Joga Singh Vs State of HP

 Joga Singh Vs State of HP 15.06.2015
BEFORE HON'BLE MR. JUSTICE RAJIV SHARMA, J. AND HON'BLE MR. JUSTICE SURESHWAR THAKUR, J. 
CWP No. 8953/2013 alongwith CWP No.3106/2014 and 2815 of 2015 Reserved on : 4.6.2015 Decided on: 15.6.2015

For the Petitioners: Mr. Adarsh. K. Vashista, Advocate.

For the respondents: Mr. P.M. Negi, Dy. A.G.

Justice Rajiv Sharma, Judge: 

Since common questions of law and facts are involved in all these petitions, the same were taken up together for hearing and are being disposed of by a common judgment.

2. State has framed the Himachal Pradesh Vidya Upasak Yojna, 1998 (hereinafter referred to as the ?Vidya Upasak Yojna" in short). The rationale for formulation of the Vidya Upasak Yojna was to provide teaching man power in Government Primary Schools, which were located in remote/backward/difficult/tribal areas. The trained teachers available in the urban and other developed areas were not willing to serve in the remote places as a result of which most of the schools in such areas were without teachers. In the remote and inaccessible areas of the State, the Department of Primary Education faced many problems like teacher absenteeism, poor scholastic standards leading to irregular functioning of primary schools and increased drop-out rate. In order to effectively counter the problem, the solution was sought in an innovative way, i.e. by recruiting voluntary teachers through the Volunteer Teacher Scheme launched by the Government of Himachal Pradesh in 1985, which was subsequently modified in 1991. However, due to relatively poor qualification of the VT's, the general standard of teaching came down resulting in undermining the basic objective of providing qualitative education in the State. In order to find a permanent and realistic solution to the problems being encountered in the realization of the objectives and to meet the growing demand for qualified teachers in the State, the "Vidya Upasak Yojna" was proposed for implementation in the primary schools in the State. According to ?Vidya Upasak Yojna", all the vacant post of teachers in Government Primary Schools, which were located in remote/backward/difficult/tribal areas were to be filled by appointing Vidya Upasaks in accordance with the laid down procedure. The Vidya Upasaks were to be initially recruited for a period of one year after following the procedure. The period of appointment could be extended after evaluating the performance of the appointees and approval by the Director Primary Education. The services of Vidya Upasaks, who had passed the written test, were to be utilized in the Government Primary Schools and the services of those candidates were to be regularized after completion of five years of continuous service required under Chapter-VIII of Education Code amended from time to time, that too, after successful completion of one year condensed teacher training course specifically prepared for them. The regularization of Vidya Upasaks was also subject to the condition that those who were matriculates, were required to improve their educational qualification essentially upto the level of 10+2 as per NCTE norms within a period of five years. The selection was to be made through HP Subordinate Service Selection Board, Hamirpur on the basis of written test and interview. The minimum educational qualifications prescribed for Vidya Upasaks was matriculation examination with a minimum of 45% marks in the aggregate for general category and 40% for candidates of reserved categories. The objectives of the Vidya Upasak Yojna was also to achieve the goals set out in the HP Compulsory Primary Education Act, 1997, which was enforced with effect from 1.4.1998 to enforce the Universalisation of Primary Education in remote and socio-economically backward villages. The Vidya Upasaks were entitled to honorarium of Rs. 2,500/- per month. The number of vacancies was notified as per clause 10 of the Vidya Upasak Yojna. The candidates were required to appear in the written test consisting of 85 marks. The written test was of objective type. Thereafter, the candidates were to be called for interview restricted to three times the number of vacancies in the Sub-Division. 15 marks were to be awarded in interview. After interview, a combined merit list was to be prepared Sub Division-wise after adding the marks obtained by the candidates in the written test and interview. The combined merit list (Sub-Division-wise) of every district was to be supplied by the Secretary, HP Subordinate Services Selection Board, Hamirpur to the District Primary Education Officers of the respective districts for making appointments in each of the Sub-Division in the district. The reservation was also to be provided as per the norms laid down by the State Government. The candidates were also required to attend the one year condensed teacher training course. The norms for absorption as regular primary teacher were provided under clause 16 of the Vidya Upasak Yojna

3.In sequel to Vidya Upasak Yojna, HP Subordinate Services Selection Board Hamirpur issued an advertisement whereby the applications were invited on or before 28.4.2009. Petitioners and similarly situate persons participated in the selection process. They sat in the written test and they also appeared in the interview. Petitioners, on the basis of the combined merit list, were issued appointment letters vide office order dated 19.9.2000. Petitioners have also obtained one year condensed teacher training course, as required under the Vidya Upasak Yojna and the conditions enumerated in the appointment letters. Petitioners were regularized/absorbed vide office order 31.10.2007 and 22.11.2007 and were placed in the pay scale of Rs. 4550-7200

4.Mr. Adarsh K. Vashishta, learned counsel for the petitioner, has vehemently argued that the respondents have not counted the services rendered by the petitioners from their initial date of appointment towards pension and increments

5.Mr. P.M. Negi, learned Deputy Advocate General, has strenuously argued that since the petitioners have been regularized after 15.5.2003, they would be covered under the Contributory Pension Scheme notified on 17.8.2006, which would be deemed to have come into force with effect from 15.5.2003

6.We have heard the learned counsel for the parties and have gone through the record carefully.

