Himachal Pradesh High Court
Ram Swaroop vs State Of H.P. & Others on 21 March, 2017
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
CWP No.1406 of 2012
Reserved on : 28.2.2017
.
Date of Decision: 21.3.2017
Ram Swaroop ......Petitioner
Versus
State of H.P. & others ...Respondents
of
Coram:
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
rt
Whether approved for reporting? Yes.
For the petitioner : Mr. Purshotam Chaudhary,
Advocate.
For the respondents : Mr. Virender Kumar Verma, Addl.
AG, with Mr. Pushpinder Jaswal,
Dy. AG, for respondents No.1 to 3.
None for respondents No.4 & 5.
Chander Bhusan Barowalia, Judge
The present writ petition is maintained by the
petitioner against the respondents praying therein for
the following substantive reliefs :-
"(a) for issuance of direction to respondents
No.1 to 3 to release 95% Grant-in-aid in
respect of salary/allowance and other
consequential benefits to respondent No.4-
School, particularly in the case of
petitioner.
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(b) to direct the respondents to pay salary and
other allowances to the petitioner at parity
with Teachers working in Government
Schools from 2.6.2003, till the date of
.
actual payment alongwith interest at the
rate of 18% per annum and further
directions to the respondents to pay salary
and allowances to the petitioner in future
of
at par with Shastri Teachers working in
Government Schools working in aided
Schools."
2.
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The petitioner has submitted that he was
appointed as O.T. (Shastri Teacher) in Bilasa Senior
Secondary School, Bilaspur, Tehsil Dehra, District
Kangra, H.P., by respondent No.5, after having faced
interview conducted by the respondent No.5-Committee,
in which he was declared as one of the successful
candidates and thereafter, he was appointed as O.T.
(Shastri Teacher) in the respondent-School on 2.6.2003
and since then, he has been working as such.
3. It has been alleged that the petitioner has
passed Matriculation Examination from the H.P. Board
of School Education in the year 1986 and thereafter did
Visharad from Punjab University in the year 1988. The
petitioner also passed Shastri from Punjab University in
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the year 1992. It has been alleged that since his
appointment, the petitioner has been working with
utmost sincerity, dedication and missionary zeal.
.
4. It has further been contended that
respondent No.4-School has been duly receiving 95%
Grant-in-aid from the Government of Himachal Pradesh
of
and the School has also appointed the Teachers and
other Clerical staff for the smooth functioning of the
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School and also that the petitioner is working on a duly
sanctioned post. It has also been contended that
Respondent No.4-School is paying 5% of its share of the
salary to its staff, including the Teachers and rest of the
95% of share of the salary is being paid by the
Government of Himachal Pradesh. It has also been
averred that the similarly situated employees/Teachers
working in the said School are getting pay scale of
Shastri at par with that of Government School Teachers
working as School Cadre and that he is also entitled for
such benefit, but he is not getting the pay scale of Shastri
Teacher.
5. It has been alleged that he has orally
apprised the Authorities/Management of respondent
No.5 and also meeting them personally for the grant of
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scale of School Cadre Teacher at par with other School
Cadre Teachers working in the said School, but of no
avail.
.
6. It has been alleged that the State of
Himachal Pradesh had framed Rules called as "Grant-in
-Aid Rules", hereinafter referred to as the "Rules", which
of
have been incorporated in the Himachal Pradesh
Education Code and these Rules have been specifically
rt
made to grant 95% Grant-in-aid to privately managed
Schools. It has been submitted that once 95% Grant-in-
aid is granted to such Schools, the State Government has
deep and pervasive control over such Schools. The
relevant extract of the Rules ibid, as has been taken from
Para-4 of the judgment of the Hon'ble Apex Court,
rendered in (1995) 4 SCC-507, which is reproduced as
under:-
"45-Q. Management shall introduce such scales
of pay and allowances for teachers and to other staff
members as are prescribed by the Government for
corresponding staff in Government Schools.
