Himachal Pradesh High Court
Sanjay Mishra vs State Of H.P. & Ors on 13 December, 2019
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP Nos. 1919 and 2087 of 2018
Date of decision: 13.12.2019
.
CWP No. 1919 of 2018
Sanjay Mishra ...... Petitioner
Vs.
State of H.P. & Ors. ..... Respondents
CWP No. 2087 of 2018
Onkar Sharma & Ors. ......Petitioner
Vs.
State of H.P. & Ors. .....Respondents
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting?1. No.
For the petitioners : Mr. Prashant Sharma, Advocate, for
the petitioners in both the petitions.
For the respondents : Mr. Vinod Thakur, Addl. A.G. with Mr.
Narender Thakur and Ms. Divya
Sood, Dy. A.Gs. for the respondents-
State.
Mr. Neel Kamal Sharma, Advocate,
for respondent No. 3, in both the
petitions.
Mr. Surender Sharma, Advocate, for
respondents No. 4 to 8 in CWP No.
1919 of 2018.
Justice Tarlok Singh Chauhan, Judge (Oral)
Since common question of law and facts arise for consideration in both these petitions, therefore, they were taken 1 Whether the reporters of the local papers may be allowed to see the Judgment?
::: Downloaded on - 17/12/2019 20:26:13 :::HCHP 2up together for consideration and are being disposed of by way of a common judgment.
2. The petitioners have filed the present writ petitions .
seeking therein the following substantive reliefs:-
a) To pass an appropriate writ, order or direction declaring that the orders, direction, judgment dated 30th July, 2018 vide Annexure P-2 as violative of Article 16 and Article 301 of the Constitution of India.
b) To pass an order or direction to the State to strictly follow the norms and rules as mentioned in the Recruitment & Promotion Rule, 2012, dated 27th August, 2012, Notification No. EDN-C-A-9/2011 vide Annexure P-
1 and further to make batch wise appointments of Shashtri Teachers strictly according to the provisions mentioned in these R&P Rules.
c) To pass an order and direction to stay the effects of Judgment dated 30th July, 2018 vide Annexure P-2 during the pendency of this case or till further order.
3. The National council for Teachers' Education (NCTE) had framed Regulation, 2001 titled as "National council for Teachers Education (Determination of Minimum qualifications for Recruitment of Teachers in Schools)" to determine the minimum qualifications for recruitment of teachers to bring uniformity in educational qualification of teachers.
4. The Right of Children to Free and Compulsory Education Act, 2009 has been enforced all over the country w.e.f.
1st April, 2010. As per Section 23 of the Act, any person possessing such minimum qualification as laid down by the ::: Downloaded on - 17/12/2019 20:26:13 :::HCHP 3 academic authority authorized by the central government shall be eligible for appointment as a teacher. The academic authority of the Central Government that is NCTE has notified the minimum .
qualification on 23rd August, 2010.
5. Accordingly, in consonance with Right of Children to Free and Compulsory Education Act, 2009, the government of Himachal Pradesh vide notification No. EDN-C-A(3)2/2009-II, dated 17.05.2010 and subsequent amendments, notified Recruitment and Promotion Rules for to the post of Shastri/Sanskrit Teacher/Oriental Teacher (O.T.), Class-III, Non-Gazetted) in the Department of Elementary Education in the year 2012.
6. As per Recruitment & Promotion Rules, in force, the minimum educational and other qualifications required for recruitment as Shashtri are as under:-
(a) Essential Qualification "Shashtri with at least 50% marks from a University/Institution recognised by H.P. Government.
AND Pass in Teacher Eligibility Test (TET Shashtri) conducted by HPSSSB, Hamirpur.
OR Note: Relaxation upto 5% will be allowed in minimum educational qualification and also in minimum qualifying marks for TET to the candidates belonging to SC/ST/OBC/PH categories.
7. After seeking the approval of the State Government, the Department initiated the process of filling up the vacant posts of Shashtris in all the Districts of Himachal Pradesh in the year, 2016 as the post in question is District Cadre Post. However, there were some candidates, who had passed Shashtri degrees with ::: Downloaded on - 17/12/2019 20:26:13 :::HCHP 4 less than 50% marks (less than minimum percentage of marks required for Shashtri as per R & P Rules, in force) prior to coming into force the Right of Children to Free and Compulsory Education .
Act, 2009 and amendment of R & P Rules of Shashtri teachers in consonance with NCTE norms.
8. Such candidates/aspirants improved their percentage of marks in subsequent years that is after the amendment in the R & P Rules and some of the candidates thereafter filed OA No.
