Varinder Singh vs State of H.P.

Tarlok Singh Chauhan, J.—This Letters Patent Appeal is directed against the judgment passed by the learned Single Judge in CWP No. 1581 of 2010, whereby the writ petition filed by the petitioner-appellant has been ordered to be dismissed.

The facts, in brief, may be noticed. The petitioner is a Post Graduate in Hindi having obtained 58.75 % marks. He also qualified M.Phil in the year 2004 and came to be appointed as a Lecturer on 3.7.2006 in the subject of Hindi in Chander Dhar Guler College, Haripur (Guler), which at that time was a private college. The State Government took a decision to take over this college vide notification dated 20.4.2007 and the services of the petitioner was also taken over as a lecturer ''school cadre''. His grievance before the writ court was that his services ought to have been taken over as a Lecturer, ''college cadre'' on contract basis as per the notification dated 3.4.2010.

The appellant had only served the college with effect from 3.7.2006 to November, 2006 i.e. about five months only. The appointment letter was not available in the office record and even his joining report was neither available nor supplied to the Departmental Committee.

The terms and conditions for taking over privately managed colleges are governed by the notification dated 25.8.1994 and it would be apt to re-produce clause 7 thereof which reads as under:

"The services of only qualified teaching and non teaching staff appointed one year earlier who fulfill prescribed departmental recruitment and promotion rules, conditions prevalent at the time of taking over will be considered for taking over subject to the approval of the State Public Service Commission or Departmental Screening Committee from the date of taking over. The services of the Principal will be taken over only as Senior most Lecturer in the college concerned subject to the above mentioned proviso. The Government scales in respect of the respective categories shall be permissible to them after the take over."

It is evident from a bare perusal of clause-7 that services of only those qualified teachers could have been taken over who had been appointed ''one year earlier'' to the issuance of notice of taking over. In the present case, as observed earlier, appellant had barely put in five months of service, therefore, in terms of clause 7 of the notification dated 25.8.1994, services of the appellant could not have been taken over.

Indisputably, the appointment of the appellant is to be reckoned from the date when he actually came to be appointed i.e. 3.7.2006 and cannot be reckoned from the academic session i.e. April/May, 2006 and, therefore, his appointment has rightly not been approved by the H.P. University.

The appellant then claims that one Smt. Kavita Sharma, lecturer, Commerce was engaged by the erstwhile private college on 7.6.2003. However, her services were terminated on 1.12.2006 and then she was re-appointed on 27.3.2007 and yet her services were taken over and therefore, the petitioner being similarly situate like Ms. Kavita Sharma, his services too were required to be taken over on the same analogy.

No doubt, Ms. Kavita Sharma was appointed on 7.6.2003 and terminated on 1.12.2006 and thereafter re-appointed on 27.3.2007, but then she had been regularly appointed on 7.6.2003 and her appointment had also been approved by the H.P. University. Her services were though terminated w.e.f. 1.12.2006, but the same were restored vide order dated 27.3.2007 with the remarks "to be considered as a regular lecturer from the date of initial appointment, i.e. 7.6.2003".

The DPC, while recommending the case of Ms. Kavita Sharma, had placed a rider that in case the record of service establishes that her services were actually restored before 20.4.2007, then her case could be considered for taking over her service. A definite finding of fact has been recorded by the learned Single Judge that Ms. Kavita Sharma had established on record that her services were restored before 20.4.2007 and, therefore, in these circumstances, her services were taken over as a lecturer (college cadre).

Even for argument sake, if it is assumed that Ms. Kavita Sharma was not eligible, even then the moot question would be as to whether the appellant could have filed the case basing his claim on negative equality. Article 14 of the Constitution does not envisage negative equality and it cannot be used for perpetuating any illegality. The doctrine of discrimination based upon the existence of an enforceable right under Article 14 would hence apply, only when invidious discrimination is meted out to equals similarly circumstanced without any rationale basis or to relationship that would warrant such discrimination (refer Smt. Sneh Prabha etc. Vs. State of U.P. and Another, , Yogesh Kumar and Others Vs. Government of NTC, Delhi and Others, , State of West Bengal and Others Vs. Debasish Mukherjee and Others, and Priya Gupta Vs. State of Chhatishgarh and Others, .

The cumulative effect of the discussion made here-in-above is that there is no merit in the appeal, the same is accordingly dismissed.