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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C.A.Nos.2813 of 2017 etc.

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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C.A.Nos.2813 of 2017 etc.

 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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C.A.Nos.2813 of 2017 etc.

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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C.A.Nos.2813 of 2017 etc.

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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C.A.Nos.2813 of 2017 etc.

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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C.A.Nos.2813 of 2017 etc.

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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