45-J. That the income from subscription,
endowments and other sources (excluding fees)
suffices to ensure that the management can
contribute at least 5 per cent of the net expenditure
from their own funds after the School is aided".
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7. It has been averred that the aided Schools
teaches the same syllabus and curriculum, prescribe the
books and courses as per Government directions and
.
prepare the students for same examinations for which
the students studying in Government Schools are
prepared. It has also been averred that the qualification
of
of the Teachers is also prescribed by the State
Government and the appointments are being made with
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the approval of the State Government and the fee levied
and concession allowed are strictly in accordance with
the instructions issued by the Education Department
from time to time. It has been submitted that the
Managing Committees of the aided Schools are duly
approved by the State Government and two members of
the Committee are being appointed by the Education
Department and the service conditions of the Teachers
including disciplinary proceedings and award of
punishment etc. etc., are also governed by the Rules
framed by the State Government.
8. It has also been mentioned that after the
Kothari Commission's Report, the State Government has
a deep and pervasive control on the aided Schools and
they have always been treated at part. It has also been
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contended that this Hon'ble Court has authoritatively
laid down that the Teachers working in the aided Schools
are entitled to the same salary and allowances, as are
.
being paid to the Teachers in the Government Schools.
9. It has been averred that the Hon'ble Supreme
Court in the aforesaid judgment held that such Schools
of
are recognized, aided and are under deep and pervasive
control of the State Government, as such the Government
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is under an obligation to give Grant-in-aid to the Schools,
as envisaged under the Scheme of the Rules referred to
hereinabove. It has been mentioned that this Hon'ble
Court has also held the 95% Grant-in-aid valid, but the
year of Grant-in-aid was changed by the Hon'ble Apex
Court. It has been contended that the question of
Grant-in-aid to other similarly situated Schools came up
for consideration before this Hon'ble Court in Writ
Petition No.492/1997, titled Kailash Gupta & others
versus State of H.P. and that this Hon'ble Court allowed
the writ petition and issued directions to the privately
managed Schools, inter-alia, to take up the claim with
the State Government for the grant in aid for the period
it is due and on the claim so filed by the privately
managed school and the State Government shall pay the
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arrears of such Grant-in-aid and on receipt of the said aid
from the Government the management of the School
shall disburse the salaries and other allowances to the
.
staff within a prescribed period, as laid down in the
judgment. Thereafter, the State Government preferred
L.P.A. against the judgment rendered in CWP No.492 of
of
1997, which was registered, as LPA No.37 of 2004 and
the same was decided on 17.11.2008. The appeal
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preferred by the State of H.P. was dismissed in view of
the law laid down by the Hon'ble Apex Court in
Chandigarh Administration and others Vs. Rajni Vali
(Mrs.) and others, reported in (2002) 2 SCC 42.
10. It has also been averred that in another case
titled Balkar Singh & others versus State of H.P. & Ors.,
CWP No.970 of 2005, this Hon'ble Court in Division
Bench decided the same issue on 2.12.2009, which
squarely covers the case of the petitioner. In this case
also the teachers of the privately managed Senior
Secondary School, Intpur in District Kangra had claimed
the same benefit. So, the petitioner is also entitled for
95% share of his salary from respondents No.1 to 3 from
the due date till the date of actual payment and for
future salary, the petitioner is also entitled for parity of
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pay scale and allowances alongwith other Government
teachers, working as TGT (Arts). It has been averred
that respondent No.1 has considered the case of the
.
petitioner in view of the law already laid down by this
Hon'ble Court in the judgments referred supra and to
implement the same in his case in its true perspective to
of
avoid further litigation.
