make revised/ new rules for appointment of JBTs (batch 2002-04 and 2003-05) of RTTI Kullu due to 8 years spent in JBT course
To
Honorable Chief Minister, Govt. of H.P., Shimla.
Subject: To make revised/ new rules for appointment of JBTs (batch 2002-04 and 2003-05) of RTTI Kullu due to 8 years duration spent in JBT course- matter may also be sent to cabinet meeting
Honorable Sir,
With regards, myself want to attract your kind attention in the case of 149 JBTs who have not been appointed in the state , however they belong to the JBT Batch 2003-05(100 students) and 2003-05 (49 students) who have got the JBT training in the state under the Rameshwari Teacher Training Institute managed by Bharatiya Education Society,Gandhinagar, Kullu (H.P.). They have been exploited upto the extreme level by the last govt. who had raised questions over the validity of this institute which was opened and given NOC by BJP Govt in its first tenure. Sh. Karan Singh was the political target and later, the students became the real target in this matter who are unemployed for last 8 years due to no fault. They are now also under the TET examination, however, their batch is 6 years before the implementation of the Right to Education Bill. 2009. Hence, I want to give some supportive ideas which make their appointments easy in the state.
(a) The Department of Elementary Education had raised an objection during the Congress Govt. ruling by saying that these candidates had not been selected through Common Entrance Test. However they were selected through open counselling after issuing advertisement and almost 1000 candidates had applied for the said course, but 149 were selected.
It is also worthy to note that no Common Entrance Test was conducted for the JBT students of the batch 2001-02 who have been appointed in the schools of H.P. Hence, there cannot be two different rules for the JBT recruitment and appointment. Hence, Rameshwari Teacher Training Institute had followed the old pattern and it was applicable at that time.
We must not forget that the persons who had minimum qualification as 10+2 were selected for JBT Course than jobs, however, volunteer teachers serving in the same department had been selected for the jobs on same pattern of selection. It is also worthy to note that they had to undergo the JBT course before their appointments and state govt. knows that many untrained teachers have been recruited in Primary Education Department between the years 1960 to 2000. The candidates of Rameshwari Teacher Training Institute would have been better to those as they were already trained. At that time, it was the only private college offering the JBT course and after that, many Pvt. JBT colleges have flourished in the state and their trainees have got the jobs too.
The NCTE Rules applicable for the appointments of these 140 trained JBTs of Rameshwari Teacher Training Institute belong to that of year 2001 which shows that they can be appointed batchwise than through TET.
(b) The recognition and validity of Rameshwari Teacher Training Institute was challenged instead of its recognition letter issued by NCTE, New Delhi. The trainees had almost completed their training when they were relieved in year 2005 from the said institute.
It is worthy to note that the training course was challenged and the trained candidates had to move to HP High Court for justice . They got relief from the Court and in the case no. CWP 4917/2010 dated: 20-08-2010, they were allowed to appear in exam and then to be appointed. It has happened on 20-08-2010 which is just before the first time notification of T.E.T. released by NCTE on 23rd August, 2010. The Court decision was as under:-
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
CWP No.4917 of 2010 Date of decision: 20.8.2010
Munish Kumar & ors .. ..Petitioners
Vs.
State of HP & ors Respondents
Coram:
The Hon'ble Mr. Justice R.B. Misra, Judge. The Hon'ble Mr.Justice V.K. Sharma, Judge.
Whether approved for reporting?2
For the Petitioner: Mr. Dushyant Dadwal Advocate.
For the Respondent No. 1: Mr. Rajinder Dogra, Addl. AG with Mr.
Anil Jaswal, Dy. AG.
For the Respondent No.2: Mr. G.D. Sharma, Advocate.
For the Respondent No.3: Mr. Karan Singh with Ms. Shikha Thakur,
Advocates.
For the Respondent No.4: Mr. Sandeep Sharma, Assistant Solicitor General
of India.
R.B. Misra, Judge (Oral )
The writ petition has been filed with the following prayers:
"The present petition may kindly be allowed and the Annexure P-J and P-L may kindly be quashed and set aside with a further direction to the respondents to conduct the examination of the petitioners for the said course of JBT qua which the petitioners has already undergone prescribed course and completed the same successfully from the respondent No.3 institute in the session 2002-2004 as has been held by Hon'ble Supreme Court in Bhawna Sharma's case keeping in view the submissions made herein above and in the interest of justice with a further direction to the respondents to award them the certificate/diploma for the said course if they qualifies the said examination."
2. Learned counsel for the petitioner has submitted that for
similar relief a petition, namely, CWP No. 4545 of 2009 titled Anita
Suman Vs. State of HP & ors was filed before this Court, which was
disposed of on 8th April, 2010 ( Annexure PM ), relying on the order
dated 31.3.2008 passed in SLP No. 7856/2006 titled Bhawna Sharma
Vs. State of HP & ors by the Hon'ble Apex Court. The order dated
31.3.2008 is reproduced as under:
" Heard both sides. The petitioner joined respondent NO.4 Institute in JBT course. The grievance of the petitioner is that she was not allowed to appear for the Board examination with the Institute as the respondent Institute has no affiliation for the year 2002-2004. Learned counsel appearing for the 4th respondent submits that the application for affiliation was already pending with the Board and the Board had in fact allowed students for being admitted to 4th respondent. As and when the college takes the approval of the Board and conducts the examination the petitioner Ms. Bhawna Sharma may be allowed to participate in the examination.
In the above directions, the SLP is disposed of."
3. It has been submitted by the learned counsel for the
petitioners that the grievances of the petitioners are also similar as the
petitioner in CWP No. 4545/2009. As such, the present petition can be
disposed of in the light of the judgment dated 8.4.2010 passed in CWP
No. 4545/2009. Learned counsel for the respondents, including Sh.
G.D. Sharma, counsel for H.P. Board of School Education, in all
fairness, who have submitted that the above referred judgment dated
8.4.2010 passed by the Division Bench of this Court has been
implemented and in the absence of otherwise instructions on record,
they are not in a position to make different submissions.
