Himachal Pradesh High Court
Mandeep Kumar And Ors vs State Of Himachal Pradesh And Ors on 24 November, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
Civil Writ Petition No. 3476 of 2019
Date of Decision: 24.11.2022
_____________________________________________________________________
Mandeep Kumar and Ors.
.........Petitioners.
Versus
State of Himachal Pradesh and Ors.
.......Respondents
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? Yes.
For the Petitioner: Mr. Aman Parth Sharma, Advocate.
For the respondents: Mr. Sudhir Bhatnagar and Mr. Narender
Guleria, Additional Advocates General, with
Mr. Sunny Dhatwalia, Assistant Advocate
General.
___________________________________________________________________________
Sandeep Sharma, J. (Oral)
Being aggrieved and dissatisfied with order dated 01.7.2019 (Annexure P-12), whereby prayer made by the petitioners to post them as Computer Assistant in different Polytechnic Colleges in the State, as was done in the case of other similarly situate person Ms. Shweta Dhiman, came to be rejected, petitioner has approached this Court in the instant proceedings filed under Article 226 of the Constitution of India, praying therein for following main relief:
"i) The respondents may kindly be directed to appoint the petitioners against the Computer Assistant (having 21 post vacant) in respondent department.::: Downloaded on - 24/12/2022 09:59:28 :::CIS -2-
ii) That office order dated 01.07.2019 (Annexure P-12) in as much as appointment order dated 13.07.2017 (Annexure P-6) .
may kindly be set-aside and quashed in the interest of justice and fair play."
2. For having bird's eye view, facts shorn of the unnecessary details, but necessary for adjudication of the case at hand are that pursuant to walk-in interview for the post of Computer Assistant conducted by the Institute Management Committees (IMCs) of ITI Nehranpukhar, Palampur and Kasauli in the year, 2008, petitioners herein came to be selected and appointed as Computer Assistant at government Vocational Training Institute Nehranpukhar, Palampur and Kasauli respectively and since then, they have been discharging their duties against the aforesaid posts to the utmost satisfaction of the employer. In the interregnum, pursuant to directions issued by the Division Bench of this Court in LPA No. 107 of 2014, decided vide judgment dated 3.12.2014, services of all the teaching and non-
teaching employees engaged on hourly or period basis through Student Welfare Fund, IMCs and other schemes up to 31.7.2015 in the government Engineering colleges, polytechnic colleges, industrial training institutions and the department of Technical Education Vocational and Industrial Training Himachal Pradesh, on contract basis were taken over by the State Government vide notification dated 3.10.2015 as one time measure (Annexure P-3), after completion of seven years or 9600 hours, whichever is earlier. However fact remains ::: Downloaded on - 24/12/2022 09:59:28 :::CIS -3- that cases of the petitioners herein for taking over their services on .
contract for the post of Computer Assistant in terms of aforesaid notification dated 3.10.2015, were not considered on the ground that they do not possess requisite qualification as prescribed under Recruitment & Promotion Rules. One of the similarly situate person Ms. Shweta Dhiman, who was also appointed in the walk-in interview for the post of Computer Assistant under the Student Welfare Fund from semester to semester basis, approached the erstwhile HP State Administrative Tribunal by way of OA No. 6669 of 2017, seeking therein direction to the respondents to implement the policy decision dated 3.10.2015 and take over her services on contract basis from the date of completion of seven years. In the reply filed to the aforesaid petition, respondents themselves admitted that there is flaw in the Recruitment & Promotion Rules for the posts of Computer Assistant and steps are being taken to amend the Recruitment & Promotion Rules. Having taken note of the aforesaid reply filed by the respondents, erstwhile HP State Administrative Tribunal vide judgment dated 19.12.2018 (Annexure P-10) disposed of the petition filed by the person namely Ms. Shweta Dhiman with direction to the Principal, Secretary (Technical Education) to the Government of Himachal Pradesh, to take further action in the matter by carrying out requisite amendment in the Recruitment & Promotion Rules in terms of letter dated 14.3.2018. Pursuant to aforesaid direction, respondents ::: Downloaded on - 24/12/2022 09:59:28 :::CIS -4- amended the Recruitment & Promotion Rules to give complete effect to .
