Uttarakhand High Court
Appellants vs Bhuwan Chandra Papnai & Another on 7 March, 2024
Reserved
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
HON'BLE THE CHIEF JUSTICE MS. RITU BAHRI
AND
HON'BLE SRI JUSTICE RAKESH THAPILYAL
SPECIAL APPEAL NO. 310 OF 2022
Director, Intermediate Education, Uttarakhand & others
.....Appellants.
Versus
Bhuwan Chandra Papnai & another ....Respondents.
Counsel for the Appellants : Mr. P.C. Bisht, learned Additional
Chief Standing Counsel.
Counsel for the Respondents : Mr. C.D. Bahuguna, learned
Senior Counsel assisted by Mr.
Ravindra Singh Rawat, learned
counsel.
Judgment Reserved on: 28.02.2024
Judgment Delivered on: 07.03.2024
The Court made the following:
JUDGMENT:
(per Hon'ble The Chief Justice Ms. Ritu Bahri)
The State of Uttarakhand has come up in appeal
against the judgment dated 18.01.2022, passed by the
learned Single Judge, in Writ Petition (S/S) No.2144 of 2019,
whereby the writ petition filed by respondent no.1 herein has
been allowed.
2. Respondent no.1 had approached this Court
seeking setting aside of the order dated 29.06.2019, passed
by the Director, Secondary Education, Uttarakhand,
Dehradun, whereby the representation of respondent no.1
claiming continuance of his service had been rejected. The
petitioner was appointed as Lecturer (Mathematics) in
Vinayak Government Intermediate College, Jamoli, District
Almora on 07.08.2001 as Parents Teachers Association
Lecturer (PTA). This selection was done by a Committee. The
petitioner joined the Intermediate College on 08.08.2001. In
the year 2009, the part-time PTA teachers were conferred the
status of ad hoc teachers by incorporation of Section 41 of
the Uttarakhand School Education Act, 2006 (for short "the
Act"). Accordingly, the petitioner was also conferred ad hoc
status by an order dated 22.06.2009. On 02.08.2011, the
Intermediate College was provincialised and a Government
Order dated 02.08.2011 stipulated the conditions for the
provincialisation of the College. Paragraph Nos.5 and 8 of the
G.O. dated 02.08.2011 are important. According to paragraph
5 of the G.O. dated 02.08.2011, only such working staff
would be appointed temporarily in the College post-
provincialisation who possess requisite qualification.
According to Paragraph 8 of it, the PTA teachers would not be
absorbed post-provincialisation. But, subsequently, Paragraph
8 of the G.O. dated 02.08.2011 was deleted by another
Government Order dated 04.01.2017 (Annexure-4, Page 98
of the Special Appeal). It paved the way for absorption of PTA
teaches post-provincialisation.
3. This fact is not in dispute that the petitioner
continued teaching in Intermediate College after its
provincialisation, and was paid salary of the Lecturer till
31.08.2012, and after 11.03.2014, he was not permitted to
take classes.
4. Petitioner earlier filed Writ Petition (S/S) No.1201
of 2014, which was disposed of on 12.04.2018 by giving
directions to the respondents to consider the case of the
petitioner in accordance with law and also by taking into
consideration that he had put in fourteen years of
uninterrupted service as PTA teacher.
5. Vide order dated 23.06.2018, petitioner's
representation was rejected, which was further challenged by
him in Writ Petition (S/S) No.2811 of 2018, and the same
was allowed on 08.04.2019 and the impugned order dated
23.06.2018 was quashed with directions to respondent no.1
to reconsider the claim of the petitioner in accordance with
law. Thereafter, again the order dated 28.06.2019 was
passed, rejecting the claim of the petitioner, and at this
backdrop, the petitioner preferred the writ petition.
6. The learned Single Judge has examined the case of
the petitioner on the following grounds:-
(i) Initially when the petitioner was appointed as a PTA
teacher as Lecturer (Mathematics), B.Ed. was not an
essential qualification for appointment of a Lecturer in view
of U.P. Intermediate Education Act, 1921. In the year 2008,
by virtue of the Uttarakhand Special Subordinate Education
Lecturers Cadre Service Rules, 2008, B.Ed. has been made
essential qualification for Lecturer, but the teachers, who had
already been appointed could not have been disturbed on the
ground that they did not possess the B.Ed. qualification.
