IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 1581/2010 Reserved on: 9.3.2011 Decided on:23.3. 2011 _____________________________________________ Varinder Singh. …Petitioner. Versus State of Himachal Pradesh and others. …Respondents. _______________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. B.C. Negi, Advocate. For the Respondents: Mr. A.K. Bansal, Addl. A.G. with Mr. P.M. Negi, Dy. A.G. and Mr. R.P. Singh, Asstt. A.G. ____________________________________________________ Justice Rajiv Sharma, Judge. Petitioner has qualified post-graduation in the subject of Hindi by securing 58.75% marks. He has also qualified M. Phil in the year 2004. He was appointed as Lecturer on 3.7.2006 in the subject of Hindi in Chander Dhar Guler College, Haripur (Guler). State Government has taken the decision to take over this College vide notification dated 20.4.2007. Services of the petitioner have been taken over as Lecturer ‘School Cadre’ instead of ‘College Cadre’, as per 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 notification dated 3.4.2010 on contract basis with effect from 20.4.2007. 2. Mr. B.C. Negi has strenuously argued that services of his client were required to be taken as Lecturer, ‘College Cadre’ and not ‘School Cadre’. He has also argued that the appointment of his client should relate back to the commencement of the ‘academic session’. 3. Mr. A.K. Bansal has vehemently argued that since the petitioner was appointed only on 3.7.2006, that too, on contract basis, his services could not be taken over as Lecturer, College Cadre, as per notification dated 25.8.1994. 4. I have heard the learned counsel for the parties and have perused the pleadings carefully. 5. According to Annexure P-2, petitioner was appointed as Lecturer on contract basis on 3.7.2006. He was appointed upto November, 2006. His salary has been paid with effect from 3.7.2006 to November, 2006. In other words, he was appointed only for five months. His appointment letter was not available in the office record supplied to the Departmental Committee, as per Annexure P-2. His joining report was also not available or supplied to the Departmental Committee. He did not fulfill the eligibility 3 conditions for College Cadre, as per Annexure P-2, and his appointment was not approved by the Himachal Pradesh University. His appointment has been shown as Lecturer Hindi (contract) in the list of teaching staff, as per letter written on 24.3.2007. Since he had not completed one year before taking over the College in question, his case was not recommended for the post of Lecturer, College Cadre or for any other regular appointment. It will be apt at this stage to take note of clause 7 of notification dated 25.8.1994, which reads thus: "The services of only qualified teaching and non- teaching staff appointed one year earlier who fulfill prescribed departmental recruitment and promotion rules, conditions prevalent at the time of taking over will be considered for taking over subject to the approval of the State Public Service Commission or Departmental Screening Committee from the date of taking over. The services of the Principal will be taken over only as Senior most Lecturer in the college concerned subject to the above mentioned proviso. The Government scales in respect of the respective categories shall be permissible to them after the take over.” 6. It is evident from the plain reading of this clause that the services of only those qualified teaching and non- teaching personnel appointed one year earlier, who fulfill prescribed Departmental Recruitment and Promotion Rules, prevalent at the time of taking over the institution, were to 4 be taken over. In the instant case, petitioner has been appointed on 3.7.2006, that too, on contract basis upto November, 2006. The appointment of the petitioner is to be reckoned from the date he was appointed, i.e. 3.7.2006 and the same cannot be reckoned from the academic session, i.e. April/May, 2006. Moreover, the appointment of the petitioner has also not been approved by the Himachal Pradesh University. Petitioner has been offered appointment on contract basis as Lecturer in School Cadre, as per notification dated 3.4.2010 with effect from 20.4.2007. 7. Mr. B.C. Negi has strenuously argued that in a similarly situate case of Ms. Kavita Sharma, her services have been taken over as Lecturer (College Cadre) in the subject of Commerce. She was appointed on 7.6.2003 and was terminated on 1.12.2006 and thereafter was reappointed on 27.3.2007. The bio-data of Ms. Kavita Sharma also finds mention at page 24 of the paper book. She was appointed on regular basis with effect from 7.6.2003. Her appointment was approved by the Himachal Pradesh University. Her services were terminated with effect from 1.12.2006 and she was paid three months salary. She has accepted the three months salary. However, her services were restored vide order dated 27.3.2007 with remarks “to be considered as 5 regular Lecturer from the date of initial appointment, i.e. 7.6.2003”. The manner in which she has been reappointed was considered by the Departmental Committee reads as under: "Smt. Kavita Sharma Lect. Commerce:- (i) Proper appointment letter available and reported by Management Committee as regular Lecturer w.e.f. 7.6.2003 vide letter No.CDG/Com- I/HR/2003 dated 3.6.2003 (Annexure XXXV-A, P- 8) (ii) Fulfilling the eligibility conditions as per R& P Rules College Cadre Lecturer (Exemption form NET): Completed M.Phil on 18.2.1993 i.e. before 31.12.1993. Appointed by H.P.U. (Annexure- XXXV-A, P-9) (iii) Though shown as regular Lecturer in the staff list provided by Sh. Hari Om Sharma, Secretary Management Committee on dated 20.6.2007. She was not on the pay roll of the college after her termination w.e.f. 1.12.2006 and was paid three months salary (Rs. 12000/-). Terminated period on dated 22.2.2007 (APR page No. 168 (Annexure XXXIX, P-2) (iv) No service book record made available. (v) Also not shown on the list of Teaching Staff as per letter to Director Higher Education Dated 24.3.2007 (Annexure-XXXII, P-2) mentioned in Para (vi) below. (vi) As per documents and office record produced by Suptd. Of college, the said Lecturer was terminated vide letter No. CDG/8087/HR/2006 w.e.f. 1.12.2006 signed by the President of the Management Committee (Annexure-XXIX, P-1) 6 Again her services were restored vide office order dated 27.3.2007 (date actually mentioned as 27.3.2006) with remarks to be considered “as regular lecturer from the date of initial joining, i.e. 7.6.2003 (Annexure-XXIX, P-3) The way the termination and restoration of the services of Smt. Kavita Sharma has come to the observation of the Departmental Committee, the following issues raise many doubts as mentioned below: a. The reasons mentioned in the proceedings dated 26.3.2007 and office order dated 27.3.2007 (mentioned as 27.3.2006) are not convincing for the restoration of the services of Smt. Kavita Sharma. No actual change in situation had taken place with regards to Grant-in-Aid from the Government (Annexure- XXIX, P-2) b. Her name was not at all included as teacher in the list of Grant-in-Aid proposal of the college (letter dated 24.3.2007). (Annexure-XXXII, P- 2) c. HPU vide letter No. 132/94-HPU (Acad) Vol-IV Dated 4.2.2006 granted provisional extension of affiliation to run BA classes only (Not for B.Com) for academic session 2005-06 and 2006-07 (Annexure-VI, P-I) d. However, as per Govt. Notification dated 25.8.1994 clause No. 15 (Annexure-II) says…… “No Change what-so-ever will be effected in the assets and staff of the college after the issue of the Notification and visit of the Inspection Committee.” e. The Departmental Committee made all efforts for necessary verifications by asking (verbally as well as in writing vide letter dated 29.6.2007 and 30.7.2007 (Annexure-IV) by 7 asking secretary of the Management Committee Shri Hari Om Sharma, to provide the original proceedings of the Management Committee vide containing the record pertaining to Chader Dhar Pvt. Degree College Haripur (Guler), HOWEVER NO RECORD OF ORIGINAL PROCEEDINGS WAS PROVIDED TO THE DEPARTMENTAL, COMMITTEE. ALL THESE REASONS lead the Departmental Committee to hold the opinion that the terminated services of Smt. Kavita Sharma were restored only after 20.4.2007 and before 20.6.2007. Thus, invoking contradiction to clause 15 of Govt. Notification dated 25.8.1994. (vii) In view of all the above reported aspects of the case the Departmental Committee is unable to make recommendations for appointment as college Lecturer as per Notification dated 25.8.1994 (Annexure-II) However, in case the record of proceedings of Management Committee with regards to the case of Smt. Kavita Sharma establishes that her services were actually restored before 20.4.2007, then the case may be considered for taking over her services.” 8. Case of Ms. Kavita Sharma was not recommended by the Departmental Committee for appointment. However, a rider was put by the Departmental Committee that in case record of service establishes that her services were actually restored before 20.4.2007, then her case could be considered for taking over her services. It 8 appears that Ms. Kavita Sharma had established, on the basis of record that her services were restored before 20.4.2007, and in these circumstances her services were taken over as Lecturer (College Cadre). 9. Mr. B.C. Negi has also relied upon Annexure P-11. Annexure P-11 only speaks of Grant-in-Aid for the year 2002/2003. This document will not advance the cause of the petitioner since he was appointed in the year 2006. Similarly, Mr. B.C. Negi has also put reliance on Annexure P-12 whereby the name of his client finds mention at Sr. No.9. Since the petitioner had not completed one year’s service on the date of issuance of notification of taking over the College in question, i.e. 20.4.2007, his name could not be put in Annexure P-12. 10. What emerges from the facts enumerated hereinabove is that petitioner was not eligible as per Clause 7 of the notification dated 25.8.1994. He was not in service before one year prior to issuance of notification dated 20.4.2007. He was merely appointed on contract basis, that too, for a limited period, i.e. 3.7.2006 to November, 2006. His salary for this period has also been paid. The period of one year in the case of petitioner will commence with effect from 3.7.2006 and it cannot be interpreted to mean that it 9 will commence from academic session, i.e. April/May, 2006. The appointment of the petitioner was also not approved by the Himachal Pradesh University. Case of the petitioner was not recommended by the Departmental Committee constituted on the basis of notification dated 25.8.1994. 11. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in the petition and the same is dismissed. No costs. (Rajiv Sharma), Judge 23.3. 2011 *awasthi*