Chander Mohan Negi & Ors. v. State of Himachal Pradesh & Ors.
R. SUBHASH REDDY, J.
1. All these civil appeals are filed against a common j udgment
dated 09.12.2014 passed by the Division Bench of High Court of Himachal
Pradesh at Shimla in L.P.A.No.504 of 2012 and batch. The said Letter
Patent Appeals were filed, aggrieved by the order of the learned Single
Judge dated 18.10.2012 passed in C.W.P.No.3303 of 2012-A. When,
Letters Patent Appeals were filed in L.P.A.Nos.504, 507, 512 of 2012
and 203 of 2014, they were heard and disposed of by the Division Bench
along with the other connected writ petitions pending on similar issues.
2. The writ petitions and Letters Patent Appeals are the outcome
of the policies framed by the Government of Himachal Prad esh, i.e.,
The Himachal Pradesh Prathmik Sahayak Adhyapak/Primary Assistant
Teacher (PAT) Scheme; The Himachal Pradesh Para Tea chers
(Lecturer School Cadre), Para Teachers (TGT’s) and Para Teachers
(C&V) Policy, 2003 and the Himachal Pradesh Gram Vidya Upas ak
Yojna, 2001. Such schemes were framed to fill up various vacant posts
of teachers in different categories as per the policies f ramed by the
Government during the years 2001 and 2003.
3. Though the policies and appointments were of 2001 and 2003,
three individuals, by name, Chander Mohan Negi; Rajiv Chauhan; and
Rakesh Kumar have approached the High Court in the year 2012 by
filing C.W.P.No.3303 of 2012-A before the High Court of Himachal
Pradesh seeking the following reliefs :
“i) That respondents may kindly be directed to fill up the available
vacancies of the Junior Basic Trained teachers in accordance
with Recruitment and Promotion Rules.
CHANDER MOHAN NEGI & ORS. v. STATE OF HIMACHAL
PRADESH & ORS.
ii) That the respondents may further be restrained from regularizing
the Primary Assistant Teachers who have been appointed in
violation of Constitutional Schemes and Law established and
settled by the Hon’ble Apex Court with further directions to the
respondents to advertise all the available vacancies of Junior Basic
Trained teachers in the Education Department to be filled in
accordance with Recruitment and Promotion Rules without any
further delay and all the vacancies may be filled up in accordance
with Recruitment and Promotion Rules available at the time of
occurrence of the vacancies.
iii) That the respondents may kindly be burdened with costs.
(iv) That the entire record of the case may kindly be summoned.”
4. The learned Single Judge of the High Court, by order dated
18.10.2012 mainly on the ground that such appointments were made by
the State by appointing the Primary Assistant Teach ers to impart
education upto primary level, who even do not fulfil the minimum essential
qualification prescribed under the Recruitment and Promotion Rules and
the State has failed to produce any material to show that the candidates
who are possessing JBT degrees have refused to serve in tribal/difficult
areas, the recruitment of such teachers de hors the Recruitment and
Promotion Rules amounts to back door entry, has allowed the writ petition
by directing the State to phase out the teachers appointed u nder The
Himachal Pradesh Prathmik Sahayak Adhyapak/Primary Assistant
Teacher Scheme, 2003 in a phased manner and to fill up the ex isting
vacancies of JBT posts strictly in accordance with the Recruitment and
Promotion Rules. The learned Single Judge has further directed the State
not to regularise the teachers.
5. Aggrieved by the order of the learned Single Judge date d
18.10.2012 passed in C.W.P.No.3303 of 2012-A, the affected/aggrieved
parties, individual teachers, Association of Primary Assistant Teachers,
and the State of Himachal Pradesh have filed Letters Pate nt Appeals.
