Himachal Pradesh High Court
Himachal Pradesh School Dpe Sang & ... vs State Of H.P. & Another on 1 December, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWPOA No. 3157 of 2019.
Date of Decision : 1.12.2022.
.
Himachal Pradesh School DPE Sang & another ...Petitioners.
Versus
State of H.P. & another ...Respondents
Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
r :
Whether approved for reporting?1 Yes.
For the petitioner Mr. Sanjeev Bhushan, Sr. Advocate
with Mr. Rajesh Kumar, Advocate.
For the respondents : Mr. Narinder Guleria, Additional
Advocate General with Ms. Svaneel
Jaswal, Deputy Advocate General.
Sandeep Sharma, Judge (Oral)
Himachal Pradesh School DPEs Sangh, through its President Lalit Chauhan approached the erstwhile H.P. State Administrative Tribunal by filing an O.A. No. 6396 of 2017, which now on account of abolition of the Tribunal, stands transferred to this Court and re-registered as CWPOA No. 3157 of 2019, praying therein for the following reliefs:
"i) That the directions may very kindly be issued to the respondents to frame the Recruitment and Promotion Rules after designating the applicants (DEE's) as Lecturer/PGT Physical Education and 1 Whether reporters of Local Papers may be allowed to see the judgment?::: Downloaded on - 03/12/2022 20:32:10 :::CIS -2-
further directions may very kindly be issued to the respondents to grant seniority to the members of the applicant's association as lecturer/PGT with .
effect from 2001, since when they have been performing the teaching duties at par with lecturers in the schools of State of Himachal Pradesh in the interest of law and justice.
ii) That directions may very kindly be issued to the respondents to adopt the Punjab Pattern with respect to the teachers of Physical Education and which has so been proposed by respondent No.3 as well, means a three tier structure be formed in the State of Himachal Pradesh in the interest of law and justice."
2. The facts, as emerge from the records are that the members of the aforesaid petitioner Sangh, who are working as DPEs in Senior Secondary Schools across the State are providing physical education to the students of Classes 10+1 and 10+2. In the year 2000, the Director Education vide communication, Annexure A-2, directed all the Principals of Government Senior Secondary Schools to adopt new scheme of curriculum/studies for Class 9th to Class 12th and as per scheme of curriculum two additional subjects came to be introduced i.e. Information Technology and Physical Education.
Physical Education came to be introduced, as above, to the students of 10+1 and 10+2 Classes. After introduction of new ::: Downloaded on - 03/12/2022 20:32:10 :::CIS -3- scheme of curriculum, as detailed above, DPEs working in Senior Secondary Schools started teaching the students of 10+1 .
and 10+2 Classes in various Senior Secondary Schools but since they were not being paid pay scale of Lecturers, who were already teaching Classes 10th and 10+1, in Senior Secondary Schools, they approached this Court by way of CWP No. 2114 of 2008, titled as Mukesh Manhas & others vs. State of H.P. & another, seeking therein directions to the respondents to give them pay scale of Lecturers i.e. 6400-10600/-. In the aforesaid petition, DPEs claimed that since they are also taking classes of 10th and 10+1, as are being taken by Lecturers of other subjects, they are also entitled to pay scale of Lecturers. A Coordinate Bench of this Court having taken note of notification dated 3.9.2001, issued by the National Council for Teacher Education (Determination of Minimum Qualifications for Recruitment of Teachers in Schools), Regulations, 2001, found all DPEs working the Senior Secondary Schools, entitled to the pay scale of Lecturers, as was being given to their counter parts i.e. Lecturers, teaching other subjects.
2. Vide judgment dated 3.11.2010, Coordinate Bench of this Court directed the respondents to grant pay scale of School Lecturers, to those Physical Education Teachers, who ::: Downloaded on - 03/12/2022 20:32:10 :::CIS -4- possess the minimum educational qualifications laid down by the NCTE and are teaching plus one and plus two classes in .
Senior Secondary Schools of the State. Apart from this, the Coordinate Bench of this Court also directed the respondents to grant pay scale of Lecturer to all the eligible teachers whether they were petitioners of the case or not w.ef. 1.6.2008.
3. Being aggrieved and dissatisfied with the aforesaid judgment, passed by learned Single Judge of this Court, respondent-State preferred LPA No. 380 of 2011, however, the same was dismissed vide judgment dated 20.9.2019. After passing of the aforesaid judgment in LPA, the Department of Education sought opinion from the Law Department with regard to implementation of the judgment, passed by learned Single Judge. The Law Department vide legal opinion dated 9.1.2013 advised the Administrative Department of Education Department that the judgment of the High Court dated 20.9.2012, whereby, judgment dated 3.11.2010, passed by learned Single Judge came to be upheld, is not fit to be challenged before Hon'ble Supreme Court.
