Puja Chandel And Others vs State Of Himachal Pradesh And Others

Jyotsna Rewal Dua, J

Petitioners participated in the selection process undertaken by the respondents in the year 2017 for two posts of Junior Basic Teachers (JBT) reserved for general category wards of ex-servicemen, in District Sirmour. The selection process was initiated and conducted in terms of then prevailing Recruitment and Promotion Rules 2012. Petitioners’ result of this selection process has not been declared, hence this petition.

The pleaded case of the petitioners as canvassed by theIR learned counsel is that :-

2(i) Petitioners qualified two years JBT course from H.P. Board of School Education in the year 2015. They passed Teachers Eligibility Test (TET) in the years 2015 and 2016, respectively. In the year 2016, both the petitioners were eligible for being appointed against the post of JBT as per Recruitment and Promotion Rules 2012 prevailing at that time.

2(ii) In the year 2012, the State of Himachal Pradesh notified H.P. Elementary Education Department Junior Basic Trained Teachers Class III (Non Gazetted) Recruitment and Promotion Rules 2012. These rules prescribed the criteria for selection to the post of JBT teachers. Clause 15 of the Rules provided for selection of candidates for appointment to JBT posts in case of direct recruitment (regular or contract basis). It provided for drawing of categorywise merit on the basis of marks obtained by the candidates in TET.

2(iii) On 03.11.2016, the State Government gave approval to fill up 700 vacant posts of JBT in accordance with the prevailing 2012 Rules. In terms of this approval, 13 posts of JBT were to be filled up in District Sirmour. Out of these 13 posts, 2 posts were reserved for general category (wards of ex-servicemen). The eligible candidates as per 2012 Rules were invited for interview for the two posts of JBT on 02.05.2017 and 03.05.2017 at Nahan, District Sirmour. The petitioners participated in the interview held on 02.05.2017 and 03.05.2017. The final result was compiled. Before the result could be declared, an Original Application No. 3440 of 2017 was filed in the erstwhile H.P. State Administrative Tribunal (for short the Tribunal) challenging Clause 15 of 2012 Rules. This original application was allowed on 30.08.2017. Clause 15 of 2012 R&P Rules was quashed.

In the meanwhile, vide notification dated 22.09.2017, the State of Himachal Pradesh repealed 2012 Rules by Recruitment and Promotion Rules 2017. The new R&P Rules prescribed new criteria for selection to the post of JBT. R&P Rules 2017 also contained Repeal & Saving Clause as under :-

“Repeal and savings:

“2(1) The Himachal Pradesh Elementary Education Department, Junior Basic Trained Teacher,Class-III (Non-Gazetted)Recruitment and Promotion Rules, 2012, notified vide notification No. EDN-C-A(3)-1/2002, dated 23.08.2012, as published in the Rajpatra Himachal Pradesh vide notification of even number dated 25th August, 2012 are hereby repealed.

(2) Notwithstanding such repeal, any appointment made or anything done or any action taken under the rules, so repealed under sub-rule (1) supra shall be deemed to have been validly made, done or taken under these rules.”

2(iv) Aggrieved against the judgment passed by the learned Tribunal on 30.08.2017, the State Government preferred CWP No. 233 of 2018 before this Court. This writ petition, alongwith other connected cases, dealing with similar questions was decided vide common judgment dated 12.10.2018. The judgment passed by the learned Tribunal was set aside. Clause 15 of 2012 Rules was upheld. The operative paras of the judgment dated 12.10.2018 read as under :-

“33. Thus, under these circumstances, we are of the considered view that the Tribunal seriously erred in allowing the Original Applications, by quashing the legislation.

In view of the aforesaid discussion, we quash and set aside the impugned orders, referred to in Para-1 supra. We clarify that the recruitment process so undertaken under the 2012 Rules shall be completed, in terms thereof.”

In consonance with the above judgment, the recruitment process undertaken by the State under the 2012 Rules was to be completed in terms thereof.

A Review Petition bearing No. 3 of 2019 was preferred in one of the above mentioned connected cases. Due to a conflicting decision of this Court in LPA No. 4062 of 2013 dated 28.08.2018, the Review Petition was referred to the Hon’ble Full Bench. While deciding the Review Petition, Hon’ble the Full Bench vide judgment dated 08.03.2019 held that “a non-obstante clause is a Legislative device which is invariably employed to give over-riding effect to certain provisions over some contrary provisions contained in the same Statute or Statutory Rules or any other enactment”. The relevant paras of the judgment are as under :-

“12. The selection process completed under 2012 Rules before these Rules were repealed on 22.09.2017, has to be taken to its logical conclusion in terms of Rule 2(2) of the 2017 Rules. However, if the recruitment process for the posts of JBT Teachers was initiated after the 2017 Rules came into process, the selection criteria of such process needs to be in conformity with the provisions of 2017 Rules as notified on 22nd September, 2017. Once the two sets of Rules and their interplay is understood in the above explained manner, it is difficult to accept that there is any conflict, implied or express, between the two judgments of this Court in Meena Kumari and Pawan Chauhan cases.

