Punjab-Haryana High Court
Smt. Pritpal Kaur vs Union Of India And Others on 4 September, 2013
Bench: Jasbir Singh, G.S. Sandhawalia
CWP No. 12850-CAT of 2004 1
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CWP No. 12850-CAT of 2004
Date of Decision:- September 04, 2013
Smt. Pritpal Kaur ..............PETITIONER(S)
vs.
Union of India and others ...........RESPONDENT(S)
CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH
HON'BLE MR. JUSTICE G.S. SANDHAWALIA
Present:- Mr. Rahul Sharma, Advocate,
for the petitioner.
Ms. Deepali Puri, Advocate,
for respondents no. 1 to 5.
JASBIR SINGH, J. (Oral)
This order shall dispose of five writ petitions i.e. CWP Nos. 12850, 9427, 13611-CAT of 2004 and CWP Nos. 1456 and 1877-CAT of 2006, as common question of fact and law is involved in all the writ petitions. To dictate order, facts are being taken from CWP No. 12850- CAT of 2004.
Petitioner was appointed, on contract basis, against a post of JBT teacher. However, noting that she was not qualified for the said post, her service was terminated on 18.07.2003. Petitioner alongwith other similarly situated teachers, went to Central Administrative Tribunal (in short the 'Tribunal') at Chandigarh. Original application filed by the petitioner and others was dismissed by the Tribunal on 19.05.2004. Relevant portion of the order reads thus:-
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"8. The learned counsel for the applicants I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 12850-CAT of 2004 2 pleaded that the Applicants No. 1 and 2 were having higher qualification of B.Ed as against JBT required for the post and as such they cannot be termed as ineligible. In support of his arguments he cited the example that if a candidate holds a Master degree for a post, requiring Graduation as the qualification, he cannot be termed as ineligible for the post. However, this argument is not valid in the present case. JBT is a specialized training of two years' duration imparted to the students to train them to teach primary class students, whereas B.Ed. is a degree for teaching higher classes. Without the basic qualification of JBT, a candidate is not equipped to teach primary class students, although he/she may be possessing B.Ed. or even M.Ed. Degrees. Secondly, one need not be a JBT to possess the degree of B.Ed., whereas one has to be first a graduate to have a Master degree. Thus this argument advanced by the learned counsel does not carry much weight to support his case. Besides this, it has been held in a decision of the Full Bench of Punjab and Haryana High Court in the case of Som Dutt vs. State of Haryana and another, reported as 1983(3) SLR 141 that the persons possessing higher qualifications are not eligible to be considered, if they do not possess the basic/essential qualification for the post. The cases of the applicants at S.Nos. 1 and 2 are squarely covered Gupta Shivani 2013.09.25 12:34 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 12850-CAT of 2004 3 by this judgment and as such their services have rightly been dispensed with. As regards the Applicant at Sr.No.3 of the OA, she does not possess the degree of B.Ed. with Music as a teaching subject or a degree in Music from recognized Institute, as prescribed under the rules. The possession of a B.A. certificate with Music as one of the subjects does not make eligible for the post, under the rules. Her services have also, therefore, rightly been terminated by the respondents.
9. The learned counsel for the applicants cited a judgment of the Hon'ble Punjab & Haryana High Court in the case of Savatri Devi vs. State of Haryana & others, 19998(3) RSJ page 241 in which the prescribed qualification for the post of Sanskrit Teacher was LTC(OT) in Sanskrit, whereas the petitioner was Shastri and B.Ed. with Sanskrit as teaching subject. In this case, the Hon'ble High Court had directed that the qualification held by the candidate should be considered equivalent to LTC (OT) in Sanskrit. He stated that in the instant case also the degrees of JBT and Music in B.A. should be considered equivalent to the qualifications prescribed under the Recruitment Rules for the posts in question. It may be stated that this judgement of the Hon'ble High Court is in peculiar facts and circumstances of the case before them and cannot be treated as a law for universal application. Gupta Shivani 2013.09.25 12:34 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 12850-CAT of 2004 4 The fact and circumstances of the present case are quite distinct and as such the benefit of the judgment cited by the learned counsel cannot be extended to the applicants in the present case."
The petitioner came to this Court by filing this writ petition. It was admitted on 22.03.2005 and ordered to be heard alongwith CWP No. 19473-CAT of 2003. Above writ petition was disposed of by a Division Bench of this Court on 28.03.2005 with the lead case being CWP No. 15332-CAT of 2003. To pass judgment, reliance was placed upon a decision taken by this Court in CWP No. 10456-CAT of 2004 decided on 21.03.2005 titled as Sangeeta Sharma vs. Union Territory of Chandigarh and others. Following observation was quoted in that judgment from the case of Sangeeta Sharma (supra).