4. Most importantly, the Law Department advised that since the DPEs are teaching subject of Physical Education, as an elective subject in Classes 10+1 and 10+2 and they are ::: Downloaded on - 03/12/2022 20:32:10 :::CIS -5- governed by the Recruitment & Promotion Rules, which contain pay scale of Rs. 5480-8925/- for Physical Education Teachers, .
therefore, in order to treat the petitioners at par with other Lecturers School Cadre, separate Recruitment & Promotion Rules are also required to be framed for them. It would be apt to take note of relevant extract of the aforesaid legal opinion:-
"For these reasons the judgment of the High Court dated 20.9.2012 is not fit to be challenged in the Hon'ble Supreme Court. However, since the DPE teaching subject of physical education as an elective subject in 10+1 and 10+2 are governed by the R&P Rules which contained the scale of Rs. 5480-8925 for Physical Education Teachers therefore in order to treat the petitioners at par with other lecturers in school cadre, separate recruitment and promotion rules are also required to be framed simultaneously while implementing the judgment of the Hon'ble High Court. The A.D. is therefore advised to take necessary action accordingly."
5. Though, in pursuance to aforesaid legal opinion rendered by the Law Department, Education Department, started giving pay scale of Lecturers to all the DPEs, who were teaching Classes 10+1 and 10+2 and were having requisite qualifications in terms of the NCET Guidelines but till date has failed to frame separate Recruitment & Promotion Rules, as a ::: Downloaded on - 03/12/2022 20:32:10 :::CIS -6- consequence of which, the DPEs teaching 10+1 and 10+2 are though getting pay scale of Lecturers but since this category is .
not included in the Recruitment & Promotion Rules of Lecturers, they are being not considered for promotion to the higher post. In nut-shell, the grouse of the petitioners as highlighted in the petition, and as has been further canvassed by Mr. Sanjeev Bhushan, learned Senior Advocate, representing the petitioners is that since pursuant to directions issued by this Court, the DPEs teaching 10+1 and 10+2 Classes are getting pay scale of Lecturers, separate Recruitment & Promotion Rules are required to be framed for this category, so that they also become eligible for promotion to the higher post.
6. Mr. Bhushan, submitted that till date Recruitment & Promotion Rules framed in the year 1973 for DPEs are being applied to govern the service conditions of the DPEs working in various schools. He submitted that since DPEs teaching 10+1 and 10+2 Classes are in receipt of pay scale of Lecturers, they cannot be governed by Recruitment & Promotion Rules of 1973, because in that situation, they shall be entitled to pay scale as prescribed under Recruitment & Promotion Rules, 1973, wherein DPEs are entitled to pay scale of Rs. 5480-8925, whereas DPEs teaching 10+1 and 10+2 Classes are now getting ::: Downloaded on - 03/12/2022 20:32:10 :::CIS -7- pay scale of Rs. 6400-10640/-, which has now been increased to Rs. 10300-34800 + 5400 as Grade pay.
.
7. Mr. Narender Guleria, learned Additional Advocate General, while repudiating the aforesaid submissions made on behalf of the petitioners contended that though the DPEs teaching 10+1 and 10+2 Classes are getting pay scale of Lecturers in terms of judgment passed by this Court but they continued to be governed by Recruitment & Promotion Rules framed for the category of DPEs. He further submitted that Recruitment & Promotion Rules framed for DPEs clearly reveal that DPEs can be further promoted to the post of Assistant Director and as such it cannot be said that on account of non framing of Recruitment & Promotion Rules for the category of DPEs, who are in receipt of pay scale of Lecturers, no further promotional avenues are available to them. He further submitted that apart from the above, benefit of Assured Career Progression Scheme is also available to them. Lastly, Mr. Guleria submitted that as of today, in pursuance to opinion rendered by the Law Department, matter is under active consideration of Administrative Department of Education Department for framing of Recruitment & Promotion Rules for ::: Downloaded on - 03/12/2022 20:32:10 :::CIS -8- the category of DPEs, who are in receipt of pay scale of Lecturers.
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8. Having heard learned counsel representing the parties and material available on record, this Court finds that the question which needs to be determined in the instant proceedings is "whether DPEs, who in pursuance to judgment dated 3.11.2010, which has attained finality, are in receipt of pay scale of Lecturers School Cadre, can be governed by Recruitment & Promotion Rules, 1973, separately framed for the DPEs, wherein pay scale of DPEs is admittedly lesser than the pay scale of Lecturers School Cadre." Apart from above, another question which needs determination is "whether respondent department can discriminate with two similarly situate persons/class i.e. DPEs and Lecturers, especially when it is not in dispute that both are teaching 10+1 and 10+2 Classes, may be in their respective subjects."
9. It is not in dispute that having taken note of guidelines framed by the NCERT, wherein regulations came to be laid for recruitment of Physical Education Teachers, the Coordinate Bench of this Court directed the respondent-State to pay scale of Lecturers to DPEs, who are teaching 10+1 and 10+2 Classes and having requisite qualifications for the post ::: Downloaded on - 03/12/2022 20:32:10 :::CIS -9- in question i.e. M.P.Ed two years. It is not in dispute that pursuant to aforesaid directions issued by this Court, .
