CHANDER MOHAN NEGI & ORS. versus STATE OF HIMACHAL PRADESH & ORS. on 17 April 2020

SUPREME COURT REPORTS

[2020] 4 S.C.R.

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CHANDER MOHAN NEGI & ORS.

v.

STATE OF HIMACHAL PRADESH & ORS.

(Civil Appeal No. 2813 of 2017)

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APRIL 17, 2020

[MOHAN M. SHANTANAGOUDAR ANDR. SUBHASH REDDY, JJ.]

The Himachal Pradesh Compulsory Primary Education Act,1997 – Appointment of teachers under various schemes framed byCgovernment – Regularization of – Schemes in question were notifiedin the year 2001 & 2003 under which appointments were madewith regard to Primary Assistant Teachers and teachers in othercategories – Challenged in 2012 by individuals who qualified onlyin the year 2011 – Writ petition allowed by Single Judge – Order setDaside by Division Bench – Held: It is true that in the initial schemesnotified by the Government there was a condition that suchappointees should not seek regularisation/absorption but at the sametime for no fault of them, they cannot be denied regularisation/absorption – It is in view of the requirement of the State, their serviceswere extended from time to time – Now all the appointees haveEcompleted more than 15 years of service – They are working formeagre salaries – Except the vague submission that such schemeswere framed only to make back door entries, there is no materialplaced on record to buttress such submission – Further, there wasunexplained and inordinate delay on the part of the appellants inFapproaching the High Court in 2012 without even impleading theappointees as party respondents – Writ petitioners did not filerejoinder disputing the averments of the State as stated in the replyaffidavit that in view of the hard topography/tribal areas in theState, large number of vacancies were there even single teacherschools and such steps were taken to achieve the object of 1997GAct – Having regard to nature of such appointments, appointmentsmade as per policies cannot be termed as illegal – No case madeout to interfere with the impugned judgment of High Court – TheHimachal Pradesh Prathmik Sahayak Adhyapak/Primary AssistantTeacher (PAT) Scheme – The Himachal Pradesh Para Teachers H

(Lecturer School Cadre), Para Teachers (TGT’s) and Para Teachers(C&V) Policy, 2003 – Himachal Pradesh Gram Vidya Upasak Yojna,2001 – Service Law.

Dismissing the appeals, the Court

HELD: 1.1 As is evident from the scheme itself, the objectof the scheme appears to be to compulsorily enrol children inschools for elementary and primary education in the remote areasto achieve the goals as set by the Government while enactingThe Himachal Pradesh Compulsory Primary Education Act, 1997with a view to achieve the target of 100% enrolment to children.[Para 11][647-C-D]

Conclusion

1.2 It is true that in the initial schemes notified by theGovernment there was a condition that such appointees shouldnot seek regularisation/absorption but at the same time for nofault of them, they cannot be denied regularisation/absorption. Itis in view of the requirement of the State, their services wereextended from time to time and now all the appointees havecompleted more than 15 years of service. For majority of theappointed teachers under the various schemes benefit was alreadyextended and some left over candidates were denied on accountof interim orders passed by this Court. With regard to PrimaryAssistant Teachers, it is stated that all the candidates havecompleted Special Teacher Training Qualifying CondensedCourse and also had obtained special JBT certificate after 5 years’continuous service in terms of the Himachal Pradesh EducationCode 1985. There was unexplained and inordinate delay on thepart of the appellants in approaching the High Court and furtherhaving regard to explanation offered by the State about the needof framing such policies to meet the immediate requirement tofill up single teacher schools which were vacant for a very longtime, having regard to topographical conditions, which is not evencontroverted by way of any rejoinder before the High Court. Insuch view of the matter, taking the totality of peculiarcircumstances of these cases, we are of the that the viewexpressed by this Court in the judgments relied on cannot beapplied to the facts of the case on hand. All the appointedcandidates are working for the meagre salaries pursuant toschemes notified by the Government. Except the vague A

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Asubmission that such schemes were framed only to make backdoor entries, there is no material placed on record to buttresssuch submission. Further it is also to be noted that though suchschemes were notified as early as in 2003, nobody has questionedsuch policies and appointments upto 2012 and 2013. The writpetition, i.e., C.W.P.No.3303 of 2012-A was filed in the year 2012Bwithout even impleading the appointees as party respondents.In the writ petition there was no rejoinder filed by the writpetitioners disputing the averments of the State as stated in thereply affidavit. Having regard to nature of such appointments,appointments made as per policies cannot be termed as illegal.CNo case is made out to interfere with the impugned judgment ofthe High Court. [Para 13][648-G-H; 649-A-F]

