Himachal Pradesh High Court
Meenakshi Rana And Others vs State Of Hp And Others on 10 January, 2020
Bench: L. Narayana Swamy, Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
CWP No. 2615/2017a/w connected matters Reserved on: 20.11.2019.
Decided on: 10.01.2020 CWP No. 2615/2017.
Meenakshi Rana and others ......Petitioners.
Versus State of HP and others .....Respondents.
CWP No. 2616/2017.
Rajeev and others ......Petitioners.
Versus
State of HP and others .....Respondents.
CWP No. 2617/2017.
Savita Sharma and others ......Petitioners.
Versus
State of HP and others .....Respondents.
CWP No. 2618/2017.
Vinod Kumar and others .......Petitioners.
Versus
State of HP and others .....Respondents.
CWP No. 2619/2017.
Suresh Kumar and others ......Petitioners.
Versus
State of HP and others .....Respondents.
CWP No. 2620/2017.
Himani Sood and others ......Petitioners.
Versus
State of HP and others .....Respondents.
CWP No. 2621/2017.
Pawan Kumar and others ......Petitioners.
Versus
State of HP and others .....Respondents.
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_______________________________________________________________ CWP No. 2622/2017.
Sanjeev Kumar and others ......Petitioners.
.
Versus State of HP and others .....Respondents.
CWP No. 2665/2017.
Ram Kumar and others ......Petitioners.
Versus State of HP and others .....Respondents.
CWP No. 1412/2019.
Vivek Choudhary ......Petitioner.
Versus
State of HP and others .....Respondents.
Coram:
Hon'ble Mr. Justice L. Narayana Swamy, Chief Justice.
Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?
For the petitioner(s): Mr. M.L. Sharma, Senior Advocate with Mr. Aman Parth Sharma, Advocate for the petitioners, in all writ petitions except in CWP No.1412/2019.
Mr. Aasheesh Patial, Advocate, for the petitioner, in CWP No.1412/2019.
For the respondents: Mr. Ajay Vaidya, Senior Additional Advocate General, with Mr. Ranjan Sharma, Mr. Adarsh Sharma, Ms. Ritta Goswami, Mr. Ashwani Sharma and Mr. Nand Lal Thakur, Additional Advocates General, for the respondents/State.
Jyotsna Rewal Dua, Judge.
Since similar questions of law and facts are involved in all these writ petitions, therefore, the same are taken up together for adjudication and disposal.
::: Downloaded on - 10/01/2020 20:32:05 :::HCHP 32. The petitioners' prayer is that for implementing Policy dated 03.10.2015, framed by the State Government for taking over .
services of staff engaged by the Institute Management Committee(s) (hereinafter referred to as IMCs in short) under Students Welfare Scheme, State may be directed: (i) to create as many posts as required; (ii) to consider the petitioners for taking over their services on Government contract above their juniors; and (iii) to implement the policy in letter and spirit by appointing the incumbents against vacant or equivalent posts as per their qualifications.
3 The undisputed facts may be noticed: 3(i). In State Industrial Training Institutes (IITs), two types of units were being run: (a) those under free seats/subsidized category being run and managed by the Government under State Plan Budget for which all the posts are filled up through Recruitment Agency in accordance with Recruitment and Promotion Rules; and (b) payment/nonsubsidized category seats being run and managed by the IMCs.
