Surinder Kumar & Ors vs State Of H.P. & Another

Satyen Vaidya, J

All these petitions have been heard and are being decided together as common questions of facts and law are involved.

Petitioners are seeking relief of regularization of their services w.e.f. 09.12.2014 instead of 20.08.2020, as has been ordered to be done in their case

vide impugned communication dated 05.08.2020.

The Government of Himachal Pradesh had framed and adopted Primary Assistant Teachers (PAT) Scheme 2003. All the petitioners had their

respective initial appointments under the said scheme between the years 2003-2007. During continuance of the PAT scheme, NCTE and State

Government prescribed certain qualifications for the persons appointed under said scheme to be fulfilled, as pre requisite for being considereded for

regularization against the vacant posts of Junior Basic Teachers (JBT). Petitioners are stated to have acquired all such requisite qualifications.

The case as set up by the petitioners is that the State Government had also framed and adopted similar schemes in the years 2001 & 2003 namely

as H.P. Gram Vidya Upasak Yojana, 2001 and Himachal Pradesh Para Teacher Policy, 2003 (for short “GVU and Para Teachers Policiesâ€) . It

is alleged that since the incumbents appointed under the aforesaid schemes had already rendered services for long durations on meager emoluments,

the State Government had taken a decision to regularize their services on fulfillment of conditions of the R&P Rules for the post against which the

regularization was proposed. It has been averred that the category of Vidya Upasak appointed under the GVU Scheme was merged with PAT in the

year 2005. It is further submitted that the State Government had regularized the services of Gram Vidya Upasaks in the year 2011 on completion of

eight years’ service under GVU scheme. As per the petitioners, the State Government had taken a decision to regularize the services of the

petitioners and Para Teachers but in the meanwhile, certain writ petitions were filed in this Court challenging the appointments under the aforesaid

schemes and the regularization proposed by the State Government. In the case of PAT, learned Single Judge of this Court had allowed the writ

petitions. The respondents-State was directed to phase out the teachers appointed under the PAT scheme in a phased manner and to commence the

selection process for filling up the posts of JBTs strictly as per the Recruitment and Promotion Rules and requirements of NCTE. The

respondent/State was further directed not to regularize the services of the teachers dehors the R&P Rules.

The judgment passed by the learned Single Judge was assailed by the State Government as also by the certain private individuals by way of Letters

Patent Appeals, which were decided by a common judgment dated 09.12.2014 by the Principal Division Bench of this Court, whereby the judgment

passed by the learned Single Judge was set aside and the decision of the State Government to regularize the services of the incumbents appointed

under the aforesaid schemes was upheld. It has further been submitted that the judgment dated 09.12.2024 passed by the Principal Division Bench of

this Court was assailed before the Hon’ble Supreme Court and was affirmed vide judgment dated 17.04.2020 passed in Civil Appeal No. 2813 of

2017 with Civil Appeal No(s). 2814 and 2815 of 2017 titled as Chander Mohan Negi & Ors. vs. State of H.P. & Ors.( reported in (2020)5 SCC

732).

As per the petitioners, after passing of judgment dated 09.12.2014 by the Principal Division Bench of this Court, the services of number of Para

Teachers were regularized by the State Government on 18.12.2014. Though, the services of the petitioners were also intended to be regularized after

passing of the judgment by the Division Bench of this Court, but could not be done on account of an interim order passed by the Hon’ble Supreme

Court in Civil Appeal No. 2813 of 2017 with Civil Appeal No(s). 2814 and 2815 of 2017, titled as Chander Mohan Negi & Ors. vs. State of H.P. &

Ors. After the decision in Civil Appeal No.2813 of 2017 with Civil Appeal No(s).2814 and 2813 of 2017, the State Government took a decision dated

05.08.2020 to regularize the services of the petitioner prospectively. It is this decision of the State Government, which is under challenge by way of the

instant petitions.

Petitioners have alleged discrimination vis-a-vis similarly situated persons appointed under the GVU and Para Teachers Schemes. It is contended

by the petitioners that the aforesaid schemes were adopted by the State Government with a similar objective and though the incumbents under GVU

and Para Teachers schemes were regularized on completion of 8/10 years of service, but the petitioners have been discriminated by regularizing them

after service of more than 15 to 17 years. Petitioners have placed reliance on communicated dated 05.08.2020 in respect of Para Teachers, whereby

the left out Para Teachers have been ordered to be regularized notionally w.e.f. 18.12.2014, when other incumbents appointed under Para Teacher

Scheme were regularized.

