Himachal Pradesh High Court
Smt. Abida Parveen vs State Of Himachal Pradesh on 20 October, 2021
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
ON THE 20th DAY OF OCTOBER, 2021
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CIVIL WRIT PETITION No. 2045 OF 2019
Between:
1. SMT. ABIDA PARVEEN,
W/O SH. IMRAN KHAN,
R/O VILLAGE HARIPUR TOHANA,
P.O. SHIVPUR, TEHSIL PAONTA SAHIB,
DISTRICT SIRMOUR, H.P.
PRESENTLY WORKING AS
URDU TEACHER AT
GOVERNMENT SENIOR
SECONDARY SCHOOL BHAGANI,
DISTRICT SIRMOUR, H.P.
2. MISS SHIWANI PANWAR,
D/O SHRI NARENDER SINGH PANWAR,
VPO SHARIA, TEHSIL PACHHAD,
DISTRICT SIRMOUR, H.P.
PRESENTLY WORKING AS
URDU TEACHER AT
GOVERNMENT SENIOR
SECONDARY SCHOOL BHAGANI,
DISTRICT SIRMOUR, H.P.
....PETITIONERS
(BY MR. A.K. GUPTA
ADVOCATE)
AND
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2
1. STATE OF HIMACHAL PRADESH
.
THROUGH ITS PRINCIPAL SECRETARY
(EDUCATION) WITH HEADQUARTERS
AT SHIMLA-2
2. THE DIRECTOR OF ELEMENTARY
WITH HEADUARTERS AT SHIMLA, H.P.
3. THE DEPUTY DIRECTOR ELEMENTARY
EDUCATION WITH HEADQUARTERS
AT NAHAN, DISTRICT SIRMOUR, H.P.
(BY MR. DESH RAJ THAKUR,
ADDITIONAL ADVOCATE GENERAL,
r to
WITH MR. KAMAL KISHORE SHARMA,
....RESPONDENTS
DEPUTY ADVOCATE GENERAL)
Whether approved for reporting?. Yes.
This petition coming on for hearing this day, the Court passed the following:
ORDER
Government of Himachal Pradesh vide letter No. Shiksha-II (kha) 6-4/2000-loose, dated 19.10.2009 conveyed its decision to introduce Urdu Language as an optional subject for class 6th to 8th in hundred identified schools in the State of Himachal Pradesh. Besides above, it was also approved that candidates, who fulfill the qualification as per the R&P Rules notified by the government on 23.10.2009, be appointed as Urdu Teachers purely on period basis in the identified schools. Pursuant to ::: Downloaded on - 31/01/2022 23:12:37 :::CIS 3 aforesaid policy decision taken by the Government of Himachal Pradesh, .
petitioners along with other eligible candidates came to be appointed as Urdu Teacher on a fixed honorarium of Rs. 70/- per period and the number of periods were also increased to six weeks per class and as such, they were being paid honorarium Rs. 10,800/- per month. Vide communication dated 21.12.2018, Department of Education, Himachal Pradesh, conveyed the approval to bring the services of only qualified period based Panjabi and Urdu Teachers on the contract basis, strictly in accordance with the R&P Rules of each category. Since despite there being aforesaid policy decision taken by the Government of Himachal Pradesh, services of the petitioners were not converted on contract basis, they have approached this court in the instant proceedings filed under Article 226 of the Constitution of India, praying therein for following main relief:
"i) That the respondents may be ordered to bring the services of the petitioners on contract employment from the due date with all benefits incidental thereof."
2. Having heard learned counsel for the parties and perused pleadings adduced on record by the respective parties, especially reply filed by the State, this court finds that there is no dispute inter-se parties that petitioners were appointed as Urdu Teachers on period basis @ Rs.70/-
per period for teaching Urdu to the students of 6th to 8th class in the year, ::: Downloaded on - 31/01/2022 23:12:37 :::CIS 4 2012 as is evident from Annexure P-1. It is also not in dispute that since .
their initial engagement, vide order dated 20.12.2012, petitioners have been regularly rendering their services as Urdu Teacher on period basis in the identified schools. It is also not in dispute that vide communication dated 21.12.2018, government has conveyed approval to bring the services of qualified period based Panjabi and Urdu Teachers on the contract basis, strictly in accordance with the R&P Rules of each category.