the notification dated 3.10.2015 (Annexure P-7), as a consequence of which, above named Ms. Shweta Dhiman as well as petitioners herein became eligible for their appointment against the post of Computer Assistant on contract basis. After amendment in the aforesaid Recruitment & Promotion Rules, respondents considered the case of the person namely Ms. Shweta Dhiman and posted her as Computer Assistant on contract basis at Government Polytechnic College Kangra. Since services of the petitioners, who were similarly situate to Ms. Shweta Dhiman were not converted from hourly basis to contract on the ground that they do not possess requisite qualification as per Recruitment & Promotion Rules, they after passing of the judgment dated 19.12.2018 in Ms. Shweta Dhiman's case supra also approached the erstwhile HP State Administrative Tribunal by way of OA No. 3187/2017, which came to be disposed of vide judgment dated 18.3.2019, passed by the erstwhile HP State Administrative Tribunal with direction to the respondents to consider and decide the case of the petitioners in light of judgment rendered by the Tribunal in Ms. Shweta Dhiman's case. Pursuant to aforesaid directions, case of the petitioners came to be considered afresh by the respondent department but vide order dated 1.7.2019, respondents rejected the contention of the petitioners that they are similarly situate to Ms. Shweta Dhiman and fulfill eligibility condition in order to take their ::: Downloaded on - 24/12/2022 09:59:28 :::CIS -5- service on contract to the post of Computer Assistant. Vide aforesaid .
order, respondents while rejecting the case of the petitioners observed that though the nomenclature of the post, which petitioners and Ms. Shweta Dhiman are working is the same i.e. Computer Assistant, but their job profile is quite different and as such, they cannot claim any parity. Besides above, respondents also cited another reason in the aforesaid impugned order that there is no post of Computer Assistant in ITIs and as such, there is no question of taking over the services of the petitioners against the post of Computer Assistant on contract basis, especially when they had been rendering the work of clerk since their appointment on contract basis under IMC. In the aforesaid background, petitioners have approached this Court in the instant proceedings, praying therein for relief as reproduced herein above.
3. Pursuant to notice issued in the instant proceedings, respondents have filed reply, perusal whereof reveals that facts as have been noted herein above, are not in dispute, rather stand duly admitted. Reason cited by the respondents for rejecting the claim of the petitioners is that they were never appointed as Computer Assistant and from day one, had been performing work of clerks and as such, their services cannot be taken on contract basis against the post of Computer Assistant, which post is otherwise available in polytechnic college not in ITIs. Apart from above, respondents have stated in their reply that posts of Computer Assistant is a teaching ::: Downloaded on - 24/12/2022 09:59:28 :::CIS -6- post, whereas petitioners neither have teaching experience nor were .
made to do any teaching work while working under IMC contracts.
Respondents have further stated in their reply that petitioners were not appointed by the respondents, rather by Institute Management Committees and as such, they have no right to claim parity with the persons, who have been appointed strictly in terms of Recruitment & Promotion Rules framed by the respondent-State. Respondents while stating that the petitioners are not similarly situate to Ms. Shweta Dhiman have stated in their reply that though Ms. Ms. Shweta Dhiman was also appointed as Computer Assistant under Student Welfare Fund in the Government Polytechnic College Kangra, but since day one, she had been performing the teaching work and as such, after amendment of Recruitment & Promotion Rules, her services rightly came to be converted on contract basis against the post of Computer Assistant, at Government Polytechnic College Kangra.
4. I have heard the learned counsel for the parties and gone through the records of the case.
5. Before ascertaining the correctness of the rival submissions of learned counsel for the parties, it would be apt to take note of order dated 4.12.2021, passed by this Court in the instant proceedings, which is reproduced herein below:
"Precise prayer in the instant petition is that once, the petitioners were engaged as Computer Assistants (IMC) on contract basis vide appointment letters dated 14.8.2008 (Annexure P-2), respondent-State ::: Downloaded on - 24/12/2022 09:59:28 :::CIS -7- ought to have taken their services on contract, on the same post, in terms of Annexure P-3, policy decision taken by Government of .
