Kuldeep Kumar And Others vs State Of H.P. & Others

Sureshwar Thakur, J

The writ petitioners’, claim their eligibility, for becoming appointed as teachers, in various government schools, located in Himachal Pradesh.

However, since the respondents No. 1, 3 and 4, are, averred to transgress the mandate, of, the apposite Recruitment and Promotion Rules, inasmuch

as, (a) theirs’ appointing the respondents concerned, in the school(s) concerned, rather through the School Management Committee(s), (b)

thereupon, the writ petitioners contend that the right of equality of opportunity, to access public employment, becoming untenably denied to them.

Consequently, they also contend qua gross discrimination, besides, arbitrariness hence becoming practiced by respondents No. 1 to 4, in the

latters’ selecting, through the School Management Committee(s) concerned, hence teachers, in various faculties, in government schools, located

within Himachal Pradesh. Besides, the writ petitioners, contend that constitutional reservations, vis-Ã -vis, those candidates, belonging to the scheduled

caste, and, scheduled tribe(s) categories rather also becoming given a complete go-by, by respondents No. 1 to 4, in theirs’ hence adopting an

untenable mode, of, making appointments, through the School Management Committee(s), in various government school(s).

The writ petitioners, pray for setting aside, respectively, of, Annexures, P-14, P-15, P-19 and P-20. It appears, on a perusal of Annexure P-9,

Annexure whereof, is, a notification, issued by the Secretary (Education) to the Government Himachal Pradesh, that, the Governor of Himachal

Pradesh, becoming pleased to notify a policy for enabling, the, engagement(s) of teachers, through the aegis, of, the apposite School Management

Committee(s), rather purely, on an adhoc basis, in tribal/difficult areas. Appended with the afore Annexure, is/are, the procedures/guidelines, vis-Ã -

vis, the afore manner(s), of, making engagement(s)/recruitment(s), of teachers, in government schools, located within the State, of, Himachal Pradesh.

Moreover, the petitioners, also, espouse a relief, vis-Ã -vis, the respondents concerned, being directed, to mete deference, to Rule 20 of Right of

Children, to, Free and Compulsory Education Rules, 2010, hence explicitly encapsulating therein, vis-Ã -vis, therethrough teachers, hence becoming

enabled to be appointed in government schools, only, on a permanent basis. The afore prayer, is, espoused, to carry forward an averment, in, the writ

petition, vis-Ã -vis, the respondents concerned, whose appointments hence happened, through, their respective selection(s), becoming made, through,

the School Management Committee(s) concerned, rather being merely on a casual/stop gap basis, (i) hence the writ petitioners pray that Rule 20 of

the Right of Children to Free, and, Compulsory Education Rules, 2010, Rule whereof, is extracted hereinafter, becoming breached, though, it enshires,

a, holistic mandate for, improving, the, quality, of, education, being purveyed, in the schools concerned;

“20. Salary and allowances and conditions of service of teachers:

(1) The Central Government or the appropriate Government or the local authority, as the case may be, shall notify terms and conditions of service and

salary and allowances of teachers of schools owned and managed by them in order to create a professional and permanent cadre of teachers;

(2) In particular and without prejudice to sub-rule (I), the terms and conditions of service shall take into account the following namely;-

(a) accountability of teachers to the School Management Committee;

(b) Provisions enabling long-terms stake of teachers in the teaching profession.

(3) The scales of pay and allowances, medical facilities, pension, gratuity, provident fund and other prescribed benefits of teachers shall be at par for

similar qualification, work and experience.â€​

The ill fate, of, the apt mandate hence suffering infraction, is, contended, to, bring forth a concomitant sequel, vis-Ã -vis, students, in government

schools, being deprived of receiving education from professional, and skilled cadre, of, teachers, (i) and, concomitantly thereupon(s) the inapt misery,

of, un-befitting, and, inapt education, becoming purveyed to them. Moreso, when the competitive mode, of, recruitment of teachers, as prescribed in