The said appeals were heard along with the writ petitio ns wherein
appointment of teachers under the other two schemes, namely, Para
Teachers Policy of 2003 and the Himachal Pradesh Gram Vidya Upasak
Scheme of 2001 was under challenge. By common impugned judgment
dated 09.12.2014 Division Bench of High Court has allowed the Letters
Patent Appeals by setting aside the order of the learned Si ngle Judge
and dismissed the writ petitions which were clubbed along with the Letters
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Patent Appeals. The Division Bench has allowed the Lette rs Patent
Appeals on various grounds, viz.:
• Though the appointments were made during the year 2001 and
2003, writ petitions were filed belatedly in the year 2012 and
2013 and the writ petitioners in C.W.P.No.3303 of 2012 were
not even qualified when the appointments were made;
• No one has questioned the selection of teachers under the
Schemes at the relevant point of time, writ petitions were filed
after 11 years of their appointment and the writ petitioner s
have not filed any rejoinder controverting the plea of the State
as stated in para 11 of the reply filed in the writ petition and the
State had made such appointments by framing the policies when
the qualified teachers were not available for makin g
appointments, such appointments made under various schemes
cannot be termed as illegal;
• In view of the long service rendered by them it is always open
for the State to regularise their services;
• State has sufficiently explained giving the background of such
appointments of the teachers in various categories and the
material placed by the State disclosed that a large number of
posts were vacant in the cadres of TGTs, C&Vs, PTAs etc.;
• A large number of vacancies are still available as the writ
petitioners have claimed interest such pleas cannot be
entertained to treat the writ petitions as the public interest
litigation and the appointees are not even made par ty
respondents, and no material is placed to show that all the
appointees are members of the Association which was
impleaded as the third respondent in the writ petition etc.
6. The order passed by the Division Bench of the High Court was
challenged, amongst other L.P.As and C.W.Ps, in L.P.A.No.507 of 2012
arising out of writ petition in C.W.P.No.3303 of 2012, by 13 appellants
by filing civil appeal. The original petitioners before the High Court are
figured as appellant nos.1 to 3 and appellant nos.4 to 13 who are not
parties before the High Court also have filed the appeal. Subsequently
the civil appeal was dismissed as withdrawn in respect of the appellants
except appellant nos.1, 2 and 4. It is also stated during the co urse of
arguments that appellant nos.1 and 4 were also appointed as JBT teachers
CHANDER MOHAN NEGI & ORS. v. STATE OF HIMACHAL
PRADESH & ORS. [R. SUBHASH REDDY, J.]
and they are working as such. So, only left out candidate is appel lant
no.2. It is stated that he is eligible and there are vacant posts.
7. We have heard Sri Prashant Bhushan, learned counsel appearing
for the appellants; Sri P.S. Patwalia, learned senior counsel for the State
of Himachal Pradesh and Sri C.A. Sundaram and Sri Maninder Singh,
learned senior counsel appearing for the private parties.
8. Learned counsel Sri Prashant Bhushan appearing fo r the
appellants, by taking us to the orders passed by the learned Single Judge
and the Division Bench of the High Court and other material placed on
record, has contended that the various schemes unde r which the
appointments of teachers were made by the Government of Hi machal
Pradesh were contrary to the Rules framed under proviso to Article 309
of the Constitution. It is submitted by the learned counsel tha t though
eligible and qualified candidates were available, appointments were made
under various policies only to fill up the vacancies by back door method.
It is submitted that the teachers who are appointed were not qualified to
hold the posts and such candidates cannot be regularised. It is submitted
that if such unqualified candidates are allowed to hold the posts contrary
to rules, it results in diluting the standards in the educational institutions.
It is submitted that at the relevant point of time JBT qua lified persons
were available, and inspite of the same without issuing an advertisement
to fill up the vacancies as per the rules in force, under various schemes
appointments were made. It is also submitted that appointm ents were
made without adhering to the rule of reservation, as per the Recruitment
and Promotion Rules and only on the plea that such appointees were
continued for a long time, by itself is no ground to regularise their services.
Learned counsel – Sri Prashant Bhushan – in support of his argum ent
that the appointees who were appointed on temporary basis/co ntract
basis contrary to rules governing the appointments, cannot be regularised,
has placed reliance on judgments of this Court in the case of J & K
Public Service Commission & Ors. v. Dr. Narinder Mo han &
Ors. 1; Secretary, State of Karnataka & Ors. v. Umadevi ( 3) &
Ors. 2; Accounts Officer (A&I) A.P.SRTC & Ors. v. P. Chandra
Sekhara Rao & Ors. 3; and Punjab State Warehousing Corpn.,
Chandigarh v. Manmohan Singh & Anr. 4.
