Himachal Pradesh High Court

Surinder Kumar & Ors vs Respondents on 20 September, 2024

( 2024:HHC:8865-DB )

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

CWP No. 3280 of 2022 a/w CWP Nos.

7913 of 2022, 8937 of 2022 and 4324 of 2023.

Reserved on: 13th September, 2024.

Date of Decision : 20th September, 2024.

1. CWP No. 3280 of 2022.

Surinder Kumar & Ors. ...Petitioners.

State of H.P. & another.

2. CWP No.7913 of 2022.

Versus

....Respondents.

    Ram Lal & others                             ....Petitioners.

                             Versus



    State of H.P. & others                      ..Respondents.

    3. CWP No. 8937 of 2022




    Naresh Kumar & Ors.                          ...Petitioners.





                             Versus





    State of H.P. & Ors.                         ....Respondents.

    4. CWP No. 4324 of 2022.

    Shyam Singh & Ors.                           ...Petitioners.

                             Versus

    State of H.P. & Ors.                         ....Respondents.





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    Coram:




                                                                           .

The Hon'ble Mr. Justice Satyen Vaidya, Judge.

Whether approved for reporting?1 Yes.

For the Petitioner(s): Mr. K. D. Shreedhar, Senior

Advocate with Ms. Sneh Bhimta, Advocate for the petitioners in CWP No. 3280 of 2022.

Mr. Kush Sharma, Advocate, for the petitioners in CWP Nos. 7913 of 2022, 8937 of 2022 and 4324 of 2023.

For the Respondents: Mr. Sidharath Jalta, Deputy

Advocate General.

Satyen Vaidya, Judge.

All these petitions have been heard and are being

decided together as common questions of facts and law are

involved.

2. Petitioners are seeking relief of regularization of

their services w.e.f. 09.12.2014 instead of 20.08.2020, as has

been ordered to be done in their case vide impugned

communication dated 05.08.2020.

3. The Government of Himachal Pradesh had framed

and adopted Primary Assistant Teachers (PAT) Scheme 2003.

All the petitioners had their respective initial appointments

Whether reporters of the local papers may be allowed to see the judgment?

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under the said scheme between the years 2003-2007. During

continuance of the PAT scheme, NCTE and State Government

prescribed certain qualifications for the persons appointed

under said scheme to be fulfilled, as pre requisite for being

considereded for regularization against the vacant posts of

Junior Basic Teachers (JBT). Petitioners are stated to have

4. to acquired all such requisite qualifications.

The case as set up by the petitioners is that the

State Government had also framed and adopted similar

schemes in the years 2001 & 2003 namely as H.P. Gram

Vidya Upasak Yojana, 2001 and Himachal Pradesh Para

Teacher Policy, 2003 (for short "GVU and Para Teachers

Policies"). It is alleged that since the incumbents appointed

under the aforesaid schemes had already rendered services

for long durations on meager emoluments, the State

Government had taken a decision to regularize their services

on fulfillment of conditions of the R&P Rules for the post

against which the regularization was proposed. It has been

averred that the category of Vidya Upasak appointed under

the GVU Scheme was merged with PAT in the year 2005. It is

further submitted that the State Government had regularized

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the services of Gram Vidya Upasaks in the year 2011 on

completion of eight years' service under GVU scheme. As per

the petitioners, the State Government had taken a decision to

regularize the services of the petitioners and Para Teachers

but in the meanwhile, certain writ petitions were filed in this

Court challenging the appointments under the aforesaid

schemes and the regularization proposed by the State

Government. In the case of PAT, learned Single Judge of this

Court had allowed the writ petitions. The respondents-State

was directed to phase out the teachers appointed under the

PAT scheme in a phased manner and to commence the

selection process for filling up the posts of JBTs strictly as per

the Recruitment and Promotion Rules and requirements of

NCTE. The respondent/State was further directed not to

regularize the services of the teachers dehors the R&P Rules.