the Recruitment and Promotion Rules, has been given, a, go by. Respondents No. 1 to 4 contested the writ petition by filing detailed reply(s), also the

private respondents concerned, through theirs’ instituting CMP bearing No. 4703 of 2020, wherethrough they sought their impleadment, and,

whereon(s) affirmative orders, were recorded on 12.6.2020, by this Court, make urgings thereon(s), and, in the apposite CMP, for, vacation, of, stay,

and, also therein(s) they also repudiate the contention(s) in contra, therewith as carried, in, the afore submissions, as, raised in the writ petition. Also,

therein, the private respondents, strive to assign rather validation, to their induction(s) into service, and, besides they strive to claim their permanent

absorption(s) or regularization(s), as teachers, in the schools concerned. On behalf of respondents No. 1 to 3, reply(s) to the writ petition, became to

be instituted, by respondent No. 2. In the initial paragraph thereof, though, it was contended, vis-Ã -vis, no fundamental rights, of the writ petitioners,

becoming infringed, and, also it became espoused, vis-Ã -vis, no cause of action, rather accruing, vis-Ã -vis, the writ petitioner(s), (b) and, thereupon,

the writ petition being amenable, for, becoming dismissed. However, in paragraph-2, of, the afore reply, it is contended, vis-Ã -vis, the appointments,

of, the writ petitioners, through the aegis, of, the apposite School Management Committee(s), rather being made purely as stop-gap arrangement(s),

(c) and, also, hence the teachers, appointed, through the afore mode, in the schools concerned, being construable to be appointed, against vacant posts,

(d) hence to be rather occupied by inductees therein, and, as would became engaged through compliance, being meted, vis-Ã -vis, the apposite R & P

Rules. It is also acquiesced, in the afore reply(s), vis-Ã -vis, the ordained recruitment(s)/appointment(s), of, the private respondents, being enjoined to

be made, upon, adherence being made, vis-Ã -vis, the mandatory recruitment, and, promotion Rules. Moreover, it is also contended in the afore reply,

vis- Ã -vis, the respondents concerned, making a proposal, for, filling up the posts, as occupied, by the School Management Committee provided

teachers, hence in consonance with the prescribed ratio, as occurring, in, the Recruitment and Promotion Rules, vis-Ã -vis, the Government of

Himachal Pradesh, (e) and, the afore proposal, awaiting approval from the government. It is contended by the afore respondents, vis-Ã -vis, the

recruitment agency, for the induction, of, teacher(s), in government schools, being the Himachal Pradesh Staff Selection Commission. It is contended

in the apposite reply, vis-Ã -vis, 723 posts of PGT Lecturers, lying vacant, and, approval for filling up the afore posts, hence through the Himachal

Pradesh Staff Selection Commission, Shimla, rather awaiting approval from the government. Reply, as filed to the writ petition, by the Secretary,

Himachal Pradesh Staff Selection Commission, also supports the afore contentions, as reared in the reply, as became to be filed, to the writ petition, by

respondent No. 2, on behalf of respondents No. 1 to 3. Another reply, to the writ petition, also became instituted, on behalf of respondents No. 1 to 4,

through, the Director of Elementary Education, Himachal Pradesh, wherein averments are, borne hence alike the one(s), borne in the reply, filed to the

writ petition, by respondent No. 2.

At the outset, it deemed imperative, to, under-line with completest forthrightness, and, aplomb, qua the private respondents concerned, being

selected through viva-voce, and, also on the anvil, of, percentum, of, marks respectively acquired by them, in, the relevant educational acquisition. The

afore factum, is, even otherwise, not controverted. The further uncontroverted factum, which has made its imminent upsurgence(s), is, qua the

apposite Recruitment, and, Promotion Rules, rather prescribing vis-Ã -vis, the taking(s), of, competitive examination(s) by the aspirant(s) concerned,