Himachal Pradesh, dated 3.10.2015, whereby Government took a conscious decision to take over services of all teaching and non- teaching staff working under Institute Management Committees (IMC's) and under other schemes upto 31.7.2015 in the Government Engineering Colleges/Polytechnics and Industrial Training Centre or Department of Technical Education, on contract basis after completion of 7 years or 9600 hours, whichever is earlier, as one time measure.
2. Though in terms of aforesaid policy, services of the petitioners herein were taken over by the Government of Himachal Pradesh, Department of Technical Education but not against the posts of Computer Assistants, rather against the clerical posts, petitioners did not accept the aforesaid decision of the Government and continued to work on contract under IMC. Since services of similar situate persons were taken over on contract basis on the posts of Computer Assistants, they approached the court of law, seeking therein direction to the Government of Himachal Pradesh, to give them similar treatment. However, despite there being directions issued by erstwhile Himachal Pradesh Administrative Tribunal, aforesaid prayer made on behalf of the petitioners repeatedly came to be rejected on the ground that they were never appointed against the posts of Computer Assistants, rather from day one they are rendering clerical services, as such, their services were rightly taken over on contract basis against clerical posts.
3. Having heard learned counsel for the parties and perused material available on record this court finds that there are common Recruitment and Promotion Rules for THE posts of Computer Assistant in the Department of Technical Education, and as such, persons from common cadre can be appointed in ITI's as well as in Polytechnic colleges. Services of one Shweta Dhiman, who was also appointed on contract basis under SW against the post of Computer Assistant, though in Polytechnic, were taken over by the State Government in terms of Policy referred to supra, on contract basis against the post of Computer assistant, as a result she is rendering services on the said post, in one of Polytechnics in the State of Himachal Pradesh. However, in case of the petitioners, who were also ::: Downloaded on - 24/12/2022 09:59:28 :::CIS -8- given appointment as Computer Assistants like Shweta Dhiman, claim is being made by respondent-State that their services cannot be taken .
over on contract basis against the teaching post i.e. Computer Assistant, Though respondent State has attempted to carve out a case that Shweta Dhiman is/was performing teaching work, but the latest affidavit filed by Director of Technical Education, in terms of order dated 18.8.2021, and information received by petitioners under Right to Information Act, 2005, clearly reveal that said Shweta Dhiman is performing duties of a non-teaching post, as are being done by the petitioners herein. Similarly, this court finds that at present 21 posts of Computer Assistant are lying vacant in the State of Himachal Pradesh in the Department of Technical Education and services of some of the persons working in ITI's have been transferred to Polytechnics. Careful perusal of information received by the petitioner under Right to Information Act, 2005, dated 24.10.2017 reveals that one Ashok Kumar working as Craft Instructor, Electrician on contract basis was ordered to be adjusted at Polytechnic Hamirpur against the post of Workshop Instructor Electrical.
4. If it is so, it is not understood, why services of petitioners, who were initially appointed as Computer Assistants, cannot be availed in various Polytechnic in the State of Himachal Pradesh, especially when 21 posts of the Computer Assistants are lying vacant.
5. Argument advanced by Mr. Narinder Thakur, learned Deputy Advocate General, that the posts of Computer Assistant are teaching post, falls to the ground, in view of affidavit filed by Director of Technical Education, as taken note herein above, as well as Annexure PR-3, information received by petitioners under Right to Information Act, 2005 dated 4.12.2019, whereby it has been informed that work assigned to Shweta Dhiman, Computer Assistant is non-teaching i.e. practical work of labs.
6. In view of aforesaid, Director of Technical Education, is directed to file an affidavit, specifically stating therein that why the petitioners herein cannot be adjusted against the posts of Computer Assistant(s), lying vacant in the Department of Technical Education, especially, when there is a common cadre of Computer Assistants in the Department of Technical Education. Besides above, Director of Technical Education may also inform that whether there is a common ::: Downloaded on - 24/12/2022 09:59:28 :::CIS -9- cadre of Computer Assistants in the Department of Technical Education or not? If yes, then why the persons from Industrial .
