IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 6916 of 2011 a/w LPAs No. 504, 507, 512 ofn2012, 203 of 2014, CWPs No. 7728 and 8412 of 2013 Reserved on: 18.11.2014 Decided on: 9.12.2014 1. CWP No. 6916 of 2011 Pankaj Kumar …Petitioner. Versus State of Himachal Pradesh & others …Respondents. ………………………………………………………………………………………………. 2. LPA No. 504 of 2012 Kamla Devi …Appellant. Versus State of Himachal Pradesh & others …Respondents. …………………………………………………………………………………………….. 3. LPA No. 507 of 2012 Himachal Pradesh Primary Assistant Teachers …Appellant. Association through its President Versus Chander Mohan Negi & others …Respondents. ………………………………………………………………………………………………. 4. LPA No. 512 of 2012 Vijay Kumar & others …Appellants. Versus State of Himachal Pradesh & others …Respondents. ………………………………………………………………………………………………. 5. LPA No. 203 of 2014 State of Himachal Pradesh & another …Appellants. Versus Chander Mohan Negi & others …Respondents. ……………………………………………………………………………………………… 6. CWP No. 7728 of 2013 Shikha Mankotia & others …Petitioners. ::: Downloaded on – 09/12/2014 17:15:41 :::CMIS -: 2 :- Versus State of H.P. & others …Respondents. ………………………………………………………………………………………………. 7. CWP No. 8412 of 2013 Rajesh Thakur & others …Petitioners. Versus State of Himachal Pradesh & others …Respondents. Coram The Hon’ble Mr. Justice Mansoor Ahmad Mir, Chief Justice. The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting? Yes. CWP No. 6916 of 2011 For the petitioner: Mr. Bipin C. Negi, Advocate. For the respondents: Mr. Shrawan Dogra, Advocate General, with Mr. Anup Rattan & Mr. Romesh Verma, Additional Advocate Generals, and Mr. J.K. Verma, Deputy Advocate General, for respondents No. 1 to 4. Nemo for respondent No. 5. Respondent No. 6 already ex-parte. Mr. Naveen K. Bhardwaj, Advocate, for respondent No. 7. Mr. Surender Sharma, Advocate, for respondent No. 8. Mr. Shyam Chauhan, Advocate, for respondent No. 9. Mr. Ajay Mohan Goel, Advocate, for respondents No. 10 to 14. Mr. Mohit Thakur, Advocate, for respondent No. 15. ………………………………………………………………………………………………….. LPA No. 504 of 2012 For the appellant: Mr. Kulbhushan Khajuria, Advocate. For the respondents: Mr. Shrawan Dogra, Advocate General, with Mr. Anup Rattan & Mr. Romesh Verma, Additional Advocate Generals, and Mr. J.K.Verma, Deputy Advocate General, for respondents No. 1 and 2. Ms. Ranjana Parmar, Advocate, for respondents No. 3 to 5. Mr. Ajay Mohan Goel, Advocate, for respondent No. 6. ………………………………………………………………………………………………….. LPA No. 507 of 2012 For the appellant: Mr. Ajay Mohan Goel, Advocate. For the respondents: Ms. Ranjana Parmar, Advocate, for respondents No. 1 to 3. Mr. Shrawan Dogra, Advocate General, with Mr. Anup Rattan & Mr. Romesh Verma, Additional Advocate Generals, and Mr. J.K. Verma, Deputy Advocate General, for respondents No. 4 and 5. ………………………………………………………………………………………………….. LPA No. 512 of 2012 For the appellants: Mr. Avneesh Bhardwaj, Advocate. For the respondents: Mr. Shrawan Dogra, Advocate General, with Mr. Anup Rattan & Mr. Romesh Verma, Additional Advocate Generals, and Mr. J.K. Verma, Deputy Advocate General, for respondents No. 1 and 2. Ms. Ranjana Parmar, Advocate, for respondents No. 3 to 5. Mr. Ajay Mohan Goel, Advocate, for respondent No. 6. ………………………………………………………………………………………………….. LPA No. 203 of 2014 For the appellants: Mr. Shrawan Dogra, Advocate General, with Mr. Anup Rattan & Mr. Romesh Verma, Additional Advocate Generals, and Mr. J.K. Verma, Deputy Advocate General. For the respondents: Ms. Ranjana Parmar, Advocate, for respondents No. 1 to 3. Mr. Ajay Mohan Goel, Advocate, for respondent No. 4. ………………………………………………………………………………………………….. -: 4 :- CWP No. 7728 of 2013 For the petitioners: Mr. Ashok Tyagi and Mr. Mukul Sood, Advocates. For the respondents: Mr. Shrawan Dogra, Advocate General, with Mr. Anup Rattan & Mr. Romesh Verma, Additional Advocate Generals, and Mr. J.K. Verma, Deputy Advocate General, for respondents No. 1 to 4. Ms. Archana Dutt, Advocate, vice Ms. Aruna Sharma, Advocate, for respondent No. 5. Mr. D.K. Khanna, Advocate, for respondent No. 6. ………………………………………………………………………………………………. CWP No. 8412 of 2013 For the petitioner: Ms. Ranjana Parmar, Advocate. For the respondents: Mr. Shrawan Dogra, Advocate General, with Mr. Anup Rattan & Mr. Romesh Verma, Additional Advocate Generals, and Mr. J.K. Verma, Deputy Advocate General, for respondents No. 1 to 3. Ms. Archana Dutt, Advocate, for respondent No. 4. Mr. Avneesh Bhardwaj, Advocate, for respondent No. 5. Mr. Mohit Thakur, Advocate, for respondent No. 6. Mansoor Ahmad Mir, Chief Justice. These Writ Petitions and the Letters Patent Appeals are the outcome of the policies, i.e. The Himachal Pradesh Gram Vidya Upasak Yojna, 2001 (Annexure P-3), Himachal Pradesh Prathmik Sahayak Adhyapak/Primary Assistant Teacher (PAT) Scheme, 2003 and The Himachal Pradesh Para Teachers (Lecturer School Cadre), Para Teachers (T.G.T’s) and Para Teachers (C&V) Policy, 2003 (Annexure P-4), which were made by the State Government in the years 2001 and 2003, respectively. ::: Downloaded on – 09/12/2014 17:15:41 :::CMIS -: 5 :- 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. 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 increaseddrop-out rate. In order to counter these problems effectively and to translate the vision of the State Govt. reflected in the NINE POINT CHARTER announced by Hon’ble ChiefMinister, 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 Eduction 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 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.” ::: Downloaded on – 09/12/2014 17:15:41 :::CMIS 3. The State, after taking into consideration their work, conduct and output, decided to regularize the services of Gram Vidya Upasaks and Para Teachers in terms of Annexures P-7 and P-8. 4. Three persons filed a writ petition, being CWP No. 3303 of 2012, titled as Chander Mohan Negi & others versus State of Himachal Pradesh & others, and sought following reliefs amongst others: “i) That the respondents may kindly be directed to fill up the available vacancies of the Junior Basic Trained teachers in accordance with Recruitment and Promotion Rules. 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 inaccordance 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.” 