DATE OF DECISION: December 21, 2012
Shivani Gupta and others
…..Petitioners
versus
State of Haryana and others
.....Respondents
2. Letters Patent Appeal No.1715 of 2012 (O&M)
Gaytri
…..Appellant
versus
State of Haryana and others
.....Respondents
3. Civil Writ Petition No.22697 of 2012 (O&M)
Partibha Malik and others
…..Petitioners
versus
State of Haryana, etc.
.....Respondents
4. Civil Writ Petition No.16432 of 2012 (O&M)
Gaurav Kumar and others
…..Petitioners
versus
State of Haryana, etc.
.....Respondents
5. Civil Writ Petition No.17854 of 2012 (O&M)
Renuka Popli and others
…..Petitioners
versus
State of Haryana, etc.
.....RespondentsCWP-15929-2012 - 2 -
6. Civil Writ Petition No.17609 of 2012 (O&M)
Dalip Singh and others
…..Petitioners
versus
State of Haryana, etc.
.....Respondents
7. Civil Writ Petition No.16376 of 2012 (O&M)
Dr.Anita Saxena, etc.
…..Petitioners
versus
State of Haryana, etc.
.....Respondents
8. Civil Writ Petition No.24406 of 2012 (O&M)
Pardeep Singh and others
…..Petitioners
versus
The State of Haryana, etc.
.....Respondents
9. Civil Writ Petition No.22068 of 2012 (O&M)
Bheem Singh and others
…..Petitioners
versus
The State of Haryana, etc.
.....Respondents
10. Civil Writ Petition No.22155 of 2012 (O&M)
Anita Dahiya
…..Petitioner
versus
The State of Haryana, etc.
.....Respondents
11. Civil Writ Petition No.23569 of 2012 (O&M)
Raj Kumar
…..PetitionerCWP-15929-2012 - 3 -
versus
State of Haryana, etc.
.....Respondents
12. Civil Writ Petition No.24196 of 2012 (O&M)
Monika Rani and others
…..Petitioners
versus
The State of Haryana, etc.
.....Respondents
13. Civil Writ Petition No.23839 of 2012 (O&M)
Rakhi Ahlawat and others
…..Petitioners
versus
The State of Haryana, etc.
.....Respondents
14. Civil Writ Petition No.24430 of 2012 (O&M)
Anju and another
…..Petitioners
versus
The State of Haryana, etc.
.....Respondents
15. Civil Writ Petition No.23499 of 2012 (O&M)
Priyanka Kumari and others
…..Petitioners
versus
The State of Haryana, etc.
.....Respondents
16. Civil Writ Petition No.21116 of 2012 (O&M)
Usha Rani and others
…..Petitioners
versusCWP-15929-2012 - 4 -
The State of Haryana, etc.
.....Respondents
17. Civil Writ Petition No.23997 of 2012 (O&M)
Jyoti
…..Petitioner
versus
The State of Haryana, etc.
.....Respondents
18. Civil Writ Petition No.23816 of 2012 (O&M)
Vandhana
…..Petitioner
versus
State of Haryana, etc.
.....Respondents
19. Civil Writ Petition No.20430 of 2012 (O&M)
Sneh Lata
…..Petitioner
versus
The State of Haryana, etc.
.....Respondents
20. Civil Writ Petition No.22876 of 2012 (O&M)
Pardeep Kumar and others
…..Petitioners
versus
State of Haryana, etc.
.....Respondents
21. Civil Writ Petition No.23475 of 2012 (O&M)
Shreepal
…..Petitioner
versus
The State of Haryana, etc.
.....RespondentsCWP-15929-2012 - 5 -
22. Civil Writ Petition No.23218 of 2012 (O&M)
Sunita
…..Petitioner
versus
The State of Haryana, etc.
.....Respondents
23. Civil Writ Petition No.24035 of 2012 (O&M)
Geeta Kumari and others
…..Petitioners
versus
The State of Haryana, etc.
.....Respondents
24. Civil Writ Petition No.24016 of 2012 (O&M)
Rajesh Kumari
…..Petitioner
versus
The State of Haryana, etc.
.....Respondents
25. Civil Writ Petition No.24055 of 2012 (O&M)
Pravin Kumari, etc.
…..Petitioners
versus
The State of Haryana, etc.
.....Respondents
26. Civil Writ Petition No.23589 of 2012 (O&M)
Sukhpal and others
…..Petitioners
versus
State of Haryana, etc.
.....RespondentsCWP-15929-2012 - 6 -
27. Civil Writ Petition No.23813 of 2012 (O&M)
Mahesh Sharma and others
…..Petitioners
versus
State of Haryana, etc.
.....Respondents
28. Civil Writ Petition No.14598 of 2012 (O&M)
Krishan Gogia and others
…..Petitioners
versus
State of Haryana, etc.
.....Respondents
29. Civil Writ Petition No.22094 of 2012 (O&M)
Rajesh Kumar and others
…..Petitioners
versus
The State of Haryana, etc.
.....Respondents
30. Civil Writ Petition No.23111 of 2012 (O&M)
Mehar Chand and others
…..Petitioners
versus
The State of Haryana, etc.
.....Respondents
31. Civil Writ Petition No.23872 of 2012 (O&M)
Suman Lata Devi
…..Petitioner
versus
State of Haryana, etc.
.....Respondents
32. Civil Writ Petition No.22160 of 2012 (O&M)CWP-15929-2012 - 7 -
Shamma Raheja and others
…..Petitioners
versus
The State of Haryana, etc.
.....Respondents
33. Civil Writ Petition No.15492 of 2012 (O&M)
Ashok Kumar
…..Petitioner
versus
The State of Haryana, etc.
.....Respondents
34. Civil Writ Petition No.23522 of 2012 (O&M)
Sangeeta, etc.
…..Petitioners
versus
State of Haryana, etc.
.....Respondents
35. Civil Writ Petition No.21549 of 2012 (O&M)
Hem Lata, etc.
…..Petitioners
versus
State of Haryana, etc.
.....Respondents
36. Civil Writ Petition No.22374 of 2012 (O&M)
Bala Devi and others
…..Petitioners
versus
State of Haryana, etc.
.....Respondents
37. Civil Writ Petition No.22327 of 2012 (O&M)
Deepak Kumar, etc.
…..PetitionersCWP-15929-2012 - 8 -
versus
The State of Haryana, etc.
.....Respondents
38. Civil Writ Petition No.25068 of 2012 (O&M)
Ravinder Kumar
…..Petitioners
versus
The State of Haryana, etc.
.....Respondents
39. Civil Writ Petition No.25111 of 2012 (O&M)
Kamal Singh and others
…..Petitioners
versus
State of Haryana, etc.
.....Respondents
40. Civil Writ Petition No.25014 of 2012 (O&M)
Bhaskar Gaur
…..Petitioner
versus
The State of Haryana, etc.
.....Respondents
41. Civil Writ Petition No.24811 of 2012 (O&M)
Sunil Kumar
…..Petitioner
versus
State of Haryana, etc.
.....Respondents
42. Civil Writ Petition No.24916 of 2012 (O&M)
Suman Lata and others
…..Petitioners
versusCWP-15929-2012 - 9 -
The State of Haryana, etc.
.....Respondents
43. Civil Writ Petition No.24845 of 2012 (O&M)
Shakuntla Devi and others
…..Petitioners
versus
State of Haryana, etc.
.....Respondents
44. Civil Writ Petition No.23889 of 2012 (O&M)
Sunil Yadav
…..Petitioner
versus
State of Haryana, etc.
.....Respondents
45. Civil Writ Petition No.23871 of 2012 (O&M)
Amita
…..Petitioner
versus
State of Haryana, etc.
.....Respondents
46. Civil Writ Petition No.23553 of 2012 (O&M)
Aruna, etc.
…..Petitioners
versus
The State of Haryana, etc.
.....Respondents
47. Civil Writ Petition No.21768 of 2012 (O&M)
Mamta and others
…..Petitioners
versus
The State of Haryana, etc.
.....RespondentsCWP-15929-2012 - 10 -
48. Civil Writ Petition No.23587 of 2012 (O&M)
Parkash, etc.
…..Petitioners
versus
State of Haryana, etc.
.....Respondents
49. Civil Writ Petition No.23890 of 2012 (O&M)
Ram Sawrup and others
…..Petitioners
versus
State of Haryana, etc.
.....Respondents
50. Civil Writ Petition No.22624 of 2012 (O&M)
Sushma Rani and others
…..Petitioners
versus
The State of Haryana, etc.
.....Respondents
51. Civil Writ Petition No.23596 of 2012 (O&M)
Smt.Seema
…..Petitioner
versus
State of Haryana, etc.
.....Respondents
52. Civil Writ Petition No.23886 of 2012 (O&M)
Nirmala and others
…..Petitioners
versus
State of Haryana, etc.
.....RespondentsCWP-15929-2012 - 11 -
53. Civil Writ Petition No.25284 of 2012 (O&M)
Neelam and others
…..Petitioners
versus
The State of Haryana, etc.