4. In the facts and circumstances, the present writ petition is
also allowed in the light of the observations made by the Division Bench of this Court vide order dated 8.4.2010 in CWP No. 4545/2009. It goes without saying that the petitioners' eligibility shall be considered keeping in view the observations made in the above judgment passed by this Court and the State Government shall make endeavour to take appropriate steps to expedite the grievances of the petitioners since the examinations are going to be held from 30th August, 2010. As such, all concerned have to take appropriate collective efforts latest by 27th August, 2010 so that the petitioners may not come across any difficulty. On the production of the copy of this order by the learned counsel for the petitioners, respondent No.1/State Government shall make all endeavour including issuance of directions to respondent No.2 to do the needful for conducting the examinations of the petitioners before 30th August, 2010.
In view of the above observations, writ petition is disposed of so also the pending applications.
Copy Dasti.
( R.B.Misra ), J.
( V.K.Sharma ), J.
20th August, 2010(sl)
(C) In light of the above, it is clear that the case has been closed by making clear directions to conduct the exams and it was done.The Rameshwari Teacher Training Institute also followed all directions given by the said court. Hence, the trainees passed the JBT examination and JBT marksheets were issued to them in year June, 2011 by H.P. Board of School Education which is enough to validate their entire course and eligibility as per NCTE Rules 2001 and state R&P Rules of batchwise appointments. The rule applicable is as below:-
Government of Himachal Pradesh Elementary Education Department (Education-C)
No. EDN-C-A (3)1/2002, Dated: Shimla-171002, 15-07-2010
NOTIFICATION
In exercise of the powers conferred by proviso to Article 309 of the Constitution of India, the Governor, Himachal Pradesh, in consultation with the H.P. Public Service Commission is pleased to make the following Rules further to amend the "Himachal Pradesh, Primary Education Department, Junior Basic Trained Teacher, Class-III (Non-Gazetted) Recruitment and Promotion Rules, 2000, notified vide this Department notification of even number dated 22-08-2000 ; namely:-
Short title and Commencement 1. (1)
(2)
Amendment of Short Title. 2.
Amendment of Annexure-A 3.
These rules may be called the Himachal Pradesh, Primary Education Department, Junior Basic Trained Teacher, (Class-III (Non-Gazetted) Recruitment and Promotion (Second amendment) Rules,
2010.
These rules shall come into force from the date of publication in the Rajpatra, Himachal Pradesh. In short title of the Himachal Pradesh, Primary Education Department, Junior Basic Trained Teacher, Class-III (Non-Gazetted) Recruitment and Promotion Rules, 2000 (hereinafter referred to as the "said rules") for the word, "Primary" the word, "Elementary", shall be substituted.
In Annexure-"A" to the said rules;
Contd....P/2
15-A. Selection for appointment to the post by contract appointment
(a) For the existing provisions against
Col.No.4, the following shall be
substituted, namely :-
" i) Pay scale for regular incumbents
Pay Band + Grade pay Rs. 5910/-20200/- + Rs.3000/-
ii) Emoluments for contract employees:-
Rs. 8910/- (as per details given in column No. 15-A)";
(b) For the existing provisions against column
No.10, the following shall be substituted,
namely :-
"100% by direct recruitment on regular basis or recruitment by contract basis as the case may be.
The Contract employees will get emoluments as given in Column No. 15-A and will be governed by service conditions as specified in the said column";
(c) After Col. No.15, the following new col.
15-A shall be inserted, namely:-
Notwithstanding anything contained in these rules, contract appointments to the post will be made subject to the terms and conditions given below:-
(I) CONCEPT
(a) Under this policy the Junior Basic Trained Teacher in the Department of Elementary Education H.P. will be engaged on contract basis initially for one year, which may be extendable on year to year basis.
Provided that for extension/renewal of contract period on year to year basis the concerned HOD shall issue a certificate that the service and conduct of the contract appointee is satisfactory during the year and only then his period of contract is to be renewed/extended.
(b) POST FALLS OUT OF THE
PURVIEW OF HPPSC/HPSSSB:-
The Deputy Director, Elementary Education after obtaining the approval of the Government to fill up the vacant posts on contract basis will initiate the process for recruitment and will fill-up the vacant posts on contract basis as per the procedure approved by the State Government.
(c) The selection will be made in
accordance with the eligibility condition
prescribed in these Rules.
(II) CONTRACTUAL EMOLUMENTS:-
The Junior Basic Trained Teacher appointed on contract basis will be paid consolidated fixed contractual amount @ Rs. 8910/- P.M.(which shall be equal to minimum of the pay band + grade pay). An amount of Rs. 267/- (3% of the minimum of pay band + grade pay of the post) as annual increase in contractual emoluments for the subsequent year(s) will be allowed if contract is extended beyond one year.
(III) APPOINTING/DISCIPLINARY
AUTHORITY
The Deputy Director, Elementary Education, Himachal Pradesh will be appointing and disciplinary authority.
(IV) SELECTION PROCESS:-
Selection for appointment to the post in
the case of Contract Appointment will be
made on the basis of merit of the JBT
examination of the batch concerned and
as per the directions issued by the Govt.
from time to time.
(V) COMMITTEE FOR SELECTION OF
CONTRACTUAL APPOINTMENTS:-
As may be constituted by the concerned recruiting agency from time to time.
(VI) AGREEMENT :-
After selection of a candidate, he/she shall sign an agreement as per Annexure-B appended to these Rules.
(VII) TERMS AND CONDITIONS :-
(a) The contractual appointee will be paid
fixed contractual amount @ Rs.8910/-P.M. (which shall be equal to minimum of the pay band + grade pay). The Contract Appointee will be entitled for increase in contractual amount @ Rs. 267/- (3% of the minimum of pay band + grade pay of the post) for further extended years and no other allied benefits such as senior/selection scales etc. will be given.
(b) The service of the Contract Appointee
will be purely on temporary basis. The
appointment is liable to be terminated
in case the performance/conduct of the
contract appointee is not found
satisfactory.
(c ) Contract appointee will be entitled for one day Casual Leave after putting one month service. This leave can be accumulated upto one year. No leave of any other kind is admissible to the contract appointee. He/she shall not be entitled for medical re-imbursement and LTC etc. only maternity leave will be given as per Rules.
(d) Unauthorized absence from the duty without the approval of the controlling officer shall automatically lead to the termination of the contract. Contract Appointee shall not be entitled for contractual amount for the period of absence from duty.
(e) An official appointed on contract basis who have completed five years tenure at one place of posting will be eligible for transfer on need based basis wherever required on administrative grounds.