"It is not in dispute that the claim made by the petitioner through her original application was allowed by the learned Tribunal vide order dated September 26, 2003. It is also apparent from the perusal of the aforesaid order that the petitioner, and all such persons similarly situated, would be entitled to continue on their posts till such time as duly selected lecturers join the said posts. However, we cannot lose sight of the fact that primarily, it is for an employer to fill up a particular post or not. The Court cannot direct an employer to fill up a particular post simply because the post is lying vacant. The stand taken by the respondents is that the administration has taken a Gupta Shivani 2013.09.25 12:34 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 12850-CAT of 2004 5 decision not to fill up three posts lying vacant with them. Accordingly, the petitioner cannot be heard to make any grievance against the non-filling up the aforesaid posts and if in those circumstances she is not allowed to continue any further. The direction contained in order dated September 26, 2003, passed by the learned Tribunal, can only operate in a situation where the vacancies are lying vacant with the department and where the department chooses to fill up the aforesaid vacancies. It is in those circumstances that the department shall be under an obligation to continue the petitioner, and all such similarly situated persons, till the regular selectees join their posts. However, in a situation where the department decides not to fill up certain vacancies, the persons working on the aforesaid vacancies on contract basis cannot be heard to claim the right to continue till regular selectees join.
It was further observed by us as follows:
We have given our thoughtful consideration to the rival contentions of the learned counsel for the parties. In our considered view, the grievance made by the petitioner against the appointment of persons as guest faculty membership basis is well founded. The respondents cannot be permitted to substitute one set of persons by another set of persons on contractual basis Gupta Shivani 2013.09.25 12:34 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 12850-CAT of 2004 6 alone, by terming the aforesaid appointments as "guest faculty appointments". The aforesaid appointments may be permissible in a situation where a particular vacancy has arisen on account of a permanent employee proceeding on leave during the middle of session or in some similar situation during the course of the academic session. However, a guest faculty appointment cannot be permitted by way of an engagement at the commencement of the session and with a view to have a lecturer for teaching students for the whole academic session. To this extent the grievance made by the petitioner is absolutely justified. Even otherwise from the order dated September 26, 2003 we find that the learned Tribunal had itself directed that one set of contract employees could not be substituted by another set of contract employees. The aforesaid order has not been challenged by the Union Territory Administration at all and has attained finality.
Accordingly, we dispose of the present writ petitions with a direction to the respondents to continue the contract employes till such time, persons selected on regular basis join and in a situation where a decision has been taken not to fill up the vacancies on regular basis, it would be open for the administration not to continue the contractual Gupta Shivani 2013.09.25 12:34 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 12850-CAT of 2004 7 employees any further. However, in such a situation it would not be open to the Union Territory Administration to appoint persons on guest faculty membership basis. However, in a situation where a vacancy suddenly arises during the course of the academic session, then in such a situation the administration will be well within its rights to make a temporary arrangement of guest faculty membership by inviting applications from all eligible persons and in such a situation the petitioner shall also be considered for such appointments. Since the current academic session is about to end, therefore, if any guest faculty members have been engaged for the current session, then they would be allowed to continue keeping in view the interest of students. However, these directions shall be strictly followed for the ensuing session."
Placing reliance upon above said judgment, CWP No. 15332- CAT of 2003 was disposed of. It was specifically ordered that the contract employees shall continue till such time persons selected on regular basis does not join the service. It was further observed that in case it is decided by the administration not to fill up the post, it will be open to the administration not to continue with the contractual employees any further.
It is not in dispute that when order passed by the Tribunal was challenged, this Court did not grant any stay order in favour of the petitioner. On 15.12.2004, status quo, as was existing on that day, was ordered to be maintained till the next date of hearing i.e. 18.01.2005. On Gupta Shivani 2013.09.25 12:34 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 12850-CAT of 2004 8 that day, interim order was not extended further.
It is stated by counsel for the petitioner that the petitioner was continuing in service on the basis of an order passed by this Court in CWP No. 19473-CAT of 2003. In that writ petition, stay against termination of contractual employees was granted.
Be that as it may, after service of the petitioner was terminated on 18.07.2003, she went to the Tribunal and could not have been allowed to continue in service on the strength of any order which was passed before passing of order of termination of her service. It is a fact that after termination stay order was not granted in her favour to remain in service.
It is on record that CWP No. 19473-CAT of 2003 was disposed of on 28.03.2005 i.e. alongwith CWP No. 15332-CAT of 2003. That order has not been challenged by the petitioner. If that is so, the case of the petitioner is squarely covered by the judgment passed in CWP No. 15332- CAT of 2003 titled as Harminder Kaur and others vs. Union of India and others.
Otherwise also, a statement has been made by counsel for the respondents-Administration, on getting instructions from Sh. R.K. Sharma, District Education Officer, that as on today, 127 posts of JBT teachers are lying vacant and the administration has no proposal to appoint any contract employee. If that is so, no relief can be granted to the petitioner in terms of order passed in CWP No. 15332-CAT of 2003, Harminder Kaur's case (supra).
The writ petitions are dismissed.
It is further grievance of the petitioner that contrary to law, she was declared ineligible for the post in question.
Gupta Shivani2013.09.25 12:34 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 12850-CAT of 2004 9
This aspect is kept open. As and when posts are advertised, the petitioner may agitate her right for appointment on regular basis, if her application is rejected.
(Jasbir Singh)
Judge
04.09.2013 (G.S. Sandhawalia)
shivani Judge
Gupta Shivani
2013.09.25 12:34
I attest to the accuracy and
integrity of this document
High Court Chandigarh