Himachal Pradesh High Court
Kashi Ram vs State Of Himachal Pradesh & Others on 24 November, 2022
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 144 of 2022
Date of Decision: November 24, 2022
.
Kashi Ram ...Petitioner.
Versus
State of Himachal Pradesh & others ..Respondents.
Coram:
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1 Yes
For the Petitioner: Mr.Balwant Singh Thakur, Advocate.
For the Respondents: Ms.Seema Sharma, Deputy Advocate
r General, for respondents No.1 and 2.
Mr.Bhagwati Chander Verma, Advocate, for
respondent No.3.
Vivek Singh Thakur, J (oral)
Petitioner has approached this Court by filing this petition seeking direction to the respondents to release admissible dues of remuneration/salary in favour of the petitioner w.e.f. 02.05.2012 till date alongwith interest @ 12% till realization thereof.
2. It is undisputed fact that for shortage of staff, petitioner was engaged by School Management Committee (in short 'SMC') as a Shastri on SMC basis w.e.f. 02.05.2012 and since then he was permitted to continue as such by passing subsequent resolution in the year 2013 and 2014 and, thereafter, without passing any resolution, he has been continued as SMC Teacher.
3. Claim of petitioner is that she is fully eligible to be appointed as Shastri Teacher for fulfilling essential qualification 1 Whether reporters of the local papers may be allowed to see the judgment? ::: Downloaded on - 28/11/2022 20:31:28 :::CIS 2 prescribed under Recruitment and Promotion Rules (R&P Rules) to this post and after appointment, respondents/State has formulated a Policy dated 17.7.2012 with respect to grant-in-aid to teachers appointed on SMC basis for tribal and difficult areas and the said .
Policy as notified vide communication dated 20th September, 2014 was extended to all schools which were upgraded during academic sessions 2013 and 2014 irrespective of area in which she falls and to all those sanctioned posts of teaching cadre which were vacant since more than two years from the date of issue of notification dated 16.8.2014. Resultantly, the area of Government High School Kuhal, Tehsil Rampur, District Shimla, H.P., also came in the area for which Policy to engage teacher(s) through SMC was extended.
4. Respondents have opposed the claim of the petitioner by filing reply, stating therein that though petitioner was engaged by SMC vide resolution dated 02.05.2012 against the post of Shastri for academic Session 2012-2013 and was continued thereafter for 2013-2014 and 2014-2015, but thereafter, engagement of the petitioner was not continued by SMC by passing any further resolution. Further that, petitioner was engaged on 02.05.2012. Whereas, terms and conditions of Policy to engage Teacher(s), through SMC purely on period basis in Elementary/Higher Education Department of Himachal Pradesh in tribal/difficult areas, was formulated vide notification dated 17.07.2012 and the Policy was applicable for tribal/difficult areas and it was made applicable to other parts of the State w.e.f. 16.08.2014.
5. It has further been submitted by learned Deputy Advocate General that vide amendment dated 27.08.2012, as essential qualification for appointment as Shastri Teacher, a person ::: Downloaded on - 28/11/2022 20:31:28 :::CIS 3 should have passed Teacher Eligibility Test (TET) with 50% marks. She has further submitted that as per Grant-in-Aid to Parent Teachers Association Rules, 2006, a person should be eligible for appointment to the post as per Recruitment and Promotion Rules (in .
short 'R&P Rules') and otherwise such person is not entitled for Grand-in-Aid, as prayed.
6. Petitioner was engaged by SMC in May 2012 as respondents had failed to provide Shastri Teacher to teach the students. At that time, amendment dated 27.08.2012 was not there and petitioner was having qualification of essential eligibility as per R&P Rules existing and prevailing on that day and after amendment, prescribing passing of TET as essential qualification, petitioner has qualified Shastri Teacher Eligibility Test in the year 2016 during his continuation as Shastri Teacher in the School. Therefore, plea of the State that petitioner was not eligible at the time of appointment and/or is not eligible as on date to be appointed as a Shastri is contrary to the record and, thus, not sustainable. Otherwise also it is also undisputed that Government of Himachal Pradesh has granted an opportunity to the candidates to acquire qualification who are found in service but were ineligible to be engaged in the service for lacking essential qualification as notified after passing of Right to Education Act and Guidelines issued by NCET.
7. Learned counsel for petitioner has contended that present case, on the issue being agitated, is squarely covered by judgment passed by Coordinate Bench of this Court in CWP No. 2467 of 2015, titled as Villam Singh vs. State of H.P. and others, wherein direction was issued to respondents to release grant-in-aid ::: Downloaded on - 28/11/2022 20:31:28 :::CIS 4 to petitioner therein who was similarly situated to present petitioner and in the said case, not only LPA No. 53 of 2018, preferred by respondents department, was dismissed by the Division Bench of this Court vide judgment dated 26.11.2018, but also SLP (c) No. .
19103 of 2019 preferred by respondents' department was dismissed by the Supreme Court vide judgment dated 9.8.2019.
