Himachal Pradesh High Court
Sanjeev Kumar Son Of Shri Shakti vs State Of H.P & Others. The Division Bench ... on 13 September, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 13th DAY OF SEPTEMBER, 2022
.
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CIVIL WRIT PETITION (ORIGINAL APPLICATION) No.8130 OF 2019
Between:
1. SANJEEV KUMAR SON OF SHRI SHAKTI
PRASAD, LECTURER (COLLEGE CADRE),
GOVERNMENT COLLEGE, CHAMBA,
DISTRICT CHAMBA,(H.P), LECTURER
(COLLEGE CADRE), GOVERNMENT
COLLEGE DHARAMSHALA, DISTRICT
KANGRA, H.P.
2. JITENDER SINGH SON OF SHRI MOHAR
SIGH, LECTURER (COLLEGE CADRE),
GOVERNMENT COLLEGE, DHARAMSHALA,
DISTRICT KANGRA, (HP).
3. PRAKASH CHAND SON OF SHRI LUDIA
RAM, LECTURER (COLLEGE CADRE),
NAGROTA BAGWAN, DISTRICT
KANGRA,(H.P).
4. RAJ KUMARI, DAUGHTER OF LATE SHRI
L.R.SOAIL, LECTURER (COLLEGE CADRE),
GOVERNMENT COLLEGE, GHUMARWIN,
DISTRICT BILASPUR,(HP).
5. DR. LABHI SINGH SON OF SHRI KAHAN
SINGH, LECTURER (COLLEGE CADRE),
GOVERNMENT COLLEGE, SERAJ,
DISTRICT MANDI, (H.P).
6. KRISHNA SHARMA WIFE OF SHRI
SHAILESH KUMAR, LECTURER (COLLEGE
CADRE) GOVERNMENT COLLEGE, KULLU,
DISTRICT KULLU, (H.P).
7. MANOJ KUMAR SHARMA SON OF SHRI
KAMAL KISHORE SHARMA, LECTURER
(COLLEGE CADRE), GOVERNMENT
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COLLEGE BARSAR, DISTRICT HAMIRPUR,
(H.P).
8. SUMIT SON OF SHRI G.D. NIRANKARI,
.
LECTURER (COLLEGE CADRE),
GOVERNMENT COLLEGE, CHAMBA,
DISTRICT CHAMBA, (HP).
9. SNEH LATA, WIFE OF SHRI RAJESH
KUMAR, LECTURER (COLLEGE CADRE),
GOVERNMENT COLLEGE, BANJAR,
DISTRICT KULLU, (HP).
10. NEERAJ KUMAR SON OF SHRI SUDESH
KUMAR, LECTURER (COLLEGE CADRE),
GOVERNMENT COLLEGE, RAJGARH,
DISTRICT SIRMOUR, (H.P).
11. VIKRANT GAUTAM, SON OF LATE SHRI
P.C. GAUTAM, LECTURER (COLLEGE
CADRE), GOVERNMENT COLLEGE SUNNI,
DISTRICT SHIMLA,(H.P).
12. MOHINDER SINGH SON OF SHRI JAWAHAR
RAM, LECTURER (COLLEGE CADRE),
GOVERNMENT COLLEGE MANDI, DISTRICT
MANDI, (H.P).
13. REKHA PATHANIA, DAUGHTER OF LATE
SHRI BALWANT SINGH, LECTURER
(COLLEGE CADRE) GOVERNMENT
COLLEGE, INDORA, DISTRICT KANGRA
(H.P).
14. DR. DALIP BALI SON OF SHRI C.L.BALI,
LECTURER (COLLEGE CADRE)
GOVERNMENT COLLEGE DIGGAL,
DISTRICT SOLAN, (H.P).
15. DR. DEEP KUMAR SON OF SHRI PUNJAB
SINGH, LECTURER (COLLEGE CADRE),
GOVERNMENT COLLEGE, PALAMPUR
DISTRICT KANGRA (H.P.).
16. RAVI PRAKASH SON OF SHRI LACHHU
RAM, LECTURER (COLLEGE CADRE)
GOVERNMENT COLLEGE, GHUMARWIN,
DISTRICT BILASPUR, (H.P).
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17. RAGHVENDRA KUMAR GUPTA SON OF
SHRI SIYA RAM SHARAN, LECTURER
(COLLEGE CADRE) GOVERNMENT
.
COLLEGE, INDORA, DISTRICT KANGRA,
(H.P).
18. VISHAL RANGTA SON OF SHRI BALRAM
SINGH RANGTA, LECTURER (COLLEGE
CADRE) GOVERNMENT COLLEGE,
NANKHARI, DISTRICT SHIMLA (H.P).
19. BALAM DEVI WIFE OF SHRI HARISH
CHANDER, LECTURER (COLLEGE CADRE),
GOVERNMENT COLLEGE, RECKONG PEO,
DISTRICT KINNAUR, (H.P).
20. PURNIMA DHILLON, DAUGHTER OF LATE
SHRI VED DHILLON, LECTURER (COLLEGE
CADRE),
rGOVERNMENT COLLEGE
CHAMBA, DISTRICT CHAMBA, (H.P).
