Himachal Pradesh High Court
Joginder Singh vs The State Of Himachal Pradesh And Others on 18 August, 2020
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CWPOA No. 4544 of 2019
Decided on August 18, 2020
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Joginder Singh .........Petitioner
Versus
The State of Himachal Pradesh and others ...Respondents
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Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes.
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For the petitioner: Ms. Shalini Thakur, Advocate, through
video-conferencing.
For the respondent: Mr. Sudhir Bhatnagar, Additional
Advocate General, through video-
r conferencing.
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Sandeep Sharma, J. (Oral)
Being aggrieved and dissatisfied with the communication dated 27th August, 2007 (Annexure P-3), issued by the respondents, whereby grants under Grant-in-Aid to Parent-Teacher Associations Rules, 2006 came to be discontinued in respect of schools located in Municipal Corporations, Municipal Committees and Nagar Panchayats of the State, petitioner has approached this Court in the instant petition filed under Art. 226 of the Constitution of India, praying therein for following relief:
Whether reporters of the Local papers are allowed to see the judgment? .::: Downloaded on - 21/08/2020 20:20:52 :::HCHP -2-
"(i) That the letter no. END-H(5)C(10)17/2006-7 dated 27.8.2007, Annexure P-3 may kindly be quashed and set-
aside being unreasonable, uncalled for and violative of Constitution of India.
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(ii) That the grant-in-aid which the respondent no. 3 i.e. Parents Teacher Association Government Senior Secondary School Rajgarh, District Sirmour, Himachal Pradesh is entitled may be continued and similar other schools which falls within the limits of Municipal Corporation, Municipal Committees and Nagar Panchayat may also be grant-in-aid by the State of Himachal Pradesh as had been granted here-to-before.
2. For having a bird's eye view of the matter, certain undisputed facts as emerge from the pleadings of the parties, are that the petitioner after having passed his M.Com., applied for the post of Lecturer Commerce, pursuant to an advertisement issued by respondent No.3. It is also not in dispute that interview for the post of Lecturer in Commerce subject at Government Senior Secondary School, Rajgarh, District Sirmaur, Himachal Pradesh was conducted strictly as per guidelines laid down in the Education Code by a duly constituted Committee of Parent-
Teacher Association. On the basis of his performance in the interview, petitioner was offered appointment as Lecturer (Commerce) vide office order dated 6.10.2007 (Annexure P-2) by respondent No.3. As per terms and conditions contained in the aforesaid letter, respondent No.3 agreed to pay to the petitioner ::: Downloaded on - 21/08/2020 20:20:52 :::HCHP -3- Rs.3,000/- per month and petitioner joined as PTA Lecturer in the subject of Commerce at Government Senior Secondary School, Rajgarh, District Sirmaur, with effect from 9.10.2007.
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However, fact remains that before the petitioner had joined his services as Lecturer of Commerce at Government Senior Secondary School Rajgarh, Government of Himachal Pradesh, Department of Higher Education, vide communication dated 27.8.2007 (Annexure P-3) conveyed the decision of the Government to discontinue the grants under Grant-in-Aid to Parent-Teacher Associations Rules, 2006 to the schools located in Municipal Corporation, Municipal Committees and Nagar Panchayats of the State. However, vide aforesaid communication, respondents clarified that the grants under Grant-in-Aid Rules shall continue in respect of Government Colleges located in the aforesaid areas. In this background, petitioner has approached this Court in the instant proceedings praying therein to quash and set aside aforesaid communication (Annexure P-3) being discriminatory and violative of Arts. 14 and 16 of the Constitution of India.
3. Having heard learned counsel for the parties and perused the material available on record, especially the reply filed by the respondents-State, this Court finds that there is no dispute inter se parties as far as appointment of the petitioner on ::: Downloaded on - 21/08/2020 20:20:52 :::HCHP -4- the post of Lecturer in the subject of Commerce by respondent No.3 is concerned. Similarly, there is no dispute that prior to issuance of communication dated 27.8.2007 (annexure P-3), .
Schools located in Municipal Corporation, Municipal Committees and Nagar Panchayats were being released grant under Grant-in-
Aid Rules, 2006. Vide aforesaid communication, though Higher Education Department decided to discontinue the grants earlier being given to the Schools located in Municipal Corporation, Municipal Committees and Nagar Panchayats of the State but no specific reason/explanation has been assigned in the communication in question for continuing said grants in respect of Government Colleges located in the same areas. Though, careful perusal of aforesaid communication discloses no reason for discontinuing grants under Grant-in-Aid Rules but respondents, in their reply to the petition, have stated that the decision not to release grants has been taken in view of the fact that the Schools situate in urban areas are mostly manned by regular teachers, whereas, grant to PTA provided teachers is applicable only to those teachers, who are working out of municipal areas of the State, where most of posts are lying vacant. Besides above, respondents, in their reply, have stated that the petitioner was engaged on 6.10.2007 by the PTA (respondent No.3), as such, Grant-in-Aid cannot be given to the ::: Downloaded on - 21/08/2020 20:20:52 :::HCHP -5- petitioner and it is only for the PTA concerned, to pay the due and admissible salary out of its own funds. Apart from above, no cogent and convincing reason has been assigned by the .
