Himachal Pradesh High Court
Devi Chand & Ors vs State Of H.P. & Ors on 18 May, 2023
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 2343/2021 Decided on: 18.05.2023 .
Devi Chand & Ors. ....Petitioners
Versus
State of H.P. & Ors. ......Respondents
............................................................................................. Coram The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge. Whether approved for reporting?1 Yes.
For the petitioners
For the respondents
r :
: toMr. Naresh Kaul, Advocate.
Mr. Anup Rattan, Advocate General
with Ms. Rupinder Singh, Additional
Advocate General, for respondents
No.1 and 2.
Mr. Sanjeev Kumar Motta, Advocate,
for respondent No.3.
Mr. Viveka Nand, Advocate, for
respondent No.4.
Jyotsna Rewal Dua, J
The petitioners have been working as Lecturers (School-
New) Commerce on contract basis with effect from 02.07.2014. They are before this Court seeking regularization of their services on completion of 3 years of contractual service.
2. The Facts of the case as canvassed by learned counsel for the petitioners are:-
1Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 24/05/2023 20:29:59 :::CIS 2
2(i) The Himachal Pradesh Subordinate Services Selection Board Hamirpur (respondent No.3) issued an advertisement on .
13.12.2011, wherein amongst several posts meant for different categories, 103 posts of PGT (Commerce) (on contract basis) were also advertised. The essential qualifications for this post were mentioned as follows:-
"305 PGT (Commerce)
1. Academic Qualification Master Degree in Commerce with Accountancy/Financial Accountancy and Income Tax as major subjects of study with minimum of 50% marks in aggregate from a recognized University or its equivalent. Holder of Degree of MFC (Master of Finance Control) with minimum 50% marks in aggregate from à recognized university or its equivalent is also eligible for the post of Post graduate Teacher in Commerce subject.
2. Desirable: Knowledge of customs, manners and dialects of Himachal Pradesh and suitability for appointment in the peculiar conditions prevailing in the Pradesh.
3. Professional Qualification B.Ed. qualification for M.Com. Candidates will not be essential till the expiry of period of three year from the date H.P. University allows B.Com./M.Com. Candidates to under take B.Ed. degree/course.
B.Ed qualification was not essential for M.Com candidates till the expiry of 3 years period from the date H.P. University allows commerce candidates to undertake B.Ed degree/course.
2(ii) The aforesaid advertisement was issued under the Recruitment & Promotions Rules (R&P in short) dated 28.12.1973.
Under these Rules, for the post of lecturers in Higher Secondary Schools, essential qualification was Master's Degree in the subject ::: Downloaded on - 24/05/2023 20:29:59 :::CIS 3 concerned from a recognized university or its equivalent. B.Ed qualification was not mentioned under these Rules.
.
2(iii) A bunch of writ petitions with lead case being CWP No.8858/2012 (Ramesh Kumar & Ors. Vs State & Ors.) were preferred in this Court. The petitioners therein (including some of the present petitioners) were aggrieved as they had not been permitted by the Himachal Pradesh Subordinate Services Selection Board Hamirpur, to participate in the selection process for appointment to the post of PGT (Commerce) on the ground that they did not possess the requisite B.Ed degree. The writ petitions were disposed of on 12.12.2012 with the following observations/directions:-
"4. As already stated above, the Himachal Pradesh University had started B.Ed. in Commerce stream, without any restriction as to age, only from academic year 2012-13. All the petitioners, it is submitted, had otherwise become over-aged to take admission to B.Ed. in the regular stream prior to 2012-13, when the University started B.Ed. in Commerce stream from 2007-2008 onwards.
5. In peculiar facts and circumstances of the case, there will be a direction to the H.P. Subordinate Services Selection Board to interview the petitioners also and subject to their merit, take further action to forward their names to the State. Needless to say that in case the candidates, who have been selected by the Board, a rider will be added to the effect that they will have to pass the B.Ed. within three years."
In the judgment, the Court noticed that B.Ed in Commerce stream was started in Himachal Pradesh University without any restriction as to age, only from academic year 2012-13. That the ::: Downloaded on - 24/05/2023 20:29:59 :::CIS 4 petitioners had become over-age to take admission in B.Ed in the regular stream prior to 2012-13. In the peculiar facts and circumstances .
of the case, the Court directed the H.P. Subordinate Services Selection Board to interview the petitioners subject to their merit and take further action to forward their names to the State. It was also observed that "needless to say that in case the candidates, who have been selected by the Board, a rider will be added to the effect that they will have to pass the B.Ed within three years." The petitioners participated in the selection process under the advertisement dated 13.12.2011. The result was declared by the respondents on 20.05.2013. The petitioners were selected as PGT (commerce) on contract basis.
