by this Court in Uma Devi’s
case (AIR 2006 SC 1806) (supra) at paragraph
53 squarely applies to the present cases. The
Division Bench of the High Court has rightly
held that the respondent-employees are
entitled for the relief, the same cannot be
interfered with by this Court.
21. …………….
22. …………….
23. ……………….In view of the legal principles
laid down in the aforesaid decisions, we are of
the opinion that the decision of the High Court
does not fall in either of the categories
mentioned above which calls for our
interference. The Division Bench of the High
Court having regard to the glaring facts that
the respondent-employees have continuously
worked in their posts for more than 29 years
discharging permanent nature of duties and
they have been paid their salaries and other
service benefits out of the budget allocation,
no objection was raised by the CAG in this
regard and therefore, it is not open for the
appellants to contend that the law laid down in
Uma Devi’s case (AIR 2006 SC 1806) (supra)
has no application to the fact situation. The
action of the appellants in terminating the
services of the respondent-employees who
have rendered continuous service in their
posts during pendency of the Letters Patent
Appeals was quashed by the High Court after it
has felt that the action is not only arbitrary but
shocks its conscious and therefore it has
rightly exercised its discretionary power and
granted the reliefs to the respondentemployees
which do not call for our
interference. Therefore, we are of the opinion
that this Court will not interfere with the
opinion of the High Court and on the contrary,
we will uphold the decision of the High Court
both on factual and legal aspects as the same
is legally correct and it has done justice to the
respondent-employees.”
28. It would be profitable to reproduce paras 15 and 16 of
the judgment rendered by the Apex Court in Vireshwar Singh and
others versus Municipal Corporation of Delhi and others,
reported in 2014 AIR SCW 5480, herein:
“15. Learned counsel for the appellants has
tried to persuade us to charter the aforesaid
course by placing reliance on two decisions of
this Court in Narender Chadha and others v.
Union of India and others, (1986) 2 SCC 157 :
(AIR 1986 SC 638), and Keshav Chandra Joshi
and others v. Union of India and others, 1992
Supp (1) SCC 272 : (AIR 1991 SC 284). It is
contended that the denial of benefit of long
years of ad hoc service, in view of the ratio of
the law laid down in the aforesaid two
decisions, would be contrary to Articles 14 and
16 of the Constitution.
16. It is the view expressed in Narender
Chadha (AIR 1968 SC 638) (supra) which
would require a close look as Keshav Chandra
Joshi (AIR 1991 SC 284) (supra) is a mere
reiteration of the said view. In Narender
Chadha (supra) the lis between the parties was
one relating to counting of ad hoc service
rendered by the promotees for the purpose of
computation of seniority qua the direct
recruits. The basis of the decision to count
long years of ad hoc service for the purpose of
seniority is to be found more in the peculiar
facts of the case as noted in para 20 of the
report than on any principle of law of general
application. However, in paragraphs 15-19 of
the report a deemed relaxation of the Rules of
appointment and the wide sweep of the power
to relax the provisions of the Rules, as it
existed at the relevant point of time, appears
to be the basis for counting of the ad hoc
service for the purpose of seniority.”
29. While applying the tests laid down by the Apex Court
in the judgments (supra) and keeping in view the aim and object of
the policies of the State Government, the appointments made
cannot be said to be illegal, thus, can be regularized as per the
mandate of the said policies.
30. In sequel to order, dated 7th July, 2014, respondents-
State has filed a supplementary affidavit in CWP No. 7728 of 2013.
They have also given the background of the appointment of the
teachers in various categories. It is apt to reproduce paras 2, 3
and 5 of the supplementary affidavit herein:
“2. That in the year 2003 there were 7516
posts of teachers in different categories lying
vacant in the Government Schools in the
State of Himachal Pradesh.
The position of the sanctioned posts, filled-up
posts and vacant posts in the year 2003-04 in
respect of all categories of teachers was as
under:
Category Sanctioned
Posts
Filled
up
Vacant
J B Ts 28829 25971 3257
T G Ts 13298 12143 1155
C & V 13906 11547 2359
Lecturer
(School cadre)
7370 6730 640
D P E 678 573 105
3. That the State Government in order to
achieve the goal of free and compulsory
education to all the children within the age
group of 6-14 in the year 2003, the State
Government came out with ‘H.P. Para
Teachers Policy, 2003′ for engaging Para
Teachers and H.P. Prathmik Sahayak
Yojna/Primary Assistant Teachers against the
vacancies of Lecturers (School Cadre), T G Ts
and C & V and JBT Teachers in various
Government Schools of the State. The posts
of such teachers remained vacant due to the
unavoidable factors like transfer, retirements,
deputations, secondment, promotions, deaths
and up-gradation of Schools etc. The nonavailability
of the teachers in various Schools
in the State, in-spite of best efforts by the
State Government to fill up all such vacancies
of teachers in the schools, adversely affected
the interest of the students and has a negative
impact on the quality of education. Therefore,
in the interest of students and to improve the
qualitative change in the education system the
above policy was brought by the State
Government.
