IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 8729 of 2008 with CWP(T) No. 8819 of 2008. Reserved on: 30.12.2010. Decided on 21.02.2011. 1. Upender Singh. …Petitioner. -Versus- State of Himachal Pradesh and another. …Respondents. 2. Dr. Bhupender Kumar. …Petitioner. -Versus- State of Himachal Pradesh and another. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. __________________________________________________________ For the petitioner(s). : Mr. D.P. Gupta, Advocate vice Mr. K.D. Shreedhar, Advocate. For the respondents. : Mr. Vinod Thakur, Deputy Advocate General, with Mr. R.P. Singh, Assistant Advocate General. (in both the petitions). ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: Since common questions of law and facts are involved in these petitions, the same were taken up together for hearing and are being disposed of by this common judgment. However, in order to maintain clarity in the facts, the facts of CWP(T) No. 8729 of 2008 are taken into consideration. 1 Whether the reporters of the local papers may be allowed to see the judgment?. No. - 2 - CWP(T) No. 8729 of 2008. 2. Material facts necessary for adjudication of this petition are that the petitioner has obtained his degree in M.Sc. (Chemistry) from Himachal Pradesh University securing 69.5% marks. He was appointed a Lecturer in Government Degree College, Una on part time basis. The appointment to the post of Lecturer (College Cadre) was regulated under the “Himachal Pradesh Education Services (Class-I Gazetted) College Cadre, Recruitment and Promotion Rules, 1977. An amendment was carried out in the Recruitment and Promotion Rules vide notification dated 20.09.1986, whereby the following qualification was substituted, which reads thus: “Amendment Essential of Col. 7 ------------ Annexure-II (a) A good academic record with at least 50% marks or above in Master’s Degree in the relevant subject from an Indian University Or an Equivalent degree from a foreign University, and (b) An M. Phil, degree or a recognized degree beyond Master’s level. Provided that if a candidate possessing the qualifications as at (b) above is not available or not considered suitable, the Government may, on the recommendations of Commission, appoint a person possessing a good academic record on the conditions that he will have to obtain an M. Phil Degree beyond the Master’s level within five years of his appointment failing which he will not be able to earn future increments till he obtains that degree.” 3. The Recruitment and Promotion Rules, 1977 were repealed vide notification date 22.12.1994 and fresh - 3 - Recruitment and Promotion Rules were notified called “The Himachal Pradesh Education Department Lecturer, College Cadre (Class-I Gazetted) Recruitment & Promotion Rules, 1994”. Following was the minimum essential and desirable educational qualification for direct recruitment to post of Lecturer (College Cadre): “7. Minimum essential 1.(a) Essential and desirable educational (i) Master’s degree in Arts with qualifications for direct at least 55% marks in the recruitment candidates. relevant subject from any recognized University of India or equivalent degree from any foreign University recognized by the Govt. of India with at least 55% marks. (ii) For Lecturers in Commercial Arts, Sculpture, Sketch and Colour Paintings with at least 55% marks in Bachelor degree in Fine Arts/Master of Arts in Fine Arts. (iii) Must have passed National Eligibility Test for Lecturers conducted by University Grants Commission or similar test by the Himachal Pradesh Public Service Commission.” 4. Petitioner has passed the State Eligibility Test in 1995 and obtained the degree in Ph. D. in 1997-1998. The respondent-State took a conscious decision to regularize the services of those Lecturers (College Cadre), who did not possess the essential educational qualification at the time of their appointment as Lecturers (School Cadre) vide office order dated 19.07.1998 (Annexure A-6). Name of the petitioner figures at Sr. No. 15. He was appointed and posted at Government Senior Secondary School, Tissa (Chamba). He joined his duties at G.S.S.S., Tissa. Thereafter, the petitioner made representations to respondent No. 2, seeking regularization as Lecturer (College - 4 - Cadre) instead of Lecturer (School Cadre). The State Government vide notification dated 25.07.2002, regularized as many as 42 candidates as Lecturers (College Cadre), who were working as adhoc Lecturers. Thereafter, the petitioner again made a representation vide Annexure A-10. 5. Mr. D.P. Gupta, learned counsel for the petitioner has strenuously argued that his client is liable to be regularized as Lecturer (College Cadre) on the basis of notification dated 25th July, 2002. According to him, his client was fully eligible and qualified to be considered for the post of Lecturer (College Cadre). 6. Mr. Vinod Thakur, learned Deputy Advocate General has vehemently argued that the petitioner did not possess the essential qualification prescribed under the Recruitment and Promotion Rules at the time of his appointment. According to him, the petitioner had already accepted the post of Lecturer (School Cadre) pursuant to notification dated 19th July, 1998 and has joined his duties; and at this belated stage, his case cannot be considered for the post of Lecturer (College Cadre). 7. I have heard the learned counsel for the parties and gone through the pleadings carefully. 