2(iv) The respondents framed the Recruitment & Promotion Rules for the post of Post Graduate Teacher Class-III (Non-Gazetted) in the year 2010. The notification in this regard was issued on 20.09.2010.
Clause-1(2) of the notification stated that "these rules shall come into force from the date of publication in the Rajpatra, Himachal Pradesh."
The R&P Rules were actually published in the Rajpatra on 06.06.2013.
Rule 7 of the R&P Rules 2010, which came into force w.e.f. 06.06.2013, prescribed minimum educational and other qualifications required for direct recruits. Bachelor of Education (B.Ed) from a recognized University/Institution with minimum 45% marks was one of the essential required qualifications. This was, however, with a proviso that for M.Com candidates, B.Ed qualification was not ::: Downloaded on - 24/05/2023 20:29:59 :::CIS 5 necessary till the expiry of three years from the date H.P. University allowed commerce candidates to undertake B.Ed degree. There was .
another proviso that for Contract Lecturers School cadre/others already engaged for teaching, B.Ed qualification will not be essential till 31.12.2010. Relevant part of Rule7(2) reads thus:-
"7(2). Professional Qualification- Bachelor of Education (B.Ed) as professional qualification from a recognized University/Institution with minimum 45% marks.
Two years integrated M.Sc.Ed. Course or an equivalent course from a recognized University.
Provided that for M.Com Candidates, B.Ed qualification will not be essential till the expiry of period of three years from the date H.P. University allows B.Com/M.Com Candidates to undertake B.Ed course.
Provided further that for contract Lecturers) School Cadre)/others already engaged for teaching, B/Ed. Qualification will not be essential till 31st December 2010."
2(v) While the petitioners and other selected candidates were waiting for their posting orders, a Review Petition No.4065/2013 a/w Review Petition Nos.4066 to 4075/2013, was preferred. The petitioners therein were seeking review of judgment dated 12.12.2012, whereby bunch of petitions with lead case being CWP No. 8858/2012 were decided. The review petitions were disposed of on 24.04.2014 with following directions:-
"12. Keeping in view the fact that 103 candidates are waiting for their appointment and 36 candidates are also under bona fide expectations read with the fact that the students are suffering because of non-availability of the teachers is the schools throughout the State of Himachal Pradesh, we deem it proper to issue the ::: Downloaded on - 24/05/2023 20:29:59 :::CIS 6 following directions, In the interest of Justice, with the consent of the learned counsel for the parties.
1. Respondent-H.P. Subordinate Services Selection .
Board is directed to make recommendation of 103 candidates, who are already figuring in the original merit list and also of the said 36 candidates.
2. Respondent-State is directed to make appointment of 103 candidates figuring in the original merit list and also of 36 candidates, provided the posts are available. In case, any vacancy falls due out of the original list on non-joining or otherwise, the waiting list should be operated. The waiting list shall remain in r force for the period, as prescribed under the Rules.
13. Accordingly, the judgment made by this Court in bunch of petitions, being CWP No. 8858 of 2012 as the lead case, is modified as indicated hereinabove. This order shall form part of the main/common judgment (supra). Copy of this order be placed on the file of the main writ petition."
In terms of above judgment dated 24.04.2014, apart from 103 candidates, the State was directed to make admissions of 36 more candidates. The judgment passed in CWP No.8858/2012 was modified to the extent indicated in the judgment dated 24.04.2014.
2(vi) Respondents issued posting order of selected candidates on 02.07.2014. Names of all the petitioners figured in this order. The petitioners ever since 02.07.2014 are serving as PGT (commerce) on contract basis.
2(vii) In the aforesaid background, this writ petition has been preferred essentially with the prayer for regularization of petitioners on ::: Downloaded on - 24/05/2023 20:29:59 :::CIS 7 completion of 3 years of contractual service with all consequential benefits.
.