3(ii). The IMCs of different Government ITIs were competent to engage trainers and other supporting staff required for training of students under payment/nonsubsidized seats. The ::: Downloaded on - 10/01/2020 20:32:05 :::HCHP 4 petitioners were appointed on contract basis by the IMCs in different years on fixed monthly remuneration(s). They preferred .
writ petition before this Court seeking benefits for them, alleging that they had been performing same and similar duties as were performed by their regular counterparts. Eventually, a Policy was framed by the State Government on 03.10.2015 for taking over services of employees engaged by the IMCs in Government ITIs on contract basis, with certain terms and conditions. The relevant paragraphs of the Notification dated 03.10.2015 (Annexure P2) and some of the conditions of this Policy, being relevant, appended with CWP No.2615 of 2017, are extracted hereinafter: "The Governor, Himachal Pradesh is pleased to take over the services of all the teaching and non teaching employees engaged on contract basis through Student Welfare Fund, Institute Management Committee(s) and under other schemes up to 31.07.2015 (i.e. date of closing of academic year 20142015) in Government Engineering Colleges, Polytechnics and Industrial Training Institutes of the Department of Technical Education Vocational & Industrial Training, on contract basis after completion of 7 years' or 9600 hours whichever is earlier as one time measure, in the public interest, with immediate effect subject to the condition no litigation is subsisting and an undertaking to this effect shall be taken from all the concerned. The terms and conditions are as under:
(i) That the service of all such eligible employees shall be taken over on contract basis after completion of 7 years' or 9600 hours service whichever is earlier in accordance with the terms and conditions (for contract) issued by the Department of Personnel vide their letter No.PER(AP) CB(2)2/2015 dated 07.05.2015, further amended from time to time and fresh contract agreement in respect of all the existing employees as on 31.07.2015 shall be executed accordingly.
::: Downloaded on - 10/01/2020 20:32:05 :::HCHP 5(ii) That the services of all such employees shall be taken over on contract basis against available vacancies failing which against resultant vacancies and existing malengagement shall be .
discontinued immediately."
(iii) to (vii).................
(viii)That in future, engagements of any staff on contract basis through Student Welfare Fund, Institute Management Committees and under any other Schemes in the institutions existing as on 31.07.2015 in the Department of Technical Education shall not be made without the approval of the State Government, failing which suitable disciplinary action shall be initiated against concerned Head(s) of respective institution(s)."
3(iii). As per the Policy, services of all eligible candidates engaged as per norms, as on 31.07.2015, were to be considered for taking over on contract basis after completion of seven years or 9600 hours of service, whichever is earlier, against available vacancies, failing which, against resultant vacancies.
4(i). Learned Senior Counsel for the petitioners contended that: Policy dated 03.10.2015 is though being implemented but in selective manner; services of juniors to the petitioners have been taken over under the Policy in violation of Article 14 of the Constitution of India; services of juniors to the petitioners were taken over even by adjusting and converting their Trades, whereas, this exercise has not been carried out in case of the petitioners; many of such juniors were those who were fence sitters and had not even approached this Court;
services of petitioners were not taken over, whereas, these are required ::: Downloaded on - 10/01/2020 20:32:05 :::HCHP 6 to be taken over from the day they completed 9600 hours of service. It has been submitted that State should be directed to create as many .
posts as required for taking over services of all eligible candidates under the Policy dated 03.10.2015. In support of this contention, learned Senior Counsel for the petitioners, has relied upon (2013) 2 SCC 516, titled Bhupender Nath Hazarika versus State of Assam and others; (2013) 14 SCC 65, titled Nihal Singh and others versus State of Punjab and others; and (2010) 7 SCC 678, titled East Coast Railway and another versus Mahadev Appa Rao and others.
4(ii). Learned Additional Advocate General, submits that: 4(ii)(a). Approximately 45 petitioners, in all these connected writ petitions, were engaged by IMCs in Government ITIs as trainers in more than 42 different need based Trades. These incumbents were neither engaged against vacant posts nor were paid out of State Budget. Their engagements were as per exigencies of services at a particular time, broadly consistent with educational qualification prescribed under the Recruitment and Promotion Rules or where the Recruitment and Promotion Rules were not in existence, then as per National Council of Vocational Training (NCVT) Norms.
