Himachal Pradesh High Court
State Of H.P And Others vs Kamlesh Kumar And Others on 6 November, 2018
Bench: Surya Kant, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
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LPA No. 387/2012 alongwith LPA Nos.517, 518 of 2012, 11, 66, 70, 86, 98, 129 of 2013, 161, 195 of 2015 and 37 of 2017 Date of decision: October 30, 2018 (1) LPA No.387/2012 State of H.P and others ....Appellants Versus Kamlesh Kumar and others (2) LPA No.517/2012 to ....Respondents State of H.P and others ........Appellants Versus Chaman Lal Bali and others ....Respondents (3) LPA No.518/2012 State of H.P and others ........Appellants Versus Gulshan Rai Sharma and others ....Respondents (4) LPA No.11/2013 Rachna Saklani .......Appellant Versus Sate of H.P. and others ....Respondents (5) LPA No.66/2013 ::: Downloaded on - 06/11/2018 22:59:47 :::HCHP 2 State of H.P and others ........Appellants Versus .
Sanjogta Parmar ....Respondent (6) LPA No.70/2013 State of H.P and others ........Appellants Versus Ravi Palsra and another ....Respondents (7) LPA No.86/2013 State of H.P and others Versus ........Appellants Raj Kumar Parmar and another ....Respondents (8) LPA No.98/2013 State of H.P and others ........Appellants Versus Rohini Rana and another ....Respondents (9) LPA No.129/2013 State of H.P and others ........Appellants Versus Renu Kaul ....Respondent (10) LPA No.161/2015 State of H.P and others ........Appellants Versus Ved Parkash ....Respondent ::: Downloaded on - 06/11/2018 22:59:47 :::HCHP 3 (11) LPA No.195/2015 State of H.P and others ........Appellants . Versus Pooja and another ....Respondents (12) LPA No.37/2017 State of H.P and others ........Appellants Versus Leena Sharma and another ....Respondents Coram:
The Hon'ble Mr. Justice Surya Kant, Chief Justice.
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 Yes.
LPA No.387 of 2012For the appellants : Mr. Ashok Sharma, Advocate General with Mr. Adarsh Sharma, Addl. Advocate General.
For respondent No.1 : Mr. Onkar Jairath, Advocate For respondent No.2 : Mr. Neel Kamal Sharma, Advocate For respondent No.3 : None LPA Nos.517 and 518 of 2012 For the appellants : Mr. Ashok Sharma, Advocate General with Mr. Adarsh Sharma, Addl. Advocate General.
For respondent No.1 : Mr. Dilip Sharma, Sr. Advocate with Mr. Sanjeev Sharma, Advocate 1 Whether the reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 06/11/2018 22:59:47 :::HCHP 4For respondent No.2 : Mr. Neel Kamal Sharma, Advocate .
For respondent No.3 : None
LPA No.11 of 2013
For the appellant : Mr. Surinder Saklani, Advocate
For the respondents : Mr. Ashok Sharma, Advocate General
with Mr. Adarsh Sharma, Addl. Advocate General.
LPA Nos.66, 70, 98, 129 of 2013 & 161 of 2015 For the appellants : Mr. Ashok Sharma, Advocate General r with Mr. Adarsh Sharma, Addl. Advocate General For HPU/respondent : Mr. Neel Kamal Sharma, Advocate LPA No.86 of 2013 For the appellants : Mr. Ashok Sharma, Advocate General with Mr. Adarsh Sharma, Addl. Advocate General For respondent No.1 : Mr. Bhuvnesh Sharma, Advocate For HPU: : Mr. Neel Kamal Sharma, Advocate LPA No.195 of 2015 For the appellants : Mr. Ashok Sharma, Advocate General with Mr. Adarsh Sharma, Addl. Advocate General.
For respondent No.1 : Mr. K. D. Shreedhar, Sr. Advocate with Ms. Shreya Chauhan, Advocate For HPU: : Mr. Neel Kamal Sharma, Advocate ::: Downloaded on - 06/11/2018 22:59:47 :::HCHP 5 LPA No.37 of 2017 For the appellants : Mr. Ashok Sharma, Advocate General with Mr. Adarsh Sharma, Addl. Advocate .
General.
