CWP/10879/2023 on 29 December 2023

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

CWP No.10879 of 2023

Decided on: 29th December, 2023 _______________________________________________________

Santosh Kumar

....Petitioner

Versus

State of Himachal Pradesh & others. ….Respondents

Coram

Hon’ble Mr. Justice Ranjan Sharma, Judge 1 Whether approved for reporting?

For the petitioner : Mr. Vinay Mehta & Mr. Rahil Mahajan Advocates.

For the respondents : Mr. Ravi Chauhan, Deputy

Advocate General.

Ranjan Sharma, Judge (Oral)

Notice. Mr. Ravi Chauhan, learned Deputy Advocate General, appears and waives service of notice on behalf of the respondents.

2. With the consent of the parties, the instant writ petition is taken up for disposal, at this stage, in view of the peculiar facts as borne out from

Whether reporters of Local Papers may be allowed to see the judgment? Yes the pleadings.

3. The petitioner, being Lecturer (School Cadre), has filed the instant writ petition, with the following prayer(s):- “(i).

Issue

a writ of Mandamus directing respondents to regularize the services of the petitioner with effect from the date of his initial engagement/appointment with all consequential benefits in terms of the judgements passed by this Hon’ble Court in CWP No.

of 2010, titled as Om Parkash vs. State of H.P. and others, and connected matters, CWP No. 3144 of 2011, titled as Anju Devi versus State of H.P. and others and CWP No. 3143 of 2011 titled as Manju Devi versus State of H.P. and others.

ii).

Issue

a writ of Mandamus directing the respondents to release the entire consequential benefits alongwith interest @ 9% per annum from the date of petitioner’s initial appointment to till the date of realization.

iii). Issue a writ of Mandamus directing the respondents to extend the same and similar benefits as has been extended to

Ms. Rakhi (LT), Mr. Tej Ram (LT) and Mr. Kuldip Chand (TGT, now Lecturer) in terms of judgements passed in CWP No. CWP No. 7602 of 2010, titled as Om Parkash vs. State of H.P. and others, and connected matters, CWP No. 3144 of 2011, titled as Anju Devi versus State of H.P. and others and CWP No.

of titled as Manju Devi versus State of H.P. and others by this Hon’ble Court.”

4. In the background of the reliefs prayed for above, the only grievance of the petitioner is that the Respondents had started the selection process for appointment as Lecturer (School Cadre), under Sports quota in the month of September, 2008, in the Department of Education, of the State Government in accordance with the Himachal Pradesh Education Department, Class-III (School and Inspection Cadre) Services Rules, 1973 but, instead of appointing them on regular basis as Lecturer he was appointed on contractual basis on 13.03.2009. The petitioner continued as such and he was regularized as Lecturer (Economics) in the year 2015.

5. Now, the only grievance of the petitioner is that though as per the Himachal Pradesh, Education Department Class-III [School and Inspection Cadre] Service Rules, 1973, the petitioner had undergone the selection for appointment as TGTs [Arts] on regular basis but, was wrongly and illegally appointed on contract basis when, contractual mode-nomenclature of appointment was introduced in the Himachal Pradesh Elementary Education Department, Lecturer School Cadre/Post Graduate Teacher [Class-III] [Non Gazetted], Recruitment and Promotion Rules on 20.09.2010, (Annexure P-3) and once these Rules of 2010 were only prospective in nature then, the petitioner could not have been appointed on contract basis, meaning thereby, that the petitioner had a right to be appointed on regular basis from the date of initial appointment.

In this background, the action of the respondents in denying the “deemed regular appointment to the petitioners, as Lecturer (School Cadre) from the date he was appointed as such on contract basis [prior to insertion of contractual mode-nomenclature of appointment in Rules of 2010]; has resulted in depriving the petitioners of the regular status, regular pay scale, pay fixation in regular pay scale, benefit of ACP from such deemed date of regular appointment and the benefit of higher pay in the applicable revised pay scale w.e.f. 01.01.2006 and, thereafter till day, but denial to the same is a recurring loss till day. Even this inaction shall result in depriving the petitioner of the pension on superannuation, which is violative of Articles 14 & 16 of the Constitution of India.