.....Respondents
54. Civil Writ Petition No.24140 of 2012 (O&M)
Jai Parkash and others
…..Petitioners
versus
The State of Haryana, etc.
.....Respondents
55. Civil Writ Petition No.24236 of 2012 (O&M)
Nupur and others
…..Petitioners
versus
The State of Haryana, etc.
.....Respondents
56. Civil Writ Petition No.21548 of 2012 (O&M)
Mamta Rani and others
…..Petitioners
versus
The State of Haryana, etc.
.....Respondents
57. Civil Writ Petition No.23588 of 2012 (O&M)
Arun and others
…..Petitioners
versus
State of Haryana, etc.
.....Respondents
58. Civil Writ Petition No.24303 of 2012 (O&M)CWP-15929-2012 - 12 -
Dev Kumar Sharma and others
…..Petitioners
versus
State of Haryana, etc.
.....Respondents
59. Civil Writ Petition No.25133 of 2012 (O&M)
Randhir Singh and others
…..Petitioners
versus
State of Haryana, etc.
.....Respondents
60. Civil Writ Petition No.23464 of 2012 (O&M)
Arvind
…..Petitioner
versus
The State of Haryana, etc.
.....Respondents
61. Civil Writ Petition No.24325 of 2012 (O&M)
Gurinder Kaur
…..Petitioner
versus
State of Haryana, etc.
.....Respondents
62. Civil Writ Petition No.24205 of 2012 (O&M)
Sudesh
…..Petitioners
versus
The State of Haryana, etc.
.....Respondents
63. Civil Writ Petition No.23853 of 2012 (O&M)
Maya Devi, etc.
…..PetitionersCWP-15929-2012 - 13 -
versus
State of Haryana, etc.
.....Respondents
64. Civil Writ Petition No.23840 of 2012 (O&M)
Anita Yadav
…..Petitioner
versus
State of Haryana, etc.
.....Respondents
65. Civil Writ Petition No.23535 of 2012 (O&M)
Saroj Devi
…..Petitioner
versus
State of Haryana, etc.
.....Respondents
66. Civil Writ Petition No.22432 of 2012 (O&M)
Tripti Gupta and others
…..Petitioners
versus
The State of Haryana, etc.
.....Respondents
67. Civil Writ Petition No.22612 of 2012 (O&M)
Sarita and others
…..Petitioners
versus
The State of Haryana, etc.
.....Respondents
68. Civil Writ Petition No.23572 of 2012 (O&M)
Sudesh Kumari, etc.
…..Petitioners
versusCWP-15929-2012 - 14 -
State of Haryana, etc.
.....Respondents
69. Civil Writ Petition No.23560 of 2012 (O&M)
Anju
…..Petitioner
versus
The State of Haryana, etc.
.....Respondents
70. Civil Writ Petition No.24114 of 2012 (O&M)
Sudesh Kumari, etc.
…..Petitioners
versus
The State of Haryana, etc.
.....Respondents
71. Civil Writ Petition No.24176 of 2012 (O&M)
Inderjeet Yadav and others
…..Petitioners
versus
The State of Haryana, etc.
.....Respondents
72. Civil Writ Petition No.23001 of 2012 (O&M)
Rajender Kumar
…..Petitioner
versus
State of Haryana, etc.
.....Respondents
73. Civil Writ Petition No.21137 of 2012 (O&M)
Santosh Rani
…..Petitioner
versus
State of Haryana, etc.
.....RespondentsCWP-15929-2012 - 15 -
74. Civil Writ Petition No.25129 of 2012 (O&M)
Vijay Kumar
…..Petitioner
versus
State of Haryana, etc.
.....Respondents
75. Civil Writ Petition No.25213 of 2012 (O&M)
Meenu Rani and others
…..Petitioners
versus
State of Haryana, etc.
.....Respondents
76. Civil Writ Petition No.24450 of 2012 (O&M)
Pawan, etc.
…..Petitioners
versus
State of Haryana, etc.
.....Respondents
77. Civil Writ Petition No.25476 of 2012 (O&M)
Suman
…..Petitioner
versus
State of Haryana, etc.
.....Respondents
78. Civil Writ Petition No.24146 of 2012 (O&M)
Anju Devi
…..Petitioner
versus
The State of Haryana, etc.
.....RespondentsCWP-15929-2012 - 16 -
79. Civil Writ Petition No.24429 of 2012 (O&M)
Yogesh Kumar
…..Petitioner
versus
The State of Haryana, etc.
.....Respondents
80. Civil Writ Petition No.25404 of 2012 (O&M)
Manoj Kumar Sharma
…..Petitioner
versus
The State of Haryana, etc.
.....Respondents
81. Civil Writ Petition No.25366 of 2012 (O&M)
Suman Bala, etc.
…..Petitioners
versus
State of Haryana, etc.
.....Respondents
82. Civil Writ Petition No.25398 of 2012 (O&M)
Geeta Devi
…..Petitioner
versus
The State of Haryana, etc.
.....Respondents
83. Civil Writ Petition No.22701 of 2012 (O&M)
Ramesh Kumar and others
…..Petitioners
versus
State of Haryana, etc.
.....RespondentsCWP-15929-2012 - 17 -
84. Civil Writ Petition No.22698 of 2012 (O&M)
Suchitra
…..Petitioner
versus
The State of Haryana, etc.
.....Respondents
85. Civil Writ Petition No.22707 of 2012 (O&M)
Anuranjnee Jaiswal and others
…..Petitioners
versus
State of Haryana, etc.
.....Respondents
CORAM:- HON'BLE MR.JUSTICE A.K. SIKRI, CHIEF JUSTICE
HON’BLE MR. JUSTICE RAKESH KUMAR JAIN, JUDGE
Present: Mr.Anupam Gupta, Senior Advocate with
Mr.Angel Sharma, Advocate;
Mr.Jagbir Malik, Mr.Jasbir Mor, Mr.A.K. Bura,
Satbir Gill, Ravi Partap Singh, J.P.Sharma,
Rajesh Lamba, Harish Nain, H.N.Sahu,
Saurabh Dalal, S.S.Ghanghas, Vijay Pal,
Mohit Garg, Madan Pal, Suresh Ahlawat,
Anand Bhardwaj, J.P.Sharma, Narinder
Kumar Sharma, Vivek Goyal, Sandeep
Panwar, P.S.Khurana, Gaurav Jindal, DPS
Bajwa, Ashok Kaushik, M.S.Randhawa,
S.P.Chahar, Parveen Kumar Rohilla,
B.S.Mittal, Vivek Khatri, Rajbir Sehrawat,
Sanjiv Gupta, B.S.Dhull, Satish Chaudhary,
Jitender S.Chahal, R.S. Dhull, S.K.Yadav,
R.K.Hooda, Rajesh Duhan, Anurag Goyal,
K.S. Dadwal, Surinder Dagar, Jainainder
Saini, Dr.Suresh Kumar Redhu, Mr.H.N.
Khanduja, Advocates for the petitionersCWP-15929-2012 - 18 -
Mr.G.K. Chatrath, Senior Advocate with
Ms.Alka Chatrath, Advocate for appellant in LPA-1715-2012
Mr.B.S. Rana, Addl. Advocate General, Haryana
..
A.K. SIKRI, C.J.:
Introductory remarks
1. The genesis of present dispute, subject matter of these writ
petitions, can be traced to November-2005 when due to shortage of
teachers, the District Education Officers were prompted by the State of
Haryana to fill up the vacancies of Lecturers, Masters and C&V Teachers
by engaging the Guest Faculty Teachers (GFTs) against the sanctioned
posts. These GFTs were initially engaged on different dates in 2005
and were to continue up to 31.3.2006. However, as would be noted in
detail at the appropriate stage, most of these GFTs continued beyond
that period and are in service even now. In the interregnum, legal
battles ensued in various forms which were taken up to the Supreme
Court. The outcome of the various cases was that GFTs are not to be
regularized only because of their length of service; no fresh
appointments of GFTs would be made from 1.4.2012 and exercise to
complete the process of regular selection must be completed within the
specified time.
2. The State of Haryana has now taken steps for filling the posts
of Teachers in various disciplines on regular basis. Requisition is sent to
the Haryana School Teachers Selection Board (hereinafter to be referred
to as ‘the Selection Board’) for this purpose. Before doing so, new
statutory Rules, namely, ‘The Haryana State Education School Cadre
(Group-B) Service Rules, 2012 (hereafter to be referred to as ‘Rules of
2012’) have been promulgated. Before that, the Rules known as ‘The CWP-15929-2012 - 19 -
Haryana State Education Lecturer School Cadre (Group-C) Service
Rules, 1998 (for short, ‘Rules of 1998’) were in vogue.
