Himachal Pradesh High Court
State Of H.P. & Anr. vs . Ms. Meena Kumari. on 28 September, 2018
Bench: Dharam Chand Chaudhary, Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
LPA No. 4062 of 2013 along with connected matters.
Reserved on: 17.7.2018.
.
Decided on: 28.8.2018.
1. LPA No. 4062 of 2013.
State of H.P. & anr. Vs. Ms. Meena Kumari.
2. LPA No. 24 of 2015.
State of H.P. & anr. Vs. Nisha Kumari.
3. LPA No. 176 of 2015.
State of H.P. & anr. Vs. Shivani Sood & ors.
4. LPA No. 177 of 2015.
State of H.P. & anr. Vs. Joginder Pal & ors.
5. LPA No. 178 of 2015.
State of H.P & anr. Vs. Ms. Mamta Rani & ors.
6. Ex. Petition No. 11 of 2013.
Joginder Pal Vs. K. Sanjay Murthy & anr.
7. Ex. Petition No. 15 of 2013.
Ms. Mamta Rani & ors. Vs. K. Sanjay Murthy & anr.
8. Ex. Petition No. 24 of 2013.
Raman Patyal & ors. Vs. Rajiv Sharma.
9. Ex. Petition No. 4022 of 2013.
Veena Kumari Vs. State of H.P. & ors.
10. COPC No. 698 of 2012.
Seema Dod & anr. Vs. K. Sanjay Murthy & anr.
Coram
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting? Yes.
For the appellant(s)/ Mr. Ashok Sharma, Advocate General with Mr. Vikas
petitioners : Rathore and Mr. Narinder Guleria, Addl. AGs for the
appellants/State.
Mr. Dushyant Dadwal, Mr. C.N. Singh and Ms.
Archna Dutt, Advocates for the respective petitioners
in Ex. Petitions & COPC.
For the respondents: Sh. Sanjeev Bhushan, Sr. Advocate with Ms. Sunita
Sharma, Ms. Abhilasha Kanundal, Mr. Jagdish
Thakur, Mr. Karan Singh Kanwar, Mr. Sanjay
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2
Bhardwaj and Mr. D. Dadwal Advocates for the
respective respondents in LPAs, Ex. Petitions &
COPC.
.
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Justice Dharam Chand Chaudhary, J.
The present Letters Patent Appeal No. 4062 of 2013 and its connected appeals, Execution Petitions and COPC as aforesaid have either arisen out of the common judgment dated 21.8.2012, passed by learned Single Judge in a bunch of Writ Petitions, lead case whereof is CWP No. 11746 of 2011 titled Meena Kumari & ors. Vs. State of H.P. and another or out of the judgments in which the judgment rendered in Meena Kumari's case has been relied upon. While the present appeal and the connected one have been preferred against the judgment supra by the State of Himachal Pradesh (hereinafter referred to as appellant-respondent State), Execution Petitions and COPC have been filed by the original petitioners with a prayer to seek execution/implementation thereof and the judgments rendered while placing reliance thereon.
2. The twin issues are that the petitioners may be treated as JBT of 2002-2004 and 2003-2005 batch irrespective of they appeared in the examination along with 2008-2010 batch of JBT ::: Downloaded on - 28/09/2018 23:01:56 :::HCHP 3 and be appointed as JBT teachers without insisting upon the eligibility criteria laid down in the Right of Children to Free and .
Compulsory Education Act, 2009 (hereinafter referred to as RTE Act, in short).
3. In order to decide the fate of these matters, it is desirable to take note of the facts, in a nut shell. At Sarabai in District Kullu, H.P., an Institute, namely, Rameshwari Teachers Training exists. The petitioners sought admission to undergo two years Junior Basic Teacher (JBT) course from the said Institute during the academic session 2002-04 and 2003-05.
The petitioners were made to understand that the Institute was duly recognized by National Council for Teachers Education (in short "NCTE") from the academic session 2002-04 onwards.
They got themselves enrolled in the said Institute and started attending classes. On completion of the course, their examination was not conducted. The petitioners and other similarly situated students resorted to the remedies available to them against the Institute in accordance with law. They preferred numerous writ petitions in this Court and also in the Apex Court. In one of the petition for Special Leave to Appeal ::: Downloaded on - 28/09/2018 23:01:56 :::HCHP 4 (SLC) by one Bhawna Sharma, the Apex Court directed the respondents that said Bhawna Sharma may be allowed to .
undergo examinations to be held for the course in the year 2008.
Consequently, the petitioners who were amongst the students of academic session 2002-04 and 2003-05 of Rameshwari Teachers Training Institute were allowed to sit in the examination along with the batch of students belonging to 2008-10 batch.
Subsequently, on coming to know that the appellant-respondent State is likely to start process for recruitment of JBT teachers in the month of December, 2011, some of them enquired from the respondents as to whether they will be given the preference or priority of being the students of 2002-04 and 2003-05 batch of JBT course. However, there being no separate action on their representation(s) in this regard and to the contrary the respondent-State started the recruitment process of JBT teachers, separate writ petitions disposed of vide common judgment dated 21.8.2012 under challenge in these appeals came to be filed in this Court for a direction to the respondents to consider them of 2002-04 and 2003-05 JBT batch, while conducting counseling for recruitment against the post of JBT.