3. Petitioners' prayer has been opposed by the respondents/State on the following grounds:-
3(i) Petitioners had participated in the selection process under advertisement dated 13.12.2011. As per this advertisement, commerce candidates were required to obtain B.Ed degree after the expiry of 3 years from the date H.P. University allowed commerce candidates to undertake B.Ed degree/course. H.P. University had started the B.Ed degree/course for the commerce candidates from academic year 2012-
13. The petitioners did not obtain B.Ed degree, therefore, their services cannot be regularized.
3(ii) The posting orders were given to the petitioners on 02.07.2014. Office order dated 02.07.2014 categorically stipulated that the appointment of the petitioners "are subject to condition that they will have to pass B.Ed degree within three years from the date of Hon'ble High Court of H.P. judgment dated 12.12.2012." The petitioners were thus aware that their appointments were subject to their possessing B.Ed degrees within three years from the date of judgment dated 12.12.2012. Despite this, petitioners did not obtain B.Ed degree.
3(iii) The R&P Rules for the post of Post Graduate Teacher notified on 20.09.2010 were amended vide notification dated 13.10.2016. Clause 1(2) of the notification dated 13.10.2016 stated ::: Downloaded on - 24/05/2023 20:29:59 :::CIS 8 "provisions of Rule 2 of these Rules shall come into force w.e.f.
20.09.2010." Meaning thereby, R&P Rules 2010 which though .
published in the gazette on 06.06.2013 and came into force from the date of their publication, by virtue of notification dated 13.06.2016 were brought into force w.e.f. 20.09.2010. Thus, the candidates, who participated in the advertisement dated 13.12.2011, were also required to possess B.Ed qualification as mandated under 2010 Rules in view of notification dated 13.10.2016.
4. Observations Having heard learned counsel on both sides and on considering the entire case file, I find substance in the prayer made for the petitioners. This is on account of following reasons:-
4(i) Advertisement dated 13.12.2011 was issued under the R&P Rules 1973 as they existed on 13.12.2011. Notifications dated 06.06.2013 & 13.06.2016 had not come into existence at that time.
Possession of B.Ed degree was not an essential qualification for the post in question under the prevalent Rules.
4(ii) The advertisement dated 13.12.2011 did state that the B.Ed qualification for M.Com candidates would not be essential till the expiry of period of 3 years from the date H.P. University allows commerce candidates to undertake B.Ed degree/course. However, the fact remains that the R&P Rules 1973 did not prescribe possession of B.Ed degree as an essential qualification for the post. Be that as it may.
::: Downloaded on - 24/05/2023 20:29:59 :::CIS 94(iii) Against the insertion of condition of possessing of B.Ed qualification for commerce candidates, certain writ petitions were .
preferred before this Court. This bunch of writ petitions with lead case being CWP No.8858/2012 was decided on 12.12.2012, wherein the fact was noticed that the H.P. University had started B.Ed in commerce stream without any restriction as to age, only from the academic year 2012-13. That the petitioners (including some of the petitioners herein) had otherwise become over age to take admission in B.Ed in regular steam prior to 2012-13. The Court directed the respondents to interview the petitioners therein and take further action on the basis of merit secured by them in the selection process. It was also observed in the judgment that ""needless to say that in case the candidates, who have been selected by the Board, a rider will be added to the effect that they will have to pass the B.Ed within three years." The said judgment was modified by the Court while disposing of bunch of review petitions on 24.04.2014. In addition to 103 candidates selected against advertised 103 posts, 36 more candidates were also to be given appointments as per decision dated 24.04.2014.
4(iv) Petitioners were selected as PGT (commerce) on contract basis vide result declared on 20.05.2013. They were given posting orders on 02.07.2014. Though the office order dated 02.07.2014 stated that the appointment of the petitioners is subject to condition of their passing B.Ed degree/course within three years from the date of ::: Downloaded on - 24/05/2023 20:29:59 :::CIS 10 judgment dated 12.12.2012, however, the fact remains that while executing the contracts with the petitioners, the respondents did not .
impose any such condition. Perhaps, it is for this reason that the petitioners, even though not in possession of B.Ed degree/course, have continued in service till date. This is despite the fact that in terms of office order dated 02.07.2014, their appointments were subject to condition that they would have to pass B.Ed degree/course within three years from the date of judgment dated 12.12.2012. Thus obviously, the respondents did not treat possession of B.Ed degree as a mandatory condition & accordingly allowed the petitioners to continue to discharge their duties. In fact the respondents did not incorporate possession of B.Ed degree as a condition in the contracts executed by them with the petitioners.