4. ……………..
5. That apart from the aforementioned method,
the Government had also filled up the various
posts of teachers through regular
appointments and promotions as well.”
31. In the supplementary affidavit filed during the
pendency of the appeals and the writ petitions, the respondents-
State have given the existing vacancy position, which do disclose
that a large number of posts are vacant in the cadres of TGTs,
C&Vs, PTAs and PATs. It also discloses the reasons for formulation
of the policies and the reason for their regularization. It is stated
that the engagements were in the interest of public at large and it
was also noticed that there was tremendous improvement in Pupil
Teacher Ratio (PTR), literacy rate and reduction in dropout cases in
the primary and upper primary classes. It is apt to reproduce
paras 6, 7 and 9 of the supplementary affidavit herein:
6. That by adopting the aforesaid policy the
State Government appointed many of the
teachers in the backward and remote areas
where the posts of teachers had remained
vacant either due to transfer of a teacher from
hard area to soft area or due to the fact that
normally a fresh appointee does not prefer to
join in such areas.
7. That after making of the above policy and
engaging teachers in above manner, there was
tremendous improvement in Pupil Teacher
Ratio (P.T.R.), literacy rate and reduction in
dropout cases in the primary (1st – 5th class) and
upper primary (6th-8th class).
8. ……………..
9. That the existing position of the number of
para lecturers, TGTs, C&V, PTA’s and PAT’s
working in different schools in the State are as
under:
Category Total
sanction
posts
Total
filled up
posts
Para PAT/
GVU
PTA Vacant
JBTs 21778 20972 — 3552 — 806
TGTs 14822 13231 724 — 1062 1591
C&V 16019 12079 764 — 2943 4831
Lecturer
School
16081
13936
functional
2145 non
functional
508 — 1964 1980
DPE 1486 1264 93 — 323 222
Lecturer
College
2240 1570 — — 80 670
32. It also contains other details and statistics, which do
disclose that the State has achieved the aim and object of the said
policies.
33. It is apt to record herein that the supplementary
affidavit has not been rebutted by any of the writ petitioners or the
respondents in the appeals.
34. A bare perusal of the supplementary affidavit (supra)
do disclose that even after appointing all the said persons as
teachers through various policies, a large number of vacancies are
still available. It is for the writ petitioners, who have challenged
the appointment/selection of these teachers, to participate in the
selection process when advertisement notices are issued.
35. Learned counsel for the writ petitioners before this
Court as well as before the learned Single Judge were asked to
show their right or cause. The argument advanced was that the
appointment/selection of the teachers appointed in the years 2001
and 2003 is illegal and they have no right to seek regularization,
thus, the writ petitioners have right to challenge the same.
36. As discussed hereinabove, the writ petitioners were
not even eligible at the relevant point of time, what locus do they
have to question the selection/appointment of the said teachers?
37. Learned counsel for the writ petitioners argued that
the writ petitioners have filed the writ petitions in the nature of
Public Interest Litigation.
38. It is beaten law of land that public interest litigation is
not maintainable in service jurisprudence. It is apt to reproduce
paras 14 to 16 of the judgment rendered by the Apex Court in
Girjesh Shrivastava & Ors. v. State of M.P. & Ors., reported in
2010 AIR SCW 7001, herein:
“14. However, the main argument by the
appellants against entertaining WP (C)
1520/2001 and WP (C) 63/2002 is on the
ground that a PIL in a service matter is not
maintainable. This Court is of the opinion that
there is considerable merit in that contention.
15. It is common ground that dispute in this
case is over selection and appointment which
is a service matter.
16. In the case of Dr. Duryodhan Sahu and
others v. Jitendra Kumar Mishra and other
(1998) 7 SCC 273: (AIR 1999 SC 114: 1998 AIR
SCW 3467), a three Judge Bench of this Court
held a PIL is not maintainable in service
matters. This Court, speaking through
Srinivasan, J. explained the purpose of
administrative tribunals created under Article
323-A in the backdrop of extraordinary
jurisdiction of the High Courts under Articles
226 and 227. This Court held “if public
interest litigations at the instance of strangers
are allowed to be entertained by the
(Administrative) Tribunal, the very object
of speedy disposal of service matters would get
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defeated” (para 18). Same reasoning applies
here as a Public Interesting Litigation has been
filed when the entire dispute relates to
selection and appointment.”