J & K Public Service Commission & Ors. v. Dr. NarinderMohan & Ors. (1994) 2 SCC 630 : [1993] 3 Suppl.SCR 900; Secretary, State of Karnataka & Ors. v.DUmadevi (3) & Ors. (2006) 4 SCC 1 : [2006] 3 SCR953; Accounts Officer (A&I) A.P.SRTC & Ors. v. P.Chandra Sekhara Rao & Ors. (2006) 7 SCC 488;Punjab State Warehousing Corpn., Chandigarh v.Manmohan Singh & Anr. (2007) 9 SCC 337 : [2007] 2SCR 933 – referred to.E

Case Law Reference

From the Judgment and Order dated 09.12.2014 of the High CourtGof Himachal Pradesh at Shimla in LPA No. 504 of 2012.

With

C. A. No. 2814/2017 and C.A. No. 2815/2017

P.S. Patwalia, C.A. Sundaram, Maninder Singh, J.C. Gupta, Sr.HAdvs., Prashant Bhushan, Govind Jee, Ms. Swati, Satish Kumar, Anurag

Nagar, Abhinav Mukerji, Abhishek Gupta, Ms. Rohini Musa, ZafarInnayat, Yogesh Kumar Mahur, Ms. Amita Singh Kalkal, Ms. AnuradhaMutatkar, Vikrant Singh Bais, S.N. Bhat, D.P. Chaturvedi, Manish Kumar,Vijay Kumar, Amit Kumar, Abhinav Mukerji, K.K.L. Gautam, A.K.Suman, Rahul Mohod, Sanjeev Malhotra, Dr. Krishan Singh Chauhan,Ajit Kumar Ekka, Ravi Prakash, Chand Kiran, S.P. Singh, R.S.M. Kalky,Vinod Sharma, Pawan Reley, Sajal Awasthi, R.K. Pandey, Atul Sharma,Varinder Kumar Sharma and Devendra Singh, Advs. for the appearingparties.

The Judgment of the Court was delivered by

R. SUBHASH REDDY, J.

1. All these civil appeals are filed against a common judgmentdated 09.12.2014 passed by the Division Bench of High Court of HimachalPradesh at Shimla in L.P.A.No.504 of 2012 and batch. The said LetterPatent Appeals were filed, aggrieved by the order of the learned SingleJudge dated 18.10.2012 passed in C.W.P.No.3303 of 2012-A. When,Letters Patent Appeals were filed in L.P.A.Nos.504, 507, 512 of 2012and 203 of 2014, they were heard and disposed of by the Division Benchalong with the other connected writ petitions pending on similar issues.

2. The writ petitions and Letters Patent Appeals are the outcomeof the policies framed by the Government of Himachal Pradesh, i.e.,The Himachal Pradesh Prathmik Sahayak Adhyapak/Primary AssistantTeacher (PAT) Scheme; The Himachal Pradesh Para Teachers(Lecturer School Cadre), Para Teachers (TGT’s) and Para Teachers(C&V) Policy, 2003 and the Himachal Pradesh Gram Vidya UpasakYojna, 2001. Such schemes were framed to fill up various vacant postsof teachers in different categories as per the policies framed by theGovernment during the years 2001 and 2003.

3. Though the policies and appointments were of 2001 and 2003,three individuals, by name, Chander Mohan Negi; Rajiv Chauhan; andRakesh Kumar have approached the High Court in the year 2012 byfiling C.W.P.No.3303 of 2012-A before the High Court of HimachalPradesh seeking the following reliefs :

“i) That respondents may kindly be directed to fill up the availablevacancies of the Junior Basic Trained teachers in accordancewith Recruitment and Promotion Rules.

