Himachal Pradesh High Court
Manoj Kumar vs State Of H.P. And Ors on 2 January, 2023
Bench: Tarlok Singh Chauhan, Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
CWP No. 8046/2021 a/w CWP No.
2767/2016, CWPOA Nos. 3039 &
3681/2019, CWP Nos. 1066, 1067,
1372, 1577, 2009, 2012, 3430/2020,
514 & 1827/2021
.
Reserved on: 28.12.2022.
Decided on: 2.1.2023
CWP No. 8046/2021
Manoj Kumar .....Petitioner
Versus
State of H.P. and ors. ....Respondents
CWP No. 2767/2016
State of H.P. & ors. .....Petitioners
Versus
Shankuntla Devi ....Respondent
CWPOA No. 3039/2019
Bandna & anr. .....Petitioners
Versus
State of H.P. and ors. ....Respondents
CWPOA No. 3681/2019
Saroj Kumari & ors. .....Petitioners
Versus
State of H.P. and anr. ....Respondents
CWP No. 1066/2020
Nidhi Sharma .....Petitioner
Versus
State of H.P. and anr. ....Respondents
CWP No. 1067/2020
Shalini .....Petitioner
.
Versus
State of H.P. and anr. ....Respondents
CWP No. 1372/2020
Poonam Kashyap .....Petitioner
Versus
State of H.P. and anr. ....Respondents
CWP No. 1577/2020
Poonam .....Petitioner
Versus
State of H.P. and anr. ....Respondents
CWP No. 2009/2020
Shivani Pal .....Petitioner
Versus
State of H.P. and ors. ....Respondents
CWP No. 2012/2020
Reenu Kumari .....Petitioner
Versus
State of H.P. and ors. ....Respondents
CWP No. 3430/2020
Vaneeta Kumari .....Petitioner
Versus
State of H.P. and anr. ....Respondents
CWP No. 514/2021
.
Mamta Bharti .....Petitioner
Versus
State of H.P. and anr. ....Respondents
CWP No. 1827/2021
Seema Paul & anr. .....Petitioners
Versus
State of H.P. and ors. ....Respondents
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Ms. Justice Virender Singh, Judge.
Whether approved for reporting?1No
For the Petitioners: Mr. Dilip Sharma, Mr. B. C .Negi,
Mr. Bhuvnesh Sharma, Sr.
Advocates, with Mr. Manish Sharma,
Mr. Nitin Thakur, Mr. Parav Sharma
& Mr. Tarun Sharma, Advocates, in
the respective petitions.
For the Respondents: Mr. Anup Rattan, A.G. with
Mr. Shiv Pal Manhans, Mr. Vinod
Thakur, Addl. A.Gs., Mr. Bhupinder
Thakur, Dy. A. G. & Mr. Rajat
Chauhan, Law Officer, for the State
in the respective petitions.
_____________________________________________________________________
1 Whether reporters of the local papers may be allowed to see the judgment? Yes.
Justice Tarlok Singh Chauhan, Judge
Since common questions of law and facts arise for
.
consideration in all these petitions, therefore, the same were taken up
together for hearing and are being disposed of by a common judgment.
2 As regards individual writ petitioners herein, they already
have a decision in their favour rendered by the Division Bench of the
erstwhile Tribunal in T.A. No. 2665/2015, titled as Shankuntla Devi
vs. State of H.P., decided on 16.12.2015, which decision, in turn, has
been assailed by the State by medium of CWP No. 2767/2016.
3 In the given facts and circumstances, it would be relevant
to extract the facts from the aforesaid petition i.e. CWP No.
2767/2016.
4 The respondent Shankuntla Devi in CWP No. 2767/2016
(hereinafter referred to as the "original applicant") completed Teachers
Training Course (equivalent to Junior Basic Teachers) from Himachal
Pradesh Board of School Education through St. Bede's College, Shimla,
during the session 2001-2003. The State had appointed 28 Junior
Basic Teachers (JBTs) vide office order dated 2.3.2009 and 43 JBTs on
regular basis in sequel to the directions of this Court vide its judgment
dated 3.6.2010 in CWP No. 2083 of 2009, titled as Sandeep Kumar
and others versus State of Himachal Pradesh and others, which,
decision, in turn, had been upheld by the Division Bench of this Court
in LPA No. 205/2010, decided on 6.1.2011.
