Madhya Pradesh High Court

Prashant Kumar Agrawal vs The State Of Madhya Pradesh on 18 March, 2025

Author: Vishal Mishra

Bench: Vishal Mishra

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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 18th OF MARCH, 2025
WRIT PETITION No. 997 of 2022
SHIKSHA GUPTA AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Rohan Harne - Advocate for petitioners.
Shri Mohan Sausarkar - Government Advocate for respondents/State.
WITH
WRIT PETITION No. 28408 of 2021
VIPIN SINGH
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri K.K. Gautam - Advocate for petitioner.
Shri Mohan Sausarkar - Government Advocate for respondents/State.

WRIT PETITION No. 153 of 2022
PRASHANT KUMAR AGRAWAL
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Rajesh Kumar Sahu - Advocate for petitioner.
Shri Mohan Sausarkar - Government Advocate for respondents/State.

WRIT PETITION No. 431 of 2022
KHUSHBU KHAN
Versus
THE STATE OF MADHYA PRADESH AND OTHERS

Signature Not Verified
Signed by: SUSHEEL
KUMAR JHARIYA
Signing time: 07-04-2025
11:03:15
2 WP-153-2022
Appearance:
Shri Ravindranath Chaturvedi - Advocate for petitioner.
Shri Mohan Sausarkar - Government Advocate for respondents/State.

WRIT PETITION No. 845 of 2022
VIJAY TIWARI
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Prabhat Kumar Shukla - Advocate for petitioner.
Shri Mohan Sausarkar - Government Advocate for respondents/State.

WRIT PETITION No. 1565 of 2022
NETRAVATI PATEL AND OTHERS
Versus
STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Prabhat Kumar Shukla - Advocate for petitioners.
Shri Mohan Sausarkar - Government Advocate for respondents/State.

WRIT PETITION No. 1568 of 2022
DEV SHARAN PRAJAPATI
Versus
STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Prabhat Kumar Shukla - Advocate for petitioner.
Shri Mohan Sausarkar - Government Advocate for respondents/State.

WRIT PETITION No. 4890 of 2022
DHANIRAM KUMHAR
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Prabhat Kumar Shukla - Advocate for petitioner.

Signature Not Verified
Signed by: SUSHEEL
KUMAR JHARIYA
Signing time: 07-04-2025
11:03:15
3 WP-153-2022
Shri Mohan Sausarkar - Government Advocate for respondents/State.

ORDER

Since a common question is involved in all these cases, they are being taking into consideration in analogous hearing and are being decided by this common order. For the sake of convenience, the facts stated in W.P.No.997 of 2022 are taken into consideration.

2. All these petitions have been filed by the petitioners seeking continuation as Guest Faculty till regular appointment is made by the State.

3. It is the case of the petitioners that they are working on the post of Guest Faculty (Mehman Pravakta) in various ITIs of the State Government since their joining and are having experience in their credits. They are having all the required qualifications to hold the post in question. Their appointments were made after undergoing the due process of selection. It is submitted that the circular dated 30.06.2018 issued by the Government provides that advertisement for fresh recruitment of Guest Faculty shall be issued only for those posts that are lying vacant or where the guest faculty posted has left the job voluntarily or/and on the new posts created, whereas the guest faculty who is already working and has not left the job voluntarily shall be continued without undergoing any selection process till the regular appointment is made. On 14.12.2021, an advertisement was issued inviting applications for appointment to the post of Guest Faculty for sessions 2021 - 2022 in various ITIs of the State of Madhya Pradesh. In view of the aforesaid advertisement, there is an apprehension that the petitioners may be

removed from the posts, which is illegal and arbitrary. The impugned

4 WP-153-2022 advertisement is contrary to the circular dated 30.06.2018.

4. It is argued that a Division Bench of this Court had an occasion to deal with cases of similarly situated employees like petitioners and a detailed order has been passed in analogous hearing with other writ petitions, main petition being W.P.No.6159 of 2022 Pradeep Kumar Yadav vs. State of M.P. and others) wherein it is held that aset of contractual employees cannot be replaced by another set of contractual employees. The replacement can only be done by appointment of regular incumbent to the post in question. The impugned order clearly reflects that the advertisement has been issued inviting applications for appointment to the post of Guest Faculty for sessions 2021-2022. As the petitioners are already working on the said post in question, they cannot be replaced by another set of Guest Faculty in terms of the aforesaid settled legal preposition of law.

5. On notice being issued, the respondents have adopted the reply filed in the case of Manjul Mayank Pandey and others vs. State of M.P. and others, W.P.No.11063 of 2019. It is contending therein that in the Department of Skill Development on vacant post, Guest Faculties were invited as per their technical qualifications. An advertisement has been issued taking into the note of the circulars issued by the Government from time to time. The circular issued by the Government makes it clear that no advertisement will be published on the posts on which the guest faculties were already working. The advertisement published herein is to fulfill the vacant post in different places, therefore, same will not be affected the services of the petitioners. It is further contended that in the department of

5 WP-153-2022 Skill Development in regular cadre training officers are appointed by of written examination conducted by the Professions Examination Board, Bhopal. There is no provision for bonus marking in selection of training officers. They are selected on merits. The candidates holding the post in question should have required the requisite qualification. Therefore, the authorities are having every right to check the qualifications of the candidates who are working on the said post. Under these circumstances, the advertisement was rightly issued. Hence, no relief can be extended to the petitioners. In the case of Manjul Mayank Pandey (supra) , the Division Bench of this Court has already put to rest the controversy in view of the order dated 26.04.2022 passed in the case of Pradeep Kumar Yadav (supra). If the aforesaid law is applied to the facts of the present case, then no relief can be extended to the petitioners. They have prayed for dismissal of the writ petitions.

