Harish Kumar vs State Of H.P. & Others

Vivek Singh Thakur, J

Grievance of the petitioner is that despite joining Certificate Course of Training in Physical Education for the Session 1998-99, he has not been considered for appointment to the post of Physical Education Teacher (PET) alongwith Batch of 1998-99 ignoring the fact that examination of his Batch in the Institute, Bhartiya Sharirik Shikshan Mahavidyalaya joined by him, was delayed on account of Court case and was conducted only in the year 2002 when he passed it in first attempt and there is no fault on the part of petitioner in delayed examination.

It is case of the petitioner that after passing Matriculation examination in the year 1995 with 45% marks, he had joined one year Certificate Course of PET in Bhartiya Sharirik Shikshan Mahavidyalaya, Amravati, however, due to Court case, as is evident from communications Annexures A-13 to A-16, examination of his Batch was delayed and was conducted in July-August 2002 and he had passed it in Second Class, as is evident from Certificate Annexure A-2 issued by Directorate of Sports and Youth Services, Government of Maharashtra, on passing of examination by the petitioner. Thereafter, on 16.01.2003, he got entered this qualification in the Employment Exchange in his registration dated 14.09.1995 as is evident from copy of Registration Card Annexure A-3. In the year 2014, petitioner had passed Senior Secondary Certificate from National Institute of Open Schooling, securing 36% marks, as is evident from Certificate Annexure A-4.

It is an admitted fact that prior to 10.01.2011, according to Recruitment and Promotion Rules (hereinafter referred to as 'R&P Rules') in vogue, essential qualification to the post of PET was Matriculation with one year Diploma in Physical Education from recognized Institute. However, vide Notification dated 10.01.2011, R&P Rules to the post of PET were amended, prescribing essential qualification to the post of PET as Senior Secondary (+2) or its equivalent examination passed with at least 50% marks and Diploma in Physical Education (E.P. Ed.) for a duration of two academic years from University/Board recognized by Himachal Pradesh Government or Bachelor Degree in Physical Education (B.P. Ed.) with 50% marks from the University recognized or Bachelor Degree with 50% marks in Physical Education with an elective subject from University recognized by Himachal Pradesh Government or Ex-Serviceman candidate having Senior Secondary (+2) or its equivalent examination with Pass Course of PTI from Army School of Physical Education Poona/Pune.

Admittedly, petitioner does not fulfill criteria of essential qualification under amended Rules. It is also undisputed that State Government in February 2011 had permitted recruitment to the post of PET under old Rules as well as new Rules with rider that teachers, so appointed under old Rules, shall have to acquire academic qualification within five years from the date of their appointment.

Some persons, eligible under old Rules, had approached this High Court by filing CWP No.8022 of 2012, titled as Saroj Kumar and others vs. State of H.P. & others, which was decided on 09.01.2013 directing the respondents-State to consider cases of those persons for appointment to the post of PET in the light of decision of one time relaxation, so taken by the Government, based on the fact that Government had already given appointment to the similarly situated persons under the unamended Rules and this direction was made subject to acquiring educational qualification by petitioners therein within five years from the date of appointment.

Against the order passed by this High Court, respondents-State had approached the Supreme Court by filing Special Leave to Appeal (Civil) CC 17560/2013, titled as State of Himachal Pradesh & others vs. Saroj Kumar & others, which was dismissed vide order dated 17.12.2013.

In the year 2014, petitioners alongwith others similarly situated persons had preferred petitions bearing CWP Nos.4990 of 2014, titled as Kusum Lata vs. State of H.P. & others; 5006 of 2014, titled as Hem Raj & others vs. State of H.P. and others; and 5009 of 2014, titled as Vivek Sharma vs. State of H.P. and others, which were decided on 21.07.2014, directing the respondents-State to examine cases of petitioners and if it is found covered by the judgment in CWP No.8022 of 2012, to take decision within six weeks from the date of passing of the order.