8. In Villam Singh's case, Villam Singh was appointed as Lecturer (Political Science) under SMC policy in the school concerned. He was otherwise eligible for appointment as Lecturer fulfilling the essential qualification prescribed in R&P Rules to such post. The SMC Policy was formulated by State on 17.7.2012 and it was made applicable to all schools including the school wherein Villam Singh was appointed vide notification dated 16.8.2014.
9. Taking into consideration aforesaid facts in Villam Singh's case, a Coordinate Bench of this Court had observed that only reason to deny the petitioner's grant-in-aid was that he had been engaged prior to the notification dated 16.8.2014 read with SMC Policy dated 17.7.2012 and, therefore, he was not entitled to claim the benefit under SMC Policy. It was observed by the Court that it was not the case of respondents department that petitioner's appointment was in any manner illegal or contrary to law or that he was not qualified.
10. As submitted by learned counsel for the petitioner that findings returned and observations made in Villam Singh's Case have attained finality after dismissal of Special Leave Petition, preferred by State/respondents, by the Supreme Court, in present case also, it is not a case of respondents' department that ::: Downloaded on - 28/11/2022 20:31:28 :::CIS 5 appointment of petitioner was illegal in any manner or contrary to law or he was not qualified.
11. The facts of present case are similar. Petitioner was appointed prior to notification dated 16.8.2014 whereas SMC policy .
dated 17.7.2012 was made applicable to school of petitioner vide notification dated 16.8.2014.
12. In Villam Singh's case, it was concluded by the Coordinate Bench of this Court that action of respondent in not paying the grant-in-aid to petitioner w.e.f. 16.8.2014 was illegal and arbitrary and, therefore, same could not be countenanced or sustained and thus petition was allowed with direction to respondent-State to release grant-in-aid in favour of petitioner in accordance with Rules w.e.f. 20th September, 2014.
13. There is another aspect of the case. It is the duty of respondents' Department, being functionary of the State, to provide sufficient teachers in schools opened by State. In present case, it is not the case of State that there was no necessity of Shastri Teacher in school. Therefore, there was lapse or failure on the part of respondents/State to provide a teacher. Hence the SMC was constrained to appoint the petitioner to cater the needs of students. Nothing was done by the respondents/State to provide teacher to teach the students, rather School Management Committee was allowed to appoint and when responsibility to pay arises, the State/Department washed its hands by posing that teacher was engaged by SMC, not State/Department. It is strange behaviour on the part of State that for teaching the students, a candidate is considered to be suitable and eligible, but, for making the payment of Grant-in-Aid or other emoluments equivalent to similarly situated ::: Downloaded on - 28/11/2022 20:31:28 :::CIS 6 persons, the same candidate is considered ineligible for want of certain formalities to be performed by SMC as well as Department on behalf of respondents/State and for want of requisite qualification. Such behaviour of State is unwarranted.
.
14. Following observations of this Court made in judgment dated 26.5.2018 passed in CWP No. 384 of 2017 titled Renuka Devi vs. State of HP in this regard would also be relevant:-
"16. Present case is a glaring example of exploitation of unemployed destitute citizens by mighty State. 'We the people of India' have submitted ourselves to a Democratic Welfare State. In India, since ancient era, State is always for welfare of citizens being guardian and protector of their rights. Primary duty of State is welfare of people and exploitive actions of rulers have always been deprecated and history speaks that such rulers were always reprimanded and punished. "Rule of Law" was and is Fundamental Principle of "Raj Dharma". Dream of our forefathers, to establish "Rule of Law" after independence, has emerged in our Constitution. Exploitation by State has never been expected on the part of State as the same can never be termed as 'Rule of Law', but the same is arbitrariness which is antithesis of 'Rule of Law'. To make law, to ameliorate exploitation, is duty of State and in fact State has also framed laws to prevent exploitation. But in present case State is an instrumental in exploitation which is contrary to essence of the Constitution."
15. On comparing the facts of Villam Singh's case, with present case and verdict of Court therein, I am of the considered view that present case is squarely covered by judgment passed in Villam Singh' case, referred supra. Therefore, it is concluded that in present case also, action of respondents in not paying Grant-in-Aid ::: Downloaded on - 28/11/2022 20:31:28 :::CIS 7 to petitioner w.e.f. 16.8.2014 is illegal and arbitrary and not sustainable.
16. In view of above, respondents are directed to release grant-in-aid in favour of petitioner in accordance with relevant Rules .
w.e.f. 16.8.2014 and except for his appointment prior to issuance and extension of SMC policy in the school. Arrears of grant-in-aid of petitioner shall be paid as expeditiously as possible preferably before 31.01.2023. Failure in making the payment of Grant-in-Aid in the aforesaid period, respondent-Department shall be liable to pay interest @ 5% from the date of passing of the order.
17. Petition is disposed in aforesaid terms, so also pending application(s), if any.
(Vivek Singh Thakur), Judge.
November 24, 2022 (Purohit) ::: Downloaded on - 28/11/2022 20:31:28 :::CIS