pta, pat and para teachers regularisation allowed by hp high court

8/10/2019 Pta, Pat and Para Teachers Regularisation Allowed by Hp High Court

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CWP No. 6916 of 2011 a/w LPA No. !0", !0#, !12 of

2012, 20$ of 201", CWP

No.

##2% a&' %"12 of 201$

R(()*(' o&+ 1%.11.201"

D(-'(' o&+ 9.12.201"

1. CWP No. 6916 of 2011Pankaj Kumar Petitioner.

Versus

State of Himachal Pradesh & others Respondents..............................................................................................................

2. LPA No. !0" of 2012Kamla Devi Appellant.

Versus

State of Himachal Pradesh & others Respondents.

...........................................................................................................

$. LPA No. !0# of 2012Himachal Pradesh Primar Assistant !eachers Appellant.Association throu"h its President

Versus

#hander $ohan %e"i & others Respondents..............................................................................................................

". LPA No. !12 of 2012Vija Kumar & others Appellants.

Versus

State of Himachal Pradesh & others Respondents..............................................................................................................

!. LPA No. 20$ of 201"State of Himachal Pradesh & another Appellants.

Versus

#hander $ohan %e"i & others Respondents.............................................................................................................

6. CWP No. ##2% of 201$Shikha $ankotia & others Petitioners.

::: Downloaded on - 10/12/2014 18:33:40 :::HCHP


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Versus

State of H.P. & others Respondents.

.............................................................................................................

#. CWP No. %"12 of 201$Rajesh !hakur & others Petitioners.

Versus

State of Himachal Pradesh & others Respondents.

CoramT( Ho&( M). 34-( Ma&oo) A5a' M-), C-(f 34-(.

T( Ho&( M). 34-( Ta)o7 S-&8 Ca3a&, 3'8(.

Whether approved for reporting? Yes.

CWP No. 6916 of 2011)or the petitioner' $r. *ipin #. %e"i+ Advocate.

)or the respondents' $r. Shra,an Do"ra+ Advocate -eneral+ ,ith$r. Anup Rattan & $r. Romesh Verma+Additional Advocate -enerals+ and $r. .K.Verma+ Deput Advocate -eneral+ forrespondents %o. / to 0.

%emo for respondent %o. 1.

Respondent %o. 2 alread e3parte.

$r. %aveen K. *hard,aj+ Advocate+ for

respondent %o. 4.

$r. Surender Sharma+ Advocate+ forrespondent %o. 5.

$r. Sham #hauhan+ Advocate+ forrespondent %o. 6.

$r. Aja $ohan -oel+ Advocate+ forrespondents %o. /7 to /0.

$r. $ohit !hakur+ Advocate+ for respondent%o. /1.

.................................................................................................................

LPA No. !0" of 2012)or the appellant' $r. Kul8hushan Khajuria+ Advocate.



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)or the respondents' $r. Shra,an Do"ra+ Advocate -eneral+ ,ith$r. Anup Rattan & $r. Romesh Verma+Additional Advocate -enerals+ and $r. .K.

Verma+ Deput Advocate -eneral+ forrespondents %o. / and (.

$s. Ranjana Parmar+ Advocate+ forrespondents %o. 9 to 1.

$r. Aja $ohan -oel+ Advocate+ forrespondent %o. 2.

.................................................................................................................

LPA No. !0# of 2012

)or the appellant' $r. Aja $ohan -oel+ Advocate.

)or the respondents' $s. Ranjana Parmar+ Advocate+ forrespondents %o. / to 9.

$r. Shra,an Do"ra+ Advocate -eneral+ ,ith$r. Anup Rattan & $r. Romesh Verma+Additional Advocate -enerals+ and $r. .K.Verma+ Deput Advocate -eneral+ forrespondents %o. 0 and 1.

.................................................................................................................

LPA No. !12 of 2012)or the appellants' $r. Avneesh *hard,aj+ Advocate.

)or the respondents' $r. Shra,an Do"ra+ Advocate -eneral+ ,ith$r. Anup Rattan & $r. Romesh Verma+Additional Advocate -enerals+ and $r. .K.Verma+ Deput Advocate -eneral+ forrespondents %o. / and (.

$s. Ranjana Parmar+ Advocate+ for

respondents %o. 9 to 1.


.................................................................................................................

LPA No. 20$ of 201")or the appellants' $r. Shra,an Do"ra+ Advocate -eneral+ ,ith

$r. Anup Rattan & $r. Romesh Verma+Additional Advocate -enerals+ and $r. .K.Verma+ Deput Advocate -eneral.