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Aii) That the respondents may further be restrained from regularizingthe Primary Assistant Teachers who have been appointed inviolation of Constitutional Schemes and Law established andsettled by the Hon’ble Apex Court with further directions to therespondents to advertise all the available vacancies of Junior BasicTrained teachers in the Education Department to be filled inBaccordance with Recruitment and Promotion Rules without anyfurther delay and all the vacancies may be filled up in accordancewith Recruitment and Promotion Rules available at the time ofoccurrence of the vacancies.

iii) That the respondents may kindly be burdened with costs.C

(iv) That the entire record of the case may kindly be summoned.”

4. The learned Single Judge of the High Court, by order dated18.10.2012 mainly on the ground that such appointments were made bythe State by appointing the Primary Assistant Teachers to impartDeducation upto primary level, who even do not fulfil the minimum essentialqualification prescribed under the Recruitment and Promotion Rules andthe State has failed to produce any material to show that the candidateswho are possessing JBT degrees have refused to serve in tribal/difficultareas, the recruitment of such teachers de hors the Recruitment andPromotion Rules amounts to back door entry, has allowed the writ petitionEby directing the State to phase out the teachers appointed under TheHimachal Pradesh Prathmik Sahayak Adhyapak/Primary AssistantTeacher Scheme, 2003 in a phased manner and to fill up the existingvacancies of JBT posts strictly in accordance with the Recruitment andPromotion Rules. The learned Single Judge has further directed the StateFnot to regularise the teachers.

5. Aggrieved by the order of the learned Single Judge dated18.10.2012 passed in C.W.P.No.3303 of 2012-A, the affected/aggrievedparties, individual teachers, Association of Primary Assistant Teachers,and the State of Himachal Pradesh have filed Letters Patent Appeals.GThe said appeals were heard along with the writ petitions whereinappointment of teachers under the other two schemes, namely, ParaTeachers Policy of 2003 and the Himachal Pradesh Gram Vidya UpasakScheme of 2001 was under challenge. By common impugned judgmentdated 09.12.2014 Division Bench of High Court has allowed the LettersPatent Appeals by setting aside the order of the learned Single JudgeHand dismissed the writ petitions which were clubbed along with the Letters CHANDER MOHAN NEGI & ORS. v. STATE OF HIMACHALPRADESH & ORS. [R. SUBHASH REDDY, J.]

Patent Appeals. The Division Bench has allowed the Letters PatentAppeals on various grounds, viz.:

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•Though the appointments were made during the year 2001 and2003, writ petitions were filed belatedly in the year 2012 and2013 and the writ petitioners in C.W.P.No.3303 of 2012 werenot even qualified when the appointments were made;B

•No one has questioned the selection of teachers under theSchemes at the relevant point of time, writ petitions were filedafter 11 years of their appointment and the writ petitionershave not filed any rejoinder controverting the plea of the Stateas stated in para 11 of the reply filed in the writ petition and theState had made such appointments by framing the policies whenthe qualified teachers were not available for makingappointments, such appointments made under various schemescannot be termed as illegal; C

•In view of the long service rendered by them it is always openfor the State to regularise their services; D

•State has sufficiently explained giving the background of suchappointments of the teachers in various categories and thematerial placed by the State disclosed that a large number ofposts were vacant in the cadres of TGTs, C&Vs, PTAs etc.; E

•A large number of vacancies are still available as the writpetitioners have claimed interest such pleas cannot beentertained to treat the writ petitions as the public interestlitigation and the appointees are not even made partyrespondents, and no material is placed to show that all theappointees are members of the Association which wasimpleaded as the third respondent in the writ petition etc.

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6. The order passed by the Division Bench of the High Court waschallenged, amongst other L.P.As and C.W.Ps, in L.P.A.No.507 of 2012arising out of writ petition in C.W.P.No.3303 of 2012, by 13 appellantsby filing civil appeal. The original petitioners before the High Court arefigured as appellant nos.1 to 3 and appellant nos.4 to 13 who are notparties before the High Court also have filed the appeal. Subsequentlythe civil appeal was dismissed as withdrawn in respect of the appellantsexcept appellant nos.1, 2 and 4. It is also stated during the course ofarguments that appellant nos.1 and 4 were also appointed as JBT teachers G

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Aand they are working as such. So, only left out candidate is appellantno.2. It is stated that he is eligible and there are vacant posts.

7. We have heard Sri Prashant Bhushan, learned counsel appearingfor the appellants; Sri P.S. Patwalia, learned senior counsel for the Stateof Himachal Pradesh and Sri C.A. Sundaram and Sri Maninder Singh,Blearned senior counsel appearing for the private parties.