21. CHINU GARG SON OF SHRI SUNIL KUMAR
GARG, LECTURER (COLLEGE CADRE)
GOVERNMENT COLLEGE, PAONTA SAHIB,
DISTRICT SIRMOUR (H.P).
22. SEEMA TYAGI, DAUGHTER OF SHRI D.D.
TYAGI, LECTURER (COLLEGE CADRE),
GOVERNMENT COLLEGE PAONTA SAHIB,
DISTRICT SIRMOUR (H.P).
23. MOHAN LAL SON OF SHRI DURGA DASS,
LECTURER (COLLEGE CADRE)
GOVERNMENT COLLEGE, BASSA-GOHAR,
DISTRICT MANDI, (H.P).
24. BIRBAL SINGH SON OF SHRI SHAMBHU
NATH, LECTURER (COLLEGE CADRE),
GOVERNMENT COLLEGE, SARKAGHAT,
DISTRICT MANDI, (H.P).
25. GOVERDHAN KUMAR CHAUHAN SON OF
SHRI BALDEV SINGH CHAUHAN,
LECTURER (COLLEGE CADRE),
GOVERNMENT COLLEGE, SARASWATI
NAGAR, DISTRICT SHIMLA, (H.P).
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26. ANJU SHARMA WIFE OF SHRI
VIKRAMJEET SHARMA, LECTURER
(COLLEGE CADRE) GOVERNMENT
COLLEGE, GHUMARWIN, DISTRICT
.
BILASPUR, (H.P).
27. HARENDER THAKUR SON OF SHRI
KUNDAN LAL, LECTURER (COLLEGE
CADRE) GOVERNMENT COLLEGE,
HARIOUR, MANALI, DISTRICT KULLU,
(H.P).
28. PARVINDER KAUR DAUGHTER OF SHRI
SURENDER PAL SINGH SACHDEV,
LECTURER (COLLEGE CADRE)
GOVERNMENT COLLEGE, BASSA,
DISTRICT MANDI, (H.P).
29. MANJIT SINGH SON OF SHRI ONKAR
SINGH, LECTURER (COLLEGE CADRE)
GOVERNMENT COLLEGE, WEHRI,
DISTRICT KANGRA, (H.P).
30. VINOD KUMAR SON OF SHRI SUKHDEV
SINGH, LECTURER (COLLEGE CADRE)
GOVERNMENT COLLEGE CHOWARI,
DISTRICT CHAMBA, (H.P).
31. RITIKA JAMWAL, DAUGHTER OF SHRI
BALDEV SINGH JAMWAL, LECTURER
(COLLEGE CADRE) GOVERNMENT
COLLEGE, NADAUN, DISTRICT HAMIRPUR,
(H.P).
32. SANJAY SHARMA SON OF SHRI INDER
SINGH, LECTURER (COLLEGE CADRE)
GOVERNMENT COLLEGE NAHAN,
DISTRICT SIRMOUR, (H.P).
33. BHARATI DAUGHTER OF LATE SHRI
JAGDISH CHAND, LECTURER (COLLEGE
CADRE) GOVERNMENT COLLEGE, NAHAN,
DSITRICT SIRMOUR, (H.P).
34. GIAN CHAND SONOF SHRI DILA RAM,
LECTURER (COLLEGE CADRE),
GOVERNMENT COLLEGE, LAD-BHADOL,
DISTRICT MANDI, (H.P).
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35. MASHU RAM DHIMAN SON OF SHRI HANS
RAJ DHIMAN, LECTURER (COLLEGE
CADRE), GOVERNMENT COLLEGE,
CHOWARI, DISTRICT CHAMBA, (H.P).
.
36. MANJU BALA WIFE OF SHRI HANS RAJ
BHARMOURIA, LECTURER (COLLEGE
CADRE), GOVERNMENT COLLEGE
JOGINDERNAGAR, DISTRICT MANDI, (H.P).
37. VIDHU BHARDWAJ WIFE OF SHRI KUSHAL
BHARDWAJ, LECTURER (COLLEGE
CADRE), GOVERNMENT COLLEGE,
JOGINDERNAGAR, DISTRICT MANDI, (H.P).
38. RAKESH KUMAR SON OF SHRI RATTAN
LAL KAPUR, LECTURER (COLLEGE
CADRE), GOVERNMENT COLLEGE, MANDI,
DISTRICT MANDI, (H.P).
39. BRAJ NANDAN SON OF SHRI GOPAL K.
KUMAR, LECTURER (COLLEGE CADRE),
GOVERNMENT COLLEGE KARSOG,
DISTRICT MANDI, (H.P).
40. RAJESH KUMAR SON OF SHRI KEHAR
SINGH, LECTURER (COLLEGE CADRE),
GOVERNMENT COLLEGE PALAMPUR,
DISTRICT KANGRA, (H.P).
41. RAJ KUMAR SON OF SHRI JEEVAN SINGH,
LECTURER (COLLEGE CADRE),
GOVERNMENT COLLEGE, GHUMARWIN,
DISTRICT BILASPUR, (H.P).
