Himachal Pradesh High Court
Shyam Lal vs State Of Himachal Pradesh And Others on 16 July, 2020
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CWPOA No. 296 of 2019
Decided on: July 16, 2020
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Shyam Lal .........Petitioner
Versus
State of Himachal Pradesh and others ...Respondents
________________________________________________________________
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes.
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For the petitioner Mr. J.L. Bhardwaj, Advocate.
For the respondents: Mr. Ashok Sharma, Advocate General
with Mr. Arvind Sharma, Additional
r Advocate General and Mr. Kunal Thakur,
Deputy Advocate General.
_______________________________________________________________
Sandeep Sharma, J. (Oral)
Petitioner, who after doing his B.Ed., got himself enrolled with the employment exchange, Nalagarh, District Solan, Himachal Pradesh, was offered appointment on contract basis as a Trained Graduate Teacher in February, 1997 at Government High School, Gharar, Tehsil Kasauli, District Solan, Himachal Pradesh. In the aforesaid capacity, petitioner worked till 24.4.1999. Petitioner apprehending his termination on expiry of contract, which was valid for two years, filed OA No. 422 of 1999 before erstwhile Himachal Pradesh Administrative Tribunal. The Tribunal in the interim, vide order dated 22.2.1999, directed that Whether reporters of the Local papers are allowed to see the judgment? .
::: Downloaded on - 18/07/2020 20:21:07 :::HCHP -2-the services of the petitioner will not be terminated till a regular hand is appointed. However, the fact remains that regular hand .
joined on 24.4.1999, as a consequence of which, services of the petitioner came to be terminated on 24.4.1999. Subsequently, the petitioner approached this Court by way of CWP No. 952 of 2000, laying therein challenge to order dated 3.11.1999, passed by the Tribunal in OA No. 422 of 1999. Vide order dated 11.12.2000 (Annexure A-1), Division Bench of this Court, while considering application for interim relief i.e. CMP No. 1634 of 2000, passed following direction "In our opinion, no mandatory direction can be issued to the State Government to appoint any particular person during the pendency and final disposal of the petitions. In our view, however, the prayer made on behalf of the learned counsel for the petitioner is reasonable to the extent that if teachers who have worked for some time in past, whose services have been terminated otherwise than as a disciplinary measure and who are still available and willing to work as teachers as such, the State Government can be directed that after appointing those persons, who have already been selected, if there are still vacancies, the State Government, will first afford an opportunity to all those teachers, who have worked with them and who are willing to discharge their duties by getting appointment on such terms and conditions which the State Government may prescribe and only thereafter the remaining vacancies can be filled in by new recruits from other permissible sources. Of course, it goes without saying that all such appointments will be subject to all the terms and ::: Downloaded on - 18/07/2020 20:21:07 :::HCHP -3- conditions imposed by the State Government and will be subject to final outcome of the writ petitions or further orders to be passed by this Court. It is also clarified that .
no equity will be claimed on the basis of such appointment by any appointee which will be made in pursuance of this interim order passed today."
2. Vide aforesaid orders, the Division Bench though prima facie was of the view that no mandatory direction can be issued to the State Government to appoint any particular person during the pendency and final disposal of the petitions, however, having taken note of the fact that the petitioner worked for some time in the past and his services never came to be terminated on account of disciplinary proceedings, directed the State Government that after appointing those persons, who have already been selected and if still there are vacancies, the State Government would first afford opportunity to those teachers, who have worked with them and who are willing to discharge their duties on such terms and conditions which State Government may prescribe. While passing aforesaid order, Division Bench of this Court specifically clarified in the order that no equity will be claimed on the basis of such appointment by the appointee, which will be made in pursuance to these interim orders. In the year 2003, respondent State framed The Himachal Pradesh Para Teachers (Lecturer School Cadre), Para Teachers (TGT's) and Para Teachers (C&V) Policy, ::: Downloaded on - 18/07/2020 20:21:07 :::HCHP -4- 2003 (hereinafter, 'Para Teacher Policy, 2003'), wherein preference was given to those teachers, who were earlier .