8. Learned counsel Sri Prashant Bhushan appearing for theappellants, by taking us to the orders passed by the learned Single Judgeand the Division Bench of the High Court and other material placed onrecord, has contended that the various schemes under which theCappointments of teachers were made by the Government of HimachalPradesh were contrary to the Rules framed under proviso to Article 309of the Constitution. It is submitted by the learned counsel that thougheligible and qualified candidates were available, appointments were madeunder various policies only to fill up the vacancies by back door method.It is submitted that the teachers who are appointed were not qualified toDhold the posts and such candidates cannot be regularised. It is submittedthat if such unqualified candidates are allowed to hold the posts contraryto rules, it results in diluting the standards in the educational institutions.It is submitted that at the relevant point of time JBT qualified personswere available, and inspite of the same without issuing an advertisementEto fill up the vacancies as per the rules in force, under various schemesappointments were made. It is also submitted that appointments weremade without adhering to the rule of reservation, as per the Recruitmentand Promotion Rules and only on the plea that such appointees werecontinued for a long time, by itself is no ground to regularise their services.Learned counsel – Sri Prashant Bhushan – in support of his argumentFthat the appointees who were appointed on temporary basis/contractbasis contrary to rules governing the appointments, cannot be regularised,has placed reliance on judgments of this Court in the case of J & KPublic Service Commission & Ors. v. Dr. Narinder Mohan &Ors.[1]; Secretary, State of Karnataka & Ors. v. Umadevi (3) &GOrs.[2]; Accounts Officer (A&I) A.P.SRTC & Ors. v. P. ChandraSekhara Rao & Ors.[3]; and Punjab State Warehousing Corpn.,Chandigarh v. Manmohan Singh & Anr.[4].

1 (1994) 2 SCC 630

2 (2006) 4 SCC 13 (2006) 7 SCC 488H4 (2007) 9 SCC 337

1 (1994) 2 SCC 630

2 (2006) 4 SCC 13 (2006) 7 SCC 488H4 (2007) 9 SCC 337

9. On the other hand Sri Patwalia, learned senior counsel appearingfor the State of Himachal Pradesh has submitted that the PrimaryAssistant Teachers Scheme of 2003 (PAT Scheme) was notified on 27[th]August 2003 and under the said Scheme, Primary Assistant Teacherswere appointed by the respective Gram Panchayats in the area wherethe primary school was located, keeping in view the non-availability oftrained teaching manpower in the remote and backward areas in viewof the tough topographical conditions of the State. The object of theScheme was to compulsorily enrol children in schools for elementaryand primary education by providing such teachers to achieve the goalsset by the Government in enacting, The Himachal Pradesh CompulsoryPrimary Education Act, 1997. It is submitted that such appointmentswere made on the monthly remuneration of Rs.2000/- and the honorariumwas increased in July 2013 to Rs.8900/-. It is submitted by the learnedcounsel that in all 3294 candidates who are working now have acquiredthe professional qualification of diploma in elementary education or haveundergone Professional Development Programme for ElementaryTeachers. Similarly, for Para Teachers who are engaged under the policyof the State dated 17.09.2003, the policy comprises of Classical andVernacular teachers, Trained Graduate Teachers, D.P.E.’s (SchoolCadre), i.e., teachers teaching physical education, and Lecturers (SchoolCadre). It is submitted that so far as this Scheme is concerned even asper the policy the qualification for the post of Para Teachers was asprescribed in the Recruitment and Promotion Rules applicable at therelevant time. Thus, all the persons who are recruited as Para Teachersare fully qualified as per Recruitment and Promotion Rules which werein force. Further it is submitted that even the third category, of teachersappointed under the Scheme, fulfil the educational qualificationsprescribed in the Recruitment Rules. As such, a Cabinet decision wastaken on 31.07.2013 to take over such teachers on contract basis afterthey have completed eight years of service which was subsequentlyreduced to seven years by Cabinet decision dated 27.12.2014. It is furthersubmitted that out of 6799 teachers 5017 teachers were taken over oncontract basis by the State Government, only 1782 lecturers could notbe taken over in view of the interim orders passed by this Court. It issubmitted that all the teachers, however, fulfil all the qualifications requiredunder service rules. Lastly, it is submitted that all the appointments weremade when such schemes were announced and the PTA teachers werelastly appointed upto 2008 and since 2008 regular appointments havebeen made as per service rules.

