Dismissed

Duni Chand v. State of Hp and Others

Himachal Pradesh HC14 May 2024LPA/115/2022

Case brief

AI extract

What is this about?

Appeal by a former PTA-appointed TGT seeking re-engagement and grant-in-aid after the writ court dismissed his petition. The Division Bench upheld the finding that his 2014 re-engagement by the SDM without open recruitment was illegal, found no parity with comparable cases, dismissed the appeal, and urged the State to stop backdoor appointments.

What the court decided

AI extract

Duni Chand Vs State of Hp and Others — Education and Admissions | Himachal Pradesh HC (2024)

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IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

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LPA No. 115/2022 Reserved on: 6.5.2024

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Decided on: 14.5.2024

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Duni Chand …..Appellant Versus State of H.P. & ors. ….Respondents [ Coram: The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge . The Hon’ble Mr. Justice Sushil Kukreja, Judge. Whether approved for reporting?¹ Yes For the appellant: Mr. Naresh Kumar Verma, Advocate. For the respondents: Mr. Yash W. Chauhan and Mr. I. N. Mehta, Sr. Addl. A.Gs., Mr. Ramakant Sharma, Mr. Navlesh Verma, Ms. Sharmila Patial, Addl. A.Gs., and Mr. Raj Negi, Dy.A.G. for respondents No. 1 to 3 and 5. Respondent No.4 already ex-parte.

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Justice Tarlok Singh Chauhan

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The appellant is the writ petitioner, who aggrieved by

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the dismissal of the writ petition has filed the instant appeal.

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The parties shall be referred to as they were before the learned writ court.

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2 The petitioner was initially engaged by the local PTA vide resolution dated 03.05.2005 against the post of TGT (NonMedical) on fixed honorarium of Rs.1500/- per month at Government Senior Secondary School, Dharwar Thach, District

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1 Whether reporters of the local papers may be allowed to see the judgment? Yes.

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Mandi. He served as such till 07.06.2006 when his services were disengaged on joining of a regular teacher in the school. 3 Subsequently, in the year 2014, vacancy accrued in the said school and the petitioner made a representation for his being appointed against the post so vacated and the Sub Divisional Magistrate concerned passed an order to re-engage the petitioner in the School. However, later on his services again came to be terminated on 27.1.2015 constraining him to file CWP No.1554 of 2015 before this Court. This petition was later on transferred to the erstwhile Tribunal and registered as T.A. No.6111/2015, and decided vide order dated 15.03.2016 by observing that as the petitioner had claimed parity with one Kanwar Singh, whose petition, i.e., CWP No.9963/2014, stood decided by this Court, vide order dated 17.06.2015, therefore, his case be examined in light of the judgment of this Court passed in Kanwar Singh’s case (supra), and if found similarly situate, then similar treatment be extended to the petitioner. However, the case of the petitioner came to be rejected by the Competent Authority, vide order dated October, 2016 constraining him to once again file O.A. No.5998/2016, which was disposed of by the learned erstwhile Tribunal on the request of the present petitioner vide order dated 25.09.2018.

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This time again the petitioner pleaded that he was similarly situate as the petitioner in CWP No.11731 of 2011, titled as

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Pushpender Kumar Versus State of Himachal Pradesh and

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others , therefore, subject to verification and on finding the petitioner to be similarly situated as Pushpender Kumar, the erstwhile Tribunal directed that similar treatment be extended to the petitioner also.

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4 The Competent Authority again rejected the claim of the petitioner, vide order dated 23.7.2019 and feeling aggrieved, the petitioner filed CWP No. 2771/2019 for grant of following reliefs:-

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“i. that the office orders dated 23^rd July 2019 Annexure P- 12 may kindly be quashed and set aside and the respondents may very kindly be directed to re-engage the applicant in Govt. Senior Secondary School Dharwar Thach as TGT Non-medical with immediate effect.

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ii. that the respondents may be directed to release the “grant in aid” admissible to the petitioner from initial date of engagement till date.”

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5 As observed above, the learned writ court dismissed

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the writ petition constraining the petitioner to file the instant appeal.

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6 We have heard the learned counsel for the parties and have also gone through the material placed on record.