11. It has also been contended that respondent
rt
No.4-School, hereinafter referred to as respondent No.4, is
recognized and aided School, which falls within the
category of aided Schools and that similarly situated
teachers and other staff of this School are being paid
salary at par with the Government teachers/staff. The
petitioner is being discriminated without any rhyme or
reason in the matter of payment of salary etc. The
respondent No.1 is under legal obligation to get the
matter persuaded with respondents No.1 to 3 for his
legitimate right, as the petitioner is performing the same
and similar nature of duties as a School cadre Teacher,
as are being performed by other teachers, working in the
Government Schools or in the Schools, which are getting
95% Grant-in-aid. It has been submitted that the
judgment of this Court in a case titled Balkar Singh and
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others vs. State of H.P. (CWP No.970 of 2005) has been
implemented by the State Government and the judgment
passed by the learned Single Judge of this Court in CWP
.
No.492 of 1997, titled Kailash Gupta Vs. Secretary
(Education) and others was further upheld by this
Hon'ble Court in LPA No.37 of 2004, has also been
of
implemented. Therefore, the case of the petitioner is
squarely covered by the judgments, so, respondents No.1
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to 3 are required to be directed to grant 95% Grant-in-aid
to the said School so as to meet the outstanding dues
with regard to salary and other allowances including
consequential benefits to him and the due and admissible
arrears from the due date till the date of actual payment
be also paid to him with interest @18% per annum.
12. In the reply, Respondents No.1 to 3 have
submitted that the petitioner was appointed in gross
violation of the provisions laid down in Appendix-II of the
Grant-in-aid Rules, 1997. As per these Rules the
appointing authority shall advertise in both English and
vernacular daily Newspapers, in the State, with regard
to the vacancy(ies) to be filled in by giving full particulars
thereof, including the requisite qualifications, number of
vacancies to be filled in and the last date by which the
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applications may be submitted; in the alternative, name
of suitable candidates may be obtained through the
Employment Exchanges and the appointment shall be
.
made by a Sub-Committee consisting of five members of
Managing Committee and a representative/nominee of
H.P. Education Department. The members of the Sub-
of
Committee other than Departmental Nominee shall be
appointed by the Managing Committee. It has further
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been submitted that in the case of the petitioner, the
Appendix-II of the Rules ibid has been grossly violated.
It has been submitted that the petitioner has not placed
on record the strict proof with regard to his appointment,
as Shastri, in the School, under reference and the merit
list has also not been placed on record to prove that the
interview has been conducted by the Managing
Committee of the said School, which clearly reflects the
violation of the Rules. It has further been submitted that
in COPC No.351 of 2011, this Hon'ble Court has also held
that the obligation of the Government to release the
Grant-in-aid will arise only in case the appointment is
made in terms of the relevant Rules and not otherwise. It
has been submitted that the appointment of the
petitioner was made by the Managing Committee of the
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School. Hence, it has been submitted that the claim of
the petitioner for Grant-in-aid is not justified.
13. The petitioner also submitted the rejoinder to
.
the reply filed by respondents No.1 to 3 and reiterated
the contents, as mentioned in the writ petition. The
petitioner has further submitted that the respondents
of
have intentionally evaded real issue raised by him.
Further, that he has raised a specific issue that
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respondent No.4 is receiving 95% Grant-in-aid from the
Government of Himachal Pradesh, but he is not being
paid the same salary and allowance at part with the
similarly situated persons and the respondents instead of
addressing the real issue have raised altogether different
issues just to divert the attention of this Hon'ble Court.
The respondent School is duly recognized and aided and
falls within the category of aided Schools, and the
similarly situated employees and staff are being paid
salary at par with the Government Teachers/Staff and
the petitioner is deprived of his legitimate right. So, he
has prayed that he be allowed relief.
14. Heard learned counsel for the parties.
15. Learned counsel for the petitioner has argued
that the petitioner like other similarly situated persons is
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also entitled for the Grant-in-aid, as he is working
regularly and continuously till the School is taken over
by the State Government. On the other hand, the
.
learned Additional Advocate General has argued that the
petitioner was not appointed as per the Government
instructions and he was appointed without following the
of
proper procedure and, therefore, the State is not liable to
pay Grant-in-aid. In rebuttal, the learned counsel for the
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petitioner has argued that this matter has already been
settled by the various pronouncements of the Hon'ble
High Courts and to substantiate this fact has relied upon
the latest judgment of this Hon'ble Court rendered in
case titled Promila Devi vs. State of H.P. & ors, CWP
No.226 of 2010, decided on 2.4.2015, in which the
petitioner has also been held entitled for grant in aid.