(f) Selected candidate will have to submit a certificate of his/her fitness from a Government/Registered Medical Practitioner. Women candidate Pregnant beyond 12 weeks will stand temporarily unfit till the confinement is over. The woman candidate will be re-examined for the fitness from an authorized Medical Officer/Practitioner.
(g) Contract appointee will be entitled to TA/DA if required to go on tour in connection with his/her official duties at the same rate as applicable to regular counterpart officials at the minimum of pay scale.
(h) Provisions of service rules like FR-SR,
Leave Rules, GPF Rules, Pension Rules
and conduct Rules etc. as are applicable
in case of regular employees will not be
applicable in case of contract appointees.
They will be entitled for emoluments
etc. as detailed in this Column.
By order
Principal Secretary (Ele.Education) to the
Government of Himachal Pradesh
Endst. No. EDN-C-A (3)1/2002 Dated : Shimla-171002, 15-07- 2010
Copy for information and necessary action to:-
1. All the Principal Secretaries/Secretaries to the Govt. of Himachal Pradesh
2. The Secretary, HP, Public Service Commission Shimla-2.
3. The Director, Higher Education, Himachal Pradesh, Shimla-1.
4. The Director of Elementary Education, Himachal Pradesh, Shimla-1.
5. The Controller, Printing and Stationary, HP Shimla-5 with the request to publish these Rules in Rajpatra (extra-ordinary) and send 10 spare copies to this department.
6. The Secretary, Himachal Pradesh Subordinate Services Selection Board, Hamirpur.
7. The ALR-cum-Under Secretary (Law) (Official Language Wing) to the Govt. of Himachal Pradesh.
8. Guard file/additional copies.
Under Secretary (Ele. Education) to the Government of Himachal Pradesh
Hence, these candidates need not to be imposed TET as they belong to the batch 2003-05 and 2002-04. The JBT batch 2000-2002 was also appointed in the state be following the process of Batchwise recruitments while the TET has not been mandatory as qualification in India till 2010, while its real implication was followed in 2012. The candidates who deserve the appointments as per old rules must not be given more suffering now and they must be given jobs on batchwise recruitment rules as they have suffered a lot in last 8 years while the problem was not due to them.
(d) It is worthy to mention that Supreme Court had allowed appointments of the teachers on same old rules when it was subjected to be done.They were also delayed due to legal challenges. Same has occurred in this case.
Please see it
Judgement
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
CONTEMPT PETITION (CIVIL) NO. 297 OF 2007
IN
SPECIAL LEAVE PETITION (C) NO.22882 OF 2004
Nand Kishore Ojha
Vs.
Anjani Kumar Singh
O R D E R
ALTAMAS KABIR, J.
1. As indicated in our order dated 9th December, 2009, this Contempt Petition has a background of alleged breach of an undertaking given on 18th January, 2006 and the order passed on the basis thereof on 23rd January, 2006 in SLP(C)Nos.22882- 22888 of 2004. The said undertaking related to the commitment made by the State of Bihar to recruit and fill in the vacant posts of teachers in Primary Schools with trained teachers. The undertaking given by the State of Bihar is in that context and reads as follows :
“That in the meantime, it has been decided that trained teachers be recruited on the vacant posts available in the State of Bihar. The Bihar Elementary Teachers Appointment Rules, 2003 having been quashed by the Patna High Court, new recruitment rules are contemplated to facilitate recruitment of trained teachers in a decentralized manner, by giving them age relaxation as ordered by the High Court. That Chapters 6 and 7 of the Bihar Education Code relating to oriental education and hostels and messes will be kept in mind, as directed by the Patna High Court, while making recruitment of teachers.
That it is respectfully submitted that since the number of available trained teachers in the State is expected to be less than the available vacancies, no test for selection is required to that extent, a reference to this Bihar Public Service Commission for initiating the process of recruitment of trained teachers may not be necessary, and the order of this Hon’ble Court and of the Patna High Court in this regard may be modified”
2. The said application made for withdrawal of the Special Leave Petition was disposed of by this Court on 23rd January, 2006 on the basis of the submissions made therein.
3. Subsequently, when the State of Bihar failed to abide by its commitments and assurances, the petitioner herein, Nand Kishore Ojha, filed Contempt Petition 297 of 2006, which was disposed of on 19th March, 2007 by the following order :
“In view of the categorical statement now made that the priority will be given to the trained teachers in appointment and also the clarification made in paragraphs 19 to 22 of the aforesaid affidavit dated 7.2.2007, we direct the State of Bihar to implement the undertaking given by the State of Bihar earlier and also now by the present affidavit dated 7.2.2007 in letter and spirit by appointing the trained teachers on priority basis.”
4. Once again on the failure of the State Government to appoint trained teachers as Assistant Teachers in the vacant sanctioned posts carrying a pay-scale, in breach of the undertaking and the assurances given by the Government, the present Contempt Petition was filed. Many applications were made in the Contempt Petition by the trained teachers similarly situated, for being impleaded as parties to the proceedings. Ultimately, the learned Attorney General appeared before us on 25th August, 2009 and assured us that it was not the intention of the State of Bihar to resile from the undertaking given on its behalf, but that the situation had changed over the years, since the undertaking had been given and had become much more complex than was thought of at that point of time. Since no workable solution could be suggested which could satisfy the undertaking given by the State Government and, at the same time, to cause minimum amount of disruption in implementing the same, this Court took note of an advertisement for appointment of Primary Teachers, which was published in December, 2003 and had been struck down by the High Court, for the limited purpose of determining the total number of vacancies which were shown as 34,540. In order to put a quietus to the entire issue, we accepted the figure relating to the vacancies to the posts shown in the advertisement to meet the claims of the trained teachers who were, at the relevant point of time, available for being appointed on a regular basis. Accordingly, notwithstanding the number of trained teachers available, this Court directed that the available 34,540 vacancies shown in the advertisement for appoint of Primary Teachers to be filled up with the said number of trained teachers as a one-timemeasure to give effect to the undertaking which had been given on 18th January, 2006 and 23rd January, 2006. This Court also adjourned the Contempt Petition for implementation of the said order passed by us and for a report to be submitted on the next date as to the result of the discussions held between the petitioner and the concerned authorities.
