Himachal Pradesh High Court
Smt. Abida Parveen vs State Of Himachal Pradesh on 20 October, 2021
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
ON THE 20th DAY OF OCTOBER, 2021
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CIVIL WRIT PETITION No. 2045 OF 2019
Between:
1. SMT. ABIDA PARVEEN,
W/O SH. IMRAN KHAN,
R/O VILLAGE HARIPUR TOHANA,
P.O. SHIVPUR, TEHSIL PAONTA SAHIB,
DISTRICT SIRMOUR, H.P.
PRESENTLY WORKING AS
URDU TEACHER AT
GOVERNMENT SENIOR
SECONDARY SCHOOL BHAGANI,
DISTRICT SIRMOUR, H.P.
2. MISS SHIWANI PANWAR,
D/O SHRI NARENDER SINGH PANWAR,
VPO SHARIA, TEHSIL PACHHAD,
DISTRICT SIRMOUR, H.P.
PRESENTLY WORKING AS
URDU TEACHER AT
GOVERNMENT SENIOR
SECONDARY SCHOOL BHAGANI,
DISTRICT SIRMOUR, H.P.
....PETITIONERS
(BY MR. A.K. GUPTA
ADVOCATE)
AND
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2
1. STATE OF HIMACHAL PRADESH
.
THROUGH ITS PRINCIPAL SECRETARY
(EDUCATION) WITH HEADQUARTERS
AT SHIMLA-2
2. THE DIRECTOR OF ELEMENTARY
WITH HEADUARTERS AT SHIMLA, H.P.
3. THE DEPUTY DIRECTOR ELEMENTARY
EDUCATION WITH HEADQUARTERS
AT NAHAN, DISTRICT SIRMOUR, H.P.
(BY MR. DESH RAJ THAKUR,
ADDITIONAL ADVOCATE GENERAL,
r to
WITH MR. KAMAL KISHORE SHARMA,
....RESPONDENTS
DEPUTY ADVOCATE GENERAL)
Whether approved for reporting?. Yes.
This petition coming on for hearing this day, the Court passed the following:
ORDER
Government of Himachal Pradesh vide letter No. Shiksha-II
(kha) 6-4/2000-loose, dated 19.10.2009 conveyed its decision to introduce
Urdu Language as an optional subject for class 6th to 8th in hundred
identified schools in the State of Himachal Pradesh. Besides above, it was
also approved that candidates, who fulfill the qualification as per the R&P
Rules notified by the government on 23.10.2009, be appointed as Urdu
Teachers purely on period basis in the identified schools. Pursuant to
aforesaid policy decision taken by the Government of Himachal Pradesh,
.
petitioners along with other eligible candidates came to be appointed as
Urdu Teacher on a fixed honorarium of Rs. 70/- per period and the number
of periods were also increased to six weeks per class and as such, they were
being paid honorarium Rs. 10,800/- per month. Vide communication
dated 21.12.2018, Department of Education, Himachal Pradesh, conveyed
the approval to bring the services of only qualified period based Panjabi
and Urdu Teachers on the contract basis, strictly in accordance with the
R&P Rules of each category. Since despite there being aforesaid policy
decision taken by the Government of Himachal Pradesh, services of the
petitioners were not converted on contract basis, they have approached this
court in the instant proceedings filed under Article 226 of the Constitution
of India, praying therein for following main relief:
"i) That the respondents may be ordered to bring the services of the
petitioners on contract employment from the due date with all
benefits incidental thereof."
2. Having heard learned counsel for the parties and perused
pleadings adduced on record by the respective parties, especially reply filed
by the State, this court finds that there is no dispute inter-se parties that
petitioners were appointed as Urdu Teachers on period basis @ Rs.70/-
per period for teaching Urdu to the students of 6th to 8th class in the year,
2012 as is evident from Annexure P-1. It is also not in dispute that since
.
their initial engagement, vide order dated 20.12.2012, petitioners have been
regularly rendering their services as Urdu Teacher on period basis in the
identified schools. It is also not in dispute that vide communication dated
21.12.2018, government has conveyed approval to bring the services of
qualified period based Panjabi and Urdu Teachers on the contract basis,
strictly in accordance with the R&P Rules of each category.