Training Centre cannot be transferred/ appointed/ adjusted in the Polytechnics or Engineering Colleges, run by the Department.
7. Needful be done positively on or before next date of hearing. List on 18.12.2021."
6. Pursuant to aforesaid order, respondents have filed affidavit (page-389) under the signature of Director, Technical Education, Vocational & Industrial Training, H.P., Sundernagar, H.P., wherein further plea has been taken that question of common cadre for the post of Computer Assistant in the department of Technical Education arises only when cadre of Computer Assistant is available in all the three types of institutions running in the respondent department of the State i.e. Industrial Training Institute, Diploma and Degree level Institute. Since there is no post of Computer Assistant prescribed by the Regulatory Agency i.e. DGE&T for Industrial Training Institute, no posts of Computer Assistant have been created in the govt. Industrial Training institutes running under control of the State. However, in the aforesaid affidavit, respondents have categorically admitted that 27 posts of Computer Assistant in diploma and degree level institutions have been created, but there is no post of Computer Assistant created in the government Industrial Training institutes of the State. While admitting that petitioners were appointed by Institute Management Committees of the respective institutions during the period, 2009, as per actual requirement of the ::: Downloaded on - 24/12/2022 09:59:28 :::CIS
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work on consolidated monthly remuneration of Rs.5800/- further .
enhanced to Rs. 14100/-, respondents have claimed that wrong nomenclature of the post was given while issuing appointment letter because at that time, no posts of nomenclature of the Computer Assistant were available or created in the Industrial Training Institute running under the respondent department of the State. Most importantly, in the aforesaid reply, it has been claimed by the respondents that till the year, 2011, no approval was required for engaging the incumbents under the Institute Management Committees from the Director, Technical Education, Vocational & Industrial Training, as a result of which Institute Management Committee was engaging the training staff on the contract basis as per their requirement. In the aforesaid affidavit, respondents while specifically answering query with regard to appointment of Ms. Shweta Dhiman, who was also appointed as Computer Assistant under the Student Welfare Fund in the polytechnic College, Hamirpur, have stated that though Ms. Shweta Dhiman was also appointed as Computer Assistant, which is a non-teaching post, but having seen her job profile, she was given teaching work, as a result of which, her case rightly came to be considered for conversion of her services from hourly basis to contract against the post of Computer Assistant available in the Government Polytechnic College Kangra. However, while justifying the appointment of one Ashok Kumar, who like ::: Downloaded on - 24/12/2022 09:59:28 :::CIS
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petitioners was also appointed as Craft Instructor in govt. ITI and was .
regularized as Workshop Instructor in the Government Polytechnic College, Hamirpur, respondents have attempted to justify its action by stating that keeping in view the job profile of the aforesaid person, his services have been regularized in the Government Polytechnic College despite the fact that there is no common cadre.
7. Having perused the entire record adduced along with the pleadings, this court finds that petitioners herein were initially appointed as Computer Assistant by various Institute Management Committees on contract basis, which was though initially for one year, but came to be renewed on year to year basis with the approval of the Director, Technical Education, Vocational & Industrial Training, as a result of which, petitioners had been working in the department for more than 12 years, without there being any interruption. Similarly, it is not in dispute that pursuant to directions issued by this Court in LPA No. 107 of 2014, decided vide judgment dated 3.12.2014, service of all the teaching and non-teaching employees engaged on hourly or period basis through Student Welfare Fund, IMCs and other schemes up to 31.7.2015 in the government Engineering Colleges, Polytechnic Colleges and Industrial Training Institutions were taken over on contract basis after their having completed seven years or 9600 hours by the state government vide notification dated 3.10.2015. Though pursuant to aforesaid policy decision, case of the petitioners alongwith ::: Downloaded on - 24/12/2022 09:59:28 :::CIS
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other similarly situate persons was also considered for taking over .