16. To appreciate the arguments adduced by the
learned counsel for the parties, I have gone through the
record in detail. So far as the factual position is
concerned, it has come on record that the working of the
petitioner as O.T. (Shastri) in Respondent No.4-School is
proved by the petitioner and he has also placed on record
to that effect his appointment letter (Annexure P-1)
alongwith his rejoinder. At the same point of time, it is
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also proved on record that the petitioner is working in
the School from the year 2003, when other teachers are
working on the post and has joined the government
.
service. Now when the petitioner has been working in
the School for such a long time, he is required to be
considered whether at the time of granting Grant-in-aid
of
by the Government this fact that he was not appointed as
per the instructions of the Government after giving due
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advertisement is immaterial. The Hon'ble Apex Court in
a case titled State of HP vs. H.P. Recognized and
Aided Schools Managing Committee and others" has
held as under:-
"The State of Himachal Pradesh,
therefore, is committed to implement the
Kothari Commission recommendations
regarding parity in the pay scales of the
teachers working in the government schools
and the aided schools. While agreeing in
principle to revise the pay-scales of the
teachers in the aided schools and also to meet
95% of the net approved expenditure, the
Himachal Government has fixed the maximum
limit upto which the grant can be paid to
various schools. In this respect we may notice
Rule 47(2) of the Rules which is as under :
"(2) Management of the aided schools shall be
required to meet 5 per cent of the net approved
expenditure in any school year. The balance of
the expenditure being met from the
Government grant, the net approved
expenditure being the total expenditure
approved by the Education Department minus
the income from the fees, fines, etc. In case of
girls schools and schools located in scarcely
populated area the Government may, at its
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discretion authorise payment of Grant-in-aid to
the full extent of the difference between
approved expenditure and approved income.
This authority shall be exercised by the
Government only in special circumstances
where the school management is unable to meet
.
the deficit from its own financial resources. The
grants as assessed above shall be admissible
subject to the maximum amount shown against
each category of institutions:-
The Government has laid down the following
enhanced maximum limits :-
1. High/Higher Secondary Schools having
of
more than 1000 students and classes 1 to
X/l to XI : Rs. 20,000
2.rt High/Higher Secondary Schools having
less than 1000 students and classes 1 to X/l
to XI : Rs. 17,000/-
3. Higher Secondary Schools having classes
VI to XI : Rs. 15,000/-
4. Higher Secondary Schools having classes
VI to X classes: Rs. 15,000/-
5. High Schools having Classes IX to X:
Rs. 15,000/-
6. Middle Schools classes I to VIII: Rs. 10,000/-
7. Middle Schools classes VI to VIII: Rs.
8,000/-
8. Primary Schools classes I to V: Rs. 3,000/-. After
the introduction of 10 + 2 system, the limits of
maximum Grant-in-aid respect of Senior
Secondary Schools, recognized and privately
managed, are as under :-
(1) Where the students are less than 1000
: Rs. 30,000/-
(2) Where the students are more than 1000
Students : Rs, 35,000/-
The aided schools teach the same syllabus and
curriculum, prescribe the books and courses as
per Government directions and prepare the
students for same examinations for which the
students studying in government schools are
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prepared. The qualifications of the teachers are
prescribed by the State Government and the
appointments are made with the approval of
the State Government. The fees levied and
concessions allowed are strictly in accordance
with the instructions issued by the Education
.