3. From the perusal of Appendix ‘B’ of Rules of 1998, it is
clear that the basic qualification required for the post of Lecturer was
MA in the relevant subject with Matric and a certificate of having
qualified the School Teachers Eligibility Test (STET) (which was added
in 2008) but now by way of the new Rules, an amendment has been
made by inserting the qualification of Post Graduation in the relevant
subject along with B.Ed. and having passed the STET. Notwithstanding
this stipulation of basic essential qualifications in the Rules, at the end
of Appendix ‘B’, Note (i) is given whereby exemption from passing
STET/Haryana Teachers Eligibility Test (HTET) is given to the
candidates who have worked as Teachers for a minimum period of four
years on the date of enforcement of these Rules.
4. Advertisement has been issued whereby approximately
14,000 posts of PGT Teachers in different subjects are advertised. The
qualifications common to all posts specified are: (a) Matric with
Hindi/Sanskrit or 10+2/B.A./M.A. with Hindi as one of the subject and
(b) Certificate of having qualified HTET/STET. Further under Note-2,
one time exemption of HTET/STET has been granted to the candidates
who have worked for minimum four years till 11.4.2012 in privately
managed government aided, recognized and government schools. It is
further provided that this relaxation is only one time and candidates will
have to qualify STET/HTET not later than 1.4.2015, otherwise their
services will be terminated automatically.CWP-15929-2012 - 20 -
5. After some time, another notification was issued whereby
the Rules of 2012 were amended by inserting a transitional provision
under Rule 19-A whereby it is provided, as one time measure, that the
candidates whosoever were qualified under the Rules of 1998 shall also
be eligible for recruitment and they will have to qualify HTET and B.Ed.
by 1.4.2015. Thereafter, a corrigendum dated 3.7.2012 was issued
whereby under transitional provision the candidates who were eligible
under the Rules of 1998 were also made eligible, as a one time
measure, and further one time exemption is given to the candidates,
who are having four years experience till 11.4.2012 in addition to being
in position on the date of applying for the said post, to acquire
qualifications of passing HTET/STET and B.Ed.
6. In most of these petitions, the petitioners herein are those
candidates who fulfill the essential qualifications laid down in the Rules
of 2012. They have applied for the posts of PGT teachers and are
ready to participate in the selection process which is underway.
However, they are agitated against Note (i) in the Rules of 2012, which
gives exemption from passing School Teachers Eligibility Test
(STET)/Haryana Teachers Eligibility Test (HTET) to those candidates
who have worked as Teacher for a minimum period of four years on the
date of enforcement of these rules, i.e., as on 11.4.2012. They also
feel aggrieved by the further amendment on 2.7.2012 relaxing the
qualification, even of B.Ed. for such Teachers. Their nurture an
apprehension that all this is done to accommodate and select these
GFTs which is the manifest intention of the government, adequately
demonstrated in the previous litigations wherein over-jealous attempts
were made to accord these GFTs status of regular Teachers. It is for CWP-15929-2012 - 21 -
this reason, challenging these amendments, these writ petitions are
preferred.
7. To understand the contours of grievances as well as
controversy, we reproduce herein below the prayer made in CWP
No.15929 of 2012:
“It is, therefore, respectfully prayed that:-
i) records of the case may be called for;
ii) filing of the certified copies of the Annexures may
kindly be dispensed with and also the petitioner may
kindly be exempted from filing fair typed copies of the
Annexures and allowed to place on record photo copies
of the same;
iii) services of advance notices upon the respondents be
dispensed with;
iv) a writ in the nature of certiorari may kindly be issued
quashing the impugned amendment in Note(i),
Appendix ‘B’ of the Haryana State Education School
Cadre (Group B) Service (Second Amendment) Rules,
2012 and Mewat District School Education (Group B)
Service (Second Amendment) Rules, 2012 i.e.
Annexures P-19 & P-19A respectively, exempting the
teachers with experience of four years from passing
STET/HTET and B.Ed. and in consequence column c
(i) of the Corrigendum issued by the Respondent Board
dated 03.07.2012 (Annexure P-20);
v) issue any other Writ, Order or Direction which this
Hon’ble Court may deem appropriate and fit in the
peculiar facts and circumstances of the case.
vi) cost of the petition be awarded to the petitioners;”
(Similar prayers are made in other writ petitions as well)
It would be easier to comprehend the contentions of the petitioners, if we
have the detailed background facts stating as to how the GFTs were
inducted in the first instance and how they have been continuing and also
the nature of litigation and orders passed from time to time by this Court
as well as the Supreme Court. Therefore, we proceed to record the same
in seriatim hereinbelow:CWP-15929-2012 - 22 -
History of Previous Litigations:
8. In 2005, it was felt that there was a shortage of approximately
13,000 teaching staff in the government teaching institutions in the State
of Haryana. As this shortage was adversely affecting the imparting of
education in State-run educational institutions, State of Haryana, vide
instructions dated 29.11.2005, issued directive to all the District Education
Officers to fill up the vacancies of Lecturers. The District Education Officers
were to assess the shortfall of teachers in the State of Haryana keeping in
view the sanctioned posts of teachers and to fill up those vacancies in the
cadre of Lecturer, Master and C&V Teacher by engaging the GFTs against
the sanctioned posts. As per these instructions, the power to engage these
GFTs was delegated to the Principals/Headmasters/DDOs. It was also
provided that if there is requirement of teachers on the basis of vacancies
and workload, the Principals/Headmasters/DDOs will display the
requirement on a board at the main gate of the institution. Not only this, it
was also provided that these GFTs shall be engaged in a particular school of
the same village/town and if the teachers from the same village/town are
not available, then candidates belonging to same block or same district
would be considered. The exact provisions of the instructions dated
29.11.2005 are reproduce hereinbelow:-
“PROCEDURE:
I. The Head of Institutions would engage teachers on
Guest Faculty on the basis of vacancies and the
workload.
II. The Principal/Headmaster/DDO after assessing the
requirement will display the requirement on a board
displayed at the Main Gate of the Institution. In case of
schools having post of Principal or Headmaster vacant,
the DDO/BEO would assess the requirement and will
display the same. BEO would assess the requirement
and will display the same. BEO will also assess the
requirement of elementary school teacher. CWP-15929-2012 - 23 -
III. The applications should be submitted by the applicants
offering their services for engaging as Guest Faculty
for a specific period, from the date of engagement till
31.03.2006 only.
IV. The Principal/Headmaster/DDO will process all the
application received. If the Principal/Headmaster/
DDO receives applications more than the vacancies for
that academic session, then he/she shall give
preference to the applicants having higher academic
merit. First priority for engaging Guest Faculty in a
particular school should be to a candidate of same
village/town. The merit be made of such candidates.
If required candidate of same village/town is not
available, then merit be made of candidates belonging
to same block. Second priority for engaging Guest
Faculty should be from amongst candidates belonging
to the block. Third priority should be of candidates
belonging to same district.
V. As and when a regular appointee is posted to that
school (whether after regular direct recruitment or
after promotion or after adjustment or after transfer),
the Head of the institution will dispense with the
services of engaged teachers on Guest Faculty of that
category of post. It is not an appointment but job
work offer on period basis on prescribed rates. This is
with a view to take care of studies of students where
regular teachers are not available in the school.”
Large number of GFTs were engaged on the lines given in the aforesaid
instructions dated 29.11.2005, as amended on 16.12.2005. As per these
instructions, the GFTs were to continue only up to 31.3.2006. When this
date was closing in, fearing their disengagement, large number of such
GFTs approached this Court by way of writ petition under Article 226 of the
Constitution of India (CWP-2743-2006, titled as Balraj Singh and others
vs. State of Haryana and others). These GFTs pleaded that they should be
allowed to continue till regular employees join the services. They also
demanded regular pay scale. The writ petition was contested by the
respondent-State and a categoric reply was filed wherein it was submitted
that no criteria for selection/interviews of the GFTs was ever framed and
the sphere of selection of GFTs was very limited and the applications were CWP-15929-2012 - 24 -
invited to teach for certain period on fixed remuneration. It was also
submitted by the respondent-State that because of this, a large number of
meritorious candidates, who were waiting for the regular process to be
initiated, did not apply, as these GFTs were selected only from certain
blocks/areas without competing with the best of talent available. It was
also submitted by the State that if the petitioners therein are allowed to
continue on the posts, then probably they would claim regularization after
some time and right of meritorious candidates would be infringed. During
the course of hearing, the learned State counsel informed the Court that a
requisition has already been sent to the Haryana Staff Selection
Commission and approximately 9000 vacancies would be filled up in
furtherance to the aforesaid requisition. The Division Bench disposed of the
writ petition vide orders dated 20.3.2006 with directions to continue with
the GFTs till regular recruitments are made and it was also observed that
they are not entitled to regular pay scale.
9. The State of Haryana, initially, was not satisfied with the
aforesaid judgment giving directions to continue these GFTs till regular
recruitments are made. It, accordingly, challenged the orders dated
20.3.2006 by filing Special Leave Petitions (SLPs). However, these SLPs
were dismissed on 10.2.2012 as not pressed. The GFTs were, thus, allowed
to continue and work.