)or the respondents' $s. Ranjana Parmar+ Advocate+ forrespondents %o. / to 9.


.................................................................................................................



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CWP No. ##2% of 201$)or the petitioners' $r. Ashok !a"i and $r. $ukul Sood+

Advocates.


$s. Archana Dutt+ Advocate+ vice $s. ArunaSharma+ Advocate+ for respondent %o. 1.

$r. D.K. Khanna+ Advocate+ for respondent

%o. 2..............................................................................................................

CWP No. %"12 of 201$)or the petitioner' $s. Ranjana Parmar+ Advocate.


$s. Archana Dutt+ Advocate+ for respondent%o. 0.

$r. Avneesh *hard,aj+ Advocate+ forrespondent %o. 1.

$r. $ohit !hakur+ Advocate+ for respondent%o. 2.

Ma&oo) A5a' M-), C-(f 34-(.

!hese :rit Petitions and the ;etters Patent Appeals

are the outcome of the policies+ i.e. !he Himachal Pradesh -ram

Vida Anne3ure P9?+ Himachal Pradesh

Prathmik Sahaak Adhapak@Primar Assistant !eacher >PA!?

Scheme+ (779 and !he Himachal Pradesh Para !eachers >;ecturer

School #adre?+ Para !eachers >!.-.!s? and Para !eachers >#&V?

Polic+ (779 >Anne3ure P0?+ ,hich ,ere made 8 the State

-overnment in the ears (77/ and (779+ respectivel.



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(. !he State+ after noticin" the dire need of providin"

education at "rass root level and particularl+ in tri8al and

hard@difficult areas+ made the policies@schemes in the ears (77/

and (779+ appointed -ram Vida


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9. !he State+ after takin" into consideration their ,ork+

conduct and output+ decided to re"ulariCe the services of -ram

Vida hereinafter referred to as Ethe impu"ned

jud"mentE? held that the appointments of the teachers made under

!he Himachal Pradesh Prathmik Sahaak Adhapak@Primar

Assistant !eacher >PA!? Scheme+ (779+ have not 8een made in

accordance ,ith the Rules and accordin"l+ directed to phase out

the said teachers in a phased manner+ constrainin" the appellants+

i.e. the persons appointed as Primar Assistant !eachers+ Himachal

Pradesh Primar Assistant !eachers Association and the State of



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Himachal Pradesh to Fuestion the impu"ned jud"ment 8 the

medium of ;PAs %o. 170+ 1/(+ 174 of (7/( and (79 of (7/0+

respectivel+ on the "rounds taken in the respective memo of

appeals.

2. !hree ,rit petitions+ 8ein" #:Ps %o. 26/2 of (7//+

44(5 and 50/( of (7/9+ also came to 8e filed in this #ourt+ ,here8

the ,rit petitioners have sou"ht Fuashment of all the appointments

made 8 the State in terms of the said policies on the "rounds that

the appointments are ille"al and have deprived them to participate+

thou"h+ the are eli"i8le in all respects and have a ri"ht to

participate in the selection process.

4. All the ;etters Patent Appeals and the :rit Petitions

came to 8e clu88ed in vie, of the fact that the common Fuestions

of facts and la, ,ere involved in all the appeals and the ,rit

petitions.

5. !he moot Fuestion for consideration in these appeals

and the ,rit petitions is ,hether the selection@en"a"ement of the

teachers made in terms of the policies made 8 the State aimed at

to provide primar education to the need and poor hailin" from

tri8al+ hard@difficult areas+ ,ho are entitled to it as a matter of

ri"ht+ 8ein" a fundamental ri"ht+ and are poor read ,ith the fact

that the re"ular@contractual teachers ,ere not interested to ,ork

in the said areas+ is ille"al and not entitled for re"ulariCationG

6. Bn order to ascertain ,hat ,as the 8ack"round of

framin" of these policies+ the State has produced the relevant

record and the notin"s+ perusal of ,hich do disclose that the



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policies ,ere aimed at to achieve the purpose+ the reference of

,hich is made hereina8ove.

/7. !he appointments@en"a"ements ,ere made su8ject to

the conditions contained in the policies and one of the conditions

,as that the appointees ,ill not seek re"ulariCation@a8sorption.