The respondents have filed their reply. Though, the factual aspects as asserted in the petitions have not specifically been denied or controverted, the

decision to regularize the services of the petitioners prospectively has been sought to be justified on the grounds that firstly, the Division Bench of this

Court or the Supreme Court has not specified any date for the regularization of the petitioners and secondly, the decision of the Council of the

Ministers also provides for prospective regularization.

I have heard learned counsel for the parties and have also gone through the record carefully.

Petitioners are claiming parity with the treatment given to the incumbents under the GVU and Para Teachers Schemes. Their contention is that all

these schemes were contemporaneously framed by the State Government with identical objectives. It is also submitted that at one stage the State

Government had taken a decision to grant benefit of regularization to all the incumbents appointed under the aforesaid schemes equally, provided that

they fulfilled the conditions prescribed under respective R&P Rules. Whereas, the incumbents under GVU and Para Teachers Schemes got the

benefit of regularization, the petitioners were divested therefrom on account of litigation initiated by certain persons against the State Government, in

which petitioners were not even impleaded as parties. It is further contended that later decision of the State Government to grant benefit of

regularization to the petitioner prospectively is arbitrary and hence discriminatory in nature, thus, violating Articles 14 and 16 of the Constitution of

India.

As noticed above, the respondents have sought to justify their action on the grounds, firstly, this Court or the Hon’ble Supreme Court had not

prescribed any date for regularization of the petitioners and secondly, the State Cabinet had taken a decision to regularize the services of the

petitioners prospectively.

Petitioners have specifically alleged that the objective behind formulation and adoption of PAT, GVU and Para Teachers Schemes was to fulfill

the legislative mandate of Article 21-A of the Constitution of India and to fulfill the aims and objectives of National Policy of Education, 1986 as also

the Himachal Pradesh Compulsory Primary Education Act, 1997. Petitioners have further submitted that since the State Government was facing

dearth of qualified teachers in schools situated in tribal/difficult and other areas of the State, the appointments under the aforesaid schemes were

found to be the solution.

Noticeably, the respondents in their reply have not controverted such assertions made by the petitioners with respect to the appointments under the

PAT Scheme. As regards appointments under two other schemes, reply has been conspicuously silent. The above context was also noticed by the

Principal Division Bench of this Court vide judgment dated 09.12.2014 passed in a bunch of matters with CWP No. 6916 of 2011 as lead case in

following manner: -

“2. The State, after noticing the dire need of providing education at grass root level and particularly, in tribal and hard/difficult areas, made the

policies/schemes in the years 2001 and 2003, appointed Gram Vidya Upasaks, Primary Assistant Teachers and Para Teachers. It is apt to reproduce the relevant

portion of one of the policies, i.e. the Himachal Pradesh Gram Vidya Upasak Yojna-2001 herein:

Rationale:-

The task of universalization of Primary Education in Himachal Pradesh is a gigantic one keeping in view the tough geographical conditions of the State and the

non-availability of trained teaching man power.

The trained teachers available in the urban and other developed areas are reluctant to serve in the remote areas as a result of which most of our schools in these

areas are without teachers. In the remote and inaccessible areas of the State, the Department of Primary Education faced many problems like teacher

absenteeism, poor scholastic standards which led to irregular functioning of primary schools and increased drop-out rate. In order to counter these problems

effectively and to translate the vision of the State Govt. reflected in the NINE POINTCHARTER announced by Hon'ble Chief Minister, Himachal Pradesh, Prof.

Prem Kumar Dhumal, to bring REFORMS and to accelerate the pace of development, by decentralising the power to panchayats, the HP GRAM VIDYA UPASAK

YOJNA has been visualised.

The Department of H.P. Primary Education has conceived this innovative scheme of H.P. Gram Vidya Yojna-2001 to relate it to the concept of Para Teachers

keeping in view the problem of teacher absenteeism in the remote and difficult rural areas. It is difficult to find fully qualified teachers who would willingly accept

posting in remote villages, far less actually take up residence there. A primary school in such a village actually tends to become dysfunctional, and

parents as well as children fail to relate to such an institution, leading to high drop out rates. One of the ways to solve this problem is the concept of Para

Teachers.