10. In the year 2007, another attempt was made by these GFTs to
allow them to continue till regular appointments are made and they also
prayed that directions may be issued not to discontinue GFTs. This was
done in the case of Baldev Singh and others vs. State of Haryana and
others, (CWP 387 of 2007). State of Haryana again contested this petition
taking a very categorical stand that since these GFTs were recruited to CWP-15929-2012 - 25 -
meet out the exigencies in various schools/colleges, they had no right to
continue and it was open to the State to terminate their services any time
without any notice or assigning any reason. It was stressed that their
appointment letters stipulated such terms and conditions and with open
eyes they had joined the services, accepting these terms and conditions
with their own free will and volition and it was not permissible for them now
to raise any objection to the contrary. This writ petition of the GFTs was
dismissed by this Court vide orders dated 30.8.2007. Relevant portion of
the said judgment is extracted below:
“After hearing counsel for the parties, we are of the
considered view that the Policy of appointing Teachers
as Guest Faculty Teachers was introduced by the State
Government so as to provide uninterrupted education
to the students. As the Education Department is a
huge Department in which posts of Lecturers remain
vacant due to death, retirement, resignation,
promotion, etc. of Teachers, therefore, in order to
ensure that studies of the students do not suffer hence,
the State Government decided to engage Lecturers as
Guest Faculty. Accordingly, the Principals were
directed to appoint Lecturers on period basis on a
fixed remuneration for a fixed period upto 31.3.2007.
The petitioners themselves requested that they be
engaged for a specified period on a fixed remuneration
and hence now they cannot claim that they should be
allowed to remain in service till regular appointments
are made. A perusal of the Policy shows that
appointment of Guest Faculty Teachers was a job
work on period basis at prescribed rates and hence, no
Guest Faculty Teacher is entitled to remain on the
post beyond the period for which he has been engaged.
The petitioners were engaged as Guest Faculty
Teacher by the Principal of the college concerned, who
otherwise, is not the competent authority to make
appointment under the Rules.
Apart from the above, the petitioners were engaged
from certain pocket areas only i.e., from their village or
from the block and they never competed with the best
of talent available. The reservation policy was also not
followed. Essentially the petitioners were engaged on
contract basis and there was no obligation on either CWP-15929-2012 - 26 -
side to continue that contract beyond the period for
which the Guest Faculty Teachers/Lecturers were
appointed.
It is, thus, clear that the claim of the petitioners for
quashing the condition of limiting the period of their
appointment does not suffer from any illegality or
irregularity which may warrant interference of this
Court. In the Constitutional Bench judgement in
Secretary, State of Karnataka & others vs. Umadevi &
others, (2006) 4 SCC 1, the Hon’ble Supreme Court
has allowed the State to engage employees on contract
basis by taking into account the requirement of work.
The petitioners can neither impost themselves upon
the respondents nor they can be allowed to continue
beyond the period for which they were engaged as
Guest Faculty Teachers. The petitioners also cannot
be allowed to continue till regular appointments are
made, as Guest Faculty Teachers are appointed only
to tide over the situations like death, retirement,
resignation, promotion, etc.
In view of the above, we find no merit in the writ
petition and the same is dismissed.”
11. Notwithstanding the aforesaid judgment wherein the position
taken by the State of Haryana was accepted, the Commissioner and
Directorate of School Education issued letter dated 2.12.2008 stipulating
therein the guidelines for temporary adjustment of displaced Guest
Teachers. Even the imposition of complete ban on engagement of fresh
Guest Teachers was ordered to be reconsidered after their displacement
due to arrival of regular incumbents. It is the contention of the petitioners
herein that from now onwards a deliberate effort was made by the
Government to accommodate these GFTs within Education Department
without giving any further opportunity of employment to any of the
unemployed youth like the petitioners.
12. The respondents, thereafter, issued instructions on 2.3.2009
whereby terms and conditions of these GFTs were ordered to be changed
as contractual employees, that too for one year in spite of their earlier CWP-15929-2012 - 27 -
engagement on ‘per day per person’ basis. Not only this, it was also
decided that GFTs will be given exemption from passing the STET and
would also be accorded age relaxation for upper age limit. To top it all,
they were even to be provided additional weightage for being GFTs by
giving up to 24 marks on this count. Issuance of these instructions dated
2.3.2009 started another round of litigation. A batch of writ petitions came
to be filed with leading case CWP-13045-2009 titled as Ashok Kumar vs.
The State of Haryana and others. This culminated in judgment dated
6.4.2010 whereby making scathing remarks on the softening of attitude of
the State of Haryana qua these GFTs, the aforesaid relaxation given by the
State in the communication dated 2.3.2009 was held to be bad in law,
observing that there was no occasion for the State to relax the condition of
STET or giving any weightage up to 24 marks towards experience gained
by them as GFTs. In the process, the Court observed:
“31. A reading of orders passed by this Court, as referred to
above, makes it very clear that entry of guest faculty teachers
was de-hors the regular selection process. It was limited to
few candidates. All eligible candidates were not allowed to
compete for those posts. The nature of service was
contractual. However, despite knowing terms and conditions of
their appointment, the guest faculty teachers dragged the
State of Haryana into avoidable litigation and on account of
their action, even the process of selection of regular teachers
was delayed. If at this stage, relaxation in age, exemption from
passing STET and weightage upto 24 marks towards
experience gained as guest faculty teachers is given to them,
it would amount to appointing those very candidates in regular
service, who, in the first instance, entered it through a
selection process which was not regular and open to all.
Obviously, it would mean a grave discrimination to the other
more deserving candidates. Most of the guest faculty teachers
have service of more than two years to their credit, they are
sure to get 24 marks at the time of selection and by that
process they are bound to exclude others who are more
meritorious from entering in service. The grant of 24 marks in
the marks obtained by all the candidates, including the guest
faculty teachers, as per criteria, in a fiercely competitive field
with thousands of applicants would virtually rule out non guest CWP-15929-2012 - 28 -
faculty candidates. This virtually amounts to regularization of
guest faculty teachers in service, which was deprecated and
proscribed by the Hon’ble Supreme Court in Uma Devi’s case
(supra), wherein it was held that persons, who got employment
without following a regular procedure and at times enter
through backdoor are not entitled to get permanence in
service.
xxx xxx xxx xxx
34. In the present case, if apart from relaxation in age,
exemption from passing STET and weightage upto 24 marks
towards experience gained as guest faculty teachers is given to
the guest faculty teachers, then it would virtually amount to
their regularization in service, that too, without following the
proper procedure for selection and contrary to the
pronouncement made by the Hon’ble Supreme Court in Uma
Devi’s case (supra).
xxx xxx xxx xxx
40. This Court is further of the view that there is no occasion
for the State to relax conditions of passing the STET, as has
been done in the case of guest faculty teachers. The said
qualification was incorporated in the Rules by making an
amendment in the year 2008. All other candidates, except the
guest faculty teachers, are required to pass that Test,
otherwise, they are not eligible to compete for the posts in
question. If the guest faculty teachers without passing STET,
are taken in service, it would amount to giving benefit to the
candidates lower in merit. Teachers are the builders of the
nation and if the foundation is weak, it is not expected that
the nation will progress in the right direction. No reason has
been given as to why the guest faculty teachers could not and
should not have passed the test, after the date, when it was
incorporated as a qualification in the Rules in the year 2008.”
The aforesaid judgment amply demonstrates the reasons for quashing the
provisions of relaxation given to GFTs vide instructions dated 2.3.2009, as
under:-
(a) These GFTs were given appointment de hors the
regular selection process, that is, no regular selection
process was undertaken while giving them the
appointment;
(b) Neither all eligible candidates were allowed to compete
nor all eligible candidates were considered. It was
limited to few candidates; CWP-15929-2012 - 29 -
(c) The nature of engagement was contractual and terms
and conditions of their appointment clearly specify that
it will not bestow any right upon them. It was also
made clear that it was a stop-gap arrangement pending
selection of regular teachers;
(d) Any such instructions granting relaxation in age,
exemption from passing STET and awarding 24 marks
towards experience gained as Guest Faculty amounted
to providing back-door entry to these GFTs. This
would mean a grave discrimination to other more
deserving candidates in a fiercely competitive field in
which thousand of these GFTs would virtually rule out
non-Guest Faculty candidates. Even otherwise, there
was no occasion to relax the condition of passing
STET, which was the essential qualification
incorporated in 2008 and could be relaxed for genuine
reasons, but no such reasons were forthcoming;
13. In the passing, the Division Bench also made following
significant observations:-
“43. In view of aforesaid discussion, it is evident that the
grant of exemption from passing the STET and weightage of
upto 24 marks towards experience to the guest faculty
teachers is not justified and runs contrary to the provisions of
Articles 14 and 16 of the Constitution of India. The Hon’ble
Supreme Court in State of Jharkhand and others v. Bijay
Kumar and others, AIR 2008 Supreme Court 1446, while
dealing with a similar controversy, observed that
“constitutional guarantee of equality as envisaged under
Articles 14 and 16 of the Constitution of India must be
protected. While passing one order or the other, we should
not forget the interest of those who are not before us, citizens
have human right of development and offer of appointment on
such posts should be directed to be made only on merit.”