concerned Department, while carving out a distinction between the schools located in urban areas like Municipal Corporation, Municipal Committees and Nagar Panchayats and schools located in rural areas. Very purpose of authorizing PTA to appoint teachers in the schools is/was to ensure that no post of teacher remains vacant and in this process, Government further with a view to ensure filling up of vacancies of teachers in the schools situate in rural areas, made provision for grants under Grant-in-Aid Rules, 2006. Respondents, in their reply have categorically admitted that as per Grant-in-Aid Rules, 2006, grant is released to the PTA, who made teacher available to the educational institutions for the purpose of imparting education to its students, as such, respondents, in the case at hand, are not justified in stating that since the petitioner came to be appointed by PTA, his due and admissible salary would be paid by the PTA concerned. Besides above, respondents have stated in their reply that Government has released Grant-in-Aid to those institutions, where teachers are engaged after following proper procedure by the concerned PTA. In the case at hand, no material worth credence has been placed on record by the ::: Downloaded on - 21/08/2020 20:20:52 :::HCHP -6- respondents indicative of the fact that petitioner was not appointed after following due procedure or that he does not possess the essential qualifications for holding the post in .
question.
4. Leaving everything aside, decision dated 27.8.2007, as contained in annexure P-3, taken by the respondents is otherwise not sustainable in the eyes of law being discriminatory and arbitrary. Vide aforesaid communication, teachers, appointed by PTA in the Schools located in Municipal Corporation, Municipal Committees and Nagar Panchayats have been denied Grant-in-Aid whereas, teachers working in Colleges in these areas have been held entitled to Grant-in-Aid.
5. Classification made on the basis of rural and urban areas of the State for grant of Grant-in-Aid under Grant-in-Aid Rules, 2006 is definitely discriminatory and violative of Articles.
14 and 16 of the Constitution of India. Vide communication dated 27.8.2007, respondents have made a classification, which is unreasonable and uncalled for and does not fulfill Constitutional requirements. Grant under Grant-in-Aid Rules has been stopped only in respect of the Schools located in Municipal Corporation, Municipal Committees and Nagar Panchayats. Since teachers working in Government colleges located in these areas have been held entitled for grant, ::: Downloaded on - 21/08/2020 20:20:52 :::HCHP -7- classification made by the State is unreasonable and unsustainable in the eye of law. There is no reasonable nexus with the object sought to be achieved by making such .
classification by the State depriving Grant-in-Aid in respect of PTAs upto the standard of Government Senior Secondary Schools, whereas, same has been decided to be continued in respect of Colleges located in these areas.
6. Otherwise also, bare perusal of the policy dealing with grants under Grant-in-Aid Rules provides no rider that benefit Grant-in-Aid would not be given to PTA teachers appointed in urban areas. No doubt, Grant-in-Aid Rules came into force in the year 2006 and appointment of the petitioner is of the year 2007 on the basis of Grant-in-Aid Rules but the fact remains that the PTA Lecturers appointed prior to 28.2.2007 in Corporation/Committee/Nagar Panchayat areas are still in receipt of Grant-in-Aid as is evident from the perusal of communication dated 9.10.2007 (Annexure P-4), as such, there is no reason to discriminate between incumbents who were offered appointment as PTA lecturer on the date of stoppage of Grant-in-Aid Rules, that too on the basis of their dates of appointments. Careful perusal of annexure P-4 reveals that the respondents kept on releasing Grant-in-Aid to PTA teachers ::: Downloaded on - 21/08/2020 20:20:52 :::HCHP -8- appointed after 27.8.2007 irrespective of their areas of working, be it urban or rural.
7. Though, as per reply filed by the respondents, PTA .
Lecturers appointed in urban areas like Municipal Corporation, Municipal Committee or Nagar Panchayat are not entitled for Grant-in-Aid but said action of the respondents is not sustainable in view of the fact that PTA teacher appointed in these very areas prior to 27.7.2007 are still in receipt of Grant-
in-Aid as such, impugned annexure P-3, dated 27.8.2007 deserves to be quashed and set aside being illegal and arbitrary.