3. The precise grouse of the petitioners, as has been raised in the
instant petition, is that action of respondents-State in not converting their
services from period basis to contract basis in terms of policy decision
taken by the government on 21.12.2018 despite their having served the
department for more than ten years, is not justifiable and as such, needs to
be rectified in accordance with law. Respondents in their reply to the
petition while admitting factum with regard to engagement of the
petitioners on period basis have stated that in the year, 2015, Government
of Himachal Pradesh has notified R&P Rules for the post of Urdu Teacher
providing therein following essential qualifications :
"Essential qualifications:
i) B.A. with Urdu as an elective subject and 2-year Diploma in Elementary
Education(by whatever name known).
OR
BA with atleast 50% marks with Urdu as an elective subject and 1-year
Bachelor in Education (B.Ed.)
OR
.
BA with at least 45% marks with Urdu as an elective subject and 1-year
Bachelor in Education (B.Ed.) in accordance with the NCTE(Recognition
Norms & Procedure) Regulations issued from time to time in this regard.
OR
B.A. with at least 50% marks with Urdu as an elective subject and 1-year
Bachelor in Education(B.Ed.) (Special Education).
OR
B.T. with 50% marks followed by B.A. Examination (English and one
additional subject) with 50% marks from a recognized University and 1-
year Bachelor in Education (B.Ed.).
OR
M.A. (Urdu) with at least 50% marks from a recognized university and 1-
year Bachelor in Education(B.Ed.).
Note(1) :
(a) Adeeb-e-Kamil form Jamia Urdu Aligarh will be considered /equivalent
to B.A. with Urdu.
(b) Moallim-e-Urdu from Jamia Urdu Aligarh will be considered /equivalent
to B.Ed. for teaching Urdu.
AND
ii) Pass in Teacher Eligibility Test (TET Language Teacher) duly conducted
by HP Board of School Education, Dharamshala.
Provided that the incumbents who have already qualified the Teacher
Eligibility Test(TET) conducted by the H.P. Subordinate Services Selection
Board, Hamirpur shall also be eligible subject to the condition as laid down
in Para-11 of the guidelines issued by the National Council for Teacher
Education vide Notification No.76-4/2010/NCTE/Acad. Dated 11.2.2011.
Since petitioners do not possess qualification as provided under the
aforesaid R&P Rules framed vide notification No. EDN-B-B (2)-3/2013
dated 21.5.2015, services of the petitioners cannot be converted on
contract basis from period basis. It has been further stated in the reply that
since petitioners do not possess TET in Urdu, they cannot be said to have
possessed requisite qualification as required under the R&P Rules of Urdu
.
Teacher. It has been further stated in the reply that since petitioners
possess +2/Giani qualification, their services cannot be converted into
contract basis in terms of policy framed by the Government of Himachal
Pradesh, but as and when they become qualified, their case for conversion
from period basis to contract basis shall be considered.
4. Mr. A.K. Gupta, learned counsel for the petitioners, vehemently
argued that qualification, as prescribed under the R&P Rules framed in the
year, 2015 cannot be made applicable in the case of the petitioners as they
stood appointed as Urdu Teacher prior to promulgation of R&P Rules,
which make it obligatory on the incumbent to pass TET. Mr. Gupta while
inviting attention of this Court to the judgment dated 23.6.2021, passed by
the Coordinate Bench of this Court in CWP No. 3047 of 2020, titled
Jagdish Kumar and others v. State of Himachal Pradesh and Ors,
submitted that in similar facts and circumstances, Coordinate Bench of
this Court while placing reliance upon judgment passed by this Court in
Bhagwati Prasad v. Delhi State Mineral Development Corporation,
AIR 1990 SC 371, has categorically held that though minimum
educational qualification prescribed in Recruitment and Promotion Rules is
not applicable to the petitioners, but otherwise also, same is to be
considered at the time of initial entry to the service. Once appointments
.
were made on the basis of qualification possessed by the candidate at a
particular time, it would be hard and harsh to deny them/petitioners the
confirmation on the ground that they lack education qualification.
5. Mr. Desh Raj Thakur, learned Additional Advocate General
while supporting the action of the respondent-State vehemently argued that
since it stood specifically mentioned in letter dated 21.12.2018 (P-2),
whereby decision was taken to convert the services of the period based
Panjabi/Urdu Teacher on contract basis that services of only qualified
period based teacher shall be converted on contract basis in accordance
with the provision on R&P Rules of each category, petitioners cannot claim
regularization merely on the basis of their initial induction made in the
year, 2012 pursuant to decision taken by the Government of Himachal
Pradesh to appoint the Urdu Teachers on period basis in the identified
school.