In sequel to judgment passed in CWP No.5006 of 2014, titled as Hem Raj & others vs. State of H.P. & others, wherein petitioner was also one of the petitioners, representation dated 26.07.2014 (Annexure A-10) was preferred by the petitioner to the Secretary (Education) to the Government of Himachal Pradesh. The said representation was rejected by the Deputy Director Elementary Education Solan, District Solan, H.P., vide Memo dated 18.09.2014 (Annexure A-11) on the ground that petitioner had passed out examination in the year 2002. Whereas, in the interview conducted in his office to the post of PET, during 02.01.2014 to 04.01.2014, candidates of the Session up to 14.06.1999 were considered for appointment to the post of PET on merit basis. Present petition has been filed for rejection of claim of the petitioner vide this Memo.

Learned counsel for the petitioner submits that respondents-Department is committing an error by considering petitioner as a candidate of 2002 Batch, whereas, he has taken admission for the requisite Course for the year 1998-99 and conducting of examination was not in his hand and he has acquired necessary qualification by passing the course in first attempt by appearing in the examination held in the year 2002 for his Batch. He further submits that some of the persons of Batch of 1998-99 have been allowed by the State Government to be appointed under old Rules with condition to complete their educational qualification within five years after their appointment and petitioner is being discriminated despite the fact that he is similarly situated being a candidate of 1998-99 Batch and is being deprived of appointment without any justifiable reason.

So far as determination of the Batch of petitioner is concerned, this issue is no longer res integra. Full Bench of this High Court in its judgment dated 21.09.2013 passed in LPA No.143 of 2013, titled as State vs. Harbans Lal, reported in Latest HLJ 2013 (HP)(FB)1157, has held as under:-

"23. In our considered view, the expression "batch" necessarily would mean the date on which the candidate qualifies the examination and acquires the mandatory educational qualifications for consideration in accordance with the Rules. Any other interpretation would only do violence to the Rules/pre-existing practice and cannot be said to be just, fair, equitable and reasonable and would in fact result in absurdity. Admission of a candidate to an academic session on its commencement cannot be construed to be "batch" for the purpose of public appointment for the simple reason that as on the date for consideration, the candidate must have acquired the eligibility criteria, which is a sine qua non for consideration to any public post. "Batch" is only an identification of a group, which is fully eligible for consideration. Equality must precede any priority of seniority of a batch in public appointments, which is Constitutional mandate of Article 14.

In view of aforesaid settled position of law, petitioner is to be considered as a candidate belonging to '2002 Batch'. It may be his hard luck that examination in his Institute was not conducted in time but in the year 2002 only, for which petitioner may not be at fault, but at the same time respondents-State is also not responsible for that.

Claim of the petitioner that like others, including petitioners in Saroj Kumar's case and other similar cases, he should also be considered for appointment under old Rules, is also liable to be rejected for the reason that the said relaxation was given by the respondents-State as one time relaxation and as is evident from Memo dated 18.09.2014, candidates for the Sessions up to 14.06.1999 were considered for appointment to the post of PET, that too on merit basis and, as also stated by the petitioner in pleadings, even all candidates of 1998-99 Batch were also not appointed on the basis of old Rules. Petitioner, who has passed examination in the year 2002, cannot be considered for appointment on the basis of old Rules in pursuant to onetime relaxation granted by the respondents-State.

Though, petitioner has acquired qualification of Senior Secondary Education (+2), but he has passed the said examination obtaining 36% marks only and his Certificate for Physical Education is also of one year instead of two years, as required under amended R&P Rules. Therefore, he is not eligible under existing R&P Rules.

Once new Rules have come in force, respondents-State cannot be directed to make appointment on the basis of old Rules. So far as directions of the Court issued in CWP Nos.8022 of 2012, titled as Saroj Kumar and others vs. State of H.P. and others; 4990 of 2014, titled as Kusum Lata vs. State of H.P. & others; 5006 of 2014, titled as Hem Raj & others vs. State of H.P. and others; and 5009 of 2014, titled as Vivek Sharma vs. State of H.P. and others, are concerned, those were based upon one time relaxation granted by the Government itself to avoid hardship to the candidates and in those petitions petitioner was also one of the petitioners in CWP No.5006 of 2014, but despite considering his representation, in compliance of order passed by this Court, he could not be appointed, as in that exercise, on the basis of merit, some candidates, but not all, up to Batch 1998-99 could only be accommodated in the year 2014 whereas, petitioner, for his bad luck, could pass out the Certificate Course in the year 2002.

In view of aforesaid discussion, I do not find any merit in the petition and accordingly same is dismissed. Pending application(s), if any, also stand disposed of.