Case: CHANDER MOHAN NEGI &amp; ORS Vs. STATE OF HIMACHAL PRADESH &amp; ORS

2. The writ petitions and Letters Patent Appeals are the outcome of the policies framed by the Government of Himachal Pradesh, i.e., The Himachal Pradesh Prathmik Sahayak Adhyapak/Primary Assistant Teacher (PAT) Scheme; The Himachal Pradesh Para Teachers (Lecturer School Cadre), Para Teachers (TGTs) and Para Teachers (C&V) Policy, 2003 and the Himachal Pradesh Gram Vidya Upasak Yojna, 2001. Such schemes were framed to fill up various vacant posts of teachers in different categories as per the policies framed by the Government during the years 2001 and 20033. Though the policies and appointments were of 2001 and 2003, three individuals, by name, Chander Mohan Negi; Rajiv Chauhan; and Rakesh Kumar have approached the High Court in the year 2012 by filing C.W.P.No.3303 of 2012-A before the High Court of Himachal Pradesh seeking the following reliefs :i) That respondents may kindly be directed to fill up the available vacancies of the Junior Basic Trained teachers in accordance with Recruitment and Promotion Rulesii) That the respondents may further be restrained from regularizing the Primary Assistant Teachers who have been appointed in violation of Constitutional Schemes and Law established and settled by the Honble Apex Court with further directions to the respondents to advertise all the available vacancies of Junior Basic Trained teachers in the Education Department to be filled in accordance with Recruitment and Promotion Rules without any further delay and all the vacancies may be filled up in accordance with Recruitment and Promotion Rules available at the time of occurrence of the vacancies.iii) That the respondents may kindly be burdened with costs(iv) That the entire record of the case may kindly be summoned4. The learned Single Judge of the High Court, by order dated 18.10.2012 mainly on the ground that such appointments were made by the State by appointing the Primary Assistant Teachers to impart education upto primary level, who even do not fulfil the minimum essential qualification prescribed under the Recruitment and Promotion Rules and the State has failed to produce any material to show that the candidates who are possessing JBT degrees have refused to serve in tribal/difficult areas, the recruitment of such teachers de hors the Recruitment and Promotion Rules amounts to back door entry, has allowed the writ petition by directing the State to phase out the teachers appointed under The Himachal Pradesh Prathmik Sahayak Adhyapak/Primary Assistant Teacher Scheme, 2003 in a phased manner and to fill up the existing vacancies of JBT posts strictly in accordance with the Recruitment and Promotion Rules. The learned Single Judge has further directed the State not to regularise the teachers5. Aggrieved by the order of the learned Single Judge dated 18.10.2012 passed in C.W.P.No.3303 of 2012-A, the affected/aggrieved parties, individual teachers, Association of Primary Assistant Teachers, and the State of Himachal Pradesh have filed Letters Patent Appeals. The said appeals were heard along with the writ petitions wherein appointment of teachers under the other two schemes, namely, Para Teachers Policy of 2003 and the Himachal Pradesh Gram Vidya Upasak Scheme of 2001 was under challenge. By common impugned judgment dated 09.12.2014 Division Bench of High Court has allowed the Letters Patent Appeals by setting aside the order of the learned Single Judge and dismissed the writ petitions which were clubbed along with the Letters Patent Appeals. The Division Bench has allowed the Letters Patent Appeals on various grounds,h the appointments were made during the year 2001 and 2003, writ petitions were filed belatedly in the year 2012 and 2013  the writ petitioners in C.W.P.No.3303 of 2012 were not even qualified when the appointments were made;

Reasoning: 11. At the outset, it is to be noted that the schemes in question were notified in the year 2001 and 2003 under which appointments were made with regard to Primary Assistant Teachers and teachers in other categories. At the relevant point of time nobody has questioned either the schemes or the appointments. It is the specific case of the respondent-State that such appointments have not affected the writ petitioners and the Department was not in a position to leave the schools, teachers deficient for long since it would have affected the studies of the students very badly. Therefore, it was the case of the State that teachers had been appointed under various schemes at that point of time and such appointments have been made upto the year 2007 and have no impact on the appellants since they have completed their two-year JBT training in the year 2011. As is evident from the order under appeal passed by the Division Bench of the High Court, the appellant-writ petitioners have not even chosen to file rejoinder and the stand taken by the State thus has remained uncontroverted. Further, it is also to be noted that when such appointments were made during the year 2001 and 2003 the writ petitions came to be filed in the year 2012 and 2013. As the writ petitioners have claimed interest for their appointment, the Division Bench of the High Court has rightly held that such petitions cannot be considered as the public interest litigation. Such a writ petition which was filed by the petitioners who came to be qualified only in the year 2011 are not entitled for any relief on the ground of unexplained laches and inordinate delay of about more than 10 years in approaching the court for questioning the appointments. Though relief was sought against the State to deny the benefit of regularisation to the appointed teachers, they were not even impleaded as party respondents. An Association was impleaded as third respondent but without furnishing any material to show that at least majority of appointees are members of such Association. So far as Primary Assistant Teachers Scheme of 2003, which was subject matter of Letters Patent Appeal arising out of C.W.P.No.3303 of 2012-A filed by Chander Mohan Negi and others, is concerned, the appellants in Civil Appeal No.2813 of 2017 except appellant nos.1, 2 and 4 have withdrawn the appeal and appellant nos.1 and 4 are