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7 At the outset, it needs to be noticed that these

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repeated petitions on behalf of the petitioner were in fact not maintainable. This is evident from the fact that the petitioner was initially appointed in the year 2005 by the Local PTA as TGT (Non-Medical), on the fixed monthly honorarium of Rs.1500/- and then his services were dispensed with when a regular teacher joined on 7.6.2006. Thereafter vacancy had arisen in the year 2014, for which the petitioner had applied before the SDM concerned, who had no authority whatsoever to order reengagement of the petitioner on the said post that too after 8 years of earlier appointment having come to an end. The SDM concerned was required to follow the law by giving firstly wide publicity to the vacancy so accrued and thereafter calling for applications from the eligible persons.

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8 Clearly, appointment of the petitioner in the year 2014 was illegal as rightly held by the learned writ court also. Once that be so, the petitioner had no right whatsoever to seek reappointment only because he had served the school in question for a brief period in the year 2005-2006 and had been reappointed illegally by the S.D.M. concerned in the year 2014. This is what has been held not only by the competent authority but by the learned writ court.

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9 Notably, in the previous proceedings, the petitioner

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pleaded before the erstwhile Tribunal that he was similarly situated to one Pushpender Kumar and his petition was accordingly disposed of, however the competent authority in its order after assigning various reasons had come to the conclusion that the petitioner in fact was not similarly situated as Pushpender Kumar. The competent authority had held that services of Pushpender Kumar were terminated on the basis of findings returned by the Inquiry Committee and therefore, in terms of the communication of Government of Himachal Pradesh, dated 25.8.2014, he was required to be reappointed, whereas this was not the case of the petitioner herein, whose services as observed above, were terminated by the competent authority as the petitioner was not similarly situated to Pushpender Kumar on joining regular teacher.

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10 Thus, there is no infirmity or for that matter, illegality in the findings returned by the competent authority so as to warrant for any interference by the learned writ court. Thus, in such circumstances, the learned writ court has rightly dismissed the petition.

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11 However, before parting we too share the concern expressed by the learned writ court, whereby it has adversely

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commented upon the practice of the Education Department in making stop gap arrangements that too by resorting to backdoor tactics in para 11 of the impugned judgment, which reads as under:-

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“11. Before parting, this Court intends to make a small observation with regard to the stop-gap arrangements, which are being resorted to by the Education Department in various Schools in the State of Himachal Pradesh, in the matter of appointment etc. of teachers. A teacher has to be appointed to a School, be it a teacher imparting education to the child, who has taken his first step in the School or be it a teacher, who has to impart education to the students of 10+2 level, strictly as per Recruitment and Promotion Rules, which are in vogue and which have been so framed by the Governor of Himachal Pradesh by exercising powers vested by virtue of proviso to Article 309 of the Constitution of India, yet, the Rules are not being adhered to in letter and spirit and in the garb of exigency of service, backdoor entries are being allowed under various nomenclature. Least to say that this is deprecable practice. Constitution of India confers upon all Citizens of India, a right to be considered for appointment against the post provided the candidate fulfils the eligibility criteria. By resorting to the backdoor tactics, not only favoritism is being encouraged, merit is being discouraged and sacrificed. Despite various decisions having been passed by this Court impressing upon the State that teaching posts should be filled up strictly in accordance with the Recruitment and Promotion Rules, still the same is not being done. This Court again

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impresses upon the State Government to ensure in the larger interest of the Society at large in general and students in particular that adhocism should not be resorted to and the posts of teacher in Schools should be strictly filled up as per Recruitment and Promotion Rules, so that merit prevails.”

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12 It is universally accepted that in the modern society, education is perhaps the most important tool for betterment and progress of a person, class or the society as a whole. Without formal education a child will always struggle to face the harsher realities in later stage of the life.

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13 “Mata shatru pita bairi, yena balo na pathita. Na shobhate sabha madhye hans madhye bako yatha.”

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14 This is a Sanskrit saying espousing the importance of education. It means that “Parents who do not educate their children are their children’s enemies. Such children look as awkward in any gathering, as a Stork

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amongst dainty Swans.”

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15 Education occupies an important and sacred place in our Constitution and culture. It is a tool for betterment of civil institutions, protection of our civil liberties and path to an informed and questioning citizenry.

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16 As far back as in the year 1954, Chief Justice Earl Warren of the U.S. Supreme Court stressed upon the importance of education in Brown Vs. School Board of Topeka, 34 U.S. 483 (1954) :-

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“Education is perhaps the most important function of State and local governments….. It is the very foundation of good citizenship. Today, it (education) is the principal instrument in awakening the child to cultural values, in preparing him for later professional training and in helping him to adjust normally to his environment. In these days, it is doubtful any child may reasonably be expected to succeed in life, if he is denied the opportunity of education.”