5 One Sapna Sharma was appointed as regular JBT vide
office order dated 30.8.2007, however the original applicant, who
.
claimed herself to be similarly situate, was not given appointment on
regular basis as JBT and came to be appointed as JBT on contract
basis vide office order dated 10.9.2008, constraining the original
applicant to initially approach this Court by filing writ petition, which
was later transferred to the erstwhile Tribunal and registered there as
TA No. 2665/2015.
6 The State contested the original application on the ground
that the names of those candidates who, had passed JBT or TTC and
registered with the Employment Exchanges, were alone called from all
Districts on 19.05.2005. The Deputy Director, Elementary Education,
Lahaul and Spiti on 23.02.2006 supplied the names of such
candidates. However, since the original applicant had not registered
her name with the Employment Exchange, her name did not figure in
the list, therefore, she was not considered for appointment on regular
basis. She got registered her name in the Employment Exchange only
on 13.11.2006.
7 As regards 28 candidates, referred to above, they had
passed their JBT course from DIET(s) of the State and were appointed
as JBTs on regular basis since bond(s) had been executed with them,
whereas selection of the original applicant for TTC training was made
of her own level at St. Bede's College, Shimla. As regards 43
candidates, the appointments were given to them in compliance to the
direction of the this Court.
.
8 The learned erstwhile Tribunal allowed the original
application by observing as under:-
"3. According to the applicant, she is entitled to appointment as
regular JBT teacher. The applicant also alleged that as per the
policy of the government the persons who had passed out JBT
were to be appointed batch-wise. The respondents instead of
appointing the applicant as regular JBT teacher, have appointed
her on contract. The applicant is fully eligible to be appointed as
regular JBT teacher.
4. The applicant had passed TTC from St. Bede's College, Shimla
during session 2001-2003 (Annexure P-1). Respondent No.2 had
addressed communication dated 29th August, 2007 (Annexure
P-2) to the Deputy Directors Primary Education that
representations had been received from a large number of
candidates who had passed JBT/TTC from RTTI Kullu and St.
Bede's College, Shimla that their names had not been mentioned
in the list of candidates sent by the institution with a direction to
them to send the names of such candidates in the proforma. The
mechanism had been devised to appoint such qualified persons
against the posts of JBTS batch-wise. The obligation was cast
on the respondents to have given wide publicity for inviting
applications/sponsorship. The respondents had not given wide
notice and the applicant cannot be faulted for non-registration of
her name with the exchange.
5. 28 JBT teachers have been appointed by the respondents on
regular basis vide order dated 2nd March, 2009 (Annexure P-5).
The appointment of the applicant vide office order dated 10th
September, 2008 (Annexure P-3) was prior to the aforesaid
appointees. The act of the respondents to appoint her on contract
had been arbitrary, discriminatory and illegal.
6. Smt. Sapna Sharma had been appointed on regular basis vide
office order dated 30th August, 2007 (Annexure P-14) and 43
.
candidates were given appointment on regular basis in sequel to
the directions in CWP No.2083 of 2009 dated 3.6.2010
(Annexure P-6) on the plea that they were similarly situate to
other candidates admitted in JBT session on the basis of result
of JBT exam announced on 16.10.2004. The applicant also
deserves similar treatment.
7. In view of the above, the transferred application is allowed
and Annexure P-11 dated 4.2.2012 is quashed and set aside.
The respondents are directed to consider the case of the
applicant for her appointment as regular JBT teacher from the
date she had joined on contract basis."
9 Aggrieved by the aforesaid order, the State has filed CWP
No. 2767/2016, wherein once again it is reiterated that the cases of
other candidates were considered on regular basis only because they
had executed bond(s) and their names were duly registered with the
employment exchange(s), whereas the other petitions have been filed
by individual(s) claiming the same benefit as granted by the erstwhile
Tribunal to Shakuntla Devi (supra).
10 We have heard learned Advocate General as also the
individual petitioners and the original applicant.
11 At the outset, it needs to be noticed that at one stage, it
was the Director of Elementary Education, who, vide letter dated
5.2.2009 had himself given justification for upholding the claim of the
individual petitioners and the original applicant and the text whereof
reads as under:
"It is submitted that vide your letter No. EDN.C.B(2)-3/2005-Vol-
.
II, dated 07.04.2008 and 06.05.2008 approval to appoint 23
candidates, who have passed their JBT training from RTTI Kullu
and TTC course from St. Bede's College Shimla and vide your
letter No.EDN.C.B(2)-3/2005, dated 07.08.2008 approval to
appoint 17 candidates, who were also trained from the above
institutes, on contract basis had been conveyed to this office.
Accordingly appointments of these 40 (23+17) candidates had
been made on contractual basis against the vacant posts of JBT
teachers in the Primary Schools.