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A10. Sri C.A. Sundaram and Sri Maninder Singh, learned seniorcounsel appearing for the respondents have submitted that the HighCourt has recorded valid and sufficient reasons in support of its judgmentand there are no grounds at all to interfere with the same. Further, it issubmitted that all the appointees have completed 15 years of service asof now and such appointments were made under various schemes framedBby the Government when they were unable to fill up regular vacanciesof teachers, as such, such appointments cannot be continued forever onthe meagre salaries, which they were being paid. It is submitted that inview of the topography of the State and teachers in single teacher schoolswere not available to appoint teachers to fill up vacancies, such schemesCwere framed and the writ petitioners belatedly questioning such schemesand appointments cannot deprive regularisation of appointees.

11. At the outset, it is to be noted that the schemes in questionwere notified in the year 2001 and 2003 under which appointments weremade with regard to Primary Assistant Teachers and teachers in otherDcategories. At the relevant point of time nobody has questioned eitherthe schemes or the appointments. It is the specific case of the respondent-State that such appointments have not affected the writ petitioners andthe Department was not in a position to leave the schools, teachers’deficient for long since it would have affected the studies of the studentsvery badly. Therefore, it was the case of the State that teachers hadEbeen appointed under various schemes at that point of time and suchappointments have been made upto the year 2007 and have no impacton the appellants since they have completed their two-year JBT trainingin the year 2011. As is evident from the order under appeal passed bythe Division Bench of the High Court, the appellant-writ petitioners have Fnot even chosen to file rejoinder and the stand taken by the State thushas remained uncontroverted. Further, it is also to be noted that whensuch appointments were made during the year 2001 and 2003 the writpetitions came to be filed in the year 2012 and 2013. As the writ petitionershave claimed interest for their appointment, the Division Bench of the High Court has rightly held that such petitions cannot be considered asGthe public interest litigation. Such a writ petition which was filed by thepetitioners who came to be qualified only in the year 2011 are not entitledfor any relief on the ground of unexplained laches and inordinate delayof about more than 10 years in approaching the court for questioning theappointments. Though relief was sought against the State to deny theHbenefit of regularisation to the appointed teachers, they were not even

impleaded as party respondents. An Association was impleaded as thirdrespondent but without furnishing any material to show that at leastmajority of appointees are members of such Association. So far asPrimary Assistant Teachers Scheme of 2003, which was subject matterof Letters Patent Appeal arising out of C.W.P.No.3303 of 2012-A filedby Chander Mohan Negi and others, is concerned, the appellants in CivilAppeal No.2813 of 2017 except appellant nos.1, 2 and 4 have withdrawnthe appeal and appellant nos.1 and 4 are already appointed as JBTs.Insofar as the only appellant, viz., appellant no.2 – Rajiv Chauhan – isconcerned, it is stated that he is qualified and there are vacant posts andhe can be considered if he applies to any of the existing vacancies. Sofar as Primary Assistant Teacher Scheme is concerned, same was notifiedas early as on 27[th] August 2003. As is evident from the scheme itself,the object of the scheme appears to be to compulsorily enrol children inschools for elementary and primary education in the remote areas toachieve the goals as set by the Government while enacting The HimachalPradesh Compulsory Primary Education Act, 1997 with a view to achievethe target of 100% enrolment to children. As per the scheme, the eligibilitywas 10+2 from a recognised Board/University and the candidates withhigher qualifications were also eligible and candidates with professionalqualifications were to be preferred. As per the regular Recruitment Rulesthe requisite qualification for the post of JBT teacher during the relevanttime was 10+2 with 50% marks and JBT certificate. As submitted bylearned senior counsel appearing for the State that initially though 3500odd teachers were appointed, as of now there are only a total of 3294teachers working in this category and out of this about 1866 had thequalification of 10+2 with more than 50% marks at the relevant point ofengagement. Out of the balance of 1015 had 10+2 with less than 50%marks, but they had higher qualification such as B.A./M.A./M.Sc. orB.Ed. etc. Further, it is also brought to our notice that out of all thecandidates 3294 candidates who are presently working have acquiredthe professional qualification of diploma in elementary education or haveundergone Professional Development Programme for ElementaryTeachers. In that view of the matter, we are of the view that when theappointees appointed under the scheme have completed more thanalmost 15 years of service now and also have acquired the professionalqualifications, they cannot be denied regularisation at this point of time.As the appointments were made as per the schemes notified by theGovernment such appointments cannot be treated as illegal, if at all they AB