Department of the State Government from time
to time. The Managing Committees of aided
schools are approved by the State Government
and two members of the Committee are
appointed by the Education Department. The
service conditions of the teachers including
disciplinary proceedings and award of
punishment etc. are governed by the Rules
framed by the State Government.
of
It is, thus, obvious that the State
Government has a deep and pervasive control
on the aided schools. The Government Schools
rt
and the aided school specially after the Kothari
Commission Report - have always been treated
at par. It has been authoritatively laid down by
this Court that the teachers working in the
aided schools are entitled to the same salaries
and allowances as are being paid to the
teachers in the Government schools. In
Haryana State Adhyapak Sangh and Ors, Etc,
v.State of Haryana and Ors., [1988] Suppl. 1 SCR
682 Pathak, CJ speaking for this Court held "in
our opinion, the teachers of aided schools must
be paid the same pay scale and dearness
allowance as teachers in the Government
schools for the entire period claimed by the
petitioners...". This judgment was subsequently
interpreted by this Court in Haryana State
Adhyapak Sangh and Ors. v. State of Haryana
and Ors., AIR (1990) SC 968, where Agrawal, J.
speaking for the Court observed as under :
"The judgment of this Court dated July 28, 1988 also accepts the principle of parity in the matter of salaries and dearness allowance of teachers employed to aided schools and those employed in Government schools and there is nothing in the judgment which indicates that the said principle of parity is to be applied upto December 31,1985 only, and not thereafter. In the circumstances we are of the view that the direction of this Court in the judgment dated July 28,1988 must be construed to mean that the respondent are required to maintain such parity and to revise, from time to time, the pay scales and dearness allowance of the teachers ::: Downloaded on - 15/04/2017 22:02:41 :::HCHP 16 employed in aided schools as and when the pay scales and dearness allowance of teachers employed in Government schools are revised. It is, therefore, incumbent upon respondent to revise the pay scales of teachers employed in the aided schools so as to bring the same at par .
with the pay scales of the teachers employed in the Government schools with effect from January 1, 1986 and fix the salaries of the teachers employed in aided schools in the revised pay scales with effect from January 1, 1986 and pay the salaries and dearness allowance to these teachers on that basis."
It is, therefore, late in the day to say that of the teachers in the aided schools are not entitled to parity in the matter of salary, allowances etc. with their counterparts in the Government schools. The question, for our rt consideration, however, is whether the State Government or the management is to meet the consequent expenditure".
17. In a case titled Haryana State Adhyapak Sangh v. State of Haryana, it has been held as under:
"In our opinion, the teachers of the aided Schools must be paid the same pay scales and dearness allowance as teachers in the government Schools for the entire period claimed by the petitioners". The petitioner has also submitted that this judgment was also subsequently interpreted by this Hon'ble Court in Haryana State Adhyapak Sangh v. State of Haryana and observed as under:
"The judgment of this Court dated 28.7.1988 also accepts the principle of parity in the matter of salaries and dearness allowance of teachers employed in aided Schools and those employed in Government Schools and there is nothing in the judgment which indicates that the said principle of parity is to be applied up to 31.12.1985 only, and not thereafter. In the circumstances we are of the view that the directions of this Court in the judgment ::: Downloaded on - 15/04/2017 22:02:41 :::HCHP 17 dated 28.7.1988 must be construed to mean that the respondents are required to maintain such parity and to revise, from time to time, the pay scales and dearness allowance of the teachers employed in aided .
Schools as and when the pay scales and dearness allowance of teachers employed in government schools are revised. It is, therefore, incumbent upon respondents to revise the pay scales of teachers employed in the aided schools so as to bring the same at par with the pay scales of the teachers employed in of government schools with effect from 1.1.1986 and fix the salaries of the teachers employed to pay the salaries and dearness allowance to these teachers on rt that basis."
"14. It has therefore, been contended that it is not late in the day to say that the teachers in the aided Schools are not entitled to parity in the matter of salary, allowances etc. etc. with their counterparts in the government Schools. The question for consideration, however, is whether the State Government or the Management is to meet the consequent expenditure."
18. From the above, it is clear that as the petitioner was regularly working in the School and was discharging his duties to the best of his ability and at no point of time, there was no reasons with regard to his appointment in the School. A learned Single Bench of this Hon'ble Court in CWP No.226 of 2010, titled Promila Devi vs. State of H.P. & ors, decided on 2.4.2015, has held as under:
::: Downloaded on - 15/04/2017 22:02:41 :::HCHP 18"9. The matter can be looked from a different angle. Indisputably the petitioner had been appointed and assigned the duties to teach the students and such duties have been continuously performed by her.
