Himachal Pradesh High Court
_______________________________________________________ vs State Of Himachal Pradesh & Ors on 5 January, 2024
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CWP No.224 of 2024
Decided on: 05.01.2024
_______________________________________________________
Prakash Chand Bhardwaj & Ors. ....Petitioners
.
Versus
State of Himachal Pradesh & ors. ....Respondents
Coram
Hon'ble Mr. Justice Ranjan Sharma, Judge
1 Whether approved for reporting? Yes
For the petitioners : Mr. Bhuvnesh Sharma, Senior
of
Advocate with Mr. Parav Sharma
and Mr. Rahul Thakur, Advocates.
For the respondents : Mr. Rajan Kahol, Additional
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Ranjan Sharma, Judge (Oral)
Advocate General.
Notice. Mr. Rajan Kahol, 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.
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
Whether reporters of Local Papers may be allowed to see the judgment? Yes
with the following prayer(s):-
"(I) That the initial appointment of petitioners may kindly
be directed to be deemed to be on regular basis
instead of contract basis with all consequential
.
benefits as held in similar case of Kuldip Chand vs.
State of H.P. in CWP No.414/2014.
ii) That the pay of the petitioners be accordingly directed
to be re-fixed w.e.f. initial appointment and for the
purpose of retiral benefits and pay etc. be released, in
the interest of justice."
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4. In the background, of the reliefs prayed for
above, the brief facts and that the respondents commenced
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the selection process for appointment to the post of
Trained Graduate Teachers [Arts/Medical/Non Medical] in
2008-2009, on contract basis, on Batch wise Basis, 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 Trained Graduate Teachers [Arts/Medical/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 selection for
.
appointment as TGT [Arts/Medical/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
of
Himachal Pradesh Elementary Education Department,
[Class-III] [Non Gazetted], Recruitment and Promotion
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Rules on 17.05.2010 and once these Rules of 2010 were
only prospective in nature then, the petitioners could not
have been appointed on contract basis, meaning thereby,
that the petitioners 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 TGTs [Arts/Medical/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 the Recruitment and
Promotion Rules for Trained Graduate Teachers 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. 01.01.2006 and higher pay
till day 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
of
Constitution of India.
6. The question, as to whether the incumbents
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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 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, (Annexure P-5) 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
of
Himachal Pradesh and others, decided on 08.10.2012; and
the judgments passed by the Coordinate Bench of this Court
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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-6) 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.
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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
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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
of
appointments are made in accordance
with the Rules framed under Article
rt 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
of
instant case, in view of Recruitment
and Promotion Rules of Lecturer
rt (School cadre) as they existed on
6.2.2007 i.e. the date of takeover,
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 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 similar incumbents, from
.
the date of their initial appointment on contract basis 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
of
State of Himachal Pradesh & ors., and in compliance
thereof the respondents have issued communication on
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26.09.2020 and 29.09.2020.
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
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 Ravinder
Kumar, decided on 04.10.2019, (Annexure P-6) the benefit
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of deemed regular appointment from the date of initial
contractual appointment has been given to the Lecturers
(School Cadre).
.
9. On same analogy, by applying the same principle
in law, 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,
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affirmed in LPA No.54 of 2013 titled as State of Himachal
Pradesh & ors. versus Om Prakash, decided on
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04.10.2019, (Annexure P-6) 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 selection was initiated under the Recruitment &
Promotion Rules of 1973, which provided for regular
appointment in regular pay then, the respondents cannot
give appointment to incumbents on contractual basis in
fixed emoluments; when, the contractual mode of
recruitment-appointment was incorporated in the Rules
much after the incumbents-petitioners had joined; and
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when,the amendment in Rules introducing contractual
mode of appointment(s) could not be applied retrospectively
to the disadvantage and prejudice of the incumbents-
.
petitioner(s), so as to curtail or take away or restrict or deny
the rights and benefits which had or were to accrue under
the Rules of 1973, under which, the selection-recruitment
process of the petitioner(s) was initiated.
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11. In this view of the matter, the Government-
Respondents have issued an order on 01.12.2023 (Annexure
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P-10), 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.
12. By applying the above mandate of law; which
stands implemented by the respondents; and once the
petitioners, being similarly placed are entitled to deemed
regular appointment as Trained Graduate Teachers w.e.f.
2008-2009 (as the case may be), from the date from
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which they were initially appointed, on contract basis, with
benefit of regular status, regular pay scale, pay fixation in
regular scale from the date of initial joining on contract basis
.
in 2008-2009 in applicable scale and then in revised pay
scales w.e.f. 01.01.2016 till day; but denial is a recurring
loss till day; and the action of the respondents, amounts to
treating petitioners-equals as unequal, is violative of
of
Articles 14 & 16 of the Constitution of India.
13. Per contra, Mr. Rajan Kahol, learned Additional
Advocate
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General submits that 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 5, 6 to 8, 10 & 12] and the
directions/orders passed in case of Tej Ram and Rakhi and
Kuldip Chand [relating to Shastri and Language Teachers
as mentioned in Para 7] supra and the implementation
order dated 01.12.2023 [Annexure P-10], is not in dispute
but, the factual aspects needs to be looked into and verified,
on case to case basis.
14. In these circumstances, and on the request
of learned counsel for the petitioners, on instructions
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of the petitioners, this Court permits the petitioners to make
a representation, either jointly or separately, to the
Respondents/Competent Authority within three weeks; with
.
further directions to the aforesaid Respondent to verify the
facts; and in case, the petitioners are found to be similarly
placed then, to consider/examine the case of the petitioners
for extending similar benefits of deemed regular appointment
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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.
15. 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 that the respondents
shall give the eligible monetary benefits, admissible to the
petitioner, in accordance with law.
16. 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.
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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 05, 2024 Judge
(himani)
of
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