42. SHEELA NEGI, DAUGHTER OF LATE SHRI
GOVIND SINGH, LECTURER (COLLEGE
CADRE), GOVERNMENT COLLEGE,
RECKONG PEO, DISTRICT KINNAUR, (H.P).
43. SUNIL KUMAR SON OF SHRI KRISHAN
DUTT, LECTURER (COLLEGE CADRE),
GOVERNMENT COLLEGE, SARKAGHAT,
DISTRICT MANDI, (H.P).
44. PARVESH SHARMA SON OF SHRI KRISHAN
DUTT, LECTURER (COLLEGE CADRE),
GOVERNMENT COLLEGE, BILASPUR,
DISTRICT BILASPUR, (H.P).
[
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45. RUCHI NARANG WIFE OF SHRI LABH SIGH,
LECTURER (COLLEGE CADRE),
GOVERNMENT COLLEGE, KARSOG,
DISTRICT MANDI, (H.P).
.
46. ASHOK SON OF SHRI OM PRAKASH,
LECTURER (COLLEGE CADRE),
GOVERNMENT COLLEGE, NIHRI, DISTRICT
MANDI, (H.P).
....PETITIONERS
(BY MR. K.D.SHREEDHAR, SENIOR ADVOCATE
WITH MS. SNEH BHIMTA, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH, THROUGH
PRINCIPAL SECRETARY (HIGHER
EDUCATION) TO THE GOVERNMENT OF
HIMACHAL PRADESH, SHIMLA-171002(H.P).
2. STATE OF HIMACHAL PRADESH, THROUGH
PRINCIPAL SECRETARY (FINANCE) TO THE
GOVERNMENT OF HIMACHAL PRADESH,
SHIMLA-171002 (H.P).
3. THE DIRECTOR OF HIGHER EDUCATION,
GOVERNMENT OF HIMACHAL PRADESH,
SHIMLA (HP).
4. H.P. PUBLIC SERVICE COMMISSION, NIGAM
VIHAR, SHIMLA (H.P).
....RESPONDENTS
(BY MR. SUDHIR BHATNAGAR AND MR.
NARENDER GULERIA, ADDITIONAL
ADVOCATE GENERALS WITH MR. SUNNY
DHATWALIA, ASSISTANT ADVOCATE
GENERAL FOR R-1 TO 3).
(MR. VIKRANT THAKUR, ADVOCATE FOR
R-4)
Whether approved for reporting? Yes.
This petition coming on for orders this day, the Court passed the
following:
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ORDER
Being aggrieved and dissatisfied with order dated 20.08.2016, issued by Higher Education Department, whereby order dated 14th July 2014 .
regularizing the petitioners and other similar situate persons against the posts of Assistant Professors (College Cadre), came to be withdrawn, petitioners have approached this Court in the instant proceedings filed under Article 226 of Constitution of India, praying therein for following reliefs:-
"(i) That the impugned order dated 20.08.2016(Annexure P-15) may kindly be quashed, set aside as null & void being illegal and contrary to the legal provisions as cited in the grounds of the original application.
(ii) That the orders of regularization dated 14.07.2012 & 28.07.2014 (Annexure A-10 & A-11) may kindly be reaffirmed/restored and accordingly, the applicants be regularized as Associate Professors (College Cadre) w.e.f.10.06.2014.
(iii) That the respondent-State may kindly be directed to allow the applicants to continue to receive the remuneration of regular Associate Professors (College Cadre) i.e. Rs. 15600-39100+6000(GP) per month."
2. For having bird's eye view, certain undisputed facts, which may be relevant for adjudication of the case are that vide memo No.PA-DE-4/95 CHB dated 17.04.1995, Education Department, Government of Himachal Pradesh framed the comprehensive policy for appointment of teachers on contract basis, which fact is evident from the correspondence made from the Office of Director Higher Education to the Principal of Government College, Reckong Peo dated 21.07.1995, whereby the latter is asked to fill up certain ::: Downloaded on - 19/09/2022 20:01:20 :::CIS 8 vacant posts of lecturers (College Cadre) on contract basis as per the terms and conditions/ procedure stated therein. The copy of the correspondence .
dated 21.07.1995 is annexed as Annexure A-1. As per the procedure provided for appointment of contract lecturers prescribed by the Government of Himachal Pradesh, intimation of vacancies of lecturers (College Cadre) was to be furnished by the Principal of the college concerned to the Director Higher Education, who further had to forward the same to the Joint/Additional Secretary (Education), Government of Himachal Pradesh. After approval from Government of Himachal Pradesh, number of vacancies were to be notified to the employment exchanges of the area concerned, enabling it to sponsor the name of the qualified candidates as per the Recruitment and Promotion Rules for regular lecturers or as per the Comprehensive Policy for appointment of contract teachers, which otherwise came to be amended from time to time in case of contractual lecturers. Interviews were to be conducted in order to select the qualified candidates as lecturers (College Cadre) on contract basis by a duly constituted selection committee, which included Principal of the college, senior lecturer of the subject concerned and the senior most lecturer of the college.
