Chander Mohan Negi vs State Of Himachal Pradesh on 17 April, 2020
Supreme Court of India
Chander Mohan Negi vs State Of Himachal Pradesh on 17 April, 2020
Author: Mohan M. Shantanagoudar
Bench: Mohan M. Shantanagoudar, R. Subhash Reddy
C.A.Nos.2813 of 2017 etc.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2813 OF 2017
Chander Mohan Negi & Ors. …..Appellants
Versus
State of Himachal Pradesh & Ors. …..Respondents
WITH
Civil Appeal No.2814 of 2017
AND
CIVIL APPEAL NO.2815 OF 2017
JUDGMENT
R. Subhash Reddy, J.
1. All these civil appeals are filed against a common judgment 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,
Signature Not Verified
Digitally signed by
ANITA MALHOTRA
Letters Patent Appeals were filed in L.P.A.Nos.504, 507, 512 of 2012
Date: 2020.04.17
15:26:05 IST
Reason:
and 203 of 2014, they were heard and disposed of by the Division
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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 Pradesh, i.e., The
Himachal Pradesh Prathmik Sahayak Adhyapak/Primary Assistant
Teacher (PAT) Scheme; The Himachal Pradesh Para Teachers (Lecturer
School Cadre), Para Teachers (TGT’s) and Para Teachers (C&V) Policy,
2003 and the Himachal Pradesh Gram Vidya Upasak Yojna, 2001. Such
schemes were framed to fill up various vacant posts of teachers in
different categories as per the policies framed 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.
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.
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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 Teachers 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 under The Himachal Pradesh Prathmik Sahayak
Adhyapak/Primary Assistant Teacher Scheme, 2003 in a phased manner
and to fill up the existing 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 dated
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 Patent Appeals.
The said appeals were heard along with the writ petitions wherein
appointment of teachers under the other two schemes, namely, Para
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C.A.Nos.2813 of 2017 etc.
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 Single Judge
and dismissed the writ petitions which were clubbed along with the
Letters Patent Appeals. The Division Bench has allowed the Letters
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 petitioners 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 making 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;
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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 party
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 course of
arguments that appellant nos.1 and 4 were also appointed as JBT
teachers and they are working as such. So, only left out candidate is
appellant no.2. It is stated that he is eligible and there are vacant posts.
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C.A.Nos.2813 of 2017 etc.
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 for 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 under which
the appointments of teachers were made by the Government of
Himachal Pradesh were contrary to the Rules framed under proviso to
Article 309 of the Constitution. It is submitted by the learned counsel
that 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 qualified 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 appointments 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
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itself is no ground to regularise their services. Learned counsel – Sri
Prashant Bhushan – in support of his argument that the appointees who
were appointed on temporary basis/contract 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 Mohan & 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.
9. On the other hand Sri Patwalia, learned senior counsel appearing
for the State of Himachal Pradesh has submitted that the Primary
Assistant Teachers Scheme of 2003 (PAT Scheme) was notified on 27 th
August 2003 and under the said Scheme, Primary Assistant Teachers
were appointed by the respective Gram Panchayats in the area where
the primary school was located, keeping in view the non-availability of
trained teaching manpower in the remote and backward areas in view of
the tough topographical conditions of the State. The object of the
Scheme was to compulsorily enrol children in schools for elementary
and primary education by providing such teachers to achieve the goals
set by the Government in enacting, The Himachal Pradesh Compulsory
Primary Education Act, 1997. It is submitted that such appointments
were made on the monthly remuneration of Rs.2000/- and the
1 (1994) 2 SCC 630
2 (2006) 4 SCC 1
3 (2006) 7 SCC 488
4 (2007) 9 SCC 337
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honorarium was increased in July 2013 to Rs.8900/-. It is submitted by
the learned counsel that in all 3294 candidates who are working now
have acquired the professional qualification of diploma in elementary
education or have undergone Professional Development Programme for
Elementary Teachers. Similarly, for Para Teachers who are engaged
under the policy of the State dated 17.09.2003, the policy comprises of
Classical and Vernacular teachers, Trained Graduate Teachers, D.P.E.’s
(School Cadre), i.e., teachers teaching physical education, and
Lecturers (School Cadre). It is submitted that so far as this Scheme is
concerned even as per the policy the qualification for the post of Para
Teachers was as prescribed in the Recruitment and Promotion Rules
applicable at the relevant time. Thus, all the persons who are recruited
as Para Teachers are fully qualified as per Recruitment and Promotion
Rules which were in force. Further it is submitted that even the third
category, of teachers appointed under the Scheme, fulfil the educational
qualifications prescribed in the Recruitment Rules. As such, a Cabinet
decision was taken on 31.07.2013 to take over such teachers on
contract basis after they have completed eight years of service which
was subsequently reduced to seven years by Cabinet decision dated
27.12.2014. It is further submitted that out of 6799 teachers 5017
teachers were taken over on contract basis by the State Government,
only 1782 lecturers could not be taken over in view of the interim orders
passed by this Court. It is submitted that all the teachers, however, fulfil
all the qualifications required under service rules. Lastly, it is submitted
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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.
