Punam Devi vs State of Himachal Pradesh

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(HP) 417

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
RANJAN SHARMA, J.
Punam Devi & Ors. - Petitioners
Versus
State of Himachal Pradesh & Ors. - Respondents
CWP No. 9871 of 2023
Decided On : 13-12-2023

Advocates Appeared:
For the Petitioners: Mr. Virbahadur Verma and Mr. Mukul Sharma.
For the Respondents:Mr. Vishal Panwar, Additional Advocate General.

Headnote:
Regularization - Language Teachers and Shastri Teachers - Himachal Pradesh Education Department Class-III (School and Inspection Cadre) Services Rules, 1973 - The court discussed the regular appointment of teachers and the introduction of contractual mode-nomenclature of appointment in the Rules. It highlighted the principle that the amended rules cannot be applied retrospectively to selection undertaken under the amended Rules but were to apply prospectively only. The court emphasized that government appointments should be made in accordance with the Rules and that if the Rules do not permit the government to make appointments on a contract basis, they must be made on a regular basis. The judgment also addressed the issue of taking over services of staff of privately managed colleges on a regular basis and the absence of provision for appointment on a contract basis in the Rules at the time of take over.
Fact of the Case:

The petitioners, Language Teachers and Shastri Teachers, sought regularization of their services with consequential benefits, contending that they were appointed on a contractual basis despite undergoing selection for regular appointment as per the Himachal Pradesh Education Department Class-III (School and Inspection Cadre) Service Rules, 1973.
Finding of the Court:

The court found that the petitioners were wrongly and illegally appointed on a contract basis when the Rules only provided for regular appointments. It emphasized that the amended rules introducing contractual mode-nomenclature of appointment could not be applied retrospectively to the disadvantage of the incumbents. The court directed the respondents to extend the benefit of regular appointment from the date the petitioners were appointed on a contractual basis and to consider their case in the light of the referred judgments.
Issues: The main issue was whether the petitioners, who had undergone selection for regular posts, could be appointed on a contractual basis when the Rules only provided for regular appointments.
Ratio Decidendi: The court held that the amended rules introducing contractual mode-nomenclature of appointment could not be applied retrospectively to the disadvantage of the incumbents. It emphasized that government appointments should be made in accordance with the Rules and that if the Rules do not permit the government to make appointments on a contract basis, they must be made on a regular basis.
Final Decision: The court directed the respondents to extend the benefit of regular appointment from the date the petitioners were appointed on a contractual basis and to consider their case in the light of the referred judgments.

JUDGMENT :

Ranjan Sharma, J.

Notice. Mr. Vishal Panwar, learned Additional Advocate General, appears and waives service of notice on behalf of the respondents.

2. With the consent of the parties, the instant writ petition is taken up for disposal, at this stage, in view of the peculiar facts as borne out from the pleadings.

3. The petitioners, being Language Teachers and Shastri Teachers, have filed the instant writ petition with the following prayer(s):-

“(i) Issue a writ of Mandamus directing respondents to regularize the services of the petitioners with effect from the date of their initial engagement/appointment with all consequential benefits in term of the judgments passed by this Hon’ble Court in CWP No.7602 of 2010, titled as Om Prakash Vs. State of H.P. & Others, and connected matters, CWP No.3144 of 2011, titled as Anju Devi Vs. State of H.P. and Others and CWP No.3143 of 2011, titled as Manju Devi vs. State of H.P and others.

(ii) Issue a writ of Mandamus directing the respondents to release the entire consequential benefits along with interest @ 9% per annum from the date of their initial appointment to till the date of realization.

(iii) Issue a writ of Mandamus directing the respondents to extend the same and similar benefits as has been extended to Ms. Rakhi (LT), Mr. Tej Ram (LT) & Mr. Kuldip Chand (TGT, now Lecturer) in terms of judgments passed in CWP/7602/2010, titled as Om Prakash Vs. State of H.P. & Others, and connected matters, CWP No.3144 of 2011, titled as Anju Devi Vs. State of H.P. and Others and CWP No.3143 of 2011, titled as Manju Devi vs. State of H.P and others by this Hon’ble Court.”

4. In the background of the reliefs prayed for above, the only grievance of the petitioners is that the Respondents had started the selection process for appointment as C&V teachers (Shastri/Language Teachers) in October, 2008 (Annexure P-1), on Batch wise Basis, on regular basis, in the Elementary Education Department, of the State Government in accordance with the Himachal Pradesh Education Department, Class-III (School and Inspection Cadre) Services Rules, 1973 but, instead of appointing them on regular basis as C&V teachers (Shastri/Language Teachers) they were appointed on contractual basis on 30.01.2009. The petitioners continue as such and they were regularized as TGT on 25.06.2015.

5. Now, the only grievance of the petitioners is that though as per the Himachal Pradesh, Education Department Class-III [School and Inspection Cadre] Service Rules, 1973, the petitioners had undergone the selection for appointment as C&V teachers (Shastri/Language Teachers) on regular basis but, were wrongly and illegally appointed on contract basis when, contractual mode-nomenclature of appointment was introduced in the Himachal Pradesh Elementary Education Department, Classical and Vernacular Teacher [Class-III] [Non Gazetted], Recruitment and Promotion Rules on 17.05.2010 and once these Rules of 2010 were only prospective in nature then, the petitioners could not have been appointed on contract basis, meaning thereby, that the petitioners had a right to be appointed on regular basis from the date of initial appointment.

In this background, the action of the respondents in denying the “deemed regular appointment to the petitioners, as Shastri and Language Teachers” from the date they were appointed as such on contract basis on 30.01.2009 [prior to insertion of contractual mode-nomenclature of appointment in Rules on 17.02.2010]; has resulted in depriving the petitioners of the regular status, regular pay scale, pay fixation in regular pay scale, benefit of ACP from such deemed regular date, higher pay in revised pay scales w.e.f. 01.01.2006, then w.e.f. 01.01.2016 and higher pay till day which is a recurring loss till day. Even this action has resulted in depriving the petitioners of the pension on superannuation which is violative of Articles 14 & 16 of the Constitution of India.

6. The question, as to whether the incumbents who had unde

Click Here to Read the rest of this document