::: Downloaded on - 28/09/2018 23:01:56 :::HCHP 5Such relief has been sought on the grounds inter alia that they got themselves enrolled in the Institute during the academic .
sessions 2002-04 and 2003-05, respectively. Also that, except for their examination part, they even completed the two years JBT course during the said academic sessions. Their examination could not be conducted due to litigation between the Institute and the respondents as well as H.P. Board of School Education. It has, therefore, been claimed that the petitioners cannot be made to suffer for no fault on their part.
4. Response has not been filed by the appellant-
respondents in these Writ Petitions and to the contrary, the same came to be admitted for final hearing without there being any reply thereto on record. On two occasions, when the writ petitions came to be listed before learned Single Judge, neither respondents sought time for filing reply thereto nor any direction was issued to the parties for completion of the pleadings. On one date, learned Single Judge on having noted that reply(s) in these matters was not filed, granted opportunity to the respondents for the purpose. On the next date, without taking note of the fact that reply has not been filed, the matter was adjourned to ::: Downloaded on - 28/09/2018 23:01:56 :::HCHP 6 21.8.2012 when finally disposed of. Anyhow, the fact remains that the reply was not on record and learned Single Judge has .
proceeded to dispose of the same finally.
5. Learned Single Judge after having taken note of the pleadings that the petitioners are trained JBT of 2002-04 and 2003-05 batches and taking note of the fact that the rules for the post of JBT prescribing passing of Teachers Eligibility Test (TET) as one of the essential qualifications under the RTE Act have not been framed and rather the respondent-State had been pursuing the matter with Central Government for seeking dispensation/relaxation from the condition of passing TET and that at par the procedure being followed in the State of Haryana, the selected teachers in this State can also undergo the TET on or before 1.4.2015, has disposed of the writ petitions with the following observations:
"4. For filling up the post of JBT, it is not in dispute that government is employing persons, who have completed such JBT training course. However, such appointments are being made on batch-wise basis. Some of the petitioners undertook their training in the year 2002-2004 whereas others have undertaken their course in 2008-2010 batch. In the R&P Rules for the post of JBT, there is no requirement for clearing any Test (TET), as so stipulated in the Rules framed under under the Right of Children to Free and Compulsory Education Act, 2009. In fact State itself has not imposed any such condition.::: Downloaded on - 28/09/2018 23:01:56 :::HCHP 7
5. It is also seen that the State has been pursuing the matter with the Central Government seeking dispensation/relaxation of such criteria before filling up the .
posts of JBT. In fact, State of Haryana has issued a notification to the effect that appointments be given to the candidates, who have completed their training and TET can be undertaken by the successful candidates on or before 1st April, 2015. Now the State itself is in a position to take similar steps, which have been so taken by the Government of Haryana.
6. Independently, it be also observed that respondents themselves have been adopting a policy of pick and choose, with regard to certain similarly situated persons, who approached this Court by way of CWP No.2994 of 2008,titled as Avinash Chander Sharma and others versus State of H.P. and others, wherein vide judgment dated 3.6.2011, the following observations were made:
"Consequently, there will be a direction to r respondent No.1 to take a decision with regard to filling-up of the backlog of posts of JBT in entire State of Himachal Pradesh, in accordance with the Reservation Policy and also procedure prescribed under the Rules. It is the grievance of the petitioner that no requisition is being sent by the Government to the ex-servicemen Cell for sponsoring the names mentioned in their roles. All posts to be filled-up by ex-servicemen or their dependents are to be identified and notified accordingly. It is clarified that till such time this procedure is not complied with, no posts of JBT shall be filled-up. The process of identification of the posts in question, if required, shall positively be completed within a period of four months from the receipt of copy of this judgment. Only thereafter, process for selection and appointment shall take place, which in any even must complete within a reasonable period, in accordance with statutory rules, guidelines and instructions."
7. Significantly, while complying with such directions, respondents themselves have given appointment to the petitioners therein without insisting upon the condition of clearance of TET. Hence, this discriminatory approach cannot be allowed to be adopted by the Government in the case of the present petitioners. A uniform policy and approach has to be adopted qua all similarly situated persons. There cannot be any pick and choose. The actions of the State in the instant cases are thus arbitrary, whimsical and illegal.
::: Downloaded on - 28/09/2018 23:01:56 :::HCHP 88. As such these petitions are disposed of with a .
direction to the respondents-State to also consider the petitioners' case for appointment to the post of JBT, on batch- wise basis, in accordance with law and the policy so adopted by the state, while giving appointment to similarly situated persons, which is evident from Annexure P-7, filed in CWP No. 5933 of 2012. All consequential actions shall positively be taken within a period of two weeks from the date of production of certified copy of this order. Additionally, it shall be open for the petitioners to approach the respondents, clearly bringing out the steps which have been taken by four other States, while appointing similarly situated persons as teachers (JBT)."
6. The respondent-State aggrieved by the impugned judgment(s) passed by learned Single Judge in a bunch of petitions and separately also, while placing reliance thereon has questioned the legality and validity thereof before this Court on the grounds inter alia that irrespective of the main judgment (passed in bunch of writ petitions) was complied with by the respondents by considering the claim of the writ petitioners as directed of course rejected vide a reasoned order (Annexure A-III to the grounds of appeal) dated 12.9.2012 passed by the Secretary (Education) to the government of Himachal Pradesh, respondent-appellant No. 1, the writ petitioners have preferred ::: Downloaded on - 28/09/2018 23:01:56 :::HCHP 9 COPC (Contempt Petition) No. 696 of 2012 titled Mamta Rani vs. K. Sanjay Murthy and ors. which later on was converted into Ex.