4(v) Possession of B.Ed degree was made an essential qualification for the post under the R&P Rules 2010 notified on 20.09.2010. However, as per Clause 1(2) of this notification, the 2010 Rules were to come into force from the date of their publication in the gazette. The Rules were published in the gazette on 06.06.2013. The Rules 2010 accordingly came into force w.e.f. 06.06.2013. In the given facts, these rules cannot be retrospectively applied to the selection process that commenced under the old R&P Rules. Respondents in their reply have emphasized that R&P Rules notified on 20.09.2010 and published in Rajpatra on 06.06.2013 have been made applicable from ::: Downloaded on - 24/05/2023 20:29:59 :::CIS 11 the date of issuance of notification dated 20.09.2010 vide Government notification dated 13.10.2016. It is the stand of the respondents that as .
per these R&P Rules 2010 published on 06.06.2013 and made applicable from 20.09.2010 under notification dated 13.10.2016, possession of B.Ed degree with minimum 50% marks was made an essential qualification for the post in question, therefore, the case of the petitioners can be considered for regularization only after they fulfill the requisite qualification for the post. I am afraid that the arguments sans merit. In terms of its Clause 1(2) of the notification dated 20.09.2010, the R&P Rules 2010 were to come into force from the date of publication in the official gazette. The R&P Rules 2010 were actually published in the gazette on 06.06.2013. Therefore, the R&P Rules 2010 came into force w.e.f. 06.06.2013 and not from any anterior date. The notification dated 13.10.2016 would not antedate the date of enforcement of R&P Rules 2010 to 20.09.2010. The respondents could not have applied the R&P Rules 2010 (which came into force w.e.f.
06.06.2013) to the petitioners, who had participated under the advertisement that was issued on 13.12.2011 under the Old R&P Rules. The action of retrospectively applying the R&P Rules by issuing notification dated 13.10.2016 was not in consonance with law.
It will also be apt to refer to a decision rendered on 29.05.2019 by erstwhile H.P. State Administrative Tribunal in bunch of Original Applications with lead case being OA Nos.1062/2017 ::: Downloaded on - 24/05/2023 20:29:59 :::CIS 12 (Yashwant Singh & Ors. Vs State & Anr.). One of the prayers made therein was that the issuance of the notification dated 13.10.2016 .
without any communication to the affected persons and its applicability from the back date i.e. 20.09.2010 and 19.08.2011 be held illegal & arbitrary and the same be quashed and set aside. The aforesaid original application though pertained to a selection process initiated in the year 2008, however, the prayer of the petitioners therein pertained to applicability of notification dated 13.10.2016 from the back date i.e. 20.09.2010. The Tribunal held as under:-
"6. One B.Ed was not essential qualification for appointment to the post at the time of recruitment, the respondents by issuing notification dated 13.10.2016, Annexure A-2, cannot take away vested right of the applicants retrospectively, for regularization in view of notification dated 22.04.2016."
It is not in dispute that the above judgment has attained finality and has been implemented by the respondents. The candidates, who participated under 2008 selection process have been conferred regularization and all consequential benefits arising thereupon. The petitioners are also similarly situated. They are with the same issues and same prayers, hence, there cannot be any discrimination in the cases of the petitioners, who till date continue to serve on contract basis ever since their appointments as such w.e.f. 02.07.2014.
4(vi) There is specific pleading in the petition about an office order issued by the respondents on 06.10.2017, whereby it was clarified that for the regularization of 782 PGTs, qualification of ::: Downloaded on - 24/05/2023 20:29:59 :::CIS 13 possessing B.Ed from recognized university will not be applicable. This contention has not been refuted by the respondents. Petitioners have .
also asserted that respondents had regularized services of other similarly situated employees without their possessing the B.Ed degree.
This assertion has also not been disputed by the respondents.
4(vii) There is no denial from the respondents to the petitioners' assertion that services of contract lecturers have been regularized on completion of three years of contractual service by them. Petitioners have completed 10 years of contractual service and are waiting for regularization of their services.
5. Accordingly, for all the aforesaid reasons, the present petition is allowed. The respondents are directed to regularize services of the petitioners on completion of 3 years of contractual service by them at par with their counter parts with all consequential benefits. This exercise be completed, by the respondents, within a period of six weeks from the date of receipt of the judgment. The decision so taken shall also be communicated to the petitioners. Pending application(s), if any, also stand disposed of accordingly.
Jyotsna Rewal Dua Judge 18th May2023 (Rohit) ::: Downloaded on - 24/05/2023 20:29:59 :::CIS