8. Petitioner was appointed a Lecturer in Government Degree College, Una on part time basis on 10th December, 1990 vide Annexure A-1. The minimum essential qualification at the time when the petitioner was appointed, was a good academic record with at least 50% marks or above in Master’s degree in the relevant subject from an Indian University or an equivalent degree from a foreign University and an M. Phil degree or a - 5 - recognized degree beyond Master’s level. According to the proviso, if a candidate possessing the qualification with M. Phil degree was not available or not considered suitable, the Government may, on the recommendations of the Commission, appoint a person possessing a good academic record on the conditions that he will have to obtain an M. Phil Degree beyond the Master’s level within five years of his appointment, failing which, he will not earn future increments till he obtains that degree. 9. In the instant case, the petitioner has been appointed on part time basis. The proviso was attracted, if the recommendations were made by the Commission and thereafter the candidate was required to obtain M. Phil degree beyond the Master’s level within five years of his appointment, failing which, he was not entitled to future increments till he obtains that degree. The appointment of the petitioner has not been made strictly as per the provisions of Recruitment and Promotion Rules, 1977. The appointment letter has been issued to him by the Principal. It is not one of those cases, where the candidate has been selected by the Himachal Pradesh Public Service Commission strictly in compliance with the provision of the Recruitment and Promotion Rules. The essential qualifications were also changed in 1994, whereby the essential qualification was Master’s degree in Arts with at least 55% marks in the relevant subject from any recognized University of India and also the candidate should have passed National Eligibility Test for Lecturers conducted by the University Grants Commission or similar test by Himachal Pradesh Public Service Commission. - 6 - Petitioner has passed the State Eligibility Test in 1995 and has obtained Ph. D. in 1997-98. 10. Since the petitioner did not possess the essential qualifications at the time when he was appointed as Lecturer on part time basis vide Annexure A-1, the decision was taken to regularize the petitioner as Lecturer (School Cadre) in the pay scale of `1800-3200/- w.e.f. 01.04.1994. He was posted at Government Senior Secondary School, Tissa (Chamba). He resumed his duties at Tissa as Lecturer (College Cadre) in the subject of Chemistry. 11. Mr. D.P. Gupta, learned counsel for the petitioner has also argued that his client was given assurance at the time when he was working as Lecturer (School Cadre) that his case will be considered subsequently for the post of Lecturer (College Cadre). Petitioner has not placed any tangible material on record to establish this fact. However, fact of the matter is that the State Government subsequently regularized the services of adhoc Lecturers vide notification dated 25th July, 2002. Petitioner by that time the notification was issued on 25th July, 2002 has already started working as Lecturer (School Cadre). 12. Mr. D.P. Gupta, learned counsel for the petitioner has strenuously argued that the persons, who had been regularized on 25.07.2002, were also not possessing the minimum educational qualifications. This will not advance the case of the petitioner. Petitioner has accepted the post of Lecturer (School Cadre) and he was estopped from seeking the post of Lecturer (College Cadre) on the basis of notification dated 25.07.2002. It was always open to the petitioner either to accept - 7 - or to reject the offer made to him on the basis of notification dated 19.07.1998. The petitioner had already worked as Lecturer (School Cadre) since 1998 and at this belated stage, no directions can be issued to the respondents to consider his case for the post of Lecturer (College Cadre). It will un-settle the settled things. 13. Mr. D.P. Gupta, learned counsel for the petitioner has also argued that one Kumari Rekha Sharma was similarly situate, however, her services have been taken as Lecturer (College Cadre). He has also referred to the case of one Shri Jaswant Singh. It has come in the reply that the services of Rekha Sharma were taken over pursuant to the directions issued by the learned erstwhile Himachal Pradesh Administrative Tribunal in O.A. No. 2025 of 1997 and as far as the case of Jaswant Singh is concerned, the orders were passed by the learned Tribunal in Review Petition No. 2 of 1998 in O.A. No. 2108 of 1995, titled as Bhim Singh Versus State of H.P.. CWP(T) No. 8819 of 2008. 14. In this case, the petitioner was appointed as Lecturer in Economics (College Cadre) vide letter dated 15.11.1988 (Annexure A-1) in Government Degree College, Saraswati Nagar in District Shimla, H.P. on tenure basis. He was offered the post of Lecturer (School Cadre) vide order dated 19th July, 1998. His name figures at Sr. No. 2. He obtained M. Phil degree on 27th November, 1996. Petitioner was not possessing the essential educational qualification at the time of his initial appointment since he has not obtained the degree of M.Phil. - 8 - 15. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in these petitions and the same are dismissed. No costs. (Rajiv Sharma) Judge February 21, 2011. (bhupender) - 9 -