3. The comprehensive policy for contract appointment of teachers dated 17.04.1995 was subsequently amended vide letter dated 20.04.2001 (Annexure A-2), wherein condition for fresh interview after completion of two consecutive academic sessions was abolished and rest of provisions as contained in the policy dated 17.04.1995, remained the same. The Joint Secretary (Education)/ Additional Secretary (Education) to the Government of ::: Downloaded on - 19/09/2022 20:01:20 :::CIS 9 Himachal Pradesh sanctioned the approval for filling up of vacant posts of lecturers on contract basis time and again depending upon the additional .
requirement of the teaching staff in colleges vide memos/circulars dated 11.07.1997, 23.09.1998, 31.07.2000 & 24.07.2001 (Annexure A-3 colly).
While approval was being granted by the authorities mentioned in the policy, requisition for filling up the vacant posts was sent to the Himachal Pradesh Public Service Commission, wherein it was specifically stated that till the recommendations were received from the 'HPPSC' the posts were to be continued on contract basis. In continuation to the Office letter dated 11.07.1997 (Annexure A-3), Government of Himachal Pradesh vide letter dated 27.08.1997 (Annexure A-4) clarified that the educational qualification criteria for the lecturers (College Cadre) appointed on contract basis shall be as under:-
"M.A/M.SC/M.com with at least 55% marks in relevant subject. The NET or SET qualifications are not necessary for appointment of lecturer (College Cadre) on contract basis."
4. Petitioners herein after having gone through aforesaid selection process in terms of Comprehensive Policy for appointment of contract teachers were duly selected as lecturers (College Cadre). Selection letter issued in the case of one of the petitioner is placed on record (Annexure A-5) alongwith selection procedure. Record reveals that w.e.f.1996 to 2002 petitioners were appointed as lecturers (College Cadre) on contract basis for a period of one year(subject to renewal) in different subjects in various colleges of the Education Department of Government of Himachal Pradesh. Petitioners herein ::: Downloaded on - 19/09/2022 20:01:20 :::CIS 10 continued to work as lecturers on contract basis upto 2008, when the Government of Himachal Pradesh formulated a policy for regularization of .
contract lecturers (College Cadre) vide notification dated 9.09.2008. Vide aforesaid policy, Government of Himachal Pradesh decided to regularize those contract lecturers, who were working in the Department for the last eight years and were eligible as per the prevailing rules at the time of initial appointment. In terms of aforesaid policy, Government of Himachal Pradesh recommended the names of twenty eligible contract lecturers for being regularized vide correspondence dated 8.06.2009 (Annexure A-8). However, aforesaid notification issued by the Government came to be laid challenge before this Court by way of Civil Writ Petition No.2336 of 2009-E, titled as Anjana Thakur versus State of H.P & others. The Division Bench of this Court vide judgment dated 11.04.2013 (Annexure A-9) disposed of the petition with the observation that notification dated 9.09.2008 and further communication dated 8.06.2009 could not over-ride the rules framed under Article 309 of the Constitution.
However, while passing the aforesaid judgment Court observed in the concluding paragraph that the respondent-State was expected to make appointments and regularize the services of private respondents according to the Recruitment & Promotion Rules framed under Article 309 of the Constitution. The Government of Himachal Pradesh taking note of aforesaid observations made by Division Bench of this Court while passing order dated 11.04.2013 in Anjana Thakur's case and after consultation with the Law Department, issued notifications dated 14.07.2014 & 28.07.2014 (Annexures ::: Downloaded on - 19/09/2022 20:01:20 :::CIS 11 A-10 & A-11), regularizing the services of Assistant Professors (College Cadre) working on contract basis for a long period.
.
5. Since, petitioners herein were also working as Assistant Professors (College Cadre) on contract basis for long period, their services also came to be regularized alongwith 20 other private respondents in CWP No.2336 of 2009-E, (Anjana Thakur's case). Petitioners accepted regularization to the post of Assistant Professor (College Cadre) after fulfilling all the terms and conditions of regularization order and joined as such in the pay scale of Rs. 15600-39100 +6000 (GP) per month. Interestingly, after two years of issuance of notification dated 14.7.2014, respondent-State issued show cause notice to the petitioners as well as other Assistant Professors, who were regularized pursuant to notification dated 14.7.2014 to explain why regularization order passed in the case be not withdrawn. Show cause notice dated 18.04.2016 is placed on record as Annexure A-12.
6. Perusal of aforesaid show cause notice reveals that decision to withdraw the regularization order issued pursuant to notification dated 14.7.2014, came to be taken by the Government on account of filing of contempt petition No.307 of 2014, wherein petitioners alleged that petitioners as well as other similar situate persons have been wrongly regularized vide notification dated 14.07.2014, placing reliance upon the judgment passed by Division Bench of this Court in Anjana Thakur's case (supra). Though, petitioners replied to the show cause notice dated 9.05.2016 (Annexure A-14) stating therein that they have been rightly regularized against the post of Assistant Professor after their having rendered services on contract basis for ::: Downloaded on - 19/09/2022 20:01:20 :::CIS 12 more than eight years. They also claimed before the authority concerned that regularization order in terms of notification dated 14.07.2014 is not on account .