44. There are always more aspirants in the field of public
employment with each passing year. Thousands of candidates
may have acquired similar or higher qualifications after the
date, when guest faculty teachers were taken in service in the
year 2005-2006. Those who may have become eligible now,
are not likely to be successful, if exemption from passing STET
and award of upto 24 marks towards experience upheld in
favour of guest faculty teachers. Constitutional guarantee of
equal opportunity in public service, as envisaged under
Articles 14 and 16 of the Constitution has to be protected. All
the applicants have equal right of being considered for
selection and the posts are supposed to be filled up only by
selecting the meritorious candidates.”CWP-15929-2012 - 30 -
14. The State of Haryana accepted the aforesaid verdict of this
Court. However, GFTs, who were affected thereby filed Special Leave
Petitions in the apex Court with leading case SLP No.24882 of 2010 titled
as Mohinder Kumar and others vs. State of Haryana, which was dismissed
by the Supreme Court with following reasons in support:
“It is not in dispute that the essential qualifications
enumerated in the advertisement issued by the Commission
were in consonance with the requirement of the Rules as
amended vide Notification dated 24.7.2008. In other words,
the certificate of having qualified School Teacher's Eligibility
Test was an integral part of the essential qualifications. Rule
17 of the Rules does empower the State Government to relax
any of the provisions of the Rules with respect to any class or
category of persons but the exercise of power under that rule
is hedged with the condition that while granting relaxation, the
State Government must record reasons for doing so. Before
the High Court, the State Government did not produce any
document to show that it had exercised power under Rule 17
and passed a reasoned order for granting exemption to the
Teachers engaged as the Guest Faculty from the requirement
of having qualified STET. Even before this Court, no such
document has been produced. Therefore, the High Court was
right in taking the view that the essential qualification
prescribed under the rules could not have been relaxed by
issuing a corrigendum in the advertisement issued by the
Commission.
Shri P.P. Rao, learned senior counsel relied
upon the judgment in K.V. Rajalakshmiah Setty and another
vs. State of Mysore and another (1967) 2 SCR 70 to show that
one time ad hoc concession given to teachers could be treated
as legitimate and the exercise of power by the Government
does not result in violation of Article 14 and 16 of the
Constitution.
We have carefully gone through the judgment but do
not find any proposition of legality that a qualification
prescribed under the rules framed under Article 309 of the
Constitution can be relaxed simply by issuing a corrigendum in
the advertisement issued by the Commission. Insofar as the
grant of weightage of additional marks is concerned, we are in
complete agreement with the High Court that this was an
indirect methodology adopted by the State to ensure
regularisation of the Guest Faculty Teachers who had earlier
failed to convince the High Court to issue a
mandamus to the State Government to frame a policy for
regularisation of their services. CWP-15929-2012 - 31 -
In the result, the special leave petitions are
dismissed.”
15. While the aforesaid events were taking place, side by side, a
PIL was also filed for quashing of the action of the State of Haryana by
which tenure of the GFTs was extended for a further period of one year.
Prayer was also made in the said PIL seeking directions to the Government
of Haryana to fill up the vacant posts of Teachers/Lecturers on regular basis
through a process provided in the Constitution Scheme which was the
subject matter of CWP-6090-2010 entitled: Tilak Raj vs. State of
Haryana. This writ petition was disposed of vide judgment dated 30.3.2011
whereby important observations were made about the balance between
the need for education and the need for upholding the fundamental rights
of a large section of the citizens under Articles 14 and 16 of the
Constitution of India and further it was also observed that the Court cannot
overlook the manner in which GFTs have entered into service and how they
have continued and how a large number of eligible candidates are still
waiting for regular appointments and finally directions were given to extend
the tenure of the GFTs up to 31.3.2012 with specific observation that on
the expiry of the said date, the services of the GFTs shall be understood to
have lapsed and it will not be open for the State to continue any such GFTs
in service. However, after nine months, i.e., on 16.12.2011, an application
was filed by the State seeking extension of time granted by this Court for
compliance of the order dated 30.3.2011. In this application, orders dated
15.3.2012 were passed dismissing the same, inter alia, observing that the
State had failed to make out any justifiable case for extension and, in any
case, finality had to be achieved in the selection process of regular teachers
by making an extra effort, as the game of extension serves nobody’s cause
in long run. CWP-15929-2012 - 32 -
16. Against this order, refusing to extend time, Special Leave
Petition was filed, which was decided on 30.3.2012 whereby it was directed
that no fresh appointments of GFTs will be made from 01.04.2012 and
exercise to complete the process of selection must be completed within the
time specified in the Scheme and it was also observed that no further
extension or deviation therefrom will be permitted. Finally, it was also
observed that the recruitment of teachers on regular basis shall not be
supplemented or replaced by this procedure of appointing the GFTs. For the
sake of convenience, the pertinent observations given by the Supreme
Court are as under:-
“7. Having heard the learned Attorney General for India,
Mr. Subramanium and Mr.Vishwanathan, senior advocates, for
the parties and also keeping in mind the submissions made by
Mr.Vishwanathan, that the intention of the Division Bench of
the High Court was that no further appointments of ‘Guest
Teachers’ should be made after Ist April, 2012, and that the
vacancies should be filled up by posting and reposting
SLP(C)…CC5956-5957/12 etc. in the different institutions,
we feel the two things should really be kept separate,
notwithstanding the apprehension voiced by Mr.
Vishwanathan, that this court lead to continuance of
appointment of ‘Guest Teachers’.
8. We make it very clear that as directed by the Division
Bench of the High Court, no fresh appointments of ‘Guest
Teachers’ will be made from Ist April, 2012. However, since
students also cannot be made to suffer on account of the delay
in the appointment of regular teachers, we direct that the
exercise indicated in the scheme, must be completed within
the time specified in the scheme and no further extension or
deviation therefrom will be permitted.
9. Till then, the ‘Guest Teachers’ may be allowed to
continue to function, as they have been doing so far.
10. We once again reiterate that the recruitment of
teachers on the regular basis shall not be supplemented or
replaced by this procedure of appointing ‘Guest Teachers’ for
the sake of convenience.”CWP-15929-2012 - 33 -
Impugned Provisions:
17. As pointed out above, thereafter the State promulgated Rules
of 2012 and also came out with the first amendment as well as second
amendment in the said rules. As per Rules of 2012, essential qualification
for PGT Teacher is Post-Graduation in the relevant subject along with B.Ed.
and also having passed the STET/HTET. However, in these very rules,
after stating the aforesaid basic essential qualifications, at the end of
Appendix-B, a note is given whereby those Teachers who have worked for
a minimum period of four years on the date of enforcement of these rules,
i.e., 11.4.2012, they have been exempted to clear qualification of passing
STET as a one-time measure with the condition that they will have to
qualify HTET by not later than April 01, 2015. This eligibility condition for
PGT with aforesaid note is as under:
“Appendix-B
PGT English:
(i) M.A. English with at least 50% marks and B.Ed. from
recognized University, AND
(ii) Matric with Hindi/Sanskrit or 10+2/B.A./M.A. with
Hindi as one of the subject, AND
(iii) Certificate of having qualified Haryana Teacher
Eligibility Test (HTET)/School Teachers Eligibility
Test (STET).
(iv) Consistent good academic record.
Note:(i)That in case of different recruitment, the teachers
working in privately managed Government aided,
recognized and Government schools, are exempted
to acquire qualifications of passing HTET as
described in column No.1, if they have worked as a
teacher for a minimum period of four years on the
date of enforcement of these rules. However, said
exemption is as a one time measure and the said
category of teachers on the their appointment shall
have to qualify HTET by not later than Ist April,
2015; otherwise their appointment shall stand CWP-15929-2012 - 34 -
terminated automatically without giving any further
notice.
(ii) A person who has passed STET/HTET without the
qualification of B.Ed. before the notification of these
rules, shall be considered eligible for the post of PGT
in case of direct recruitment.
(iii) In case of direct recruitment, consistent good academic
record means that out of the lower qualification i.e.
Matric/10+2/Graduation than the requisite minimum
qualification, one need secure at least 50% in two lower
exams and 45% in third lower exam. If there is only two
lower exams, then one must secure at least 50% in one
exam and 45% in another.
(iv) Professional Training Diploma or Certificate awarded
by any State Board or University other than Haryana
Education Department will be recognized only if this
Degree or Diploma or Certificate has been recognized
by the Haryana Government.
(v) Relaxation up to 5% in the qualifying marks shall be
allowed to the candidates belonging to Scheduled
Castes (SC) and differently aided candidates.”