.
Then can the respondents, who are model employers, be permitted to act with total lack of sensitivity and indulge in "Begar", which is specifically prohibited under Article 23 of the Constitution of India.
10. The State government is expected to function of like a model employer, who is under an obligation to conduct itself with high probity and expected candour and the employer, who is duty bound to act as a rt model employer has social obligation to treat an employee in an appropriate manner so that an employee is not condemned to feel totally subservient to the situation. A model employer should not exploit its employee and take advantage of their helplessness and misery. In the present case the conduct of the respondents falls short of expectation of a model employer.
11. It is not the case of the respondents that petitioner has not discharging her duties diligently, honestly and faithfully. Therefore, in such circumstances by claiming grant in aid on regular basis the petitioner has not asked for the moon. Not only is the petitioner entitled to regular grant in aid but having worked for nearly a decade, the petitioner can also not be denied her legitimate claim for regularization.
12. A similar question came up for consideration before learned Division Bench of this Court in Pritam Singh versus State of Himachal Pradesh and others, CWP No.4098 of 2012 decided on 13.09.2012 and it is ::: Downloaded on - 15/04/2017 22:02:41 :::HCHP 19 apt to reproduce Paras 2 to 4 of this judgment which reads thus:
"2. The admitted facts are that from 30th November, 1992 the petitioner was working as .
part time sweeper/ water carrier at Govt.
Senior Secondary School, Kalal, District Bilaspur. He was appointed by the Parents Teacher Association at Rs.200/- per month. In 2003 a certificate was issued by the Principal of of the school that the petitioner has worked for more than 10 years. The salary of the petitioner in 2004 was increased from Rs.200/- rt to Rs.500/-. The petitioner had also applied for the post of water carrier but he was not selected.
3. We called for the record and we find that the selection of respondent No.4 cannot be said to be invalid. At the same time we cannot be oblivious to the fact that the petitioner has worked as part -time worker for more than 20 years. It may be true that he has worked on part time basis and was employed by the Parents Teacher Association but the fact remains that he has worked for 20 years.
An employee who worked for 20 years has genuine expectation that over a period of time he would be regularized.
4. Without going into the merits of the case and without making this case a precedent, keeping in view the peculiar facts and circumstances of the case we direct that in case the work of sweeper or any other work of similar nature is available in the school then it is the petitioner alone who shall be offered ::: Downloaded on - 15/04/2017 22:02:41 :::HCHP 20 appointment against the said post and such post shall not be given to any other person. The petition is disposed of accordingly. No costs."
.
19. In the present case also, the petitioner has discharged his duties diligently and honestly, therefore, in my considered view, it is a fit case where the of respondents are required to be directed to release Grant-in-aid in respect of the petitioner. So, the present rt writ petition is allowed.
20. Taking node from the aforesaid judgment and bearing in mind the peculiar facts and circumstances of the case, more particularly the fact that the petitioner has been working for more than a decade continuously, this Court is of the view that the following direction would sub-serve the ends of justice:-
(i) The respondents are directed to release the Grant-in-aid in favour of the petitioner from the date when the Grant-in-aid Rules were notified and till the time the petitioner discharged his duties as O.T. (Shastri).
21. The aforesaid direction be complied within a period of two months. The petition is disposed of.
::: Downloaded on - 15/04/2017 22:02:41 :::HCHP 21However, in the peculiar facts and circumstances of the case, there is no order as to costs.
22. All pending application(s) if any, also stand(s) .
disposed of.
(Chander Bhusan Barowalia) Judge 21.3.2017 (M. gandhi) of rt ::: Downloaded on - 15/04/2017 22:02:41 :::HCHP 22 .
of rt ::: Downloaded on - 15/04/2017 22:02:41 :::HCHP