(ii) Petitioner had been working since 2001, and as per
the order passed by this Court in Writ Petition (S/S) No.2811
of 2018, which was allowed on 08.04.2019, he was given
protection of Section 41 of the Uttarakhand School Education
Act, 2006. It was held that PTA teachers were protected
under Section 41 of the Act, and another ground was that,
after provincialisation, which was done by G.O. dated
02.08.2011, and the status of the petitioner could not have
been taken away on account of provincialisation.
(iii) As per the order dated 08.04.2019, it was further
held that the essential qualification of B.Ed. could not be
made applicable to reject the case of the petitioner for
continuance of service.
7. In the year 2009, Section 41 was added in the
Uttarakhand School Education Act, 2006, which reads as
under:-
"41. Ad hoc appointment of Part Time
Teacher/ Acting P.T.A. Teachers by Committee of
Management:-
The committee of management shall appoint on ad
hoc basis such part time/ P.T.A. teachers as were
employed upto 05-09-2003 by the Committee of
Management from its own resource, for which sub
substantive posts were created at the time and who
possessed qualification prescribed for the corresponding
posts and who were paid honorarium from the
government funds."
8. The petitioner was given ad hoc appointment by
the Chief Education Officer on 22.06.2009 on a pay-scale. He
continued working as Lecturer on ad hoc basis till 02.08.2011
when the College was provincialised.
9. Pursuant to the order dated 18.08.2021, the
respondents filed an affidavit and gave details of total 13
Lecturers, who did not possess B.Ed. qualification. As per the
affidavit given, out of thirteen Lecturers, seven were merged
in Government service, who did not possess B.Ed.
qualification, keeping in view their length of service. Other
teachers were given three years' time to acquire B.Ed.
qualification. The reasoning given for merging those seven
Lecturers, who did not possess B.Ed. qualification, was that
they had been recruited to government service as per
the service rule applicable at that time, and teachers
who were working in aided schools on regular basis
prior to provincialization and who did not possess B.Ed.
qualification were merged in the Government service,
however, the lecturers who were working on ad hoc
basis in Government aided schools prior to
provincialisation and did not have B.Ed. qualification
were not merged in the Government service.
10. Learned Single Judge examined the case of the
petitioner while keeping in view the length of service from
2001 till 2014, it was observed that in the earlier writ
petition, which was disposed of on 08.04.2019, this Court had
decided that the status of the petitioner could not have been
taken away after provincialisation on the ground that he did
not possess B.Ed. qualification, and after giving this decision,
the respondents could not have rejected the claim of the
petitioner for merger into the government service, and the
learned Single Judge allowed the writ petition.
11. During the course of hearing of this special appeal
on 14.02.2024, when this case was taken up for hearing, we
have gone through the affidavit filed by the In-charge Chief
Education Officer, Almora, dated 03.01.2023. In this affidavit,
in Paragraph No.4, it is stated that 20 lecturers, who are
working on ad hoc basis and were non-B.Ed., had been
regularized.
12. During to the course of hearing of this special
appeal on 22.02.2024, the Chief Standing Counsel for the
State of Uttarakhand/ appellants was asked to supply a copy
of the order, whereby the services of twenty teachers, who
were not B.Ed., have been regularized. A copy of the order
dated 18.06.2016 has been supplied by the Chief Standing
Counsel for the State. The order dated 18.06.2016 shows the
details of 26 teachers, who were appointed in accordance
with law in the year 2009, and had been regularized w.e.f.