.
Petition No. 15 of 2013 and also Ex. Petition No. 11 of 2013 for seeking a direction to implement the same. Also that this court vide judgment passed in CWP No. 7188 of 2010 titled Naresh Kumar & ors. Vs. State of H.P. had directed the respondents-
appellants to fill up posts of JBT teachers strictly as per R & P Rules. Even on implementation of RTE Act, 2009, the NCTE vide Notification dated 23.8.2010 issued under Section 23(1) of the RTE Act has prescribed the TET as minimum qualification for appointment of a teacher for classes I to V. The Act prescribing TET as an essential qualification for recruitment to the post of JBT teachers, it is the Ministry of Human Resources Development to the Government of Himachal Pradesh, the only agency to give any relaxation in qualification etc. The matter regarding appointment of JBT teachers without being TET as one of the qualification was taken up with the Ministry, however, rejected on 26.3.2012 and 29.6.2012. Learned Single Judge was duly apprised about such actual and factual position but of no avail because the same were not taken into consideration and to ::: Downloaded on - 28/09/2018 23:01:56 :::HCHP 10 the contrary passed the impugned judgment. The further complaint is that the impugned judgment is not only wrong, .
illegal and unreasonable but irrational also, hence not legally sustainable. Irrespective of impugned judgment complied with by considering the claim of the petitioners of course rejected vide a reasoned order Annexure A-III, there was no occasion to the writ petitioners to have initiated the contempt/execution proceedings in this Court. This has necessitated to challenge the impugned judgment by filing the present appeal. It is the further case of the appellants that TET is one of the essential qualifications for recruitment to the post of JBT teachers in the State as per the existing R & P Rules. The Ministry of Human Resource and Development is the only Authority to relax the educational qualification. The matter, however, has been rejected by the Ministry twice. On the other hand, by way of interim order passed by learned Single Judge in Ex. Petition Nos.
11 of 2013 and 15 of 2013, the respondents have been restrained from filling up any post of JBT without complying with the impugned judgment. It is due to the interim order so passed, the respondents are not in a position to fill up the vacant posts of ::: Downloaded on - 28/09/2018 23:01:56 :::HCHP 11 JBT despite having adequate number of qualified and trained teachers as per R & P rules now available in the State. It is .
under these circumstances, the respondents have approached this Court by filing the present appeals for quashing the impugned judgment.
7. Sh. Ashok Sharma, learned Advocate General assisted by S/Sh. Vikas Rathore and Narender Guleria, Addl. Advocate Generals, during the course of arguments has brought to our notice the order Annexure A-III to the appeal passed after consideration of the claim of the petitioner consequent upon the direction in the impugned judgment and also the factum of the R & P Rules prescribing TET as one of the essential qualification for recruitment to the post of JBT teachers notified on 23.8.2012 coupled with the factum of 1760 JBT trained candidates had qualified TET which is one of the essential qualification, hence, according to Mr. Sharma available for being appointed as JBTs against 1308 posts which as per the order Annexure A-III dated 12.9.2012 were lying vacant.
8. The submissions so made by learned Advocate General during the course of arguments though were not made before ::: Downloaded on - 28/09/2018 23:01:56 :::HCHP 12 learned Single Judge at the time of final disposal of the writ petitions vide the judgment under challenge, however, have been .
taken note of in this judgment for the completion of facts.
Learned Advocate General has placed reliance on the judgment of the Apex Court in State of Uttar Pradesh & ors. Etc. vs. Shiv Kumar Pathak & ors. Etc., Civil Appeal No.s. 4347- 4375 of 2014 and connected matters. He has also invited our attention to the judgment of this Court rendered by one of us (Justice Dharam Chand Chaudhary, J.) on 16.6.2012 in CWP No. 2725 of 2012 titled Anchal Sharma and ors. Vs. State of H.P. and another and that of Hon'ble Supreme Court in Society for Unaided Private Schools of Rajasthan vs. Union of India & another.(2012) 6 SCC 1 as well as the judgment dated 19.8.2011 again of this Court in CWP No. 7188 of 2010 titled Naresh Kumar & ors. Vs. State of H.P. & anr. While submitting that the impugned judgment is contrary to the law laid down in the judgments (supra), the same has been sought to be quashed and set aside. The resultant Execution/ Contempt proceedings initiated by the petitioners against the respondents-
appellants have also been sought to be quashed.
::: Downloaded on - 28/09/2018 23:01:56 :::HCHP 139. On the other hand, S/Sh. D. Dadwal, C.N.Singh, Subhash Sharma and Ms. Archna Dutt, Advocates, learned .
counsel representing the original petitioners in support of the impugned judgment have mainly relied upon the judgment of this Court in CWP No. 2994 of 2008 titled Avinash Chander Sharma & ors. Vs. State of H.P. decided on 3.6.2011. They have also pressed into service Annexure P-7 to one of the writ petitions CWP No. 5933 of 2012 decided vide the impugned judgment to say that the teachers (JBT) without having TET as one of the qualifications have been appointed and thereby the writ petitioners discriminated against the similarly situated persons.