For respondent No.1 : Mr. Onkar Jairath, Advocate For HPU : Mr. Neel Kamal Sharma, Advocate Surya Kant, Chief Justice. (Oral) This order shall dispose of the above captioned intraCourt appeals which have arisen out of a common and same set of judgments rendered by the learned Single Judge(s), whereby writ petitions filed by the respondents (except in LPA No. 11 of 2013 titled as Rachna Saklani versus State of HP and others), have been allowed and the appellant State has been directed to take over the services of the respondents as Lecturers (College Cadre) in different subjects with effect from the date, the College in which they were working, were taken over by the State Government.
Respondents have also been held entitled to consequential benefits.
::: Downloaded on - 06/11/2018 22:59:47 :::HCHP 62. In order to appreciate the controversy, facts are being extracted from LPA No. 518 of 2012, titled as State of .
Himachal Pradesh versus Sh. Gulshan Rai Sharma and others.
3. The respondent offered his candidature for the post of Lecturer Chemistry (College Cadre) and he was interviewed by a Selection Committee on 1.9.1996. Having been selected, he was offered appointment on 2.9.1996. The appointment was approved by the Himachal Pradesh University, vide communication dated 29.11.1996 (Annexure A7 appended with the petition) in exercise of its powers under Ordinances 38.5 B (d).
4. Subsequently, the State of Himachal Pradesh issued a Notification on 14.9.2006, whereby it decided to take over DAV PG College Daulatpur Chowk, District Una, Himachal Pradesh, in which respondent was working as Lecturer on regular basis.
5. Vide a subsequent Notification dated 4.1.2007, services of Teaching and NonTeaching Staff of the above mentioned DAV College were taken over. Respondent, however, was denied the benefit of above stated Notification.
::: Downloaded on - 06/11/2018 22:59:47 :::HCHP 7He made representation but finding no favourable consideration, he approached the HP State Administrative .
Tribunal (hereinafter referred to as 'the Tribunal') by way of Original Application, which, on abolition of the Tribunal, was transferred to this Court and registered as CWP(T) No. 16148/2008.
6. The precise case of the respondent was that the denial of absorption in Government service to him amounted to artificial discrimination, which could not stand to the test of Articles 14 and 16 of the Constitution of India. Respondent relied upon Government Notification dated 25.8.1994, whereby the Government of Himachal Pradesh through Education Department had laid down the terms and conditions for taking over privately managed affiliated Colleges, alongwith Teaching and NonTeaching Staff.
7. The claim of the respondent, on the other hand, was opposed by the appellantState on the premise that he was being paid salary by DAV College, Daulatpur Chowk District Una from "Self Financing Scheme" hence his services should not be taken over. On behalf of the University, the stand taken ::: Downloaded on - 06/11/2018 22:59:47 :::HCHP 8 before the learned Single Judge was that it had accorded its approval to the appointment of the respondent on 29.11.1996.
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8. In the light of the above stated rival stands, the issue which fell for consideration before the learned Single Judge was whether the initial appointment of the respondent in DAV College Daulatpur Chowk was in accordance with law and if so, whether denial of absorption in Government service, after the said College was taken over by the State Government alongwith Teaching and NonTeaching Staff, amounted to subjecting the respondent with discriminatory treatment?
9. Learned Single Judge took note of the fact that respondent was initially appointed on ad hoc basis on 20.12.1988, before his regular appointment through a competitive selection process on 2.9.1996. His suitability was adjudged by a validly constituted Selection Committee comprising Chairman of the Managing Committee, nominee of the Director of Education, nominee of the Vice Chancellor of the University and a Subject Expert. The appointment of the respondent was duly approved by the University as per its ::: Downloaded on - 06/11/2018 22:59:47 :::HCHP 9 Ordinances. Since then the respondent was working on regular basis. Learned Single Judge further found that the claim of the .
respondent, so far as his absorption in Government service upon taking over the College by the State Government alongwith Teaching and NonTeaching Staff was concerned, was squarely covered in his favour, in terms of Government Notification dated 25.8.1994.