3. The precise grouse of the petitioners, as has been raised in the instant petition, is that action of respondents-State in not converting their services from period basis to contract basis in terms of policy decision taken by the government on 21.12.2018 despite their having served the department for more than ten years, is not justifiable and as such, needs to be rectified in accordance with law. Respondents in their reply to the petition while admitting factum with regard to engagement of the petitioners on period basis have stated that in the year, 2015, Government of Himachal Pradesh has notified R&P Rules for the post of Urdu Teacher providing therein following essential qualifications :
"Essential qualifications:
i) B.A. with Urdu as an elective subject and 2-year Diploma in Elementary Education(by whatever name known).
OR BA with atleast 50% marks with Urdu as an elective subject and 1-year Bachelor in Education (B.Ed.) ::: Downloaded on - 31/01/2022 23:12:37 :::CIS 5 OR .
BA with at least 45% marks with Urdu as an elective subject and 1-year Bachelor in Education (B.Ed.) in accordance with the NCTE(Recognition Norms & Procedure) Regulations issued from time to time in this regard.
OR B.A. with at least 50% marks with Urdu as an elective subject and 1-year Bachelor in Education(B.Ed.) (Special Education).
OR B.T. with 50% marks followed by B.A. Examination (English and one additional subject) with 50% marks from a recognized University and 1- year Bachelor in Education (B.Ed.).
OR M.A. (Urdu) with at least 50% marks from a recognized university and 1- year Bachelor in Education(B.Ed.).
Note(1) :
(a) Adeeb-e-Kamil form Jamia Urdu Aligarh will be considered /equivalent to B.A. with Urdu.
(b) Moallim-e-Urdu from Jamia Urdu Aligarh will be considered /equivalent to B.Ed. for teaching Urdu.
AND
ii) Pass in Teacher Eligibility Test (TET Language Teacher) duly conducted by HP Board of School Education, Dharamshala.
Provided that the incumbents who have already qualified the Teacher Eligibility Test(TET) conducted by the H.P. Subordinate Services Selection Board, Hamirpur shall also be eligible subject to the condition as laid down in Para-11 of the guidelines issued by the National Council for Teacher Education vide Notification No.76-4/2010/NCTE/Acad. Dated 11.2.2011.
Since petitioners do not possess qualification as provided under the aforesaid R&P Rules framed vide notification No. EDN-B-B (2)-3/2013 dated 21.5.2015, services of the petitioners cannot be converted on contract basis from period basis. It has been further stated in the reply that since petitioners do not possess TET in Urdu, they cannot be said to have ::: Downloaded on - 31/01/2022 23:12:37 :::CIS 6 possessed requisite qualification as required under the R&P Rules of Urdu .
Teacher. It has been further stated in the reply that since petitioners possess +2/Giani qualification, their services cannot be converted into contract basis in terms of policy framed by the Government of Himachal Pradesh, but as and when they become qualified, their case for conversion from period basis to contract basis shall be considered.
4. Mr. A.K. Gupta, learned counsel for the petitioners, vehemently argued that qualification, as prescribed under the R&P Rules framed in the year, 2015 cannot be made applicable in the case of the petitioners as they stood appointed as Urdu Teacher prior to promulgation of R&P Rules, which make it obligatory on the incumbent to pass TET. Mr. Gupta while inviting attention of this Court to the judgment dated 23.6.2021, passed by the Coordinate Bench of this Court in CWP No. 3047 of 2020, titled Jagdish Kumar and others v. State of Himachal Pradesh and Ors, submitted that in similar facts and circumstances, Coordinate Bench of this Court while placing reliance upon judgment passed by this Court in Bhagwati Prasad v. Delhi State Mineral Development Corporation, AIR 1990 SC 371, has categorically held that though minimum educational qualification prescribed in Recruitment and Promotion Rules is not applicable to the petitioners, but otherwise also, same is to be ::: Downloaded on - 31/01/2022 23:12:37 :::CIS 7 considered at the time of initial entry to the service. Once appointments .
were made on the basis of qualification possessed by the candidate at a particular time, it would be hard and harsh to deny them/petitioners the confirmation on the ground that they lack education qualification.