1 (1994) 2 SCC 630
2 (2006) 4 SCC 1
3 (2006) 7 SCC 488
4 (2007) 9 SCC 337
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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 Teac hers
were appointed by the respective Gram Panchayats in the are a 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 eleme ntary
and primary education by providing 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 appointm ents
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 Ele mentary
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 conc erned even as
per the policy the qualification for the post of Para T eachers was as
prescribed in the Recruitment and Promotion Rules applicab le 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 deci sion was
taken on 31.07.2013 to take over such teachers on contract basis a fter
they have completed eight years of service which was sub sequently
reduced to seven years by Cabinet decision dated 27.12.2014. It is further
submitted that out of 6799 teachers 5017 teachers were taken over on
contract basis by the State Government, only 1782 lecturers coul d not
be taken over in view of the interim orders passed by this Court. It is
submitted that all the teachers, however, fulfil all the qualifications required
under service rules. Lastly, it is submitted 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.
CHANDER MOHAN NEGI & ORS. v. STATE OF HIMACHAL
PRADESH & ORS. [R. SUBHASH REDDY, J.]
10. Sri C.A. Sundaram and Sri Maninder Singh, learned senior
counsel appearing for the respondents have submitted that the High
Court has recorded valid and sufficient reasons in support of its judgment
and there are no grounds at all to interfere with the same. Further, it is
submitted that all the appointees have completed 15 years of service as
of now and such appointments were made under various schemes framed
by the Government when they were unable to fill up regular vacancies
of teachers, as such, such appointments cannot be continued forever on
the meagre salaries, which they were being paid. It is submitted that in
view of the topography of the State and teachers in single teacher schools
were not available to appoint teachers to fill up vacancies, such schemes
were framed and the writ petitioners belatedly questioning such schemes
and appointments cannot deprive regularisation of appointees.
11. At the outset, it is to be noted that the schemes in questi on
were notified in the year 2001 and 2003 under which appointments were
made with regard to Primary Assistant Teachers and teac hers in other
categories. At the relevant point of time nobody has questione d either
the schemes or the appointments. It is the specific case of the respondent-
State that such appointments have not affected the writ petitioners and
the Department was not in a position to leave the schools, teachers’
deficient for long since it would have affected the studies of the students
very badly. Therefore, it was the case of the State that te achers had
been appointed under various schemes at that point of time and such
appointments have been made upto the year 2007 and have no impact
on the appellants since they have completed their two-year JBT training
in the year 2011. As is evident from the order under appeal passed by
the Division Bench of the High Court, the appellant-writ petitioners have
not even chosen to file rejoinder and the stand taken by the St ate thus
has remained uncontroverted. Further, it is also to be noted that when
such appointments were made during the year 2001 and 2003 the wri t
petitions came to be filed in the year 2012 and 2013. As the writ petitioners
have claimed interest for their appointment, the Division Bench of the
High Court has rightly held that such petitions cannot be considered as
the public interest litigation. Such a writ petition which was filed by the
petitioners who came to be qualified only in the year 2011 are not entitled
for any relief on the ground of unexplained laches and inordinate delay
of about more than 10 years in approaching the court for questioning the
appointments. Though relief was sought against the State to den y the
benefit of regularisation to the appointed teachers, they were not even
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impleaded as party respondents. An Association was impleaded as third
respondent but without furnishing any material to show that at least
majority of appointees are members of such Association. So far as
Primary Assistant Teachers Scheme of 2003, which was subject matter
of Letters Patent Appeal arising out of C.W.P.No.3303 of 2012-A filed
by Chander Mohan Negi and others, is concerned, the appellants in Civil
Appeal No.2813 of 2017 except appellant nos.1, 2 and 4 have withdrawn
the appeal and appellant nos.1 and 4 are already appointed as JBTs.