6. The question, as to whether the incumbents who had undergone selection for the post of Trained Graduate Teachers or for the post of Lecturers (School Cadre) under the Himachal Pradesh Education Department Class-III, (School and Inspection Cadre) Service Rules 1973 for regular posts, in the regular pay scales, could be appointed on contractual basis in 2008 and 2009 when, the contractual mode-nomenclature of appointment was introduced by issuing the Amended Rules on 22.10.2009 [in case of Trained Graduate Teachers] and on 20.09.2010 [in case of Lecturers, School Cadre/Post Graduate Teachers], and once the amended rules cannot be applied retrospectively to selection undertaken under the amended Rules but were to apply prospectively only; stands adjudicated/answered this Court; in CWP No.7602 of 2010, titled as Om Parkash Versus State of Himachal Pradesh alongwith connected matters, decided on 02.05.2012, Annexure P-3, and in CWP No.3143 of 2011, titled as Manju Devi versus State of Himachal Pradesh and others, decided on 07.11.2012, and CWP No. 3144 of 2011, titled as Anju Devi vs. State of Himachal Pradesh and others, decided on 08.10.2012, Annexure P-4; and the judgments passed by the Coordinate Bench of this Court have also been affirmed in LPA No. 54 of 2013 along with other connected LPA’s titled as State of H.P. and others vs. Om Prakash, decided on 04.10.2019, whereby, the Division Bench of this Court, has recorded its findings as under:-

4. Observations:

4(i) It is not in dispute that even though the State Government on 12.12.2003 had requested all the Heads of Departments to amend Clause-10 of R&P Rules, for including contractual appointment as one of the mode of recruitment in accordance with the decision taken by the State, yet, Recruitment & Promotion Rules for lecturers (school cadre) were not amended in tune with 12.12.2003 decision of the State Government. The mode of recruitment under the Recruitment & Promotion Rules for appointment lecture (School cadre) continued to be only on regular basis. It was only on 20.9.2010, that Clause10 of the R&P Rules for the posts in question was amended and notified, incorporating contractual appointments, as one of the mode of recruitment.

4(ii) The college in question was taken over by the State on 6.2.2007. In terms of notification dated 25.8.1994, services of the eligible staff were also required to be taken over w.e.f. 6.2.2007. State though had taken over the services of the staff of the Kanwar Durga Chand Memorial College, Jaisinghpur only on 21.6.2010. Fact remains that services of writ petitioners were taken over prior to amendment of R&P Rules.

The services of the petitioners were required to be taken over in terms of Recruitment & Promotion Rules, which were in existence on the date of taking over the college i.e. 6.2.2007. The R&P Rules as they existed on 6.2.2007 did not provide for contractual appointments. The Rules only provided for regular recruitments. Service of petitioners were taken over w.e.f. 6.2.2007. College itself was taken over on 6.2.2007. Therefore, clause providing appointment on contractual basis inserted in the R&P Rules by way of amendment of Rules on 20.09.2010, could not be retrospectively applied to the petitioners. It is apt to refer the judgment passed by this Court, in CWP No.1811 of 2008, titled Dev Raj Vs. State of H.P & others, relevant segment reproduced hereinafter:- “25………………….Government appointments are made in accordance with the Rules framed under Article 309 of the Constitution of India. When such Rules are framed the Government is expected to act and make appointments in accordance with the Rules. If the Rules do not permit the Government to make appointment on contract basis they must be made on regular basis.

4(iii) The notification dated 25.8.1994, under which State Government took over the privately managed colleges as well as services of staff working there, provides for granting them Government scales as admissible to their respective corresponding categories. Clause-9 of this notification reads as under:- “9. Provided that services of only those employees will be taken over who furnish a written acceptance on non-judicial paper duly attested by the competent authority to the effect that they are willing to be absorbed in Government services on the terms and conditions laid down in these rules.” There is no provision in the above notification for taking over services of staff of privately managed colleges on contract basis, more so, in the facts of instant case, in view of Recruitment and Promotion Rules of Lecturer (School cadre) as they existed on 6.2.2007 i.e. the date of take over, whereunder no provision for appointment on contract basis was there, regular recruitment was the only prescribed mode.

5. Thus, services of the petitioners’ were thus required to be taken over w.e.f. 6.2.2007 on regular basis. There is no infirmity in the judgment passed by learned Single Judge. All these appeals are therefore dismissed alongwith pending application(s), if any.”

7. Learned counsel further submits that based on the judgment in case of Om Prakash [CWP No. 7600 of 2010, affirmed in LPA No.54 of 2013 on 04.10.2019] and other connected LPAs, and the principle of law answered therein, the benefit of deemed regular appointment as Shastri Teachers [in C&V Cadre of Shastri-Language teachers

etc.] has been granted to similar incumbents, from the date of their initial appointment on contract basis w.e.f. 30.01.2009; even during the pendency of COPCT No.1125 of 2020 in case, titled as Tej Ram versus Rajeev Sharma and Execution Petition No.327 of 2020 in case titled as Rakhi versus State of Himachal Pradesh & ors., and in compliance thereof the respondents have issued communication on 26.09.2020 and on 29.09.2020, Annexure P-7 (Colly).

