IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 469/2008 alongwith CWP (T) No. 16421/2008 Decided on:6.4.2011 _____________________________________________ 1. CWP (T) No. 469/2008 Ved Parkash. …Petitioner. Versus State of Himachal Pradesh and others. …Respondents. 2. CWP (T) No. 16421/2008 Ved Parkash. …Petitioner. Versus State of Himachal Pradesh and others. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes (in both the petitions). For the petitioner : Mr. D.K. Khanna, Advocate For the Respondents: Mr. Anshul Bansal, Addl. A.G. with Mr. Vikas Rathore, Dy. A.G. and Mr. R.P. Singh, Asstt. A.G. _____________________________________________________ Rajiv Sharma, Judge (oral). Since common questions of law and facts are involved in both the petitions, the same are taken up together for hearing and are being disposed of by a common judgment. 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 However, to maintain clarity, the facts of CWP No. 16421/2008 are being taken. 2. Petitioner was appointed as Lecturer in Commerce (College Cadre) in GGDSD College on 6.7.1974. This college was 95% aided by the State Government and was affiliated to Himachal Pradesh University. His appointment was approved by the Himachal Pradesh University under paragraph 38.5 (A) (d) of the Himachal Pradesh University Ordinance on 10.6.1983. He was granted senior scale of ` 3000-5000 with effect from 2.4.1988. He was granted selection grade of ` 3700-5700 with effect from 27.7.1998 vide letter dated 8.6.2000. State Government had taken a decision to take over the college vide notification dated 8.2.2007. However, services of the petitioner were taken as Lecturer (School Cadre) instead of Lecturer (College Cadre). Respondent-State has not chosen to file reply. 3. Mr. D.K. Khanna has strenuously argued that the services of his client were required to be taken as Lecturer (College Cadre) and not School Cadre. He then argued that essential qualification of the petitioner was to be seen at the time when he was appointed on 6.7.1974 and not at the time of issuance of notification dated 8.2.2007 as per OM dated 25.8.1994. 3 4. Mr. Anshul Bansal, learned Additional Advocate General has vehemently argued that since the petitioner was not possessing the essential qualification as per Recruitment and Promotion Rules at the time of taking over, his services were rightly taken over as Lecturer (School Cadre). 5. I have heard the learned counsel for the parties and have perused the pleadings carefully. 6. Petitioner has obtained 50% marks in M.Com. He was appointed as Lecturer in GGDSD College vide Annexure A-1 dated 17.8.1974. His appointment has been approved by the Himachal Pradesh University on 10.6.1983. It presupposes that the University has seen the essential qualification of the petitioner when his appointment was approved. He had been granted senior scale as well as selection grade. 7. Respondent-State has framed the rules called “The Himachal Pradesh Education Class III (College Cadre) Service Rules, 1973”. The minimum educational qualification for the post of Lecturers (Degree Colleges) was atleast M.A./M.Sc. 2nd class with 50% marks from a recognized University or equivalent. Petitioner being in possession of essential qualification was appointed as Lecturer on 6.7.1974. The Court is of the considered view that the essential 4 educational qualification of the petitioner was required to be seen when he was initially appointed and not as per the Recruitment and Promotion Rules applicable when his services were taken over. This question has also been considered by this Court in CWP (T) No. 5200/2008, titled as Rajni Sharma versus State of Himachal Pradesh and another decided on 5.5.2010 as under: “Mr. R.K. Sharma has also argued that the petitioner did not fulfill the minimum educational qualification prescribed in the Recruitment and promotion Rules at the time of regularization notified on 22.12.1994. There is fallacy in the arguments advanced by Mr. R.K. Sharma. The minimum educational qualification was required to be seen at the time when the incumbents were appointed on ad hoc/tenure/stop gap basis. The petitioner had completed three years of service on or before 31.3.1994 and her case was required to be considered for regularization against the post of Lecturer (College Cadre) and not Lecturer (School Cadre).” 8. Petitioner had taught almost for 33 years at the time when the college was taken over by the Government on 8.2.2007. It is the case in which the respondents have asked the petitioner to do impossible. The erstwhile Himachal Pradesh Administrative Tribunal had granted interim relief in favour of the petitioner on 2.3.2007 on the basis of which the petitioner had been working as Lecturer in the subject of Commerce. 5 9. Accordingly, in view of the observations and discussions made hereinabove, the petitions are allowed. Annexure A-2 dated 8.2.2007 is quashed and set aside. Petitioner’s services shall be deemed to be taken over as Lecturer (College Cadre) in the subject of Commerce with selection grade with all other consequential benefits. No costs. (Rajiv Sharma), Judge. 6.4.2011 *awasthi*