7. The State Government has framed a Vidya Upasak Yojna in order to achieve total eradication of illiteracy as per the goals laid down in the National Policy on Education, 1986 and to achieve the goals set out in the HP Compulsory Primary Education Act, 1997 and also to achieve 100% enrolment of children in the age group of 6-11 years in Government Primary Schools in Himachal Pradesh. The minimum essential qualification was prescribed under clause 7 of the Vidya Upasak Yojna. The selection was to be made through HP Subordinate Services Selection Board, Hamirpur on the basis of written test consisting of 85 marks and interview of 15 marks. The HP Subordinate Services Selection Board, Hamirpur commenced the selection process, which led to the appointment of the petitioners in the year 2000. Petitioners have also undertaken initially training of 21 days and thereafter completed one year condensed teacher training course. They were regularized/absorbed, as noticed hereinabove, on 22.11.2007

8.The State Government has amended the Central Civil Services (Pension) (Himachal Pradesh First Amendment) Rules, 2003 whereby after clause (h) of rule 2 of the Central Civil Services (Pension) Rules, 1972, the following new clause (i) has been inserted:

"(i) All appointments made in the State Government of Himachal Pradesh on or after the date of the publication of the notification in Rajpatra, Himachal Pradesh."

9. According to the plain language of newly added clause (i) of rule 2, the persons appointed in the State of Himachal Pradesh on or after 15.5.2003 shall not be entitled to pension as per Central Civil Services (Pension) Rules, 1972. According to Mr. P.M. Negi, learned Deputy Advocate General, they would be covered under Contributory Pension Scheme as per notification dated 17.8.2006

10.Petitioners have been appointed after undergoing the rigours of selection process in the year 2000. They were qualified as per the norms laid down in the Vidya Upasak Yojna. They successfully completed one year condensed teacher training course, which led to their regularization/absorption vide letters dated 31.10.2007 and 22.11.2007. There is no break in their service from the year 2000 till the date of their regularization/absorption. It is specifically provided in the Vidya Upasak Yojna and as per the terms and conditions enumerated in the appointment letters that they would be considered for regularization/absorption after five years of continuous service, including one year condensed teacher training course starting from the date of joining and successful completion of training and passing of subsequent examination after the training. However, there was a rider that the candidates, who were only matriculate, were required to pass 10+2 examinations within five years after the appointment as Vidya Upasak. Petitioners were to be regularized/absorbed as regular primary teacher irrespective of vacant post in the regular scale. However, fact of the matter is that petitioners were appointed against regular post initially in the year 2000 and at the time of their absorption/regularization also, posts were lying vacant

11.According to rule 13 of the Central Civil Services (Pension) Rules, 1972, qualifying service of a Government servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity provided that officiating or temporary service is followed without interruption by substantive appointment in the same or another service or post. In the instant case, petitioners have been appointed by the State Government as per the norms laid down though initially for a period of one year, but their appointments were continued from the year 2000 followed by their appointments on substantive post on 31.10.2007 and 22.11.2007. The service on contract can also be counted under rule 17, which is subsequently followed by substantive appointment in a pensionable establishment. The status of the petitioners was better of than the persons appointed merely on contract basis since they have continuously worked for a period of 7 years without any obstruction and obtained essential qualification of one year condensed teacher training course.

12. We are of the considered view that the petitioners have been appointed before 15.5.2003 and are entitled to pension under the Central Civil Services (Pension) Rules, 1972. There is no merit in the contention of Mr. P.M. Negi, learned Deputy Advocate General that the appointments of the petitioners would be reckoned from the date of their regularization/absorption on 31.10.2007 and 22.11.2007. There is not even a single day break in the service of the petitioners and they have fulfilled all the conditions stipulated in the Vidya Upasak Yojna as well as in their appointments letters. Respondent-State is a welfare State. The services rendered by the petitioners from the years 2000 to 2007 cannot be obliterated or rendered otiose

13.Mr. Adarsh K. Vashista has vehemently argued that though the petitioners were appointed on honorarium, but they have been discharging the same and similar duties, which were discharged by the regularly appointed teachers. Rather the petitioners were posted in remote/backward/difficult/tribal areas where the regularly appointed Junior Basic Trained Teachers were reluctant to serve and there was large scale absenteeism which has deteriorated the educational standard. Petitioners werert6 not entitled to the regular pay scale at par with regularly appointees but they are entitled at least to count this period from the years 2000 to 2007 towards annual increments as well as qualifying service for pension. Action of the respondents of not counting the period from 2000 to 2007 for the purpose of pensionary benefits and annual increments is violative of Articles 14 and 16 of the Constitution of India. It is made clear that the petitioners are entitled to count this period towards pensionary benefits as well as annual increments

14.Accordingly, in view of the analysis and discussion made hereinabove, all the petitions are allowed. The period from 2000 to 31.10.2007 and 22.11.2007, respectively shall be counted as qualifying service for the purpose of pension under the Central Civil Service (Pension) Rules, 1972. This period shall also be counted for the purpose of annual increments. Pending application(s), if any, also stands disposed of. No costs.