5. The Writ Court vide judgment and order, dated 18th October, 2012 (hereinafter referred to as “the impugned judgment”) held that the appointments of the teachers made under The Himachal Pradesh Prathmik Sahayak Adhyapak/Primary Assistant Teacher (PAT) Scheme, 2003, have not been made in accordance with the Rules and accordingly, directed to phase out the said teachers in a phased manner, constraining the appellants, i.e. the persons appointed as Primary Assistant Teachers, Himachal Pradesh Primary Assistant Teachers Association and the State of : 7 :- Himachal Pradesh to question the impugned judgment by the medium of LPAs No. 504, 512, 507 of 2012 and 203 of 2014, respectively, on the grounds taken in the respective memo of appeals. 6. Three writ petitions, being CWPs No. 6916 of 2011, 7728 and 8412 of 2013, also came to be filed in this Court, whereby the writ petitioners have sought quashment of all the appointments made by the State in terms of the said policies on the grounds that the appointments are illegal and have deprived them to participate, though, they are eligible in all respects and have a right to participate in the selection process. 7. All the Letters Patent Appeals and the Writ Petitions came to be clubbed in view of the fact that the common questions of facts and law were involved in all the appeals and the writ petitions. 8. The moot question for consideration in these appealsand the writ petitions is – whether the selection/engagement of the teachers made in terms of the policies made by the State aimed at to provide primary education to the needy and poor hailing from tribal, hard/difficult areas, who are entitled to it as a matter of right, being a fundamental right, and are poor read with the fact that the regular/contractual teachers were not interested to work in the said areas, is illegal and not entitled for regularization? 9. In order to ascertain what was the background of framing of these policies, the State has produced the relevant record and the notings, perusal of which do disclose that the policies were aimed at to achieve the purpose, the reference of which is made hereinabove. 10. The appointments/engagements were made subject to the conditions contained in the policies and one of the conditions was that the appointees will not seek regularization/absorption. However, the State, after noticing their work, conduct and the zeal they have shown in the hard areas read with the fact that huge number of vacancies were available; the appointees were working for the last 8-10 years on these posts, had completed the Special Teacher Training Qualifying Condensed Course and had obtained the special JBT certificate after five years’ continuous service in terms of the Himachal Pradesh Education Code, 1985, decided to regularize the Gram Vidya Upasaks. The respondents-State in the supplementary affidavit filed in CWP No. 7728 of 2013 has explained what were the basis for regularizing their services and how they have been able to engage teachers on a meager amount. They have also given the details as to what was the difference in the salary of regular teachers and teachers engaged in terms of the schemes and have also given details of percentage-wise benefit earned in each year. They have also given the output, mention of which has been made in paras 11 to 15 of the affidavit. It is apt to reproduce relevant portion of para 13 and para 14 of the supplementary affidavit herein: “13. That is is relevant to submit that in case regular recruitments were made in the teaching sector the State Government would not have been able to increase the Pupil Teacher Ratio (PTR) as maximum part of financial resources would have been consumed in meeting the salary component of Regular Teachers. For quick perusal of the court the salary component of one Regular teacher and comparative payments made to the Para, PAT, PTA teachers, for the year 2003-04, 2006-07 and 2011-12, are reproduced as under: ……………………………….. 14. That with the passage of time the services of PTA under GIA, Para Teachers and PAT had to be continued as their engagement was obtaining the desired results as the number of schools had also drastically increased and the State was also facing financial constraints to engage regular teachers.” 11. Accordingly, the Gram Vidya Upasaks came to be regularized. No doubt, the posts against which they were regularized, were direct recruitment posts and were to be filled in by a selection process as per the Rules occupying the field, but, at the same time, it is to be kept in mind that the State has power to make one-time measure schemes/policies in order to achieve the goal of the Constitution, i.e. Right of Education and to provide education to the needy/poor, who hail from the tribal and difficult/hard areas. 12. The policies, in terms of which the said teachers came to be engaged, were not questioned by any person initially and the persons, who have now questioned these policies/regularization policy, perhaps, may be the students of those very teachers. 13. We have perused the record, read with the writ petitions and the appeals. The writ petitioners in the writ petitions have averred that now by subsequent developments and by efflux of time, they have acquired qualification and have a right of consideration. 14. It is apt to record herein that the writ petitioners were not eligible at the relevant point of time and no one questioned the selection of the teachers at the relevant point of time, even at the time when regularization was made. 15. In CWP No. 3303 of 2012, it has been specifically averred that the writ petitioners became eligible much after these teachers, who were appointed in the years 2001 and 2003, i.e. in the year 2010, the writ petitions came to be filed at least after eleven years and it is not mentioned in the writ petition that the writ petitioners were eligible at the particular point of time, is suggestive of the fact that they were not eligible at the relevant time and had no locus to question the selection/appointments made in the years 2001 and 2003. It is apt to reproduce para 7 of the preliminary submissions of the reply filed by State-respondents No. 1 and 2 in CWP No. 3303 of 2012 herein: “7. That PAT were engaged in the year 2003, whereas the petitioner have completed the JBT in 2010. In view of the above the petitioner have no claim against the posts occupied by the PAT whereas which were lying vacant in the year 2003.” 