8. By way of miscellaneous application i.e. CMP-T No. 1647 of 2020, wherein prayer came to be made on behalf of the petitioner for early hearing of the matter, petitioner also placed on record information received by the petitioner under Right to Information Act, perusal whereof reveals that PTA/SMC teachers appointed in urban areas after issuance of communication dated 27.8.2007 are in receipt of Grant-in-Aid, as such, learned Counsel appearing for the petitioner is right in contending that the petitioner has been discriminated without there being any plausible reason. It is quite apparent from the record that the concerned Department, while releasing grants in terms of Grant-
in-Aid Rules, has adopted a policy of 'pick and choose', which is not permissible under law.
::: Downloaded on - 21/08/2020 20:20:52 :::HCHP -9-9. It is well settled law that as per Art. 14 of the Constitution of India, only one policy should be applied by the Government throughout the State and as such, benefit of Grant-
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in-Aid should granted to either all similarly situate persons or declined to all but definitely the respondent being a 'welfare State', cannot be allowed to resort to 'pick and choose' policy.
10. In the case at hand, teachers teaching in Government colleges in Municipal Corporation, Municipal Committees and Nagar Panchayats have been released Grant-in-
Aid whereas teachers working in schools in these areas have been denied the same, for no plausible justification, as such, action of the respondents being totally discriminatory and arbitrary deserves to be quashed and set aside.
11. Teachers working either in the schools or colleges are performing same duties i.e. imparting education to the students, as such, approach of the respondent State in discontinuing Grant-in-Aid in respect of teachers teaching in the Schools running in urban areas and continuing the same to the teachers of Government college in these very areas is sans rationale, thus, such decision of the respondent-State cannot legally sustain being violative of Arts. 14 and 16 of the Constitution of India.
12. Hon'ble Apex Court in S. Seshachalam and Ors. vs. Chairman, Bar Council of T.N. & Ors, (2014) 16 SCC 72, has ::: Downloaded on - 21/08/2020 20:20:52 :::HCHP
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categorically held that Article 14 states that, "the State shall not deny to any person equality before the law of the equal protection of the laws within the territory of India." Article 14 forbids class .
legislation but not reasonable classification. The classification however must not be arbitrary, artificial or evasive but must be based on some real and substantial bearing, a just and reasonable relation to the object sought to be achieved by the legislation.
Article 14 applies where equals are treated differently without any reasonable basis. Article 14 does not apply where equals and unequals are treated differently.
r Class legislation is that which
makes an improper discrimination by conferring particular
privileges upon a class of persons arbitrarily selected from a large number of persons all of whom stand in the same relation to the privilege granted and between those on whom the privilege is conferred and the persons not so favoured, no reasonable distinction or substantial difference can be found justifying the inclusion of one and exclusion of the other from such privilege.
13. Hence, this Court has no hesitation to conclude that decision of the respondent-State to stop Grant-in-Aid in respect of teachers teaching in Schools located in urban areas and to continue in case of the teachers teaching in Government Colleges in the same area, is not based upon intelligible differentia and has no reasonable nexus with the object sought to be achieved and same suffers from arbitrariness..
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14. Hon'ble Apex Court in Deepak Sibal vs. Punjab University (1989) 2 SCC 145, has also held that Article 14 forbids class legislation but not reasonable classification. Whether .
classification is permissible under Article 14 or not, two conditions must be fulfilled i.e. (1) classification must be on the basis of intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (2) that differentiation must have a rational nexus with the object sought to be achieved by the legislation in question.
15. In the aforesaid judgment, it has been held that in order to consider question as to reasonableness of the classification, it is necessary to take into account objectives for said classification, if the objective be illogical, unfair and unjust, necessarily the classification will have to be held as unreasonable.
It would be apt to take note of following paragraphs of judgment rendered by Hon'ble Apex Court in Deepak Sibal (supra) :
"9. It is now well settled that Article 14 forbids class legislation, but does not forbid reasonable classification. Whether a classification is a permissible classification under Article 14 or not, two conditions must be satisfied, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (2) that the differentia must have a rational nexus to the object sought to be achieved by the statute in question.
10. By the impugned rule, a classification has been made for the purpose of admission to the evening classes. The question is whether the classification is a reasonable classification within the meaning of Article 14 of the Constitution. In order to consider the question as to the reasonableness of the classification, it is necessary to take into account the objective for such classification. It has been averred in the written statement of Dr. Balram Kumar ::: Downloaded on - 21/08/2020 20:20:52 :::HCHP
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Gupta, Chairman, Department of Laws, Punjab University, the respondent No. 2, filed in the High Court, that the object of starting evening classes was to provide education to bona fide employees who could not attend the morning classes on account of their employment. The object, therefore, was to accommodate bona fide employees in the evening classes, as .
they were unable to attend the morning classes on account of their employment. Admission to evening classes is not open to the employees in general including private sector employees, but it is restricted to regular employees of Government/Semi-Government institutions etc., as mentioned in the impugned rule. In other words, the employees of Government/Semi-Government institutions etc. have been grouped together as a class to the exclusion of employees of private establishments.