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17 It is to be borne in mind that the teachers occupy a very pivotal position in our society. They are shaping the future of our children. Teachers are instrumental in moulding the character of students, and would be of immense help to students to unearth their hidden talents. Such being the importance of teachers, the trainees must be given qualitative training and the Training Institutes should possess all the required facilities including well qualified and trained staff.

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18 In Bandhua Mukti Morcha vrs. Union of India

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and others, (1984) 3 SCC 161 , the Hon'ble Supreme Court observed as under:

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"10. ................. It is the fundamental right of everyone in this country, assured under the interpretation given to Article 21 by this Court in Francis Mullin's case [(1981) 1 SCC 608], to live with human dignity, free from exploitation. This right to live with human dignity enshrined in Article 21 derives its life breath from the Directive Principles of State Policy and particularly clauses (e) and (f) of Article 39 and Articles 41 and 42 and at the least, therefore, it must include protection of the health and strength of workers, men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just and humane conditions of work and maternity relief. These are the minimum requirements which must exist in order to enable a person to live with human dignity and no State-neither the Central Government nor any State Government-has the right to take any action which will deprive a person of the enjoyment of these basic essentials."

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19 In Osmania University Teachers’ Association Vs.

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State of Andhra Pradesh, (1987) 4 SCC 671 , it was held that democracy depends for its very life on a high standard of general, vocational and professional education. Dissemination of learning with search for new knowledge with discipline all round must be maintained at all costs.

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20 In Andhra Kesari Education Society v. Director

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of School Education and Ors, AIR 1989, SC 183 , the Hon’ble

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Supreme Court recognized the importance of education for B.Ed., pointing out that, as those persons have to handle tiny tods, therefore, Teacher alone could bring out their skills and intellectual activities. He is the engine of the educational system. He is a superb instrument in awakening the children to cultural values. He must possess potentiality to deliver enlightened service to the society. His quality should be such as could inspire and motivate into action to the benefiter. He must keep himself abreast of ever-changing communities. He is not to perform in wooden and unimaginative way; he must eliminate unwarranted tendencies and attitudes and infuse noveliar and national ideas in younger generation; and his involvement in national integration is more important; indeed, indispensable.

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21 In Ram Sukh and others vs. State of Rajasthan

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and others, 1990 SC 592 , the Hon’ble Supreme Court did not permit the untrained Teachers to teach the children, observing that they require proper handling by well-trained Teachers.

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22 In Bandhua Mukti Morcha vrs. Union of India and others, (1997) 10 SCC 549 the Hon'ble Supreme Court highlighted the importance of child development in following terms:

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"4. The child of today cannot develop to be a responsible and productive member of tomorrow‟s society unless an

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environment which is conducive to his social and physical health is assured to him. Every nation, developed or developing, links its future with the status of the child. Childhood holds the potential and also sets the limit to the future development of the society. Children are the greatest gift to humanity. Mankind has the best hold of itself. The parents themselves live for them. They embody the joy of life in them and in the innocence relieving the fatigue and drudgery in their struggle of daily life. Parents regain peace and happiness in the company of the children. The children signify eternal optimism in the human being and always provide the potential for human development. If the children are better equipped with a broader human output, the society will feel happy with them. Neglecting the children means loss to the society as a whole. If children are deprived of their childhood -- socially, economically, physically and mentally -- the nation gets deprived of the potential human resources for social progress, economic empowerment and peace and order, the social stability and good citizenry. The Founding Fathers of the Constitution, therefore, have emphasised the importance of the role of the child and the need of its best development. Dr Bhimrao Ambedkar, who was far ahead of his time in his wisdom projected these rights in the Directive Principles including the children as beneficiaries. Their deprivation has deleterious effect on the efficacy of the democracy and the rule of law."

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23 In Dental Council of India v. Subharti K.K.B.

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Charitable Trust (2001) 5 SCC 486 , the Supreme Court

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expressed its deep concern over the emergence of education

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shops without adhering to the norms. It was held:

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“12. At present, there is tremendous change in social values and environment. Some persons consider nothing wrong in commercializing education. Still however, private institutions cannot be permitted to have educational shops in the country.