10. As regards the plea taken by the appellantState before the learned Single Judge, namely, that the respondent was not entitled to be taken in Government service as he was being paid salary by DAV College Daulatpur Chowk, District Una, from the funds privately generated by it and not out of the GrantinAid released by the Department of Education, learned Single Judge held and rightly so that the source of payment of salary could not be a valid ground for classification. It was further held that teachers, whether paid from GrantinAid or out of the Self Generated Income of the Managing Committee, constituted one homogeneous class and no artificial discrimination could be made amongst them. The ::: Downloaded on - 06/11/2018 22:59:47 :::HCHP 10 action was thus held violative of Articles 14 and 16 of the Constitution of India.
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11. The aggrieved State of Himachal Pradesh and its Education Department have preferred these intra Court appeals.
12. We have heard learned counsel for the parties at a considerable length and gone through the record.
13. Since both sides have pressed into aid some of the Clauses of the Government Notification dated 25.8.1994, it will be profitable to reproduce Preface of the Notification alogwith Clauses 7 and 10 of the same, which are to the following effect:
"Notification.
The Governor of Himachal Pradesh is pleased to frame following terms and conditions for taking over privately managed Colleges in the Pradesh (affiliated) including teaching and nonteaching staff: (1) to (6) ...........
7.The services of only qualified teaching and non teaching staff appointed one year earlier who fulfill, prescribed departmental recruitment and promotion rule conditions, prevalent at the time of ::: Downloaded on - 06/11/2018 22:59:47 :::HCHP 11 taking over will be considered for taking over subject to the approval of the State Public Service .
Commission or Departmental Screening Committee from the date of taking over. The services of the Principal will be taken over only as Senior most lecturer of the college concerned subject to the above mentioned proviso. The Government scales in respect of the respective categories shall be 10. r to permissible to them after the take over. (8) and (9).........
The Government may impose any other condition they may deem fit for the taking over of the college in the notification to be issued on the subject."
[Emphasis applied]
14. It goes without saying that the State Government had taken a conscious policy decision through the above stated Notification laying down terms and conditions for taking over privately managed Colleges, which are duly affiliated, alongwith Teaching and NonTeaching Staff. Clause (1) (a) stipulates that only those privately managed Colleges which are permanently affiliated to the Himachal Pradesh University, recognized by the Department of Education for ::: Downloaded on - 06/11/2018 22:59:47 :::HCHP 12 GrantinAid and which are having permanent affiliation from the University as well as as University Grants Commission .
(UGC) shall be considered for taking over. Other Clauses obligate the Managing Committee of the College to transfer all the moveable and immoveable assets in favour of the State as soon as a decision to take over such College is taken. The Notification contemplates a procedure to be followed by the Departmental Inspection Committee to ensure that the Staff, moveable and immoveable property, including buildings and play grounds are identified for the purpose of taking over. It is in continuity with these conditions that Clause 7 further provides that services of only qualified Teaching and Non Teaching Staff appointed one year earlier, who fulfill the eligibility conditions as prescribed under Departmental Recruitment and Promotion Rules, prevalent at the time of taking over, will be considered for taking over, subject to approval of the State Public Service Commission or Departmental Screening Committee etc. Clause (10) of the Notification is an omnibus Clause which empowers the State ::: Downloaded on - 06/11/2018 22:59:47 :::HCHP 13 Government to impose any other condition that it may deem fit for taking over the College.
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15. The issue thus, which requires determination is whether the appellants were competent to invoke Clause (10) and insist that only those members of the Teaching Staff shall be taken over, who were being paid salary from the Grantin Aid?
16. This issue has been rightly determined by the learned Single Judge in favour of the respondents/teachers, for the source of payment of salary is immaterial and inconsequential as far as the absorption of a regularly appointed teacher is concerned. What has to be seen is that the teacher concerned possesses requisite qualification at the time of his appointment; he was recruited through a transparent mode of recruitment; was appointed on regular basis and was being paid salary, as admissible to his counterparts in the Government service.
17. Having fulfilled all these conditions, it is beyond the reach of a teacher to ascertain as to whether the salary being paid to him was coming out from the GrantinAid or ::: Downloaded on - 06/11/2018 22:59:47 :::HCHP 14 from the funds generated by the Management. The condition imposed to this effect by the appellants has no rationale. It .
also defeats the very purpose of taking over a College as the exercise of powers under Notification dated 25.8.1994 (supra) is preceded with an assumption that the acquisition of a College is required in larger public interest. If such College is taken over, sans the Teaching and NonTeaching Staff, the very public purpose for which acquisition takes place, would stand defeated.