5. The judgment passed by the learned Single Judge

was assailed by the State Government as also by the certain

private individuals by way of Letters Patent Appeals, which

were decided by a common judgment dated 09.12.2014 by

the Principal Division Bench of this Court, whereby the

judgment passed by the learned Single Judge was set aside

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and the decision of the State Government to regularize the

services of the incumbents appointed under the aforesaid

schemes was upheld. It has further been submitted that the

judgment dated 09.12.2024 passed by the Principal Division

Bench of this Court was assailed before the Hon'ble Supreme

Court and was affirmed vide judgment dated 17.04.2020

passed in Civil Appeal No. 2813 of 2017 with Civil Appeal

No(s). 2814 and 2815 of 2017 titled as Chander Mohan

Negi & Ors. vs. State of H.P. & Ors. (reported in (2020)5

SCC 732).

6. As per the petitioners, after passing of judgment

dated 09.12.2014 by the Principal Division Bench of this

Court, the services of number of Para Teachers were

regularized by the State Government on 18.12.2014.

Though, the services of the petitioners were also intended to

be regularized after passing of the judgment by the Division

Bench of this Court, but could not be done on account of an

interim order passed by the Hon'ble Supreme Court in Civil

Appeal No. 2813 of 2017 with Civil Appeal No(s). 2814 and

2815 of 2017, titled as Chander Mohan Negi & Ors. vs. State

of H.P. & Ors. After the decision in Civil Appeal No.2813 of

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2017 with Civil Appeal No(s).2814 and 2813 of 2017, the

State Government took a decision dated 05.08.2020 to

regularize the services of the petitioner prospectively. It is

this decision of the State Government, which is under

challenge by way of the instant petitions.

7. Petitioners have alleged discrimination vis-a-vis

similarly situated persons appointed under the GVU and Para

Teachers Schemes. It is contended by the petitioners that the

aforesaid schemes were adopted by the State Government

with a similar objective and though the incumbents under

GVU and Para Teachers schemes were regularized on

completion of 8/10 years of service, but the petitioners have

been discriminated by regularizing them after service of more

than 15 to 17 years. Petitioners have placed reliance on

communicated dated 05.08.2020 in respect of Para Teachers,

whereby the left out Para Teachers have been ordered to be

regularized notionally w.e.f. 18.12.2014, when other

incumbents appointed under Para Teacher Scheme were

regularized.

8. The respondents have filed their reply. Though,

the factual aspects as asserted in the petitions have not

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specifically been denied or controverted, the decision to

regularize the services of the petitioners prospectively has

been sought to be justified on the grounds that firstly, the

Division Bench of this Court or the Supreme Court has not

specified any date for the regularization of the petitioners and

secondly, the decision of the Council of the Ministers also

9. to provides for prospective regularization.

I have heard learned counsel for the parties and

have also gone through the record carefully.

10. Petitioners are claiming parity with the treatment

given to the incumbents under the GVU and Para Teachers

Schemes. Their contention is that all these schemes were

contemporaneously framed by the State Government with

identical objectives. It is also submitted that at one stage the

State Government had taken a decision to grant benefit of

regularization to all the incumbents appointed under the

aforesaid schemes equally, provided that they fulfilled the

conditions prescribed under respective R&P Rules. Whereas,

the incumbents under GVU and Para Teachers Schemes got

the benefit of regularization, the petitioners were divested

therefrom on account of litigation initiated by certain persons

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against the State Government, in which petitioners were not

even impleaded as parties. It is further contended that later

decision of the State Government to grant benefit of

regularization to the petitioner prospectively is arbitrary and

hence discriminatory in nature, thus, violating Articles 14 and

16 of the Constitution of India.

11.

As noticed above, the respondents have sought to

justify their action on the grounds, firstly, this Court or the

Hon'ble Supreme Court had not prescribed any date for

regularization of the petitioners and secondly, the State

Cabinet had taken a decision to regularize the services of the

petitioners prospectively.

