Tuesday, September 18, 2012



ITEM NO.55                 COURT NO.6               SECTION IVB

              S U P R E M E   C O U R T   O F    I N D I A
                           RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Civil) No(s).29755/2010

(From the judgement and order           dated 06/04/2010 in CWP

MAHENDER KUMAR & ORS.                                 Petitioner(s)
STATE OF HARYANA & ORS.                               Respondent(s)

(With prayer for interim relief and office report)
WITH SLP(C) NO. 24882 of 2010
(With appln.(s) for intervention and permission to file rejoinder affidavit and with prayer for interim relief and office report)
I.A.No.1162 (Appln.for intervention)
SLP(C) NO. 24884 of 2010
(With appln.(s) for deletion of the name of petitioner and office
SLP(C) NO. 24883 of 2010
(With office report)
SLP(C) NO. 25010 of 2010
(With office report)

Date: 21/02/2012    These Petitions were called on for hearing today.


For Petitioner(s)      Mr.Shish Pal Laler, Adv.
                       Mr.N.P.Midha, Adv.
                       Mr. Balbir Singh Gupta,A.O.R.(Not Present)

For Respondent(s)      Mr.P.P.Rao,Sr.Adv.
For RR Nos.1 & 3       Dr. Monika Gusain,Adv.
                       Mr.Hari Om Yaduvanshi, Adv.

For RR No.4            Mr.D.S.Chauhan, Adv.
                       Mr.Rajinder Juneja, Adv.

For RR No.2            Mr. John Mathew,Adv.

                       Mr. Kamal Mohan Gupta,Adv.

             UPON hearing counsel the Court made the following
                                 O R D E R

           The IA No. 38 for deleting the name of petitoner no. 2852, i.e., Chaman S/o Dharamvir in SLP(C) No. 24884 of 2010 is allowed in terms of the prayer.

           These   petitions are directed  against  order  dated 06.04.2010 passed by the Division Bench of the Punjab and Haryana High   Court    whereby    the     exemption        granted    to   the   Guest      Faculty (Lecturers     /     Teachers)    from     passing      the    requirement   of    School Teachers Eligibility Test (for short, 'STET') for the purpose of regular appointment to Group 'B' posts and the grant of weightage of 24 marks in lieu of the experience gained by working as Guest Faculty was quashed.

With a view to ensure that the education of students does not suffer due to non-availability of teachers the Government of Haryana, Department of Education framed policy for recruitment of Guest Faculty. For this purpose detailed guidelines were issued on 18.9.2006. After one year and two months, the State Government
issued   instructions vide circular dated 17.11.2007    to    all    the concerned officers to stop engaging Teachers on the Guest Faculty basis. On 2.12.2008, the Government issued guidelines for temporary
adjustment      of    displaced     Guest          Teachers    by   way    of    stop    gap arrangement.         By circular dated 2.3.2009, the Government amended the terms and conditions enshrined in letters dated 29.11.2005,16.12.2005      and    27.9.2006     for       engaging       the   Teachers     on     Guest
 In      furtherance      of    the       requisition     received     from     the concerned department, the Haryana Public Service Commission (for short,   'the     Commission')   issued      advertisement     no.     3    which   was published    in    newspapers    on    18.6.2009      for   recruitment      of     1317 Temporary Lecturers (School Cadre), HES-II (Group-B) were as under:

 "Essential Qualification:
    1.Essential Qualifications for the Lecturers of all     Subjects except Lecturer in Chemistry, History, Maths
    and Pol. Science:
    (i)Post Graduate Degree in relevant subject from  a recognized university alongwith at least 50% marks.
    (ii)Certificate of having qualified School Teacher's Eligibility Test.
    (iii)Matric with Hindi / Sanskrit."
The relaxation clauses contained in the advertisement did not provide for exemption to any class / category of candidates from passing STET. However, after 15 days of the publication of advertisement,      the   Commission    issued     corrigendum       dated   3.7.2009 incorporating therein the decision taken by the State Government to give exemption to the Guest Teachers from passing STET and age relaxation apart from giving additional 6 marks for six months' experience      subject   to   the    maximum    of   24    marks.    The    relevant portions of the corrigendum are reproduced below:

"Besides as per the decision of the State Government    the guest teachers applying for these posts will be
 given exemption from passing the School Teachers Eligibility Test (STET) and age relaxation in the upper
 age limit in additional weightage for having served the department as guest teacher will be given as under:
 "No weightage will given to a person who  has served for less than six months.
For the six months experience 6% additional marks to be given and one percent additional will be given for every  additional month of engagement subject to maximum  24 marks."

Necessary Stipulation:
In case the Hon'ble Punjab and Haryana High Court does not agree to the grant of relaxation to the guest teachers, the same will not be given to them at the time of final selection."

 Respondent       no.   2,    viz., Ashok    Kumar     challenged   the corrigendum in Writ Petition No. 13045 of 2009 mainly on the ground that the so-called policy decision taken by the State Government to
exempt the Teachers engaged as Guest Faculty from passing STET and grant    of    weightage        of   additional       marks    is      ultra    vires     the provisions of the Haryana State Educational Lecturer School Cadre (Group    'C')     Service      Rules,    1998   (for    short,     'the       Rules')    and Articles 14 and 16 of the Constitution because that would amount to indirect regularisation of the services of the Teachers who were engaged as the Guest Faculty.

In    the   counter   filed   by    the     State     Government       the exemption granted to the Guest Faculty from clearing the STET was justified on the premise that such test had not been conducted in 
the State for many years. The grant of weightage of additional marks was also defended on the premise that the members of the Guest Faculty had acquired sufficient experience by working as Lecturers / Teachers.

 The Division Bench of the High Court referred to the policy   framed      by   the    State    Government     to    recruitment to    Guest Faculty, the relevant provisions of the Rules, the orders passed in Writ    Petition     Nos.    2743/2006,      387/2007        and   5289/2007      filed    byTeachers appointed as the Guest Faculty and 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 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."

We   have   heard   Shri   Shish   Pal   Laler,   learned   counsel appearing for the petitioners, Shri P.P.Rao, learned senior counsel appearing for the State, learned counsel for the Commission and learned counsel for respondent no. 4 and scrutinised the record.
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.

In the result, the special leave petitions are dismissed.
As a sequel to dismissal of the special leave petitions,

all    other     pending   I.As.      are       disposed    of   as    having     become infructuous.

      (Satish K.Yadav)                                       (Phoolan Wati Arora)
        Court Master                                            Court Master

Source : http://courtnic.nic.in/supremecourt/temp/sc%202975510p.txt

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