Ho,ever+ the State+ after noticin" their ,ork+ conduct and the Ceal

the have sho,n in the hard areas read ,ith the fact that hu"e

num8er of vacancies ,ere availa8le the appointees ,ere ,orkin"

for the last 5/7 ears on these posts+ had completed the Special

!eacher !rainin" Iualifin" #ondensed #ourse and had o8tained

the special *! certificate after five ears continuous service in

terms of the Himachal Pradesh Jducation #ode+ /651+ decided to

re"ulariCe the -ram Vida


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salary component of one +egular teacher andcomparative payments made to the Para% P*T%PT* teachers% for the year 455@"5:% 455B"5

and 4566"64% are reproduced as underD

......................................

6:. That ith the passage of time the servicesof PT* under '$*% Para Teachers and P*T hadto #e continued as their engagement aso#taining the desired results as the num#er ofschools had also drastically increased and the!tate as also facing financial constraints toengage regular teachers.;

//. Accordin"l+ the -ram Vida


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the selection of the teachers at the relevant point of time+ even at

the time ,hen re"ulariCation ,as made.

/1. Bn #:P %o. 9979 of (7/(+ it has 8een specificall

averred that the ,rit petitioners 8ecame eli"i8le much after these

teachers+ ,ho ,ere appointed in the ears (77/ and (779+ i.e. in

the ear (7/7+ the ,rit petitions came to 8e filed at least after

eleven ears and it is not mentioned in the ,rit petition that the

,rit petitioners ,ere eli"i8le at the particular point of time+ is

su""estive of the fact that the ,ere not eli"i8le at the relevant

time and had no locus to Fuestion the selection@appointments made

in the ears (77/ and (779. Bt is apt to reproduce para 4 of the

preliminar su8missions of the repl filed 8 Staterespondents %o.

/ and ( in #:P %o. 9979 of (7/( herein'

;. That P*T ere engaged in the year 455@%hereas the petitioner have completed the 2=Tin 4565. $n vie of the a#ove the petitionerhave no claim against the posts occupied #ythe P*T hereas hich ere lying vacant inthe year 455@.;

/2. Bt has also 8een averred 8 the respondentState in its

repl on merits filed in #:P %o. 9979 of (7/( that the appointment

of these teachers has not affected the ,rit petitioners in an ,a.

Bt is apt to reproduce para // of the repl on merits herein'

;66. That in reply to this para it is su#mittedthat the &epartment as not in a position toleave the schools teachers deficient for longsince it ould have affected the studies of thestudents very #adly. Therefore% teachers had

#een appointed under various schemes atvarious point of time. !uch appointments had#een made up to year"455 and have no impacton the petitioners since they have completedtheir 4 year 2=T training in the year"4565 andare re7uired to 7ualify the TET as su#mitted inthe preliminary su#missions.;



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/4. Bt is apt to record herein that the ,rit petitioners have

chosen not to file rejoinder and the stand taken 8 the State has

remained uncontroverted.

/5. !he core Fuestion is #an the person>s?+ ,ho 8ecame

eli"i8le later on and had no locus at the particular point of time+

Fuestion the same on the "round that the appointments are 8adG

/6. !he Ape3 #ourt in S()(4a), S4a4( of :a)&a4a7a

a&' o4() *()3 U5a'(*- ;$< a&' o4(),reported in;2006a#our Court ould not givedirection for regularization only #ecausea orker has continued as daily age orker M



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adhocMtemporary orker for num#er of years./urther% if there are no posts availa#le% such adirection for regularization ould #e

impermissi#le. $n the aforesaid circumstancesgiving of direction to regularize such a person%only on the #asis of num#er of years put in #ysuch a orker as daily ager etc. may amountto #ackdoor entry into the service hich is ananathema to *rt.6: of the Constitution./urther% such a direction ould not #e givenhen the concerned orker does not meet theeligi#ility re7uirement of the post in 7uestionas per the +ecruitment +ules. Hoever%herever it is found that similarly situatedorkmen are regularized #y the employer

itself under some scheme or otherise and theorkmen in 7uestion ho have approached$ndustrialM>a#our Court are at par ith them%direction of regularization in such cases may#e legally 3ustified% otherise% non"regularization of the left over orkers itselfould amount to invidious discrimination 7uathem in such cases and ould #e violative of*rt.6: of the Constitution. Thus% the $ndustrialad3udicator ould #e achieving the e7uality #yupholding *rt. 6:% rather than violating thisconstitutional provision.J

(4. Bt is also apt to reproduce paras (7 and (9 of the latest

jud"ment rendered 8 the Ape3 #ourt in S4a4( of a)7a&' a&'

o4() *()3 :a5a P)aa' a&' o4(), reported in201" AIR

SCW 2!1$, herein'

;45. We have heard the factual and legalcontentions urged #y the learned senior

counsel for #oth the parties and carefullyeamined the findings and reasons recorded inthe impugned 3udgment ith reference to theevidence produced on #ehalf of therespondent"employees. The evidence onrecord produced #y the respondent"employeesould clearly go to sho that they have #eenrendering services in the posts as ad hocEngineers since 689 and have #eendischarging their services as permanentemployees ith the appellants. *dditional 455posts ere created thereafter #y the !tate

'overnment of =ihar. Hoever% therespondents continued in their services as adhoc employees ithout any disciplinaryproceedings against them hich prove thatthey have #een discharging services to theiremployers to their satisfaction.

