Himachal Pradesh High Court
Roop Lal vs State Of Himachal Pradesh And Others on 19 April, 2024
Bench: Tarlok Singh Chauhan, Sushil Kukreja
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWPOA No.6687 of 2020 a/w CWPOA
.
No.4118 of 2020, CWPs No.6456 of
2021, 1924 of 2022, 2404 of 2022, 1615
of 2023, 1911 of 2023, 2598 of 2023
and 4866 of 2023.
Judgement reserved: 02.04.2024.
Date of decision: 19.04.2024.
1. CWPOA No. 6687 of 2020
Roop Lal
r to .....Petitioner.
Versus
State of Himachal Pradesh and others
.....Respondents.
2. CWPOA No.4118 of 2020
Dhirender Singh and others .....Petitioners.
Versus
State of Himachal Pradesh and others
.....Respondents.
3. CWP No. 6456 of 2021
Versha Kumari and others .....Petitioners.
Versus
State of Himachal Pradesh and others ......Respondents.
4. CWP No. 1924 of 2022
Kanta Sharma ......Petitioner.
Versus
State of Himachal Pradesh and others ......Respondents.
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5. CWP No. 2404 of 2022
Meera Devi .....Petitioner.
.
Versus
State of Himachal Pradesh and others .....Respondents.
6. CWP No.1615 of 2023.
Maya Ram and another .....Petitioners.
Versus
7. CWP No. 1911 of 2023.
Vinay Kumari
r to
State of Himachal Pradesh and others ......Respondents.
......Petitioner.
Versus
State of Himachal Pradesh and others ......Respondents.
8. CWP No. 2598 of 2023.
Virender Sharma and another .....Petitioners.
Versus
State of Himachal Pradesh and others ......Respondents.
9. CWP No. 4866 of 2023
Vishal Kumar .....Petitioner.
Versus
State of Himachal Pradesh and others ......Respondents.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Sushil Kukreja, Judge.
Whether approved for reporting?1 Yes
1
Whether the reporters of the local papers may be allowed to see the Judgment?Yes
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For the Petitioner(s) : Mr. C.N.Singh, Advocate, for the
petitioner(s) in CWPOA Nos. 6687 of
2020, 4118 of 2020, CWP Nos. 1924 of
.
2022, 2404 of 2022, Mr. Devender K.
Sharma, Advocate, for the petitioner
in CWP No. 6456 of 2021, Ms. Ranjana
Devi, Advocate for the petitioner in
CWP No. 1615 of 2023, Mr. Amrick
Singh, Advocate, for petitioner in
CWP No. 1911 of 2023 and Mr. Kush
Sharma, Advocate, for the petitioner
in CWP Nos. 2598 and 4866 of 2023.
For the Respondents : I.N. Mehta and Mr. Yashwardhan
Chauhan, Senior Additional Advocate
Generals with Mr. Ramakant Sharma,
Ms. Sharmila Patial, Additional
Advocate Generals and Mr. J.S.
Guleria, Deputy Advocate General,
for the respondents-State.
Mr. Balram Sharma, DSGI, for the
respndent-UOI.
Mr. Amrick Singh and Mr. Anuj Bali,
Advocates, for the respective
respondents.
Tarlok Singh Chauhan, Judge
Since, common questions of law and facts arise for
consideration in all these petitions, therefore, they were taken up
together for hearing and are being disposed of by a common
judgment.
2. Broadly, the prayers made in all these petitions are:
(i) to issue the direction to the respondents to
immediately provide consolidated salary/pay scales to
the petitioner(s) at par with their counter-parts in other
Government schools of visually challenged and with
impaired hearing children and extend the benefits of the
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respondent-State policy/schemes equally to the
petitioner(s) for all intents and purposes;
.
(ii) to issue a direction to the respondents to
immediately consider the cases of the petitioner (s) for
regularization against their post with effect from the
date they completed the requisite years of contractual
services in terms of the Government policy with respect
to regularization of contractual employees with all
consequential benefits;
(iii) to issue a direction to the respondent to count the
contractual services of the petitioner(s) towards their
regular services with all consequential benefits."
3. The petitioner(s) is/are/were the employees of an
institute of the School/Home for speech and hearing impaired
children, Dhalli, Shimla, H.P. duly run by the H.P. State Council for
Child Welfare and Education ( for short "Council"). Their claim is
that even though they were appointed on contractual basis and were
thereafter discharging their duties and responsibilities at par with
that of their counter-parts employed in the Government schools for
the visually and impaired hearing children, yet they were being
discriminated against qua their counter-parts at every step, be it
grant of pay, regularization and pension etc. etc.
4. The respondents have filed their reply(ies) wherein it
has not been disputed that the petitioner(s) has/have been
performing same duties and shouldering the same responsibilities.
However, the claim of the petitioner(s) has been denied only on the
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ground that he/they is/are/were the employee(s) of the Council
which is a voluntary organization and receives grant-in-aid from the
.
Government of India and State Government. The Council has its
independent office/infrastructure in the State and for implementation
of various schemes/projects, staff under various schemes have been
appointed by the Council at its own level on the basis of the
prevalent rules and bye-laws formulated by the Council. The
Council is running institutions for disabled children at Dhalli, (Shimla)
and Dari (Dharamshala). These institutions are being run under
Deen Dayal Disability Rehabilitation Scheme. It is further averred
that since the petitioner(s) is/are not government employees and are
not holding any civil post in the Government department, therefore,
they cannot claim any benefit(s), as sought for, in the petitions, from
the respondents.
5. This Court while hearing one of the petitions i.e. CWP
No. 1924 of 2022 on 12.09.2022 passed the following order:
"The instant petition has been filed for grant of the
following substantive reliefs:
"i) issue a writ of Certiorari, Mandamus or other
appropriate writ, Order, directions as this Hon'ble Court
deems fit directing the Respondents to consider the case
of the Petitioner for the grant of equal pay for equal
wages/regular pay scales, allowances, increments on the
post of Instructor, promotion avenues in the School/Home
for Blind Children Balkunj Dhalli, Shimla-12 w.e.f.
05.03.1981 in parity with the regular scales allowances
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service benefits etc in the Respondent State run
School/Home for Blind with all consequential benefits.
.
ii) Accordingly Issue a writ of Certiorari, Mandamus or
other appropriate writ ,Order, directions as this Hon'ble
Court deems fit directing Respondents to re-fix the pay of
the Petitioner on the post of Instructor in the
School/Home for Blind Children Balkunj Dhalli Shimla-12.
w.e.f. 05.03.1981 till her superannuation 29.02.2016 for
all intents and purposes, service pensionary benefits in a
time bound manner.
iii) Issue a writ of Certiorari, Mandamus or other
appropriate writ Order ,directions as this Hon'ble Court
deems fit directing the Respondents to pay service
benefits, pay perks allowances etc for the work i.e.