(f) and, also thereafter, the shortlisted successful candidates, being amenable to face, the, apposite viva-voce/interview, rather before the selection

commission concerned. The afore factual conspectus, does, obviously hence affirmatively bring to the fore, the legal expostulation(s), occurring in

paragraph-15, of the verdict, of the Hon’ble Apex Court, rendered in case titled as, Renu and others versus District & Sessions Judge, Tis Hazari

and another, reported in, AIR 2014 Supreme Court, 2175, paragraph whereof is extracted hereinafter:

“15. Whre any such appointments are made, they can be challenged in the court of law. The quo warranto proceeding affords a judicial remedy by

which any person, who holds an independent substantive public office or franchise or liberty, is called upon to show by what right he holds the said

office, franchise of liberty, so that his title to it may be duly determined, and in case the finding is that the holder of the office has no title, he would be

ousted from that office by judicial order. In other words, the procedure of quo warranto gives the judiciary a weapon to control the Executive from

making appointment to public office against law and to protect a citizen from being deprived of public office to which he has a right. These

proceedings also tend to protect the public from usurpers of public office who might by allowed to continue either with the connivance of the

Executive or by reason of its apathy. It will, thus, be seen that before a person can effectively claim a writ of quo warranto, he has to satisfy the Court

that the office in question is a public office and is held by a usurper without legal authority, and that inevitably would lead to an enquiry as to whether

the appointment of the alleged usurper has been made in accordance with law or not. For issuance of writ of quo warranto, the Court has to satisfy

that the appointment is contrary to the statutory rules and the person holding the post has no right to hold it.â€​

Inasmuch as, the afore re-produced paragraph, purveys a strong arm or weapon vis-Ã -vis, a writ Court, to issue a writ of quo-warranto, hence

against the respondents/selectees concerned, for therethrough(s), the, apposite induction(s)/appointment(s), of, private respondents concerned, being

quashed, and, set aside,

(a) given their induction(s) being contrary, to, the afore enshrined manner, as becomes prescribed, in the apposite Recruitment and Promotion Rules.

In other words, the private respondents, are, to be held to be usurpers, vis-a-vis, all those aspirants concerned, who, otherwise, upon, the apt strictest

compliance, being meted, vis-Ã -vis, the Recruitment and Promotion Rules, would become facilitated, to join the arena, of, competition (b) and, also,

hence, would concomitantly, become entitled, to, successfully participate, in, the relevant selection process, rather wherefrom they became untenably

ousted. Moreover, in contravention thereto, a palpable breach or transgression, of, the mandate of Articles 14, and, 15 of, the Constitution of India, also

rather becomes, visibly sparked, or aroused. The pedestal of Articles 14 and 16, of, the Constitution of India, does, ensure(s) to every aspirant, qua his

becoming purveyed, or hence his/their becoming enabled, to, propogate the sacrosanct right, of, equality, of, opportunity, to at least, enter the arena of

competition, or to occur, in the zone of consideration. In case, the afore mandate, is, breached, as has nowat happened rather upon capricious, and,

arbitrary induction(s) being made, or theirs’ becoming judicially condoned, (c) thereupon(s), all the eligible aspirants, would become untenably

ousted from the arena, of, competition, vis-à -vis, Public Offices, or Public employment, (d) whereas, theirs’ rather holding all legitimate rights, to,

make valid strivings, for, theirs’ inductions into the arena, of, competition(s), whereas, their untenable baulking(s), are, amenable for judicial

discountenancing.

Moreover, in the judgment of the Hon’ble Apex Court, rendered in case, titled as, “Secretary, State of Karnataka and others versus

Umadevi (2) and othersâ€, reported in (2006) 4 Supreme Court Cases 44 ,it has been expostulated (i) vis-à -vis, induction(s) into service, of any

person, in contravention, of, the relevant Rules or procedures, (ii) and also, upon obviously, the afore induction into service, being rather merely, of a

casual or of a temporary, and, contractual nature, (iii) thereupon, the inductee concerned, not being empowered to invoke, the, doctrine of legitimate

expectations, for hence, his being, confirmed thereagainst. Upon an incisive reading, of, the afore paragraph of the judgment (supra) of the