10. On analyzing the rival submissions and the law laid down in various judicial pronouncements cited at the Bar and also the given facts and circumstances, the point in issue that needs consideration in these appeals is as to whether irrespective of the provisions contained under Section 23(1) of the RTE Act, which provides TET as one of the essential qualifications for appointment to the post of JBT were made applicable by NCTE vide Notification dated 23.8.2010 i.e. well before the impugned ::: Downloaded on - 28/09/2018 23:01:56 :::HCHP 14 judgment passed by learned Single Judge coupled with the factum of the respondents-appellants even have made provisions .
in R & P Rules prescribing thereby the TET as one of the essential qualifications for recruitment to a post of JBT, learned Single Judge could have directed the respondents-appellants or they themselves in compliance with the impugned judgment made the recruitment without insisting for the TET as one of the essential qualifications or not?
11. Before coming to answer the poser having arisen for our consideration, it is desirable to take note of the law laid down by the Hon'ble Apex Court in Society for Unaided Private Schools of Rajasthan vs. Union of India & another cited supra. As a matter of fact, in this judgment, the Apex Court has held the Constitutional validity of the Act and further that the same is applicable to each and every Educational Institution, including un-aided private schools. The extract of this judgment relevant for our purpose reads as follows:
"3. To say that "a thing is constitutional is not to say that it is desirable" [see Dennis v. United States, (1950) 341 US 494].
4. A fundamental principle for the interpretation of a written Constitution has been spelt out in R. v. Burah [reported in (1878) 5 I.A. 178] which reads as under:::: Downloaded on - 28/09/2018 23:01:56 :::HCHP 15
"The established Courts of Justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they can properly do so, is by looking to .
the terms of the Constitution by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted. If what has been done is legislation, within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited it is not for any Court to inquire further, or to enlarge constructively those conditions and restrictions".
5. Education is a process which engages many different actors : the one who provides education (the teacher, the owner of an educational institution, the parents), the one who receives education (the child, the pupil) and the one who is legally responsible for the one who receives education (the parents, the legal guardians, society and the State). These actors influence the right to education.
6. The 2009 Act makes the Right of Children to Free and Compulsory Education justiciable. The 2009 Act envisages that each child must have access to a neighbourhood school. The 2009 Act has been enacted keeping in mind the crucial role of Universal Elementary Education for strengthening the social fabric of democracy through provision of equal opportunities to all. The Directive Principles of State Policy enumerated in our Constitution lay down that the State shall provide free and compulsory education to all children upto the age of 14 years. The said Act provides for right (entitlement) of children to free and compulsory admission, attendance and completion of elementary education in a neighbourhood school.
7. The word "Free" in the long title to the 2009 Act stands for removal by the State of any financial barrier that prevents a child from completing 8 years of schooling. The word "Compulsory" in that title stands for compulsion on the State and the parental duty to send children to school. To protect and give effect to this right of the child to education as enshrined in Article 21 and Article 21Aof the Constitution, the Parliament has enacted the 2009 Act.
6. The 2009 Act received the assent of the President on 26.8.2009. It came into force w.e.f. 1.4.2010. The provisions of this Act are intended not only to guarantee right to free and compulsory education to children, but it also envisages imparting of quality education by providing required infrastructure and compliance of specified norms and standards in the schools. The Preamble states that the 2009 Act stands enacted inter alia to provide for free and compulsory education to all children of the age of 6 to 14 years. The said Act has been enacted to give effect to Article 21A of the Constitution."
12. The Apex Court in State of Uttar Pradesh & ors. Etc. vs. Shiv Kumar Pathak & ors. Etc., Civil Appeal Nos. 4347-4375 of 2014 ::: Downloaded on - 28/09/2018 23:01:56 :::HCHP 16 and its connected matters, while referring to Section 23 of the RTE Act and the notification dated 31.3.2010, has held as under:
.
"14...................However, education being the subject matter of concurrent list of the power to frame appropriate legislation/regulations/rules works with the appropriate legislature of the State Government and as such State Government is well within its right to prescribe the qualification of eligibility in the form that the candidates wanting to apply for the said post must necessarily qualify the Teachers Eligibility Test of said State. There would be no illegality in the same and merely because a state government had failed to conduct the State Teachers Eligibility Test (STET) in a given year would not amount to taking a decision not to hold the exams and to hold the candidates having qualified Central Teacher Eligibility Test as eligible.
15. Reliance was also placed on clarification dated 2nd September, 2016 by NCTE in reply to a question under the Right to Information Act, 2005 (at page no. 733 of the SLP paper book in SLP(Civil)No. 1121 of 2017) as follows:
"1. CTET/TET is an examination to qualify to become eligible for appointment as a teacher from classes I to VIII.
2. There is no binding to State/Central Government to select the candidate as a teacher basis on TET marks. TET is just eligibility for the appointment of teachers."
16. There is no manner of doubt that the NCTE, acting as an 'academic authority' under Section 23 of the RTE Act, under the Notification dated 31st March, 2010 issued by the Central Government as well as under Sections 12 and 12A of the NCTE 19 Act, was competent to issue Notifications dated 23rd August, ::: Downloaded on - 28/09/2018 23:01:56 :::HCHP 17 2010 and 11th February, 2011. The State Government was under obligation to act as per the said notifications and not to .
give effect to any contrary rule."