Principle performed by the Petitioner i.e. Principal
School/Home for Visually Challenged Children, Dhalli,
Shimla H.P. w.e.f. 07.07.2010 up to 29.02.2016, has
been denied (for 5 years 7 Months and 22 days) till her
superannuation in terms of rules regulation and in terms
of principles of equal pay for equal work.
iv) Accordingly Issue a writ of Certiorari, Mandamus or
other appropriate writ, Order directions as Court deems
fit this Hon'ble directing the Respondents to pay the
Petitioner, the arrears/ difference (salary etc for the post
of Instructor in the School/Home for Blind Children
Balkunj Dhalli, Shimla-12 w.e.f. 05.03.1981 till date as
per the revised regular scales from time to time, with
interest @ 12 percent p.a. within a time bound manner.
v) Issue a writ of Certiorari, Mandamus or other
appropriate writ, Order directions as this Hon'ble Court
deems fit directing the Respondents accordingly to
release the service benefits i.e. gratuity, leave
encashment, pensionary benefits etc. up to date within a
time bound manner."
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2 We are not at all satisfied with the reply filed on
behalf of respondents No. 1 and 2 as it reflects complete
.
insensitivity to the issue in question.
3 Here is a teacher, who has devoted and spent her
entire life in educating the visually challenged children at
School/Home for Blind Children, Balkunj, Dhalli, and is
being denied legitimate dues only on the ground that she
was employed not under the State Government, but by an
NGO.
4 The respondents probably have been oblivious to the
fact that so-called NGO i.e. H.P. State Council for Child
Welfare Craig Garden, Shimla-2, is none other than an
NGO created by the government itself, which is fully owned
and controlled by the Government of Himachal Pradesh.
5 That apart, there has to be an adequate amount of
compassion while dealing with cases of the instant types
where the people, like the petitioner, have devoted and
spent their entire life in the service of most disadvantage
class i.e. visually challenged children.
6 There would be hardly a handful people in the State,
those would be claiming such kind of benefits as in the
instant case. Therefore, in the given circumstances, we
direct respondent No.1 to personally look into the matter
and deal with the case of the petitioner from a human angle
and not on technical issues so to ensure that legitimate
claim of the petitioner and similarly situated persons is not
denied. Let this exercise be completed within a period of six
weeks from today.
7 We have no doubt in our mind that respondent No.1,
while examining the matter, shall take into consideration
the judgments rendered on the subject, more particularly,
recent judgment rendered by Three-Judge Bench of the
Hon'ble Supreme Court in Rajesh Kumar Pandey & ors.
Vs. Union of India & ors., 2021 (3) SCALE 199, and the
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directions contained in para 57 thereof, which read as
under:-
.
A. The Central Government must forthwith notify the
norms and standards of pupil-teacher ratio for special
schools and also separate norms for special teachers
who alone can impart education and training to CwSN
in the general schools; and until such time, as a
stopgap arrangement adopt the recommendations
made by the State Commissioner, NCT of Delhi in the
case of Ms. Reshma Parveen reproduced in
paragraph 51 above;
B. To create commensurate permanent posts as per
the just ratio to be specified by the competent
authority for the rehabilitation professionals/ special
teachers who can cater to the needs of CwSN;
C. To initiate appointment process to fill-in vacancies
for the posts so created for rehabilitation
professionals/special teachers for being appointed on
regular basis. The same shall be completed within six
months from the date of this order or before the
commencement of academic year 2022-2023,
whichever is earlier;
D. To overcome the shortage of resource persons
(rehabilitation professionals/special trained teachers),
the training schools/institutions must take steps to
augment the number whilst ensuring that the norms
and standards specified under the governing laws
and regulations including that of the Council for grant
of recognition and registration are fulfilled;
E. Until sufficient number of special teachers
becomes available for general schools and special
schools, the services of special trained teachers can
be availed as itinerant teachers as per the SSS within
the school block (cluster schools) to optimize the
resource persons and as a stopgap arrangement;
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F. The other teachers and staff in the general schools
be given compulsory training and sensitized to handle
.
the CwSN in the general schools, if admitted; and
G. The authorities may also explore the possibility of
merging unviable special schools with relatively
viable special schools in the neighbourhood, so as to
entail in consolidation of assets and resources for
better delivery to the requirements of CwSN.
8 These directions otherwise have been made
applicable to the entire country as is evident from para 8 of
the judgment, which reads as under:-
8. The Court had granted time to the respondent-
r State(s) to take corrective measures. When the
matter was notified on 4.4.2019, it was reported that
substantial measures have been taken in terms of the
Scheme of Integrated Education for the Disabled
Children 1992. The order reads thus:
"We have perused the affidavit dated 01.04.2019
filed by the Chief Secretary, State of Uttar Pradesh
in pursuance to our order dated 07.03.2019.
We are happy to note that, effective measures
have been provided for as indicated in the Scheme
of Integrated Education for the Disabled Children
1992 and the plan for implementation thereof.
We have no difficulty in giving two months' time to
the State Government to comply with the
assurance given to the Court on affidavit. However,
we expect the Chairman of the nodal Committee to
submit periodical report to this Court on monthly
basis.
List the matters on 10th July, 2019.
We are conscious of the fact that some of the time-
lines transcend beyond two months but we deem it
appropriate to list the matters on 10th July, 2019 as
the progress already done can be reviewed and
appropriate directions be given, if required."
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9 For compliance, list on 7.11.2022."
.
6. However, the respondent-State, instead of taking into
consideration the aforesaid order, took a decision on 20.05.2023
which reads as under:
"I. That the petitioner was not a State Government employee
as she was not working any civil post. The petitioner was the
employee of the HP Council for Child Welfare who is an
NGO and the State Government provides Grant-in-aid as
per the provision of the scheme framed for the purpose. The
issues of allowing pay scales of its staff and other service
benefits, promotion etc. as claimed by the petitioner are
required to be settled by the Council itself keeping in view its
resources.
II. Most importantly, the Central Services Rules and Pay
Rules which are applicable are applicable only to the State
Government employees working on civil posts and are not
automatically applicable in case of the employees of any
NGO etc. therefore, the employee of any NGO cannot
claim parity in pay and other service benefits at par to the
State Government employees.
As per the information provided by the respondent No.3,
HP Council for Child Welfare, no retirement benefits i.e.
gratuity, leave encashment and pension have been paid to
any of the employees who have retired from the
establishment of respondent Council therefore, the
petitioner is also not entitled to have any retirement benefit
as claimed for, more particularly from the State
Government.
IV. The petitioner was offered appointment to the post of
Teacher for Braille Technique on regular basis vide letter
dated 28.02.1996 in the Government run, Institute for
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Children with Special Ability (Girls) at Sundernager, District
Mandi, however the petitioner had not accepted the
.
aforesaid offer. If the petitioner had accepted the same,
she would have been allowed and automatically entitled to
have all the services benefits as are available to other
State Government employees.
V. Further, there are also various other NGOs which are
running various institutes for the special children and
regardless the above facts and circumstances, the
employees working in other NGOs in Himachal Pradesh,
who are working on similar situate post may also claim
such benefits, which are otherwise not admissible to them,
and this would lead multiplicity of litigations in future and
put huge financial burden on the State Exchequer."