9.
r to 4836 of 2016, titled as Vinod Kumar Sharma and others vs. State of H.P. & others and connected matters.
Thereafter certain other cases were also filed which were then clubbed with the case of Vinod Kumar Sharma, wherein a direction was sought to consider the candidatures of these applicants for the post of Shastri on batch- wise basis by reckoning their degrees of Shashtris from the year of initial passing out and not from the year of improvement.
10. The learned Tribunal vide judgment dated 30.07.2018 (impugned herein) allowed these petitions by passing the following orders:
"...The original applications succeed partly and are allowed in part with a direction to respondents No. 1 to 4/competent authority(s) to consider the respective cases of the applicants for appointment as Shashtri on batch-wise basis in terms of the aforesaid Note by reckoning their batch "from the date of issuance of original certificate/degree of Shashtri", as expeditiously as possible, but in any case not later than forty-five ::: Downloaded on - 17/12/2019 20:26:13 :::HCHP 5 days from the respective dates of production of certified copies of this order before the said authority(s) by the applicants."
.
11. Aggrieved by the aforesaid judgment, the petitioners have filed the instant petition
12. No plausible ground to assail the judgment has been set forth. The learned counsel for the petitioners would simply argue that the batch should be reckoned from the date of improvement and not from the issuance of the original certificate.
13. However, we really find no merit in such contention. It would be noticed that the recruitment in question was initiated in all the districts only in the year, 2016 and prior to that the Himachal Pradesh Elementary Education Department, Shashtri/Sanskrit Teacher, Oriental Teacher, Class-III (non-
Gazetted) Recruitment and Promotion (First Amendment) Rules, 2012, had been already notified vide notification dated 27.08.2012 and the same reads as under:-
"Government of Himachal Pradesh Elementary Education Department (Education-C) No. EDN-C-A(3)9/2011, Dated: Shimla-171002, 27.08.2012 NOTIFICATION In exercise of the powers conferred by proviso to Article 309 of the Constitution of India, the Governor, Himachal Pradesh in consultation with the Himachal Pradesh Public Service Commission is pleased to make the following Rules further to amend the "Himachal Pradesh, Elementary Education Department, Shastri/Sanskrit ::: Downloaded on - 17/12/2019 20:26:13 :::HCHP 6 Teacher/Oriental Teacher, Class-III (Non-Gazetted) Recruitment and Promotion Rules, 2010 notified vide this Department notification Number EDN-C-A(3)2/2009-II dated 17.05.2010; namely:-
.
Short title and 1. (1) These rules may be called the Commencement "Himachal Pradesh, Elementary Education Department, Shashtri/Sanskrit Teacher/Oriental Teacher, Class-III (Non-Gazetted) Recruitment and Promotion (First amendment) Rules, 2012.
(2) These rules shall come into force from the date of publication in the Rajpatra, Himachal Pradesh.
Amendment of Annexure-A
2. In Annexure-A to the "Himachal Pradesh elementary Education Department, Shashtri/Sanskrit Teacher, Oriental Teacher, Class-III (Non-Gazetted) Recruitment and Promotion Rules, 2010,
(a) for the existing provisions against Col. No. 7, the following shall be substituted, namely:-
Essential Qualification:
(a) "Shashtri with at least 50% marks from a University/Institution recognized by H.P. Govt.
AND Pass in Teacher Eligibility Test (TET Shashtri) conducted by HPSSSB, Hamirpur.
Note:- Relaxation upto 5% will be allowed in minimum educational qualifications and also in minimum qualifying marks for TET to the candidates belonging to SC/ST/OBC/PH categories.
b) Desirable Qualification:
Knowledge of customs, manner and dialects of Himachal Pradesh and suitability for appointment in the peculiar conditions prevailing in the Pradesh," and for the existing provisions against col. No. 10, the following shall be substituted, namely:-::: Downloaded on - 17/12/2019 20:26:13 :::HCHP 7
"100% by direct recruitment on regular basis or by recruitment on contract basis in the following manner:-
(a) 50% by batch-wise on merit basis; and
(b) 50% through HPSSSB, Hamirpur.
.
The contract employees will get emoluments as given in Column No. 15-A and will be governed by service- conditions as specified in the said column.
Note:- For batch wise recruitment the batch would be reckoned from the date of issuance of original certificate/degree of Shashtri.
If more than one candidate has been issued the final examination certificate on the same date then the inter se seniority would be determined on the basis of TET (Shastri) merit and in the event of TET merit being same, senior in age would get precedence over junior in age.