18. It is true that Clause (7) of the Notification dated 25.8.1994 contemplates that the members of the Teaching Staff must have been appointed one year earlier or that he/she fulfills prescribed Departmental Recruitment and Promotion Rules condition prevalent at the time of taking over the College. Nevertheless, we are of the considered view that question of eligibility has to be seen when the teacher was appointed, as per the qualifications prescribed when the post was advertised or Selection Committee was constituted.
Respondent was found eligible at the time when he applied for the post or appeared before the Selection Committee and the ::: Downloaded on - 06/11/2018 22:59:47 :::HCHP 15 University also approved his appointment on finding that at that relevant time he was possessing the requisite .
qualification. Subsequent change in the qualification, if any, cannot work to the disadvantage of the respondent as it would amount to introducing such revised/amended/changed qualification with retrospective effect.
19. Faced with this, learned Advocate General urges that since there were contentious issues involved with regard to the claim of the respondent(s) for their absorption in Government service on taking over the College, learned Single Judge ought not to have granted the consequential benefits or 9% interest (as awarded in some of the cases).
20. We find merit in this contention. Notification dated 25.8.1994 lays down general terms and conditions for taking over all privately managed Colleges alongwith Teaching and NonTeaching Staff. As there was grey area as to whether the respondents in these cases fulfill all the eligibility conditions, there arose necessity for adjudication of dispute by this Court. In such like situation, it appears that ends of justice would be adequately met by directing that though the ::: Downloaded on - 06/11/2018 22:59:47 :::HCHP 16 respondents will stand absorbed from the date when the College was taken over, however, such absorption will be on .
notional basis and they will be entitled to salary from the date of their actual appointment. In other words, respondents shall not be paid the arrears of salary from the date the College was taken over till a formal order of their absorption is passed hitherto within a period of two months from the date of receipt of copy of this judgment. They shall, however, be entitled to notional pay fixation without any interest or arrears, as awarded by the learned Single Judge.
21. Some of the respondents, who are continuing in service will also be entitled to notional pay fixation without any arrears of pay. The benefit of seniority, however, shall be admissible to all the respondents from the date of absorption.
22. The facts in LPA No. 11 of 2013 titled as Rachna Saklani versus State of HP and others, are slightly different.
Here the claim of the appellant for taking over her services in Maharaja Sansar Chand Memorial Degree College Thural, District Kangra, HP, as Lecturer in Sociology, has been turned down by the learned Single Judge on the premise that she was ::: Downloaded on - 06/11/2018 22:59:47 :::HCHP 17 not recruited through an open competitive selection process. In other words, post was not advertised, though it appears that a .
Selection Committee was constituted which found her suitable for such appointment.
23. We find that the reason assigned by the learned Single Judge is plausible and would not warrant any interference, for the selection as the appointment of appellant does not strictly meet with the requirement of Articles 14 and 16 of the Constitution of India. There are nevertheless some mitigating circumstances, namely, (i) that the appellant worked in the College for eight years or so and by now she might have become overage for Government service; (ii) she has been legitimately expecting for the outcome of these proceedings; and (iii) she relies upon certain instances where the Council of Ministers granted special relaxation and absorbed similarly placed persons. While no positive Mandamus can be issued to grant relaxation and for absorption of the appellant, it appears to us that owing to the peculiar facts and circumstances noticed above, her case requires sympathetic consideration by the State Government.
::: Downloaded on - 06/11/2018 22:59:47 :::HCHP 18It is clarified that in case, the competent authority decides to absorb the appellant in service, in that event, she will not be .
entitled to any arrears of pay or seniority or any other service benefits except from the date of her appointment. She will be treated as a fresh entrant in service.
24. Let the appropriate decision be taken within three months from the date of receipt of a copy of this judgment.
25. With the aforesaid observations, all the appeals stand disposed of alongwith pending applications, if any.
(Surya Kant), Chief Justice (Ajay Mohan Goel) Judge October 30, 2018 (cm Thakur ) ::: Downloaded on - 06/11/2018 22:59:47 :::HCHP