7. Having made note of the aforesaid order, this Court
proceeded to pass an order on 26.06.2023, the relevant portion
whereof reads as under:
"3 We are at complete loss to appreciate as to what is
the compulsion of the respondent-State in running an NGO,
which is performing exactly the same functions and
discharging the same duties as are being discharged by the
State Government employees.
4 We further fail to understand as to why the
respondent-State is only encouraging litigation by not
closing down these NGOs in question and merging staff so
appointed therein with its own employees when the
respondent-State is not in a position to adequately fund it.
5 After all, as observed above, the employees of the
NGOs are performing the same functions and discharging
the same duties as the government employees and there is
otherwise no compulsion of the respondent-State to have
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these NGOs, which admittedly are funded exclusively by
the State Government.
.
6 The respondent-State cannot resort to unfair labour
practice by firstly appointing staff to these NGOs through
H.P. State Council for Child Welfare, and thereafter
denying them pay and other benefits at par with their
counterparts working in the institutions run by the
department.
7 Mere fact that the employees of all other NGOs in
State of Himachal Pradesh may claim similar benefits can
be no ground to deny benefit to the petitioner(s) herein
more particularly, when the same may not be wholly
funded by the State Government and even their Secretary
may not be appointed by the State Government as in the
instant case.
8 Consequently, the aforesaid order dated 20.5.2023 is
quashed and set aside. The Secretary (SJ & E) to the
Government of H.P. is directed to take a fresh decision in
the matter in light of the order dated 12.9.2022 after taking
into consideration the observations as contained
hereinabove."
8. Even, the aforesaid order was not complied with
constraining the Court to pass the order on 08.11.2023, which reads
as under:
"On 26.06.2023, the Division Bench of this Court had
passed a detailed order. Para 8 of the order is reproduced
hereinbelow:-
"Consequently, the aforesaid order dated
20.5.2023 is quashed and set aside. The
Secretary (SJ &E) to the Government of H.P. is
directed to take a fresh decision in the matter in
light of the order dated 12.09.2022 after taking into
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consideration the observations as contained
hereinabove."
.
2. Consequent upon the directions passed on
26.06.2023 this Court had clearly mandated the
respondents to comply with two directions; (i) the Order
dated 20.05.2023 was quashed and set aside (ii) the
Secretary (Social, Justice and Empowerment) Government
of Himachal Pradesh was directed to take a fresh decision in
the matter in light of Orders dated 12.09.2022, passed by
this Court, after taking into account the observations as
contained hereinabove.
3. This Court directed the respondents to report
compliance on 26.06.2023 and thereafter on various
occasions. The matter was taken up by this Court on
11.8.2023, then on 6.9.2023 and then on 18.10.2023,
whereby, the same was adjourned for 8.11.2023.
4. Today on 8.11.2023, the learned counsels appearing
for the petitioners, drew the attention of this Court, that, the
Respondent No.1-Secretary (Social, Justice and
Empowerment) has passed an order on 9.8.2023 [copy
taken on record] stating that the decision taken earlier by the
competent authority-State Cabinet, after obtaining opinions
from the Advisory Departments cannot be reviewed by the
Secretary (Social Justice & Empowerment Himachal
Pradesh. The relevant para of the order dated 9.8.2023,
reads as under:-
"That in compliance of the direction of the Hon'ble
High Court, the matter is re-considered by the
undersigned in the light of the report of the aforesaid
Committee, opinions rendered by the Finance
Department and Law Department of the State
Government and the decision taken by the Cabinet
in the matter and observed that the claims of the
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petitioner Smt. Kanta Devi cannot be acceded on
humanitarian ground on the following grounds-
.
1. That since the petitioner is not covered
under Central Services (Pension) Rules and
other similar service rules framed by the State
Government for its regular Govt. employees,
hence it is not possible to consider the matter of
the petitioner of granting her retiral benefits etc.
as claimed for by the petitioner, as human
issue, as the aforesaid benefits are only allowed
and admissible for regular Govt. employees
under the aforesaid statutory rules, violation of
which would have legal and financial
implications and would call for multiplicity of
litigation.
2. Further the Hon'ble High Court has directed
to personally consider the matter of the
petitioner and pass appropriate order, however
as per the Government procedure, as already
submitted in previous order, the undersigned is
not personally competent to take independent
decision in the matter. Since the matter involves
financial implications, the opinions of Advisory
Departments are mandatorily required to be
obtained, followed with the approval of the
Cabinet. Therefore, while considering the matter
as per the directions dated 12.09.2022, the
matter had already been taken up with the
Advisory Departments and the State Cabinet
with proposed issue to consider the matter on
humanitarian grounds also while taking into
consideration the order dated 26.06.2023 of
Hon'ble Court and the undersigned on the basis
of the opinions given by the Advisory
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Departments and the decision of the State
Cabinet, the case of the petitioner was rejected.
.
3. That it is apt to mention here that the
undersigned is not competent to decide the
issue in isolation of the opinions of Advisory
Departments and the decision of the State
Cabinet as the budget provisions to release etc.
to the concerned NGO including HPCCW is
made by the competent authority and
concurrence of the Finance Department as per
the provisions of the related scheme framed for
granting the funds to such NGOs. Therefore,
since the matter of the petitioner has already
been rejected by the competent authority, now,
the undersigned is not competent to review the
decision of competent authorities, hence cannot
take dissent view and decision taken by the
competent authority."
5. A perusal of the above facts and circumstances
narrate a very sordid state of affairs. Though the Division
Bench, of this Court had passed an order on 26.6.2023,
directing the respondent(s) to comply with the two directions
contained therein; but a perusal of the orders dated
9.8.2023 passed by the Secretary (Social, Justice and
Empowerment), Government of Himachal Pradesh, reveals
that instead of considering the matter afresh, in tune with the
earlier orders passed by the Court on 12.09.2022 [by
referring, pursuing and taking up the matter afresh with the
Advisory Departments and also with the Competent
Authority-State Cabinet], has just sidelined the orders dated
12.09.2022 on the ground that since the directions dated
12.09.2022 were passed by his/her predecessor, therefore,
the same cannot be reviewed/reconsidered by the
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respondent-Secretary (Social, Justice and Empowerment) to
the Government of Himachal Pradesh.
.
6. Without commenting further, this stand of the
Respondent No.1-Secretary(Social, Justice and
Empowerment), Himachal Pradesh is not in spirit of the
orders dated 26.6.2023 and the earlier orders dated
12.09.2022 passed by this Court. Moreso, once the Division
Bench of this Court, has passed these orders on 12.09.2022
and 26.06.2023, just to ensure compliance of the order(s)
passed by the Hon'ble Apex Court in case of Writ Petition
(Civil) No. 132 of 2016 tilted as Rajneesh Kumar Pandey
versus Union of India [last listed on 17.10.2023 qua the
staffing pattern in school and institutes for children with
Special Needs (CWSN) and the orders in case of Reshma
Parveen's case.
