IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Writ Petition No. 13045 of 2009 Date of Decision: 6.4.2010 Ashok Kumar ..Petitioner versus The State of Haryana and others ..Respondents CORAM: HON'BLE MR. JUSTICE MUKUL MUDGAL, CHIEF JUSTICE HON'BLE MR. JUSTICE JASBIR SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. Whether to be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Ashok Bhardwaj, Advocate for the petitioners in CWP Nos.16234 and 19464 of 2009 Mr.N.R.Dahia and Mr.S.N.Pillania, Advocates for the petitioners in CWP No.1722 of 2009 Mr.Jagbir Malik, Advocate for the petitioner in CWP No.2650 of 2009 Mr.R.K.Malik, Senior Advocate with Mr.Jagbir Malik, Advocate for the petitioners in CWP No.4562, 4690 and 13045 of 2009 Mr.Rajiv Atma Ram, Senior Advocate with Mr.Vikas Kuthiala, Advocate for respondent No.3 Mr.G.K.Chatrath, Senior Advocate with Ms.Shapali Sodhi, Advocate Mr.Praveen Gupta, Advocate for the petitioners in CWP Nos. 5029 and 5041 of 2009 Mr.Rajesh Bansal, Advocate for the petitioner in CWP No.16143 of 2009 Mr.Hawa Singh Hooda, Advocate General Haryana with Mr.Anil Rathee, Additional Advocate General, Haryana and Mr.Gagan Wasu, Assistant Advocate General, Haryana Civil Writ Petition No. 13045 of 2009 Jasbir Singh, J. 1. This judgment will dispose of Civil Writ Petitions bearing Nos. 1722, 4562. 4690, 5029, 5041, 13045, 16143, 16234 and 19464 all of year 2009 and 2650 of 2010. 2. In some of these writ petitions, there is a common challenge, to the instructions dated 2.3.2009, vide which terms and conditions for engagement of guest faculty teachers/ lecturers were changed. 3. In another set of writ petitions, besides laying challenge to the aforesaid instructions, challenge has also been laid to a corrigendum/ notice dated 3.7.2009, by which, relaxation in age, exemption from passing the School Teachers Eligibility Test (STET) and weightage towards experience, for service rendered as guest faculty teachers, at the time of regular selection has been provided. 4. Dispute in all these writ petitions is regarding selection to the post of the Lecturers (School Cadre) HES-II (Group C) in the State of Haryana (in short, the cadre). Posts falling in the above said cadre are governed by the provisions of The Haryana School Education Lecturer School Cadre (Group C) Service Rules, 1998 (in short, the 1998 Rules). 5. For facility of reference, facts are being mentioned from CWP No.13045 of 1999. 6. By filing this writ petition, the petitioner has laid challenge to the Policy circular dated 2.3.2009 (Annexure P7) and to corrigendum dated 3.7.2009 (Annexure P9) these being arbitrary and contrary to the guarantee of equality under Articles 14 and 16 of the Constitution of India. 7. Before dealing with the controversy in question, it is necessary to mention here that more than 1300 posts of Lecturers in the cadre were 2 Civil Writ Petition No. 13045 of 2009 lying vacant in the State of Haryana. With a view that education of the School children may not suffer, the State of Haryana formulated a Policy guideline to engage teachers/ lecturers, as guest faculty, to overcome shortfall of the teachers in various Schools in the State of Haryana. Guidelines issued in that regard in the year 2005 for the Session 2005-2006 are extracted here as under:- CRITERIA: 1. The Principal/ Headmaster/ DDO of the concerned school are authorized to assess the shortfall of teachers keeping in view the sanctioned posts of teachers and the enrolment of students. 2. The minimum prescribed periods for Lecturers/ Master/ C&V teachers are 30, 38 and 39 respectively for one week, if in any school the post of any subject is vacant the demand of periods exceeds full workload as per the above norms then a guest faculty arrangement be made. 3. That such offers will firstly be made to retired teachers who had received National/ State awards or who enjoyed an excellent reputation for knowledge in the subject. If such good retired teachers are not available, then the Head of the Institution will engage other teachers or guest faculty having prescribed qualifications as applicable to regular teachers. For this the powers are delegated to the level of Principal/ Headmaster/ DDO. 4. The applicant should fulfill all the qualifications prescribed for the post as laid down in the service rules for direct recruitment. This offer will be made only to those who possess superior qualifications to the minimum prescribed qualifications. Procedure I. The head of institution would engage teachers on guest faculty on the basis of vacancies and the workload. II. The Principal/ Headmaster/ DDO after assessing the requirement will display the requirement on a board displayed at the main gate of institution. In case of schools having post of Principal or Headmaster vacant, the DDO/ BEO