Anuradha & Ors vs State Of Himachal Pradesh & Ors
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Himachal Pradesh High Court

Anuradha & Ors vs State Of Himachal Pradesh & Ors on 1 January, 2024

           IN THE HIGH COURT OF HIMACHAL PRADESH
                          AT SHIMLA
                                       CWP No.10903 of 2023
                         Decided on: 01.01.2024




                                                                          .
    _______________________________________________________





    Anuradha & Ors                                                       ....Petitioners

                                              Versus





    State of Himachal Pradesh & ors.                                     ....Respondents




                                                of
    Coram
    Hon'ble Mr. Justice Ranjan Sharma, Judge
    1 Whether approved for reporting?

    For the petitioners
                      rt                  :    Mr. V.B. Verma, Ms. Anu
                                               Minhas    and    Mr.   Mukul
                                               Sharma, Advocates.

    For the respondents                   :    Mr. Vishal Panwar, Additional
                                               Advocate General.
    Ranjan Sharma, Judge (Oral)

Notice. Mr. Vishal Panwar, learned Additional

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 the

pleadings.

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

3. The petitioners, initially appointed as Trained

Graduate Teachers (TGTs) and some are presently

working as Lecturer, School Cadre, have filed the instant

.

writ petition with the following prayer(s):-

"(I) Issue a writ of Mandamus directing the

respondents to regularize the services of the petitioners with effect from the date of their initial engagement/appointment with all

of consequential benefits in terms of the judgments passed by this Hon'ble Court in CWP7602/2010, rt titled as Om Parkash Vs. State of H.P. & 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 vs. 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 their initial appointment to fill 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) & Mr. Kuldip Chand (TGT, now Lecturer) in terms of judgments passed in CWP 7602/2010, titled as Om Parkash Vs. State of H.P. & Others, and connected matters, CWP No.3144 of 2011, titled as Anju Devi Versus

State of H.P. and others by this Hon'ble Court."

4. In the background of the reliefs prayed for

above, the brief facts of the case is that the respondents

.

commenced the selection process for appointment to the

post of Trained Graduate Teachers [Non Medical] in

2008-2009, on Batch wise Basis, on regular basis, in the

of Department of Education, of the State Government in

accordance with the Himachal Pradesh Education rt Department, Class-III (School and Inspection Cadre)

Services Rules, 1973 but, instead of appointing them on

regular basis as Trained Graduate Teachers [Non

Medical] they were appointed on contractual basis in

2008-2009. The petitioners continued as such and they

were regularized in the year 2015.

5. Now, the only grievance of the petitioners is

that though as per the Himachal Pradesh, Education

Department Class-III [School and Inspection Cadre]

Service Rules, 1973, the petitioners had undergone the

selection for appointment as Trained Graduate Teachers

[Non Medical] in 2008-2009 on regular basis but, were

wrongly and illegally appointed on contract basis when,

contractual mode-nomenclature of appointment was

.

introduced in the Himachal Pradesh Elementary

Education Department, [Class-III] [Non Gazetted],

Recruitment and Promotion Rules on 17.05.2010 and

once these Rules of 2010 were only prospective in nature

of then, the petitioners could not have been appointed on

contract basis, meaning thereby, that the petitioners had rt 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 Trained Graduate Teachers [Non

Medical] in 2008-2009 from the date they were appointed

as such on contract basis [prior to insertion of

contractual mode-nomenclature of appointment in Rules

on 22.10.2009]; 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

regular date, higher pay in revised pay scales w.e.f.

01.01.2016 and higher pay till day which is a recurring

.

loss till day. Even this action has resulted in depriving

the petitioners of the pension on superannuation which

is violative of Articles 14 & 16 of the Constitution of

India.

of

6. The question, as to whether the incumbents

who had undergone selection for the post of Trained rt 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 the

years 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 22.09.2010 [in case of

Lecturers School Cadre], 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 along with connected

matters, decided on 02.05.2012 and in CWP No.3143 of

2011, titled as Manju Devi versus State of Himachal

of Pradesh and others, decided on 07.11.2012, and

CWP No. 3144 of 2011, titled as Anju Devi vs. State of rt Himachal Pradesh and others, decided on 08.10.2012;

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

Himachal Pradesh and Others vs. Om Parkash, decided

on 04.10.2019, Annexure P-7 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

of question was amended and notified, incorporating contractual appointments, as one of the mode of recruitment.

rt 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

of reproduced hereinafter:-

"25......................Government appointments are made in accordance with the Rules framed rt 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

of over, whereunder no provision for appointment on contract basis was there, regular recruitment

rt 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 submit 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

- 10 -

similar incumbents, from the date of their initial

appointment on contract basis in the years 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

of communication on 20.09.2020.

Even a perusal of the orders in Execution rt Petition No.94 of 2020, titled as Kuldip Chand versus

State of Himachal Pradesh and others, decided on

28.11.2023, 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 her 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

- 11 -

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, CWP No.3144 of 2011, upheld in LPA No. 4059 of

213, titled as State of Himachal Pradesh & ors. versus

of Anju Devi and on the basis of CWP No.7602 of 2010,

affirmed in LPA No.54 of 2013 titled as State of rt 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 the

respondents cannot give have given appointment to

- 12 -

incumbents on contractual basis, in fixed emoluments;

by acting de hors 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

of retrospectively to the disadvantage and prejudice of the

incumbents so as to curtail their rights which had rt 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

(Annexure P-12), to implement the judgment and to give

deemed regular appointments [to the appellants-

petitioners therein as Shastri Teachers-Language

Teachers; as Trained Graduate Teacher (Non-Medical);

and as Lecturers (School Cadre) in the applicable regular

pay scale, with pay fixation and other benefits from the

- 13 -

date they were initially appointed on contract basis; then,

once the petitioners are similarly placed, therefore, they

are entitled to deemed regular appointment as Trained

.

Graduate Teacher from 2010 and 2011 respectively i.e.

the date from which they were initially appointed on

contract basis, with pay fixation, ACP, service benefits in

regular pay scale with all benefits; but the denial of

of regular status, regular pay scale, pay fixation in regular

scale from such deemed date of regular appointment and rt the revised pay scales w.e.f. 01.01.2006 till day; is a

recurring loss till day; and the action of the respondents

amounts to treating '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 the directions/orders passed in case of

- 14 -

Tej Ram and Rakhi and Kuldip Chand [relating to

Shastri and Language Teachers as mentioned in Para 9]

supra and the implementation order dated 01.12.2023

.

(Annexure P-12), 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

of petitioners, this Court permits the petitioners to make

representation, rt either jointly or separately, to the

Respondent No.3-Director of Elementary Education,

Himachal Pradesh/Competent Authority, in continuation

of earlier representations [Annexure P-13 (colly)] within

three weeks; with further directions to the aforesaid

Respondent/Competent Authority 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 Trained Graduate Teachers, in the light of above

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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 Trained Graduate

Teachers, from the date of initial appointment on

contractual basis, then, the respondents shall grant the

consequential benefits notionally. However, it is clarified

of that the respondents shall give the eligible monetary

benefits, admissible to the petitioner, in accordance with rt 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)
    January 01, 2024                                        Judge
           (himani)