16. It has also been averred by the respondent-State in its reply on merits filed in CWP No. 3303 of 2012 that the appointment of these teachers has not affected the writ petitioners in any way. It is apt to reproduce para 11 of the reply on merits herein: “11. That in reply to this para it is submitted that 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, teachers had been appointed under various schemes at various point of time. Such appointments had been made up to year-2007 and have no impact on the petitioners since they have completed their 2 year JBT training in the year-2010 and are required to qualify the TET as submitted in the preliminary submissions.” 17. It is apt to record herein that the writ petitioners have chosen not to file rejoinder and the stand taken by the State has remained uncontroverted. 18. The core question is – Can the person(s), who became eligible later on and had no locus at the particular point of time, question the same on the ground that the appointments are bad? 19. The Apex Court in Secretary, State of Karnataka and others versus Umadevi (3) and others, reported in (2006) 4 Supreme Court Cases 1, held that the back door appointment, i.e. illegal appointment, cannot be regularized. It further held that if irregular appointment is outcome of a conscious decision of the State, can be regularized. It is apt to reproduce relevant portion of para 49 and para 53 of the judgment herein: “49. ……………..Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution. 50. to 52. ……………….. 53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in State of Mysore v. S.V. Narayanappa, (1967) 1 SCR 128 : AIR 1967 SC 1071, R.N. Nanjundappa v. T. Thimmiah, (1972) 1 SCC 409 : (1972) 2 SCR 799, and B.N. Nagarajan v. State of Karnataka, (1979) 4 SCC 507, and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.” 20. The Apex Court has taken the same view in the case titled as Indu Shekhar Singh & Ors. versus State of U.P. & Ors., reported in 2006 AIR SCW 2582. It is apt to reproduce paras 24 and 25 of the judgment herein: “24. The State was making an offer to the Respondents not in terms of any specific power under Rules, but in exercise of its residuary power (assuming that the same was available). The State, therefore, was within its right to impose conditions. The Respondents exercised their right of election. They could have accepted the said offer or rejected the same. While making the said offer, the State categorically stated that for the purpose of fixation of seniority, they would not be obtaining the benefits of services rendered in U.P. Jal Nigam and would be placed below in the cadre till the date of absorption. The submission of Mr. Verma that for the period they were with the Authority by way of deputation, should have been considered towards seniority cannot be accepted simply for the reason that till they were absorbed, they continued to be in the employment of the Jal Nigam. Furthermore, the said condition imposed is backed by another condition that the deputed employee who is seeking for absorption shall be placed below the officers appointed in the cadre till the date of absorption. The Respondent Nos. 2 to 4 accepted the said offer without any demur on 3.9.87, 28.11.91 and 6.4.87 respectively. 25. They, therefore, exercised their right of option. Once they obtained entry on the basis of election, they cannot be allowed to turn round and contend that the conditions are illegal. [See R.N. Gosain vs. Yashpal Dhir (1992) 4 SCC 683, Ramankutty Guptan vs. Avara (1994) 2 SCC 642 and Bank of India & Ors. vs. O.P. Swarnakar & Ors. (2003) 2 SCC 721.] Furthermore, there is no fundamental right in regard to the counting of the services rendered in an autonomous body. The past services can be taken into consideration only when the Rules permit the same or where a special situation exists, which would entitle the employee to obtain such benefit of past service.” 21. Admittedly, in terms of the policies of 2001 and 2003, the teachers-appellants/writ respondents have accepted the conditions and thereafter were appointed, but it is the State which has made another policy and decided to regularize their services. Thus, it cannot be said that they are precluded from seeking regularization. The condition was accepted by the teachers, which was imposed by the State and the State thought it proper, in its wisdom, to regularize them, made a conscious decision. Thus, keeping in view the ratio, the appellants/writ respondents have carved out a case for interference. 22. The Apex Court in a case titled as University of Rajasthan & Anr. versus Prem Lata Agarwal, reported in 2013 AIR SCW 989, held that an appointment by stop-gap arrangement cannot be regularized, but, at the same time, laid down the principle that if appointments are made under a particular scheme and continued for a pretty long time, are entitled to regularization in terms of the policy. It is apt to reproduce paras 22, 33 and 34 of the judgment herein: “22. On a studied scrutiny, it is found that the High Court has placed reliance on Section 3(3) of the Act and the regulations which we have reproduced hereinabove to arrive at the conclusion that the respondents were entitled to be treated as regular teachers and, therefore, it was obligatory on the part of the ::: Downloaded on – 09/12/2014 17:15:41 :::CMIS University to extend the benefit of pension. The provisions of the Act, when read in a conjoint manner, make it crystal clear that the legislature had imposed restrictions on the appointment, provided for the constitution of Selection Committee and also laid down the procedure of the said committees. The intention of the legislature is, as it seems to us, to have teachers appointed on the basis of merit, regard being had to transparency, fairness, impartiality and total objectivity. Under sub- section (2), it has been clearly postulated that any appointment made barring the arrangement under sub-section (3) of Section 3 would be null and void. The language is clear and categorical. The exception that had been carved out under Section 3(3) is for an extremely limited purpose. It permits stopgap arrangements and only covers ad hoc or part-time