State of HP Vs Ravinder Kumar

 State of HP Vs Ravinder Kumar
LPA No. 21 of 2013 a/w LPA Nos. 18, 22, 26, 37,38 4059,4060 & 54 of 2013 Reserved on: 13.08.2019 Decided on: 4.10.2019
Coram The Hon’ble Mr. Justice Dharam Chand Chaudhary, (ACJ) The Hon’ble Ms. Justice Jyotsna Rewal Dua, (J).

 

For the appellants: Mr. Vikas Rathore & Mr. Narinder Guleria, Additional Advocate Generals, with Manoj Bagga, Assistant Advocate General, for the appellants.

For the respondent: Mr. Bhuvnesh Sharma, Advocate, for the respondent in all the appeal(s).

 

Jyotsna Rewal Dua,(J)
 

Whether the services of the writ petitioners/respondents were required to be taken over by the State Government on regular basis or on contract basis, is the question involved in this bunch of Letters Patent Appeals. Learned Single Judge, vide common judgment dated 02.05.2012, allowed all the writ petitions and directed the State/appellant to consider petitioners’ cases for appointment as lecturers (School cadre) in their respective subjects on regular basis w.e.f. 6.2.2007, alongwith all consequential actions. Feeling aggrieved with this direction, State has preferred the instant appeals.

 

LPAs No.4060 and 4059 of 2013, are against the judgments rendered by learned Single Judge in CWPs No.3143 and 3144 of 2011, dated 7.11.2012 and 8.10.2012, relying upon the decision dated 2.5.2012 passed in CWP No.7602 of 2010 (LPA No.54/2013).

 

For sake of convenience, parties are being referred to hereinafter as they were in writ Court.

 

2. Bare minimum facts for adjudication of question may be noticed hereinafter: 2a) State, framed terms and conditions for taking over the affiliated privately managed colleges including the services of teaching and non-teaching staff therein, by way of notification, dated 25.8.1994 (Annexure PR-2).

 

Under the terms and conditions of this notification, the Managing Committees of privately managed colleges, inter-alia were to transfer their all movable and immovable properties, assets attached with the colleges to the State Government; the managements were to ensure payment of salaries and other admissible dues to the existing staff before taking over of the college, by the Government; services of qualified teaching and non-teaching staff appointed one year earlier, fulfilling the prescribed conditions under R&P Rules were to be taken over; the Government scales in their respective categories would be permissible to the staff after the take over. Condition No.7 relevant in respect to controversy is reproduced hereinafter:-

 

“7. The services of only qualified teaching and non-teaching staff appointed one year earlier who fulfill, prescribed departmental recruitment and promotion rule 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 of the college concerned subject to the above mentioned provisions.

 

The Government scales in respect of the respective categories shall be permissible to them after the take over.” 2b) The State Government has been taking over the affiliated colleges as well as the services of their teaching and non-teaching staff under the above referred notification dated 25.08.1994. Amarnath Smarak Mahavidyalya Jogindernagar college, National College Amb & Thakur Jagev Chand Katoch Memorial Degre College Sujanpur, were taken over by the State Government on 25.09.1995, 27.6.1997 & 7.3.2001, respectively. Services of staff of these colleges were also taken over by the State Government on regular basis from the respective dates of taking over of the colleges.

 

2c) Vide notification dated 6.2.2007, (Annexure P-4), State ordered taking over of ‘Kanwar Durga Chand Memorial College, Jaisinghpur’ in District Kangra, with immediate effect in public interest. Petitioners were serving as lecturers in different subjects in this college. Their services were also required to be taken over w.e.f. 6.2.2007. In terms of notification dated 25.8.1994, the salary of the staff of the college w.e.f. 6.2.2007, was also required to be paid by the State Government. It is the grievance of the petitioners that they remained in the college and discharged their duties under the State Government after 6.2.2007 onwards, yet, their salaries have not been paid by the State Government.

 

2d) The State Government eventually took over the services of the petitioners vide office order dated 21.6.2010, (Annexure P-6), w.e.f. 06.2.2007, i.e., from the date of taking over of the college. Pursuant to this order, the services of the petitioners, who were working as lecturers (college cadre) were taken over as lecturers (school cadre), in view of their qualifications viz-a-viz requirements under the Recruitment & Promotion Rules. Though services of all the petitioners were taken over by the State Government, but on contract basis.