13-14. ………………………………………………………………..

In response to the query of the Court, learned Advocate General, on instructions informed that recruitment process was initiated on three different occasions as per 2012 Rules. He also informed that the candidates stand appointed on the basis of the two recruitment processes initiated and with regard to the third one, all codal formalities stood completed before Rules came into force and now only appointment letters remain to be issued.

The action of the Department in taking steps for concluding the selection process initiated and completed before 22. 09.2017 as per the 2012 Rules, therefore, cannot be faulted, for anything contrary thereto would negate the mandate of sub Rule (2) of Rule 2, which has an over-riding effect on the other provisions of 2017 Rules. The Reference stands accordingly answered in above terms.”

The Court thus held that action of department in taking steps for concluding the selection process initiated and completed before 22.09.2017 as per 2012 Rules cannot be faulted. Any contrary version would negate the meaning of sub Rule (2) of Rule 2 which has an over-riding effect on the other provisions of 2017 Rules.

Contentions

Learned counsel for the petitioners submitted that the selection process for the two posts of JBT in District Sirmour reserved for wards of ex-servicemen, was initiated in the year 2017 as per R&P Rules 2012. That these posts were advertised in terms of 2012 Rules. The interviews for the posts in question were also conducted in May, 2017 itself i.e. before the promulgation of 2017 Rules. Hence, the two posts of JBT in question are to be filled up as per 2012 Rules on the basis of TET merit which was the criteria of selection under these Rules. Despite repeated representations of the petitioners, the respondents have not filled up these two posts in question in district Sirmour reserved for general category (wards of ex-servicemen) in terms of R&P Rules 2012. This is notwithstanding the fact that process for filling 700 posts as per 2012 Rules was resumed, process was completed and the candidates were also selected on the basis of their merit in TET.

Learned Additional Advocate General, on the basis of submissions made in the reply, argued that though two posts of JBTs for the wards of ex-servicemen in general category were advertised for District Sirmour and counselling was also fixed on 2nd & 3rd May, 2017 as per 2012 Rules, but the process was not completed as there was no recommendation of the committee constituted for the purpose. For this reason, result of the selection process was not finalized. It was submitted that the posts in question are still lying vacant.

Observations

We have heard learned counsel for the parties and gone through the material available on record. The admitted position is that the selection process in question commenced under 2012 R&P Rules. The petitioners participated in this selection process for two posts of JBT reserved for general category wards of ex-servicemen in district Sirmour. It is also not in dispute that the petitioners were interviewed for the posts in question on 2 nd /3rd May 2017. The selection process could not be taken to the logical conclusion at that time due to a judgment passed by learned Tribunal on 30.08.2017, whereunder Clause 15 of 2012 Rules was quashed. In terms of Clause 15, the merit of candidates was to be prepared on the basis of their marks in TET. This Court vide judgment dated 12.10.2018 set aside the judgment passed by the learned Tribunal and clarified that recruitment process undertaken as per 2012 Rules will be completed in terms thereof. The Full Bench decision dated 08.03.2019 put to rest all misconceptions with respect to concluding the selection process in question. It was held that the selection process initiated and completed before 22.09.2017 as per 2012 Rules cannot be faulted or else the mandate of Rule 2 sub rule (2) of 2017 Rules will be negated. The R&P Rules 2017 for the post of JBT teachers were notified by the State on 22.09.2017. Rule 2 of 2017 Rules repealed 2012 Rules. It also provided that ‘notwithstanding such repeal, any appointment or any action taken under the repealed rules shall be deemed to have been validly made, done or taken under these rules’. The statement of learned Advocate General was also noted by the Hon’ble Full Bench in the judgment to the effect that :- ‘the recruitment process was initiated on three different occasions as per 2012 Rules and further that candidates stood appointed on the basis of two recruitment processes initiated under the 2012 Rules. With regard to 3rd one, learned Advocate General informed that all codal formalities were completed before 2017 Rules came into force and only the appointment letters remained to be issued’.

Considering the above aspects as well as admitted factual position, we allow the instant writ petition and direct the respondents to finalize the result for the two posts of JBT in question in terms of 2012 R&P Rules and take it to its logical conclusion by issuing appointment orders in terms thereof within a period of two months from today. The writ petition stands disposed of in the aforesaid terms, so also the pending applications, if any.