12. Petitioners have specifically alleged that the

objective behind formulation and adoption of PAT, GVU and

Para Teachers Schemes was to fulfill the legislative mandate

of Article 21-A of the Constitution of India and to fulfill the

aims and objectives of National Policy of Education, 1986 as

also the Himachal Pradesh Compulsory Primary Education Act,

1997. Petitioners have further submitted that since the State

Government was facing dearth of qualified teachers in schools

situated in tribal/difficult and other areas of the State, the

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appointments under the aforesaid schemes were found to be

the solution.

13. Noticeably, the respondents in their reply have not

controverted such assertions made by the petitioners with

respect to the appointments under the PAT Scheme. As

regards appointments under two other schemes, reply has

been conspicuously silent.

to The above context was also

noticed by the Principal Division Bench of this Court vide

judgment dated 09.12.2014 passed in a bunch of matters

with CWP No. 6916 of 2011 as lead case in following

manner:-

"2. The State, after noticing the dire need of providing education at grass root level and

particularly, in tribal and hard/difficult areas, made

the policies/schemes in the years 2001 and 2003, appointed Gram Vidya Upasaks, Primary Assistant Teachers and Para Teachers. It is apt to reproduce

the relevant portion of one of the policies, i.e. the Himachal Pradesh Gram Vidya Upasak Yojna-2001 herein:

"2. Rationale:-

The task of universalization of Primary Education in Himachal Pradesh is a gigantic one keeping in view the tough geographical conditions of the State and the non-

availability of trained teaching man power.

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The trained teachers available in the urban

.

and other developed areas are reluctant to

serve in the remote areas as a result of which most of our schools in these areas are without teachers. In the remote and

inaccessible areas of the State, the Department of Primary Education faced many problems like teacher absenteeism, poor scholastic standards which led to

irregular functioning of primary schools and increased drop-out rate. In order to counter these problems effectively and to translate

the vision of the State Govt. reflected in the

NINE POINTCHARTER announced by Hon'ble Chief Minister, Himachal Pradesh, Prof. Prem Kumar Dhumal, to bring REFORMS

and to accelerate the pace of development, by decentralising the power to panchayats, the HP GRAM VIDYA UPASAK YOJNA has

been visualised.

The Department of H.P. Primary Education

has conceived this innovative scheme of H.P. Gram Vidya Yojna-2001 to relate it to

the concept of Para Teachers keeping in view the problem of teacher absenteeism in the remote and difficult rural areas. It is difficult to find fully qualified teachers who would willingly accept posting in remote villages, far less actually take up residence there. A primary school in such a village actually tends to become dysfunctional, and parents as well as children fail to relate to such an institution, leading to high drop

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out rates. One of the ways to solve this

.

problem is the concept of Para Teachers.

The use of Para Teachers in formal schools began with the Himachal Pradesh Volunteer Teachers Scheme in 1984 and replicated by

Vidya Upasaks Yojna in the year-2000 which was followed in Primary Education by other States."

14. In the aforesaid litigation, the State of Himachal

Pradesh had throughout taken the stand supporting its

schemes and decision to regularize the incumbents appointed

thereunder. Hon'ble Supreme Court had noticed the

submissions made by learned Senior Counsel representing

the State Government in Civil Appeal No. 2813 of 2017

with Civil Appeal Nos. 2814 and 2815 of 2017 as under:-

"9. On the other hand Sri Patwalia, learned senior counsel appearing for the State of Himachal

Pradesh has submitted that the Primary Assistant Teachers Scheme of 2003 (PAT Scheme) was

notified on 27 th August 2003 and under the said Scheme, Primary Assistant Teachers were appointed by the respective Gram Panchayats in the area where the primary school was located, keeping in view the non-availability of trained teaching manpower in the remote and backward areas in view of the tough topographical conditions of the State. The object of the Scheme was to compulsorily enrol children in schools for elementary and primary education by providing

...12... ( 2024:HHC:8865-DB )

such teachers to achieve the goals set by the

.

