IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 11263 of 2008 Decided on : 16.11.2010 Balbir Singh Kalasaik ..…Petitioner. Versus State of Himachal Pradesh and another … Respondents. Coram The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the Petitioner : Mr. K.D. Shreedhar, Advocate. For respondents : Mr. J.S. Guleria, Law Officer. V.K.Sharma, Judge (Oral) The petition has been filed for grant of the following substantive reliefs vide para 7(i) and (ii):- “(i) That the impugned orders dated 26.7.2004 (Annexure A-9) and dated 1-8-2004 (Annexure A-10) may be quashed and set aside. The respondents may be directed to take the services of the applicant while taking over the College, in question, as a Lecturer Physical Education (College Cadre) with effect from 13-6-2002 (Annexure A-4). (ii) That the respondents may be directed to treat the applicant while taking over his services on the same terms and conditions as the privately managed College Sunjanpur-Tihra were taken over as per the Annexure A-13 and the applicant be designated as a Lecturer, Physical Education (College Cadre) from the date of taking over the College.” 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 2. In reply on behalf of the respondents, the following averments have been set up vide para 3:- “That the present original application filed by the applicant is not maintainable in the present form. Be it submitted that the Govt. vide notification dated 18.12.2002 Annexure A-4 had decided to take over the services of eligible staff of Erstwhile S.D. College Nerwa and Erstwhile Arya Girls College Nurpur w.e.f 13.6.2002 and 25.6.2002 respectively. The teaching staff who fulfilled the requisite qualification for appointment as Lecturer (College Cadre) as per R & P rules, they have been offered appointment as Lecturer (College Cadre) and the teaching staff who did not fulfil the requisite qualification as per R& P rules, their services have been taken over in School Cadre in view of the notification dated 25.8.1994 which makes the provision for taking over the private colleges as well as employee working therein. It is pertinent to mention here that as per R & P rules requisite qualification for appointment as lecturer (College Cadre) has been prescribed as Master degree with 55% marks in subject concerned and the candidate must have passed National Eligibility Test/State Eligibility Test. The services of the eligible teaching staff of Erstwhile SD College Nurpur who fulfilled the requisite academic qualification as per R & P Rules, have been taken over as lecturer (College Cadre) and others have been given opportunities in the School Cadre. Since the applicant has passed M.P. Ed (Master of Physical Education) but he has not passed NET/SET examination which is also an essential qualification for appointment as lecturer (College Cadre), therefore, his services have been taken over as D.P.E in School Cadre. Main grievance of the applicant is that other persons whose services have been taken over as Lecturer (College Cadre) are getting pay scale of Rs. 6400-10640 whereas, his services have been 3 taken over/regularized in the pay scale of Rs. 5480-8925. In this regard it is made clear that there exists no post of lecturer Physical Education in the pay scale of Rs.6400- 10640 in the school cadre whereas, in 10+2 system, a post of D.P.E in the pays scale of 1640-2925 (Pre-revised) and 5480-8925 in the revised pay scale has been provided. The applicant cannot equate his case with other persons of teaching subject. As per R & P rules, the applicant fulfilled the requisite qualification for appointment as D.P.E in the pay scale of Rs.5480-8925,hence, his services have rightly been taken over as such vide Annexure A-6. In view of these submissions, the present Original Application deserves dismissal straightway.” 3. In view of the above reply, it is manifest that though at the time of taking over of the College by the Government, the services of the petitioner were also taken over as D.P.E, but not in College Cadre and instead only in School Cadre, solely on the ground that he had not qualified NET/SET examination. Another pre-condition with regard to the requisite qualification is that the incumbent should have passed Masters degree with 55% marks in the concerned subject. It is apparent from letter dated 18.9.1998, Annexure A-3, regarding selection of the petitioner as lecturer Physical Education in G.G.D.S.D. College Nerwa that he had passed Masters Degree with 60.85% marks. Thus, on the face of it, he was possessing the requisite educational qualification relating to percentage of marks in Masters Degree. However, insofar as the other qualification of having passed NET/SET examination is concerned, admittedly he had not passed the said examination. The private College in which the petitioner was working as Lecturer was taken over 4 by the Govt. vide notification dated 18.12.2002, Annexure A-4. Sometime before that another private College, DAV College Sujanpur Tihra, Distt. Hamirpur, was also taken over by the Govt. vide notification dated 28.8.2001, Annexure A-13. subject to the conditions mentioned therein, condition No.2 being to the following effect:- “2. The Lecturers whose services have been taken over as Lecturer (College) Cadre (as per annexure-“A”) will be required to clear N.E.T Examination as prescribed in R & P Rules, within a period of three years, failing which their increments will be withheld.” 4. It will be seen from the above that while taking over the aforesaid DAV College Sujanpur Tihra, a condition was imposed that the incumbents whose services were taken over along with the College were required to clear NET examination as prescribed in R & P Rules within a period of three years, failing which, their increments were liable to be withheld. However, while taking over the services of the petitioner along with the aforesaid G.G.D.S.D. College Nerwa, he has apparently been discriminated against as he was not afforded an opportunity to clear NET/SET Examination. It was owning to this reason that his services were taken over as Lecturer in School Cadre. 5. In view of the above, the petition is allowed. Consequently orders at Annexures A-9, dated 26.7.2004 and A-10, dated 1.8.2004 are quashed and set aside and the respondents are directed to consider taking over the services of the petitioner as Lecturer Physical Education (College Cadre) with effect from the date of taking over of the College i.e 18.12.2002, subject to his qualifying NET/SET Examination within three years henceforth and 5 latest by December, 2013, failing which consequences as per Rules shall follow. 6. The writ petition stands disposed of in the above terms, so also the pending application(s), if any. (V.K. Sharma) Judge 16th November, 2010. Lsp*