Even a perusal of the orders in Execution Petition No.94 of 2020, titled as Kuldip Chand versus State of Himachal Pradesh and others, decided on 11.12.2023, whereby the similarly placed Language Teacher [of C&V Cadre in Mandi District] has been treated as regular Language Teacher w.e.f. 30.01.2009 i.e. the date of his initial contractual appointment in regular-applicable pay scale, with pay fixation, ACP and Pension.

8. By applying the above principle of law in LPA No.21 of 2013, titled as State of H.P. versus Ravinder Kumar, decided on 04.10.2019 the benefit of deemed regular appointment from the date of initial contractual appointment has been given to the Lecturers (School Cadre).

9. Moreover, by applying the same principle of law, declared in CWP No.3144 of 2011, upheld in LPA No. 4059 of 213, titled as State of Himachal Pradesh & ors. versus Anju Devi and on the basis of CWP No.7602 of 2010, affirmed in LPA No.54 of 2013 titled as State of Himachal Pradesh & ors. versus Om Prakash, decided on 04.10.2019 the benefit of deemed regular appointment was granted to Trained Graduate Teachers from the date of initial contractual appointment.

10. Case records reveal that once this Hon’ble Court has adjudicated upon a principle of law mandating that once the selection process in accordance with the existing Recruitment & Promotion Rules of 1973 only provided for regular appointment in regular pay, then respondents cannot give have given appointment to incumbents on contractual basis, in fixed emoluments; by acting dehors the Recruitment & Promotion Rules existing at the relevant time and when, the contractual mode of recruitment/ appointment was incorporated in the Rules, much after the incumbents-petitioners had joined; and once the amendment in Rules introducing contractual mode of appointment(s) could not apply retrospectively to the disadvantage and prejudice of the incumbents so as to curtail their rights which had accrued under the Rules of 1973, under which then selection-recruitment process was initiated.

11. In this view of the matter, the Government- Respondents have issued an order on 01.12.2023 to implement the judgment and to give deemed regular appointments [to the appellants-petitioners therein as Shastri Teachers-Language Teachers; as Trained Graduate Teacher (Arts-Medical/Non-Medical); and as Lecturers (School Cadre) in the applicable regular pay scale, with pay fixation and other benefits from the date they were initially appointed on contract basis; then, once the petitioners are similarly placed, therefore, they are entitled to deemed regular appointment as Lecturer (School Cadre)/Post Graduate Teacher from the due date or such like date, i.e. the date from which they were initially appointed on contract basis; with all admissible benefits; but the denial of regular status as Lecturer (School

Cadre)/Post Graduate Teacher, in the regular pay scale, pay fixation in regular scale from the date of their initial contract appointment in applicable pay scales and then in the revised pay scale w.e.f. 01.01.2016 till day, is a recurring loss till day; and the same amounts to treating the “petitioners-equals as unequal” is violative of Articles 14 & 16 of the Constitution of India.

12. Per contra, Mr. Vishal Panwar, learned Additional Advocate General submits that so far as the mandate of this Court in case of Om Prakash, Anju Devi, Manju Devi, Ravinder Kumar [relating to TGTs and Lecturers (School Cadre) as mentioned in Paras 6 to 8 and 9] and the directions/orders passed in case of Tej Ram, Rakhi and Kuldip Chand [relating to Shastri and Language Teachers as mentioned in Para 7] supra and the implementation order dated 01.12.2023, is not in dispute but, the factual aspects needs to be looked into and verified.

13. In these circumstances, and on the request of learned counsel for the petitioners, on instructions of the petitioners, this Court permits the petitioners to make representation, either jointly or separately, to the

Respondents/Competent Authority, in continuation of earlier representations, within three weeks; with further directions to aforesaid respondent to verify the facts and, in case, the petitioners are similarly placed then, to consider/examine the case of the petitioners for extending similar benefit of regular appointment from the date the petitioners were appointed on contractual basis as Lecturer (School Cadre)/Post Graduate Teacher, in the light of above referred judgments, within six weeks thereafter.

14. Upon consideration, in case, the respondents decide to extend the benefit of deemed regular appointment to the petitioner(s), as Lecturer (School Cadre)/Post Graduate Teacher, from the date of initial appointment on contractual basis, then, the respondents shall grant the consequential benefits notionally. However, it is clarified that the respondents shall give the eligible monetary benefits, admissible to the petitioner(s), in accordance with law.

15. Needless to say that, this Court has not adverted to the rival contentions and merits of the matter and all Questions of facts and law are left open.

In aforesaid terms, the writ petition as well as the pending miscellaneous application(s), if any, shall also stand disposed of, accordingly.

(Ranjan Sharma) December 29, 2023

Judge

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