- (1.) This judgment would dispose of instant petition and 19 other Civil Writ Petitions filed under Article 226 of the Constitution as per the foot note recorded at the end of this judgment. The facts are being referred from C.W.P. No. 13633 of 2005. The petitioners are JBT Teachers who have been working in the schools administered by Zila Parishads. These schools were with the State Government before 30.3.2001 when these Schools were transferred to Zila Parshads and Municipal Committees. The respondents have again issued a notification dated 10.08.2005 (P-5) transferring these schools back to the Education Department of the respondent State. The notification dated 10.08.2005 has imposed some onerous conditions on the petitioners, who were recruited and appointed by Zila Parishads after taking over on 30.3.2001. It has been prayed that notification dated 10.8.2005 (P-5) be set aside to the extent it has imposed onerous conditions on the petitioners viz. (A) To complete their graduation within five years; (B) pass the examination proposed to be conducted by the Education Department; and (C) Challenge has also been made to the other condition that the petitioners were to be considered new entrants in the Education Department without any weightage to their service rendered in Zila Parishads.
(2.) In order to place the controversy in its proper perspective few more facts deserves to be noticed. Before 30.3.2001, there was only one category of Primary School Teachers/JBT Teachers and they used to be governed by the statutory Rules known as 'the Haryana Primary Education (Group 'C') District Cadre Service Rules, 1994 (for brevity, 'the 1994 Rules'). The whole Department of Primary Education was under the administrative control of Education Department, Haryana. However, on 30.3.2001, the functioning and control of the Government Primary Schools was handed over to the Zila Parishads and Municipal Committees. Accordingly, the services of all the then existing JBT teachers were transferred to the respective Zila Parishads and Municipal Committees by issuance of notification dated 30.3.2001 (P-1). The aforementioned step was taken keeping in view the provisions of Articles 243G and 243W of the Constitution read with Section 21 of the Haryana Panchayati Raj Act, 1994, and Section 66-A of the Haryana Municipal Act, 1973. According to the notification the functioning and control of all the Government Primary Schools in the rural areas in the State of Haryana was transferred to the respective Zila Parishads whereas all Government Primary Schools in the urban areas were transferred to the respective Municipal Committees within their jurisdiction. The aforementioned transfer was subject to various terms and conditions. As many as XIII conditions were imposed but for the purposes of the instant petition, Condition Nos. (iii), (iv), (v), (vii), (viii), (ix), (x) and (xi) are relevant, which are as under :- "(iii) Immovable/Movables assets and liabilities shall vest in Zila Parishads/Municipalities for a period of five years in the first instance and thereafter can be considered for regular transfer to these authorities. Vesting/transfer of assets will be done through District Collector after observing necessary formalities. Government will have inherent right to resume the property. Without awarding any compensation for a additions/values added to the property during possession with Zila Parishads/Municipalities. Maintenance/additions in the property will be made by Zila Parishads/Municipalities. The property so vested will be used only for educational purposes and will not be put for any other use. (iv) The services of existing teachers are placed at the disposal of Zila Parishads/Municipalities, as the case may be. The terms and conditions of service of existing staff will be protected. They shall continue to receive salary and other allowances as admissible to the Government servants from time to time. (v) The existing cadre of teachers, on such transfers to Zila Parishads/Municipalities will become diminishing cadre, Government shall not make any appointment after the transfer of Institutions to Zila Parishads/Municipalities. Vacancies arising out of retirements/promotions/other eventualities such as creation of posts etc. will be filled in by the Zila Parishads/Municipalities as per guidelines to be issued by the Government from time to time. Strength of such new teachers will form a new Zila Parishad/Municipality cadre for which they will frame their own rules with the approval of Government. xxx xxx xxx xxx xxx xxx xxx xxx xxx (vii) The offices of Block Education Officers and District Primary Education Officer will continue to function as hither to fore, however, they will be declared ex-officio authorities under the Zila Parishads/Municipalities for discharging the functions in respect of school education to be assigned to Zila Parishad/Municipalities and for the purpose they will be accountable to Zila Parishad/Municipalities. (viii) Now new school will be opened by the Zila Parishads/Municipalities without the approval of the Government. (ix) Funds under the State/Centrally aided/Centrally sponsored schemes will be provided by the Government to the Zila Parishads/Municipalities. (x) Hundred percent funding for the disbursement of salary to the teachers to be appointed by the Zila Parishads/Municipalities will be done by the Government in the form of grant-in-aid. (xi) Matters pertaining to loans, advances, pension etc. of the existing teachers would remain with the Government."
(3.) It is, thus, obvious that practically functional control was given in the hands of Zila Parishads/Municipal Committees by vesting moveable and immovable assets and liabilities in their hands. The arrangement was made for a period of five years and the terms and conditions of service of the then existing staff were protected. It was stipulated that they were to continue to receive salary/other allowances as admissible to the Government servants from time to time. It was further stipulated that the cadre of teacher as it existed on the date of transfer was to become diminishing cadre and the State Government was not to make any appointment after transfers were made on 30.3.2001. However, vacancies arising out of retirement/promotions/other eventualities including creation of posts were to be filled up by Zila Parishads/Municipalities as per the guide lines to be issued by the Government. It was also clarified that such new recruits were to constitute Zila Parishad/Municipality cadre for which they were to frame their own Rules with the approval of the Government. The Government was to provide 100% funds for disbursement of salary to the teachers who might be appointed by the Zila Parishads/Municipalities, in the form of grant-in-aid. It is also pertinent to mention that the Development and Panchayat Department of the respondent State framed rules for the JBT Teachers, which are known as "the Haryana Zila Parishad Primary Education Service Rules, 2003" (for brevity, 'the 2003 Rules'). However, no rules appear to have been framed for the JBT teachers who were to be recruited by the Municipalities. It is, thus, evident that two categories of JBT teachers have been envisaged by notification dated 30.3.2001, namely, (a) those JBT teachers who were working in the Education Department of the State and were transferred to Zila Parishads/Municipalities and they were to be governed by the 1994 Rules; and (b) those JBT teachers who were to be recruited by the Zila Parishads subsequently. The teachers recruited by the Zila Parishads were to be governed by the 2003 Rules. It is appropriate to mention that in all the petitions, the petitioners belong to aforementioned category (b) of the JBT teachers as they have been selected and appointed by the Zila Parishads in pursuance to 2003 Rules. It is also appropriate to mention that all qualifications prescribed in the 2003 Rules for JBT teachers belonging to category (b) are the same which were prescribed by the 1994 Rules and even their mode of selection is the same. Accordingly, the Haryana State Staff Selection Commission, somewhere in July/December 2004 advertised the posts of JBT teachers on the requisition of Zila Parishads. The petitioners who were eligible had applied, selected and were appointed on regular basis on the basis of recommendations made by the Commission. They continued working on regular basis. Copy of one such appointment letter has been placed on record as Annexure P-3.;