That the Govt. vide its letter No. EDN.C.B(2)-3/2005-II-loose,
dated 20.12.2008 has conveyed approval that the 1611
candidates, who have passed their JBT training from various
DIETs of the State during the session 2006-08 be appointed on
regular basis.
Now, these 40 candidates appointed on contract basis have
made representations to the Hon'ble Chief Minister (Copies of
U.O. letter from Additional Secretary to Hon'ble CM enclosed) and
also a news item was published in the news paper "The Tribune"
on dated 02.02.2009 under the heading "Contractual JBT
teachers a harassed lot" (copy enclosed) that since they have also
passed their JBT training from the institutes recognised by the
Govt. and the candidates who have obtained trained from the
said institutions have been offered appointments on regular basis
in the past, therefore, they may also be regularised as JBT
teachers from the date of their joining on contractual basis in the
Department.
In this context it is submitted that as per the approval of the Govt.
conveyed vide its letter EDN.C.B(2)-3/2005, dated 02.08.2007,
213 candidates who have passed JBT training from RTTI Kullu
and TTC course from St. Bede's College Shimla during the year-
1999 to 2006 were offered appointments on regular basis against
the posts of JBT teachers. But 10 candidates who had also
passed their training/course during the year-1999 to 2006 were
left out. The cases of these 10 left out candidates along with
.
another 13 candidates having passed TTC from St. Bede's Shimla
in the year- 2007 were submitted to the Govt. from this
Directorate on 07.02.2008 for consideration. The Govt. as stated
above in para-I accorded approval in May 2008 to appoint these
candidates on contractual basis and thereafter also to appoint
another patch of 17 candidates having passed TTC in the year-
2008 from St. Bede's Shimla on contract basis in August, 2008.
Therefore, the 40 candidates who are working on contract basis
can not be assigned seniority as JBT teachers till the time they
are regularised on the posts of JBTs. And, if they are regularised
after the appointments are offered to the present batch of 1611
JBT trained candidates from the DIETS of the State they will
become junior to them in the JBT cadre.
The position stated above is submitted for favour of consideration
and taking further necessary action."
12 Strangely enough, the Government through its Principal
Secretary (Elementary Education), vide letter dated 10.3.2009 without
any application of mind, rejected the aforesaid proposal by observing
as under:
"I am directed to refer to your letter No. Shiksha-H (Ele)-(II) B (6)1-
1/2008-JBT dated 7-2-2009 on subject cited above and to say
that present policy of Government is to offer appointments on
contract basis. In so far as case of 1611 candidates concerned it
is a different one they were promised regular appointment by
Government as per Bond signed with them."
13 It is not in dispute that the appointment orders were
issued to 233 candidates against the posts of JBT on regular basis
and thereafter, it appears that the State appointed 40 candidates as
JBTs on contract basis including the original applicant.
.
14 While offering the appointment to applicants on contract
basis, the stand of the department was that the present policy of the
government was to offer appointment only on contract basis, whereas
policy decision, as reflected in the letter dated 12.12.2003, was not
implemented by the respondent-Department. It is apt to reproduce the
text of the letter, which reads as under:
"I am directed to say that it has been decided by the Government
that the mode of recruitment by way of "contract recruitment"
may also be prescribed in addition to other mode of recruitment in
all the Recruitment and Promotion Rules.
It is therefore, requested that all existing Recruitment &
Promotion Rules where the mode of direct recruitment of the post
has been prescribed the same may be amended. As such
provision of Col. No. 10 of the Recruitment and Promotion Rules
be prescribed in the following manner:-
"Col. No. 1: By direct recruitment or on contract basis"
Since the matter has already been approved by the Councils of
Ministers it is therefore, requested to amend the Recruitment and
Promotion Rules accordingly without referring the matter to the
Cabinet."
15 Thus, it stands established on record that the stand of the
Education Department (for short "the Department") is not only
factually incorrect, but is also against the statutory Recruitment and
Promotion Rules. The Department offered regular appointment to
JBTs in August 2007, but when it got down to 40 candidates, they
were offered appointment on contract basis, but shortly thereafter,
the Department was conveyed approval of the Government vide letter
.
dated 20.12.2008 to appoint 1611 candidates having passed JBT
course from various DIETs of the State during 2006-08 on regular
basis. This action of the government was patently against the interest
of individual writ petitioners and the original applicant.