6. Before ascertaining the correctness and merit in the aforesaid
submissions made on behalf of the parties to the lis, it would be apt to take
note of the policy decision taken by the Government vide communication
dated 21.12.2018, which reads as under:
"..........With reference to the Director of Elementary Education
.
Himachal Pradesh, Shimla letter No. EDN-Ele-(III)-B (6) Misc/2009-
10-Punjabi/Urdu Dated 19-12-2018, on the subject cited above.
It is to inform you that Govt. vide its letter No. EDN-BB(6)-2/2014
dated 19.12.2018 has conveyed approval to bring the services of
only qualified period based Panjabi and Urdu Teachers on the
contract basis, strictly in accordance with the provisions of the
Recruitment and Promotion Rules of each category and after
observing all the codal formalities/Instructions issued by the
Government from time to time.
You are therefore requested to supply the services particulars in
respect of Urdu and Punjabi teacher working in your institution of
the enclosed prforma along with attested photocopy of required
essential academic/Professional qualification certificates/Degrees
and also Work and Conduct for the last three years immediately to
this office."
7. Close scrutiny of aforesaid communication clearly reveals that
Department of Elementary Education, Government of Himachal Pradesh
pursuant to approval conveyed by the Government decided to bring the
services of the qualified period based Panjabi and Urdu teachers on
contract basis in accordance with the provisions of R&P Rules of each
category after observing all the codal formalities /instructions framed by
the Government from time to time. As per the respondents, petitioners are
not qualified in terms of educational qualification prescribed under the R&P
Rules promulgated in the year, 2015 vide notification dated 21.5.2015,
which has been reproduced supra. No doubt, petitioners do not possess
qualification as prescribed in the aforesaid R&P Rules, but question, which
.
needs to be determined in the instant case, is whether at this stage,
petitioners can be denied conversion of their services from period basis to
contract on the ground that they do not possess the qualification as
prescribed under the R&P Rules promulgated in the year, 2015. It is not in
dispute that Government of Himachal Pradesh in the year, 2009, conveyed
its decision to introduce Urdu Language as an optional subject for 6th to 8th
class in 100 identified schools. While taking aforesaid decision, it was
further approved by the government that candidates, who fulfill the
qualification as per R&P Rules notified by the Government on 23.10.2009
shall be appointed as Urdu Teachers purely on period basis in the identified
schools. Pursuant to aforesaid decision taken by the government,
petitioners alongwith other similarly situate persons were appointed as
Urdu Teacher on fixed honorarium of Rs. 70/- per period, meaning thereby,
in the year, 2012, petitioners were offered appointment against the post of
Urdu Teacher on the period basis as per R&P Rules notified by government
on 23.10.2009, wherein admittedly essential educational qualification as
prescribed in subsequent R&P Rules promulgated in the year, 2015 was
not provided. Since initial induction of the petitioners as Urdu Teachers on
period basis is in terms of R&P Rules notified by the government on
23.10.2009 and since then, they have been regularly teaching the students
.
of class 6th to 8th in identified school, action of the respondent State to not
to convert their services from period basis to contract basis is highly
unjustifiable and cannot be allowed to sustain.
8. Mr. Desh Raj Thakur, learned Additional Advocate General
representing the respondents-State has not been able to dispute that as
per R&P Rules notified by the Government on 23.10.2009, person having
qualification 10+2 /Giani could be appointed as Urdu Teacher on period
basis and as such, it cannot be concluded at this stage that initial
induction of the petitioners as Urdu Teacher on period basis is dehors the
rules, rather they at the time of their appointment were given appointment
strictly in terms of R&P Rules notified by the government vide
communication dated 23.10.209.