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Therefore, there are statutory prohibitions for establishing and administering educational institution without prior permission or approval by the authority concerned. On occasions, the authorities concerned, for various reasons, fail to discharge their function in accordance with the statutory provisions, rules and regulations. In some cases, because of the zeal to establish such educational institution by persons having means to do so, approach the authorities, but because of red tapism or for extraneous reasons, such permissions are not granted or are delayed. As against this, it has been pointed out that instead of charitable institutions, persons having means, considering the demands of the market rush for establishing technical educational institutions including medical college or dental college as a commercial venture with the sole object of earning profits and/or for some other purpose. Such institutions fail to observe the norms prescribed under the Act or the Regulations and exploit the situation because of the ever-increasing demand for such institutions.

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It is equality true that unless there are proper educational facilities in the society, it would be difficult to meet with the requirements of younger generation who have keen desire to acquire knowledge and education to

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compete in the global market…..Since ages our culture and civilization have recognized that education is one of the pious obligation of the Society…. It is for us to preserve that rich heritage of our culture of transcending the education continuously unpolluted.”

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24 Education is an investment made by the nation in its children for harvesting future crop of responsible adults productive of a well-functioning society (Refer Rohit Singhal

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Vs. Jawahar Navodya Vidyalaya, (2003) 1 SCC 687) .

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25 In Rohit Singhal’s case (supra), the Hon’ble Supreme Court expressed its great concern regarding children education, observing that “Children are not only the future citizens but also the future of the earth. Elders in general, and parents and teachers in particular, owe a responsibility for taking care of the wellbeing and welfare of the children. The world shall be a better or worse place to live according to how we treat the children today. Education is an investment made by the nation in its children for harvesting a future crop of responsible adults productive of a well functioning Society. However, children are vulnerable. They need to be valued, nurtured, caressed and protected.”

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26 In Manager, Nirmala Senior Secondary School v.

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N. I. Khan, (2003) 12 SCC 84 , the Supreme Court indicated the role of teachers thus:-

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“A teacher affects eternity. He can never tell where his influence stops; said Henry Adam. Any educational institution for its growth and acceptability to a large measure depends upon the quality of teachers. 2. Educational institutions are temples of learning. The virtues of human intelligence are mastered and harmonized by education. Where there is complete harmony between the teacher and the taught, where the teacher imparts and the student receives, where there is complete dedication of the teacher and the taught in learning, where there is discipline between the teacher and the taught, where both are worshippers of learning, no discord or challenge will arise. An educational institution runs smoothly when the teacher and the taught are engaged in the common ideal of pursuit of knowledge. It is, therefore, manifest that the appointment of teachers is an important part in educational institutions. The qualifications and the character of the teachers are really important.”

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27 The Hon'ble Supreme Court in a Constitution Bench

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judgment in Ashoka Kumar Thakur vrs. Union of India and

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others, (2008) 6 SCC 1 was examining the validity of reservation of seats in State- aided educational institutions in favour of students of other backward classes. In this context, Bhandari, J emphasized the importance of education at primary and secondary level in following terms:

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"578. To rid ourselves of reservation and its unintended consequences like casteism, we must focus our efforts on

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strengthening education at the primary and secondary level. Only then will we achieve the casteless/classless society the original Framers envisaged. And only then will there be reason to scrap reservation altogether. In his speeches to Parliament regarding Article 15(4), Prime Minister Nehru could not have been clearer: "After all the whole purpose of the Constitution, as proclaimed in the directive principles is to move towards what I may say a casteless and classless society" ... and in an attempt to achieve an egalitarian society, "... we want to put an end to all those infinite divisions that have arisen in our social life; I am referring to the caste system and other religious divisions, call them by whatever name you like". (emphasis added) (Parliamentary Debates on 13-6-1951 and 29-5-1951 respectively.)"

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28 In State of Orissa Vs. Mamata Mohanty (2011) 3

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SCC 436 , the Hon’ble Supreme Court emphasized the importance of education by observing that education connotes the whole course of scholastic instruction which a person has received. Education connotes the process of training and developing the knowledge, skill, mind and character of students by formal schooling.