5. Pursuant to the above directions, the matter was taken up on 6th May, 2010, when an Additional Affidavit affirmed by the Contemnor, Shri Anjani Kumar Singh, was shown to us. The deponent indicated that he was the Principal Secretary, Human Resource Development Department, Government of Bihar, and it was mentioned in paragraph 4 of the said Affidavit that 34,540 posts of Assistant Teachers had been created as a one-time-measure for appointment in Elementary Schools of the State of Bihar and to facilitate the process of recruitment, the Bihar Special Elementary Teachers’ Recruitment Rules, 2010, had been prepared and had been approved by the State Cabinet on 2nd February, 2010. On the said basis, it was averred that by creating 34,540 posts of Assistant Teachers, the State of Bihar had complied with the directions given by this Court on 9th December, 2009 as a one-time measure.
6. Mr. P.K. Shahi, learned Advocate General for the State of Bihar, took us to the Bihar Special Elementary Teachers’ Recruitment Rules, 2010, hereinafter referred to as “the 2010 Rules”, and pointed out that the same had been framed to give effect to the undertakings given by the State of Bihar and the orders passed by this Court from time to time. The learned Advocate General, therefore, submitted that in view of such compliance, the contempt proceedings were liable to be dropped.
7. Appearing for the Petitioners in Contempt Petition No.297 of 2007, Mr. R.P. Bhatt, learned Senior Advocate, submitted that although apparently it would appear that by the creation of 34,540 posts, the undertakings given on behalf of the State of Bihar and the orders passed by this Court had been duly complied with, in real fact, the same did not reflect the true state of affairs in view of the framing of the 2010 Rules which were in breach and not in compliance with the said undertakings. In particular, it was pointed out that Rule 4 of the said Rules provided that only those candidates who had passed training upto 1st December, 2003, could apply, which effectively debarred those trained teachers who passed training thereafter and were intended to be covered by the order of 6th May, 2010, for appointment as primary teachers. It was also submitted by Mr. Bhatt that teachers who had completed physical education training had not been included in the definition of the expression “training”, as provided in Rule 2(iv), although they too were to be covered by the order passed on 6th May, 2010, and the earlier orders.
8. Mr. L. Nageshwar Rao, learned Advocate, who appeared for some of the Special Leave Petitioners, submitted that the provision for reservation in Rule 6 of the aforesaid Rules would also result in the exclusion of a large number of trained teachers from the general category, since it was not expected that the total number of posts reserved would be filled from amongst trained teachers belonging to the reserved category. Mr. Rao also pointed out that the provision of Rule 9 were also prejudicial to the Petitioners, who even after their appointment would not be paid their salaries unless their certificates were found to be correct. Mr. Rao Submitted that such a condition could result in an indefinite delay in paying the salaries of the persons appointed.
9. Some of the other learned Advocates appearing for the other Petitioners and those candidates who had been permitted to intervene in these proceedings on the basis of their various applications, echoed the submissions made by Mr. Bhatt and Mr. Rao. All of them in one voice have reiterated the submission that all the 34,540 posts which have been created would have to be filled up without leaving any vacancies on the plea of reservation, as had been undertaken by the learned Advocate General for the State of Bihar, Mr. Shahi.
10. We have carefully considered the submissions made on behalf of the respective parties with regard to the affidavit of compliance filed on behalf of the State of Bihar and have also considered the submissions of the learned Advocate General for the State of Bihar with regard to the 2010 Rules.
11. While we appreciate the fact that the number of posts shown in the advertisement published in 2003 amounting to 34,540 have been created to be filled up by trained teachers, it must be said that it was never our intention that the conditions of the advertisement itself, which had been struck down by the High Court, were to be followed by the Bihar State Government. We had made it very clear in our order that we had referred to the advertisement only for the purpose of determining the number of vacancies which would be required to be filled up from amongst the trained teachers. It was very clearly our intention that all the 34,540 posts were to be filled up with trained teachers who were waiting for appointment, in order of seniority. The question of keeping some of the posts vacant on account of non-availability of reserved candidates was never the criterion in the order passed by us on 9th December, 2009. We must add that we are not for a moment suggesting that candidates from the reserved category should not be accommodated as per the reservation policy. What we intended was that after the number of candidates from the reserved category had been accommodated, the rest of the posts were to be filled up from amongst the candidates from the general category.
12. Having regard to the above, we once again direct that the said 34,540 posts, which have been created, be filled up from amongst the trained teachers in order of seniority after providing for appointment of candidates belonging to the reserved category as a one-time measure as indicated in our earlier orders and as also mentioned in the additional affidavit affirmed on behalf of the State of Bihar.
13. We would like it to be appreciated by the State of Bihar that these directions should be complied with within 31st August, 2010, without further delay. Let this matter stand adjourned till 8th September, 2010 at 3.30 p.m. for filing of compliance report.
…………………………………………J.
(ALTAMAS KABIR)
…………………………………………J.
(H.L. DATTU)
New Delhi
Dated : 12.05.2010
The above judgement is more than enough for the state govt. to make a distinct rule for the one time appointment of theses candidates who belong to earlier batches while batchwise appointments may be applied on them because they had completed the courses by 2005, however, only exam was conducted after 5 years in year 2010. The delay in exam for 5 years due to legal dispute may not be made the reason to impose TET on them and if it is mandatory, they must be given at least time of three years to complete it, but it will not be logical to impose it as the legal delay in the case is not offence of the trainees. Their posts were created in 2001 and hence, they must be filled on the rules applicable at that time. They had completed the course in 2005 but examinations were delayed.
(e) The state govt. and its education minister had given the written assurance to these 149 JBTs sitting on hunger strike for 83 days that they will get a new favourable policy and a decision in their favour within or before six months( i.e. upto 16-08-2008). The written message of Education Minister was sent to them through Department of Elementary Education on 16-02-2008 which was handed over to them by DDEO Elementary Education, Hamirpur in presence of S.P. Hamirpur. Due to this, they called off the strike at that time but the appointments have not been done yet. They have done the JBT course are even before 2008-10 batch which is enough to indicate that they are in worst condition and needy of the jobs in prior. Govt. must keep its promise as it is the question of its faith.
Please act immediately and provide them jobs now without TET. Matter is urgent and its one copy may be brought in notice of the cabinet meeting.
Thanking with regards,
Date:07-08-2012 Yours sincerely,
Vijay Kumar Heer, State President
Himachal Shikshak Kranti Manch, HP
V.P.O. Chkamoh, Tehsil Barsar
Distt. Hamirpur (HP) 176039
Fax: 01972286402
Honorable Chief Minister, Govt. of H.P., Shimla.