5. Mr. Desh Raj Thakur, learned Additional Advocate General while supporting the action of the respondent-State vehemently argued that since it stood specifically mentioned in letter dated 21.12.2018 (P-2), whereby decision was taken to convert the services of the period based Panjabi/Urdu Teacher on contract basis that services of only qualified period based teacher shall be converted on contract basis in accordance with the provision on R&P Rules of each category, petitioners cannot claim regularization merely on the basis of their initial induction made in the year, 2012 pursuant to decision taken by the Government of Himachal Pradesh to appoint the Urdu Teachers on period basis in the identified school.
6. Before ascertaining the correctness and merit in the aforesaid submissions made on behalf of the parties to the lis, it would be apt to take note of the policy decision taken by the Government vide communication dated 21.12.2018, which reads as under:
::: Downloaded on - 31/01/2022 23:12:37 :::CIS 8"..........With reference to the Director of Elementary Education .
Himachal Pradesh, Shimla letter No. EDN-Ele-(III)-B (6) Misc/2009- 10-Punjabi/Urdu Dated 19-12-2018, on the subject cited above. It is to inform you that Govt. vide its letter No. EDN-BB(6)-2/2014 dated 19.12.2018 has conveyed approval to bring the services of only qualified period based Panjabi and Urdu Teachers on the contract basis, strictly in accordance with the provisions of the Recruitment and Promotion Rules of each category and after observing all the codal formalities/Instructions issued by the Government from time to time.
You are therefore requested to supply the services particulars in respect of Urdu and Punjabi teacher working in your institution of the enclosed prforma along with attested photocopy of required essential academic/Professional qualification certificates/Degrees and also Work and Conduct for the last three years immediately to this office."
7. Close scrutiny of aforesaid communication clearly reveals that Department of Elementary Education, Government of Himachal Pradesh pursuant to approval conveyed by the Government decided to bring the services of the qualified period based Panjabi and Urdu teachers on contract basis in accordance with the provisions of R&P Rules of each category after observing all the codal formalities /instructions framed by the Government from time to time. As per the respondents, petitioners are not qualified in terms of educational qualification prescribed under the R&P Rules promulgated in the year, 2015 vide notification dated 21.5.2015, which has been reproduced supra. No doubt, petitioners do not possess ::: Downloaded on - 31/01/2022 23:12:37 :::CIS 9 qualification as prescribed in the aforesaid R&P Rules, but question, which .
needs to be determined in the instant case, is whether at this stage, petitioners can be denied conversion of their services from period basis to contract on the ground that they do not possess the qualification as prescribed under the R&P Rules promulgated in the year, 2015. It is not in dispute that Government of Himachal Pradesh in the year, 2009, conveyed its decision to introduce Urdu Language as an optional subject for 6th to 8th class in 100 identified schools. While taking aforesaid decision, it was further approved by the government that candidates, who fulfill the qualification as per R&P Rules notified by the Government on 23.10.2009 shall be appointed as Urdu Teachers purely on period basis in the identified schools. Pursuant to aforesaid decision taken by the government, petitioners alongwith other similarly situate persons were appointed as Urdu Teacher on fixed honorarium of Rs. 70/- per period, meaning thereby, in the year, 2012, petitioners were offered appointment against the post of Urdu Teacher on the period basis as per R&P Rules notified by government on 23.10.2009, wherein admittedly essential educational qualification as prescribed in subsequent R&P Rules promulgated in the year, 2015 was not provided. Since initial induction of the petitioners as Urdu Teachers on period basis is in terms of R&P Rules notified by the government on ::: Downloaded on - 31/01/2022 23:12:37 :::CIS 10 23.10.2009 and since then, they have been regularly teaching the students .
of class 6th to 8th in identified school, action of the respondent State to not to convert their services from period basis to contract basis is highly unjustifiable and cannot be allowed to sustain.