Government in enacting, The Himachal Pradesh

Compulsory Primary Education Act, 1997. It is submitted that such appointments were made on the monthly remuneration of Rs.2000/- and the

honorarium was increased in July 2013 to Rs.8900/-. It is submitted by the learned counsel that in all 3294 candidates who are working now have acquired the professional qualification of

diploma in elementary education or have undergone Professional Development Programme for Elementary Teachers. Similarly, for Para

Teachers who are engaged under the policy of the

State dated 17.09.2003, the policy comprises of Classical and Vernacular teachers, Trained Graduate Teachers, D.P.E.'s (School Cadre), i.e.,

teachers teaching physical education, and Lecturers (School Cadre). It is submitted that so far as this Scheme is concerned even as per the policy

the qualification for the post of Para Teachers was as prescribed in the Recruitment and Promotion

Rules applicable at the relevant time. Thus, all the persons who are recruited as Para Teachers are

fully qualified as per Recruitment and Promotion Rules which were in force. Further it is submitted that even the third category, of teachers appointed under the Scheme, fulfil the educational qualifications prescribed in the Recruitment Rules. As such, a Cabinet decision was taken on 31.07.2013 to take over such teachers on contract basis after they have completed eight years of service which was subsequently reduced to seven years by Cabinet decision dated 27.12.2014. It is

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further submitted that out of 6799 teachers 5017

.

teachers were taken over on contract basis by the

State Government, only 1782 lecturers could not be taken over in view of the interim orders passed by this Court. It is submitted that all the teachers,

however, fulfill all the qualifications required under service rules. Lastly, it is submitted C.A.Nos.2813 of 2017 etc. that all the appointments were made when such schemes were announced and the PTA

teachers were lastly appointed upto 2008 and since 2008 regular appointments have been made as per service rules."

15. Thus, there remains no doubt that there was no

substantive distinction between the objectives behind the

aforesaid schemes and there is also nothing to suggest that

the State Government had ever intended to carve out any

distinction between the incumbents under these schemes for

the purpose of regularization of their services.

16. It is also clearly made out that the petitioners

could not be regularized on account of pending litigation.

Undisputably, no fault can be found with the petitioner either

for pendency or prolongation of such litigation as they were

not even impleaded as parties.

17. The decision of the State Government to regularize

services of the incumbents under PAT, GVU and Para

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Teachers Schemes stands already upheld by the Division

Bench of this Court as noticed above vice judgment dated

09.12.2014. In Para-29 of the said judgment the Court had

observed as under:-

"29. While applying the tests laid down by the Apex Court in the judgments (supra) and keeping in view

the aim and object of the policies of the State Government, the appointments made cannot be said to be illegal, thus, can be regularized as per the mandate of the said policies."

18. Importantly, the plight and circumstances of the

petitioners and the similarly situated persons under similar

schemes were also noticed vide aforesaid judgment in

following terms:-

"50. It pains us to record here that the State Government has utilized the services of the said

teachers right from the year 2003, they have lost their youth and are performing their duties with legitimate expectations and the Government, after taking note of

their work and conduct, as discussed hereinabove and at the cost of repetition, came forward and regularized their services and by now, they must have crossed the age of consideration and the impugned judgment has taken away their bread, not only the bread, but has affected their matrimonial home and their family and career of their children for no fault of theirs."