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29 In State of Tamilnadu and others Vs. K. Shyam

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Sunder and others, (2011) 8 SCC 737 , the Hon’ble Supreme Court explained the importance of education in the following

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terms:-

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“18. In the post - Constitutional era, an attempt has been made to create an egalitarian society removing disparity amongst individuals, and in order to achieve that purpose, education is one of the most important and effective means. After independence, there has been an earnest effort to bring education out of commercialism/mercantilism. In the year 1951, the Secondary School Commission was constituted as per the recommendation of Central Advisory Board of Education and an idea was mooted by the Government to prepare textbooks and a common syllabus in education for all students. In 1964 - 1966, the report on National Education Policy was submitted by the Kothari Commission providing for common schools suggesting that public funded schools be opened for all children irrespective of caste, creed, community, religion, economic conditions or social status. Quality of education imparted to a child should not depend on wealth or class.

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Tuition fee should not be charged from any child, as it would meet the expectations of parents with average income and they would be able to send their children to such schools. The recommendations by the Kothari Commission were accepted and reiterated by the Yashpal Committee in the year 1991. It was in this backdrop that in Tamil Nadu, there has been a demand from the public at large to bring about a common education system for all children.”

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30 In Visveswaraya Technological University and

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another vs. Krishnaendu Halder and others (2011) 3 Scale

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359 , while approving the fixation of criteria higher than those

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fixed by All India Council for Teacher Education, Supreme

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Court made a reference about the mushrooming of Private Institutions in Teacher Education. The observation reads thus:-

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“11. The primary reason for seats remaining vacant in a State, is the mushrooming of private institutions in higher education. This is so in several States in regard to teachers training institutions, dental colleges or engineering colleges. The second reason is certain disciplines going out of favour with students because they are considered to be no longer promising or attractive for future career prospects. The third reason is the bad reputation acquired by some institutions due to lack of infrastructure, bad faculty and indifferent teaching. Fixing of higher standards, marginally higher than the minimum, is seldom the reason for seats in some colleges remaining vacant or unfilled during a particular year. Therefore, a student whose marks fall short of the eligibility criteria fixed by the State/University, or any college which admits such students directly under the management quota, cannot contend that the admission of students found qualified under the criteria fixed by AICTE, should be approved even if they do not fulfill the higher eligibility criteria fixed by the State/University.”

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31 Importance of education was highlighted by Division Bench of this Court, (of which I was author) in Surinder Kumar and others vs. State of Himachal Pradesh and others, CWP No.409 of 2014 , wherein the following observations from the judgment delivered by the High Court of

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Jammu and Kashmir by Justice Mansoor Ahmad Mir (as his

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Lordship then was) in CWP No. 674 of 2010 titled Khursheed

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Ahmad Sheikh & Ors. vs. State of others decided on

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6.6.2012 , was relied upon which reads as under:

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“21. The importance of education has been highlighted in a judgment delivered by the High Court of Jammu and Kashmir by one of us ( Hon’ble the Acting Chief Justice) in OWP No.674 of 2010 titled Khursheed Ahmad Sheikh & Ors. versus State of Others, along with connected matters, decided on 06.06.2012, wherein the need for quality education has been emphasized in the following manner:“24) At the very outset let us advert to the essence of word ‘Education’ being the foundation of all the writ petitions. The purpose of essence of education is a basis for foundation of nation, thus while establishing Universities or Centres outside State, necessary requirements of the enactments/Acts/Rules and Regulations are to be followed. Any institution established or run to dehors of rules virtually amounts to demolishing the society. The Regulations, Acts, Rules, applicable serve the interests of students, teachers and the public at large. Their role is of paramount importance; the good education aims at to preserve harmony among affiliated institution.”

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35. Before proceeding further on the issue, the purpose and concept of Education be reminiscent:

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The dictionary meaning of Education is learning; to gain knowledge. The petitioners, like all those people who pursue and are in search of particular knowledge, have a propensity to become the torch bearers only if the same is

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pursued and accomplished in a very fair; transparent and legal manner; but if the degrees, as in the case in hand, are provided like a street commodity the fate of the future can just be anticipated.

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36. This court would not hesitate even to say that if the objection regarding the sanctity of petitioners degrees would not have been raised by the respondents, the probability was that they would have made their entry on different posts, again meant for imparting education, and the same would have resulted in generational waywardness, for, a candle cannot light another unless it continues to burn its own flame.”

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32 It is more than settled that the vacancies, irrespective of its class, are required to be filled up in accordance with the Rules and all the candidates, who would otherwise be eligible are entitled to apply for when recruitment is made and seek consideration of their claims on merit according to the Rules for direct recruitment along with all the eligible candidates. Even the appointment on daily wages cannot be a conduct pipe for regular appointments, which would be a back-door entry, detrimental to the efficiency of service and would breed seeds of nepotism and corruption. This was so held by the Hon’ble Supreme Court in State of H.P. vs. Suresh Kumar Verma, 1996 (7) SCC 562. Recruitment even

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for a class-IV post is required to be conducted in accordance with the Rules.