their services on contract basis, but since they were not possessing requisite qualification as per Recruitment & Promotion Rules framed by the department for appointment against the post of Computer Assistant, one of similarly situate person Ms. Shweta Dhiman approached the erstwhile HP State Administrative Tribunal, which having taken note of the plea setup by the respondent-State that steps are being taken to amend the rules, disposed of the petition with direction to the respondents to take decision with regard to amendment of Recruitment & Promotion Rules expeditiously. After amendment of Recruitment & Promotion Rules though all the petitioners as well as Ms. Shweta Dhiman became eligible to be appointed against the post of Computer Assistant, however respondents though decided to take the service of Ms. Shweta Dhiman on contract basis against the post of Computer Assistant at Government Polytechnic College, Kangra, but it rejected the case of the petitioners on the ground that their initial appointment by Institute Management Committees was not against the post of Computer Assistant, rather from the day one, they had been performing work of the clerk. Though respondents offered to take service of the petitioners on contract basis against the post of clerk, but such offer was refused by the petitioners and till date, they had been working on ::: Downloaded on - 24/12/2022 09:59:28 :::CIS
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contract basis against the post of Computer Assistant under IMCs in .
respective institutions.
8. Having carefully perused the appointment letter(s) of the petitioner placed on record (Annexure P-2), this court finds that they were appointed/engaged as Computer Assistant on contract basis on fixed remuneration of Rs. 5800/- which was further enhanced to Rs.
14100/-. Though aforesaid appointment letter clearly reveals that contract issued in favour of the petitioners against the post of Computer Assistant was for one year but came to be renewed on year to year basis on the approval given by the Director, Technical Education, Vocational & Industrial Training as is evident from the communication dated respondent No.3.5.2016 (page-51). After having perused aforesaid appointment letter, this Court finds no force insubmission made by the learned Additional Advocate General that petitioners herein were appointed as clerk not Computer Assistant.
Similarly, this court finds no force in the submission of learned Additional Advocate General that petitioners were wrongly offered appointment against the post of Computer Assistant in govt. ITIs because as per reply filed by the respondents, prior to year, 2011, training institutes were at liberty to appoint/engage persons against different posts as per their requirement. Perusal of Minutes of 1st meeting of State steering Committee held under the Chairmanship of the Principal Secretary (Technical Education) to the Government of ::: Downloaded on - 24/12/2022 09:59:28 :::CIS
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Himachal Pradesh on 26.4.2007 (page 174 Annexure R/2) reveal that .
power to give appointment was delegated to the IMCs. Though respondents have not placed on record complete copy of the minutes, but perusal of complete copy of Minutes made available to this Court by the learned counsel for the petitioner clearly reveals that IMCs were directed to engage Instructors on contract basis. Para 4 of the aforesaid minutes is reproduced herein below:
"4. Approval of appointments/engagements of Instructors on contract basis by IMC (Institution Management Committee) under CoE(Centre of Excellence):-
The committee was apprised that as per guidelines of IMC's issued from DGE&T, Ministry of Labour and employment, Govt. of India, IMC's have been authorized to appoint/engage instructors on contract basis. This provision also finds mention in MOU signed between State and Central Govt. Since the posts were not created and COEs were to be made functional from august 2006, IMC's were asked to engage Instructors from COE Development Fund for those basic modules for which the Instructors in ITI's were not available and posts were not created. The services of the Instructors in trades which were merged in Centre of Excellence (COE) are being utilized in COE's so that there is bare minimum need of the instructors to be engaged afresh. The instructors so engaged are the contract employees of the IMC and not of the Govt. and have no claim for regularization.
The details of instructors engaged by IMC from COE development Fund (As per Agenda Annexure IV attached herewith) were placed before the committee for approval. The action taken by the department and the IMC's in this behalf was approved.::: Downloaded on - 24/12/2022 09:59:28 :::CIS
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The Member Secretary - cum- Director, Technical Education, Vocational & Industrial Training, also brought to notice of State .
Steering Committee that the instructors are required to be engaged for advanced modules of the first batch and basic modules of the ITI's to be upgraded as centre of excellence from academic session starting from August, 2007 and the IMC's could be authorized to fill up posts on contract basis as were done in the previous year."