The use of Para Teachers in formal schools began with the Himachal Pradesh Volunteer Teachers Scheme in 1984 and replicated by Vidya Upasaks Yojna in the

year-2000 which was followed in Primary Education by other States.

In the aforesaid litigation, the State of Himachal Pradesh had throughout taken the stand supporting its schemes and decision to regularize the

incumbents appointed thereunder. Hon’ble Supreme Court had noticed the submissions made by learned Senior Counsel representing the State

Government in Civil Appeal No. 2813 of 2017 with Civil Appeal Nos. 2814 and 2815 of 2017 as under:-

“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 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, fulfill all the

qualifications required under service rules. Lastly, it is submitted C.A.Nos.2813 of 2017 etc. 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.â€​

Thus, there remains no doubt that there was no substantive distinction between the objectives behind the aforesaid schemes and there is also

nothing to suggest that the State Government had ever intended to carve out any distinction between the incumbents under these schemes for the

purpose of regularization of their services.

It is also clearly made out that the petitioners could not be regularized on account of pending litigation. Undisputably, no fault can be found with the

petitioner either for pendency or prolongation of such litigation as they were not even impleaded as parties.

The decision of the State Government to regularize services of the incumbents under PAT, GVU and Para Teachers Schemes stands already

upheld by the Division Bench of this Court as noticed above vice judgment dated 09.12.2014. In Para-29 of the said judgment the Court had observed

as under:-

“29. While applying the tests laid down by the Apex Court in the judgments (supra) and keeping in view the aim and object of the policies of the State

Government, the appointments made cannot be said to be illegal, thus, can be regularized as per the mandate of the said policies.â€​

Importantly, the plight and circumstances of the petitioners and the similarly situated persons under similar schemes were also noticed vide

aforesaid judgment in following terms:-

“50. It pains us to record here that the State Government has utilized the services of the said teachers right from the year 2003, they have lost their youth and

are performing their duties with legitimate expectations and the Government, after taking note of their work and conduct, as discussed hereinabove and at the

cost of repetition, came forward and regularized their services and by now, they must have crossed the age of consideration and the impugned judgment has taken

away their bread, not only the bread, but has affected their matrimonial home and their family and career of their children for no fault of theirs.â€​

Hon’ble Supreme Court while affirming the view taken by the Division Bench of this Court while deciding theC hander Mohan Negi’s

case (supra) has held as under:-

“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 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

view 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 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.â€​

As against above, the stand now sought to be taken by the respondents clearly is without any justification. Merely because this Court or the

Supreme Court had not fixed any date for grant of benefit of regularization to the petitioners, the State Government is not absolved from its duty to

grant the petitioner benefits at par with similarly situated persons. Also because the State Cabinet has taken a decision to grant benefit of

regularization to the petitioners prospectively, the same cannot be a valid reason to discriminate the petitioners.

As the parity of status inter se the incumbents under PAT, GVU and Para Teachers Schemes has already been considered and decided by this

Court and Supreme Court and more particularly when the State Government had also made the same proposal, it cannot now turn around; as such

conduct of the State Government is clearly barred by the principle of estoppel and res judicata. Even otherwise, the State Government has not been

able to put forth any plausible reason for discriminating against the petitioners. On the same date i.e. on 05.08.2020, on one hand the State

Government has decided to grant the benefit of regularization to petitioners prospectively and on the other it has decided to confer benefit of

regularization on Para Teachers retrospectively, though on notional basis. In my considered view, all the incumbents under the PAT, GVU and Para

Teachers Schemes formed a single class, keeping in view the object behind their appointments and treatment given to them by the State Government.

The exclusion of petitioners by not conferring upon them the benefit of regularization on completion of 8/10 years of service, as has been done in the

case of GVU and Para Teachers, amounts to creation of a class without there being any intelligible differentia.

In light of above discussion, petitions are allowed. The decision of respondents to regularize the services of the petitioners prospectively w.e.f.

20.08.2020 is quashed being violative of Articles 14 and 16 of the Constitution of India. The petitioners are held entitled to regularization from the date

of completion of their respective services of 8/10 years, as adopted in the cases of GVU and Para Teachers. Since, the respondents have already

granted such benefit to the Para Teachers w.e.f. 18.12.2014, the respondents are directed to regularize the services of the petitioners with all

consequential benefits from that date i.e. 18.12.2014. With the aforesaid directions, all the writ petitions are disposed of. Pending applications, if any,

also stand disposed of.