IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP(T) No.3664 of 2008(OA(D) No.55/96 Judgment reserved on 20.7.2009 Date of decision: 7.8.2009 Anisha Kumari …….Petitioner. Vs. State of H.P. and Ors ....….Respondents. Coram: The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes ------------------------------------------------------------------------------------------- For the Petitioner : Mr. R.K. Gautam, Sr. Advocate with Mr. Mehar Chand, Advocate. For the Respondents : Mr. R.K. Sharma, Sr. Addl. Advocate General with Mr. Anshul Bansal, Addl. Advocate General and Mr. R.P. Singh, Assistant Advocate General. Kuldip Singh, Judge The Petitioner had filed Original Application being OA(D) No.55/96 before Himachal Pradesh Administrative Tribunal which was abolished and the cases of the erstwhile Tribunal were transferred to this court. On transfer of OA(D) No.55/96 to this Court the same has been registered as CWP(T) No.4085 of 2008. 2. The petitioner in the petition has prayed that fictional breaks from 13.9.1985 to 6.1.1986, 2.6.86 and 3.6.1987 be Whether the reporters of the local papers may be allowed to see the Judgment? Yes 2 regularized and the petitioner be given the arrears of pay alongwith other financial and service benefits as the petitioner would have been entitled, had the breaks not given to her. 3. The facts in brief are that petitioner had been serving as Art and Craft Teacher against JBT post in Education Department since 1982 on ad-hoc basis. She was appointed as such in Govt. Primary School, Khadet in Sihunta Block on 7.1.1986 and continued there till 1.6.1987. The petitioner was given breaks on 2.6.1987 and 3.6.1987 and then she was appointed at Govt. Primary School, Marh under Sihunta Block from 4.6.1987 to 9.9.1987. 4. The further case of the petitioner is that in all 118 days breaks were given to petitioner without any base, fault and irregularity on her part. She has submitted that breaks given by the respondents in the employment of the petitioner are not in consonance with the directions of this court given on 27.9.1985 in CMP No.2336/85 in CWP No.427/84, the petitioner is entitled to all the financial benefits for the period of breaks. 5. The Govt. has taken policy decision vide letter dated 17.8.1986 that no fictional or casual break is to be given to the adhoc employees after 1.6.1985 and the employee shall continue to be employed as ad-hoc teacher without affecting any fictional or casual breaks. This is also clear from letter dated 7.2.1987 of Director of Primary Education, H.P. On behalf of the petitioner, it has been submitted that the Supreme Court in Rattan Lal and others vs. State of Haryana in Writ Petition No.4600 of 1985, decided on 16.8.1985 has held that the ad-hoc teachers cannot be subjected to arbitrary hiring and firing policy while being continued 3 as ad-hoc teachers for short periods. The respondents have given fictional breaks from 13.9.1985 to 6.1.1986, 2.6.1987 to petitioner illegally and as such petitioner shall be deemed to be in continuing service in the breaks period. 6. The petition has been contested by the respondents by filing joint reply. It has been pleaded that the High court had ordered not to give artificial or fictional breaks after 89 days to the teachers employed in the schools and this decision was announced on 4.3.1986. The petitioner remained terminated on 13.9.1985 to 6.1.1986 and also from 2.6.1987 to 3.6.1987 due to joining of regular hand in her place of posting. It has been submitted that the High court has observed that the services of ad-hoc teachers will be terminated strictly in accordance with law that is to say in the event of the termination of service becoming necessary to make room for regularly appointed teachers or on any other ground on which the service of a regularly appointed teacher could be terminated. The termination, if any, in the event of a regularly appointed teacher becoming available shall take place strictly in accordance with the principles of ‘last come first go’ and also on session-wise basis. No ad-hoc teacher will be replaced by another ad-hoc teacher. It has been submitted that on this ground alone the petitioner has no case. It has been submitted that the petition has been filed after lapse of 10 years. On merits, it has been submitted that on the receipt of judgment dated 4.3.1986 the practice of giving breaks was stopped and the candidates were allowed to work on JBT posts without interruption. The period from 13.9.1985 to 6.1.1986 is prior to judgment dated 4.3.1986 and as far as breaks period of 2.6.1987 4 and 3.6.1987 are concerned are more then 9 years old. The breaks in period from 13.9.1985 to 6.1.1986 and then 2.6.1987 and 3.6.1987 in respect of the petitioner were due to joining of regular hand in the school where she was posted and the same cannot be regularized after the lapse of 10 years. In these circumstances, the petitioner is not entitled to relief for counting of her break period from 13.9.1985 to 6.1.1986, 2.6.1987 and 3.6.1987. 