teachers with a small duration. It is intended to serve the purpose of meeting the situation where an emergency occurs. It was never intended to clothe any authority with the power to make any appointment beyond what is prescribed therein. The scheme of the aforesaid provisions go a long way to show that the legislature, in fact, had taken immense care to see that no one gets a back door entry and the selections are made in a seemly manner. A proper schematic analysis of the provisions enumerated hereinabove do not envisage any kind of ad hoc appointment or part-time appointment to remain in continuance. As is demonstrable from the factual depiction in the present batch of cases, some of the respondents continued with certain breaks and also due to intervention of the court. That apart, this Court had not acceded to their prayer of regularization. The only direction that was issued in Special Leave Petition (c) No. 3238 of 1997 and other connected matters, was that they would continue in service till the regular selections were made. It is noteworthy that a distinction has to be made and we are obliged to do so because of the language employed in the provisions between a regular teacher and an ad hoc teacher or a part-time teacher who continues to work in the post sometimes due to fortuitous circumstances and sometimes due to the interdiction by the court. Their initial appointment could be regarded as legal for the limited purposes of Section 3(3) of the Act. That would only protect the period fixed therein. Thereafter, they could not have been allowed to continue, as it was only a stop gap arrangement and was bound to be so under the statutory scheme. Their continuance thereafter by operation of law has to be regarded as null and void regard being had to the language employed in Section 3(2) of the Act. 23. to 32. ……………. 33. We have already analysed the scheme of Section 3 and stated that there could not have been continuance of the service after the fixed duration as provided under Section 3(3) of the Act and such continuance is to be treated as null and void. That is how the Act operates in the field. That apart, regular selection was required to be made by a High Powered Committee as provided under Section 4. It is also pertinent to state that the Act lays down the procedure of the selection committee not leaving it to any authority to provide the same by rules or regulations. 34. In view of the aforesaid, the irresistible conclusion is that the continuance after the fixed duration goes to the root of the matter. That apart, the teachers were allowed to continue under certain compelling circumstances and by interdiction by courts. Quite apart from the above, this Court had categorically declined to accede to the prayer for regularization. In such a situation, we are afraid that the reliance placed by the High Court on paragraph 53 of the pronouncement in Uma Devi, (AIR 2006 SC 1806) can be said to be justified. In this regard, another aspect, though an ancillary one, may be worth noting. Prem Lata Agarwal and B.K. Joshi had retired on 31.3.2001 and 31.1.2002, and by no stretch of imagination, Uma Devi (supra) lays down that the cases of any category of appointees who had retired could be regularized. We may repeat at the cost of repetition that the protection carved out in paragraph 53 in Uma Devi (supra) could not be extended to the respondents basically for three reasons, namely, (i) that the continuance of appointment after the fixed duration was null and void by operation of law; (ii) that the respondent continued in the post by intervention of the court; and (iii) that this Court had declined to regularize their services in 1998.” 23. The teachers-appellants/writ respondents were not appointed by way of stop-gap arrangement, thus, are entitled to regularization in terms of policy made by the Government while applying the ratio of the judgment (supra). 24. The Apex Court has laid down the same principle also in Chief Executive Officer, Pondichery Khadi and Village Industries Board and Anr. versus K. Aroquia Radja and Ors., reported in 2013 AIR SCW 1759. It is apt to reproduce para 18 of the judgment herein: “18. As stated by this Court in Umadevi (AIR 2006 SC 1806) (supra), absorption, regularization or permanent continuance of temporary, contractual, casual, daily-wage or ad hoc employees appointed/recruited and continued for long in public employment dehors the constitutional scheme of public employment is impermissible and violative of Articles 14 and 16 of the Constitution of India. As recorded in paragraph 53 of the report in SCC (Para 44 of AIR 2006 SC 1806), this Court has allowed one time measure, regularization of services of irregularly appointed persons, provided they have worked for ten years or more in duly sanctioned posts. That is also not the case in the present matter.” 25. In the case titled as Nihal Singh and others versus State of Punjab and others, reported in (2013) 14 Supreme Court Cases 65, the initial appointments of the appellants were made after going through the procedure adopted by the State in terms of the policy, the decision to resort to such a procedure was taken at the highest level of the State consciously, a selection process was designed and the State was directed to regularize their services by creating necessary posts. The facts of the cases in hand are similar. The teachers came to be appointed in terms of the said policies by the selection committees duly constituted in terms of the decision made by the highest authorities. It is apt to reproduce paras 24, 27, 28 and 31 of the judgment herein: “24. In our opinion, the initial appointment of the appellants can never be categorised as an irregular appointment. The initial appointment of the appellants is made in accordance with the statutory procedure contemplated under the Act. The decision to resort to such a procedure was taken at the highest level of the State by conscious choice as already noticed by us. 25. …………….. 26. …………….. 27. Such a procedure making recruitments through the employment exchanges was held to be consistent with the requirement of Articles 14 and 16 of the Constitution by this Court in Union of India v. N. Hargopal, (1987) 3 SCC 308: 1987 SCC (L&S) 227: (1987) 4 ATC 51. 