9. During the proceedings of the case, learned Additional
Advocate General made available R&P Rules notified by the Government on
23.10.2009, perusal whereof reveals that candidate aspiring to be
appointed as Urdu Teacher should have passed BA honors BT/BEd or
Masters in Urdu. Though careful perusal of R&P Rules notified vide
communication dated 23.10.2009 suggests that a candidate aspiring to be
appointed against the post of Urdu Teacher on period basis ought to have
passed BA Arts or Masters in Urdu, but since respondents themselves
.
ignoring the conditions of qualification as provided under R&P Rules
notified vide communication dated 23.10.2009, gave appointment to the
petitioners as Urdu Teacher on period basis @ Rs. 150/- per period, they,
at this stage, cannot be permitted to claim that initial appointment of the
petitioners as Urdu Teachers on period basis is dehors the rules. It
appears that department of Education, Himachal Pradesh, after having
taken decision to introduce Urdu language as an optional subject for class
6th to 8th students in 100 identified schools in the year, 2009, appointed
Urdu teacher on period basis without strictly pressing for the education
qualification prescribed in the R&P Rules notified by the government on
23.10.2009. For approximately more than 10 years, respondents permitted
the petitioners to render their services as Urdu Teacher on period basis
without insisting upon them to improve their qualification, but when they
demanded for conversion of their service from period basis to contract in
terms of policy decision taken by the Government of Himachal Pradesh vide
communication dated 21.12.2018 P-2, respondent State took u-turn and
denied the claim of the petitioners on the ground that they do not possess
the requisite qualification as provided under the R&P Rules promulgated in
the year, 2015. Once respondent department itself gave appointment to the
petitioners as Urdu Teacher on period basis in the year 2012, they cannot
.
be permitted at this stage to raise the issue of requisite qualification not
possessed by the petitioners, who otherwise till date, are teaching students
of 6th to 8th class in government institutions.
10. Hon'ble apex Court in case titled Bhagwati Prasad case
supra, has categorically held that regularization/confirmation to a
particular incumbent cannot be denied on the basis of his/her having not
possessed the requisite qualification. In the aforesaid judgment, Hon'ble
Apex court has held that though the initial minimum educational
qualification prescribed for the different posts is undoubtedly a factor to be
reckoned with, but it is so at the time of the initial entry into the service.
Relevant para of the aforesaid judgment reads as under:
"6. The main controversy centres round the question whether some
petitioners are possessed of the requisite qualifications to hold the
posts so as to entitle them to be confirmed in the respective posts
held by them. The indisputable facts are that the petitioners were
appointed be tween the period 1983 and 1986 and ever since, they
have been working and have gained sufficient experience in the
actual discharge of duties attached to the posts held by them.
Practical experience would always aid the person to effectively
discharge the duties and is a sure guide to assess the suitability.
The initial minimum educational qualification prescribed for the
different posts is undoubtedly a factor to be reckoned with, but it is
so at the time of the initial entry into the service. Once the
appointments were made as daily rated workers and they were
allowed to work for a considerable length of time, it would be hard
and harsh to deny them the confirmation in the respective posts on
the ground that they lack the prescribed educational qualifications.
In our view, three years' experience, ignoring artificial break in
service for short period/periods created by the respondent, in the
circumstances, would be sufficient for confirmation. If there is a gap
of more than three months between the period of termination and
re-appointment that period may be excluded in the computation of
.
the three years period. Since the petitioners before us satisfy the
requirement of three years' service as calculated above, we direct
that 40 of the senior-most workmen should be regularised with
immediate effect and the remaining 118 petitioners should be
regularised in a phased manner, before April 1, 1991 and promoted
to the next higher post according to the standing orders. All the
petitioners are entitled to equal pay at par with the persons
appointed on regular basis to the similar post or discharge similar
duties, and are entitled to the scale of pay and all allowances
revised from time to time for the said posts. We further direct that
16 of the petitioners who are ousted from the service pending the
writ petition should be reinstated immediately. Suitable promotional
avenues should be created and the respondent should consider the
eligible candidates for being promoted to such posts. The
respondent is directed to deposit a sum of Rs. 10,000 in the
Registry of this Court within four weeks to meet the remuneration of
the Industrial Tribunal. The writ petitions are accordingly allowed,
but without costs.
11.
Consequently, in view of the detailed discussion made herein
above as well as law laid down by the Hon'ble Apex Court, present petition
is allowed and respondents are directed to convert the services of the
petitioners from daily period basis to contract in terms of communication
dated 21.12.2018, from the due date. Having taken note of the fact that
petitioners are serving the department for more than ten years, this court
hopes and trusts that needful shall be done by the respondents
expeditiously, preferably within a period of six weeks from today. In the
aforesaid terms, present petition is disposed of alongwith pending
applications, if any.
20th October, 2021 (Sandeep Sharma),
(manjit) Judge