9. Since respondents pursuant to direction issued by the Division Bench of this Court in LPA themselves decided to convert/take over the services of all the persons employed on hourly/period basis to government Contract basis, there is no justification to deny such relief to the petitioners on the ground that they were not appointed against the post of Computer Assistant and since day one, they had been rendering service in the capacity of the clerk. If the policy decision taken by the respondents (P-3), is read in its entirety, it clearly reveals that decision was taken to convert services of all the teaching and non-teaching employees engaged on contract basis through Student Welfare Fund, Institute Management Committees and other scheme up to 31.7.015 in Government Engineering College Polytechnic and Industrial Training Institutes on contract basis after completion of seven years or 9600 hours, whichever is earlier. Since the policy specifically provided for taking over services of teaching and non-teaching employees engaged on contract basis through Student Welfare Fund and Institute ::: Downloaded on - 24/12/2022 09:59:28 :::CIS
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Management Committees (IMCs), case of the petitioners, who were .
appointed as Computer Assistant by IMCs could not be rejected on the ground that they were wrongly appointed against the post of Computer Assistant and they were working as clerk. It is not in dispute that IMCs were authorized by the State steering Committee in its meeting held on 26.4.2007, to make the appointments as per their requirements on contract basis. Pursuant to aforesaid guidelines, IMCs and Student Welfare Fund made certain appointments against the teaching and non-teaching posts and as such, at this stage, respondents cannot be permitted to claim that appointment made by the IMC against the post of Computer Assistant was not in accordance with rules. Moreover, this Court finds that at the first instance, when cases of the petitioners were considered for taking over by the government on contract basis, no such objection was raised with regard to non availability of the posts in ITI, rather at that time, specific case of the respondents was that petitioners do not possess requisite qualification to be appointed against the post of Computer Assistant lying vacant in the various Government Polytechnic Colleges.
Since to give complete effect to the policy decision taken by the government, respondents amended the rules thereby relaxing educational qualification enabling the petitioners and other similarly situate person to become eligible to be considered against the post of Computer Assistant, now it is not open for the respondents-State to ::: Downloaded on - 24/12/2022 09:59:28 :::CIS
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claim that neither there were posts of Computer Assistant in the ITIs .
nor petitioners were duly qualified to be appointed against the post of Computer Assistant.
10. Though learned Additional Advocate General while inviting attention of this court to the reply filed by the respondent-State vehemently argued that since there is no post of Computer Assistant available in the department, claim of the petitioners as made in the petition is not justified, but having taken note of the fact that petitioners had been rendering services as Computer Assistant in different ITI's is for more than a decade, respondents State cannot be permitted to claim that on account of non-availability of posts, case of the petitioners cannot be considered. Once respondent-State by way of policy decision, took over the services of the persons appointed by IMCs to Government contract, it is under obligation to otherwise create posts to adjust the petitioners, but definitely cannot take up the plea of non-availability of posts to adjust the petitioners. In this regard, reliance is placed on judgment passed by the Hon'ble Apex Court in Nihal Singh and Ors v. State of Punjab and Ors (alongwith connected matter) (2013) 14 SCC 65, wherein it has been held as under:
"20. But we do not see any justification for the State to take a defence that after permitting the utilisation of the services of large number of people like the appellants for decades to say ::: Downloaded on - 24/12/2022 09:59:28 :::CIS
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that there are no sanctioned posts to absorb the appellants. Sanctioned posts do not fall from heaven. State has to create .
them by a conscious choice on the basis of some rational assessment of the need."
11. During the proceedings of the case, learned counsel for the petitioner while making this Court peruse information received by the petitions under RTI, argued that all three institutions i.e. Industrial Training Institute, Polytechnic College and Engineering Colleges are under the administrative control of one department i.e. Directorate of Technical Education, Vocational & Industrial Training, Government of Himachal Pradesh and there is a common cadre of Computer Assistant as a result of which, person working as Computer Assistant in ITI can be transferred to Government Polytechnic College or Government Engineering College. Having perused material available on record this court finds that in some of the branches/trades, department of Technical Education, which is administrative department of these three institutions have framed Recruitment & Promotion Rules separately for different posts, but till date, cadre of Computer Assistant is common and persons working in one institute against the post of Computer Assistant is being appointed/transferred in other institute i.e. Government Polytechnic College or Engineering College or Directorate of Technical Education.
