Uttarakhand High Court
Chandra Mohan Sharma & Others ... vs National Education Society For Tribal ... on 11 December, 2024
Author: Rakesh Thapliyal
Bench: Rakesh Thapliyal
HIGH COURT OF UTTARAKHAND AT
NAINITAL
HON'BLE SRI JUSTICE RAKESH THAPLIYAL
WRIT PETITION (S/S) NO. 1414 OF 2023
11TH DECEMBER, 2024
Chandra Mohan Sharma & others .....Petitioners.
Versus
National Education Society for Tribal Students & others
....Respondents.
With
WRIT PETITION (S/S) NO. 1945 OF 2024
WRIT PETITION (S/S) NO. 1946 OF 2024
WRIT PETITION (S/S) NO. 1427 OF 2023
WRIT PETITION (S/S) NO. 1680 OF 2023
WRIT PETITION (S/S) NO. 1681 OF 2023
WRIT PETITION (S/S) NO. 909 OF 2024
WRIT PETITION (S/S) NO. 911 OF 2024
WRIT PETITION (S/S) NO. 950 OF 2024
WRIT PETITION (S/S) NO. 2030 OF 2024
Counsel for the Petitioners : Mr. C.D. Bahuguna,
learned Senior Counsel
assisted by Mr. Ramji
Srivastava, Mr. Bhuwan
Bhatt, Mr. Nishant Krishna
Adhikari, Mr. Chandra
Shekhar Dalakoti, learned
counsels.
: Mr. Rajendra Dobhal,
learned Senior Counsel
assisted by Mr. Shubhang
Dobhal and Mr. Suryakant
Maithani, learned counsels
in WPSS Nos.1945 of
2024 and 1946 of 2024.
Counsel for the NESTS : Mr. R. Venkataramani,
learned Attorney General
of India with Mr. Arvind
Vashisth, learned Senior
Counsel assisted by Mr.
Hemant Singh, learned
counsels.
Counsel for the Union of India : Mr. Saurav Adhikari, Mr.
Manoj Kumar, learned
Standing Counsels.
Counsel for the State : Mr. Narain Dutt, learned
Standing Counsel.
Counsel for the Respondent Nos.3 & 5 : Mr. C.S. Rawat, learned
counsel.
The Court made the following:
COMMON ORDER:(per Hon'ble Justice Sri Rakesh Thapliyal) On the previous date, Mr. C.D. Bahuguna learned Senior Counsel for the petitioners argued that in terms of Clauses 4(h) and 4(i) of the Guidelines issued by the Ministry of Tribal Affairs in June, 2010, recruitment would be handled entirely by the society chosen by the State Government/ UT Administration. In support his argument, he placed reliance on the Memorandum of Understanding (MoU) dated 26th August, 2020, and on clause 9.3(e) and (f) of the Guidelines issued on 13.11.2020.
2. Today, learned Attorney General of India appearing for the National Education Society for Tribal Students (for short "NESTS") has argued that the petitioners in these bunch of petitions (except in WPSS Nos.1945 of 2024 and 1946 of 2024) have no locus to challenge the recruitment process initiated by the 2 NESTS pursuant to the advertisement issued in the month of July, 2023. Apart from this, learned Attorney General also argued that, in fact, the powers of recruitment are vest with the NESTS, and the same was never been entrusted to a Society, i.e. Eklavya Model Residential School Societies (for short "EMRs"), which is a State Society.
3. In support of his argument, learned Attorney General gives reference of different clauses of the Guidelines issued on 13.11.2020, particularly, Clause 9 which deals with "Running of Schools" and clause 9.1 which deals with 'Roles and Responsibilities of the National Education Society for Tribal Students, i.e. NESTS', and submits that as per sub-clause k of Clause 9.1, process of recruitment was never been entrusted to any other body, and it is always remained with the NESTS. Sub-clauses i, k, l, m and n of Clause 9.1 are being extracted here-in-below:-
"9. Running of Schools xxxxxx
i) Shall provide detailed standards and norms for recruitment of Teaching and Non-Teaching Staff and continuation of existing staff.
k) If need be, could entrust the recruitment of teachers for States to an independent agency duly ensuring reservation quota prescribed therein.
l) Aid, establish and conduct other institutions as may be required for the furtherance of the Society's 3 objectives in any part of India.
m. Do all such things as may be considered necessary, incidental or conducive to the attainment of all or any of the objectives of the Society.
n. Carry out any other activities required for implementation of the Scheme, as directed by the Ministry of Tribal Affairs, Government of India from time to time."
4. Clause 9.3 of the said Guidelines of 2020, deals with Roles and Responsibilities of the State/ UT EMRS Society, and by referring sub-clause (e) of Clause 9.3, learned Attorney General submits that the recruitment of Teaching & Non-Teaching Staff should be based on the norms, guidelines and Recruitment Rules prescribed by the Ministry from time to time, and in any manner, this clause does not empower the State to carry on with the recruitment process through a society established by the State.