7. At this stage, Mr. Vishal Panwar, learned Additional
Advocate General, persuades this Court, to adjourn them
matter, so as to enable him to have fresh instructions in the
matter; from the Secretary (Social, Justice and
Empowerment), so as to ensure that the matter is re-
examined/reconsidered at level of the Advisory
Departments, including the State Cabinet-Competent
Authority in terms of the orders passed by the Division
Bench of this Court on 26.6.2023 and the earlier orders
dated 12.9.2022 also. In case, the respondents, still insist
or intend to revert to its stand as in the order dated
9.8.2023, then, the same shall be construed to be an
intentional, willful and deliberate act on the part of the
Respondent-Secretary (Social Justice and Empowerment)
Himachal Pradesh, to disregard and disrespect the majesty
of this Court.
List the matter after four weeks, as prayed for by Mr.
Vishal Panwar, learned Additional Advocate General."
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9. Unfortunately, the respondents have not reverted back
to us and we could have conveniently proceeded against the
.
respondent-Secretary in terms of the order dated 08.11.2023, but
the same is of no avail at least for the petitioner(s).
10. In this background, we have proceeded to hear these
petitions. As observed above, it is not at all in dispute that the
petitioner(s) is/are discharging the same duties and shouldering the
same responsibilities
r like their counter-parts in the State
Government. Once that be so, obviously, there has to be a parity
not only in pay and allowances, but for all other intents and purposes
of these petitioner(s) with their counter-parts in the Government
schools.
11. In coming to such a conclusion, we are duly supported
by the judgment of the Hon'ble Supreme Court rendered in State of
H.P. vs. H.P. State Recognized & Aided Schools Managing
Committees and others (1995) 4 SCC 507 wherein the Hon'ble
Supreme Court observed as under:
"8. 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 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
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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.
9. It is, thus, obvious that the State Government has a deep
and pervasive control on the aided schools. The
Government Schools 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 (SCC p. 573, para 3) "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 (SCC p. 314, para
10) :
"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 ::: Downloaded on - 19/04/2024 20:35:50 :::CIS 19 the respondent 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 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."
10. It is, therefore, 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. with their counterparts in the Government schools. The question, for our consideration, however, is whether the State Government or the management is to meet the consequent expenditure.
11..............
12. Right to education is a fundamental right guaranteed under Part III read with Part IV of the Constitution of India.
This Court in Mohini Jain v. Stale of Karnataka and Others, [1992] 3 SCC 666 held as under (SCC p. 682, para 17) "We hold that every citizen has a "right to education" under the Constitution. The State is under an obligation to establish educational institutions to enable the citizens to enjoy the said right. The State may discharge its obligation through state-owned or state- recognised educational institutions, When the State Government grants recognition to the private educational institutions it creates an agency to fulfill its obligation under the Constitution. The students are given admission to the educational institutions -whether state- owned or state-recognised - in recognition of their "right to education" under the Constitution. Charging capitation fee in consideration of admission to educational institutions, is a patent denial of a citizen's right to education under the Constitution"
::: Downloaded on - 19/04/2024 20:35:50 :::CIS 2013..............
14. The Constitution Bench, emphasising the constitutional .
policy as disclosed by Articles 41,45, and 46 read with Article 21 of the Constitution of India, held as under: (SCC pp. 735-737, paras 175 and 182) "Be that as it may, we must say that at least now the State should honour the command of Article 45. It must be made a reality - at least now. Indeed, the National Education Policy 1986 says that the promise of Article 45 will be redeemed before the end of this century. Be that as it may, we hold that a child (citizen) has a fundamental right to free education up to the age of 14 : years.....
The right to freedom is available only to children until they complete the age of 14 years. Thereafter, the obligation of the State to provide education is subject to the limits of its economic capacity and development."
15..............
16. The constitutional mandate to the State, as upheld by this Court in Unni Krishnan, J.P. vs. State of A.P. (1993) 1 SCC 645 - to provide free education to the children upto the age of fourteen - cannot be permitted to be circumvented on the ground of lack of economic capacity or financial incapacity.
17. It is high time that the State must accept its responsibility to extend free education to the children upto the age of fourteen. Right to education is equally guaranteed to the children who are above the age of fourteen, but they cannot enforce the same unless the economic capacity and development of the State permits the enforcement of the same. The State must endeavour to review and increase the budget-allocation under the head "Education", The Union of India must also consider to increase the percentage of allocation of funds for "Education" out of the Gross National Product.
::: Downloaded on - 19/04/2024 20:35:50 :::CIS 2118. We, therefore, agree with the High Court that the imposition of the maximum limit for the disbursement of .
grant-in-aid to the respondents was arbitrary and unjustified in the facts of the present case. As mentioned above, the respondent-schools are recognised, aided and are under deep and pervasive control of the State Government. The Government is under an obligation to provide the grant-in-aid to the respondent-schools as envisaged under the scheme of the Rules. The High Court has directed the State of Himachal Pradesh to pay 95% grant-in-aid with effect from February, 1988. The High Court judgment was delivered on September 9, 1992. We modify the High Court judgment to the extent that the enhanced grant-in-aid be paid to the aided schools with effect from April 1, 1993."
12. Moreover the petitioner(s) fulfill all the parameters of the principle of "equal pay for equal work" as summarised by the Hon'ble Supreme Court in State of Punjab and others vs. Jagjit Singh and others, (2017) 1 SCC 148.
13. The Council being a NGO created by the Government itself is fully owned and controlled by the Government of Himachal Pradesh and is a "State" within the meaning of Articles 12 and 226 of the Constitution of India. It, therefore, cannot discriminate the petitioner(s) under the cloak of so called "NGO".
14. The main plank of the defence of the respondents is that the petitioner(s) is a contract employee which is too familiar an argument, which we come across entailing exploitation of the employees and which, we feel does not reverberate with the ::: Downloaded on - 19/04/2024 20:35:50 :::CIS 22 socialistic pattern of society to which a welfare State is committed to. Hence, such submission lacks of substantive substance since .
the respondents cannot escape the mandate of equality enshrined under Article 14 of the Constitution, particularly, when there is no dispute that the counter-parts of the petitioner(s) are having regular employment and enjoying all facilities, be it pay scales, perks or pension etc.
15. There is no gainsaying that getting employment is a herculean task in view of the prevailing unemployment. Survival is the basic need as per the 'Maslow's' hierarchy of needs. Admittedly, element of hope in human nature is gloriously precious and it kindles the energy to bear difficulties till they are overcome. The underling hope is that after long years of service, there could be happy end in parity of pay and ultimately pensionary benefits.
16. Besides this, there can be no two views about the fact that the legitimate aspirations of the employees are not extinguished and a situation is not created where hopes end in despair to convert it to be deceitful and treacherous.
