Himachal Pradesh High Court
State Of Himachal Pradesh And Others vs Sunita Pandey And Others on 13 October, 2020
Bench: Tarlok Singh Chauhan, Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 597 of 2019.
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Judgment reserved on: 08.10.2020.
Date of decision: 13.10.2020.
State of Himachal Pradesh and others .....Petitioners.
Versus Sunita Pandey and others .....Respondents.
Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?1 Yes For the Petitioners : Mr. Vikas Rathore, Mr. Vinod Thakur, Mr. Shiv Pal Manhans, Additional Advocate Generals, Ms. Seema Sharma, Mr. Bhupinder Thakur and Mr. Yudhbir Singh Thakur, Deputy Advocate Generals.
For the Respondents: Mr. Sanjeev Bhushan, Senior Advocate with Mr. Rajesh Kumar, Advocate.
(THROUGH VIDEO CONFERENCING) Tarlok Singh Chauhan, Judge This writ petition is directed against the order of the Himachal Pradesh Administrative Tribunal, Shimla (for 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 14/10/2020 20:19:08 :::HCHP 2 short 'Tribunal') dated 01.10.2018 whereby the petition filed by the respondents came to be allowed.
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2. The facts are not in dispute. The respondents were engaged as Para Lecturers in the year 2003 against the post of Psychology under the Para Teacher Policy 2003.
3. On 30.09.2010, the State Government declared the subjects of Psychology and Philosophy as dying cadre.
4. Thereafter, on 19.08.2011, the recruitment and promotion rules for the post of Post Graduate Teachers (PGTs) were amended and the subjects of Psychology, Home Science and Electronics were not included in these rules.
5. The State Government on 06.08.2013 issued instructions to take over the services of PTAs on contract basis and to regularize the services of Para Lecturers after completion of 10 years.
6. Accordingly, vide order dated 18.12.2014 the services of Para Lecturers, who had completed 10 years of service in different subjects were regularized except those who were engaged against the posts of PGT Psychology, Home Science and Electronics as these were declared as dying cadre posts.
::: Downloaded on - 14/10/2020 20:19:08 :::HCHP 37. On 03.01.2015, the State Government directed that the services of the Para Lecturers working on the posts .
of Psychology, Home Science and Electronics be regularized as Trained Graduate Teachers (TGTs) instead of PGTs and accordingly the respondents were regularized as TGTs on 19.01.2015.
8. The respondents assailed this action by filing CWP No. 1259/2015 before this Court, however, on the reopening of the Tribunal, the same was transferred to the Tribunal and assigned T.A. No. 21/2017 and contained the following prayers:
"(I) That an appropriate writ, order or directions may kindly be issued and clause-c of annexure P-2 may kindly be quashed and set aside in the interest of law and justice.
(II) That a writ in the nature of mandamus may kindly be issued and the respondents may kindly be directed to regularize the services of the petitioners as PGTs, Psychology by modifying annexure P-3. (III) That further a writ in the nature of mandamus may kindly be issued and the respondents may kindly be directed to pay scales of PGTs to the petitioners from the date such scale has been made available to the similarly situated persons w.e.f.
18.12.2014 with all consequential benefits by posting ::: Downloaded on - 14/10/2020 20:19:08 :::HCHP 4 the petitioners in the same schools/institutions where they were teaching and performing their duties."
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9. The Tribunal vide order dated 01.10.2018 allowed the petition and quashed clause-c of the notification dated 03.01.2015 and directed the petitioners to regularize the services of the respondents as PGTs on completion of 10 years of service with effect from 18.12.2014 along with all consequential benefits.
10. It is vehemently argued by the learned Additional Advocate General that the order passed by the Tribunal is not at all sustainable in the eyes of law as it has failed to take into consideration the instructions issued by the Government from time to time and further failed to take into consideration the fact that the entire matter of PTAs, PATs and Para Lecturers taking over their services on contract basis and regularization of their services is sub-
judice before the Hon'ble Supreme Court.
11. On the other hand, Shri Sanjeev Bhushan, Senior Advocate, assisted by Shri Rajesh Kumar, Advocate, for the respondents, would state now that the matter in Chander Mohan Negi's case stands decided by the Hon'ble Supreme Court, the petitioners cannot file this petition solely on the ::: Downloaded on - 14/10/2020 20:19:08 :::HCHP 5 basis of the self-serving instructions issued by them from time to time. Lastly, it was contended that one Ghanshayam .
Singh who was also not regularized as PGT being a Para-
Lecturer in the subject of Electronics (which was also declared dying cadre vide Annexure P-2 at page 38 of the TA No.21/2017) after the judgment passed in favour of the present respondents, filed a Civil Writ Petition bearing No. 2638/2019, however, during the pendency of his Civil Writ Petition which was tagged along with the present Writ Petition, respondents regularized his services as PGT vide an office order dated 4th July, 2020 with effect from 03.01.2015.