6. Heard learned counsel for the parties and perused the record.

7. The record indicates that there is an interim relief granted to the petitioners on 27.01.2022, which is still continuing.

8. The law with respect to Guest Faculty was considered in the case of Saurabh Singh Baghel and others vs State of M.P. and others reported in 2019 (1) MPLJ 643 wherein while disposing off a bunch of writ petitions the Division Bench of this Court has held as under:

"22. We do find that the policy of replacement of Guest Teachers with another set of Guest Teachers is neither proper nor justified as the Guest Teachers are engaged to meet out the emergent situation and that, it cannot be a rule that the Guest Teachers should continue year after year. It is also equally true that the students of school are entitled to quality education and not to be taught by the teachers who are not meritorious when more meritorious teachers are available for appointment. The right of the petitioners to be engaged as Guest Teachers is equitable right. They are engaged for a day and for limited periods. In terms of revised order F No.44- 13/2018/20-2 dated 03.10.2008, the Guest Teachers have been made to take three classes per day

6 WP-153-2022 for which honorarium has been fixed as Rs.90/-, Rs.75/- and Rs.50/- per period for Guest Teachers Grade-I, II and III respectively and maximum amount paid per month is Rs.9,000/-, Rs.7,000/-and Rs.5,000/- respectively. Such equitable right entitles them to have equal protection but not that the merits of the aspirants can be done away with so as to allow the candidates with lower score card to be appointed as Guest Teachers. It will be antitheses to the right of education of the students of the Government Schools. We have to balance the right of teachers such as the petitioners and the students who are taught by the teachers engaged as Guest Teachers. The right of education under the Right to Education Act is not to protect the teachers but to grant education to the students. The primary object is that the child should study. If he is to study, he is entitled to the best possible teacher to teach him. Therefore, the candidates, who are not able to secure appointment on the basis of comparative merit out of over 2,00,000 aspirants, cannot claim any right to continue as Guest Teachers. Therefore, if 25% of Guest Teachers are not able to seek appointment despite there being transparent, non-discriminatory criteria framed by the State Government, it cannot be said that the action of the State Government is not justified."

9. The Division Bench of this Court further in the case of Pradeep Kumar Yadav and others vs. State of M.P. and others (W.P.No.6159 of 2022) has held as under:

"Primarily, we do not find any advantage with the Government for imposing these kind of conditions. Even otherwise, the learned Government Advocate submits that this is not a test in the sense as contended by the petitioners. It is only intended for ensuring that they conform to the eligibility as prescribed by the AICTE. So far as this is concerned, the initial appointment of the Guest Faculty has already been made based on the eligibility criteria as prescribed by the AICTE. Therefore, once they are found fit for employment, we do not find any necessity for the petitioners to go through the very same documentation every time a fresh appointment has to be made. A one time test of eligibility would appear to satisfy the interest of the State. So far as removing the teachers who are found unfit to teach is concerned, the right of the State is always retained to that extent. A teacher who does not perform his duties properly, cannot be allowed to continue in service. Therefore, that clause in the agreement entitling them to discontinue in the Guest Faculty for reasons of incompetence cannot be interfered with by this Court.

Since the learned Government Advocate submits that at present there does not seem to be a proposal by the Government to go in for regular appointment, it is only just and necessary that the petitioners continue as Guest Faculty Teachers until and unless regular appointments are made. However, the terms and conditions as applicable to the Guest Faculty Teachers will continue to remain unaffected.

The further submission of the learned Government Advocate that they require to balance the Lecturers in view of the requirement of such a Lecturer, is also left to the discretion of the State based on the availability and necessity of such students which would mean that in case there are few or no students in a particular stream, the State is entitled not to continue a Guest Faculty for that particular stream for that particular college. If, however, in a particular stream, there are more number of students or in a particular college, more Guest Faculty Teachers are required, the State is always at liberty to call for fresh appointment for the said purpose. The aforesaid observations would take care of the interests of the petitioners as well as the State."

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10. After going the judgments passed in the aforesaid cases, it is apparently clear that there cannot be replacement of guest faculty by another set of guest faculty. In terms of the settled preposition of law, a contractual employee cannot be replaced by another set of contractual employee. It is argued by the respondents that in terms of the circular dated 16.07.2019, an advertainment is to be published for the post which are lying vacant and not to the post which are occupying by the guest faculty. If the judgment passed by the Division Bench of this Court is applied to the facts and circumstances of the present case, then it is clear that the petitioners can only be replaced or thrown out of service only if a regular incumbent is appointed on the post in question. The authorities are having every right to check whether the petitioners are having any qualification to hold the post in question or not. If the petitioners are not having qualification to hold a particular post, then the respondents/authorities are having every right to remove the petitioners from the post in question. It may be a case that the petitioners are working as guest faculty in the respondents/department, but the required qualification to hold the post the question is a paramount condition which is required to be fulfilled by a guest faculty. The petitioners cannot be continued on the post of guest faculty without having the required qualifications. Under these circumstances, considering the judgments passed by the Division Bench of this Court in the aforesaid cases, this Court deems it appropriate to disposed off all the writ petitions granting liberty to the respondents/department to examine the qualification of the petitioners working on the post of guest faculty. It is settled that replacement of the petitioners can only be done by a

8 WP-153-2022 regular incumbent if the petitioners are having the required the qualification to hold the post in question.

11. As the petitioners are continuing in service in view of the interim orders granted by this Court, the authorities are direct to permit the petitioners to continue on the post in question till they examine the cases of the petitioners. The authorities are expected to pass an order after giving an opportunity of hearing to the petitioners.

12. All the writ petitions stand disposed off with the aforesaid observations. No order as to costs.

(VISHAL MISHRA) JUDGE