::: Downloaded on - 10/01/2020 20:32:05 :::HCHP 74(ii)(b). Services of the staff as on 31.07.2015, eligible under the Policy dated 03.10.2015, were to be considered for taking over on .
contract basis after completion of seven years or 9600 hours of service, whichever is earlier, but only against available vacancies, failing which, against resultant vacancies, which arise in any institution as per clarificatory letter issued on 21.10.2015 (Annexure R1), appended with the reply in CWP No.2615 of 2017.
4(ii)(c). Services of eligible staff have been taken over as per seniority. Out of total 384 eligible incumbents, the services of 256 trainees in different Trades, have been taken over on functional posts, whereas, services of 128 incumbents, including the petitioners, could not be taken over due to nonavailability of functional budgetary posts etc. It is further submitted that services of remaining eligible incumbents will be taken over on Government contract against the vacancies which may arise due to superannuation, promotion etc. or against the posts becoming functional from the next Academic Session.
4(ii)(d). On 01.09.2017, a proposal has also been mooted for creation of 61 posts of Craft Instructors in different Trades in Government ITIs for taking over the services of eligible staff under the Policy dated 03.10.2015.
::: Downloaded on - 10/01/2020 20:32:05 :::HCHP 85. We have heard learned counsel for the parties and gone through the record.
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5(i). The services of trainers engaged by IMCs in Government ITIs can be taken over only under the Policy dated 03.10.2015. This Policy is not under challenge before this Court.
5(ii). It has been denied by the respondents that services of any junior have been taken over prior to taking over of services of his/her senior. Moreover, no such alleged junior has been impleaded as party to the writ petition. The services of the eligible candidates, including the petitioners, have to be taken over on Government contract as per seniority and available vacancies in the concerned Trade(s).
5(iii). The change of Trade in case of some trainers has been explained by the respondents in the reply. The change in the Trade had to be resorted in case of those trainers, who were working under Center of Excellence Scheme (COE) and engaged through IMCs. In 2014, Center of Excellence Scheme (COE) was discontinued and accordingly the trainees rendered surplus were adjusted in other Trades under IMCs.
5(iv). It has been submitted that during the pendency of these petitions, services of various petitioners have also been taken over under the Policy vide orders dated 22.09.2018 and 07.09.2018.
::: Downloaded on - 10/01/2020 20:32:05 :::HCHP 95(v). The Policy, interalia, provides seven years or 9600 hours of service as one of the conditions for taking over the services of eligible .
candidates on Government contract. However, the service of eligible candidates can be taken over only against available vacancies or against resultant vacancies.
5(vi). So far as the allegation of the petitioners that many incumbents, who are fence sitters and even juniors to the petitioners, have been engaged by the State on contract basis, is concerned, it is suffice to observe that Policy is applicable to all eligible staff and not just to those who moved the Court. The allegation of juniors, superseding their seniors in respect of implementation of the Policy dated 03.10.2015, has not been substantiated. No such alleged juniors have been impleaded in the petitions. Change of Trade of some of the trainers engaged in Center of Excellence Scheme, has been explained by the State in its reply.
The allegations levelled in the present writ petitions, have not been substantiated. The perusal of the record shows that the State is alive to its duty in taking over the services of the Trainers and the eligible staff under the Policy and efforts have been made to take over the services of remaining eligible incumbents, including the petitioners, on Government contract. Under the circumstances, we deem it proper ::: Downloaded on - 10/01/2020 20:32:05 :::HCHP 10 to direct the respondentsState to continue its earnest efforts for taking over the services of left out petitioners on Government contract basis, in .
accordance with the Policy dated 03.10.2015. We have no reason to doubt that State shall make an endevour to take over the services of left out petitioners on Government contract, strictly in accordance with the Policy dated 03.10.2015.
With the aforesaid observations/directions, the writ petitions stand disposed of, so also pending miscellaneous application(s), if any.
(L. Narayana Swamy) Chief Justice (Jyotsna Rewal Dua) Judge January 10, 2020.
(Yashwant) ::: Downloaded on - 10/01/2020 20:32:05 :::HCHP