IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP-T 2619 of 2008. Date of Decision: 23.9.2010. _______________________________________________ Kamal Krishan Raina ….petitioner. Versus. State of H.P. and others. ….Respondents. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1? No. For the petitioner : Mr.C.N.Singh, Advocate. For Respondent-1to 3. : Mr.P.K.Sharma, Addl. Advocate General with Ms.Shubh Mahajan, Dy. Advocate General. For Respondent-4 : Ms. Sunita Sharma, Advocate. For respondents 5&6 Mr.D.K.Khanna, Advocate. Dev Darshan Sud, J.(Oral). The petitioner was appointed in 1998 as Lecturer in History in Arya Girls College, Nurpur, District Kangra. His selection was recommended by the committee comprising of Prof. S.K.Gupta, who was the Vice Chancellor of H.P. University, Dr.O.P.Sharma, Director Education and other experts in terms of the statute of the University. This college was taken over by the State Government on 25.6.2002. The petitioner alleges that after clearing his M.A. in History, he has also M.Phil with 60% marks to which degree was admitted in April, 1994. Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 2. The grievance of the petitioner is that instead of placing him in the college cadre, he has been placed in the school cadre on the ground that he is not eligible as he has not cleared the NET examination and also was not admitted to the degree of M.Phill before 1994. The petitioner’s grievance is not that the essential qualifications cannot be prescribed but that relaxation in this condition was provided to respondents No.5,6 and 7. Out of whom, respondents No.5 and 6 were working in D.A.V. College, Sujanpur Tihra. The petitioner pleads that respondent No.5 Manoj Kumar was possessed of only a degree in M.A. with 55% marks. Respondent No.6 was granted relaxation as is evident from the reply filed by respondent No.5 in paragraph-5 to the preliminary submissions which reads: “That once the Govt. has issued a policy vide notification No. Chha-15-3/86 on 25.8.1994, prescribing the terms and conditions of taking over of a College, including its staff, then, once the Govt. has relaxed the policy decision dated 25.8.1994, by relaxing the condition “to clear NET examination within a period of three years, then the relaxation cannot be claimed, by the applicant, as of right.” 3. Respondent No.6 also pleads that the appointment has been made subject to certain concessions granted to him. He incorporates this in his reply in the following terms: “That the replying respondent No.6 (Shyam Lal) being eligible, has rightly been appointed as Lecturer (College cadre in the subject of Economic, as per notification dated 18.12.2002 (A- 2) and the replying respondent No.6 is working as Lecturer in Govt. College Nurpur as on today also” 3 4. Learned counsel also placed on record another order in CMP. No 9159 of 2010 to show that the services of this teacher will also be taken over in the erstwhile D.A.V. College, Sujanpur Tihra while she has not cleared the NET examination. These facts are undisputed before me. Learned counsel appearing for the petitioner submits that the relaxation as granted to these respondents should also have been granted to the petitioner. He cannot be treated differently and the respondents as also the case of one Smt. Shipra cannot be treated differently from that of the petitioner. 5. The factum of the services of all the teachers including the petitioner having been taken over is not disputed. What is in dispute is as to whether the petitioner is entitled to the same relaxation. Annexure:A-1 is the Notification which has been issued by the State Government taking over his services as Lecturer. In particular, he refers to condition No.2 of this Notification which impose the condition that the services of those teachers, which have been taken over, will be subject to their clearing NET examination for which they have been granted a period of three years. Learned counsel also places reliance on Notification dated 14th June, 2006 which has been issued by the University Grants Commission. An amendment was made in the Rules, 2006 to the effect that NET shall remain compulsory subject for appointment of Lecturer. The Rules prior to amendment provides: 4 “NET shall remain the compulsory requirement for appointment as Lecturer even for candidates having Ph.D. degree. However, the candidates who have completed M.Phil degree or have submitted Ph.D. thesis in the concerned subject up to 31st December, 1993 are exempted from appearing in the NET examination” These rules were substituted with the following words: “NET shall remain the compulsory requirement for appointment as Lecturer for those with postgraduate degree. However, the candidates having Ph.D. degree in the concerned subject are exempted from NET for PG level and UG level teaching. The candidates having M.Phil degree in the concerned subject are exempted from NET for UG level teaching only”. 6. In other words, those teachers whose services were taken over before the amendment of these Rules, the requirement was that the candidate should have completed M.Phill degree or have submitted Ph.D. thesis in the concerned subject up to 31st December, 1993. So far as amended portion are concerned, it would not apply to the case of the petitioner whose services have been taken over in 2002. 7. The point for consideration is that if relaxation has been granted by the State in favour of few teachers, why and under what circumstances can that be denied to the petitioner herein. It is also undisputed before me that the petitioner has been placed in the school cadre only for the reason that he did not possess the degree of M.Phill before 31st December, 1993. 8. Learned Additional Advocate General urges that once the petitioner has accepted the post of Lecturer in the 5 school cadre, he cannot turn around and challenge his placement to that cadre. In particular, he refers to the order dated 18.3.2003 Annexure:A-3. This submission requires to be rejected out-right as I find that by Annexure A-4 the petitioner has submitted his joining under protest. 9. Adverting to the first point of discrimination, I do not find anything in the pleading of the State which would put the case of the petitioner in a different category altogether. A pick and choose policy has been adopted by the Government granting the benefit of time for acquiring qualification of NET to some teachers while denying this benefit to the petitioner. 10. In these circumstances, this petition is allowed on the following directions: (a) That the petitioner shall be granted the same benefit as has been granted to the respondents vide Annexure:A-1 and that he shall be granted time to acquire necessary qualifications as required by the Notification of the U.G.C. as noticed above which has been amended subsequently. (b) That the petitioner shall be placed in the college cadre and shall not be treated as an employee of the school cadre. 11. The petition is accordingly disposed of. All miscellaneous applications are also disposed of. No order as to costs. (Dev Darshan Sud), Judge. September 23, 2010(R) 6