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 question were
notified in the year 2001 and 2003 under which appointments were
made with regard to Primary Assistant Teachers and teachers in other
categories. At the relevant point of time nobody has questioned 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
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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 teachers 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 State thus has remained uncontroverted. Further, it
is also to be noted that when such appointments were made during the
year 2001 and 2003 the writ 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 deny the benefit of
regularisation to the appointed teachers, they were not even 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
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C.A.Nos.2813 of 2017 etc.
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 vacancies. 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 areas 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
submitted 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 had the qualification of 10+2 with more than 50% marks at the
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relevant point of engagement. Out of the balance of 1015 had 10+2 with
less than 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
out 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
Elementary Teachers. In that view of the matter, we are of the view that
when the appointees appointed under the scheme have completed more
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 by the Government such appointments cannot be treated as
illegal, if at all they 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 absence of any affidavit by way of rejoinder by the writ
petitioners before the High Court controverting the allegations in the
reply filed on behalf 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 were fully
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C.A.Nos.2813 of 2017 etc.
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 such 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
cannot be denied regularisation/absorption. It is in view of the
requirement of the State, their services were extended from time to time
and now all the appointees have completed more than 15 years of
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service. For majority of the appointed teachers under the various
schemes benefit was already extended and some left over candidates
were denied on account of interim orders passed by this Court. With
regard to Primary Assistant Teachers, it is stated that all the candidates
have completed Special Teacher Training Qualifying Condensed Course
and also had obtained special JBT certificate after 5 years’ continuous
service in terms of the Himachal Pradesh Education Code 1985. The
judgments relied on by learned counsel Sri Prashant Bhushan also
would not render any assistance to the case of the appellants herein for
the reason that there was unexplained and inordinate delay on the part
of the appellants in approaching the High Court and further having
regard to explanation offered by the State about the need of framing
such policies to meet the immediate requirement to fill up single teacher
schools which were vacant for a very long time, having regard to
topographical conditions, which is not even controverted by way of any
rejoinder before the High Court. In such view of the matter, taking the
totality of peculiar circumstances of these cases, we are of the that the
view expressed by this Court in the judgments relied on cannot be
applied to the facts of the case on hand. All the appointed candidates
are working for the meagre salaries pursuant to schemes notified by the
Government. Except the vague submission that such schemes were
framed only to make back door entries, there is no material placed on
record to buttress such submission. Further it is also to be noted that
though such schemes were notified as early as in 2003, nobody has
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C.A.Nos.2813 of 2017 etc.
questioned such policies and appointments upto 2012 and 2013. The
writ petition, i.e., C.W.P.No.3303 of 2012-A was filed in the year 2012
without even impleading the appointees as party respondents. In the
writ petition there was no rejoinder filed by the writ petitioners disputing
the averments of the State as stated in the reply affidavit. Having regard
to nature of such appointments, appointments made as per policies
cannot be termed as illegal. Having regard to material placed before
this Court and having regard to reasons recorded in the impugned order
by the High Court, we are of the view that no case is made out to
interfere with the impugned judgment of the High Court.
14. For the aforesaid reasons, all these appeals are dismissed with no
order as to costs.
………….…………………………………J.
[MOHAN M. SHANTANAGOUDAR]
….…………………………………………J.
[R. SUBHASH REDDY]
New Delhi.
April 17, 2020.
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