of passing of judgment dated 11.4.2013 passed by Division Bench of this Court in Anjana Thakur's case (supra), rather they have been regularized as per the policy decision taken by the Government to regularize those persons, who have rendered services on contract for long period. Besides above, petitioners also apprised authority concerned that since notification dated 14.07.2014 issued by the Government never came to be laid challenge in the competent court of law, same needs to be adhered to scrupulously. Petitioners also replied to the show cause notice that Court in exercise of contempt proceedings cannot decide a question of law or fact or cannot adjudicate upon the legality or validity of an order/notification, which was not the subject matter of the proceedings that stand concluded. However, fact remains that aforesaid reply was not paid any heed by the respondent, who vide order dated 18.8.2016 (Annexure A-15) withdrawn the regularization order of petitioners as well as other similar situate persons, but allowed them to continue as contract appointees (College Cadre) on the same terms and conditions as were applicable to them prior to their regularization. In the aforesaid background, petitioners have approached this court in the instant proceedings, praying therein for following reliefs, as have been reproduced hereinabove.
7. I have heard learned counsel representing the parties and gone through the record of the case.
8. Having heard learned counsel for the parties and perused the material available on record, especially reply filed on behalf of the respondent-
::: Downloaded on - 19/09/2022 20:01:20 :::CIS 13State, this Court finds that facts, as have been taken note hereinabove, are not in dispute, rather stands duly admitted by the respondents. It is not in dispute .
that initial appointment of the petitioners as Assistant Professor on contract basis was strictly in inconformity with the term and conditions contained in Comprehensive Policy framed by the respondent itself vide notification dated 17.4.1995 and further amended vide notification dated 21.7.1995 and 20.4.2001. According to Comprehensive Policy for contract appointment of teachers proposal was required to be sent by Principal of the College concerned for filling up the vacant posts of lecturers on contract basis and thereafter, department could appoint lecturer on contract basis after taking approval from the competent authority i.e. Additional Secretary(Education), Government of Himachal Pradesh.
9. As has been taken note hereinabove, education qualification criteria for the lecturers (College Cadre) appointed on contract basis was amended vide officer letter dated 11.7.1997, whereby persons having M.A/ M.Sc./M.Com with at least 55% marks in the relevant subject was declared to be entitled for applying to the post of Assistant Professor on contract basis.
Vide aforesaid decision, Government also decided that NET or SET qualification shall not be necessary for appointment of lecturers (College Cadre) on contract basis. It is none of the case of the respondent-State that petitioners and other similar situate person, whose services were regularized vide notification dated 14.07.2014 were not having requisite qualification, enabling them to be considered for regularization in terms of the policy of regularization framed by the Government from time to time.
::: Downloaded on - 19/09/2022 20:01:20 :::CIS 1410. True, it is that appointment to the post of lecturer (College Cadre) on regular basis is governed by Himachal Pradesh, Education Department, .
Lecturer College Cadre Class-I (Gazetted) Recruitment and Promotion Rules,1994, which were in force at the time of appointment of the applicants as lecturers (College Cadre) on contract basis (Annexure A-6), but as has been taken note hereinabove, respondent-State with a view to meet the shortage of lecturers in school itself framed Comprehensive Policy for appointment of contract teachers vide memo dated 17.4.1995, which subsequently came to be renewed on 21.7.1995 and 20.4.2021, wherein respondent Department itself clarified that NET or SET qualification is not necessary for appointment of lecturer (College Cadre) on contract basis.
11. In the year 2007, Government of Himachal Pradesh provided for the selection of lecturer (College Cadre) 100% by direct recruitment or on contract basis in the Himachal Pradesh Higher Education Department in terms of lecturer (College Cadre), Class-1 (Gazetted) Recruitment & Promotion Rules, 2007 (Annexure A-7), wherein education qualification for being appointed as a lecturer (College Cadre) through direct recruitment or on contract basis was the same i.e. 55% marks in Masters Degree in the relevant subject, however exemption from NET/SET qualification was accorded only to PHD/M.Phil degree holders.
12. On 28.08.2008, the Government of Himachal Pradesh advertised various vacant posts of lecturers (College Cadre) 100% on contract basis as per the R&P Rules 2007. Pursuant to aforesaid advertisement, several candidates were selected as lecturers (College Cadre) in 2009 on contract ::: Downloaded on - 19/09/2022 20:01:20 :::CIS 15 basis and their services were also regularized in the year 2015 & 16 i.e. after their having rendered service on contract basis for a period of five years.
.
Interestingly, petitioners, who were otherwise fully qualified having degree of P.hd/M.Phil before 2009 were not considered for regularization for the reason that they did not possess qualification as provided under Lecturer Government College, class-I (Gazetted) R&P Rules 1994, which were in force at the time of their appointment as lecturer (College Cadre) on contract basis, wherein admittedly NET/SET qualification was mandatory in order to appoint lecturer (College Cadre) on regular basis. However, as has been taken note hereinabove, respondent with view to meet shortage of lecturers itself formulated Comprehensive Policy for appointment of lecturer on contract basis and itself decided to relax the condition of NET/SET for appointment of lecturer on contract basis vide notification dated 27.8.1997 (Annexure A-4).