7. The petitioner filed rejoinder and reiterated her case. The petitioner has placed on record copy of judgment dated 4.3.1986 passed in CWP No.946/85 titled Baldev Raj vs. State of H.P. and others. In para 6(d) she has pleaded that breaks period from 13.9.1985 to 6.1.1986 were not due to the joining of regular hand, but due to the joining of ad-hoc employee like that of the petitioner. As far as the period from 2.6.1987 and 3.6.1987 is concerned the petitioner was replaced by regular hand, but again the principle laid down by the High court of ‘last come first go’ and on session-wise basis was not adhered to. There were many posts lying vacant, when break was given to the petitioner on 2.6.1987 and 3.6.1987. 8. In CWP No.946 of 1985, a Division Bench of this court on 4.3.1986 has issued the following besides other directions:- 1. No casual or artificial or fictional breaks at regular intervals shall be effected in the services of the petitioners and persons similarly situate as ad-hoc teachers and all such persons shall be continued to be employed as ad-hoc teachers without effecting any such breaks. The services of such ad-hoc teachers will be terminated strictly in accordance with law, that is to say, in the event of the termination of service becoming necessary to make room for regularly appointed teachers or on any other ground on 5 which the service of a regularly appointed teacher could be terminated. The termination, if any, in the event of a regularly appointed teacher becoming available, shall take place strictly in accordance with the principle of “Lat come, first go” and also on sessionswise basis. No ad-hoc teacher will be replaced by another ad-hoc teacher. 2. Casual or artificial or fictional breaks, if any, effected in the services of ad-hoc teachers during the past shall not count as break in such employment, that is, employment as ad-hoc teachers. Ad-hoc teachers to whom such breaks have been given shall be deemed to have continued to hold the posts of ad-hoc teachers as if such breaks were not given and they shall be entitled to the salary and allowances, if any, for the periods of such breaks given on and after June 1, 1985, in view of the decision in Rattan Lal and others vs. State of Haryana and Others, (1985) 4 Supreme Court Cases 43 and in light of the interim direction issued on June 20, 1985, in Civil Writ Petition No.247 of 1985. The monetary benefits, if any, becoming due and payable accordingly to the concerned ad-hoc teachers will be worked out and paid to them within a period of twelve weeks from today. 9. The respondents in para 6(d) have pleaded that break period from 13.9.1985 to 6.1.1986 and 2.6.987 to 3.6.1987 in respect of the petitioner was due to joining of regular hand in the schools where she was posted. The petitioner in her rejoinder has specifically pleaded that break period from 13.9.1985 to 6.1.1986 is not due to the joining of regular hand, but due to the joining of ad- hoc employee Ramesh Chand like that of the petitioner. The petitioner has also pleaded that on 2.6.1987 and 3.6.1987, the regular hand joined and replaced the petitioner but in that case also principle of ‘last come first go’ and session-wise basis was not adhered to. The petitioner has pleaded that so many posts were lying vacant when break was given on 2.6.1987 and 3.6.1987. The respondents have not controverted specific case put forward by the 6 petitioner in para 6(d) of the rejoinder. The respondents could have controverted this plea by filing supplementary affidavit or by adopting such other mode available in law. The respondents cannot be heard to say that the facts pleaded by the petitioner in rejoinder should be ignored as the respondents did not get any opportunity to rerebut the same. 10. In the present case, the petitioner was replaced by another ad-hoc teacher for the period 13.9.1985 to 6.1.1986. Similarly, the break in period on 2.6.1987 and 3.6.1987 in the service of the petitioner is also not in accordance with the directions dated 4.3.1986 of the Division Bench. The respondents have not followed the principle of ‘last come first go’ and session-wise basis while depriving employment to petitioner on 2.6.1987 and 3.6.1987. In the judgment dated 4.3.1986 there is a clear direction that casual or artificial or fictional breaks, if any, affected in the services of ad- hoc teachers during the past shall not count as break in such employment, that is, employment as ad-hoc teachers. Ad-hoc teachers to whom, such breaks have been given shall be deemed to have continued to hold the posts of ad-hoc teachers as if such breaks were not given and they shall be entitled to the salary and allowances, if any for the periods of such breaks given on and after June 1, 1985. Therefore, in view of facts which have come on record, the case of the petitioner is fully covered by judgment dated 4.3.1986 and the petitioner shall be deemed to have continued to hold the post of ad-hoc teacher as if there was no break from 13.9.1985 to 6.1.1986 and 2.6.1987 to 3.6.1987 in her service and she is also entitled to salary and allowances, if any for this period. 7 11. No other point was urged. 12. The result of the above discussion, the petition is allowed. The period from 13.9.1985 to 6.1.1986, 2.6.1987 and 3.6.1987 shall not be counted as break in service of the petitioner. She shall be deemed to have continued to hold the post of ad-hoc teacher, for above period and entitled to salary and allowances, if any, which shall be paid by the respondents to her within a period of three months from today. No costs. ( Kuldip Singh ) Judge. August 7, 2009 (sks)