28. The abovementioned process clearly indicates it is not a case where persons like the appellants were arbitrarily chosen to the exclusion of other eligible candidates. It required all able-bodied persons to be considered by the SSP who was charged with the responsibility of selecting suitable candidates. 29. ……………. 30. …………… 31. Therefore, we are of the opinion that the process of selection adopted in identifying the appellants herein cannot be said to be unreasonable or arbitrary in the sense that it was devised to eliminate other eligible candidates. It may be worthwhile to note that in Umadevi (3) case, this Court was dealing with appointments made without following any rational procedure in the lower rungs of various services of the Union and the States.” 26. The Apex Court in the latest judgment rendered in the case titled as Hari Nandan Prasad and Anr. versus Employer I/R to Management of FCI and Anr., reported in 2014 AIR SCW 1383, has laid down the same principles. It is apt to reproduce para 34 of the judgment herein: “34. On harmonious reading of the two judgments discussed in detail above, we are of the opinion that when there are posts available, in the absence of any unfair labour practice the Labour Court would not give direction for regularization only because a worker has continued as daily wage worker / ::: Downloaded on – 09/12/2014 17:15:41 :::CMIS adhoc/temporary worker for number of years. Further, if there are no posts available, such a direction for regularization would be impermissible. In the aforesaid circumstances giving of direction to regularize such a person, only on the basis of number of years put in by such a worker as daily wager etc. may amount to backdoor entry into the service which is an anathema to Art.14 of the Constitution. Further, such a direction would not be given when the concerned worker does not meet the eligibility requirement of the post in question as per the Recruitment Rules. However, wherever it is found that similarly situated workmen are regularized by the employer itself under some scheme or otherwise and the workmen in question who have approached Industrial/Labour Court are at par with them, direction of regularization in such cases may be legally justified, otherwise, nonregularization of the left over workers itself would amount to invidious discrimination qua them in such cases and would be violative of Art.14 of the Constitution. Thus, the Industrial adjudicator would be achieving the equality by upholding Art. 14, rather than violating this constitutional provision.” 27. It is also apt to reproduce paras 20 and 23 of the latest judgment rendered by the Apex Court in State of Jharkhand and others versus Kamal Prasad and others, reported in 2014 AIR SCW 2513, herein: “20. We have heard the factual and legal contentions urged by the learned senior counsel for both the parties and carefully examined the findings and reasons recorded in the impugned judgment with reference to the evidence produced on behalf of the respondent-employees. The evidence on record produced by the respondent-employees would clearly go to show that they have been rendering services in the posts as ad hoc Engineers since 1987 and have been discharging their services as permanent employees with the appellants. Additional 200 posts were created thereafter by the State Government of Bihar. However, the respondents continued in their services as ad hoc employees without any disciplinary proceedings against them which prove that they have been discharging services to their employers to their satisfaction. The learned senior counsel on behalf of the appellants have failed to show as to how the ::: Downloaded on – 09/12/2014 17:15:41 :::CMIS interim orders upon which he placed strong reliance are extended to the respondents which is not forthcoming except placing reliance upon the decision of this Court in the case of Amrit Lal Berry (AIR 1975 SC 538) (supra), without producing any record on behalf of both the State Governments of Bihar and Jharkhand to substantiate the contention that the interim orders obtained by the similarly placed employees in the writ petitions referred to supra were extended to the respondent-employees to maintain parity though they have not obtained such interim orders from the High Court. Therefore, the learned senior counsel has failed to prove that the respondents have failed to render continuous services to the appellants at least for ten years without intervention of orders of the court, the findings of fact recorded by the Division Bench of the High Court is based on record, hence the same cannot be termed as erroneous in law. In view of the categorical finding of fact on the relevant contentious issue that the respondent-employees have continued in their service for more than 10 years continuously therefore, the legal principle laid down by this Court in Uma Devi’s case (AIR 2006 SC 1806) (supra) at paragraph 53 squarely applies to the present cases. The Division Bench of the High Court has rightly held that the respondent-employees are entitled for the relief, the same cannot be interfered with by this Court. 21. ……………. 22. ……………. 23. ……………….In view of the legal principles laid down in the aforesaid decisions, we are of the opinion that the decision of the High Court does not fall in either of the categories mentioned above which calls for our interference. The Division Bench of the High Court having regard to the glaring facts that the respondent-employees have continuously worked in their posts for more than 29 years discharging permanent nature of duties and they have been paid their salaries and other service benefits out of the budget allocation, no objection was raised by the CAG in this regard and therefore, it is not open for the appellants to contend that the law laid down in Uma Devi’s case (AIR 2006 SC 1806) (supra) has no application to the fact situation. The action of the appellants in terminating the services of the respondent-employees who have rendered continuous service in their posts during pendency of the Letters Patent Appeals was quashed by the High Court after it has felt that the action is not only arbitrary but shocks its conscious and therefore it has rightly exercised its discretionary power and granted the reliefs to the respondentemployees which do not call for our interference. Therefore, we are of the opinion that this Court will not interfere with the opinion of the High Court and on the contrary, we will uphold the decision of the High Court both on factual and legal aspects as the same is legally correct and it has done justice to the respondent-employees.” 