As of today, more than ten posts of Computer Assistant are lying vacant in the department of Technical Education, Vocational & ::: Downloaded on - 24/12/2022 09:59:28 :::CIS
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Industrial Training, meaning thereby, petitioners, who are three in .
number, can be easily accommodated against the posts of Computer Assistant lying vacant in polytechnic and degree colleges. Person namely Ms. Shweta Dhiman, who was similarly situate to the petitioners, was also not having requisite qualification to be appointed against the post of Computer Assistant as per old Recruitment & Promotion Rules, but after promulgation of policy of taking over the service by the government on contract basis, she approached the erstwhile HP State Administrative Tribunal and Tribunal having taken note of the plea set up by the respondent-State that on account of certain flaws in the Recruitment & Promotion Rules department is contemplating to amend the Recruitment & Promotion Rules, disposed of the petition with direction to expedite the matter. After amendment in Recruitment & Promotion Rules for the post of Computer Assistant, which is common cadre in the three wings of the department, Ms. Shweta Dhiman, was appointed as Computer Assistant in Government Polytechnic College, Kangra. Though aforesaid posts of Computer Assistant is being claimed to be a teaching post by the respondents/State, but perusal of communication dated 4.12.2019 (Annexure PR-3), issued by the Principal, Government Polytechnic College Kangra, under RTI reveals that posts of Computer Assistant is non-teaching i.e. practical work of labs. Similarly, Training Manual of Directorate of Technical Education Vocational and Industrial Training ::: Downloaded on - 24/12/2022 09:59:28 :::CIS
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Himachal Pradesh (Annexure PR-7) placed on record by the petitioners .
clearly suggests that post of Computer Assistant is a non-teaching post and its number in all the institutions under department of Technical Education is 179. Respondents are claiming posts of Computer Assistant to be teaching post to justify the posting of Ms. Shweta Dhiman against the post of Computer Assistant at Government Polytechnic College, Kangra. Stand taken by the respondents that since Ms. Shweta Dhiman was performing teaching work, she has been rightly considered against the post of Computer Assistant, which is a teaching post is totally contrary to the record, especially the manual which itself suggests that post of Computer Assistant in the department of Technical Education is non-teaching post.
12. During proceedings of the case, learned counsel for the petitioners invited attention of this court to the notification dated 18.5.2016, issued by the Government of Himachal Pradesh Technical Education, to demonstrate that vide aforesaid notification, 43 posts of teaching faculty and 65 posts of non-teaching faculty to start five disciplines i.e. Civil Engineering, Mechanical Engineering, Electrical Engineering, Computer Engineering and Automobiles Engineering with intake capacity of 60 students in each discipline from the session 2017-18 in new government Polytechnic at Basantpur, District Shimla, under Shimla Gramin Constituency, came to be created and ::: Downloaded on - 24/12/2022 09:59:28 :::CIS
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post of Computer Assistant is non-teaching post as are of junior .
Assistant and Clerk. Though respondents have attempted to carve out a case that there is no post of Computer Assistant in ITIs, but careful perusal of communication dated 7.6.2022, issued under the signature of Director, Technical Education, Vocational & Industrial Training, H.P., which is reproduced herein below, clearly reveals that matter regarding the remuneration of Trainer/supporting staff engaged under the Institute Management Committees of Industrial Training Institutes on contract basis through outsource by Agencies except NIELIT, Shimla, was discussed vide agenda point No. 15.11 in the 15th meeting of the State Steering Committee held on 10.5.2022 at HP Secretariat, Shimla, wherein the said committee accorded its approval to hike the remuneration of Trainers/supporting staff, already engaged under Institute Management Committee.