Hon’ble Apex Court, (iv) the apt forthright, and, firm inference, hence inevitably ensuing therefrom, is, qua the private respondents concerned,

when un-controvertedly, become inducted into service, in apposite breach, of, the mandatory statutory Rule(s), as applicable to the apposite

Recruitment(s), and, Promotion(s) Rules, (v) and, also, are, uncontrovertedly inducted, as imminent from the afore contentions, hence occurring in the

reply instituted, on behalf, of the respondents No. 1 to 4, rather, merely on a stop-gap/casual basis, (vi) and, when it is also conceded, in the reply

concerned, vis-Ã - vis, the, process(es), for, the induction(s)/appointment(s), of, teachers, in various schools, rather, on a permanent basis, hence being

under-way, (vii) thereupon, merely on anvil of the private respondents, purportedly, continuing in service, since the time of their induction, hence the

respondents, may not, for the afore ascribed reasons, and, also for the reasons to be assigned hereinafter, rather acquire any legitimate right, to seek

their permanent absorption(s) or to seek theirs’ being regularized thereon(s). Moreso, when the respondents, in the un-rebutted reply(s), contend

vis-Ã -vis, the posts, whereagainsts, hence the private respondents concerned, became appointed, rather through the School Management

Committee(s) concerned, hence being construable, to be vacant posts, (viii) given theirs becoming appointed thereagainst(s), only on a stop gap/casual

basis, (ix) or in other words, respondents No. 1 to 4, therethrough(s) make under-linings, qua the private respondents concerned, not occupying any

substantive post(s), rather awaiting regular/valid appointment(s) becoming made thereagainst(s).

In addition, in a judgment of the Hon’ble Apex Court, recorded in case titled as, “Virender Singh Hooda and others versus State of Haryana

and anotherâ€, 2004 (12) Supreme Court Cases 588, an imperative mandate, is, carried therein, vis-à -vis, upon apposite executive instructions, hence

contrary, or running against, the apposite Rules, (i) thereupon(s), the latter and not the executive instructions, hence prevailing. The sequel, of, the

afore expostulation(s), is, qua the afore alluded/notified policy of the government, and, the consonance therewith, hence inductions, of, the private

respondents, in various schools, in Himachal Pradesh, rather through the apposite School Management Committee(s) concerned, when has hereat

happened, and, rather, un-controvertedly, in, open contravention, of, the apposite Recruitment and Promotion Rules, (ii) thereupon, the apposite

Recruitment and Promotion Rules, when rather prevail upon or supersede, vis-Ã -vis, the afore alluded notification, (iii) hence begets a further

corollary, vis-Ã -vis, the induction(s) into service, of, the private respondents, rather holding no virtue, of, any validation.

However, the learned counsel appearing for the private respondents, has, with utmost vehemence, made a contention, before this Court, vis- Ã -vis,

theirs, yet, holding a right to seek permanent absorption, as well as regularization, against the posts, where- against(s) hence they stood initially

inducted. In making the afore submission, he makes dependence, upon, a verdict, of, the Hon’ble Apex Court, rendered in Civil Appeal No. 2813

of 2017, in case titled as, “Chander Mohan Negi and others versus State of Himachal Pradesh and others†and, most specifically, and, pointedly

upon paragraph-13, thereof, para whereof, is, extracted hereinafter:

“ It is trued that in the initial schemes notified by the Government, there was a condition that such appointees should not seek

regularization/absorption but at the same time for no fault of them, they cannot be denied regularization/absorption. Is 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 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 Teacehrs, 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 the 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 opinion 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 meager 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 questioned such policies and appointments upto 2012 and 2013. The writ petition, i.e. CWP 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 the reply affidavit. Having regard the 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.â€​