14. It is difficult to accept the contention that the Government employees or the employees of Semi- Government and other institutions, as mentioned in the impugned rule, stand on a different footing from the employees of private concerns, in so far as the question of admission to evening classes is concerned. It is true that the service conditions of employees of Government/Semi- Government institutions etc, are different, and they may have greater security of service, but that hardly matters for the purpose of admission in the evening classes. The test is whether the employees of private establishments are equally in a disadvantageous position like the employees of Government/Semi-Government institutions etc. in attending morning classes. There can be no doubt and it is not disputed that both of them stand on an equal footing and there is no difference between these two classes of employees in that regard. To exclude the employees of private establishments will not, therefore, satisfy the test of intelligible differentia that distinguishes the employees of Government/Semi-Government institutions etc. grouped together from the employees of private establishments. It is true that a classification need not be made with mathematical precision but, if there be little or no difference between the persons or things which have been grouped together and those left out of the group, in that case, the classification cannot be said to be a reasonable one.
15. It is, however, submitted on behalf of the respondents that the employees of private establishments have been left out as it is difficult for the University to verify whether or not a particular candidate is really a regular employee and whether he will have a tenure for at least three years during which he will be prosecuting his studies in the Three-Year LL.B. Degree Course. It is submitted that in making the classification, the surrounding circumstances may be taken into account. In support of that contention, much reliance has been placed on the decision of this Court in Shri Ram ::: Downloaded on - 21/08/2020 20:20:52 :::HCHP
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Krishna Dalmia v. Justice S.R. Tendolkar1. In that case, it has been observed by Das, C.J. that while good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may .
reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation. It follows from the observation that surrounding circumstances may be taken into consideration in support of the constitutionality of a law which is otherwise hostile or discriminatory in nature. But the circumstances must be such as to justify the discriminatory treatment or the classification subserving the object sought to be achieved. In the instant case, the circumstances which have been relied on by the respondents, namely, the possibility of production by them of bogus certificates and insecurity of their services are not, in our opinion, such circumstances as will justify the exclusion of the employees of private establishments from the evening classes.
20. In considering the reasonableness of classification from the point of view of Article 14 of the Constitution, the Court has also to consider the objective for such classification. If the objective be illogical, unfair and unjust, necessarily the classification will have to be held as unreasonable. In the instant case, the foregoing discussion reveals that the classification of the employees of Government/Semi-Government institutions etc. by the impugned rule for the purpose of admission in the evening classes of Three-Year LL.B. Degree Course to the exclusion of all other employees, is unreasonable and unjust, as it does not subserve any fair and logical objective. It is, however, submitted that classification in favour of Government and public sector is a reasonable and valid classification. In support of that contention, the decision in Hindustan Paper Corpn. Ltd. v. Government of Kerala4, has been relied on by the learned Counsel for the respondents. In that case, it has been observed that as far as Government undertakings and companies are concerned, it has to be held that they form a class by themselves, since any project that they may make would in the end result in the benefit to the members of the general public. The Government and public sector employees cannot be equated with Government undertakings and companies. The classification of Government undertakings and companies may, in certain circumstances, be a reasonable classification satisfying the two tests mentioned above, but it is difficult to hold that the employees of Government/Semi-Government ::: Downloaded on - 21/08/2020 20:20:52 :::HCHP
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institutions etc., as mentioned in the impugned rule, would also constitute a valid classification for the purpose of admission to evening classes of Three-Year LL.B. Degree Course. The contention in this regard, in our opinion, is without any substance.
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23. The principle laid down in Chitra Ghosh's case has been reiterated by this Court in a later decision in D.N. Chanchala v. State of Mysore6. It has been very clearly laid down by this Court that Government colleges are entitled to lay down criteria for admission in its own colleges and to decide the sources from which admission would be made, provided of course, such classification is not arbitrary and has a rational basis and a reasonable connection with the object of the rules. Thus, it is now well established that a classification by the identification of a source must not be arbitrary, but should be on a reasonable basis having a nexus with the object sought to be achieved by the rules for such admission."
16. In view of the detailed discussion made supra, petition at hand succeeds and is allowed. Annexure P-3, dated 27.8.2007 is quashed and set aside. Respondents are directed to release due and admissible Grant-in-Aid in favour of the petitioner from the date due and continue releasing the same in favour of the petitioner. All pending applications also stand disposed of.
(Sandeep Sharma) Judge August 18, 2020 (Vikrant) ::: Downloaded on - 21/08/2020 20:20:52 :::HCHP