On this basis, advertisement was issued on 6.6.2012 whereby
approximately 14,000 posts of PGT Teachers in different subjects have
been advertised. After issuance of the aforesaid advertisement, a
notification was again issued dated 2.7.2012 whereby the Rules of 2012
were amended by inserting a transitional provision under Rule 19-A
whereby it is provided that the candidates whosoever were qualified under
the Rules of 1998 shall also be eligible for recruitment as one time measure
and they will have to qualify HTET and B.Ed. by 1.4.2015 and if they fail to
do so, the appointments shall stand terminated automatically. Further,
Note (i) of Appendix ‘B’ of Rules of 2012 is also substituted by saying that
in case of direct recruitment, the teachers working in the privately
managed Government aided, recognized and Government schools are
exempted from having qualifications of HTET/STET and B.Ed. if they have CWP-15929-2012 - 35 -
worked as a teacher for a minimum period of 4 years on the date of
enforcement of these Rules. The exact amendment in Note (i) is as under:-
“3. In the said rules, in Appendix B, for note (i) the
following note shall be substituted, namely: -
(i) That in case of direct recruitment, the teachers
working in privately managed Government aided,
recognized and Government schools, are exempted
from having qualifications of Haryana teachers
Eligibility Test or School Teachers Eligibility Test and
B.Ed. as described in column 3, if they have worked as
a teacher for a minimum period of four years on the
date of enforcement of these rules.”
For such teachers, who have four years’ teaching experience and these
certainly include these GFTs, one time relaxation from passing STET/HTET
as well as qualification of B.Ed. is relaxed as one-time measure. The effect
is that these GFTs or other Teachers, who are not possessing HTET
Certificate or B.Ed. Certificate, are made eligible to compete along with
others like the petitioners in these writ petitions.
The Challenge:
18. According to petitioners, these amendments are deliberately
made with sole motive to accommodate GFTs by giving them the regular
appointment. In nutshell, the case of the petitioners is that though in the
beginning the Government was opposed to the claim of these GFTs, but
after 2008 there was change of mind and there have been repeated
attempts on the part of the State to see that these GFTs somehow continue
and are given appointment on regular basis. However, even when such
demands failed on the anvil of judicial scrutiny, to wriggle out of the
mandate given by this Court and the Supreme Court, the government has
come out with the exemption clauses waiving the essential conditions for
appointment of these Teachers. With the result, these GFTs, who are
otherwise not eligible for consideration to the posts of PGTs, will now be CWP-15929-2012 - 36 -
considered and will be allowed to compete with the petitioners and others,
who are having the requisite qualifications and waiting for their
appointment on merits. It is the apprehension of the petitioners that all
this is done just to favour these GFTs by giving them the appointment.
The benefit is extended even to those Teachers working in privatelymanaged government aided schools and recognized schools. According to
petitioners, this is only a make belief just to show that this exemption is a
uniform exemption and not for the Guest Faculty only, but for the benefit of
teaching faculty in all. Otherwise argued the petitioners, the whole
intention is to circumvent the basic mandate of this Court in Ashok Kumar’s
case (supra) and that of the Supreme Court in Mohinder Kumar’s case
(supra) whereby these types of exemptions are held to be arbitrary and
violative of Articles 14 and 16 of the Constitution of India
19. Mr.Anupam Gupta, learned senior counsel, appearing for the
petitioners, spearheaded the attack by exemplifying the aforesaid
submissions in the following manner:
(i) Track record in which the Government has conducted
itself in past few years clearly exemplifies the intention
of the Government, namely, somehow help these GFTs;
(ii) This intention of the Government is very clear even
from the online application form wherein a specific
column is provided asking as to whether the candidate
is working as Guest Teacher in the State of Haryana or
not. The column, in verbatim, is as under:
“Are you working as Guest Teacher in Haryana”
(iii) That by providing this exemption, respondent
department/Government has treated equals and CWP-15929-2012 - 37 -
unequals equally which is not permissible from any
corner of law as any sort of classification should have
some nexus with the ultimate object sought to be
achieved whereas in the present case, the only object of
the respondent department/Government is just to
accommodate/select these GFTs by any means by
providing them any sort of relaxation/exemptions;
(iv) Mr. Gupta also found oblique motive in specifying period
of four years’ experience for grant of exemption and not
any other period. In this behalf, the argument is that
for the first time, the GFTs were appointed in the year
2005 and this process of engaging GFTs was continued
up to the year 2008. Thereafter, no GFT was appointed.
The last appointment of GFTs was made in the year
2008. This is why, magic number of four years is given
by the respondent-State. He argued that in Secretary,
State of Karnataka & others vs. Uma Devi &
others, (2006) 4 SCC 1, the Supreme Court has
categorically held that the persons who have been
appointed by irregular process of selection (not illegal)
and who are working for the last more than 10 years
should be regularized by one time policy framed by the
Government. But unfortunately, the Government of
Haryana cannot apply the mandate given in Uma Devi’s
case (supra) on the GFTs because they have their own
categoric stand in this Court that these appointments
are stop gap arrangement and without following the CWP-15929-2012 - 38 -
exact intent of Articles 14 and 16 of the Constitution of
India and that is why the respondent
department/Government is trying to benefit these GFTs
by providing these types of exemptions, that too by
making a specific mention in the application form and
seeking specific information from the GFTs about their
status. If at all, the intention of the Government would
have been to make transparent selection, by providing
exemption, the question in the application form should
have been about the status of all the teachers working
in the privately managed government aided, recognized
and Government schools. Here, it is important to
mention that the GFTs are only in the Government
schools. Therefore, keeping in view the intention of the
Government, they have provided these exemptions in
note (i) of the Rules of 2012 dated 11.4.2012;
(v) It was also submitted by Mr.Gupta that as per the
information provided under the RTI, thousands of
candidates have passed the STET/HTET test in different
subjects and are waiting for their selection. Thus, when
sufficient number of eligible candidates are available in
the market, who have applied for the post of PGT, there
is no reason or justification to give relaxation to such
Teachers including GFTs and accommodate these
ineligible candidates which is also irrational, illogical,
arbitrary and thus, amounts to infraction of Article 14 of
the Constitution. This Note (i) in Appendix-B and CWP-15929-2012 - 39 -
further amendment giving relaxation of B.Ed. as well,
was also challenged as colourable exercise of power;
Mr.K.S. Dadwal, learned counsel for the writ petitioner (in CWP-25476-
2012), in addition, raised the following arguments:
vi) Giving relaxations to GFTs and other such Teachers and
making them eligible, had resulted in short-listing
because of swelling number of the total candidates. This
short-listing was done in 4 disciplines, whereas, the
advertisement pertained to 14 subjects. Though the
requirement as per the rules is 50% marks in M.A.,
because of the short-listing, this bar was raised higher.
The effect of that was that many eligible candidates
from amongst the petitioners stood excluded from
consideration. It was argued that had there been no
exemption, most of these candidates would have been
eligible as in such eventuality there might not have
been any occasion for short-listing. It was also
submitted that short-listing in four subjects was
because of the reason that almost all the GFTs belong to
these four subjects and thus, it was done with intention
to help them. The effect of this was that many eligible
candidates were out of consideration, whereas, ineligible
candidates like the GFTs were being considered;
(vii) Learned counsel drew attention to Rule 5 of NCTE Rules,
which read as under:CWP-15929-2012 - 40 -
“In accordance with the provisions of subsection(1) OF Section 23 of the RTE Act, the
National Council for Teacher Education (NCTE)
had vide Notification dated 23rd August, 2010
and 29th July, 2011 laid down the minimum
qualifications for a person to be eligible for
appointment as a teacher in classes I to VIII. It
had been inter alia provided that one of the
essential qualifications for a person to be
eligible for appointment as a teacher in any of
the schools referred to in clause (n) of section 2
of the RTE Act is that he/she should pass the
Teacher Eligibility Test (TET) which will be
conducted by the appropriate Government in
accordance with the Guidelines framed by the
NCTE.
The rationale for including the TET as a
minimum qualification for a person to be eligible
for appointment as a teacher is as under:-
i. It would bring national standards and
benchmark of teacher quality in the
recruitment process;
ii. It would induce teacher education
institutions and students from these
institutions to further improve their
performance standards;
iii. It would send a positive signal to all
stakeholders that the Government lays
special emphasis on teacher quality.”
As per this rule, relaxation, if any, could be given by NCTE. On that basis,
it was sought to contend that there was no jurisdiction with the State to
frame such rules and provide relaxation by themselves by-passing NCTE
and, therefore, such an action was ultra vires the powers of the State
Government as well.
20. Mr.Jagbir Malik, Advocate, appearing for some of the
petitioners, made additional arguments:
(viii) By exempting the passing of STET exam, no weightage
thereto is given which is contrary to the entire scheme
of inclusion of STET as mandatory requirement. HeCWP-15929-2012 - 41 -
stressed the rationale behind the passing of STET as
essential qualification issued by CBSE in the following
words:
Mr.Malik, thus, argued that having regard to the importance attached to
the STET examination, there could not have been relaxation to this
provision.
21. The aforesaid contentions are stoutly refuted by Mr. Rana,
learned Additional Advocate General, Haryana and Mr. Chatrath, learned
senior counsel, who appeared for the appellant in LPA No.1715 of 2012,
made his own additions with all vehemence at his command, highlighting
the circumstances under which GFTs came to be appointed. He made a
fervent appeal with the aid of plethora of case law to the effect that such
a provision made in the rules in the form of Note as well as in
advertisement does not suffer from any illegality or impropriety. We are
not taking note of these submissions in detail here. Instead we would be
referring to same while giving our reasons in support of our conclusion.