28. It would be profitable to reproduce paras 15 and 16 of the judgment rendered by the Apex Court in Vireshwar Singh and others versus Municipal Corporation of Delhi and others, reported in 2014 AIR SCW 5480, herein: “15. Learned counsel for the appellants has tried to persuade us to charter the aforesaid course by placing reliance on two decisions of this Court in Narender Chadha and others v. Union of India and others, (1986) 2 SCC 157 : (AIR 1986 SC 638), and Keshav Chandra Joshi and others v. Union of India and others, 1992 Supp (1) SCC 272 : (AIR 1991 SC 284). It is contended that the denial of benefit of long years of ad hoc service, in view of the ratio of the law laid down in the aforesaid two decisions, would be contrary to Articles 14 and 16 of the Constitution. 16. It is the view expressed in Narender Chadha (AIR 1968 SC 638) (supra) which would require a close look as Keshav Chandra Joshi (AIR 1991 SC 284) (supra) is a mere reiteration of the said view. In Narender Chadha (supra) the lis between the parties was one relating to counting of ad hoc service rendered by the promotees for the purpose of computation of seniority qua the direct recruits. The basis of the decision to count long years of ad hoc service for the purpose of seniority is to be found more in the peculiar facts of the case as noted in para 20 of the report than on any principle of law of general application. However, in paragraphs 15-19 of the report a deemed relaxation of the Rules of appointment and the wide sweep of the power to relax the provisions of the Rules, as it existed at the relevant point of time, appears to be the basis for counting of the ad hoc service for the purpose of seniority.” 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. 30. In sequel to order, dated 7th July, 2014, respondents- State has filed a supplementary affidavit in CWP No. 7728 of 2013. They have also given the background of the appointment of the teachers in various categories. It is apt to reproduce paras 2, 3 and 5 of the supplementary affidavit herein: “2. That in the year 2003 there were 7516 posts of teachers in different categories lying vacant in the Government Schools in the State of Himachal Pradesh. The position of the sanctioned posts, filled-up posts and vacant posts in the year 2003-04 in respect of all categories of teachers was as under: Category Sanctioned Posts Filled up Vacant J B Ts 28829 25971 3257 T G Ts 13298 12143 1155 C & V 13906 11547 2359 Lecturer (School cadre) 7370 6730 640 D P E 678 573 105 3. That the State Government in order to achieve the goal of free and compulsory education to all the children within the age group of 6-14 in the year 2003, the State Government came out with ‘H.P. Para Teachers Policy, 2003′ for engaging Para Teachers and H.P. Prathmik Sahayak Yojna/Primary Assistant Teachers against the vacancies of Lecturers (School Cadre), T G Ts and C & V and JBT Teachers in various Government Schools of the State. The posts of such teachers remained vacant due to the unavoidable factors like transfer, retirements, deputations, secondment, promotions, deaths and up-gradation of Schools etc. The nonavailability of the teachers in various Schools in the State, in-spite of best efforts by the State Government to fill up all such vacancies of teachers in the schools, adversely affected the interest of the students and has a negative impact on the quality of education. Therefore, in the interest of students and to improve the qualitative change in the education system the above policy was brought by the State Government. 4. …………….. 5. That apart from the aforementioned method, the Government had also filled up the various posts of teachers through regular appointments and promotions as well.” 31. In the supplementary affidavit filed during the pendency of the appeals and the writ petitions, the respondents- State have given the existing vacancy position, which do disclose that a large number of posts are vacant in the cadres of TGTs, C&Vs, PTAs and PATs. It also discloses the reasons for formulation of the policies and the reason for their regularization. It is stated that the engagements were in the interest of public at large and it was also noticed that there was tremendous improvement in Pupil Teacher Ratio (PTR), literacy rate and reduction in dropout cases in the primary and upper primary classes. It is apt to reproduce paras 6, 7 and 9 of the supplementary affidavit herein: 6. That by adopting the aforesaid policy the State Government appointed many of the teachers in the backward and remote areas where the posts of teachers had remained vacant either due to transfer of a teacher from hard area to soft area or due to the fact that normally a fresh appointee does not prefer to join in such areas. 7. That after making of the above policy and engaging teachers in above manner, there was tremendous improvement in Pupil Teacher Ratio (P.T.R.), literacy rate and reduction in dropout cases in the primary (1st – 5th class) and upper primary (6th-8th class). 8. …………….. 9. That the existing position of the number of para lecturers, TGTs, C&V, PTA’s and PAT’s working in different schools in the State are as under: Category Total sanction posts Total filled up posts Para PAT/ GVU PTA Vacant JBTs 21778 20972 — 3552 — 806 TGTs 14822 13231 724 — 1062 1591 C&V 16019 12079 764 — 2943 4831 Lecturer School 16081 13936 functional 2145 non functional 508 — 1964 1980 DPE 1486 1264 93 — 323 222 Lecturer College 2240 1570 — — 80 670 32. It also contains other details and statistics, which do disclose that the State has achieved the aim and object of the said policies. 33. It is apt to record herein that the supplementary affidavit has not been rebutted by any of the writ petitioners or the respondents in the appeals. 34. A bare perusal of the supplementary affidavit (supra) do disclose that even after appointing all the said persons as teachers through various policies, a large number of vacancies are still available. It is for the writ petitioners, who have challenged the appointment/selection of these teachers, to participate in the selection process when advertisement notices are issued. 