The afore judgment would hold the completest sway hence with this Court, in its being rather hence coaxed to accept, the, afore address, as, made

before this Court, by the counsel appearing, for, the private respondents, (i) only upon it encapsulating the, apposite binding, ratio decidendi. However,

the judgment (supra) rendered, by the Hon’ble Apex Court, does not, encapsulate therein, the, apposite binding ratio decidendi, vis-à -vis, the

fact(s) at hand, as (ii) the factual matrix prevailing thereat, is, completely lacking, in, the apt peremptory commonality, vis-Ã -vis, the factual matrix, as,

embodied in the extant case, (iii) significantly, hence when the trite parameters, for this Court being inclined to accept, the, relevant pronouncement(s)

occurring in paragraph-13 thereof, para whereof stands reproduced hereinafter, is, the peremptory existence, of, visible congruguity, interse the factual

matrix thereat, vis-Ã -vis, the one(s) existing hereat, (iv) thereupon the afore judgment, may not, purvey the absolute assistance to this, in its settling

the extant legal conundrum. (v) The afore conclusion qua lack, of, commonality, interse the factual matrix therein, and, the factual matrix hereat, is,

grooved, in the trite factum, vis-Ã -vis, the appointees therein, being appointed as PTAs, under, the Primary Assistant Teachers, scheme, (vi) whereas

the induction(s) into service, of, the hereat private respondents, as Lecturers, in the schools concerned, being made, through the aegis, of, the School

Management Committee concerned, or, the, hereat private respondents, being SMC teachers/lecturers. (vii) Moreover, the scheme/policy, in

consonance wherewith, the litigants, in Judgment (supra), as, recorded, by the Hon’ble Apex Court, hence became purveyed relief, is/are for

reiteration, in completest contradiction, vis-Ã -vis, the schemes/policy(s), in compliance wherewith, the private respondents, were initially inducted, into

service, rather purely, as a stop-gap arrangement, upto appointment(s) being made through adherence being meted, via-a-vis-, the apposite R &P

Rules.

Be that as it may, the, trite hereat applicable verdict becomes the one recorded, upon, CWPs No. 3162 of 2013, and, therewith connected matters,

(i) inasmuch as therein, this Court had become beset with

a lis, embroiling therein, a, controversy, vis-Ã -vis, engaging(s), induction(s) or appointment(s), on a stop gap basis, of, Lecturers/teachers, through, the

SMCs, as is/are the hereat inductees. In the judgment rendered by this Court in the afore CWPs, a visible pronouncement occur(s), hence declaring all

induction(s) made, through, the SMC(s), in, both tribal and non- tribal areas, rather as illegal. (ii) In sequitor, the similar hereat inductees, are likewise

amenable for being declared, as usurpers,of, public offices’, as, further, in the, verdict (supra), the, alike with them, or, in similar inductees, become

declared, to, be enfeebled, to, espouse, for, even relief, of continuance in service or permanent absorption, in service, as teachers, in the schools

concerned, upon, their appointments occurring, through SMC(s), and upon, evident infraction, hence upsurging(s), vis-Ã -vis, the apposite applicable

Recruitment and Promotion Rules. (iii) Furthermore, there was also, for reiteration, an emphatic denial to the petitioners, of, the canvassed relief of

theirs being permitted to continue in service, till appointments, of, regular teachers, against substantive posts, being made, in adherence to the

Recruitment, and, Promotion Rules. Moreover, a direction is also contained therein, vis-à -vis, the State of Himachal Pradesh, rather ensuring its’

bringing complete compliance, vis-Ã -vis, the provision of Right of Children to Free and Compulsory Education, Rules, 2010.Since the afore verdict

remains unchallenged, hence it acquires the apt binding and conclusive force, and, is the apt ratio decidendi. Moreover, since the relief(s), canvassed in

the extant writ petition, are, in tandem, with the afore binding, and, conclusive decision, (iv) and also when hence, there is hereat an un-controverted

breach, of, the relevant Recruitment and Promotion Rules, (v) besides when there is/are no legitimate expectations, hence inhering in the private

respondents, to claim their regularization(s) or permanent absorption(s) into service, thereupon, the afore verdict, does, encompass, the guiding

principle, or sheds the completest light, hence for settling the extant controversy.