would assess the requirement and will display the same on the Board. BEO will also assess the requirement of elementary school teachers. III. The applications should be submitted by the applicants offering their services for engaging the guest faculty for the specific period, from the date of engagement till 31.3.2006 only. 3 Civil Writ Petition No. 13045 of 2009 IV. The Principal/ Headmaster/ DDO will process all the applications received. If the Principal/ Headmaster/ DDO receives applications more than the vacancies for that academic session, then he/ she shall give preference to the applicants having higher academic merit. While making appointment in the guest faculty, the preference will be given to the candidate of that very village/ area. The merit list of such candidates would be prepared. If the candidate of that concerned areas is not available then the merit list of candidates of that Division will be prepared. IInd preference will be given to the candidates of that Division. IIIrd preference will be given to the candidate of that District. V. As and when a regular appointee is posted to that school (whether, after regular direct recruitment or after promotion or after adjustment or after transfer), the Head of the Institution will dispense with the services of the person engaged on guest faculty of that category of post. It is not an appointment but job work offer on period basis on prescribed rates. This is with a view to take care of studies of students where regular teachers are not available in the school.” 8. The policy also refers to the remuneration to be paid to the guest faculty (teachers/ lecturers). It was decided that the guest faculty should be engaged on the basis of merit. It was also mandated that terms and conditions, including mode of payment should be displayed on the main gate of the institution, where appointment is to be made. 9. For the Session 2006-2007, those very guidelines were reiterated. Thereafter, vide instructions dated 2.3.2009 (Annexure P7), terms and conditions of the guest faculty were changed as under:- “(i) The Guest Teachers will now be engaged for a period of one year on contract basis instead of their engagement on per day per period basis. Such Guest Teachers who will be kept on contract basis shall not ordinarily be removed during their period of contract. Their services, however, can be terminated before the expiry of the contract period, on the availability of a regular person by way of transfer, promotion or direct recruitment. (ii) In the event of a Guest Teacher being removed on the availability of regular teacher in the above stated manner, such Guest Teacher shall be adjusted at another place in accordance with adjustment policy already issued by the Department.” 4 Civil Writ Petition No. 13045 of 2009 10. It was further decided to pay a consolidated salary of Rs.13500/- per month to the Lecturers, Rs.11000/- per month to the Masters, Language Teachers and Rs.10000/- to JBT and Drawing Teachers. They were also held entitled to gazetted holidays and 12 casual leaves @ one per calendar month. It was further envisaged that if work and conduct of an appointee is not satisfactory, service of a guest faculty Teacher can be terminated without assigning any reason. 11. In the meantime, an advertisement appeared in the newspaper Dainik Jagran on 18.6.2009, advertising 1317 temporary posts of Lecturers (School Cadre) HES-II (Group B) (in short, the cadre). Last date to submit applications was fixed as 17.7.2009. Thereafter on 3.7.2009 (Annexure P9), a corrigendum was issued in partial modification of the advertisement mentioned above and the following provision was made regarding benefits to be extended to the members of guest faculty in the cadre:- “Besides as per the decision of the State Govt., the guest teachers applying for these posts will be given exemption from passing the School Teachers Eligibility Test (STET) and age relaxation in the upper age limit in additional weightage for having served the department as guest teacher will be given as under:- “ No weightage will be given to a person who has served for less than six months. For the six months experience, 6% additional marks will be given and one percent additional will be given for every additional month of engagement subject to maximum 24 marks.” (emphasis supplied) Necessary stipulation:- In case the Hon’ble Punjab and Haryana High Court does not agree to the grant of relaxation to the guest teachers, the same will not be given to them at the time of final selection.” Hence, this writ petition. 