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33 We really wonder why the State is resorting to such a large scale of back door entries by coming out with different schemes from time to time, wherein appointment is made keeping in view all irrelevant consideration, which, to say the least, are extraneous and as a result whereof merit is a casualty.

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34 As repeatedly held by the Hon’ble Supreme Court, back door entry in the public employment under the sun has to be avoided at all costs but yet the State Government has been complicit at each stage and has introduced various schemes, which, as observed above, are based on all irrelevant considerations, where merit is never the consideration.

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35 We need only to remind the State Government of the constitution bench judgment of the Hon’ble Supreme Court in

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Secretary, State of Karnataka & ors. vs. Uma Devi (3) and

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ors. wherein it was categorically held that the backdoor entry in the government departments is not possible and no court or Tribunal in India can enunciate the law or legal position being an endeavour to support backdoor entry in the government

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departments. If these observations are applicable to the Courts so are they binding on the State.

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36 The respondent-State appears to be oblivious of the fact that once it permits backdoor entry, the same definitely undermines, diminishes and curtails right to livelihood of the more competent persons and therefore, would be in violation of the constitutional provisions. Article 39 of the Constitution of India stipulates that all citizens men and women equally must have right to adequate mean of livelihood.

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37 These schemes flouted by the government from time to time like PARA, PTA, SMC, batch-wise, volunteer teacher(s) etc. etc., only enable the less meritorious people to seek back door entry in public employment and thereby militate against quality in public employment.

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38 The State Government has been remiss in realizing the importance of education that they need to have academically well qualified and trained teachers more particularly in light of what has been observed in various decisions of the Hon’ble Supreme court (supra).

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39 This Court can take judicial notice of the fact that number of fraudulent boards and institutions are coming up in

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the country with a primary aim of duping the public in the field of education, by presenting imaginary and illusionary picture for making a successful career to the innocent and vulnerable students.

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40 The Hon’ble Supreme Court has repeatedly deprecated the practice of admitting students to these unrecognized, unapproved and unaffiliated institutions. Undeniably, slackening the standard and judicial fiat to control the mode of education and examining system are detrimental to the efficient management of education.

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41 It is not only the unrecognized, unapproved and unaffiliated institutions that are creating havoc in the State but even the distant boards that have been recognized by the H.P. Board of School Education are also equally contributing to the mess prevailing in the State where the Government has decided to grant employment in Class-III and Class-IV employees solely on the basis of the percentage of marks secured in the qualifying examination with higher marks for higher qualification little realizing that the Boards whether State Boards or open school boards or any other boards which have been recognized by the H.P. Board of School Education have

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only promoted unfair means of securing higher marks in the examination(s).

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42 This court, presided over by one of us (Justice Tarlok Singh Chauhan) came across such a classical example while adjudicating CWP No. 6187/2020, titled as Sunita Devi vs. State of H.P., decided on 25.11.2021 where the petitioner had secure 329 marks out of 700 marks in 10^th class from H.P. Board of School Education, but then she appeared in 10^th class examination conducted by National Institute of Open Schooling, where she secured 601 marks out of 700 marks.

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43 One of the questions that was posed by the court in the said case was whether a candidate who has already passed the matriculation examination from Himachal Pradesh Board of School Education can be permitted to take another examination from any other Board and based on Regulation 4.2 of the Himachal Pradesh Board of School Education Examination Regulations, 1994, this Court held as under:-

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6. In terms of Regulations 4.2 of the Himachal Pradesh Board of School Education Examination Regulations, 1994, a person is eligible for appearing as a regular candidate in a matriculation examination only if he has not passed equivalent or higher examination of any other Board/University. As regards the private candidate, only those candidates who have obviously appeared and failed at the matriculation examination of the Board of equivalent

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examination of recognised Board can appear in the matriculation examination as a private candidate.

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7. However, in such circumstances, no doubt, these regulations will only applicable if the candidate is to appear in the examination held by the Himachal Pradesh Board of School Education but nonetheless, we see no reason for not applying these principles even to the other Boards within or outside the State.