13. Having taken note of the fact that petitioners as well as other similar situate persons, who were appointed on contract basis in terms of the Comprehensive Policy framed by the Government for appointment of teachers on contract basis and they had rendered services on contract basis for more than 8 years, Government after having consulted with the Law Department itself decided to regularize the services of the petitioners and other similar situate persons in terms of the regularization policy framed by the Government from time to time. However, before such decision could be materialized, some of the aspirants seeking appointment against the post of Assistant Professor, approached this Court by way of Civil Writ Petition No.2336 of 2009, titled as Dr. Anjana Thakur and others versus State of H.P. and others, praying ::: Downloaded on - 19/09/2022 20:01:20 :::CIS 16 therein to quash the policy of regularization dated 9.09.2008 and communication dated 8.6.2009 and issue direction to the respondents to make .
all appointments to the post of Lecturer (College Cadre) in all subjects by following the Recruitment & Promotion Rules. In the aforesaid petition, 20 persons, who were likely to be regularized in terms of the policy decision taken by the Government, were also made party. However, Division Bench of this Court after having arrived at a conclusion that appointments of aforesaid 20 persons were not made observing the provisions of Articles of 14 and 16 of the Constitution, observed in the judgment that regularization policy dated 9.9.2008 appears to have not been issued in consonance to the settled position of law by Supreme Court in Umadevi's case. Division Bench of this Court also held that policy dated 9.9.2008 and subsequent communication dated 8.6.2009 are merely executive instructions and cannot over-ride the rules framed under Article 309 of the Constitution. Though, aforesaid policy decisions dated 9.9.2008 and subsequent communication dated 8.6.2009 never came to be quashed and set aside by the Division Bench of this Court, but Division Bench while parting observed that respondent-State is expected to make appointments and regularize the services of private respondents in consonance to the Recruitment and Promotion Rules framed under Article 309 of the Constitution. After one year of passing of aforesaid judgment by Division Bench of this Court, respondent-department vide notification dated 14th July, 2014 itself decided to regularize the services of Assistant Professor (College Cadre) working on contract basis in the pay scale of Rs. 15600-39100 +6000 (GP) per month w.e.f. 1st June, 2014 (Annexure A-10), as a consequence of which, ::: Downloaded on - 19/09/2022 20:01:20 :::CIS 17 petitioners herein and other similar situate persons, who were appointed on contract basis as Assistant Professors in terms of Comprehensive Policy for .
appointment on contract basis formulated /issued by the Government vide communication dated 17.4.1995, came to be regularized and since then they had been working against the aforesaid post in regular capacity. However, suddenly respondents realized that notification dated 14th July, 2014 regularizing the services of the petitioners and other similar situate person is not in consonance with judgment dated 11.4.2013 passed by Division Bench of this Court in Anjana Thakur's case (supra) and accordingly served show cause notice upon the persons, who were regularized in terms of aforesaid notification dated 14th July, 2014, to explain that why their regularization order be not withdrawn. If the show cause notice served upon the petitioners as well as other similar situate persons placed on record as Annexure A-12, is perused in its entirety, there appears to be no ground available for the Department to withdraw its earlier decision to regularize the services of petitioners and other similar situate persons. Rather it appears that Department after having received legal notice from some advocates that regularization dated 14th July2014 is in violation of judgment passed by Division Bench of this Court in Anjana Thakur's case (supra), hurriedly without there being application of mind decided to withdraw the aforesaid notification vide order dated 20th August, 2016 (Annexure A-15). Perusal of order dated 20th August, 2016 otherwise nowhere reveals cogent reasons, if any, for withdrawal of regularization order issued vide notification dated 14th July, 2014. In the aforesaid communication, respondents have simply stated that competent ::: Downloaded on - 19/09/2022 20:01:20 :::CIS 18 authority having carefully considered the entire matter came to be conclusion that regularization order need to be withdrawn.
.
14. Mr. Sudhir Bhatnagar, learned Additional Advocate General while justifying aforesaid action of the respondents vehemently argued that there was otherwise no occasion for the respondents to issue notification dated 14th July, 2014, regularizing the services of the petitioners and other similar situate person in terms of judgment dated 11.4.2013 passed by Division Bench of this Court in Anjana Thakur's case (supra) because in the aforesaid judgment no mandate was given to the respondents to regularize the services of the petitioners and other similar situate person, rather respondents were cautioned to make appointment and regularize the services of the private respondents in consonance to the Recruitment and Promotion Rules framed under Article 309 of the Constitution. However, having carefully perused judgment rendered by Division Bench of this Court (Annexure A-9), this Court finds that at no point of time Division Bench of this Court ever quashed the policy decisions dated 9.9.2008 and subsequent communication dated 8.6.2009, whereby Department itself decided to regularize the services of those persons, who had been working on contract basis as Assistant Professor for more than eight years, which decision otherwise was inconsonance with the policy of regularization framed by the Government of Himachal Pradesh from time to time. As has been taken note hereinabove, pursuant to aforesaid policy decision of regularization taken by the Government, many persons, who were also appointed on contract basis subsequent to the petitioners were regularized and as of today, they have become senior to the petitioners. No doubt, in the ::: Downloaded on - 19/09/2022 20:01:20 :::CIS 19 aforesaid judgment, Division Bench of this Court expected from respondent-
State to make appointment and regularize the services of private respondents .