Lastly, the learned counsel appearing for the private respondents, has, also made a vehement submission, before this Court, that since immense

time, has elapsed, interse the engagement, of, the private respondents, in public service, and upto, their inductions, being challenged through the instant

writ petition, hence the writ petition, being hit by vices, of, delay and laches, and, it deserving dismissal. In making the afore submission, Mr K.D.

Shreedhar, the learned senior Advocate, depends upon a verdict of the Hon’ble Apex Court, recorded in case titled as, “State of Jammu and

Kashmir versus R.K. Zailpuri and othersâ€, (2015) 15 Supreme Court Cases 602. However, the learned counsel appearing for the private

respondents, has remained un-mindful, to paragraph-24, of, the verdict (supra), para whereof stands extracted hereinafter:

“24. At this juncture, we are obliged to state that the question of delay and laches in all kinds of cases would not curb or curtail the power of the

writ Court to exercise the discretion. In Tukaram Kana Joshi v. Maharashtra Industria Development Corpn, it has been ruled that; (SCC pp. 359-

60,para-12)

“ 12. Delay and laches is adopted as a mode of discretion to decline exercise of jurisdiction to grant relief. There is another facet. The Court is

required to exercise judicial discretion. The said discretion is dependent on facts and circumstances of the cases. Delay and laches is one of the facets

to deny exercise of discretion. It is not an absolute impediment. There can be mitigating factors, continuity of cause of action, etc. That part, if the

whole thing shocks the judicial conscience, then the Court should exercise the discretion more so, when no third party interest is involved. Thus

analysed, the petition is not hit by the cause of action is continuous and further the situation certainly shocks judicial conscienceâ€​

“14. No hard-and, fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it

after considerable delay and is otherwise guilty of laches. Discretion myst be exercised judiciously and reasonably. In the event that the claim made by

the applicant is legally sustainable delay should be condoned. In other words, where circumstances justifying the conduct exist, the illegality which is

manifest, cannot be sustained on the sole ground of laches. When substantial justice and technical considerations are pitted against each other, the

cause of substantial justice deserves to injustice being done, because of a non-deliberating delay. The Court should not harm innocent parties if their

rights have infact emerged by delay on the part of the petitioners.â€​

In the Judgment (supra), the Hon’ble Apex Court, has carved, an exception to the general principle, vis-à -vis, vices, of, delay and laches, upon,

remaining in-explicated, (i) thereupon, the exercise of affirmative jurisdiction, upon, the lis by the writ Court concerned, hence becoming barred (ii)

inasmuch, upon, the judicial conscience, of, the writ Court being shocked, (iii) whereuon(s), the bar of delay, and, laches, not frustrating the aggrieved

litigants hence endeavour, of, accessing the writ Court. Since hereat, there is a palpable open breach of the mandate, of, Articles 14 and 16, of, the

Constitution of India, rather by the respondents concerned, in theirs inducting into service, the private respondents, (iv) and also, with this Court

rendering a conclusive, and, binding decision, upon CWP No. 3162 of 2013, and, connected therewith matters, on 25.10.2013, and the afore being

unchallenged, (iv) AND yet the respondents concerned continuing, to, irrevere it,(v) thereupon, obviously with the judicial conscience of this Court

being shocked, hence, the, making(s), of, the afore espousal by the learned counsel, for, the private respondents, qua any purported vice(s), of, delay

and laches, rather barring this Court, from exercising an affirmative jurisdiction, vis-Ã -vis, the writ petitioners, becomes completely ousted.

Consequently, there is merit in the instant petition, and, the same is allowed. However, the respondents concerned are directed, to, within six weeks

from today, after completing all the codal formalities, hence engage/appoint apposite regular hands, against, the, apposite substantive post(s) (i) and,

also for ensuring qua the academic pursuits, of, the children rather not becoming jeopardized, they are directed, to, in the afore schools, hence, ensure

imparting, of, online teachings, reiteratedly to, all the students, at all, the schools concerned. The induction/appointments, of, the private respondents

concerned, are, quashed and set-aside. All the pending application(s), if any, are also disposed of. No costs.