16 It is not in dispute that the Department was well aware of
this position and it is only because of this fact that the Department
itself canvassed the cases of these 40 candidates vide its letter dated
5.2.2009 (supra) and the distinction sought to be drawn by the
government vide its letter dated 10.3.2009 (supra) is patently illegal
and violative of provisions of Constitution of India, more particularly,
articles 14 & 16 thereof and also ultra vires of the R&P Rules.
17 No doubt, the Government had decided to introduce
"contract recruitment", but the same was only by way of an additional
mode of recruitment to the regular mode of recruitment as is evident
from the letter dated 12.12.2003 (supra). These instructions cannot
have the effect of amending the statutory R&P Rules as it is more than
settled that the policy decision/administrative/executive instructions
cannot amend or modify much less overrule the statutory R&P Rules.
18 A Division Bench of this Court in its judgment, authored
by one of us (Justice Tarlok Singh Chauhan), rendered in Satish
Jamwal vs. State of HP, in 2016 (2) SLR 66 = 2016(1) Him.LR
149, had an occasion to consider the similar proposition in paras 5
and 6 thereof, which read as under:-
.
"5. Mr. R.K.Gautam, Senior Advocate, assisted by Ms. Archana
Dutt, Advocate, learned counsel for the appellants has primarily
raised three contentions:
(i) that the Recruitment and Promotion Rules are contrary to the
executive instructions issued by the Government;
(ii) that the amendment is liable to be struck down as it affects
the chances of promotion of the appellants and:
(iii) that the amendment deserves to be struck down as it is not
only illegal, arbitrary but is against the basic principles of service
law.
6. Insofar as the first contention regarding the rules not being in
tune with the executive instructions is concerned, suffice it to say
that such argument proceeds on erroneous assumptions because
it is the executive instructions that have to be in tune with the
statutory rules and not vice-versa. This aspect of the matter has
already been considered in detail by this Bench in case titled
Priyanka Gautam and others vs. State of H.P. and others, CWP
No. 354 of 2014 decided on 31st May, 2014, wherein it was held:
"13. It is settled proposition of law that executive instructions
cannot overrule or override the statutory Rules. Therefore, in case
there is a conflict between the executive instructions and the
rules made under Article 309, the rules made under Article 309
will prevail and in case there is conflict between the rules framed
under Article 309 and the law made by the legislature will
prevail. It is further trite that administrative instructions or orders
can only be issued in matters of which the Rules made under
Article 309 are silent, therefore, administrative instructions can
only supplant the Rules but cannot supplement the same. Even a
policy decision taken by the Government cannot have the force of
rule made under Article 309 of the Constitution of India. Needless
to state that Article 162 whereby the Government is competent to
issue administrative instructions/orders and Article 309 operate
in different area. In exercising the powers under Article 162, the
.
Government cannot ignore the Rules framed under Article 309.
Thus, any appointment or regularisation of an appointment made
in contravention of the rules made under Article 309 shall be
void. It is equally settled law that the rules framed under Article
309 cannot be amended or modified by an administrative order
or instruction even by way of adding to the provisions of the
statutory rule, unless there is a gap in the rule which required to
be fill up. Therefore, what essentially follows is that the
Government cannot amend or supersede the statutory Rules by
administrative instructions and it is only when the Rules are
silent on any particular point can the Government fill up the gaps
and supplant the Rules or the law by issuing instructions that too
not inconsistent with the Rules. Thus, an administrative
instruction cannot abridge or run counter to statutory provision or
Rule."
19 Further plea of the respondent-Department that the cases
of the individual petitioners and the original applicant were different
from 1611 candidates as they had been promised for regular
appointment by the Government as per the bond(s) signed with them
is also not sustainable.
20 No doubt, 1611 candidates underwent JBT course from
various DIETs of the State during 2006-2008, but their cases were not
better than the individual petitioners and the original applicant, who
too underwent 2 years TTC training, ranging from 2005 to 2008, from
one of prestigious and premier educational institutes of the country i.e.
St. Bede's College, more particularly when the examining body for the
candidates undergoing JBT training in the DIETs as also TCC training
in St. Bede's College Shimla was the same i.e. H.P. Board of School
.
Education.
21 The TTC certificate(s) issued to the individual petitioners
and the original applicant by the H.P. Board of School Education made
them as much eligible for appointment to JBT as the JBT certificate
issued to the candidates having undergone such training in DIETs.
Simply because, bond(s) was got executed with 1611 candidates could
not by itself have given them an edge much less preferential right of
regular appointment, that too, to the detriment of the individual
petitioners and the original applicant, who had already been appointed
before these 1611 candidates.