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Acan be considered irregular. When it is the plea of the State that in viewof the hard topography/tribal areas in the State, large number of vacancieswere there even single teacher schools and to achieve the object of TheHimachal Pradesh Primary Education Act, 1997 such steps were taken,there is no reason to disbelieve the same, more so, in absence of anyaffidavit by way of rejoinder by the writ petitioners before the HighBCourt controverting the allegations in the reply filed on behalf of theState.

12. Even with regard to Para Teachers Policy under which variouscategory of teachers were appointed in the year 2003 pursuant to policynotified on 17.09.2003 it is clear from the record placed before this CourtCthat all the persons who were recruited as Para Teachers were fullyqualified as per the Recruitment and Promotion Rules, i.e., The HimachalPradesh Education Department Class-III (School and Inspection Cadre)Service Rules, 1973. In view of the stand of the State that such policywas necessitated due to large number of vacant posts which have arisenDyear after year and which could not be filled since the State SelectionSubodinate Board, Hamirpur which was responsible for the selection ofteachers had come under a cloud and the selection process had come toa halt, such appointments cannot be rendered as illegal. Such aspect isalso evident from the policy itself. Even in other category of Grant-in-Aid to Parent Teacher Association Rules, all teachers appointed underEthe scheme fulfil the educational qualifications prescribed in the Rules.For such kind of teachers, Cabinet has taken decision to take over theteachers on contract basis after completion of eight years of servicewhich period was later reduced to seven years. It is also brought to ournotice during the course of arguments that out of the total 6799 teachers,F5017 teachers were already taken over on contract basis by the StateGovernment and only 1782 could not be taken over in view of the interimorders passed by this Court.

13. It is true that in the initial schemes notified by the Governmentthere was a condition that such appointees should not seek regularisation/Gabsorption but at the same time for no fault of them, they cannot bedenied regularisation/absorption. It is in view of the requirement of theState, their services were extended from time to time and now all theappointees have completed more than 15 years of service. For majorityof the appointed teachers under the various schemes benefit was alreadyextended and some left over candidates were denied on account of interimH

orders passed by this Court. With regard to Primary Assistant Teachers,it is stated that all the candidates have completed Special TeacherTraining Qualifying Condensed Course and also had obtained specialJBT certificate after 5 years’ continuous service in terms of the HimachalPradesh Education Code 1985. The judgments relied on by learnedcounsel Sri Prashant Bhushan also would not render any assistance tothe case of the appellants herein for the reason that there was unexplainedand inordinate delay on the part of the appellants in approaching theHigh Court and further having regard to explanation offered by the Stateabout the need of framing such policies to meet the immediaterequirement to fill up single teacher schools which were vacant for avery long time, having regard to topographical conditions, which is noteven controverted by way of any rejoinder before the High Court. Insuch view of the matter, taking the totality of peculiar circumstances ofthese cases, we are of the that the view expressed by this Court in thejudgments relied on cannot be applied to the facts of the case on hand.All the appointed candidates are working for the meagre salaries pursuantto schemes notified by the Government. Except the vague submissionthat such schemes were framed only to make back door entries, there isno material placed on record to buttress such submission. Further it isalso to be noted that though such schemes were notified as early as in2003, nobody has questioned such policies and appointments upto 2012and 2013. The writ petition, i.e., C.W.P.No.3303 of 2012-A was filed inthe year 2012 without even impleading the appointees as partyrespondents. In the writ petition there was no rejoinder filed by the writpetitioners disputing the averments of the State as stated in the replyaffidavit. Having regard to nature of such appointments, appointmentsmade as per policies cannot be termed as illegal. Having regard to materialplaced before this Court and having regard to reasons recorded in theimpugned order by the High Court, we are of the view that no case ismade out to interfere with the impugned judgment of the High Court.

14. For the aforesaid reasons, all these appeals are dismissedwith no order as to costs.

Divya Pandey

Appeals dismissed.

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