8. Mr. Desh Raj Thakur, learned Additional Advocate General representing the respondents-State has not been able to dispute that as per R&P Rules notified by the Government on 23.10.2009, person having qualification 10+2 /Giani could be appointed as Urdu Teacher on period basis and as such, it cannot be concluded at this stage that initial induction of the petitioners as Urdu Teacher on period basis is dehors the rules, rather they at the time of their appointment were given appointment strictly in terms of R&P Rules notified by the government vide communication dated 23.10.209.
9. During the proceedings of the case, learned Additional Advocate General made available R&P Rules notified by the Government on 23.10.2009, perusal whereof reveals that candidate aspiring to be appointed as Urdu Teacher should have passed BA honors BT/BEd or Masters in Urdu. Though careful perusal of R&P Rules notified vide communication dated 23.10.2009 suggests that a candidate aspiring to be appointed against the post of Urdu Teacher on period basis ought to have ::: Downloaded on - 31/01/2022 23:12:37 :::CIS 11 passed BA Arts or Masters in Urdu, but since respondents themselves .
ignoring the conditions of qualification as provided under R&P Rules notified vide communication dated 23.10.2009, gave appointment to the petitioners as Urdu Teacher on period basis @ Rs. 150/- per period, they, at this stage, cannot be permitted to claim that initial appointment of the petitioners as Urdu Teachers on period basis is dehors the rules. It appears that department of Education, Himachal Pradesh, after having taken decision to introduce Urdu language as an optional subject for class 6th to 8th students in 100 identified schools in the year, 2009, appointed Urdu teacher on period basis without strictly pressing for the education qualification prescribed in the R&P Rules notified by the government on 23.10.2009. For approximately more than 10 years, respondents permitted the petitioners to render their services as Urdu Teacher on period basis without insisting upon them to improve their qualification, but when they demanded for conversion of their service from period basis to contract in terms of policy decision taken by the Government of Himachal Pradesh vide communication dated 21.12.2018 P-2, respondent State took u-turn and denied the claim of the petitioners on the ground that they do not possess the requisite qualification as provided under the R&P Rules promulgated in the year, 2015. Once respondent department itself gave appointment to the ::: Downloaded on - 31/01/2022 23:12:37 :::CIS 12 petitioners as Urdu Teacher on period basis in the year 2012, they cannot .
be permitted at this stage to raise the issue of requisite qualification not possessed by the petitioners, who otherwise till date, are teaching students of 6th to 8th class in government institutions.
10. Hon'ble apex Court in case titled Bhagwati Prasad case supra, has categorically held that regularization/confirmation to a particular incumbent cannot be denied on the basis of his/her having not possessed the requisite qualification. In the aforesaid judgment, Hon'ble Apex court has held that though 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.
Relevant para of the aforesaid judgment reads as under:
"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 be tween 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 period/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 ::: Downloaded on - 31/01/2022 23:12:37 :::CIS 13 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 40 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 Rs. 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.
11. Consequently, in view of the detailed discussion made herein above as well as law laid down by the Hon'ble Apex Court, present petition is allowed and respondents are directed to convert the services of the petitioners from daily period basis to contract in terms of communication dated 21.12.2018, from the due date. Having taken note of the fact that petitioners are serving the department for more than ten years, this court hopes and trusts that needful shall be done by the respondents expeditiously, preferably within a period of six weeks from today. In the aforesaid terms, present petition is disposed of alongwith pending applications, if any.
20th October, 2021 (Sandeep Sharma),
(manjit) Judge
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