13. In Anchal Sharma's case cited supra decided on 16.6.2012 i.e. well before the impugned judgment one of us (Justice Dharam Chand Chaudhary, J.) has held as follows:
"13. It is seen from the provisions ibid that providing of TET as a minimum qualification for a person to be eligible for appointment as a teacher is to bring national standards and benchmark of teachers quality so that the standard of education can be further improved. Thus, there is a noble purpose behind prescribing TET as minimum qualification for appointment as a teacher. The RTE Act extends to whole of India except the State of Jammu & Kashmir and it has already come into force. Even the Rules notified vide Notification dated 23.8.2010 referred to hereinabove, have also been made applicable with effect from the date of Notification i.e. 23.8.2010. In such a situation, in case the respondents have failed to amend the existing Rules appropriately prescribing TET as one of the essential qualifications for appointment as JBT Teacher and to the contrary petitioners have been asked to furnish their bio data and also to appear in counselling on 27.12.2011 vide Annexure P-16, they cannot be allowed to take benefit of such a situation and claim appointment as a matter of right against the posts of JBT Teachers particularly when the RTE Act as well as the Rules framed thereunder providing for TET as an essential qualification for appointment as such had already come into being on the day of their counselling and as regards exemption from qualifying such test (TET)by the petitioners sought by the respondents from the Central Government was declined.
14. Although the petitioners have not specifically raised the plea of estoppel, yet the case that firstly they were sponsored to undergo Trained Teacher Certificate Course and subsequently were asked to furnish their bio data and also to appear for counselling for the post in question reveal that impliedly they have pressed into service the plea of estoppel against the respondents.
15. The plea so raised by the petitioners is not legally sustainable because inadvertently or owing to some other reasons, the petitioners who were simply asked to furnish their bio-data and also to appear in the counselling cannot claim appointment as a matter of right in view of the TET is prescribed as an essential qualification for appointment ::: Downloaded on - 28/09/2018 23:01:56 :::HCHP 18 as JBT Teacher under the RTE Act and the Rules framed thereunder. The RTE Act is a statute and as per the settled legal principles, no plea of estoppel can be raised against any provisions contained under .
the statute. In Rishabh Kumar & sons Vs. State of U.P. & Others, AIR 1987 SC 1576,,the Hon'ble Apex Court has held as under:-
"2. Having heard learned counsel for the appellant, we are satisfied that the view taken by the Full Bench decision is correct. We are equally satisfied that the representations either of the State Government or of the authorities under the Statute would not give rise to a situation of estoppel against the statute.
The law is clear and there are several decisions of this court which make the position abundantly certain that the estoppel is not available to be pleaded r against an Act."
16. To the similar effect is the ratio of the law on the subject laid down again by the Hon'ble Supreme Court in Dr. Ashok Kumar Maheshwari vs. State of U.P. & Another, (1998) 2 SCC, 502, which reads as follows:-
"20. The basic principle is that the plea of estoppel cannot be raised to defeat the provisions of a statute. (See : G.H.C. Ariff v. Jadunath Majumdar Bahadur, AIR 1931 PC 79; Mathra Parshad & Sons v. State of Punjab, AIR 1962 SC 745; Rishabh Kumar v. State of U.P. AIR 1987 SC 1576 : 1987 (Supp) SCC 306).
21. This principle was reiterated in Union of India v. R. C. D'Souza AIR 1987 SC 1172 : (1987) 2 SCC 211, where a retired army officer was recruited as Assistant Commandant on temporary basis and was called upon to exercise his option for regularisation contrary to the statutory rules. It was held that it would not amount to estoppel against the Department.
22. Whether a Promissory Estoppel, which is based on a "promise" contrary to law can be invoked has already been considered by this Court in Kasinka Trading v. Union of India, (1995) 1 SCC 274 : (1995 AIR SCW 680) as also in Shabi Construction Co. Ltd. v. City & Industrial Development Corporation (1995) 4 SCC 301 wherein it is laid down that the Rule of "promissory estoppel" cannot be invoked for the enforcement of a "promise" or a "declaration" which is contrary ::: Downloaded on - 28/09/2018 23:01:56 :::HCHP 19 to law or outside the authority or power of the Government or the person making that promise."
.
17. No doubt, vide communication dated 26.3.2012 (Annexure R-1) to the reply filed on behalf of the respondents, it is observed as under:-
"3. It is also observed that while the NCTE Notification, laying down the minimum teacher qualifications in pursuance of section 23 (1) of the RTE Act, was issued on 23rd August, 2010 and immediately thereafter circulated to the States, the State Government of Himachal Pradesh has, even after more than one and half year of the said Notification, not modified/ am ended its recruitment Rules."
However, the fact remains that the Rules have not been amended appropriately so far. The process to amend the same will be completed during the next month i.e. July 2012. The TET of all eligible candidates will also be conducted during the last week of next month as stated by learned Assistant Advocate General, on instructions from the District Attorney (Law Officer), who was present in the Court. Keeping in mind a very noble purpose, i.e. to improve the standard of education and bring national standards and benchmark of teachers quality behind prescribing TET an essential qualification for appointment as teacher under the guidelines quoted hereinabove, this Court is of the considered opinion that the petitioners can wait for another one month and sit in the TET along with other eligible candidates being conducted in the month of July 2012.
18. In a peculiar situation as discussed hereinabove coupled with the factum that the Central Govt. has declined the request made by the respondents for relaxing the condition of passing TET in the case of the petitioners and rather advised the State Government to incorporate suitable amendment in this behalf inthe Recruitment and Promotion Rules and to make appointment of the teachers thereafter strictly from amongst the candidates who have passed the TET with minimum prescribed standard, i.e. 50% or more marks, neither the petitioners are entitled to claim appointment as JBT teachers under the existing Rules at this stage, nor can it be said that the action on the part of the respondents in not extending offer of appointment to them, is illegal or arbitrary.