The Decision:
22. Our conclusion, after giving due consideration to the
arguments of the learned counsel for the parties, is that attack on the
validity of the rule is devoid of any merit and stands blunted when
examined on the touchstone of legal principles. The rules do not have any
blemish and the Note (i) in Appendix ‘B’ of the Rules, 2012, exempting
Teachers with experience of four years from passing STET/HTET and
B.Ed., as a one time measure, is not violative of Article 14 of the
Constitution or suffers from any other illegality.
Reasons in Support:CWP-15929-2012 - 42 -
23. At the outset, we would like to comment that this exemption
provides as a one time measure only entitles Teachers with experience of
four years, from passing STET/HTET and B.Ed. while considering their
cases for appointment. Further it is not that the requirement of passing
STET/HTET and B.Ed. is waived for all times to come. In the relaxation
which is given, it is specifically provided that those Teachers who are
selected for appointment on regular basis will have to pass STET/HTET
and B.Ed. by 1.4.2015, failing which their appointment shall stand
terminated automatically without giving any further notice.
24. Based on the aforesaid provision contained in the rules,
advertisement was issued on 6.6.2012 whereby approximately 14,000
posts of PGT Teachers in different subjects have been advertised. After
issuance of the aforesaid advertisement, a notification was again issued
dated 2.7.2012 whereby the Rules of 2012 were amended by inserting a
transitional provision under Rule 19-A whereby it is provided that the
candidates whosoever were qualified under the Rules of 1998 shall also be
eligible for recruitment as one time measure and they will have to qualify
HTET and B.Ed. by 1.4.2015 and if they fail to do so, the appointments
shall stand terminated automatically. Further, Note (i) of Appendix ‘B’ of
Rules of 2012 is also substituted by saying that in case of direct
recruitment, the teachers working in the privately managed Government
aided, recognized and Government schools are exempted from having
qualifications of HTET/STET and B.Ed. if they have worked as a teacher for
a minimum period of 4 years on the date of enforcement of these Rules.
25. There was some misgiving that the exemption from acquiring
the qualification of STET/HTET and B.Ed. is granted for all times to come. CWP-15929-2012 - 43 -
However, when the counsel for the petitioners were informed that this
Court has already taken view in its decision dated 30.11.2012 in Civil
Writ Petition No.21611 of 2012, entitled Vijayjianti Jakhar vs.
Haryana School Teachers Selection Board that the requirement of
acquiring these qualifications by 1.4.2015 stands, Mr.Anupam Gupta,
learned senior counsel for the petitioners and other counsel accepted this
position. We quote the following extract which makes the stand of the
Government very explicit:-
“Leaned counsel for the State, on the other hand, submits that
this benefit can be extended to only those candidates who fulfill
the requirement contained in para C(i) as well i.e. only those
candidates who have worked as teachers for a minimum four years
till 11.4.2012 and are in service as on that date. The question that
arises for consideration, in these circumstances, is “whether the
eligibility conditions mentioned in paras C(i) and C(ii) on the one
hand and transitional provision on the one hand are mutually
exclusive or a candidate is required to fulfill all the eligibility
conditions?” After the aforesaid corrigendum issued on 3.12.2012,
within two days thereof, interpretation to this provision was issued
by the Board by public notice given on 5.7.2012, which reads as
under:
“Interpretation Transitional Provision – Corrigendum, dated
3.7.2012 Reference corrigendum dated 3.7.2012, the
transitional provision at para 4 of HSTSB corrigendum
3.7.2012 appears to be interpreted in isolation by some
applicants. The Haryana State Lecturer School Cadre
(Group-C) Services Rules, 1998 eligibility is applicable
provided applicants meet the eligibility conditions given
under heading “common to all posts” at point (a), (b), (c) (i)
and (c) (ii). The point (d) is still applicable and is now
modified for applicants under above referred Service Rules,
1998 and gives relief in Essential Qualifications (E.Q.),
subject combination, B.Ed. and Post Graduate Degree
which have been specified under relevant category of PGT
Mathematics, Biology, Political Science and History under
para 4 of the corrigendum.”
It is clear from the above that the transitional provision contained
in para No.4 is not to be read in isolation. The clear intention is to
give the relaxation only to those candidates who fulfill eligibility
conditions given under heading “COMMON TO ALL POSTS” at
points (a), (b), (c) (i) and (c) (ii) and (d). Thus, the petitioner could
claim the benefit only if she was teaching and had completed four
years of teaching as on 11.4.2012. Since, this is not the conditionCWP-15929-2012 - 44 -
fulfilled by the petitioner and she is not having the qualification of
HTET/STET, we are of the view that she does not fulfill the
eligibility conditions as per the advertisement and therefore, her
candidature was rightly rejected.”
The only question which needs determination is as to whether there could
be relaxation of this condition of not.
26. It is this aspect which we proceed to answer in the following
paragraphs:
27. Let us first discuss the circumstances under which GFTs came
to be appointed. It was a common case of the parties that in the year
2005, the respondent-State was faced with a situation where there was
acute shortage of Teachers in the schools. In order to ensure that the
education of the students does not suffer because of the shortage, a short
time measure/strategy was formulated by deciding to make appointment
of Guest Teachers. As per the Government, it was a sincere effort to
ensure quality and uninterrupted study of the students in the Government
schools. For this purpose, all the Heads of the institutions (Principals/Head
Masters) were directed to assess the shortfall of Teachers in their
respective schools keeping in view the sanctioned posts and strength of
students and, wherever required, to engage the teachers on guest faculty
basis as per their need on ‘period’ basis, on a fixed remuneration.
Instructions dated 29.11.2005, in this behalf, provided that if there is
requirement of Teachers on the basis of vacancies and workload, the
Principal/Head Master/DDO will display requirement on a board at the
main gate of the institution. It was also provided that these GFTs shall be
engaged in a particular school of the same village/town and if teachers
from the same village/town are not available, then the candidates
belonging to same block/district would be considered. These instructions
also provided that as and when a regular appointee is posted to that CWP-15929-2012 - 45 -
school, the head of the institution will dispense with the services of the
GFT of that category of post. It was not opposed. No doubt, the
appointment of GFTs was for a specific period, i.e., up to 31.3.2006.
However, as already noted, the GFTs continued even after 31.3.2006.
First direction to this effect was passed by the Division Bench in Balraj
Singh’s case (supra) on 20.3.2006, permitting them to continue till
regular recruitments are made, though, at the same time, it was very
categorically held that they were not entitled for regularisation nor even
the regular pay scale. For whatever reasons, the regular appointments
could not be made and these GFTs continued. No doubt, in the meantime,
their attempt for regularisation failed again, as writ petition titled as
Baldev Singh and others vs. State o f Haryana and others, CWP-387-
2007, was dismissed vide order dated 30.8.2007.
28. The Government thereafter issued instructions dated
2.12.2008 stipulating guidelines for temporary adjustment of displaced
Guest Teachers and also issued instructions on 2.3.2009 whereby terms
and conditions of these GFTs were ordered to be changed as contractual
employees. It was also decided that these GFTs would be given
exemption from passing STET and would be accorded age relaxation of
upper age limit at the time of selection and they would be provided
additional weightage for being GFTs by giving up to 24 marks for
teaching. These instructions dated 2.3.2009 were struck down in Ashok
Kumar’s case (supra) by the Division Bench of this Court vide judgment
dated 6.4.2010 which was upheld by the Supreme Court in Mohinder
Kumar (supra). We have already extracted the relevant portion of the
judgment in Ashok Kumar (supra) from which it is clear that the Court
decided against the weightage of giving marks up to 24 marks towardsCWP-15929-2012 - 46 -
experience gained as Guest Faculty Teacher which was sought to be given
to these GFTs, as giving of weightage of so many marks would have the
effect of appointment of GFTs only in regular service which would have
amounted to grave discrimination to the other more deserving candidates.
Insofar as exemption from passing STET is concerned, the Court held it to
be impermissible because exemption as per rules could be given only for
valid reasons and no such reasons were recorded while giving exemption.
29. It is in this backdrop we have to examine the validity of
Rules, 2012. There is no provision for giving any weightage/marks for
teaching as GFTs or teaching experience. It is also not a case of
exercising power of relaxation. Instead insofar as age relaxation is
concerned, no such provision is made. Insofar as relaxation of condition of
passing STET and B.Ed. is concerned, now the Rules of 2012, which are
statutory in nature, itself provide for the same. Therefore, first question
that arises for consideration is validity of Note(i) of Appendix ‘B' in the
rules itself which provides for such relaxation.