By order
Secretary (Ele. Education) to the
Government of Himachal
Pradesh"
(emphasis
supplied)
14. For a better understanding of the import and purport of amendment, it would be necessary to refer to the un-amended provision contained in Column Nos. 7 and 10 of Annexure-A of the amended Rules, known as "Himachal Pradesh, Elementary Education Department, Shashtri/Sanskrit Teacher/Oriental Teacher, Class-III (Non-Gazetted) Recruitment and Promotion Rules, 2010", issued vide notification dated 17.05.2010, given as under:
"7. Minimum educational and other a) Essential qualifications required for direct Shashtri with at least 50% marks from a recruitment University/Institution recognized by HP govt.::: Downloaded on - 17/12/2019 20:26:13 :::HCHP 8
(\b) Desirable qualification Knowledge of customs, manners and dialects of Himachal Pradesh and suitability for appointment in peculiar conditions prevailing in the Pradesh.
.
10. Method of recruitment whether by 100% by direct recruitment on regular direct recruitment or by promotion, basis or by recruitment on contract basis deputation, transfer and the in the following manner:-
percentage of post(s) to be filled in a) 50% by batch-wise on merit basis.
by various methods b) 50% through HPSSSB, Hamirpur.
The contract employees will get emoluments as given in Column No. 15- A and will be governed by service conditions as specified in the said column.
15. A combined and harmonious reading of the first part of the note clearly goes to show that for batch-wise recruitment, in case a candidate has improved the score so as to acquire minimum essential educational that is Shashtri with at least 50% marks from University/institution recognised by the H.P. Government then "his batch would be reckoned from the date of issuance of original certificate/degree of Shashtri" so that his seniority for batch-wise recruitment is counted "from the date of issuance of the original certificate/degree of Shashtri".
16. Apart from above, the note appended with the 2012 amendment (as reproduced above) makes it absolutely clear that for batch-wise recruitment, the batch should be reckoned from the date of issuance of original certificate/degree of Shashtri.
17. Once that be so, then obviously no fault can be found with the order of the learned Tribunal whereby it directed the seniority for batch-wise appointment to be reckoned from the ::: Downloaded on - 17/12/2019 20:26:13 :::HCHP 9 date of issuance of original certificate/degree of Shashtri for all those candidates, who had prior to filling up of the vacancy on batch-wise appointment, more importantly, when this .
qualification admittedly had been improved prior to the decision taken for filling up of these vacancies on batch-wise.
18. The question whether candidate must have prescribed educational and other qualifications as on a particular date specified in the Rules or the advertisement is no longer res intergra. It is more than settled that cut off date by reference to which eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules and if there be no cut off date appointed by the rules then such date as may be appointed for the purpose in the advertisement calling for applications and that if there be no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications have been received by the competent authority.
19. Reference in this regard can conveniently be made to the judgment of the Hon'ble Supreme Court in Alka Ojha vs. Rajasthan Public Service Commission and Anr., AIR 2011 SCC 3547, wherein it was observed as under:-
"14. The question whether the candidate must have the prescribed educational and other qualifications as on the particular date specified in the Rule or the advertisement is no longer res intergra. In Bhupinderpal Singh vs. State of Punjab (2000) 5 SCC 262; (AIR 2000 SC 2011: 2000 AIR ::: Downloaded on - 17/12/2019 20:26:13 :::HCHP 10 SCW 1888), this Court referred to the earlier judgments in A.P. Public Service Commission vs. B. Sarat Chandra (1990) 2 SCC 669, District Collector and Chairman, Vizianagaram Social Welfare Residential School Society vs. M. Tripura .
Sundari Devi (1990) 3 SCC 655, M. V. Nair (Dr.) vs. Union of India (1993) 2 SCC 429:(1993) AIR SCW 1412), Rekha Chaturvedi vs. University of Rajasthan 1993 Supp. (3) SCC 168, U.P. Public Service Commission, U.P., Allahabad vs. Alpana (1994 AIR SCW 2861) (supra) and Ashok Kumar Sharma vs. Chander Shekhar (supra) and approved the following proposition laid down by the Punjab and Haryana High Court:
"..... that cut off date by reference to which eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules and if there be no cut off date appointed by the rules then such date as may be appointed for the purpose in the advertisement calling for applications and that if there be no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications have to be received by the competent authority."
20. Having said so, we find no merit in these petitions and the same are accordingly dismissed, so also pending application(s), if any.
(Tarlok Singh Chauhan), Judge (Chander Bhusan Barowalia) Judge Dated: 13.12.2019 (Sanjeev) ::: Downloaded on - 17/12/2019 20:26:13 :::HCHP