in consonance to the Recruitment and Promotion Rules framed under Article 309 of the Constitution, but it nowhere commented or passed order, if any, with regard to legality and correctness of the policy dated 9.9.2008 and communication dated 8.6.2009, whereby respondent-State having taken note of the fact that all the petitioners and other similar situate persons were appointed on contract basis in terms of Comprehensive Policy framed by the Government to meet the shortage of lecturers in the year 1996 to 2001, coupled with the fact that all such persons had already served the Department in contractual capacity for more than eight years, decided to regularize their services. Besides above, respondents having realized that many of the candidates, appointed on contract basis may not have requisite qualification in terms of the Recruitment and Promotion Rules, 1994, itself provided relaxation in qualification and vide communication dated 28.7.1997 (Annexure A-4) relaxed the condition of NET/SET.
15. Material available on record reveals that the majority of petitioners apart from having requisite qualification of Master Degree are also having degree of P.hd/M.Phil ,as a consequence of which, they are otherwise exempted from requirement of NET/SET. There appears to be merit in the submissions of learned counsel for the petitioners that once policy dated
9..9.2008 and subsequent communication dated 8.6.2009 were not interfered with by the Division Bench of this Court while passing judgment dated 11.4.2013 in Anjana Thakur's case (supra), Government having taken note of ::: Downloaded on - 19/09/2022 20:01:20 :::CIS 20 long service rendered by petitioners and other similar situate persons and the legal opinion rendered by the legal department rightly decided to regularize the services of the petitioners vide communication dated 14th July, 2014, it cannot .
be permitted at this stage to claim that while issuing notification dated 14th July, 2014 respondent-State was not aware of the mandate given by the Division Bench of this Court in judgment dated 11.4.2013, which was further examined by the Law Department, as is evident from notification dated 14th July 2014 itself.
16. Leaving everything aside, this Court finds force in the submissions of learned counsel for the petitioners that once notification dated 14th July, 2014 never came to be laid challenge in any competent court of law and same has not been quashed till date by any court of law, there was otherwise no occasion for the respondent Department to withdraw the same that too after 1 ½ years of issuance of the same. At this stage, learned counsel representing the petitioners also appraised this court that though some contempt petition was filed alleging therein violation of judgment dated 11.4.2013, but same was disposed of as having rendered infructuous.
Otherwise also, there was no occasion for Court to ascertain the correctness and genuineness of the order passed, if any, in violation or compliance of judgment alleged to have been violated in the contempt proceedings, rather same could only be laid challenge by way of filing substantive writ petition, which in the case at hand never came to be filed. Otherwise also, as per Recruitment and Promotion Rules, 1994 for lecturer (College Cadre), candidates seeking appointment to the post of Assistant Professor is required ::: Downloaded on - 19/09/2022 20:01:20 :::CIS 21 to have Masters Degree with 55% with NET/SET, however, in case candidate possesses degree P.hd/M.Phil, he/she is not required to pass NET/SET. If .
Recruitment and Promotion Rules, especially framed for appointment of lecturers on contract basis in the year 2007 are perused juxtaposing Recruitment and Promotion Rules, 1994 for Lecturer Colleges, it clearly emerges that the qualification in the Rules are same, save and except exemption from NET/SET, provided to the persons seeking appointment on contract basis. As has been observed hereinabove, there is no dispute that all the petitioners as well as other similar situate persons were having requisite qualification to be appointed against the post in question, save and except NET/SET but since such qualification was itself exempted/relaxed by the Government vide notification dated 28.7.1997, respondents are estopped at this stage to deny benefit of regularisation to the petitioners on the ground that they do not possess requisite qualification in terms of Recruitment and Promotion Rules, 1994. Though, the facts and circumstances as detailed hereinabove, petitioners otherwise are entitled for regularization, but even otherwise petitioners after having rendered services for more than 8 years are eligible to be regularized against the post in question in terms of the policy of regularization framed by the Government from time to time.
17. Para-7 of the writ petition, wherein complete details with regard to qualification of the petitioners is given, clearly reveals that by now all the petitioners possess qualification as provided under Recruitment and Promotion Rules, 1994 or 2007 and as such, order dated 20.08.2016 issued by the respondent withdrawing the regularization vide notification dated 14th July, ::: Downloaded on - 19/09/2022 20:01:20 :::CIS 22 2014, regularizing the service of the petitioner is not sustainable in the eye of law. Moreover, petitioners herein were not at fault at any time, rather .
Department itself decided to regularize the services in terms of the regularization policy framed by the Government and after having enjoyed the fruit of regularization for one year, they cannot be left in lurch, especially when persons junior to them have become regular on account of regularization policies framed by the Government from time to time.