Subject: To make revised/ new rules for appointment of JBTs (batch 2002-04 and 2003-05) of RTTI Kullu due to 8 years duration spent in JBT course- matter may also be sent to cabinet meeting
Honorable Sir,
With regards, myself want to attract your kind attention in the case of 149 JBTs who have not been appointed in the state , however they belong to the JBT Batch 2003-05(100 students) and 2003-05 (49 students) who have got the JBT training in the state under the Rameshwari Teacher Training Institute managed by Bharatiya Education Society,Gandhinagar, Kullu (H.P.). They have been exploited upto the extreme level by the last govt. who had raised questions over the validity of this institute which was opened and given NOC by BJP Govt in its first tenure. Sh. Karan Singh was the political target and later, the students became the real target in this matter who are unemployed for last 8 years due to no fault. They are now also under the TET examination, however, their batch is 6 years before the implementation of the Right to Education Bill. 2009. Hence, I want to give some supportive ideas which make their appointments easy in the state.
(a) The Department of Elementary Education had raised an objection during the Congress Govt. ruling by saying that these candidates had not been selected through Common Entrance Test. However they were selected through open counselling after issuing advertisement and almost 1000 candidates had applied for the said course, but 149 were selected.
It is also worthy to note that no Common Entrance Test was conducted for the JBT students of the batch 2001-02 who have been appointed in the schools of H.P. Hence, there cannot be two different rules for the JBT recruitment and appointment. Hence, Rameshwari Teacher Training Institute had followed the old pattern and it was applicable at that time.
We must not forget that the persons who had minimum qualification as 10+2 were selected for JBT Course than jobs, however, volunteer teachers serving in the same department had been selected for the jobs on same pattern of selection. It is also worthy to note that they had to undergo the JBT course before their appointments and state govt. knows that many untrained teachers have been recruited in Primary Education Department between the years 1960 to 2000. The candidates of Rameshwari Teacher Training Institute would have been better to those as they were already trained. At that time, it was the only private college offering the JBT course and after that, many Pvt. JBT colleges have flourished in the state and their trainees have got the jobs too.
The NCTE Rules applicable for the appointments of these 140 trained JBTs of Rameshwari Teacher Training Institute belong to that of year 2001 which shows that they can be appointed batchwise than through TET.
(b) The recognition and validity of Rameshwari Teacher Training Institute was challenged instead of its recognition letter issued by NCTE, New Delhi. The trainees had almost completed their training when they were relieved in year 2005 from the said institute.
It is worthy to note that the training course was challenged and the trained candidates had to move to HP High Court for justice . They got relief from the Court and in the case no. CWP 4917/2010 dated: 20-08-2010, they were allowed to appear in exam and then to be appointed. It has happened on 20-08-2010 which is just before the first time notification of T.E.T. released by NCTE on 23rd August, 2010. The Court decision was as under:-
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
CWP No.4917 of 2010 Date of decision: 20.8.2010
Munish Kumar & ors .. ..Petitioners
Vs.
State of HP & ors Respondents
Coram:
The Hon'ble Mr. Justice R.B. Misra, Judge. The Hon'ble Mr.Justice V.K. Sharma, Judge.
Whether approved for reporting?2
For the Petitioner: Mr. Dushyant Dadwal Advocate.
For the Respondent No. 1: Mr. Rajinder Dogra, Addl. AG with Mr.
Anil Jaswal, Dy. AG.
For the Respondent No.2: Mr. G.D. Sharma, Advocate.
For the Respondent No.3: Mr. Karan Singh with Ms. Shikha Thakur,
Advocates.
For the Respondent No.4: Mr. Sandeep Sharma, Assistant Solicitor General
of India.
R.B. Misra, Judge (Oral )
The writ petition has been filed with the following prayers:
"The present petition may kindly be allowed and the Annexure P-J and P-L may kindly be quashed and set aside with a further direction to the respondents to conduct the examination of the petitioners for the said course of JBT qua which the petitioners has already undergone prescribed course and completed the same successfully from the respondent No.3 institute in the session 2002-2004 as has been held by Hon'ble Supreme Court in Bhawna Sharma's case keeping in view the submissions made herein above and in the interest of justice with a further direction to the respondents to award them the certificate/diploma for the said course if they qualifies the said examination."
2. Learned counsel for the petitioner has submitted that for
similar relief a petition, namely, CWP No. 4545 of 2009 titled Anita
Suman Vs. State of HP & ors was filed before this Court, which was
disposed of on 8th April, 2010 ( Annexure PM ), relying on the order
dated 31.3.2008 passed in SLP No. 7856/2006 titled Bhawna Sharma
Vs. State of HP & ors by the Hon'ble Apex Court. The order dated
31.3.2008 is reproduced as under:
" Heard both sides. The petitioner joined respondent NO.4 Institute in JBT course. The grievance of the petitioner is that she was not allowed to appear for the Board examination with the Institute as the respondent Institute has no affiliation for the year 2002-2004. Learned counsel appearing for the 4th respondent submits that the application for affiliation was already pending with the Board and the Board had in fact allowed students for being admitted to 4th respondent. As and when the college takes the approval of the Board and conducts the examination the petitioner Ms. Bhawna Sharma may be allowed to participate in the examination.
In the above directions, the SLP is disposed of."
3. It has been submitted by the learned counsel for the
petitioners that the grievances of the petitioners are also similar as the
petitioner in CWP No. 4545/2009. As such, the present petition can be
disposed of in the light of the judgment dated 8.4.2010 passed in CWP
No. 4545/2009. Learned counsel for the respondents, including Sh.
G.D. Sharma, counsel for H.P. Board of School Education, in all
fairness, who have submitted that the above referred judgment dated
8.4.2010 passed by the Division Bench of this Court has been
implemented and in the absence of otherwise instructions on record,
they are not in a position to make different submissions.