Insofar as the only appellant, viz., appellant no.2 – Rajiv Chauhan – is
concerned, it is stated that he is qualified and there are vacant posts and
he can be considered if he applies to any of the existing vacanci es. So
far as Primary Assistant Teacher Scheme is concerned, same was notified
as early as on 27 th August 2003. As is evident from the scheme itself,
the object of the scheme appears to be to compulsorily enrol children in
schools for elementary and primary education in the remote are as to
achieve the goals as set by the Government while enacting The Himachal
Pradesh Compulsory Primary Education Act, 1997 with a view to achieve
the target of 100% enrolment to children. As per the scheme, the eligibility
was 10+2 from a recognised Board/University and the candidates with
higher qualifications were also eligible and candidates with professional
qualifications were to be preferred. As per the regular Recruitment Rules
the requisite qualification for the post of JBT teacher during the relevant
time was 10+2 with 50% marks and JBT certificate. As sub mitted by
learned senior counsel appearing for the State that initially though 3500
odd teachers were appointed, as of now there are only a total of 3294
teachers working in this category and out of this about 1866 ha d the
qualification of 10+2 with more than 50% marks at the relevant point of
engagement. Out of the balance of 1015 had 10+2 with less tha n 50%
marks, but they had higher qualification such as B.A./M.A./M .Sc. or
B.Ed. etc. Further, it is also brought to our notice that o ut of all the
candidates 3294 candidates who are presently working have acquired
the professional qualification of diploma in elementary education or have
undergone Professional Development Programme for Ele mentary
Teachers. In that view of the matter, we are of the view t hat when the
appointees appointed under the scheme have completed mo re than
almost 15 years of service now and also have acquired the professional
qualifications, they cannot be denied regularisation at this point of time.
As the appointments were made as per the schemes notified b y the
Government such appointments cannot be treated as illegal, if at all they
CHANDER MOHAN NEGI & ORS. v. STATE OF HIMACHAL
PRADESH & ORS. [R. SUBHASH REDDY, J.]
can be considered irregular. When it is the plea of the State that in view
of the hard topography/tribal areas in the State, large number of vacancies
were there even single teacher schools and to achieve the object of The
Himachal Pradesh Primary Education Act, 1997 such steps were taken,
there is no reason to disbelieve the same, more so, in abs ence of any
affidavit by way of rejoinder by the writ petitioners b efore the High
Court controverting the allegations in the reply filed on beh alf of the
State.
12. Even with regard to Para Teachers Policy under which various
category of teachers were appointed in the year 2003 pursuant to policy
notified on 17.09.2003 it is clear from the record placed before this Court
that all the persons who were recruited as Para Teachers w ere fully
qualified as per the Recruitment and Promotion Rules, i.e., The Himachal
Pradesh Education Department Class-III (School and Inspection Cadre)
Service Rules, 1973. In view of the stand of the State that s uch policy
was necessitated due to large number of vacant posts which have arisen
year after year and which could not be filled since the State Selection
Subodinate Board, Hamirpur which was responsible for the selection of
teachers had come under a cloud and the selection process had come to
a halt, such appointments cannot be rendered as illegal. Such aspect is
also evident from the policy itself. Even in other category of Grant-in-
Aid to Parent Teacher Association Rules, all teachers appointed under
the scheme fulfil the educational qualifications prescribed in the Rules.
For such kind of teachers, Cabinet has taken decision to take over the
teachers on contract basis after completion of eight years of service
which period was later reduced to seven years. It is also brought to our
notice during the course of arguments that out of the total 6799 teachers,
5017 teachers were already taken over on contract basis by the State
Government and only 1782 could not be taken over in view of the interim
orders passed by this Court.
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 ca nnot be
denied regularisation/absorption. It is in view of the requirement of the
State, their services were extended from time to time a nd 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
649
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 speci al
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 schools which were vac ant 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 that the view expressed by t his 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 submi ssion
that such schemes were framed only to make back door entries, there is
no material placed on record to buttress such submission. Fur ther it is
also to be noted that though such schemes were notified as ea rly 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 appointee s 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 recorde d in the
impugned order by the High Court, we are of the view that no ca se is
made out to interfere with the impugned judgment of the High Court.
14. For the aforesaid reasons, all these appeals are dismis sed
with no order as to costs.
Divya Pandey Appeals dismissed.
CHANDER MOHAN NEGI & ORS. v. STATE OF HIMACHAL
PRADESH & ORS. [R. SUBHASH REDDY, J.]