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44 Thereafter, taking serious notice of the issue involved where even though National Institute of Open Schooling was not a fake institute, but nonetheless the court tired to seek an answer as to why the petitioner would opt to appear in these examinations and how could secure such high percentage of marks, and thereafter the Court observed as

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under:-

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8. Even though the National Institute of Open Schooling may not be a fake institute and may be a real and valid Board, but it amazes us and is otherwise very intriguing that when we note that a candidate who has barely secured 329 marks out of 700 marks in the matriculation examination held by the Himachal Pradesh Board of School Education in March, 2013 has secured a whopping 601 marks out of 700 marks when the examination is held in April, 2014 by the National Institute of Open Schooling. Why a person would opt to appear in these examinations and how one could secure such high percentage of marks in one examination is not difficult to gather.

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9. Himachal Pradesh happens to be one of the most literate States, which is only possible because of the availability of schools both government and private at every nook and corner of the State. Then, why would still someone ventures to give secondary education exam, that too, from a board outside the State, despite having appeared and secured minimum passing marks in matriculation examination held by the Himachal Pradesh Board of School Education. Not only this, the private respondent thereafter appeared even in Senior Secondary School Examination held by the National Institute of Open Schooling wherein again she has secured about 75% marks. This is a matter, which is required to be investigated by the official respondents.

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10. As regards the instant petition, we are of the considered view that the mark sheet as submitted by the private respondent could not have been taken into consideration by the respondents while determining the merits of the candidates, as it was subsequent to the petitioner having already passed the matriculation examination from the Himachal Pradesh Board of School Education (HPBOSE).

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11. Accordingly, the present petition is allowed and the appointment of private respondent i.e. respondent No. 4 is quashed and set aside and the official respondents are directed to offer appointment to the petitioner.

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12. However, before parting, it needs to be observed that the matter cannot be put to rest as a definite inquiry is required to be initiated against the National Institute of Open Schooling i.e. respondent No. 5, as how it enrolls and permits students to appear in the Secondary and Higher Secondary Examination and what is the mode of

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overseeing and supervise these examinations at all levels i.e. State, school and local levels Interestingly despite having duly served on 21.10.2021 has not chosen to contest this petition.

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13. Therefore, let Directorate of Higher Education investigate the matter by assigning the investigation to an Officer not below the rank of Deputy Director, who shall investigate the matter and submit the report to the Court, as expeditiously as possible, preferably within three months from today.

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45 Clearly, the aforesaid judgment is a wakeup call to

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the State Government to examine as to why the State at the first place is recognizing the boards outside the State of Himachal Pradesh given the fact that Himachal Pradesh is second most literate State and this could have become possible only because the State has schools though length and breadth of the State catering to the needs of all the students.

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46 This issue is otherwise required to be examined - given the fact that the degree(s) and award(s) made by various institutes/deemed universities by distance education programmes are now confined to the State in which the main campus of the parent institution is located and not to the study centres/regional centres outside their jurisdiction, except for programmes that are culturally and linguistically relevant even outside their State – and has been dealt with in detail by one of

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us (Justice Tarlok Singh Chauhan) while adjudicating CWP No.

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8789/2014, titled as Business Institute of Management Studies vs. State of Himachal Pradesh, decided on

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27.4.2016 .

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47 Undoubtedly, it is the sole prerogative of the State Government to formulate policies, schemes etc. but then the same cannot be in violation of the provisions of the Constitution of India more particularly Articles 14, 16, 21 and 39 thereof and above all, such schemes cannot be in violation of the mandate of law as laid down by the Hon’ble Supreme court and even by this Court from time to time. Therefore, before parting, we would impress upon the government to have a relook on all the policies where appointments, are not based on merit and are being made without issuing adequate publicity thereby depriving the eligible persons to participate in the selection process.

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48 The State should also have a relook regarding recommendations to the examination(s) being conducted though distance education programmes at matriculation and 10+2 levels by boards/open school boards especially given the fact that the State itself through Board of School Education is also recognizing open schooling, bearing in mind observations

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made hereinabove more particularly observations made in

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Sunita Devi’s case (supra).

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49 In view of aforesaid discussions, we find no merit in the instant appeal and the same is accordingly dismissed, so also the pending application(s), if any.

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50 Let a copy of this judgment be sent to the Chief

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Secretary to the Government of Himachal Pradesh for

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compliance.

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(Tarlok Singh Chauhan) Judge

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(Sushil Kukreja)

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14.5.2024 Judge