17.12.2015. However, in Paragraph No.5 of the affidavit
dated 03.01.2023, it has been stated that while the teachers
so appointed on ad hoc basis were regularized in the year
2015, but the qualification as per Section 40(1)(b) remained
unchanged. A copy of the Uttarakhand School Education
Amendment Act, 2015 has been placed on record as
Annexure-2 (Page No.23 of the supplementary affidavit filed
by respondent no.3). Section 40(1)(b) of the Uttarakhand
School Education Amendment Act, 2015, reads as under:-
"Substitution of Section 40(1)(a)(iii):
Sub clause (iii) of clause (a) of sub section (1) of
section 40 of the UTTARAKHAND SCHOOL EDUCATION
ACT, 2006 shall be substituted as follows; namely:
(iii) was appointed on adhoc basis in lecturer
grade or trained graduate grade on or after 26 january
2005, but not after 30 june 2010 against substantive
vacancy in accordance with the provisions of section 40
of the Uttarakhand School Education Act, 2006 and hold
prescribed qualification and eligibility against the post."
13. Petitioner's case is not covered as per the above
said rule, as he was appointed before January, 2005, and he
cannot take the benefit of regularization of those twenty
teachers, who were non- B.Ed. Even this ground taken by the
respondents in the supplementary- affidavit dated
03.01.2023, does not support their case at all, as the
petitioner was eligible for appointment as per the Rules
prevalent in the year 2001, and has continued to work till
11.03.2014.
14. Along with the special appeal, the appellants have
placed on record the order passed by this Court in Writ
Petition No (S/S) No.1221 of 2014, dated 04.12.2014
(Annexure-5), wherein the petitioner was working as PTA
Teacher in an inter college, where grant-in-aid was granted,
and the college was being provincialised, and he was claiming
the benefit of regularization. The said writ petition was
dismissed for regularization on the ground that the petitioner
was appointed as PTA teacher, and his salary was not being
paid by the State exchequer, and reference was made to the
judgment dated 05.11.2014, passed by this Court in Writ
Petition (S/S) Nos.726 of 2014 and 1025 of 2014 (Page
No.101 of the special appeal), whereby the claim of the PTA
teachers for regularization was dismissed.
15. The appellants have also filed a supplementary-
affidavit dated 03.01.2023, and along with this affidavit, they
have placed on record list of 81 teachers, who were granted
the benefit of ad hoc status (Annexure-1, Page No.10 of the
supplementary-affidavit). In Paragraph No.4, it is stated that
20 teachers working on ad hoc basis as Lecturer were non
B.Ed., but were regularized, and the ground for their
regularization was that they were post-graduate at the
relevant time, and were having the required minimum
qualification for being appointed as Lecturer, and their case
was also covered by Section 40(1)(a)(iii) of the Uttarakhand
School Education Amendment Act, 2015.
16. Another ground to dismiss the special appeal is
that, as per the Government Order dated 04.01.2017
(Annexure-4, Page No.98 of the Special Appeal), the
Government has taken a conscious decision to delete
Paragraph No.8 of the G.O. dated 02.08.2011, and to absorb
the PTA teachers post provincialisation. Once the Government
has taken a decision to delete Paragraph No.8 of the G.O.
dated 02.08.2011, the order dated 04.01.2017 (Annexure-4,
Page No.98 of the Special Appeal) will be applicable w.e.f.
02.08.2011. Hence, respondent no.1, who was a part-time
PTA teacher, was conferred the status of ad hoc teacher by
incorporation of Section 41 of the Uttarakhand School
Education Act, 2006, in the year 2009, could not be denied
the benefit of absorption on the ground that the Institute
where he was working was provincialised. Therefore, the
above two orders have no bearing on the case of the present
respondent- writ petitioner, as the Government themselves
have taken a conscious decision to delete Paragraph No.8 of
the G.O. dated 02.08.2011.
17. The above said Act of 2015 has no bearing on the
case of the present respondent- writ petitioner, as the
respondent- writ petitioner was appointed in the year 2001,
and was given ad hoc status in the year 2009, and his only
grievance is that he has not been regularized because the
College where he was working, had been provincialised in the
year 2009.
18. For the aforesaid reasons, the special appeal is
dismissed.
19. Pending application, if any, also stands disposed of.
(RITU BAHRI, C.J.)
(RAKESH THAPLIYAL, J.)
Dated: 07th March, 2024
NISHANT