Department of Education is paying pay scale of Lecturers to those DPEs, who are having qualification of M.P.Ed and teaching 10+1 and 10+2 Classes. Since DPEs regularly teaching 10+1 and 10+2 are in receipt of pay scale of Lecturers, Recruitment & Promotion rules need to be framed for this category because admittedly they cannot be governed by the Recruitment & Promotion Rules of 1973, whereas, admittedly pay scale of DPEs is much lesser than the pay scale of Lecturers. Though, it has been claimed on behalf of the respondent-State that there is promotional avenues available to the DPEs in Recruitment & Promotion Rules of 1973, however, perusal whereof reveals that DPEs at first instance would be promoted as ADPO, which is in the Grade Pay of Rs. 5000/-, whereas the DPEs teaching 10+2 classes are already in receipt of Grade Pay of Rs. 5400/- in pursuance to their being equated to the category of Lecturers teaching 10+1 and 10+2 Classes.
10. Though Mr. Narender Guleria, learned Additional Advocate General argued that the DPEs can be promoted to the post of Assistant Directors but there appears to be no such provision in the Rules of 1973. Since for all intents and ::: Downloaded on - 03/12/2022 20:32:10 :::CIS -10- purposes, DPEs teaching 10+1 and 10+2 Classes are equated with Lecturers teaching other subjects, DPE's teaching 10+1 .
and 10+2 Classes, are also required to be treated at par with the category of Lecturers for all intents and purposes i.e. pay scale and promotions. Education Department has framed Recruitment & Promotion Rules for School Lecturers, wherein provisions for Lecturers to the post of Principal/Assistant Director has been made, whereas in the case of DPEs, though they are getting pay scale of Lecturers but there is no promotional avenues on account of non-framing of separate Recruitment & Promotion Rules. Since on account of hierarchy of pay scale as has been noted herein above, category of DPEs, who are teaching 10+1 and 10+2 Classes, cannot be governed by 1973 Rules, as amended in the year 2020, State is required to frame separate rules for this category, so that promotional avenues become available to them. Since the Coordinate Bench of this Court while passing judgment dated 3.11.2010, which has attained finality, has held the category of DPEs, teaching 10+1 and 10+2 Classes, at par with Lecturers, teaching 10+1 and 10+2 Classes in School Cadre for all intents and purposes, DPEs are also entitled for promotion to the higher post like Lecturers School Cadre. While advising the Education ::: Downloaded on - 03/12/2022 20:32:10 :::CIS -11- Department in respect of implementation of the judgment passed by learned Single Judge, Law Department has .
categorically opined that separate Recruitment & Promotion Rules are required to be framed for this category but interestingly, more than nine years have passed but till date no steps have been taken by the Education Department either for framing of Recruitment & Promotion Rules for the category of DPEs or making amendments in the existing Rules. Though, it has been stated in the reply filed by the respondents that matter with regard to framing of the rules is pending consideration before the department but since for more than nine years, respondents have failed to take any decision, this Court has no option but to issue directions to the respondents to do the needful, as has been prayed in the instant petition.
Record reveals that though the Law Department had opined in the year 2013 but recommendation, at first instance by Director Higher Education was made on 5.4.2003 (Annexure A-4) to the Government of Himachal Pradesh but till date Government is sleeping over the matter, as a result of which, serious prejudice is being caused to the category of DPEs, who though are in receipt of pay scale of Lecturers but are not being granted promotions as are being granted to the category of Lecturers. It ::: Downloaded on - 03/12/2022 20:32:10 :::CIS -12- is not in dispute that Recruitment & Promotions Rules of DPE's getting pay scale of Lecturers are required to be framed as per .
qualifications prescribed by the NCERT Guidelines, which also provide qualifications for the category of Lecturers in other subjects. Since NCERT itself has equated both the categories while framing regulations, as taken note herein above, DPEs teaching 10+1 and 10+2 in Senior Secondary Schools are also entitled for promotion to the higher post but that can only be done after framing of recruitment and promotion rules.
Recruitment & Promotion Rules are required to be framed by the Government within reasonable time. It is a classic case where more than twenty years have passed and despite their being intervention of this court, no steps are being taken by the respondent department to do the needful and as such, prayer made in the instant petition deserves to be allowed.
11. Consequently, in view of the above observations, this Court find merits in the petition and the same is allowed.
Respondents are directed to frame Recruitment & Promotion Rules for the category of DPEs, who, on account of their teaching 10+1 and 10+2 classes are getting pay scale of Lecturer, expeditiously, preferably within a period of two months thereby redesignating them as Lecturers. Since the ::: Downloaded on - 03/12/2022 20:32:10 :::CIS -13- DPEs teaching 10+1 and 10+2 Classes are already in receipt of pay scale of Lecturers, hence there is no financial implications .
on account of framing of Recruitment & Promotion Rules and they shall be entitled for seniority from the respective date.
12. Accordingly, the petition is disposed of. Pending applications, if any, also stand disposed of.
1st December, 2022
(kck)
r to (Sandeep Sharma)
Judge
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