Om Parakash & Ors. vs State of H.P. & Ors.

Jiya Lal Bhardwaj, Judge (Oral)

The petitioners by way of present petition have prayed for the following substantive reliefs:-

Shorn of unnecessary details, the key facts of the case are that the petitioners were appointed as Education Volunteers/Instructors to run the EGS/ALS schools from the year 2001 to 2004. In the year 2001, the Government of Himachal Pradesh framed a policy of Gramin Vidya Upasak Yojana (in short “GVUY”) after noticing the dire need of providing education at grass-root level, particularly in the tribal and hard/difficult area of the State. The paramount objective to formulate the education policy was to provide primary education to the needy and poor hailing from tribal, hard/difficult areas, who are entitled to it as a matter of fundamental right, for the reason that the regular/contract teachers were not interested in working in the said areas.

In the year 2009, the Government of Himachal Pradesh took a policy decision to convert the services of those EGS Instructors as Gramin Vidya Upasak (in short “GVU”) who were having four years experience as an EGS Instructor and also having 10+2 qualification. In pursuance of the said decision, the petitioners who were working as EGS were appointed as GVU on contract basis, vide office order dated 09.09.2009 (Annexure P-6 colly.), as per the terms and conditions provided in the Notification of the GVU Scheme, 2001. Thereafter, the Government of Himachal Pradesh took a decision on 16.08.2011 to regularize the services of those GVU who have completed eight years continuous service as on 31.03.2011. The grievance of the petitioners in the petition is that though after their appointment as GVU their services were not regularized as was done in the case of GVU, after completion of eight years service, which is contrary to the Government policy as well as violative of Articles 14 and 16 of the Constitution of India. As such, they have approached this Court inter alia on the ground that they have been regularized after a lapse of more than eleven years instead of eight years, in terms of the policy decision of the Government, which is not sustainable in the eyes of law. The respondents-State, once having regularized the services of the persons after completion of eight years service, the same relief ought to have been extended to the petitioners, who were working in tribal, hard/difficult areas in terms of the policy. Such act of omission and commission on the part of the respondents is arbitrary, discriminatory and not sustainable in the eyes of law. It has also been averred that the respondents-State has committed a grave injustice to the petitioners and thus, the orders regularizing their service after completion of more than eight years of service are illogical as well as discriminatory and as such sought a direction to the respondents-State to regularize their services immediately after completion of eight years service.

The respondents-State filed reply to the petition and in the preliminary submissions submitted that the Alternative Location Schooling Scheme/Education Guarantee Scheme centers were opened by the Government purely on temporary basis and the ultimate aim of such centers was to mainstream/enroll the children in formal schools. EGS Instructors were appointed by the Village Education Committee (VEC) of the concerned schools as per SSA norms. After mainstreaming the children, these centers were closed and the role of EGS Instructors stood ended. It is further averred that the matter with regard to conversion of EGS Instructors to GVU was examined by the Government in detail and vide letter dated 27.02.2009 (Annexure P-5), conveyed its approval to convert only those EGS Instructors as GVU, who had completed four years continuous service and possessed minimum qualification of 10+2. As per the Notification dated 05.10.2009, it was also decided to pay them the honorarium @Rs.3,500/- per month as payable to untrained primary teachers for 10 months in a year. As per letter dated 16.08.2011 (Annexure P-7), the approval to regularize the services of GVU, who had completed eight years service as on 31.03.2011 in primary schools of the State with immediate effect subject to the fulfillment of the conditions was conveyed and all the Deputy Directors were directed to award Special JBT Certificates under the provisions of Chapter VIII, Article 145 of the H.P. Education Code-1985 and their service be regularized as JBT teachers w.e.f. 16.08.2011 after completing all other formal formalities. Similarly, the matter regarding regularization of GVU has been examined at Government level on 27.01.2021 and the Government conveyed approval of the Council of Ministers dated 05.01.2021 to regularize the services of those GVU, who are not required to pass TET. Accordingly, all Deputy Directors were directed to take further necessary action. Therefore, the contention of the petitioners is totally wrong that the petitioners are eligible for regularization as JBT w.e.f. 01.01.2018, whereas they have rightly been regularized as per the direction/decision of the Government dated 27.01.2021 and as such, prayed for dismissal of the writ petition.

The petitioners filed rejoinder to the reply and controverted the averments made therein.

I have heard the learned counsel for the parties and also perused the record carefully.

It is not in dispute that the Government of Himachal Pradesh had taken a conscious decision, when it decided to convert the services of the petitioners, who were discharging their duties as EGS Instructors, to the posts of GVU, as per the decision conveyed vide letter dated 27.02.2009. After the said decision taken by the Government of Himachal Pradesh, the services of the petitioners were converted to the post of GVU. Thereafter, the Government of Himachal Pradesh had taken the decision to regularize the services of those GVU, who had completed eight years service as on 31.03.2011, which was conveyed vide communication dated 16.08.2011 (Annexure P-7). After the said decision, the persons who were working as GVU, were awarded Special JBT Certificates under the provisions of Chapter VIII, Article 145 of the H.P. Education Code, 1985 and their services were regularized as JBT Teachers w.e.f. 16.08.2011.