30. These rules are framed under the proviso to Article 309 of
the Constitution. The character of such rules is explained by the Supreme
Court in the case of B.S. Vadera vs. Union of India, AIR 1969 SC
118, to be that of equivalent to a legislation/statute. Following
discussion, in this behalf, is worthy of a quote:
“24. It is also significant to note that the proviso to Article
309, clearly lays down that 'any rules so made shall have
effect, subject to the provisions of any such Act'. The clear
and unambiguous expressions, used in the Constitution, must
be given their full and unrestricted meaning unless hedged-in,
by any limitations. The rules, which have to be 'subject to the
provisions of the Constitution shall have effect, 'subject to the
provisions of any such Act'. That is, if the appropriate
Legislature has passed an Act, under Article 309, the rules,
framed under the Proviso, will have effect, subject to that Act; CWP-15929-2012 - 47 -
but, in the absence of any Act, of the appropriate Legislature,
on the matter, in our opinion, the rules, made by the President
or by such person as he may direct, are to have effect, both
prospectively and retrospectively. Apart from the limitations,
pointed out above, there is none other imposed by the proviso
to Article 309, regarding the ambit of the, operations of such
rules. In other words the rules, unless they can be impeached
on grounds such as breach of Part III, or any other
Constitutional provision, must be enforced, if made by the
appropriate authority.”
The same view was reiterated in the Constitutional Bench judgment of the
Supreme Court in B.S. Yadav and others vs. State of Haryana and
others, AIR 1981 SC 561 in the following manner:-
“44. It is in this context that the proviso to Art. 309
assumes relevance and importance. The State legislature has
the power to pass laws regulating the recruitment and
conditions of service of judicial officers of the State. But it
was necessary to make a suitable provision enabling the
exercise of that power until the passing of the law by the
legislature on that subject. The Constitution furnishes by its
provisions ample evidence that it abhors a vacuum. It has
therefore made provisions to deal with situations which arise
on account of the ultimate repository of a power not
exercising that power. The proviso to Art. 309 provides, in so
far as material, that until the State legislature passes a law on
the particular subject, it shall be competent to the Governor of
the State to make rules regulating the recruitment and the
conditions of service of the judicial officers of the State. The
Governor thus steps in when the legislature does not act. The
power exercised by the Governor under the proviso is thus a
power which the legislature is competent to exercise but has
in fact not yet exercised. It partakes of the characteristics of
the legislative, not executive, power. It is legislative power.
45. That the Governor possesses legislative power under our
Constitution is incontrovertible and, therefore, there is
nothing unique about the Governor's power under the proviso
to Article 309 being in the nature of a legislative power. …..”
It is clear from the above that the rules framed under proviso to Article
309 are not only having statutory character, such rules are given the
character of legislation itself. Once this position is accepted, the plea that
the introduction of the aforesaid Note is mala fide, cannot be entertained, CWP-15929-2012 - 48 -
as a statute cannot be questioned on the ground of mala fides. Law, in
this behalf, is well grounded by series of judgments of the Supreme
Court. It would be suffice to refer to recent judgment of the Supreme
Court in State of Tamil Nadu and others vs. K. Shyam Sunder and
others, JT 2011 (9) SC 166, wherein the apex court observed as
under:-
“22. It has consistently been held by this Court that the
doctrine of malafide does not involve any question of bonafide
or malafide on the part of legislature as in such a case the
Court is concerned to a limited issue of competence of the
particular legislature to enact a particular law. If the legislature
is competent to pass a particular enactment, the motives
which impelled it to an act are really irrelevant.
xx xx xx xx
22.1 Motive of the legislature while enacting a Statute is
inconsequential: “Malice or motive is beside the point, and it is
not permissible to suggest parliamentary incompetence on the
score of mala fides.”
31. The State has also sought to provide justification for giving
one time relaxation. In the first place, as already noted above, this
relaxation is not permanent. It is not only given to GFTs but other
teachers as well who have been teaching in the Government schools and
recognized private schools as well, if they have teaching experience of
four years as on 11.4.2012. Furthermore, if any of these teachers is
appointed, he/she is required to acquire these qualifications by Ist April,
2015.
32. Thus, by this provision, they are only made eligible to be
considered for the post. Justification for having this provision, as pointed
out by Mr.Rana, learned Additional Advocate General, was that GFTs or
the other Teachers, at the time of their initial appointment, were fulfilling
all the requisite eligibility conditions. At that time, there was no CWP-15929-2012 - 49 -
requirement of having passed the STET/HTET which was introduced only
in the year 2008. Same was the position as far as qualification of B.Ed. is
concerned. To sum up, the following aspects need to be noted:
(a) At the time of their initial appointment as GFTs, they
were fulfilling eligibility conditions for appointment as
PGT Teachers;
(b) The provision for relaxation is made permitting them to
acquire these qualifications by Ist April, 2015 in order
to give them time to acquire these qualifications, as
these eligibility conditions are introduced in the year
2008 and 2012, respectively;
(c) No age relaxation is given. Further, no weightage for
teaching experience, at the time of selection, is given
as was sought to be done earlier.
(d) They are only made eligible to be considered on their
own merits along with other candidates. Further, it is
not only GFTs but all other teachers of the Govt.
schools and private recognised schools which are
accorded same treatment.
(e) It was argued by Mr.Rana as well as Mr. Chatrath that
having regard to their teaching experience such an
exemption is permissible and recognized by the Courts.
(see, State of Kerala vs. N.M. Thomas, AIR 1976
SC 490).
33. The Courts have held that when there is a power to relax a
particular provision, the Government can exercise such a power to
mitigate undue hardship in any particular case and to deal with a case in a
just and equitable manner. [See, J.C. Yadav vs. State of Haryana,
AIR 1990 SC 857 and K.K. Khosla and another vs. State of
Haryana and others, AIR 1990 SC 1069]. In the present case, the
question of even exercising such a power does not arise as the provision
is made in the rules itself which are legislative in nature. Thus, it is a
policy decision which is given statutory shape. CWP-15929-2012 - 50 -
34. Once we consider the matter in the aforesaid hue, the
argument that the Government has treated equals and unequals at par
also fails. It hardly needs reiteration that these GFTs or other teachers
from Government schools/recognized schools, who have four years
experience, are only made eligible for consideration. In the selection
process, these GFTs, etc. are to be considered on their own merits along
with others and in the selection process, it is only merit which is to prevail
with no weightage for their teaching experience. The selection committee
cannot give them any preference or favourable treatment. If that is done,
selection can always be questioned and challenged.
35. Once we hold that the aforesaid provision in Note(i) in
Appendix ‘B’ in the rules is valid in law and does not suffer from any legal
infirmity, then the effect thereof is that these GFTs and other Teachers
with four years experience also become eligible. Merely because it would
result in short-listing of candidates, as number of applicants is expected to
rise very high, that by itself would not mean that these GFTs are to be
treated as ineligible. It is trite that if the number of applications are huge,
eligibility bar can be raised to short-list the candidates.
36. We also accept that the passing of HTET/STET has some
rationale as emphasised by NCTE as well. The fact remains, however, that
this was not the qualification earlier when these GFTs started teaching.
Further, they have been teaching all this while and even at present.
Therefore, merely because they are allowed some time to pass this STET,
that is, by Ist April, 2015, having regard to their teaching experience, that
by itself would not result in denying them consideration at this stage.CWP-15929-2012 - 51 -
37. In view of the aforesaid discussion, we reject the argument of
the petitioners that Note(i) in Appendix ‘B’ to Rules, 2012, is illegal or
unconstitutional.
38. One aspect raised in some of the writ petitions remains to be
discussed, viz., some of such GFTs and other Teachers, who have four
years experience but were not in service as on 11.4.2012 have been
excluded from consideration. Insofar as Note(i) in the Rules of 2012 is
concerned, it does not contain any stipulation that such Teachers are to
be in service as on the date of enforcement of the rules, i.e., 11.4.2012.
The exemption is given “if they have worked as Teachers for the
minimum period of four years on the date of enforcement of these rules”.
That means, they should have worked for a period of four years and this
four years period is to be reckoned by taking cut off date as 11.4.2012.
However, in the advertisement, such a condition, namely, Teacher should
be working also as on 11.4.2012, is provided. We do not see any rationale
or justification in prescribing this condition. Once we accept the argument
of the Government itself that because of experience of four years
provision is made in the rules giving them exemption, such benefit needs
to be extended to all those who have requisite four years experience
whether they were working on 11.4.2012 or not. It is more so when
Rules of 2012 do not prescribe any such condition and laying down same
in the advertisement is contrary to the rules.
39. We, thus, hold that all those who have working experience as
Teacher for a minimum period of four years on the date of enforcement of
rules i.e. 11.4.2012, would be entitled to be considered for the posts in
question whether they were in fact in service as on 11.4.2012 or not. CWP-15929-2012 - 52 -
Writ petitions of such Teachers are, accordingly, allowed. As a result, LPA
No.1715 of 2012 is also allowed. Other writ petitions stand dismissed.
There shall be no order as to costs.
( A.K. SIKRI )
CHIEF JUSTICE
December 21, 2012 (RAKESH KUMAR JAIN)
pc JUDGE
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