17. The respondents have snuffed out the hope of regularizing the services of the petitioner(s) in not granting them equivalent pay and other allowances with their counter-parts and likewise denying them pension by forcing the petitioner(s) to work on ::: Downloaded on - 19/04/2024 20:35:50 :::CIS 23 contract at the will and pleasure of the respondents for several years.
.
18. A legitimate aspiration of a secure job of the petitioner(s) has become the basis to play the game of chess involving the careers of the petitioner(s) with associated risks of a contractual job.
19. A sense of sincerity should be reflected in every step of the respondents to ensure that the petitioner(s) receives his/their fair share for what all they have done for the organization.
20. Respondents' responsibility is to create an atmosphere of trust by considering the petitioner's legitimate needs with fairness and for justifiable reasons. Continuing the petitioner(s) on contract and not regularizing his/their services and not paying him/them at par with their counter-parts and denying them pension and retiral benefits is belying the petitioner's trust for their future being in safe hands of a State like the respondent-Council.
21. Undeniably, respondent-Council being a wing of the State is a model employer with a social conscience and not an artificial person without soul to be damned or body to be burnt. The social conscience propels economic justice. Therefore, the respondents must necessarily conduct themselves with this social conscience with high probity and candour while responding to the expectations of its employees by adopting means and methods ::: Downloaded on - 19/04/2024 20:35:50 :::CIS 24 which are fair and in accordance with Articles 14 and 16 of the Constitution of India.
.
22. Continuing an employee on contract for long years not following pay parity or granting pension would not be to the satisfaction of the theme and spirit of Articles 14 and 16 of the Constitution of India.
23. Any arrangement or agreement loaded in favour of the respondents denying the right to claim regularization is indubitably against public policy, as held by the Hon'ble Supreme Court in Dhirendera Chamoli and another vs. State of U.P. (1986) 1 SCC
637.
24. In Central Inland Water Transport Corporation Ltd.
and another vs. Brojo Nath Ganguly and another AIR 1986 SC 1571, the Hon'ble Supreme Court declared the terms in the appointment order as unconscionable terms of contract and also held that the State must act as a model employer and cannot take undue advantage of the need of the employee, who does not have any choice in the matter of employment due to the economic compulsions.
25. In State of Haryana and others vs. Piara Singh and others (1992) 4 SCC 118, the Hon'ble Supreme Court held that the main concern of the Court in such matters is to ensure the rule of law and to see that the Executive acts fairly and gives a fair deal to ::: Downloaded on - 19/04/2024 20:35:50 :::CIS 25 its employees consistent with the requirements of Articles 14 and
16. .
26. In Bhupendra Nath Hazarika and another vs. State of Assam and others (2013) 2 SCC 516 while laying emphasis on the role of the State as a model employer, though in a different context, the Hon'ble Supreme Court observed as under:
"65. We have stated the role of the State as a model employer with the fond hope that in future a deliberate disregard is not taken recourse to and deviancy of such magnitude is not adopted to frustrate the claims of the employees. It should always be borne in mind that legitimate aspirations of the employees are not guillotined and a situation is not created where hopes end in despair.
Hope for everyone is gloriously precious and a model employer should not convert it to be deceitful and treacherous by playing a game of chess with their seniority. A sense of calm sensibility and concerned sincerity should be reflected in every step. An atmosphere of trust has to prevail and when the employees are absolutely sure that their trust shall not be betrayed and they shall be treated with dignified fairness then only the concept of good governance can be concretized. We say no more."
27. If the present factual matrix is tested on the anvil of the aforesaid principles, there can be no trace of doubt that both the State and the Council have conveniently ostracized the concept of "model employer". It would not be wrong to say that they have done so with pacific calmness, sans vision, shorn of responsibility and ::: Downloaded on - 19/04/2024 20:35:50 :::CIS 26 oblivious of their role in such a situation. Their action reflects the attitude of emotionlessness, proclivity of impassivity and deviancy .
with cruel impassibility. Neither the State nor the Council have cared for the rights of the petitioner(s). They have remained totally alien to the situation to which the petitioner(s) has been driven to.
In a State of good governance, the Government cannot act like a alien. It has an active role to play. It has to have a constructive and progressive vision. Further, the Government cannot take advantage of its dominant position and cannot exploit the petitioner(s).
28. As observed above, the respondents should be a model employer and must act fairly towards its employees and only then good governance would be possible.
29. By applying the above principles to the case of the petitioner(s), we find that the respondents are not anywhere near to the standards set up by the various judicial precedents. The attribute of social conscience is missing in denying what has been a fair expectation of the petitioner(s), in particular, when work exists and requires regular workforce.
30. It is an oldage maxim that "necessity knows no law". A person may sometimes have to succumb to the pressure of other party to bargain who is in a stronger position. Although, it cannot be strictly in place, but the Court cannot shut its eyes to this ground reality.
::: Downloaded on - 19/04/2024 20:35:50 :::CIS 2731. We had already expressed our anguish in the order dated 26.06.2023 as to what is the compulsion of the respondent-
.
State in running the NGO i.e. respondent No.3 wherein the employees are performing exactly the same functions and discharging the same duties, as are being discharged by the State Government employees and why the respondent-State is only encouraging litigation by not closing down these NGOs in question and merging staff so appointed therein with its own employees, especially, when the respondent-State is not in a position to adequately fund it. There was no compulsion for the respondent-
State to have these NGOs.
32. Further, the respondents appear to be totally oblivious to the fact that the petitioner(s) is/are working in the institutions where the Rights of Persons with Disabilities Act, 2016, is fully operative where the employees including teachers and other staff members are required to have focus and sensitive approach to the visually and hearing impaired children. In this context, we may refer to Sections 30 and 31 of the Act which read as under:
"30. Sporting activities.--(1) The appropriate Government shall take measures to ensure effective participation in sporting activities of the persons with disabilities. (2) The sports authorities shall accord due recognition to the right of persons with disabilities to participate in sports and shall make due provisions for the inclusion of persons with disabilities in their schemes and programmes for the promotion and development of sporting talents.::: Downloaded on - 19/04/2024 20:35:50 :::CIS 28
(3) Without prejudice to the provisions contained in sub-
sections (1) and (2), the appropriate Government and the .
sports authorities shall take measures to,--
(a) restructure courses and programmes to ensure access, inclusion and participation of persons with disabilities in all sporting activities;
(b) redesign and support infrastructure facilities of all sporting activities for persons with disabilities;
(c) develop technology to enhance potential, talent, capacity and ability in sporting activities of all persons with disabilities;
(d) provide multi-sensory essentials and features in all sporting activities to ensure effective participation of all persons with disabilities;
(e) allocate funds for development of state of art sport facilities for training of persons with disabilities;
(f) promote and organise disability specific sporting events for persons with disabilities and also facilitate awards to the winners and other participants of such sporting events."
"31. Free education for children with benchmark disabilities.--(1) Notwithstanding anything contained in the Rights of Children to Free and Compulsory Education Act, 2009 (35 of 2009), every child with benchmark disability between the age of six to eighteen years shall have the right to free education in a neighbourhood school, or in a special school, of his choice.