39. The Apex Court in State of Uttaranchal versus
Balwant Singh Chaufal & Ors., reported in 2010 AIR SCW
1029, has laid down tests when a Public Interest Litigation can be
filed. It is apt to reproduce para 198 of the judgment herein:
“198. In order to preserve the purity and
sanctity of the PIL, it has become imperative to
issue the following directions:-
(1) The courts must encourage genuine and
bona fide PIL and effectively discourage and
curb the PIL filed for extraneous
considerations.
(2) Instead of every individual Judge devising
his own procedure for dealing with the public
interest litigation, it would be appropriate for
each High Court to properly formulate rules for
encouraging the genuine PIL and discouraging
the PIL filed with oblique motives.
Consequently, we request that the High Courts
who have not yet framed the rules, should
frame the rules within three months. The
Registrar General of each High Court is
directed to ensure that a copy of the Rules
prepared by the High Court is sent to the
Secretary General of this court immediately
thereafter.
(3) The courts should prima facie verify the
credentials of the petitioner before
entertaining a P.I.L.
(4) The court should be prima facie satisfied
regarding the correctness of the contents of
the petition before entertaining a PIL.
(5) The court should be fully satisfied that
substantial public interest is involved before
entertaining the petition.
(6) The court should ensure that the petition
which involves larger public interest, gravity
and urgency must be given priority over other
petitions.
(7) The courts before entertaining the PIL
should ensure that the PIL is aimed at
redressal of genuine public harm or public
injury. The court should also ensure that there
is no personal gain, private motive or oblique
-: 26 :-
motive behind filing the public interest
litigation.
(8) The court should also ensure that the
petitions filed by busybodies for extraneous
and ulterior motives must be discouraged by
imposing exemplary costs or by adopting
similar novel methods to curb frivolous
petitions and the petitions filed for extraneous
considerations.”
40. The writ petitioners before this Court as well as before
the learned Single Judge have specifically averred in all the writ
petitions that they have a right of consideration. Meaning thereby,
they have interest. Applying the ratio of the Apex Court judgments,
writ in the nature of Public Interest Litigation is not maintainable
in service matters. In the cases in hand, the writ petitioners do
have interest, thus, on this count, the writ in the nature of Public
Interest Litigation is not maintainable.
41. The argument of learned counsel for the writ
petitioners that the writ petitioners were within their rights to
question the said appointments by the medium of writ of
quo-warranto is misconceived for the following reasons:
42. Quo warranto writ can be filed provided the petitioner
has no interest and the appointment made is not in accordance
with the Rules or the policy made by the Government. State has
made the policies in terms of their conscious decision, the
appointments came to be made in terms of the said policies, cannot
be said to be illegal, back door or outcome of political favouritism,
as discussed hereinabove.
43. The Apex Court in Hari Bansh Lal versus Sahodar
Prasad Mahto and others, reported in (2010) 9 Supreme Court
Cases 655, has held that PIL is not maintainable in service matters
except by way of writ of quo warranto for which appointment must be shown to be contrary to statutory provisions and has also laid down some principles. It is apt to reproduce paras 16 to 19 and 34 of the judgment herein:
16. A writ of quo warranto lies only when appointment is contrary to a statutory provision. In High Court of Gujarat and Another vs. Gujarat Kishan Mazdoor Panchayat and Others, (2003) 4 SCC 712, (three-Judges Bench) Hon’ble S.B. Sinha, J. concurring with the majority view held: (SCC pp. 730-31, paras 22-23)
“22. The High Court in exercise of its writ
jurisdiction in a matter of this nature is
required to determine at the outset as to
whether a case has been made out for issuance
of a writ of certiorari or a writ of
quo warranto. The jurisdiction of the High
Court to issue a writ of quo warranto is a
limited one. While issuing such a writ, the
Court merely makes a public declaration
but will not consider the respective impact
of the candidates or other factors
which may be relevant for issuance of a
writ of certiorari. (See R.K. Jain v. Union
of India, (1993) 4 SCC 119, SCC para 74.)
23. A writ of quo warranto can only be issued
when the appointment is contrary to
the statutory rules. (See Mor Modern
Coop. Transport Society Ltd. v. Govt. of
Haryana, (2002) 6 SCC 269.)”
17. In Mor Modern Coop. Transport Society
Ltd. vs. Govt. of Haryana, (2002) 6 SCC 269,
the following conclusion in para 11 is relevant:
(SCC p. 275)
“11. ….. The High Court did not exercise
its writ jurisdiction in the absence
of any averment to the effect that the
aforesaid officers had misused their
authority and acted in a manner prejudicial
to the interest of the appellants.
In our view the High Court should
have considered the challenge to the
appointment of the officials concerned
as members of the Regional Transport
Authority on the ground of breach of
statutory provisions. The mere fact
that they had not acted in a manner
prejudicial to the interest of the appellant
could not lend validity to their ap-
pointment, if otherwise, the appointment
was in breach of statutory provisions
of a mandatory nature. It has,
therefore, become necessary for us to
consider the validity of the impugned
notification said to have been issued in
breach of statutory provision.”