appointed on contract basis. In terms of aforesaid contract Policy (Annexure A-2), framed by the State of Himachal Pradesh, petitioner was interviewed by Sub Divisional Magistrate, Nalagarh on 21.1.2004. Petitioner joined at Government Middle School, Dalchhamb, Tehsil Nalagarh, District Solan, Himachal Pradesh on 21.1.2004. Before joining in terms of appointment letter referred to above, petitioner also executed an agreement undertaking therein that the contract shall stand terminated on 31.3.2004 or on fresh appointment or posting or promotion to the post or by transfer of a regular teacher, whichever, is earlier.
Besides above, petitioner also undertook before the authorities that his appointment would be subject to the decision of writ petition filed/pending in this Court.
3. Being aggrieved and dissatisfied with the aforesaid offer of appointment, under Para Teacher Policy and apprehending termination of his services, petitioner approached erstwhile Himachal Pradesh Administrative Tribunal by way of OA No. 712 of 2005, which after doing rounds between this Court and the erstwhile Himachal Pradesh Administrative Tribunal, now finally stands transferred to this Court, after abolition of the Himachal Pradesh Administrative Tribunal.
::: Downloaded on - 18/07/2020 20:21:07 :::HCHP -5-4. Precisely, the grouse of the petitioner is that his subsequent appointment vide letter dated 21.1.2004, by no .
stretch of imagination, can be said to be under Para Teacher Policy, because he was offered appointment at Government Middle School, Dalchhamb, Tehsil Nalagarh, District Solan, Himachal Pradesh on 21.1.2004 in terms of directions issued by Division Bench of this Court in CWP No. 952 of 2000. Petitioner has claimed by way of instant proceedings that since his subsequent appointment in the year 2004 is in terms of interim directions dated 11.12.2000 passed in CWP No. 952 of 2000, his services cannot be terminated by treating him an appointee under Para Teacher Policy. Petitioner has also claimed that the Para Teacher Policy framed by State of Himachal Pradesh is against the public policy, as such, cannot be allowed to sustain.
Petitioner has also claimed that by way of framing aforesaid Policy, respondent No.1 has devised a method to oust the persons, who were appointed on contract basis after following due procedure. In the aforesaid background, petitioner claimed that his subsequent appointment in the year 2004, at Government Middle School Dalchhamb, Tehsil Nalagarh District Solan, Himachal Pradesh cannot be held appointment under Para Teacher Policy, rather, he be deemed to be in continuous service of the respondents with effect from January, 1997, when he was ::: Downloaded on - 18/07/2020 20:21:07 :::HCHP -6- initially appointed as a Trained Graduate Teacher, on contract basis at Government High School, Gharar, Tehsil Kasauli, .
District Solan, Himachal Pradesh. Besides above, the petitioner also prayed that the respondents be restrained to disengage his services with effect from 31.3.2005, and may be directed to pay him salary of TGT alongwith arrears and interest thereupon at the rate of 12% per annum. Petitioner mainly has prayed for the following reliefs in the present petition:
"(i) That the action on the part of the respondents r to appoint the applicant as Para-teacher may be held void ib-initio and the applicant may be held in continuous services of the respondents w.e.f. January 1997 when the applicant was appointed as T.G.T.
(ii) That the respondents may be restrained to dis-
engage the services of the applicant w.ef..
31.3.2005.
(iii) That the respondents may be directed to pay the scale of T.G.Ts. to the applicant with all arrears alongwith interest @ 12% per annum till its realization.
(iv) That the cost of the application may kindly be allowed.
(v) That the respondents may be directed to pay regular pay scale of TGTs to the applicant with all arrears alongwith interest."