(2) The appropriate Government and local authorities shall ensure that every child with benchmark disability has access to free education in an appropriate environment till he attains the age of eighteen years."
33. The aforesaid provisions clearly reflect the concern of the Legislature which is in tune with the International Conventions to ::: Downloaded on - 19/04/2024 20:35:50 :::CIS 29 which India is a signatory. The Parliament has cast certain obligations for the State and the Central Government in this regard.
.
It is requisite of them to develop special devices and aids so that a child with disability gets equal opportunity and comes to the main stream. A teacher imparting education to such visually impaired children or for that matter hearing impaired children should be absolutely competent and he must have the adequate training.
These opinions have been echoed by the Hon'ble Supreme Court in Sambhavana vs. University of Delhi (2013) 14 SCC 781 wherein it was observed as under:
"10. In this context, we may refer with profit to Section 30 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for brevity "the Act"). It reads as follows: -
"30. Appropriate Governments to prepare a comprehensive education scheme providing for transport facilities, supply of books, etc. - Without prejudice to the foregoing provisions, the appropriate Governments shall by notification prepare a comprehensive education scheme which shall make provision for -
a) transport facilities to the children with disabilities or in the alternative financial incentives to parents or guardians to enable their children with disabilities to attend schools;
b) the removal of architectural barriers from schools, colleges or other institutions imparting vocational and professional training;
c) the supply of books, uniforms and other materials to children with disabilities attending school;
d) the grant of scholarship to students with disabilities;::: Downloaded on - 19/04/2024 20:35:50 :::CIS 30
e) setting up of appropriate fora for the redressal of grievances of parents regarding the placement of their children with disabilities;
.
f) suitable modification in the examination system to eliminate purely mathematical questions for the benefit of blind students and students with low vision;
g) restructuring of curriculum for the benefit of children with disabilities;
h) restructuring the curriculum for the benefit of students with hearing impairment to facilitate them to take only one language as part of their r curriculum."
On a careful reading of the aforesaid provision, the legislative intendment relating to comprehensive education scheme is crystal clear. Section 30(f) lays down suitable modification in the examination system and sub-section(g) requires restructuring of curriculum for the benefit of children with disabilities. The said mandate of the statute has to be given due weightage.
11. In this context, Section 31 of the Act is referred with profit: -
"31. Educational institutions to provide amanuensis to students with visual handicap. -
All educational institutions shall provide or cause to be provided amanuensis to blind students and students with or low vision."
The aforesaid provision exposits the real concern of the legislature which is in tune with the international conventions. The Parliament has cast certain obligations under the State and Central Governments in this regard. It is requisite of them to develop special devices and aids so that a child with disability gets equal opportunity and comes to the main stream. A teacher imparting education to such visually impaired children should be absolutely competent and he must have the adequate training. Transport facilities, ::: Downloaded on - 19/04/2024 20:35:50 :::CIS 31 supply of books and uniforms and grant of scholarships are in a different sphere altogether.
.
12. The grievance that has been accentuated by Mr. Sinha with real concern is that there has been on redressal of the grievances pertaining to modification in the examination system and restructuring of curriculum. Be it noted, India has ratified the United Nations Convention on the Rights of Persons with Disabilities. It has become operative from May, 2008. Article 24 of the said Convention deals with education of persons with disabilities. It gives emphasis on development of human potential, sense of dignity, self-worth and strengthening of respect for human rights and creativity.
Article 24(4) of the Convention reads as follows: -
"4. In order to help ensure the realization of this right, States Parties shall take appropriate measures to employ teachers, including teachers with disabilities, who are qualified in sign language and/or Braille, and to train professionals and staff who work at all levels of education. Such training shall incorporate disability awareness and the use of appropriate augmentative and alternative modes, means and formats of communication, educational techniques and materials to support persons with disabilities."
13. We are absolutely conscious that there is an enactment but India has shown its concern by ratifying the said Convention and, therefore, we have reproduced the same. When the University has thought of imparting education in a different way, it has to bear in mind the need of sensitivity and expected societal responsiveness. A visually impaired student is entitled to receive special treatment. Under the constitutional frame the State has to have policies for such categories of people. Article 41 of the Constitution of India casts a duty on the State to make effective provisions for securing, inter alia, the rights of the disabled and those ::: Downloaded on - 19/04/2024 20:35:50 :::CIS 32 suffering from other infirmities within the limits of economic capacity and development. It is imperative that the .
authorities look into the real grievances of the visually impaired people as that is the constitutional and statutory policy. The University has to live the role of Loco Parentis and show its concern to redress the grievances in proper perspective. Not for nothing Ralph Waldo Emerson had said "the secret of education is respecting pupil". Thus, the necessity of the visually impaired students should have primacy in the mind of the Empowered Committee of the University.
14. Education for visually impaired students is a great hope for them and such a hope is the brightest bliss in their lives.
History has recorded with pride that some men with visual impairment have shown high intellectual prowess. The anguish and despondency in the life of Milton, the famous English poet, did not deter him to carry out the mission of his life. Lack of vision could not destroy his Will power.
Needless to say that he had the support of the society. The ancient sage "Ashtavakra" while laying down the traffic rules had categorically stated that the blind man has the first right on the road. Thus, emphasis has always been laid on the visually impaired persons for many a reason. When we say so, we may not be understood to have said that otherwise impaired or disabled people are to be treated differently in the constitutional and statutory scheme. We have only laid emphasis on the visually impaired students for the purpose of present case."
34. Justice M. Rama Jois in his "Legal and Constitutional History of India" quotes the following verse from the Mahabharatha :
"The king should look after the welfare (Yogakshema) of the helpless, the aged, the blind, the cripple, lunatics, widows, ::: Downloaded on - 19/04/2024 20:35:50 :::CIS 33 orphans, those suffering from diseases and calamities, pregnant women, by giving them food, lodging, clothing and .
medicines according to their needs." (We must remind ourselves that some of the expressions used in the above verse have ceased to be politically correct).
35. The late Justice S.B.Sinha while delivering Justice J.K.Mathur Memorial Lecture on Disability Law vis-a-vis Human Rights referred to the ancient Vedic understanding that the basic human right is the right to happiness- Let all people be happy.
PWDs (Persons with Disabilities) have as much right to happiness and to lead a happy life as the so- called "able bodied".
36. We really wonder how the objectives of the statutory and salutary provisions and these lofty ideas for the benefit and welfare of the visually and hearing impaired children can be achieved when the staff deployed in these institutions face grave discrimination and majority of them having been trained to cater to the needs and imparting education to the specially abled children have no where-else to go. They had infact undergone these special trainings and courses to serve the most deserving pupils with the legitimate hope that they would have an ensured and guaranteed employment to pursue their passion in schools run by the Government for the specially abled children either run by itself or by its NGOs or any other authority or society etc. wholly owned and controlled by the Government, little realizing, that even after having ::: Downloaded on - 19/04/2024 20:35:50 :::CIS 34 put in several decades of service, they would be denied their legitimate claims.