The learned senior counsel on #ehalf of theappellants have failed to sho as to ho the



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interim orders upon hich he placed strongreliance are etended to the respondentshich is not forthcoming ecept placing

reliance upon the decision of this Court in thecase of *mrit >al =erry A*$+ 68 !C @9ecturers A!chool Cadre


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unavoida#le factors like transfer% retirements%deputations% secondment% promotions% deaths

and up"gradation of !chools etc. The non"availa#ility of the teachers in various !choolsin the !tate% in"spite of #est efforts #y the!tate 'overnment to fill up all such vacanciesof teachers in the schools% adversely affectedthe interest of the students and has a negativeimpact on the 7uality of education. Therefore%in the interest of students and to improve the7ualitative change in the education system thea#ove policy as #rought #y the !tate'overnment.

:. .................

. That apart from the aforementioned method%the 'overnment had also filled up the variousposts of teachers through regularappointments and promotions as ell.;

9/. Bn the supplementar affidavit filed durin" the

pendenc of the appeals and the ,rit petitions+ the respondents

State have "iven the e3istin" vacanc position+ ,hich do disclose

that a lar"e num8er of posts are vacant in the cadres of !-!s+

#&Vs+ P!As and PA!s. Bt also discloses the reasons for formulation

of the policies and the reason for their re"ulariCation. Bt is stated

that the en"a"ements ,ere in the interest of pu8lic at lar"e and it

,as also noticed that there ,as tremendous improvement in Pupil

!eacher Ratio >P!R?+ literac rate and reduction in dropout cases in

the primar and upper primar classes. Bt is apt to reproduce

paras 2+ 4 and 6 of the supplementar affidavit herein'

B. That #y adopting the aforesaid policy the!tate 'overnment appointed many of theteachers in the #ackard and remote areashere the posts of teachers had remained

vacant either due to transfer of a teacher fromhard area to soft area or due to the fact thatnormally a fresh appointee does not prefer to3oin in such areas.

. That after making of the a#ove policy andengaging teachers in a#ove manner% there astremendous improvement in Pupil Teacher+atio AP.T.+.


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dropout cases in the primary A6st" thclass< andupper primary ABth"9thclass


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sho, their ri"ht or cause. !he ar"ument advanced ,as that the

appointment@selection of the teachers appointed in the ears (77/

and (779 is ille"al and the have no ri"ht to seek re"ulariCation+

thus+ the ,rit petitioners have ri"ht to challen"e the same.

92. As discussed hereina8ove+ the ,rit petitioners ,ere

not even eli"i8le at the relevant point of time+ ,hat locus do the

have to Fuestion the selection@appointment of the said teachersG

94. ;earned counsel for the ,rit petitioners ar"ued that

the ,rit petitioners have filed the ,rit petitions in the nature of

Pu8lic Bnterest ;iti"ation.

95. Bt is 8eaten la, of land that pu8lic interest liti"ation is

not maintaina8le in service jurisprudence. Bt is apt to reproduce

paras /0 to /2 of the jud"ment rendered 8 the Ape3 #ourt in

G-)?( S)-*a4a*a > O). *. S4a4( of M.P. > O)., reported in

2010 AIR SCW #001, herein'

;6:. Hoever% the main argument #y theappellants against entertaining WP AC in a service matter is notmaintaina#le. This Court is of the opinion that

there is considera#le merit in that contention.

6. $t is common ground that dispute in thiscase is over selection and appointment hichis a service matter.