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19. Hon'ble Supreme Court while affirming the view

.

taken by the Division Bench of this Court while deciding the

Chander Mohan Negi's case (supra) has held as under:-

"13. It is true that in the initial schemes notified by the Government there was a condition that such appointees should not seek regularisation/ absorption but at the same time for no fault of

them, they cannot be denied regularisation/absorption. It is in view of the requirement of the State, their services were

extended from time to time and now all the

appointees have completed more than 15 years of service. For majority of the appointed teachers under the various schemes benefit was already extended and some left over candidates were

denied on account of interim orders passed by this Court. With regard to Primary Assistant Teachers, it

is stated that all the candidates have completed Special Teacher Training Qualifying Condensed

Course and also had obtained special JBT certificate after 5 years' continuous service in terms of the Himachal Pradesh Education Code

1985. The judgments relied on by learned counsel Sri Prashant Bhushan also would not render any assistance to the case of the appellants herein for the reason that there was unexplained and inordinate delay on the part of the appellants in approaching the High Court and further having regard to explanation offered by the State about the need of framing such policies to meet the immediate requirement to fill up single teacher

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schools which were vacant for a very long time,

.

having regard to topographical conditions, which is

not even controverted by way of any rejoinder before the High Court. In such view of the matter, taking the totality of peculiar circumstances of

these cases, we are of the view that the view expressed by this Court in the judgments relied on cannot be applied to the facts of the case on hand. All the appointed candidates are working for the

meagre salaries pursuant to schemes notified by the Government. Except the vague submission that such schemes were framed only to make back door

entries, there is no material placed on record to

buttress such submission. Further it is also to be noted that though such schemes were notified as early as in 2003, nobody has questioned such

policies and appointments upto 2012 and 2013. The writ petition, i.e., C.W.P.No.3303 of 2012-A was filed in the year 2012 without even impleading the

appointees as party respondents. In the writ petition there was no rejoinder filed by the writ

petitioners disputing the averments of the State as stated in the reply affidavit. Having regard to

nature of such appointments, appointments made as per policies cannot be termed as illegal. Having regard to material placed before this Court and having regard to reasons recorded in the impugned order by the High Court, we are of the view that no case is made out to interfere with the impugned judgment of the High Court."

...17... ( 2024:HHC:8865-DB )

20. As against above, the stand now sought to be

.

taken by the respondents clearly is without any justification.

Merely because this Court or the Supreme Court had not fixed

any date for grant of benefit of regularization to the

petitioners, the State Government is not absolved from its

duty to grant the petitioner benefits at par with similarly

situated persons. Also because the State Cabinet has taken a

decision to grant benefit of regularization to the petitioners

prospectively, the same cannot be a valid reason to

discriminate the petitioners.

21. As the parity of status inter se the incumbents

under PAT, GVU and Para Teachers Schemes has already

been considered and decided by this Court and Supreme

Court and more particularly when the State Government had

also made the same proposal, it cannot now turn around; as

such conduct of the State Government is clearly barred by the

principle of estoppel and res judicata. Even otherwise, the

State Government has not been able to put forth any

plausible reason for discriminating against the petitioners. On

the same date i.e. on 05.08.2020, on one hand the State

Government has decided to grant the benefit of regularization

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to petitioners prospectively and on the other it has decided to

.

confer benefit of regularization on Para Teachers

retrospectively, though on notional basis. In my considered

view, all the incumbents under the PAT, GVU and Para

Teachers Schemes formed a single class, keeping in view the

object behind their appointments and treatment given to

them by the State Government. The exclusion of petitioners

by not conferring upon them the benefit of regularization on

completion of 8/10 years of service, as has been done in the

case of GVU and Para Teachers, amounts to creation of a

class without there being any intelligible differentia.

22. In light of above discussion, petitions are allowed.

The decision of respondents to regularize the services of the

petitioners prospectively w.e.f. 20.08.2020 is quashed being

violative of Articles 14 and 16 of the Constitution of India.

The petitioners are held entitled to regularization from the

date of completion of their respective services of 8/10 years,

as adopted in the cases of GVU and Para Teachers. Since, the

respondents have already granted such benefit to the Para

Teachers w.e.f. 18.12.2014, the respondents are directed to

regularize the services of the petitioners with all

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consequential benefits from that date i.e. 18.12.2014. With

.