12. It is contention of counsel for the petitioner that by passing the impugned instructions (Annexure P-7), vacant posts have virtually been confined only for the erstwhile guest faculty teachers and further by 5 Civil Writ Petition No. 13045 of 2009 providing relaxation in age, qualification and by giving weightage towards experience to the guest faculty teachers, a grave injustice has been done to the petitioner and that the orders passed are contrary to the provisions of Articles 14 and 16 of the Constitution of India. It has been prayed that the impugned instructions / corrigendum be quashed. 13. Upon notice, reply has been filed by the State of Haryana, wherein Policy to appoint the guest faculty Teachers has been supported. It has further been stated that in the interest of studies of the children, in the government schools, by way of stop-gap arrangement, guest faculty teachers were appointed. Issuance of Policy in that regard has been admitted. It was further stated that the department imposed a complete ban on fresh engagement of guest teachers vide letter dated 17.11.2007 and it was ordered that in case of any post falling vacant, only disengaged guest teachers should be re-engaged. It was further stated that a large number of guest teachers represented to the authorities concerned to regularize their services, however, taking note of ratio of judgment of the Hon’ble Supreme Court in Secretary, State of Karnataka and others v. Uma Devi (3) and others, (2006) 4 SCC 1, their request was not accepted. For giving relaxation in age, qualification and weightage towards experience, to the guest faculty teachers, it was mentioned that the same was given on account of their experience and opting to enter government service against a very meager salary when the offer was first made. Prayer has been made to dismiss the writ petitions being without any merit. 14. Before dealing with the controversy raised by both the parties, it is necessary to note down some relevant provisions of the Rules governing the service conditions in the cadre. 6 Civil Writ Petition No. 13045 of 2009 15. As per Rule 5 of the 1998 Rules, no person shall be appointed to any post in the cadre by direct recruitment if he is less than 17 years or more than 35 years of age on or before the first date of month preceding the last date of submission of application to the Staff Selection Commission. Rule 7 deals with qualification to be possessed by a candidate to enter service in the cadre, which reads thus:- “Qualifications.- No person shall be appointed to any post in the service, unless he is in possession of qualifications and experience specified in column-3 of Appendix B to these rules in the case of direct recruitment and those specified in column 4 of the aforesaid Appendix in the case of persons appointed other than by direct recruitment. Provided that in the case of appointment by direct recruitment, the qualifications regarding experience shall be relaxable to the extent of 50% at the discretion of commission in case sufficient number of candidates belonging to Scheduled Castes, Backward Classes, Ex- servicemen and physically handicapped categories possessing the requisite experience are not available to fill up the vacancies reserved for them, after recording reasons for so doing in writing.” Taking note of the provisions of the Appendix B annexed with the 1998 Rules, in advertisement (Annexure P8) dated 18.6.2009, the following qualification was laid down as a requirement for the candidates to enter service in the cadre:- “Essential Qualification:- 1. Essential Qualifications for the Lecturers of all subjects except Lecturer in Chemistry, History, Maths and Pol. Science:- (i) Post Graduate Degree in relevant subject from a recognized university alongwith atleast 50% marks. (ii) Certificate of having qualified School’s Eligibility Test (STET) (iii) Matric with Hindi/ Sanskrit.” Regarding relaxation in age granted to the guest faculty teachers, following stipulation was added:- “Note:- 7 Civil Writ Petition No. 13045 of 2009 (i) xx xxx xxx (ii) Relaxation in upper age in the case of Guest Teachers working in Haryana will be given to the extent to the service rendered as Guest teacher. (iii) to (viii) xxx xxx xxx” 16. Thereafter, a corrigendum (Annexure P9) was issued on 3.7.2009, giving exemption to the guest teachers from passing STET and additional weightage for having served the department as guest faculty teachers upto 24 marks, as mentioned in aforesaid corrigendum. 17. As per contention raised by counsel for the petitioner, his primary grievance is that by confining the vacant posts only for the disengaged guest faculty teachers and by giving relaxation in age, exemption from passing STET and weightage towards experience gained as guest faculty teachers, the respondent State has committed violation of Articles 14 and 16 of the Constitution of India. 