18. In B. Srinivasa Reddy vs. Karnataka Urban
Water Supply & Drainage Board Employees’
Assn., (2006) 11 SCC 731 (2), this Court held:
(SCC p. 754, para 49)
“49. The law is well settled. The High
Court in exercise of its writ jurisdiction
in a matter of this nature is required to
determine, at the outset, as to whether
a case has been made out for issuance
of a writ of quo warranto. The jurisdiction
of the High Court to issue a writ
of quo warranto is a limited one which
can only be issued when the appointment
is contrary to the statutory
rules.”
19. It is clear from the above decisions that
even for issuance of writ of quo warranto, the
High Court has to satisfy that the appointment
is contrary to the statutory rules. In the later
part of our judgment, we would discuss how
the appellant herein was considered and appointed
as Chairman and whether he satisfied
the relevant statutory provisions.
20. to 33. ………….
34. From the discussion and analysis, the following
principles emerge:-
(a) Except for a writ of quo warranto, PIL is
not maintainable in service matters.
(b) For issuance of writ of quo warranto, the
High Court has to satisfy that the appointment
is contrary to the statutory rules.
(c) Suitability or otherwise of a candidate for
appointment to a post in Government service is
the function of the appointing authority and
not of the Court unless the appointment is contrary
to statutory provisions/rules.
44. Having glance of the above discussions, it can be safely said and held that the writ petitioners and respondents in the appeals have failed to carve out a case for interference.
45. The effect of the impugned judgment is quashment of the appointment/regularization of some of the said teachers, who were not party before the learned Single Judge and are not party before this Court. Only on this count, the writ petitions filed before this Court, i.e. CWPs No. 6916 of 2011, 7728 & 8412 of 2013, merit to be dismissed and the impugned judgment merits to be set aside.
46. It is also worthwhile to mention here that all those candidates, who have been appointed, are not party before us, though, it is stated that they have arrayed the Association as partyrespondent. It is not averred in any of the writ petitions, whether all those teachers are the members of the Association and it was for the writ petitioners to plead and to substantiate, prima facie, that all of them are party to the writ petitions or members of the so called Association.
47. The learned Single Judge has also fallen in error in passing the impugned judgment in CWP No. 3303 of 2012. It is apt to reproduce the operative part of the impugned judgment herein:
“35. Accordingly, the writ petition is allowed. The respondent-State is directed to phase out the teachers appointed under ‘The Himachal Pradesh Prathmic Sahayak Adhyapak/Primary Assistant Teacher (PAT) Scheme 2003’, notified on 27th August, 2003 in a phased manner and to commence the selection process for filling up the posts of JBTs strictly as per the Recruitment and Promotion Rules, notified on 22nd August, 2000 read with notification, dated 23rd August, 2010, notified by the National Council for Teacher Education.
This process shall be completed within a period of six months from today. The respondent-State is directed not to regularize the services of those teachers, who have been appointed de hors the Recruitment and Promotion Rules framed under Article 309 of the Constitution of India read with minimum qualification prescribed under the National Council For Teacher Education notification dated 23rd August, 2010. The pending application(s), if any, also stands disposed of.
No costs.”
48. Only one writ petition was filed, that too, by three petitioners. If, at all, they had carved out a case, they could have sought their selection against three posts. The persons, who came to be appointed, are not parties and how a direction can be made to phase out them without even hearing them.
49. In view of the stand taken by the State in the reply filed in CWP No. 3303 of 2012 and the stand taken in the supplementary affidavit filed in CWP No. 7728 of 2013 that a large number of posts are vacant, at best, the writ petitioners can participate in the selection process. It is also a question mark whether they can make a grade in such selection process.
50. It pains us to record here that the State Government has utilized the services of the said teachers right from the year 2003, they have lost their youth and are performing their duties with legitimate expectations and the Government, after taking note of their work and conduct, as discussed hereinabove and at the cost of repetition, came forward and regularized their services and by now, they must have crossed the age of consideration and the impugned judgment has taken away their bread, not only the bread, but has affected their matrimonial home and their family and career of their children for no fault of theirs.
51. Having said so, the impugned judgment merits to be set aside and the writ petitions deserve dismissal. Accordingly, CWPs No. 6916 of 2011, 7728 and 8412 of 2013 are dismissed, LPAs No. 504, 507, 512 of 2012 & 203 of 2014 are allowed, the impugned judgment is set aside and CWP No. 3303 of 2012 is also dismissed. Pending applications, if any, are also disposed of. Interim direction, if any, shall stand vacated.
52. Copy of this judgment be placed on each of the connected files.
(Mansoor Ahmad Mir)
Chief Justice
(Tarlok Singh Chauhan)
Judge
December 9, 2014