22 It is rather strange that the there were 1611 candidates,
who underwent training on subsidized rates in the Government
Institutes and on the other hand are the individual petitioners who
underwent similar training from one of the premier educational
institutes in the Country, that too at their own expenses and yet are
being discriminated for no rhyme and reason.
23 The classification as sought to be made by the
Department, to say the least, is absurd, ill-founded and has no legs to
stand.
24 As regards contention of the State that the names of the
individual petitioners and the original applicant were not registered
with the Employment Exchange and, therefore, they were not
appointed on regular basis, the Hon'ble Supreme Court in Union of
India vs. N. Hargopal (1987) 3 SCC 308, while interpreting the
.
provisions of the Employment Exchanges (Compulsory Notification of
Vacancies ) Act, 1959 held that there is no provision in the Act which
obliges an employer to employ those persons only, who have been
sponsored by the employment exchanges. It was held in para 4 of the
said judgment that Section 4(4) of the Act makes it explicitly clear
that the employer is under no obligation to recruit any person
through the employment exchanges
r to fill in a vacancy merely
because that vacancy has been notified.
25 Again in para 6 of the judgment, it was made clear that
the object of the Act is not to restrict, but to enlarge the field of choice
so that the employer may choose the best and the most efficient and to
provide an opportunity to the worker to have his claim for appointment
considered without the worker having to knock at every door for
employment. The Act does not oblige any employer to employ those
persons only who have been sponsored by the employment exchanges.
However it needs to be clarified that in the second half of the
judgment, the Hon'ble Supreme Court did observe as under:-
"In the absence of a better method of recruitment, we think that
any restriction that employment in Government Departments
should be through the medium of employment exchanges does
not offend Articles 14 and 16 of the Constitution."
26 After about a decade, the issue was again considered by
the Hon'ble Supreme Court in Excise Superintendent Malkapatnam
.
vs. K.B.N. Visweshwar Rao (1996) 6 SCC 216, wherein in para 6
thereof, it was observed as under:-
6. Having regard to the respective contentions, we are of the view
that contention of the respondents is more acceptable which
would be consistent with the principles of fair play, justice and
equal opportunity. It is common knowledge that many a
candidates are unable to have the manes sponsored, though their
names are either registered or are waiting to be registered in the
employment exchange with the result that the choice of selection
is restricted to only such of the candidates whose names come to
be sponsored by the employment exchange. Under these
circumstances, many a deserving candidate are deprived of the
right to be considered for appointment to a post under the state.
Better view appears to be that it should be mandatory for the
requisitioning Departments for selection strictly according to
seniority and reservation as per requisition. In addition the
appropriate Department or undertaking or establishment should
call for the manes by publication in the newspapers having wider
circulation and also display on their office notice boards or
announce on radio, television and employment news-bulletins:
and then consider the cases of all the candidates who have
applied. If this procedure is adopted, fair play would be
subserved. The equality of opportunity in the matter of
employment would be available to all eligible candidates".
27 Later, about two decades after the decision in N.
Hargopal's case supra, the issue yet again came up for consideration
before the Hon'ble Supreme Court in Arun Kumar Nayak vs. Union
of India (2006) 8 SCC 111, wherein ratio laid down in N. Hargopal's
case supra was held to be still occupying the field in last portion of
para 10 of the judgment.
.
28 Thus, the law, as it stands today, is that in order to attract
the best talent, consideration of names of only those, who have
registered with the Employment Exchange/sponsored by the
employment exchange, cannot be restricted, rather the appropriate
department or undertaking or establishment is required to call for all
names by publication in the newspapers having wider circulation and
also display on their office notice boards or announce on radio,
television and employment news bulletins and; then consider the case
of all the candidates who have applied. This would ensure fair play
and meet test of equality of opportunity in the matter of employment to
all eligible candidates.
29 In view of the aforesaid discussions and the reasons, CWP
No. 2767/2016 is dismissed, whereas all other petitions are allowed.
Consequently, the impugned memo(s), issued in some of the cases by
the Department, whereby pay fixation and seniority assigned to the
individual petitioner(s) have been withdrawn, shall stand quashed and
set aside and the individual petitioners and the original applicant shall
be deemed to be appointed on regular basis and not on contract basis
from their date(s) of appointment and are held entitled to the actual
consequential benefits including and not limited to pay and seniority,
from the due date, in accordance with judgment rendered by the
erstwhile Tribunal in T.A. No. 2665/2015. The parties are left to bear
their own costs.
.
(Tarlok Singh Chauhan)
Judge
(Virender Singh)
2.1.2023 Judge
(pankaj)
r to