5. Learned Attorney General further submits that on plain reading of Clause 9.1(k) with sub-clause
(e) of Clause 9.3 of the Guidelines of 2020, since the recruitment process was never been entrusted to the State to carry on through a society established by the State, therefore, NESTS is the only competent body to go with the recruitment process. Another document, which has been placed by learned Attorney General, is Annexure-1 to the counter-affidavit of respondent nos.1 4 and 2, which is a circular issued by the Ministry of Finance (Department of Expenditure), Government of India dated 12..01.2023, which pertains to the financial sanction of posts created in EMRS, Regional Offices and NESTS hqrs. Paragraph No.2 of the said circular dated 12.01.2023 is being reproduced here-in-below:-
"2. Administrative Ministry is advised to make the recruitment in phased manner from 2022-23 to 2026- 27 as proposed under point 1 on Note# 65 in respect of 740 EMRS. As regards Regional Offices, Administrative Ministry is advised to explore the possibility of using the facilities of various offices of Navodaya Vidalaya Sangthan."
6. Apart from this, learned Attorney General also gives reference of Memorandum of Understanding (MoU) entered into between the NESTS and the EMRS, dated 22.08.2023 which also reveals that Department of Expenditure has approved 38,480 posts of teaching and supporting staff for running EMRS.
7. On perusal of this MoU, it reveals that it was entered with regard to the recruitment of teachers and support staff for Eklavya schools sanctioned by the Ministry. Clause 3 of the said MoU deals with 'Roles and responsibilities of the First Party as well as Second Party', and the same is being extracted here-in-below:-
"3. Roles and Responsibilities of the First Party Plan, construct, establish and administer the schools and to do all acts and things necessary for management and 5 administration of these schools.
Provide good quality modern education for all round development of students.
Offer a common core-curriculum of NCERT to ensure uniformity in standards in accordance with CBSE norms and guidelines.
Facilitate CBSE affiliation of schools. Facilitate conduct of training/ capacity building programmes for teaching and non-teaching staff in coordination with the Second Party.
Provide admissible annual recurring grants subject to submitting necessary documents as per applicable guidelines and GFR.
Shall formulate guidelines for State/ UT EMRS Societies to run and manage schools through NGOs subject to prior approval of NESTS.
Shall formulate and put in place Recruitment Rules for teaching and non-teaching staff of EMRS. Shall carry out recruitment process centrally based on vacancies communicated by State/ UT Societies. The teaching and non-teaching staff recruited by NESTS shall be the employees of NESTS and they will be governed by the service conditions as prescribed by NESTS. These employees will get remunerations based on the pay scales approved by NESTS.
NESTS will continue to provide the required recurring grants as per norms.
Roles and Responsibilities of Second Party Shall maintain and manage the schools as per the guidelines and norms formulated by the First Party and the Ministry of Tribal Affairs, Government of India.
Shall coordinate with the respective State Government/ UT Administration to provide encumbrance free land free of cost with clear land use for development and expansion of the schools. The land use shall not be changed to the detriment of both the parties.
Shall ensure transfer of the identified land in the name of the First Party.
Under the new Central Sector scheme grant has been provided in full to complete the buildings of EMRS. All such buildings shall be transferred in the name of the First Party. In case of such EMRS built from the grants under Article 275(1) provided by the Ministry of Tribal Affairs, the school buildings shall be got inspected by both the parties and upon satisfaction of the First Party, the buildings will be transferred in the name of the First Party. In case there is a need of urgent repairs, the Second Party shall get the necessary works completed and then propose transfer of such EMRS buildings.
Shall ensure proper connectivity like road, electricity, water supply, land development etc. as required for the schools in coordination with the State Government/ UT Administration. Shall ensure adherence to the admission guidelines issued by the NESTS.6
Shall submit an Annual Action Plan based on the actual requirements of recurring and maintenance expenditure to the First Party before the end of current financial year for grants required in the coming financial year. Shall open Bank Accounts at the Society and School Level exclusively for receipt and disbursement of funds pertaining to the schools received from the First Party. Shall implement Public Financial Management System (PFMS) or any system required by Ministry of Finance, Government of India including the Receipt, Expenditure, Advance and Transfer (REAT) Module at the Society and School Level. Shall furnish all information sought by the First Party in a timebound manner.
Shall provide detailed vacancies of teaching and non- teaching staff on quarterly basis.
Shall not carry out any recruitment for EMRSs without specific permission from NESTS."
8. Learned Attorney General submits that from Clause 3 of the MoU, it is clear that NESTS is the only body to carry out recruitment process, and so far as the role of second party, i.e. EMRS Society of Uttarakhand is concerned, this Society is only empowered to maintain and manage the schools as per the guidelines and norms formulated by the First Party and the Ministry of Tribal Affairs, Government of India.
9. Learned Attorney General further submits that even otherwise the petitioners have no locus to challenge the process of selection initiated by the NESTS, and therefore, on this ground alone, petitions are liable to be dismissed.
10. Mr. Bahuguna requests that the matters may be posted on 07.01.2025 for his arguments on the issue whether the petitioners in these bunch of writ 7 petitions (except in WPSS Nos.1945 of 2024 and 1946 of 2024) have any locus or not, and furthermore on the issue whether the power of recruitment are vest with the NESTS, or with the State society.
11. On the joint request, put up on 07.01.2025 at 04:15 PM.
'' (RAKESH THAPLIYAL, J.) Dated: 11th December, 2024 NISHANT 8