19. The law laid down by learned Single Judge of this Court in Om Parkash's case and Naresh Kumar's case cited supra is distinguishable on law as well as facts because in those cases the proposition was that in view of the change in Govt. Policy/Rules to make recruitment on contract basis, the petitioners can seek appointment on regular basis. It is in this backdrop, it was held that the appointment to a post is required to be made as per the Recruitment ::: Downloaded on - 28/09/2018 23:01:56 :::HCHP 20 and Promotion Rules. No such situation is, however, there in the present case, where the Central Act has already come into force and the Rules providing essential qualification for the post of JBT teacher .
have not only been framed thereunder, but made applicable also from 23.8.2010, was there in the cases decided by the learned Single Judge. Thus, the case law so cited on behalf of the petitioners is of no help to them being not attracted in this case.
21. Reliance on behalf of the petitioners has also been placed on the judgments of the Hon'ble Apex Court in A. K. Bhatnagar & Ors. vs. Union of India & Ors.(1991) 1 SCC 544 and Dr. Rajinder Singh vs. State of Punjab & Ors.(2001) 5 SCC 482. The ratio of the law laid down in these judgments is that the promotion to a post can only be made in accordance with Service Rules applicable to a post and not otherwise. There cannot be any quarrel to such a well settled legal proposition. However, in the peculiar facts and circumstances of this case discussed hereinabove coupled with the factum of the petitioners are not yet appointed as JBT teachers, the same is not attracted in the present case."
14. In the case in hand, the writ petitioners have only qualified the examination of JBT course whereas in Anchal Sharma's case supra, the writ petitioners had appeared in the interview and on failure of the respondents to issue appointment orders to them they approached this Court for a direction to consider them for appointment against the post of JBT teachers on the basis of their counseling held on 27.12.2011. The claim so laid by them was, however, declined for the reasons recorded in the judgment reproduce hereinabove while holding that on notifying the TET as essential qualification under the RTE Act by the NCTE vide Notification dated 23.8.2010, no person can be appointed as JBT without having TET as one of the essential qualification. It was rather emphasized that the respondents to ensure that the qualified JBT candidates to undergo TET test and also amend the rules providing therein the TET as one of the essential qualification for recruitment against the post of JBT teacher. It is ::: Downloaded on - 28/09/2018 23:01:56 :::HCHP 21 after this judgment not only the TET was conducted in the month of August, 2012 but 1760 candidates have qualified the test as finds recorded .
in the order Annexure A-III to the appeal. Not only this, but the amendment in the R & P Rules introducing the TET as one of the essential qualification for recruitment to the post of JBT teachers was also notified vide notification dated 23.8.2012 i.e. after the judgment passed in Anchal Sharma's case supra. This judgment has escaped the notice of learned Single Judge. Learned counsel representing the parties have also not brought the same to the notice of learned Single Judge.
r Had it been brought to the notice of learned Single Judge, the impugned judgment could have not been passed without considering the law laid down therein and in the event of any disagreement therewith referring the matter to Larger Bench as per the settled judicial norms. Reliance in this behalf can be placed on the judgment of Full Bench of this Court in Manju Bala vs. State of H.P. & ors, Latest HLJ 2012 (HP) (FB) 687. The relevant extract of this judgment reads as follows:
"10. The upshot of the above discussion is:
i) The Single Bench of the High Court is ordinarily bound by the decision of another Single Bench. In case it is found necessary in situations like the judgment being rendered per incuriam or subsilentio, the subsequent change in the legal position etc., the only course open to the learned Single Judge is to refer the matter to the Division Bench and not to render another judgment.
ii) A Single Bench is bound by the Division Bench judgment.
iii) When there are two Division Bench decisions, the binding decision ordinarily is the later in point of time unless the former is rendered on the basis of a binding Full Bench decision.
iv) However, in a situation of conflicting binding decisions on the same issue, the attention of the Chief Justice can be invited ::: Downloaded on - 28/09/2018 23:01:56 :::HCHP 22 so that the Chief Justice may, if required, constitute a larger Bench."
.
15. It is also significant to note that a Full Bench of this Court in State of H.P. & ors. Vs. Harbans Lal & ors. LPA No. 143 of 2013, decided vide judgment dated 21.9.2013, again the case pertaining to recruitment of teachers on batchwise basis in Education Department, while answering the reference that expression "batchwise" commences from the date a candidate qualifies the examination and not from the date on which he is admitted or the academic session commences has held as under:
"26. It is also settled principle of law that appointment made in violation of mandatory provisions of statute/rules and in particular, ignoring the minimum educational qualification and other essential qualifications would be illegal, which cannot be cured subsequently, by adopting a policy decision. (See: State of H.P. versus Suresh Kumar Verma and another,(1996) 7 SCC 562).
27. We are dealing with posts where successful candidates are teaching children, who need to be groomed and prepared to shoulder future responsibilities of the nation. Aspirations of the Constitution makers, in fulfilling and achieving Constitutional goals, more particularly Part-IV of the Constitution, can only be fulfilled if the duty holders discharge their functions, duties and obligations with devotion, care and dedication. This onerous responsibility cannot be left in the hands of unqualified and ineligible candidates."
16. In the judgment supra also, it is emphasized that any appointment made in violation of the statutory provisions and ignorance of the minimum educational qualification would be illegal, more particularly ::: Downloaded on - 28/09/2018 23:01:56 :::HCHP 23 when such appointments are of teachers who have to teach the children and also to groom them.