6B. $n the case of &r. &uryodhan !ahu andothers v. 2itendra umar -ishra and otherA6889< !CC 4@D A*$+ 6888 !C 66:D 6889 *$+!CW @:B is not maintaina#le in servicematters. This Court% speaking through

!rinivasan% 2. eplained the purpose ofadministrative tri#unals created under *rticle@4@"* in the #ackdrop of etraordinary3urisdiction of the High Courts under *rticles44B and 44. This Court held ;if pu#licinterest litigations at the instance of strangersare alloed to #e entertained #y theA*dministrative< Tri#unal% the very o#3ectof speedy disposal of service matters ould get



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defeated; Apara 69itigation has #eenfiled hen the entire dispute relates to

selection and appointment.;

96. !he Ape3 #ourt in S4a4( of U44a)a&a *()3

Bawa&4 S-&8 Ca3fa > O)., reported in 2010 AIR SCW

1029, has laid do,n tests ,hen a Pu8lic Bnterest ;iti"ation can 8e

filed. Bt is apt to reproduce para /65 of the jud"ment herein'

;689. $n order to preserve the purity and

sanctity of the P$>% it has #ecome imperative toissue the folloing directionsD"

A6< The courts must encourage genuine and#ona fide P$> and effectively discourage andcur# the P$> filed for etraneousconsiderations.

A4< $nstead of every individual 2udge devisinghis on procedure for dealing ith the pu#licinterest litigation% it ould #e appropriate foreach High Court to properly formulate rules for

encouraging the genuine P$> and discouragingthe P$> filed ith o#li7ue motives.Conse7uently% e re7uest that the High Courtsho have not yet framed the rules% shouldframe the rules ithin three months. The+egistrar 'eneral of each High Court isdirected to ensure that a copy of the +ulesprepared #y the High Court is sent to the!ecretary 'eneral of this court immediatelythereafter.

A@< The courts should prima facie verify the

credentials of the petitioner #eforeentertaining a P.$.>.

A:< The court should #e prima facie satisfiedregarding the correctness of the contents ofthe petition #efore entertaining a P$>.

A< The court should #e fully satisfied thatsu#stantial pu#lic interest is involved #eforeentertaining the petition.

AB< The court should ensure that the petition

hich involves larger pu#lic interest% gravityand urgency must #e given priority over otherpetitions.

A< The courts #efore entertaining the P$>should ensure that the P$> is aimed atredressal of genuine pu#lic harm or pu#licin3ury. The court should also ensure that thereis no personal gain% private motive or o#li7ue



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motive #ehind filing the pu#lic interestlitigation.

A9< The court should also ensure that thepetitions filed #y #usy#odies for etraneousand ulterior motives must #e discouraged #yimposing eemplary costs or #y adoptingsimilar novel methods to cur# frivolouspetitions and the petitions filed for etraneousconsiderations.;

07. !he ,rit petitioners 8efore this #ourt as ,ell as 8efore

the learned Sin"le ud"e have specificall averred in all the ,rit

petitions that the have a ri"ht of consideration. $eanin" there8+

the have interest. Applin" the ratio of the Ape3 #ourt jud"ments+

,rit in the nature of Pu8lic Bnterest ;iti"ation is not maintaina8le

in service matters. Bn the cases in hand+ the ,rit petitioners do

have interest+ thus+ on this count+ the ,rit in the nature of Pu8lic

Bnterest ;iti"ation is not maintaina8le.

0/. !he ar"ument of learned counsel for the ,rit

petitioners that the ,rit petitioners ,ere ,ithin their ri"hts to

Fuestion the said appointments 8 the medium of ,rit of

Fuo,arranto is misconceived for the follo,in" reasons'

0(. Iuo ,arranto ,rit can 8e filed provided the petitioner

has no interest and the appointment made is not in accordance

,ith the Rules or the polic made 8 the -overnment. State has

made the policies in terms of their conscious decision+ the

appointments came to 8e made in terms of the said policies+ cannot

8e said to 8e ille"al+ 8ack door or outcome of political favouritism+

as discussed hereina8ove.

09. !he Ape3 #ourt in Ha)- Ba& La *()3 Sao'a)

P)aa' Ma4o a&' o4(), reported in;2010< 9 S3=)(5( Co3)4

Ca( 6!!, has held that PB; is not maintaina8le in service matters



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e3cept 8 ,a of ,rit of Fuo ,arranto for ,hich appointment must

8e sho,n to 8e contrar to statutor provisions and has also laid

do,n some principles. Bt is apt to reproduce paras /2 to /6 and 90

of the jud"ment herein'

6B. * rit of 7uo arranto lies only henappointment is contrary to a statutoryprovision. $n High Court of 'u3arat and*nother vs. 'u3arat ishan -azdoor Panchayatand )thers% A455@< : !CC 64% Athree"2udges=ench< Hon,#le !.=. !inha% 2. concurring ith

the ma3ority vie heldD A!CC pp. @5"@6% paras44"4@

pta, pat and para teachers regularisation allowed by hp high court

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