18. Once department itself decided to relax the condition of minimum qualification while giving appointment to the petitioners on contract basis it is estopped from denying the benefit of regularization on the ground of minimum education qualification. Hon'ble Apex Court in Bhagwati Prasad versus Delhi State Mineral Development Corporation, (1990) 1 SCC 361, while dealing with the case of regularization of daily rated employees working in the Delhi State Development Corporation for long period of time, has held that practical experience would always aid the person to effectively discharge the duties and is sure guide to assess the suitability. Most importantly, in the aforesaid judgment Hon'ble Apex Court has held that initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned with, but it is at the time of the initial entry into the service and once the appointments of the petitioners to the post concerned is strictly in terms of policy framed by the Government, thereby relaxing the condition of minimum qualification, it would be hard and hash at this stage to deny regularization to the petitioners against post in question that too on the ground that they do not ::: Downloaded on - 19/09/2022 20:01:20 :::CIS 23 possess the requisite qualification. It would be profitable to reproduce para No.6 of aforesaid judgment hereinbelow:
.
"6. The main controversy centres round the question whether some. Petitioners are possessed of the requisite qualifications to hold the posts so as to entitle them to be confirmed in the respective posts held by them. The indisputable facts are that the petitioners were appointed between the period 1983 and 1986 and ever since, they have been working and have gained sufficient experience in the actual discharge of duties attached to the posts held by them. Practical experience would always aid the person to effectively discharge the duties and is a sure guide to assess the suitability. The initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned with, but it is so at the time of the initial-entry into the service. Once the appointments were made as daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualifications. In our view, three years' experience, ignoring artificial break in service for short periods created by the respondent. In the circumstances, would be sufficient for confirmation. If there is a gap of more than three months between the period of termination and re-appointment that period may be excluded in the computation of the three years period. Since the petitioners before us satisfy the requirement of three years, service as calculated above, we direct that 4 0 of the senior-most workmen should be regularised with immediate effect and the remaining 118 petitioners should be regularised in a phased manner, before April 1, 1991 and promoted to the next higher post according to the standing orders. All the petitioners are entitled to equal pay at par with the persons appointed on regular basis to the similar post or discharge similar duties, and are entitled to the scale of pay and all allowances revised from time to time for the said posts. We further direct that 16 of the petitioners who are ousted from the service pending the writ petition should be reinstated immediately. Suitable promotional avenues should be created and the respondent should consider the eligible candidates for being promoted to such posts. The respondent is directed to deposit a sum of Rupees 10,000/- in the Registry of this Court within four weeks to meet the remuneration of the Industrial Tribunal. The writ petitions are accordingly allowed, but without costs."
19. Another judgment of the Supreme Court, which can be pertinently relied on the issue involved herein is the case of B.N. Saxena Versus New Delhi Municipal Committee and others, (1990) 4 Supreme Court Cases 205. The Supreme Court in that case held that the Senior Draughtsmen not possessing a Diploma, having six years' experience, ::: Downloaded on - 19/09/2022 20:01:20 :::CIS 24 qualified under the second alternative of the revised Rule should be treated qualified as experience gained is itself a qualification. In para-7 of the report, .
it was held by their Lordships as under:-
"7. The second limb of the rule was evidently to benefit all those persons who have gained sufficient experience as Senior and Junior Draftsmen without possessing any qualification. Experience gained for a considerable length of time is itself a qualification (See the observation in State of U.P. v. J.P. Chaurasia). It would be unreasonable to hold that in addition to this considerable experience, one must also have the diploma qualification prescribed under the first part. It could not have been the intention of the rule making authority that persons who were designated as Senior Draftsmen without any Diploma qualification should acquire such diploma qualification for further promotion. Such a view would not be consistent and coherent with the
- revised rule and its object. We have no doubt that the second limb of the revised rule is independent of the first. The High Court seems to have erred in this aspect of the matter.
20. The Hon'ble Supreme Court in Gujarat Agricultural University Versus Rathod Labhu Bechar and others, (2001)3 Supreme Court Cases 574, held that daily rate workers, who worked on the posts for a long number of years without complaint is a ground by itself for relaxation in eligibility conditions. Relevant observation made by their Lordships in para 28 of the report which reads as under:-
"28. We feel that daily-rate workers who have been working on the aforesaid posts for such a long number of years without complaint on these posts is a ground by itself for the relaxation of the aforesaid eligibility condition. It would not be appropriate to disqualify them on this ground for their absorption, hence Clause 1(a) need modification to this effect."
21. Since in the case at hand, all the petitioners have been performing duties of lecturers (School cadre) for more than two decades, they must have gained sufficient experience in teaching, coupled with the fact that ::: Downloaded on - 19/09/2022 20:01:20 :::CIS 25 with the afflux of time majority of petitioners have acquired qualification in terms of Recruitment and Promotion Rules, 1994. Otherwise also, case of the .
petitioners for regularization cannot be rejected on the ground that they do not possess qualification as per Recruitment and Promotion Rules, 1994, especially when they were appointed under comprehensive policy dated 17.04.1995, wherein Government itself with a view to meet shortage of teachers relaxed the condition of education qualification.
22. Consequently, in view of the detailed discussion made hereinabove as well as law taken into consideration, this Court finds merit in the present petition and accordingly same is allowed and order dated 20.8.2016 (Annexure A-15) is quashed and set-aside and notification dated 14th July, 2014 is upheld, consequences to follow. Pending applications, if any, also stands disposed of.
13th September, 2022 (Sandeep Sharma),
(shankar) Judge
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