.
17. The question we framed at the outset has, therefore, to be answered in the light of the above legal principles and also the given facts and circumstances.
18. On the day when the impugned judgment was passed, the Apex Court has already held the Constitutional validity of RTE Act, 2009 by way of judicial pronouncement i.e. the judgment in Society for Unaided Private Schools of Rajasthan vs. Union of India & another cited supra.
Not only this, but the NCTE, an Agency under the Act to implement the provisions of the Act, vide notification dated 23.8.2010 had prescribed TET as one of the essential qualification for recruitment to the post of JBT teachers. True it is that on the day when the impugned judgment i.e. 21.8.2012 came to be passed, the appellants-respondents had not suitably amended the R & P Rules and had not prescribed TET as one of the essential qualification for recruitment to the post of JBT teachers.
However, the TET was prescribed as one of the essential qualification in R & P Rules within two days of the pronouncement of impugned judgment i.e. vide Notification dated 23.8.2012. The fact, therefore, remains that immediately after the impugned judgment was pronounced, the Rules also underwent change and the respondents might even have not received the certified copy of the judgment, however, well before it the same were notified. Being so, the appellants-respondents could have not implemented ::: Downloaded on - 28/09/2018 23:01:56 :::HCHP 24 the impugned judgment, that too when the Constitutional validity of the RTE Act, 2009 was already held legal and valid by the Hon'ble Apex Court .
and the judgment of this Court in Anchal Sharma's case had attained finality. Interestingly enough, at the time when Anchal Sharma's case (supra) was decided, the NCTE had also issued the notification under Section 23(1) of the RTE Act, 2009, prescribing thereby the TET as one of the essential qualification for recruitment of the teachers for Clas I to V. However, such qualification was not prescribed in the R & P Rules by the respondents-State. Even, no mechanism was there for conducting TET of the trained JBT candidates and the matter was under consideration of the respondent-State and the H.P. Board of School Education. It is, in this background, in Anchal Sharma's case, the relief i.e. a direction to the respondents to issue appointment letters to the petitioners was declined and to the contrary, the respondent-State was directed to conduct TET and also amend the rules in consonance with the provisions contained under the RTE Act, 2009. Consequently, as a result of the direction so issued in Anchal Sharma's case cited supra, the Board of School Education had conducted TET on 14.8.2012 i.e. well before the pronouncement of the impugned judgment and declared the result thereof on 29.8.2012 after a week from the date of the judgment which was pronounced on 21.8.2012.
Out of the 3793 candidates who appeared in the test, 1760 were declared successful, meaning thereby that within a week of the pronouncement of the impugned judgment, the rules prescribing TET as one of the essential qualification were notified and the candidate having TET as one of the ::: Downloaded on - 28/09/2018 23:01:56 :::HCHP 25 essential qualification in good number were also available for consideration against the vacant posts of JBT teachers.
.
19. Irrespective of the impugned judgment was not passed on taking into consideration the law laid down by this Court and TET prescribed as one of the essential qualification and the petitioners only having passed two years JBT training course on that day, were ordered to be appointed as JBT teachers only on being persuaded by the factum that TET was not prescribed in the rules as one of the essential qualification at that time and also that at par the arrangement in the State of Haryana qua qualifying the TET by the petitioners after their selection as JBT teachers on or before 1.4.2015. In view of the provisions under the RTE Act, 2009, were already notified by that time and in Anchal Sharma's case a contrary view was taken by this Court supported with reasons, the impugned judgment does not stand for the test of judicial scrutiny. While allowing the writ petitions, reliance was placed by learned Single Judge on the judgment of this Court in CWP No. 2994 of 2008, Avinash Chander Sharma & ors.
Vs. State of H.P. decided on 3.6.2011. The facts in that case were quite different because the complaint was that the respondents have not sent requisition to Ex-servicemen cell for getting the names of Ex-servicemen sponsored for appointment as JBT teachers. It is in this backdrop, a direction was issued to the respondents to send the requisition to Ex-
servicemen cell and get the name of Ex-servicemen sponsored and it is thereafter the process for selection and appointment to the post of JBT teachers was ordered to be made in accordance with the statutory rules, ::: Downloaded on - 28/09/2018 23:01:56 :::HCHP 26 guidelines and instructions. Therefore, in Avinash Chander's case also, a direction was issued to make appointment against the post of JBT teachers .
by considering the eligible Ex-servicemen, however, in accordance with statutory rules, guidelines and instructions. Otherwise also, as find recorded in the order annexure A-III, consequent upon the judgment in Avinash Chander Sharma's case (supra), the requisition was sent to Ex-
servicemen cell to recommend the names of eligible Ex-servicemen for recruitment against 122 backlog posts of JBT teachers meant for the category of Ex-servicemen. Against the 122 posts, only 5 eligible candidates were recommended and appointed also in December, 2011. The petitioners, as such, cannot be equated with the category of Ex-servicemen, hence, not similarly situated. Even if the 5 Ex-servicemen were appointed without insisting upon TET as one of the qualification, the petitioners could have not been treated similarly situated nor a direction issued to the respondents to appoint them as JBT teachers, that too when TET of qualified JBT candidates had already been conducted on 14.8.2012 i.e. a week prior to the pronouncement of the impugned judgment and even the result thereof was also declared a week thereafter i.e. on 29.8.2012 and 1760 candidates having successfully passed TET were available for appointment against the vacant posts of JBT teachers.