::: Downloaded on - 18/07/2020 20:21:07 :::HCHP -7-5. Respondents with a view to justify their act of terminating services of the petitioner after 31.3.2005, have submitted before .
this Court by way of reply that services of the petitioner cannot be retained after 31.3.2005 in view of order dated 14.12.2004 passed by this Court in CWP No. 793 of 2003, titled Sushil Kumar and another vs. State of Himachal Pradesh and another, whereby respondents have been specifically directed not to allow Para Teachers, beyond 31.12.2004 in winter closing schools and beyond 31.3.2005 in summer closing schools (Annexure R-1).
Respondents have also claimed that subsequent appointment of the petitioner is squarely covered under Para Teacher Policy of 2003 and since Hon'ble Apex Court in SLP titled Vishavjeet Dadwal and others vs. State of H.P. and others has stayed aforesaid orders dated 14.12.2004 passed by this court, apprehension of the petitioner that his service are likely to be terminated on 31.3.2005, is totally misplaced. Respondents have further stated in their reply that even if it is presumed that the petitioner was given appointment as a Para Teacher in terms of interim direction issued by Division Bench of this Court in CWP No. 415 of 2000, but that does not mean that his subsequent appointment as Para Teacher also would relate back to earlier appointment on contract basis in the year 1997. Respondents have further stated that the Para Teacher Policy 2003 was ::: Downloaded on - 18/07/2020 20:21:07 :::HCHP -8- purposely made to offer appointment to the retrenched contract teachers but, at the time of their appointment, all such .
retrenched contractual appointees furnished undertaking that they would be governed by terms and conditions of the Policy.
6. Though, it has been stated by the respondents that as per Para Teacher Policy, a Para Teacher can be replaced at any time by a regular hand but now since services of the petitioner stand regularized, as has been fairly conceded by learned Counsel appearing for the petitioner, issue with regard to termination of services of the petitioner in terms of Para Teacher Policy is not relevant.
7. The question, which now remains to be adjudicated in the instant proceedings in view of the prayer made in the instant petition is that "whether the subsequent appointment of the petitioner made on 21.1.2004 can be said to be fresh appointment under Para Teacher Policy or it would relate back to initial appointment of the petitioner in the year 1997 when he was offered appointment on contract basis as TGT at Government High School, Gharar, Tehsil Kasauli, District Solan, Himachal Pradesh".
8. Mr. J.L. Bhardwaj, learned Counsel appearing for the petitioner, while making this Court peruse order dated 11.12.2000 passed by Division Bench of this Court in CMP ::: Downloaded on - 18/07/2020 20:21:07 :::HCHP -9- No.1634 of 2000 in CWP No. 952 of 2000, made a serious attempt to persuade this Court to agree with his contention that .
subsequent appointment of the petitioner on 21.1.2004 (Annexure A-3) cannot be said to be under Para Teacher Policy, rather petitioner came to be offered this appointment pursuant to aforesaid direction of this Court in earlier writ petition filed by the petitioner, as such, services rendered by the petitioner with effect from 1997 to 1999 are required to be taken into consideration for computing qualifying service for pension as well as other service benefits. Mr. Bhardwaj contended that since in the year 1999, many vacancies on contract basis were available in various schools, against which petitioner could be appointed, respondents could not have dispensed with his services on the ground that regular hand has joined. He contended that since respondents despite there being availability of vacancies on contract basis proceeded to terminate contract of the petitioner and thereafter, appointed him under Para Teacher Policy after a gap of five years, break in service from 1999 to 2004 deserves to be condoned and such period is required to be counted towards qualifying service for the purpose of pension and other benefits.
Learned Counsel appearing for the petitioner contended that his case is squarely covered by judgment dated 19.5.2010 passed by learned Single Judge of this Court in CWP(T) No. 5249 of 2008, ::: Downloaded on - 18/07/2020 20:21:07 :::HCHP
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titled Dharam Prakash vs. State of Himachal Pradesh and others, which subsequently came to be upheld vide judgment dated .
1.9.2015 passed by Division Bench in a bunch of LPA's, lead case of which was LPA No. 146 of 2010.