.
37. Moreover, the respondents by not acceding to the claims of the petitioner(s) have otherwise indulged in invidious discrimination inasmuch as those of the employees of the Council, who have approached the Court have infact been treated at par with with the employees working under the State in the institutions run by the respondent-Council. We may make note of some of these decisions.
38. A learned Single Judge of this Court while dealing with a host of petitions, lead being CWP No. 3493/2009 case titled Kanta Devi vs. Union of India and others, along with connected matters, allowed the writ petitions filed by the retired employees or dependents of the retired employees, who were working in certain projects set up by the State Social Welfare Board and an identical defence was raised in those petitions and the same was negated by the learned Single Judge. The learned Single Judge allowed the petitions by observing as under:
"Petitioners, in these four writ petitions, are the retired employees or dependents of the retired employees of certain projects set up by the State Social Welfare Board, Himachal Pradesh. The Board and the Projects, run by the Board, do not have any income of their own and they are provided grants by the State Government for running their affairs. In the year 1977, vide communication dated 16 th ::: Downloaded on - 19/04/2024 20:35:50 :::CIS 35 August, 1977, Government of Himachal Pradesh conveyed to respondent No.5, i.e. the State Social Welfare Advisory .
Board, its approval to extend gratuity benefit to the staff of the State Welfare Advisory Board. The letter said that the expenditure will be borne by the Board out of its sanctioned grant. Letter was issued with the prior concurrence of Finance Department. These facts are not in dispute.
2. Petitioners in three writ petitions and the husband of the petitioner in fourth writ petition retired as employees of respondent No.5-Board, on different dates. Though entitled to gratuity, in terms of the aforesaid letter, dated 16 th August, 1977, and also to leave encashment, nothing has been paid to them, so far. So, they have approached this Court, by way of the present writ petitions, for issuance of writ of mandamus, directing the respondents to pay retirement gratuity as also money due on account of leave encashment.
3. Respondent No.5-Board, in its reply, has stated that it has not been getting enough funds from the State Government and for that reason gratuity and leave encashment payments have not been released to the petitioners so far. The Board does not deny entitlement of the petitioners to the aforesaid claims.
4. State Government and its functionaries, respondents No.2,3 and 6, have filed separate reply, in which it is not denied that the petitioners are entitled to the aforesaid claims/benefits, but they have stated that the petitioners were the employees of respondent No.5-Board and it is the responsibility of the said respondent to pay gratuity and leave encashment to the petitioners, out of its sanctioned grants.::: Downloaded on - 19/04/2024 20:35:50 :::CIS 36
5. Admittedly, grants are made available by the State Government and if the State Government does not provide .
sufficient money, by way of grant, how can the Board (respondent No.5), which does not have any income of its own, pay gratuity and leave encashment to its retired employees. The Board is working for the welfare of the women and the children of the State. State of Himachal Pradesh being a Welfare State and it having conveyed its approval for the payment of gratuity by aforesaid letter of 16th August, 1977 and also there being no denial that the petitioners are entitled to leave encashment also, writ petitions are disposed of, with a direction to respondent No.2 to release requisite amount of money, by way of grant, in favour of respondent No.5-Board, so that claims of the petitioners for retirement gratuity and leave encashment are satisfied. The direction be complied with within three months.
6. Total amount, which is required to be released to satisfy the claims of the present petitioners, works out at Rs.22,11,184.00 as per detail given below, which has been culled out from the documents filed by respondent No.5 i.e. Annexures R-1 and R-2:
Sr. No. Name of the retired Money due Money due Total Employee to whom/ on account of on account of in respect of whom gratuity leave money is due, on encashment account of gratuity/ leave encashment.
1. Maheshwari Devi 77,038.00 71,810.00 1,48,848.00
2. Kanta Devi 2,79,923.00 1,69,650.00 4,49,573.00
3. Sushila Devi 2,55,272.00 1,54,710.00 4,09,982.00
4. Basanti Devi 2,63,934.00 1,59,960.00 4,23,894.00
5. Joginder Kaur 2,72,613.00 72,146.00 3,44,759.00
6. Sita Ram Verma 2,53,358.00 1,80,770.00 4,34,128.00 Grand Total 22,11,184.00"::: Downloaded on - 19/04/2024 20:35:50 :::CIS 37
39. The aforesaid decision was assailed in a batch of .
Letters Patent Appeals, lead being LPA No. 302 of 2011 case titled State of H.P. and another vs. Meera Devi and others, decided on 09.10.2014 and the judgment rendered by the learned Single Judge was not interfered with as regards para Nos. 1 to 5 and only the calculations as were made in para No.6 of the order were set aside.
It is apt to reproduce the judgment in its entirety which reads as under:
"These appeals are directed against the judgment and order dated 23rd November, 2010, made by the learned Single Judge whereby four writ petitions, being CWP No.3493 of 2009, titled Kanta Devi vs. Union of India and others, CWP No.3497 of 2009, titled Basanti Devi and others vs. Union of India and others, CWP No.3756 of 2009, titled Meera Devi vs. Union of India and others and CWP No.3936 of 2009, titled Maheshwari Devi vs. Union of India and others, came to be allowed with a command to the writ respondents to release the amount of gratuity and leave encashment as per the break-ups given in para-6 of the judgment (for short "the impugned judgment").
2. This judgment shall govern all the appeals.
3. We have gone through the impugned judgment and perused the record. The writ petitioners sought writ of mandamus, commanding the writ respondents to release the amount of gratuity and leave encashment as per their entitlement and the rules occupying the field. The Writ Court, after examining the pleadings, has rightly held that the writ ::: Downloaded on - 19/04/2024 20:35:50 :::CIS 38 petitioners are entitled to gratuity and leave encashment and commanded the State to release the same, but has fallen in .
error in making calculations as given in para-6 of the impugned judgment.
4. In the given circumstances, the impugned judgment so far it relates to paras 1 to 5 needs to be upheld and merits to be set aside so far it relates to para-6. Accordingly, the impugned judgment so far it relates of para-6 is set aside and the writ respondents are directed to release the amount of gratuity and leave encashment in favour of the writ petitioners as per their entitlement read with the rules occupying the field within eight weeks from today. Writ respondent No.5 i.e. Board is also directed to take all steps which are required, if not already taken.
5. Accordingly, the impugned judgment is modified, as indicated above and the appeals are disposed of alongwith all pending applications."
40. In CWP(T) No. 12225/2008 case titled Kumari Meera Thakur and others vs. State of Himachal Pradesh and others, decided on 14.07.2010, along with connected matter, the petitioners therein were working as "Balwari Teachers" in the respondent-
Council and were not being granted revised pay scale, as was being given to their counter-parts serving in the respondent-State.
The writ petitions were allowed by the learned Single Judge and the respondent-State was directed to consider the case of the petitioners for grant of revised pay scale. Since, the judgment has attained finality, the same was followed by one of us (Justice Tarlok ::: Downloaded on - 19/04/2024 20:35:50 :::CIS 39 Singh Chauhan) in CWP No. 60/2012 case titled Meera Thakur and others vs. State of H.P. and others, decided on 19.03.2015.