The claim of the petitioners in the petition is that once the Government had taken a decision to regularize the services of those GVU, who had completed eight years as on 31.03.2011, parity demands that similar treatment ought to have been given to the petitioners, especially when the respondents-State had taken a policy decision to convert their services as GVU. The said submission deserves acceptance for the reason that had the respondents-State not taken the conscious decision to convert their services as GVU as per letter dated 27.02.2009 (Annexure P-5), the petitioners could not have claimed the relief. However, once their services have been converted as GVU, thereafter they cannot be treated differently, more particularly when in the case of GVU after the decision taken to convert the services of the petitioners as GVU, the Government had taken a decision to regularize the services of those GVU, who had completed eight years of service.

Learned Advocate General has vehemently argued that since no conscious decision was taken by the Government to regularize the services of the petitioners, who were earlier working as EGS Instructors, until and unless there is a policy framed for them, this Court may not like to give directions to frame the policy and once the Right to Education Act (in short “RTE Act”) has come into force, this Court may not like to give directions to regularize the services of the petitioners, who do not possess the requisite qualification under the RTE Act. The Government had taken the conscious decision only in the year 2021 in respect of those GVU who were possessing the requisite qualification as per the norms fixed by the NCTE and RTE to regularize their services. However, the said submission cannot be accepted for the simple reason that the Government of Himachal Pradesh at the time of taking the decision to regularize the services of GVU, awarded them Special JBT Certificates under the provisions of Chapter VIII, Article 145 of the H.P. Education Code, 1985. Once the Government of Himachal Pradesh has taken a decision to grant a particular benefit to same set of employees, who were also serving as GVU after completion of eight years of service, the petitioners, who are also forming the same class cannot be denied the said benefit.

Learned Advocate General has placed reliance upon the decision passed by the Hon’ble Supreme Court in State of Rajasthan and others vs. Daya Lal and others, (2011) 2 SCC 429 and contended that the petitioners cannot seek any benefit of the decision taken by the State Government, as conveyed vide letter dated 16.08.2011 (Annexure P-7), for the reason that they had not completed eight years of service on the said date. However, if the judgment passed by the Hon’ble Supreme Court is read as a whole, it has been laid down that the persons, who were appointed subsequent to the cut-off date cannot claim or contend that the scheme should be applied to them by extending the cut-off date or seek a direction for framing of fresh scheme providing for successive cut-off dates. In the present case, the petitioners have not been appointed after cut-off date and they were appointed prior to the cut-off date and once the Government had taken the conscious decision to convert the services of the petitioners, who were earlier working as EGS Instructors, thereby bringing them at par with GVU as per the decision taken by the Government, conveyed vide letter dated 27.02.2009, they cannot be denied the benefit of the regularization after completion of eight years service. Had the Government not converted the petitioners to the post of GVU, the claim put forth by them could have been denied by this Court. Once the Government had taken the conscious decision to convert the services of the petitioners as GVU, keeping in view the services rendered by them to impart education to the children in tribal, remote/difficult areas, they cannot be denied of their right seeking regularization in terms of the decision of the Government, whereby they had regularized the services of those GVU, who had completed eight years service as on 31.03.2011. Thus, the contention raised by the learned Advocate General cannot be accepted and the petitioners, who form one homogeneous class, cannot be denied the regularization after completion of eight years of service from the date when they were converted as GVU, more particularly when the respondents had subsequently regularized their services.

Learned Advocate General has also placed reliance upon the communication dated 26.03.2012, issued by Government of India, Ministry of Human Resource Development, Department of School Education & Literacy, stipulating that the condition of passing TET cannot be relaxed under Section 23(2) of the RTE Act and further, only those candidates who qualify TET may be considered for appointment as school teachers. However, the said instructions are not applicable in the present case for the simple reason that the petitioners were working and discharging their duties in imparting education to the children, who were serving in the tribal and difficult areas from 2001 onwards and, therefore, the instructions dated 26.03.2012 are not attracted to the facts of the present case.

Consequently, the present petition is allowed and the respondents are directed to regularize the services of the petitioners immediately after completion of eight years of service from the date of conversion of their services to the post of GVU with all consequential benefits, such as seniority, increments, promotion and other service benefits. The needful shall be done by the respondents within a period of six months from today and in case the arrears are not defrayed to the petitioners within six months from today, they shall be paid interest @6% per annum from today till actual payment to them.

The petition is accordingly disposed of. No order as to costs. Pending application(s), if any, shall also stand disposed of.