35. Learned counsel for the writ petitioners before this Court as well as before the learned Single Judge were asked to show their right or cause. The argument advanced was that the appointment/selection of the teachers appointed in the years 2001 and 2003 is illegal and they have no right to seek regularization, thus, the writ petitioners have right to challenge the same. 36. As discussed hereinabove, the writ petitioners were not even eligible at the relevant point of time, what locus do they have to question the selection/appointment of the said teachers? 37. Learned counsel for the writ petitioners argued that the writ petitioners have filed the writ petitions in the nature of Public Interest Litigation. 38. It is beaten law of land that public interest litigation is not maintainable in service jurisprudence. It is apt to reproduce paras 14 to 16 of the judgment rendered by the Apex Court in Girjesh Shrivastava & Ors. v. State of M.P. & Ors., reported in 2010 AIR SCW 7001, herein: “14. However, the main argument by the appellants against entertaining WP (C) 1520/2001 and WP (C) 63/2002 is on the ground that a PIL in a service matter is not maintainable. This Court is of the opinion that there is considerable merit in that contention. 15. It is common ground that dispute in this case is over selection and appointment which is a service matter. 16. In the case of Dr. Duryodhan Sahu and others v. Jitendra Kumar Mishra and other (1998) 7 SCC 273: (AIR 1999 SC 114: 1998 AIR SCW 3467), a three Judge Bench of this Court held a PIL is not maintainable in service matters. This Court, speaking through Srinivasan, J. explained the purpose of administrative tribunals created under Article 323-A in the backdrop of extraordinary jurisdiction of the High Courts under Articles 226 and 227. This Court held “if public interest litigations at the instance of strangers are allowed to be entertained by the (Administrative) Tribunal, the very object of speedy disposal of service matters would get ::: Downloaded on – 09/12/2014 17:15:41 :::CMIS defeated” (para 18). Same reasoning applies here as a Public Interesting Litigation has been filed when the entire dispute relates to selection and appointment.” 39. The Apex Court in State of Uttaranchal versus Balwant Singh Chaufal & Ors., reported in 2010 AIR SCW 1029, has laid down tests when a Public Interest Litigation can be filed. It is apt to reproduce para 198 of the judgment herein: “198. In order to preserve the purity and sanctity of the PIL, it has become imperative to issue the following directions:- (1) The courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL filed for extraneous considerations. (2) Instead of every individual Judge devising his own procedure for dealing with the public interest litigation, it would be appropriate for each High Court to properly formulate rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives. Consequently, we request that the High Courts who have not yet framed the rules, should frame the rules within three months. The Registrar General of each High Court is directed to ensure that a copy of the Rules prepared by the High Court is sent to the Secretary General of this court immediately thereafter. (3) The courts should prima facie verify the credentials of the petitioner before entertaining a P.I.L. (4) The court should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL. (5) The court should be fully satisfied that substantial public interest is involved before entertaining the petition. (6) The court should ensure that the petition which involves larger public interest, gravity and urgency must be given priority over other petitions. (7) The courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The court should also ensure that there is no personal gain, private motive or oblique -: 26 :- motive behind filing the public interest litigation. (8) The court should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations.” 40. The writ petitioners before this Court as well as before the learned Single Judge have specifically averred in all the writ petitions that they have a right of consideration. Meaning thereby, they have interest. Applying the ratio of the Apex Court judgments, writ in the nature of Public Interest Litigation is not maintainable in service matters. In the cases in hand, the writ petitioners do have interest, thus, on this count, the writ in the nature of Public Interest Litigation is not maintainable. 41. The argument of learned counsel for the writ petitioners that the writ petitioners were within their rights to question the said appointments by the medium of writ of quo-warranto is misconceived for the following reasons: 42. Quo warranto writ can be filed provided the petitioner has no interest and the appointment made is not in accordance with the Rules or the policy made by the Government. State has made the policies in terms of their conscious decision, the appointments came to be made in terms of the said policies, cannot be said to be illegal, back door or outcome of political favouritism, as discussed hereinabove. 43. The Apex Court in Hari Bansh Lal versus Sahodar Prasad Mahto and others, reported in (2010) 9 Supreme Court Cases 655, has held that PIL is not maintainable in service matters except by way of writ of quo warranto for which appointment must be shown to be contrary to statutory provisions and has also laid down some principles. It is apt to reproduce paras 16 to 19 and 34 of the judgment herein: 16. A writ of quo warranto lies only when appointment is contrary to a statutory provision. In High Court of Gujarat and Another vs. Gujarat Kishan Mazdoor Panchayat and Others, (2003) 4 SCC 712, (three-Judges Bench) Hon’ble S.B. Sinha, J. concurring with the majority view held: (SCC pp. 730-31, paras 22-23) “22. The High Court in exercise of its writ jurisdiction in a matter of this nature is required to determine at the outset as to whether a case has been made out for issuance of a writ of certiorari or a writ of quo warranto. The jurisdiction of the High Court to issue a writ of quo warranto is a limited one. While issuing such a writ, the Court merely makes a public declaration but will not consider the respective impact of the candidates or other factors which may be relevant for issuance of a writ of certiorari. (See R.K. Jain v. Union of India, (1993) 4 SCC 119, SCC para 74.) 