4. In the facts and circumstances, the present writ petition is
also allowed in the light of the observations made by the Division Bench of this Court vide order dated 8.4.2010 in CWP No. 4545/2009. It goes without saying that the petitioners' eligibility shall be considered keeping in view the observations made in the above judgment passed by this Court and the State Government shall make endeavour to take appropriate steps to expedite the grievances of the petitioners since the examinations are going to be held from 30th August, 2010. As such, all concerned have to take appropriate collective efforts latest by 27th August, 2010 so that the petitioners may not come across any difficulty. On the production of the copy of this order by the learned counsel for the petitioners, respondent No.1/State Government shall make all endeavour including issuance of directions to respondent No.2 to do the needful for conducting the examinations of the petitioners before 30th August, 2010.
In view of the above observations, writ petition is disposed of so also the pending applications.
Copy Dasti.
( R.B.Misra ), J.
( V.K.Sharma ), J.
20th August, 2010(sl)
(C) In light of the above, it is clear that the case has been closed by making clear directions to conduct the exams and it was done.The Rameshwari Teacher Training Institute also followed all directions given by the said court. Hence, the trainees passed the JBT examination and JBT marksheets were issued to them in year June, 2011 by H.P. Board of School Education which is enough to validate their entire course and eligibility as per NCTE Rules 2001 and state R&P Rules of batchwise appointments. The rule applicable is as below:-
Government of Himachal Pradesh Elementary Education Department (Education-C)
No. EDN-C-A (3)1/2002, Dated: Shimla-171002, 15-07-2010
NOTIFICATION
In exercise of the powers conferred by proviso to Article 309 of the Constitution of India, the Governor, Himachal Pradesh, in consultation with the H.P. Public Service Commission is pleased to make the following Rules further to amend the "Himachal Pradesh, Primary Education Department, Junior Basic Trained Teacher, Class-III (Non-Gazetted) Recruitment and Promotion Rules, 2000, notified vide this Department notification of even number dated 22-08-2000 ; namely:-
Short title and Commencement 1. (1)
(2)
Amendment of Short Title. 2.
Amendment of Annexure-A 3.
These rules may be called the Himachal Pradesh, Primary Education Department, Junior Basic Trained Teacher, (Class-III (Non-Gazetted) Recruitment and Promotion (Second amendment) Rules,
2010.
These rules shall come into force from the date of publication in the Rajpatra, Himachal Pradesh. In short title of the Himachal Pradesh, Primary Education Department, Junior Basic Trained Teacher, Class-III (Non-Gazetted) Recruitment and Promotion Rules, 2000 (hereinafter referred to as the "said rules") for the word, "Primary" the word, "Elementary", shall be substituted.
In Annexure-"A" to the said rules;
Contd....P/2
15-A. Selection for appointment to the post by contract appointment
(a) For the existing provisions against
Col.No.4, the following shall be
substituted, namely :-
" i) Pay scale for regular incumbents
Pay Band + Grade pay Rs. 5910/-20200/- + Rs.3000/-
ii) Emoluments for contract employees:-
Rs. 8910/- (as per details given in column No. 15-A)";
(b) For the existing provisions against column
No.10, the following shall be substituted,
namely :-
"100% by direct recruitment on regular basis or recruitment by contract basis as the case may be.
The Contract employees will get emoluments as given in Column No. 15-A and will be governed by service conditions as specified in the said column";
(c) After Col. No.15, the following new col.
15-A shall be inserted, namely:-
Notwithstanding anything contained in these rules, contract appointments to the post will be made subject to the terms and conditions given below:-
(I) CONCEPT
(a) Under this policy the Junior Basic Trained Teacher in the Department of Elementary Education H.P. will be engaged on contract basis initially for one year, which may be extendable on year to year basis.
Provided that for extension/renewal of contract period on year to year basis the concerned HOD shall issue a certificate that the service and conduct of the contract appointee is satisfactory during the year and only then his period of contract is to be renewed/extended.
(b) POST FALLS OUT OF THE
PURVIEW OF HPPSC/HPSSSB:-
The Deputy Director, Elementary Education after obtaining the approval of the Government to fill up the vacant posts on contract basis will initiate the process for recruitment and will fill-up the vacant posts on contract basis as per the procedure approved by the State Government.
(c) The selection will be made in
accordance with the eligibility condition
prescribed in these Rules.
(II) CONTRACTUAL EMOLUMENTS:-
The Junior Basic Trained Teacher appointed on contract basis will be paid consolidated fixed contractual amount @ Rs. 8910/- P.M.(which shall be equal to minimum of the pay band + grade pay). An amount of Rs. 267/- (3% of the minimum of pay band + grade pay of the post) as annual increase in contractual emoluments for the subsequent year(s) will be allowed if contract is extended beyond one year.
(III) APPOINTING/DISCIPLINARY
AUTHORITY
The Deputy Director, Elementary Education, Himachal Pradesh will be appointing and disciplinary authority.
(IV) SELECTION PROCESS:-
Selection for appointment to the post in
the case of Contract Appointment will be
made on the basis of merit of the JBT
examination of the batch concerned and
as per the directions issued by the Govt.
from time to time.
(V) COMMITTEE FOR SELECTION OF
CONTRACTUAL APPOINTMENTS:-
As may be constituted by the concerned recruiting agency from time to time.
(VI) AGREEMENT :-
After selection of a candidate, he/she shall sign an agreement as per Annexure-B appended to these Rules.
(VII) TERMS AND CONDITIONS :-
(a) The contractual appointee will be paid
fixed contractual amount @ Rs.8910/-P.M. (which shall be equal to minimum of the pay band + grade pay). The Contract Appointee will be entitled for increase in contractual amount @ Rs. 267/- (3% of the minimum of pay band + grade pay of the post) for further extended years and no other allied benefits such as senior/selection scales etc. will be given.
(b) The service of the Contract Appointee
will be purely on temporary basis. The
appointment is liable to be terminated
in case the performance/conduct of the
contract appointee is not found
satisfactory.
(c ) Contract appointee will be entitled for one day Casual Leave after putting one month service. This leave can be accumulated upto one year. No leave of any other kind is admissible to the contract appointee. He/she shall not be entitled for medical re-imbursement and LTC etc. only maternity leave will be given as per Rules.
(d) Unauthorized absence from the duty without the approval of the controlling officer shall automatically lead to the termination of the contract. Contract Appointee shall not be entitled for contractual amount for the period of absence from duty.
(e) An official appointed on contract basis who have completed five years tenure at one place of posting will be eligible for transfer on need based basis wherever required on administrative grounds.