12. We have heard the learned counsel for the parties and have gone through the material placed on the record.
13. At the outset, it needs to be observed that the main plank of argument of the petitioners to resist the claim of the respondents was the pendency of Chander Mohan Negi's case before the Hon'ble Supreme Court which now stands decided vide judgment dated 17.04.2020. The Hon'ble Supreme Court dismissed the petitions that were preferred against the judgment rendered by a learned ::: Downloaded on - 14/10/2020 20:19:08 :::HCHP 6 Division Bench of this Court, of which one of us (Justice Tarlok Singh Chauhan) was a member, in batch of appeals, .
the lead being LPA No.504 of 2012 that was allowed on various grounds viz:
"5. Aggrieved by the order of the learned Single Judge dated 18.10.2012 passed in C.W.P. No.3303 of 2012-A, the affected/aggrieved parties, individual teachers, Association of Primary Assistant Teachers, and the State of Himachal Pradesh have filed Letters Patent Appeals. The said appeals were heard along with the writ petitions wherein appointment of teachers under the other two schemes, namely, Para Teachers Policy of 2003 and the Himachal Pradesh Gram Vidya Upasak Scheme of 2001 was under
challenge. By common impugned judgment dated 09.12.2014 Division Bench of High Court has allowed the Letters Patent Appeals by setting aside the order of the learned Single Judge and dismissed the writ petitions which were clubbed along with the Letters Patent Appeals. The Division Bench has allowed the Letters Patent Appeals on various grounds, viz.:
Though the appointments were made during the year 2001 and 2003, writ petitions were filed belatedly in the year 2012 and 2013 and the writ petitioners in C.W.P. No.3303 of 2012 were not even qualified when the appointments were made;::: Downloaded on - 14/10/2020 20:19:08 :::HCHP 7
No one has questioned the selection of teachers under the Schemes at the relevant .
point of time, writ petitions were filed after 11 years of their appointment and the writ petitioners have not filed any rejoinder controverting the plea of the State as stated in para 11 of the reply filed in the writ petition and the State had made such appointments by framing the policies when the qualified teachers were not available for making appointments, such appointments made under various schemes cannot be termed as illegal;
In view of the long service rendered by them it is always open for the State to regularise their services;
State has sufficiently explained giving the background of such appointments of the teachers in various categories and the material placed by the State disclosed that a large number of posts were vacant in the cadres of TGTs, C&Vs, PTAs etc.;
A large number of vacancies are still available as the writ petitioners have claimed interest such pleas cannot be entertained to treat the writ petitions as the public interest litigation and the appointees are not even made party respondents, and no material is placed to show that all the appointees are members of the ::: Downloaded on - 14/10/2020 20:19:08 :::HCHP 8 Association which was impleaded as the third respondent in the writ petition etc."
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14. Adverting to the other ground regarding judgment of the Tribunal being in violation by ignoring the relevant instructions, we would first notice the reasoning given by the Tribunal for allowing the petition which is contained in para-5 of the order which reads as under:
"5. However, the fact of the matter is that the Government has taken policy decision to regularise the service of Lecturers appointed under Para Teachers Policy 2003 as PGTs. Services of the Lecturers except subject to Psychology/Electronics/Home Science, have been regularised as PGTs. Instructions dated 18th December, 2014, Annexure P-1, did not stipulate any such deviation in regularizing the services in the subject of Psychology/Electronics/Home Science. The action of the respondents to regularise the services of the applicants as TGTs was arbitrary, discriminatory and is violative of articles 14 and 16 of the Constitution of India. Consequently, Clause (c) of Annexure P-2, dated 3rd January, 2015, is quashed and the respondents are directed to regularise the service of the applicants as PGTs on completion of 10 years service on and with effect from 18 th December, 2014 with all consequential benefits within two months on production of the certified copy of this order by the applicant."::: Downloaded on - 14/10/2020 20:19:08 :::HCHP 9
15. No illegality much less any perversity can be .
found in the reasoning accorded by the Tribunal. In addition thereto, it cannot be denied that Para Lecturers, who were appointed under the policy, constitutes a homogeneous class and, therefore, it was not permissible for the petitioners to divide a homogeneous class that too solely on the basis that the State had declared the subjects of Psychology, Electronics and Home Science as dying cadre.
The classification being not based on any discernible rational principle and being wholly unrelated to the objects sought to be achieved violates Article 14 of the Constitution. It is more than settled that a homogeneous class cannot be divided by arbitrarily fixing an eligibility criteria unrelated to the purpose.
16. Article 14 of the Constitution of India ensures to all equality before law and equal protection of laws. At this juncture, it is also necessary to examine the concept of valid classification. A valid classification is truly a valid discrimination. It is true that Article 16 of the Constitution of India permits a valid classification. However, the classification must be based on a just objective. The result ::: Downloaded on - 14/10/2020 20:19:08 :::HCHP 10 to be achieved by the just objective presupposes the choice of some for differential consideration/treatment over .
others. A classification to be valid must necessarily satisfy two tests. Firstly, the distinguishing rationale has to be based on a just objective and secondly, the choice of differentiating one set of persons from another, must have a reasonable nexus to the objective sought to be achieved.
The test for a valid classification may be summarised as a distinction based on a classification founded on an intelligible differentia, which has a rational relationship with the object sought to be achieved. The State cannot arbitrarily pick and choose from amongst similarly situated persons, a cut-off date for extension of benefits especially pensionary benefits. There has to be a classification founded on some rational principle when similarly situated class is differentiated for grant of any benefit.
17. The learned Additional Advocate General for the petitioners has failed to point out any intelligible differentia to exclude the respondents for not appointing them as PGTs and appointing them to a lower posts of TGTs.
18. Once, the petitioners themselves regularized the services of Ghanshayam Singh (supra) Para Lecturer as PGT ::: Downloaded on - 14/10/2020 20:19:08 :::HCHP 11 in the subject of Electronics, which too was a dying cadre, then the same benefit cannot be denied to the respondents .
or else it would be a case of invidious discrimination. The action of the petitioners making any distinction between the members of the same class that too without any rational basis is hit by the doctrine of invidious discrimination and amounts to gross arbitrariness and is thus not sustainable in the eyes of law.r
19. For the reasons stated above, we find no merit in this writ petition and the same is accordingly dismissed, so also the pending application(s), if any.
(Tarlok Singh Chauhan) Judge (Jyotsna Rewal Dua) 13 October, 2020.
th Judge (Krt) ::: Downloaded on - 14/10/2020 20:19:08 :::HCHP