"On the subject cited above, it is intimated that the matter regarding remuneration of Trainer/ supporting staff engaged under the Institution Management Committees (IMCs) of Industrial Training Institutes on contract basis/through outsource by Agencies except NIELIT, Shimla was discussed vide agenda point No. 15.11 in the 15th meeting of the State Steering Committee (SCC) held on 10.5.2022 at HP Secretariat, Shimla, under the Chairmanship of the worthy Secretary, Technical Education to the Govt. of Himachal Pradesh. The Committee has accorded its approval to hike the remuneration of Trainers/Supporting staff, already engaged under Institution Management Committee (IMCs). At the rate of 15% hike in the ::: Downloaded on - 24/12/2022 09:59:28 :::CIS
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present salary of the Trainers/ supporting staff with effect from 1st June, 2022. The detail of is given below:
.
Sr. Category Existing @15% Total remuneration
No remuneration hike per month (Rs.)
. being paid (Rs.) (Rs.)
per month
01 Trainer/Instruc 14,100/- 2115/ 14,100 +2115
tor - =16215/-
02 Computer 14,100/- 2115/ 14,100 +2115
Assistant - =16215/-
03 Clerk 7810/- 1172/ 7810+1172=8982/
- -
04 Class-IV 6200/- 930/- 6200+930= 7130/-
If the aforesaid communication, which is reproduced herein above, is perused in its entirety, it clearly reveals that posts of Computer Assistant exist in the Industrial Training institutes under IMCs and persons working against such post were being paid Rs. 14,100/- prior to further hike granted vide aforesaid communication and as of today, they are getting Rs. 16,215/-. Since there is ample material available on record suggestive of the fact that posts of Computer Assistant exist in the Industrial Training Institute and the petitioners herein were appointed against the post of Computer Assistant in the year, 2008 and since then, they had been working against such posts continuously without there being any interruption, they also deserve to be considered for taking over services by the government on contract basis in terms of policy decision taken on 3.10.2015. Though respondents have claimed in their reply and supplementary affidavit that at present, there are no posts of Computer Assistant available in ::: Downloaded on - 24/12/2022 09:59:28 :::CIS
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it is, but such plea appears to be totally contradictory on the face of .
communication dated 7.6.2022, issued by the Director, Technical Education, Vocational & Industrial Training, H.P., which itself speaks about the existence of posts of Computer Assistant in ITIs under Institution Management Committees. If it is so, persons appointed by IMC's on contract basis against the post of Computer Assistant are/were required to be considered for taking over of their services by the government on contract basis as per policy decision. Moreover, documents available on record clearly reveal that persons working in Govt. ITIs under various posts have been adjusted/absorbed in govt.
Polytechnic colleges. One of the example is of Mr. Ashok Kumar, who was appointed as Craft Instructor in govt. ITI on contract basis but he was regularized as workshop Instructor (Electrical) in Government Polytechnic College, Hamirpur. Similar is the case of Ms. Shivangi, who was appointed as Computer Assistant Hydro Engineering College Bandla as is evident from Annexure P-6 (page 70). Since in all the three institutions i.e. Government Polytechnic College, Industrial Training Institutes and Engineering Colleges, which work under the administrative control of one department i.e. Directorate of Technical Education, Vocational & Industrial Training, there is common cadre of Computer Assistant, cases of the petitioners for conversion of their services from contract on IMCs to Government contract, deserve to be considered by the department against the 10 posts of Computer ::: Downloaded on - 24/12/2022 09:59:28 :::CIS
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Assistant lying vacant in the department of Technical Education, be it .
in the Government Polytechnic College, Directorate or other Engineering Colleges. Since it is not in dispute that as per amended Recruitment & Promotion Rules, petitioners are eligible to be appointed against the post of Computer Assistant, their claim to be considered for conversion of service from IMCs to government on contract basis in terms of the policy decision taken by the government cannot be allowed to be defeated on the ground of qualification or non-
availability of posts of Computer Assistant in ITI's.
13. Consequently, in view of the detailed discussion made herein above as well as law taken into consideration, present petition is allowed and order dated 01.7.2019 (Annexure P-12) is quashed and set-aside and Director, Technical Education, Vocational & Industrial Training, Himachal Pradesh Sundernagar, HP, is directed to convert the services of the petitioners from IMC contract to Govt. contract from the due date with seniority on the post of Computer Assistant, but without financial benefits within two months from today. Present petition is disposed of alongwith pending applications, if any.
November 24, 2022 (Sandeep Sharma),
manjit Judge
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