20. Now, if coming to the direction to appoint the petitioners as JBT teachers on batchwise basis in the same manner on which the so called similarly situated persons named in Annexure P-7 to CWP No. 5933 of 2012 titled Mamta Rani vs. State of H.P. & ors is concerned, Annexure P-7 on the ::: Downloaded on - 28/09/2018 23:01:56 :::HCHP 27 face of it is a photo copy of tabulated information. The same is not an original document nor has been attested to be the true copy of the original .
under the signatures of Authorized signatory. This document could have not been made the basis for issuance of a direction qua appointment of the petitioners as JBT teachers without there being any explanation as to how the persons named in the tabulated information were similarly situated to the petitioners. Otherwise also, illegality if any committed, should not be perpetuated and one cannot claim the benefit granted illegally on parity basis. r
21. Above all, consequent upon the direction of learned Single Judge to the respondent-State to consider the petitioners' case for appointment to the post of JBT teachers on batchwise basis, the first respondent has considered the same and has passed a speaking and reasoned order. In this order, not only the provisions contained under the RTE Act, 2009 but also the law laid down by the Apex Court including this Court as well as other High Courts has been taken into consideration. The inability of the respondent-Department to implement the impugned judgment in view of the notification under Section 23(1) of the RTE Act, 2009 prescribing the TET as one of the essential qualification for recruitment to the post of JBT teachers and on coming into force the amended R & P Rules providing such eligibility criteria is absolutely justified. It would thus not be improper to conclude that the petitioners without having qualified TET are not eligible for being considered and ::: Downloaded on - 28/09/2018 23:01:56 :::HCHP 28 appointed as JBT teachers in the State because qualifying the TET by a candidate is sine qua non for appointment as JBT teachers.
.
22. Now, if coming to the controversy that the petitioners have to be treated the students of JBT 2002-04 and 2003-05 batches, in view of the subsequent developments that during the pendency of these appeals the HP Board of School Education has already decided to treat them as the students of 2008-10 batch which is apparent from letter No. HSB/29/JBT/10+2(IV)/SP/2017-1109 dated 8.5.2017 placed on record during the course of hearing. Since the petitioners have appeared in the final examination of JBT courses along with the students studying in Government Institutions during the academic session 2008-10 and declared successful in the result in September, 2011, therefore, well before passing the examination, they cannot be assigned the batch of 2002-04 and 2003-
05. As noticed supra, the Full Bench of this Court in Harbans Lal's case (supra) while answering the question as to whether out of the two dates i.e. date of commencement of the academic year (session) and date of passing the final examination, which would be the relevant date to construe the expression "batch" has held that the expression "batch" is to be construed from the date a candidate qualifies the examination and not the date on which he is admitted to the course or the academic session commences.
Therefore, on this score also, the H.P. Board of School Education, has rightly taken a decision to treat the petitioners to be the students of 2008- 10 batch after the declaration of their result i.e. September, 2011 as find mention in the order Annexure A-3.
::: Downloaded on - 28/09/2018 23:01:56 :::HCHP 2923. In view of what has been said hereinabove and in view of the provisions contained under Section 23(1) of the RTE Act, 2009 and the .
Notification dated 23.8.2010 issued by NCTE prescribing thereby TET as essential qualification for appointment to the post of teachers from Class I to V, coupled with the factum of the respondent-State by way of amendment in the Rules has provided TET as one of the qualification for recruitment to the post of JBT teachers, we are not left with any other and further option except to quash and set aside the impugned judgment. The Apex Court in Roma Sonkar vs. Madhya Pradesh State Public Service Commission & anr., Civil Appeal No(s). 7400-7401/2018, arising from SLP © Nos.
27450-27451/2017, decided by a recent judgment dated 31.7.2018, i.e. after hearing arguments in these matters and before dictating the judgment has held that the Division Bench hearing the intra-Court appeal needs to consider the appeal(s) on merits by deciding on the correctness of the judgment of the learned Single Judge, instead of remitting the matter to the learned Single Judge. The relevant extract of this judgment reads as follows:
"3. We have very serious reservations whether the Division Bench in an intra court appeal could have remitted a writ petition in the matter of moulding the relief. It is the exercise of jurisdiction of the High Court under Article 226 of the Constitution of India. The learned Single Judge as well as the Division Bench exercised the same jurisdiction. Only to avoid inconvenience to the litigants, another tier of screening by the Division Bench is provided in terms of the power of the High Court but that does not mean that the Single Judge is subordinate to the Division Bench. Being a writ proceeding, the ::: Downloaded on - 28/09/2018 23:01:56 :::HCHP 30 Division Bench was called upon, in the intra court appeal, primarily and mostly to consider the correctness or otherwise of .
the view taken by the learned Single Judge. Hence, in our view, the Division Bench needs to consider the appeal(s) on merits by deciding on the correctness of the judgment of the learned Single Judge, instead or remitting the matter to the learned Single Judge."
The impugned judgment, as such, is quashed and set aside.
Consequently, all the writ petitions stand dismissed. The Contempt Petition and Ex. Petitions will also stand dismissed and disposed of finally. Show cause notice issued in the contempt petition is discharged and the proceedings dropped.
( Dharam Chand Chaudhary ), Judge.
August 28, 2018, ( Vivek Singh Thakur ),
Judge.
(karan-)
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