18. In so far as challenge to the instructions dated 2.3.2009 (Annexure P7) is concerned, by which, vacant posts were ordered to be filled up by appointing disengaged guest faculty teachers, the same has virtually become superfluous in the face of an advertisement issued thereafter on 18.6.2009 to recruit 1317 Lecturers against temporary posts in the cadre. In view of the changed circumstances, even counsel for the petitioner has failed to raise any plausible argument to lay challenge to the instructions, mentioned above. 19. The primary grievance of the petitioner is that benefits now given to the guest faculty teachers towards age, exemption from passing STET and weightage towards experience, if upheld, would amount to negation of his right to fairly compete for the posts, in question. By giving benefit to those, who enter the cadre through backdoor, as a stop-gap 8 Civil Writ Petition No. 13045 of 2009 arrangement, an attempt has been made, virtually to regularize them, contrary to the directions issued by the Hon’ble Supreme Court in Uma Devi’s case (supra). It is contention of counsel for the petitioner that the State of Haryana had started appointing guest faculty teachers for the Session 2005-2006 and by now, an overwhelming majority of them have completed more than two years of service as guest faculty teachers. As per the corrigendum issued, they would be entitled to get weightage of 24 marks towards their experience, and if that benefit is maintained, the petitioner will not be in a position to compete in any manner though he may be more meritorious as compared to many of them, so far as academic qualifications are concerned. No such weightage has been given for experience gained by the candidates other than the guest faculty members, which they may have acquired by serving in private institutions. It has further been argued that by making an amendment in the 1998 Rules on 24.7.2008, passing of STET was made compulsory and many petitioners have passed the same. By giving exemption from passing the above test to the guest faculty members, the State of Haryana has caused a grave injustice to the petitioners, who are eligible, as per the Rules and are meritorious. By submitting that the said action is discriminatory, a prayer has been made to set aside the same. 20. So far as relaxation in age is concerned, at the time of arguments, no serious dispute was raised regarding the same, by any counsel for the petitioners. 21. To rebut the above said objections raised by counsel for the petitioners, Mr.Hawa Singh Hooda, Advocate General, Haryana has vehemently argued that weightage upto 24 marks, in favour of the guest faculty teachers, for experience gained by them by working as such, is perfectly justified. He tried to support his contention by stating that initially 9 Civil Writ Petition No. 13045 of 2009 when the scheme was floated in the year 2005, very meager amount was offered to the guest faculty teachers / lecturers, for the work to be performed by them. By accepting that offer, they had virtually sacrificed and worked for welfare of the education system in the State, for which, they need to be rewarded, in view of which the impugned weightage was given to them. He further stated that exemption from passing STET was granted because when working as guest faculty teachers, the concerned guest faculty members would gain sufficient experience. He also brought to our notice that relaxation in qualification etc. was granted in terms of powers vested in the Government under Rule 17 of the 1998 Rules. He further argued that engagement of the guest faculty teachers was made after wide publicity in the newspapers and if the petitioners were interested, they would have also opted for the same, however, they failed to do so. At this stage, they cannot raise any objection regarding engagement of the guest faculty teachers. He further tried to impress upon the Court that the category of guest faculty teachers is a class separate and deserves special weightage, which has rightly been given to them. He prayed that the writ petition, having no substance, be dismissed. 22. Before proceeding further, it is necessary for us to note as to whether when guest faculty teachers were engaged, an opportunity to compete was given to all or not and whether, it was restricted to few only, as per the Policy formulated in the year 2005? 