9. Learned Advocate General, while refuting aforesaid contention, pointed out that the relief, as has been prayed for in the instant petition, cannot be granted in the facts and circumstances of the case, because, in case, prayer having been made on behalf of the petitioner for declaring his subsequent appointment as Para Teacher void ab initio is accepted, he shall virtually be out of service because, at present, his services stand regularized as a Para Teacher and not as TGT, as is being claimed in the instant proceedings. Lastly, learned Advocate General contended that at no point of time, this Court, while passing interim order dated 11.12.2000 in CWP No. 952 of 2000, mandatorily directed the respondents to appoint the petitioner as a TGT, rather, observed in the order that in case some vacancies remain unfilled after appointment of regular hands, case of the petitioner may also be considered.
10. Learned Advocate General further contended that once the petitioner himself has accepted his appointment as a Para Teacher in the year 2004 and executed an agreement, undertaking therein that his services would be liable to be ::: Downloaded on - 18/07/2020 20:21:07 :::HCHP
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dispensed with on joining of a regular hand, he is now estopped from claiming continuity from the date of his appointment on .
contract basis in the year 1997.
11. Having heard learned counsel for the parties and perused the material available on record vis-à-vis prayer made in the instant petition, this Court is in agreement with learned Advocate General that in case prayer made in the instant petition is accepted, very appointment of the petitioner as a Para Teacher would come to end, as such, this relief cannot be granted in the instant proceedings. Another contention of Mr. Bhardwaj, learned Counsel appearing for the petitioner that the petitioner's subsequent appointment as a Para Teacher in the year 2004 would relate back to his initial appointment in the year 1997 on contract basis, is also devoid of merit and deserves outright rejection. It is not in dispute that in the year 1997, petitioner was appointed as a TGT for two years. He was allowed to continue beyond two years on the strength of interim directions issued by erstwhile Himachal Pradesh Administrative Tribunal in OA No. 422 of 1999, wherein learned Tribunal below had ordered that till the time, regular hand is appointed, services of the petitioner would not be dispensed with. However, subsequently petitioner's services were terminated with effect from 24.4.1999 on joining of a regular hand. After passing of aforesaid order, though the ::: Downloaded on - 18/07/2020 20:21:07 :::HCHP
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petitioner approached this Court by way of CWP No. 952 of 2000, but, as has been taken note herein above, Division Bench of this .
Court refused to issue direction to the respondents to appoint petitioner during the pendency or final disposal of the petition filed by him, rather, the court, very cautiously and carefully, observed that the case of the petitioner would be considered against vacancy which remains to be filled after appointment of regular hands, but, such appointment will be subject to the terms and conditions imposed by Government. At this stage, it may be noticed that subsequently writ petition having been filed by the petitioner, was disposed of on account of subsequent developments.
12. Interestingly, in the year 2003, petitioner after having been interviewed by Sub Divisional Magistrate concerned, in view of provisions of Para Teacher Policy framed by State of Himachal Pradesh, happily accepted his appointment as a Para Teacher at Government Middle School, Dalchhamb, Tehsil Nalagarh, District Solan, Himachal Pradesh on 21.1.2004, aforesaid appointment as a Para Teacher was admittedly for a fixed period, as is evident from the appointment letter issued in favour of petitioner (Annexure A-4), whereby he was called upon to execute an agreement undertaking therein that the contract shall stand terminated on 31.3.2004 or fresh appointment or promotion to ::: Downloaded on - 18/07/2020 20:21:07 :::HCHP
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the post or posting by transfer of a regular teacher, whichever is earlier. Once the petitioner accepted aforesaid appointment .