(f) Selected candidate will have to submit a certificate of his/her fitness from a Government/Registered Medical Practitioner. Women candidate Pregnant beyond 12 weeks will stand temporarily unfit till the confinement is over. The woman candidate will be re-examined for the fitness from an authorized Medical Officer/Practitioner.
(g) Contract appointee will be entitled to TA/DA if required to go on tour in connection with his/her official duties at the same rate as applicable to regular counterpart officials at the minimum of pay scale.
(h) Provisions of service rules like FR-SR,
Leave Rules, GPF Rules, Pension Rules
and conduct Rules etc. as are applicable
in case of regular employees will not be
applicable in case of contract appointees.
They will be entitled for emoluments
etc. as detailed in this Column.
By order
Principal Secretary (Ele.Education) to the
Government of Himachal Pradesh
Endst. No. EDN-C-A (3)1/2002 Dated : Shimla-171002, 15-07- 2010
Copy for information and necessary action to:-
1. All the Principal Secretaries/Secretaries to the Govt. of Himachal Pradesh
2. The Secretary, HP, Public Service Commission Shimla-2.
3. The Director, Higher Education, Himachal Pradesh, Shimla-1.
4. The Director of Elementary Education, Himachal Pradesh, Shimla-1.
5. The Controller, Printing and Stationary, HP Shimla-5 with the request to publish these Rules in Rajpatra (extra-ordinary) and send 10 spare copies to this department.
6. The Secretary, Himachal Pradesh Subordinate Services Selection Board, Hamirpur.
7. The ALR-cum-Under Secretary (Law) (Official Language Wing) to the Govt. of Himachal Pradesh.
8. Guard file/additional copies.
Under Secretary (Ele. Education) to the Government of Himachal Pradesh
Hence, these candidates need not to be imposed TET as they belong to the batch 2003-05 and 2002-04. The JBT batch 2000-2002 was also appointed in the state be following the process of Batchwise recruitments while the TET has not been mandatory as qualification in India till 2010, while its real implication was followed in 2012. The candidates who deserve the appointments as per old rules must not be given more suffering now and they must be given jobs on batchwise recruitment rules as they have suffered a lot in last 8 years while the problem was not due to them.
(d) It is worthy to mention that Supreme Court had allowed appointments of the teachers on same old rules when it was subjected to be done.They were also delayed due to legal challenges. Same has occurred in this case.
Please see it
Judgement
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
CONTEMPT PETITION (CIVIL) NO. 297 OF 2007
IN
SPECIAL LEAVE PETITION (C) NO.22882 OF 2004
Nand Kishore Ojha
Vs.
Anjani Kumar Singh
O R D E R
ALTAMAS KABIR, J.
1. As indicated in our order dated 9th December, 2009, this Contempt Petition has a background of alleged breach of an undertaking given on 18th January, 2006 and the order passed on the basis thereof on 23rd January, 2006 in SLP(C)Nos.22882- 22888 of 2004. The said undertaking related to the commitment made by the State of Bihar to recruit and fill in the vacant posts of teachers in Primary Schools with trained teachers. The undertaking given by the State of Bihar is in that context and reads as follows :
“That in the meantime, it has been decided that trained teachers be recruited on the vacant posts available in the State of Bihar. The Bihar Elementary Teachers Appointment Rules, 2003 having been quashed by the Patna High Court, new recruitment rules are contemplated to facilitate recruitment of trained teachers in a decentralized manner, by giving them age relaxation as ordered by the High Court. That Chapters 6 and 7 of the Bihar Education Code relating to oriental education and hostels and messes will be kept in mind, as directed by the Patna High Court, while making recruitment of teachers.
That it is respectfully submitted that since the number of available trained teachers in the State is expected to be less than the available vacancies, no test for selection is required to that extent, a reference to this Bihar Public Service Commission for initiating the process of recruitment of trained teachers may not be necessary, and the order of this Hon’ble Court and of the Patna High Court in this regard may be modified”
2. The said application made for withdrawal of the Special Leave Petition was disposed of by this Court on 23rd January, 2006 on the basis of the submissions made therein.
3. Subsequently, when the State of Bihar failed to abide by its commitments and assurances, the petitioner herein, Nand Kishore Ojha, filed Contempt Petition 297 of 2006, which was disposed of on 19th March, 2007 by the following order :
“In view of the categorical statement now made that the priority will be given to the trained teachers in appointment and also the clarification made in paragraphs 19 to 22 of the aforesaid affidavit dated 7.2.2007, we direct the State of Bihar to implement the undertaking given by the State of Bihar earlier and also now by the present affidavit dated 7.2.2007 in letter and spirit by appointing the trained teachers on priority basis.”
4. Once again on the failure of the State Government to appoint trained teachers as Assistant Teachers in the vacant sanctioned posts carrying a pay-scale, in breach of the undertaking and the assurances given by the Government, the present Contempt Petition was filed. Many applications were made in the Contempt Petition by the trained teachers similarly situated, for being impleaded as parties to the proceedings. Ultimately, the learned Attorney General appeared before us on 25th August, 2009 and assured us that it was not the intention of the State of Bihar to resile from the undertaking given on its behalf, but that the situation had changed over the years, since the undertaking had been given and had become much more complex than was thought of at that point of time. Since no workable solution could be suggested which could satisfy the undertaking given by the State Government and, at the same time, to cause minimum amount of disruption in implementing the same, this Court took note of an advertisement for appointment of Primary Teachers, which was published in December, 2003 and had been struck down by the High Court, for the limited purpose of determining the total number of vacancies which were shown as 34,540. In order to put a quietus to the entire issue, we accepted the figure relating to the vacancies to the posts shown in the advertisement to meet the claims of the trained teachers who were, at the relevant point of time, available for being appointed on a regular basis. Accordingly, notwithstanding the number of trained teachers available, this Court directed that the available 34,540 vacancies shown in the advertisement for appoint of Primary Teachers to be filled up with the said number of trained teachers as a one-timemeasure to give effect to the undertaking which had been given on 18th January, 2006 and 23rd January, 2006. This Court also adjourned the Contempt Petition for implementation of the said order passed by us and for a report to be submitted on the next date as to the result of the discussions held between the petitioner and the concerned authorities.