already appointed as JBTs. Insofar as the only appellant, viz., appellant no.2 – Rajiv Chauhan – is concerned, it is stated that he is qualified and there are vacant posts and he can be considered if he applies to any of the existing vacancies. So far as Primary Assistant Teacher Scheme is concerned, same was notified as early as on 27 th August 2003. As is evident from the scheme itself, the object of the scheme appears to be to compulsorily enrol children in schools for elementary and primary education in the remote areas to achieve the goals as set by the Government while enacting The Himachal Pradesh Compulsory Primary Education Act, 1997 with a view to achieve the target of 100% enrolment to children. As per the scheme, the eligibility was 10+2 from a recognised Board/University and the candidates with higher qualifications were also eligible and candidates with professional qualifications were to be preferred. As per the regular Recruitment Rules the requisite qualification for the post of JBT teacher during the relevant time was 10+2 with 50% marks and JBT certificateIn that view of the matter, we are of the view that when the appointees appointed under the scheme have completed more than almost 15 years of service now and also have acquired the professional qualifications, they cannot be denied regularisation at this point of time. As the appointments were made as per the schemes notified by the Government such appointments cannot be treated as illegal, if at all they can be considered irregular. When it is the plea of the State that in view of the hard topography/tribal areas in the State, large number of vacancies were there even single teacher schools and to achieve the object of The Himachal Pradesh Primary Education Act, 1997 such steps were taken, there is no reason to disbelieve the same, more so, in absence of any affidavit by way of rejoinder by the writ petitioners before the High Court controverting the allegations in the reply filed on behalf of the State12. Even with regard to Para Teachers Policy under which various category of teachers were appointed in the year 2003 pursuant to policy notified on 17.09.2003 it is clear from the record placed before this Court that all the persons who were recruited as Para Teachers were fully qualified as per the Recruitment and Promotion Rules, i.e., The Himachal Pradesh Education Department Class-III (School and Inspection Cadre) Service Rules, 1973. In view of the stand of the State that such policy was necessitated due to large number of vacant posts which have arisen year after year and which could not be filled since the State Selection Subodinate Board, Hamirpur which was responsible for the selection of teachers had come under a cloud and the selection process had come to a halt, such appointments cannot be rendered as illegal. Such aspect is also evident from the policy itself. Even in other category of Grant-in-Aid to Parent Teacher Association Rules, all teachers appointed under the scheme fulfil the educational qualifications prescribed in the Rules. For such kind of teachers, Cabinet has taken decision to take over the teachers on contract basis after completion of eight years of service which period was later reduced to seven years. It is also brought to our notice during the course of arguments that out of the total 6799 teachers, 5017 teachers were already taken over on contract basis by the State Government and only 1782 could not be taken over in view of the interim orders passed by this Court13. It is true that in the initial schemes notified by the Government there was a condition that such appointees should not seek regularisation/absorption but at the same time for no fault of them, they cannot be denied regularisation/absorption. It is in view of the requirement of the State, their services were extended from time to time and now all the appointees have completed more than 15 years of service. For majority of the appointed teachers under the various schemes benefit was already extended and some left over candidates were denied on account of interim orders passed by this Court. With regard to Primary Assistant Teachers, it is stated that all the candidates have completed Special Teacher Training Qualifying Condensed Course and also had obtained special JBT certificate after 5 years continuous service in terms of the Himachal Pradesh Education Code 1985. The judgments relied on by learned counsel Sri Prashant Bhushan also would not render any assistance to the case of the appellants herein for the reason that there was unexplained and inordinate delay on the part of the appellants in approaching the High Court and further having regard to explanation offered by the State about the need of framing such policies to meet the immediate requirement to fill up single teacher schools which were vacant for a very long time, having regard to topographical conditions, which is not even controverted by way of any rejoinder before the High Court. In such view of the matter, taking the totality of peculiar circumstances of these cases, we are of the that the view expressed by this Court in the judgments relied on cannot be applied to the facts of the case on hand. All the appointed candidates are working for the meagre salaries pursuant to schemes notified by the Government. Except the vague submission that such schemes were framed only to make back door entries, there is no material placed on record to buttress such submission. Further it is also to be noted that though such schemes were notified as early as in 2003, nobody has questioned such policies and appointments upto 2012 and 2013. The writ petition, i.e., C.W.P.No.3303 of 2012-A was filed in the year 2012 without even impleading the appointees as party respondents. In the writ petition there was no rejoinder filed by the writ petitioners disputing the averments of the State as stated in the reply affidavit. Having regard to nature of such appointments, appointments made as per policies cannot be termed as illegal. Having regard to material placed before this Court and having regard to reasons recorded in the impugned order by the High Court, we are of the view that no case is made out to interfere with the impugned judgment of the High Court