without any protest and executed agreement as was called upon vide communication dated 21.1.2004 (annexure A-4), he cannot permitted to claim at this stage that his subsequent appointment in the year 2004 as a Para Teacher would relate back to his initial appointment on contract basis in the year 1997. This court cannot lose sight of the fact that initially the petitioner was appointed on contract basis as a TGT for two years and after expiry of contract, as referred to above contract of the petitioner was never renewed, rather, he, in the year 2004, after a gap of five years was freshly appointed as a Para Teacher at Government Middle School, Dalchhamb, Tehsil Nalagarh, District Solan on 21.1.2004. Though the petitioner has claimed that his appointment in the year 2004 was not in terms of Para Teacher Policy, rather same was in terms of interim directions issued by Division Bench of this Court on 11.12.2000 in CWP No. 952 of 2000, but as has been noticed herein above, no such direction ever came to be passed by Division Bench of this Court, rather, respondents having taken note of the observation made in the aforesaid interim order proceeded to frame Para Teacher Policy to accommodate retrenched contractual appointees.
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13. Having taken note of the fact that the petitioner never remained on the rolls of Education Department after expiry of his .
contract i.e. 24.4.1999, coupled with the fact that subsequent appointment under Para Teacher Policy came to be made in the year 2004 i.e. after a gap of five years from the date of termination of his services, contention of the petitioner that his subsequent appointment in the year 2004 as a Para Teacher would relate back to his initial appointment in the year 1997, cannot be accepted. Judgment as relied upon by learned Counsel appearing for the petitioner is not applicable in the facts of the present case, because facts in Dharam Prakash (supra) case are totally different from the facts of the present case. In Dharam Prakash (supra), plea of the petitioner was that though his services have been terminated after expiry of contract on the ground that regular hand has joined, but after his termination, several persons came to be appointed on contract basis in the Education Department. Learned Single Judge of this Court, having perused record found that when services of the petitioner in that case were terminated, there were several posts lying vacant in the Education Department, against which regular hands could have been ordered to join, as such, while allowing the petition filed by Dharam Prakash, ordered that subsequent appointment of the petitioner would relate back to his initial ::: Downloaded on - 18/07/2020 20:21:07 :::HCHP
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appointment on contract basis. In that case, learned Single Judge condoned the break in service and directed the .
respondents to take into consideration services rendered by the petitioner on contract basis, while counting his qualifying service for the purpose of pension and other benefits. However, pleadings adduced on record by the petitioner nowhere reveal that he was able to carve out a case, in the earlier writ petition No. 952 of 2000 filed by him, that regular appointee proposed to be appointed against the post against which petitioner was working on contract basis, could be appointed against other posts, which were lying vacant. In those proceedings, the petitioner was unable to point out that after his termination, respondents appointed TGT on contract basis and there were other vacant posts against which regular hands could be made to join. In the case at hand, petitioner, after joining of regular hand on 24.4.1999, remained out of job, till the time he was offered fresh appointment under Para Teacher Policy on 21.1.2004.
14. Leaving everything aside, subsequent appointment made in the year 2004 that too, under Para Teacher Policy was accepted by the petitioner without any demur, as such appointment under Para Teacher Policy that too in the year 2004, cannot be said to have relation, if any, with petitioner's earlier services rendered by him on contract basis for two years from 1997 to 1999. Services ::: Downloaded on - 18/07/2020 20:21:07 :::HCHP
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of the petitioner under Para Teacher Policy were though for a specific period but, now on account of subsequent developments, .
he stands regularized, as such, it cannot be said that any injustice has been caused to him.
15. At this stage, Mr. Bhardwaj contended that his client would be content and satisfied in case only notional benefits are given to him and he will not claim seniority also, if he is deemed to be in continuous service from 1997, however, this Court is afraid that in view of detailed discussion made above, this prayer can be considered, since once the claim of the petitioner for continuity in service from 1997 has fallen to ground, there is no question of granting notional benefits and as such, said contention also deserves outright rejection.
16. Accordingly, in view of detailed discussion and analysis made above, petition at hand is dismissed alongwith pending applications, if any.
(Sandeep Sharma) Judge July 16, 2020 (Vikrant) ::: Downloaded on - 18/07/2020 20:21:07 :::HCHP