5. Pursuant to the above directions, the matter was taken up on 6th May, 2010, when an Additional Affidavit affirmed by the Contemnor, Shri Anjani Kumar Singh, was shown to us. The deponent indicated that he was the Principal Secretary, Human Resource Development Department, Government of Bihar, and it was mentioned in paragraph 4 of the said Affidavit that 34,540 posts of Assistant Teachers had been created as a one-time-measure for appointment in Elementary Schools of the State of Bihar and to facilitate the process of recruitment, the Bihar Special Elementary Teachers’ Recruitment Rules, 2010, had been prepared and had been approved by the State Cabinet on 2nd February, 2010. On the said basis, it was averred that by creating 34,540 posts of Assistant Teachers, the State of Bihar had complied with the directions given by this Court on 9th December, 2009 as a one-time measure.
6. Mr. P.K. Shahi, learned Advocate General for the State of Bihar, took us to the Bihar Special Elementary Teachers’ Recruitment Rules, 2010, hereinafter referred to as “the 2010 Rules”, and pointed out that the same had been framed to give effect to the undertakings given by the State of Bihar and the orders passed by this Court from time to time. The learned Advocate General, therefore, submitted that in view of such compliance, the contempt proceedings were liable to be dropped.
7. Appearing for the Petitioners in Contempt Petition No.297 of 2007, Mr. R.P. Bhatt, learned Senior Advocate, submitted that although apparently it would appear that by the creation of 34,540 posts, the undertakings given on behalf of the State of Bihar and the orders passed by this Court had been duly complied with, in real fact, the same did not reflect the true state of affairs in view of the framing of the 2010 Rules which were in breach and not in compliance with the said undertakings. In particular, it was pointed out that Rule 4 of the said Rules provided that only those candidates who had passed training upto 1st December, 2003, could apply, which effectively debarred those trained teachers who passed training thereafter and were intended to be covered by the order of 6th May, 2010, for appointment as primary teachers. It was also submitted by Mr. Bhatt that teachers who had completed physical education training had not been included in the definition of the expression “training”, as provided in Rule 2(iv), although they too were to be covered by the order passed on 6th May, 2010, and the earlier orders.
8. Mr. L. Nageshwar Rao, learned Advocate, who appeared for some of the Special Leave Petitioners, submitted that the provision for reservation in Rule 6 of the aforesaid Rules would also result in the exclusion of a large number of trained teachers from the general category, since it was not expected that the total number of posts reserved would be filled from amongst trained teachers belonging to the reserved category. Mr. Rao also pointed out that the provision of Rule 9 were also prejudicial to the Petitioners, who even after their appointment would not be paid their salaries unless their certificates were found to be correct. Mr. Rao Submitted that such a condition could result in an indefinite delay in paying the salaries of the persons appointed.
9. Some of the other learned Advocates appearing for the other Petitioners and those candidates who had been permitted to intervene in these proceedings on the basis of their various applications, echoed the submissions made by Mr. Bhatt and Mr. Rao. All of them in one voice have reiterated the submission that all the 34,540 posts which have been created would have to be filled up without leaving any vacancies on the plea of reservation, as had been undertaken by the learned Advocate General for the State of Bihar, Mr. Shahi.
10. We have carefully considered the submissions made on behalf of the respective parties with regard to the affidavit of compliance filed on behalf of the State of Bihar and have also considered the submissions of the learned Advocate General for the State of Bihar with regard to the 2010 Rules.
11. While we appreciate the fact that the number of posts shown in the advertisement published in 2003 amounting to 34,540 have been created to be filled up by trained teachers, it must be said that it was never our intention that the conditions of the advertisement itself, which had been struck down by the High Court, were to be followed by the Bihar State Government. We had made it very clear in our order that we had referred to the advertisement only for the purpose of determining the number of vacancies which would be required to be filled up from amongst the trained teachers. It was very clearly our intention that all the 34,540 posts were to be filled up with trained teachers who were waiting for appointment, in order of seniority. The question of keeping some of the posts vacant on account of non-availability of reserved candidates was never the criterion in the order passed by us on 9th December, 2009. We must add that we are not for a moment suggesting that candidates from the reserved category should not be accommodated as per the reservation policy. What we intended was that after the number of candidates from the reserved category had been accommodated, the rest of the posts were to be filled up from amongst the candidates from the general category.
12. Having regard to the above, we once again direct that the said 34,540 posts, which have been created, be filled up from amongst the trained teachers in order of seniority after providing for appointment of candidates belonging to the reserved category as a one-time measure as indicated in our earlier orders and as also mentioned in the additional affidavit affirmed on behalf of the State of Bihar.
13. We would like it to be appreciated by the State of Bihar that these directions should be complied with within 31st August, 2010, without further delay. Let this matter stand adjourned till 8th September, 2010 at 3.30 p.m. for filing of compliance report.
…………………………………………J.
(ALTAMAS KABIR)
…………………………………………J.
(H.L. DATTU)
New Delhi
Dated : 12.05.2010
The above judgement is more than enough for the state govt. to make a distinct rule for the one time appointment of theses candidates who belong to earlier batches while batchwise appointments may be applied on them because they had completed the courses by 2005, however, only exam was conducted after 5 years in year 2010. The delay in exam for 5 years due to legal dispute may not be made the reason to impose TET on them and if it is mandatory, they must be given at least time of three years to complete it, but it will not be logical to impose it as the legal delay in the case is not offence of the trainees. Their posts were created in 2001 and hence, they must be filled on the rules applicable at that time. They had completed the course in 2005 but examinations were delayed.
(e) The state govt. and its education minister had given the written assurance to these 149 JBTs sitting on hunger strike for 83 days that they will get a new favourable policy and a decision in their favour within or before six months( i.e. upto 16-08-2008). The written message of Education Minister was sent to them through Department of Elementary Education on 16-02-2008 which was handed over to them by DDEO Elementary Education, Hamirpur in presence of S.P. Hamirpur. Due to this, they called off the strike at that time but the appointments have not been done yet. They have done the JBT course are even before 2008-10 batch which is enough to indicate that they are in worst condition and needy of the jobs in prior. Govt. must keep its promise as it is the question of its faith.
Please act immediately and provide them jobs now without TET. Matter is urgent and its one copy may be brought in notice of the cabinet meeting.
Thanking with regards,
Date:07-08-2012 Yours sincerely,
Vijay Kumar Heer, State President
Himachal Shikshak Kranti Manch, HP
V.P.O. Chkamoh, Tehsil Barsar
Distt. Hamirpur (HP) 176039
Fax: 01972286402
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