23. A writ of quo warranto can only be issued when the appointment is contrary to the statutory rules. (See Mor Modern Coop. Transport Society Ltd. v. Govt. of Haryana, (2002) 6 SCC 269.)” 17. In Mor Modern Coop. Transport Society Ltd. vs. Govt. of Haryana, (2002) 6 SCC 269, the following conclusion in para 11 is relevant: (SCC p. 275) “11. ….. The High Court did not exercise its writ jurisdiction in the absence of any averment to the effect that the aforesaid officers had misused their authority and acted in a manner prejudicial to the interest of the appellants. In our view the High Court should have considered the challenge to the appointment of the officials concerned as members of the Regional Transport Authority on the ground of breach of statutory provisions. The mere fact that they had not acted in a manner prejudicial to the interest of the appellant could not lend validity to their ap- pointment, if otherwise, the appointment was in breach of statutory provisions of a mandatory nature. It has, therefore, become necessary for us to consider the validity of the impugned notification said to have been issued in breach of statutory provision.” 18. In B. Srinivasa Reddy vs. Karnataka Urban Water Supply & Drainage Board Employees’ Assn., (2006) 11 SCC 731 (2), this Court held: (SCC p. 754, para 49) “49. The law is well settled. The High Court in exercise of its writ jurisdiction in a matter of this nature is required to determine, at the outset, as to whether a case has been made out for issuance of a writ of quo warranto. The jurisdiction of the High Court to issue a writ of quo warranto is a limited one which can only be issued when the appointment is contrary to the statutory rules.” 19. It is clear from the above decisions that even for issuance of writ of quo warranto, the High Court has to satisfy that the appointment is contrary to the statutory rules. In the later part of our judgment, we would discuss how the appellant herein was considered and appointed as Chairman and whether he satisfied the relevant statutory provisions. 20. to 33. …………. 34. From the discussion and analysis, the following principles emerge:- (a) Except for a writ of quo warranto, PIL is not maintainable in service matters. (b) For issuance of writ of quo warranto, the High Court has to satisfy that the appointment is contrary to the statutory rules. (c) Suitability or otherwise of a candidate for appointment to a post in Government service is the function of the appointing authority and not of the Court unless the appointment is contrary to statutory provisions/rules. 44. Having glance of the above discussions, it can be safely said and held that the writ petitioners and respondents in the appeals have failed to carve out a case for interference. 45. The effect of the impugned judgment is quashment of the appointment/regularization of some of the said teachers, who were not party before the learned Single Judge and are not party before this Court. Only on this count, the writ petitions filed before this Court, i.e. CWPs No. 6916 of 2011, 7728 & 8412 of 2013, merit to be dismissed and the impugned judgment merits to be set aside. 46. It is also worthwhile to mention here that all those candidates, who have been appointed, are not party before us, though, it is stated that they have arrayed the Association as partyrespondent. It is not averred in any of the writ petitions, whether all those teachers are the members of the Association and it was for the writ petitioners to plead and to substantiate, prima facie, that all of them are party to the writ petitions or members of the so called Association. 47. The learned Single Judge has also fallen in error in passing the impugned judgment in CWP No. 3303 of 2012. It is apt to reproduce the operative part of the impugned judgment herein: “35. Accordingly, the writ petition is allowed. The respondent-State is directed to phase out the teachers appointed under ‘The Himachal Pradesh Prathmic Sahayak Adhyapak/Primary Assistant Teacher (PAT) Scheme 2003′, notified on 27th August, 2003 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, notified on 22nd August, 2000 read with notification, dated 23rd August, 2010, notified by the National Council for Teacher Education. This process shall be completed within a period of six months from today. The respondent-State is directed not to regularize the services of those teachers, who have been appointed de hors the Recruitment and Promotion Rules framed under Article 309 of the Constitution of India read with minimum qualification prescribed under the National Council For Teacher Education notification dated 23rd August, 2010. The pending application(s), if any, also stands disposed of. No costs.” 48. Only one writ petition was filed, that too, by three petitioners. If, at all, they had carved out a case, they could have sought their selection against three posts. The persons, who came to be appointed, are not parties and how a direction can be made to phase out them without even hearing them. 49. In view of the stand taken by the State in the reply filed in CWP No. 3303 of 2012 and the stand taken in the supplementary affidavit filed in CWP No. 7728 of 2013 that a large number of posts are vacant, at best, the writ petitioners can participate in the selection process. It is also a question mark whether they can make a grade in such selection process. 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. 51. Having said so, the impugned judgment merits to be set aside and the writ petitions deserve dismissal. Accordingly, CWPs No. 6916 of 2011, 7728 and 8412 of 2013 are dismissed, LPAs No. 504, 507, 512 of 2012 & 203 of 2014 are allowed, the impugned judgment is set aside and CWP No. 3303 of 2012 is also dismissed. Pending applications, if any, are also disposed of. Interim direction, if any, shall stand vacated. 52. Copy of this judgment be placed on each of the connected files. (Mansoor Ahmad Mir) Chief Justice (Tarlok Singh Chauhan) Judge December 9, 2014
Posted on: Wed, 10 Dec 2014 10:17:58 +0000
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