 

2(e) In 2010 itself, petitioners’ by filing writ petitions in this Court, challenged the action of the State Government in not taking over their services on regular basis as well as in not releasing their salaries, w.e.f. 6.2.2007, till June, 2010.

 

3. State Government filed its reply and opposed the prayer made in the writ petition on the grounds that: Staff salaries for the period 6.2.2007 to 21.6.2010, are to be paid only by the management of the college for which purpose Principal of Government College Jaisinghpur, District Kangra, had been directed, by the respondents; Government has taken a decision on 12.12.2003, to prescribe contractual appointment as a mode of recruitment in addition to modes of recruitment already existing under Clause-10 of the Recruitment & Promotion Rules; After 2003, the recruitment has to be only by way of contractual appointments, therefore, the petitioners’ services are required to be taken over only on contract basis and not on regular basis; Petitioners’ appointment on regular basis would result in giving them seniority over those appointed on contract basis between 6.2.2007 to 21.6.2010. Learned Single Judge having found favour with the case of the petitioners’, State has come up in the instant appeals.

 

4. Observations: 4(i) It is not in dispute that even though the State Government on 12.12.2003 had requested all the Heads of Departments to amend Clause-10 of R&P Rules, for including contractual appointment as one of the mode of recruitment in accordance with the decision taken by the State, yet, Recruitment & Promotion Rules for lecturers (school cadre) were not amended in tune with 12.12.2003 decision of the State Government. The mode of recruitment under the Recruitment & Promotion Rules for appointment lecture (School cadre) continued to be only on regular basis. It was only on 20.9.2010, that Clause-10 of the R&P Rules for the posts in question was amended and notified, incorporating contractual appointments, as one of the mode of recruitment.

 

4(ii) The college in question was taken over by the State on 6.2.2007. In terms of notification dated 25.8.1994, services of the eligible staff were also required to be taken over w.e.f. 6.2.2007. State though had taken over the services of the staff of the Kanwar Durga Chand Memorial College, Jaisinghpur only on 21.6.2010. Fact remains that services of writ petitioners were taken over prior to amendment of R&P Rules.

 

The services of the petitioners were required to be taken over in terms of Recruitment & Promotion Rules, which were in existence on the date of taking over the college i.e. 6.2.2007. The R&P Rules as they existed on 6.2.2007 did not provide for contractual appointments. The Rules only provided for regular recruitments. Service of petitioners were taken over w.e.f. 6.2.2007. College itself was taken over on 6.2.2007. Therefore, clause providing appointment on contractual basis inserted in the R&P Rules by way of amendment of Rules on 20.09.2010, could not be retrospectively applied to the petitioners.

 

It is apt to refer the judgment passed by this Court, in CWP No.1811 of 2008, titled Dev Raj Vs. State of H.P & others, relevant segment reproduced hereinafter:-

 

“25………………….Government appointments are made in accordance with the Rules framed under Article 309 of the Constitution of India. When such Rules are framed the Government is expected to act and make appointments in accordance with the Rules. If the Rules do not permit the Government to make appointment on contract basis they must be made on regular basis.

 

4(iii) The notification dated 25.8.1994, under which State Government took over the privately managed colleges as well as services of staff working there, provides for granting them Government scales as admissible to their respective corresponding categories. Clause-9 of this notification reads as under:-

 

“9. Provided that services of only those employees will be taken over who furnish a written acceptance on non-judicial paper duly attested by the competent authority to the effect that they are willing to be absorbed in Government services on the terms and conditions laid down in these rules.” There is no provision in the above notification for taking over services of staff of privately managed colleges on contract basis, more so, in the facts of instant case, in view of Recruitment and Promotion Rules of Lecturer (School cadre) as they existed on 6.2.2007 i.e. the date of take over, whereunder no provision for appointment on contract basis was there, regular recruitment was the only prescribed mode.

 

5. Thus, services of the petitioners’ were thus required to be taken over w.e.f. 6.2.2007 on regular basis. There is no infirmity in the judgment passed by learned Single Judge. All these appeals are therefore dismissed alongwith pending application(s), if any.