.
41. Likewise, the learned Single Judge of this Court in CWP No. 9033/2014, case titled, Mukesh Kumari and others vs. State of H.P. and others, decided on 26.05.2015, while following the judgment in Kumari Meera Thakur's case (supra), directed the respondent-State to release the revised pay scale to the petitioners.
The relevant portion whereof reads as under:
"Consequently, the present petition is disposed of with a direction to the respondent-State to release the revised pay scale to the petitioners @Rs.950-1800 to 3120- 5160 w.e.f. 1.1.1996 with interest @ 9% per annum, within a period of eight weeks from today. The pending application(s), if any, are also disposed of. No costs."
42. The above judgment was assailed by the State by way of Letters Patent Appeal No.15 of 2017 case titled State of Himachal Pradesh vs. Mukesh Kumari and others, but the same was disposed of by the learned Division Bench of this Court on 26.07.2017 in the following terms:
"We find the judgment passed by the learned Singe Judge to be in the nature of a 'consent order', as such, we do not see any reason to interfere with the same, save and except, liberty is reserved to the State to file a review, if so required.::: Downloaded on - 19/04/2024 20:35:50 :::CIS 40
In view of above, the present Letters Patent Appeal is disposed of. Pending applications, if any, are also disposed .
of."
43. The State thereafter filed a Review Petition No.120/2023 case titled State of Himachal Pradesh and others vs. Mukesh Kumari and others, which too came to be dismissed vide order dated 05.10.2023.
44. Meaning thereby, that the benefits of pay scales and others benefits have been extended to those of the employees of the Council, who have approached the Court, but are being denied to the similarly situated persons because they have not approached the Court.
45. Obviously, this is clearly a case of invidious discrimination being meted out to equals, similarly circumstanced without any rational basis or to relationship that would warrant such discrimination. (Refer: Smt. Sneh Prabha v. State of U.P., (1996) 7 SCC 426, Yogesh Kumar v. Govt. (NCT of Delhi), (2003) 3 SCC 548, State of W.B. v. Debasish Mukherjee, (2011) 14 SCC 187 and Priya Gupta v. State of Chhattisgarh, (2012) 7 SCC 433).
46. Even otherwise, the State cannot be permitted to take benefits of its own wrongs by taking the services of the employees continuously for decades together and then to contend that the ::: Downloaded on - 19/04/2024 20:35:50 :::CIS 41 petitioner(s) is/are not eligible for pay and perks or for that matter pension.
.
47. We may with profit refer to the judgment of the Hon'ble Supreme Court in Special Leave to Appeal (C) No. 1109/2022 case titled The State of Gujarat and others vs. Talsibhai Dhanjibhai Patel, decided on 18.02.2022, wherein the Court was dealing with a case where the State had taken the services of the respondents continuously for 30 years and thereafter denied him pension. Terming the same to be unreasonable, the Hon'ble Supreme Court proceeded to pass the following order:
"It is unfortunate that the State continued to take the services of the respondent as an ad-hoc for 30 years and thereafter now to contend that as the services rendered by the respondent are ad-hoc, he is not entitled to pension/pensionary benefit. The State cannot be permitted to take the benefit of its own wrong. To take the services continuously for 30 years and thereafter to contend that an employee who has rendered 30 years continues service shall not be eligible for pension is nothing but unreasonable. As a welfare State, the State as such ought not to have taken such a stand.
In the present case, the High Court has not committed any error in directing the State to pay pensionary benefits to the respondent who has retired after rendering more than 30 years service.
Hence, the Special Leave Petition stands dismissed.
Pending application(s), if any, shall stand disposed of."::: Downloaded on - 19/04/2024 20:35:50 :::CIS 42
48. Further, the State has shown scant regard to the orders passed passed by this Court and the directions as contained in the .
judgment rendered by the Hon'ble Supreme Court in Rajneesh Kumar Pandey and others vs. Union of India and others (2021) 17 SCC 1, some of which have been quoted in extenso in the order dated 26.06.2023 (supra).
49. Once, the petitioner(s) is/are found to be discharging the same duties and shouldering the same responsibilities, therefore, it is too late in the day to say that the petitioner(s) in the Council is/are not entitled to parity in the matter of salary, allowances etc. with their counter-parts in the Government schools, more particularly, when the Council is a permanent establishment and has been functioning for decades together. Given the fact that it is the responsibility of the State to provide free education that too to the special students, as is being imparted by some of the petitioner(s), it is high time that the State must accept its responsibility to bear the expenses of the same or close down the institutions run by the Council and merge the staff in the State run institutions and pay them their legitimate claims.
50. In the given facts and circumstances, we have no option, but to allow all these petitions with the following directions:
(i) The respondents shall from the date of filing of these petitions provide consolidated salary/pay scales to ::: Downloaded on - 19/04/2024 20:35:50 :::CIS 43 the petitioner(s) at par with their counter-parts in the Government schools of visually challenged and with .
impaired hearing children with all consequential benefits.
Meaning thereby that the respondent-State shall extend all the benefits to the petitioner(s) as available to the counter-parts of the petitioner(s) for all intents and purposes.
(ii) The respondents shall immediately consider the case(s) of those petitioner(s) whose services are yet to be regularized against their posts with effect from the date they have completed the requisite years of contractual service in terms of the government policy issued from time to time with respect to regularization of contractual employees with all consequential benefits.
(iii) The respondents are further directed to count the contractual services rendered by the petitioner(s) towards their pay fixation, pension etc.
(iv) The respondents are further directed to release service benefits like gratuity, leave encashment/ pensionary benefits in those of the cases where the petitioner(s) has/have retired, after extending all the aforesaid benefits with further revision from time to time, with all consequential benefits.
::: Downloaded on - 19/04/2024 20:35:50 :::CIS 44(v) The consequential benefits arising out of all the aforesaid directions shall include consolidated salary/pay .
for the purpose of regularization, counting of contractual service for the purpose of pay fixation and pension.
However, actual monetary benefits shall be confined to three years prior to filing of these petitions and in those of the cases where the petitioner(s) had filed representations or/and had earlier approached this Court or the erstwhile Tribunal by filing the petitions for the same and similar relief, then the actual monetary benefits shall be computed from three years prior to the date of filing representation/claim/petition in terms of the Notification issued by the Finance Department vide No.FIN(PR)-B(7)-16/98-III(Agriculture) dated 15.12.2011 which was issued in pursuance to the judgment of the Hon'ble Supreme Court in Jai Dev Gupta vs. State of Himachal Pradesh & Anr. AIR 1998 SC 2819.
(vi) All orders as impugned in these petitions are ordered to be quashed and set aside.
51. All pending application(s), if any, also stand disposed of.
(Tarlok Singh Chauhan) Judge (Sushil Kukreja) Judge April 19th,2024.
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