23. To select guest faculty teachers, on getting report regarding deficiency of teachers in a particular school from a Principal/ Headmaster, the process to select guest faculty teachers was entrusted to the Principal/ Headmaster of the concerned school. In the first instance, the post was to be offered to a retired teacher who had received National/ State award or who 10 Civil Writ Petition No. 13045 of 2009 enjoyed an excellent reputation for knowledge in the subject. In case of non availability of a retired teacher, it was left open to the Head of the Institution to engage guest faculty teachers, having prescribed qualifications as applicable to the regular teachers. As per the prescribed procedure, after assessing the requirement, the Principal/ Headmaster was to display the requirement on a Board displayed at the main gate of the institution, inviting applications. The posts were to be filled up for a specified period as per requirement or till the arrival of a regular teacher. The Principal/ Headmaster was to process the applications. First priority to engage guest faculty in a particular school was to be given only to the candidates of that village/ town. If no candidate was available, as per qualification, then the post was to be filled up out of the applicants from that particular block and thereafter from that district. It was further provided that on joining of a regular appointee, service of the guest faculty teachers was to be dispensed with. It is not in dispute that initially all the guest faculty teachers were appointed for six months. 24. A reading of the provisions of 2005 Policy, makes it very clear that offer to enter as a guest faculty teacher was not open to. It was restricted to the candidates from a village, then from a block and thereafter from a district. There could have been a situation that in ‘A’ village, person having lower merit may have been selected whereas a candidate from the adjoining ‘B’ village, having much higher merit may have been ignored. Inter-se merit of all the candidates, in the State, was not compared at all at any time. 25. There may be cases where a meritorious person, working in some private institution, might have ignored the offer to enter the cadre, as guest faculty teacher, on account of the meagre salary offered by the State. 11 Civil Writ Petition No. 13045 of 2009 The contention of Mr.Hooda that it was an open advertisement and the petitioner could have also opted by applying for the post as a guest faculty teacher, is devoid of any reasoning. Many suitable candidates may have been left out in view of the procedure adopted, to appoint guest faculty teachers, as per the 2005 Policy. Guest faculty teachers were appointed firstly in the year 2005-2006. An advertisement for regular appointment was issued in the year 2009. In the meantime, it can reasonably be presumed that many more eligible candidates may have become available, who might be more meritorious compared to those who were working as guest faculty teachers. 26. Further contention of Mr.Hooda is that by opting to enter as guest faculty teachers, the candidates have sacrificed to render service for upliftment of education system in the State, is also devoid of any reasoning. It is apparent from the records that after joining service as guest faculty teachers, most of them, even before the end of their first term, as guest faculty teachers, started agitating their grievances before the legal forums. They also started claiming higher pay scales and engaged the State in unnecessary litigation. Nature of service of the guest faculty teachers was contractual. After accepting the same, they were not supposed to turn back and say that perks were less or they be allowed to continue in service. 27. A large number of guest faculty teachers filed CWP No.2743 of 2006, claiming continuation in service and higher wages. A Division Bench of this Court held that they be allowed to continue in service till regular incumbents are appointed. It was further held that they were not appointed through regular procedure and as such they cannot claim continuation in service. Regarding payment of higher wages, it was observed as under:- 12 Civil Writ Petition No. 13045 of 2009 “The petitioners are also aggrieved, because they are not being paid emoluments equal to the minimum wages being paid to the regular teaching faculty. It is not possible for us to accept the instant prayer of the petitioners, as they have certainly no right to make the aforesaid claim, inasmuch as, their engagement is, by and large, without following any process of selection. Furthermore, it would also not be possible to proceed against the guest faculty departmentally in case of a misconduct in view of the nature of their engagement. The Supreme Court in State of Haryana vs. Jasmer Singh 1997 (1) SLR 143, declined a similar claim for minimum wages raised at the hands of the daily wagers. The aforesaid judgment was subsequently reaffirmed by the Apex Court in State of Orissa and others vs. Balram Sahu and others, 2002 (6) SLR 542, wherein again it was held, that daily wagers are not entitled to minimum pay of a regular employee. Since the petitioners have been engaged to discharge duties only for limited periods in the day, and in some cases, for limited number of days, we are of the view that their claim for wages at the minimum of the pay scale fixed