Himachal Pradesh High Court
Ms. Kanta Sharma vs . State Of H.P. on 26 June, 2023
Bench: Tarlok Singh Chauhan, Satyen Vaidya
Ms. Kanta Sharma vs. State of H.P. CWP No. 1924/2022 a/w CWPOA No. 4118/2020 .
& CWP No. 6456/2021 26.6.2023 Present: Mr. Devender K. Sharma & Ms. Archna Dutt Sharma, Advocates, for the respective petitioners. Mr. Ramakant Sharma, Ms. Sharmila Patial, Addl.
A.Gs. Ms. Priyanka Chauhan, Deputy Advocate General and Mr. Rajat Chauhan, Law Officer, for the respondent-State.
On 12.9.2022, this Court passed the following order:-
r to 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 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 ::: Downloaded on - 27/06/2023 20:35:03 :::CIS 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."
2We 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 ::: Downloaded on - 27/06/2023 20:35:03 :::CIS 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 directions contained in para 57 thereof, which read as under:-
A. The Central Government must forthwith notify the norms and standards of pupilteacher 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;
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;::: Downloaded on - 27/06/2023 20:35:03 :::CIS
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-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 timelines 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."
9 For compliance, list on 7.11.2022".
2 Today, the respondent-State instead of taking into consideration the order so passed by us has taken the ::: Downloaded on - 27/06/2023 20:35:03 :::CIS decision, dated 20.5.2023, relevant portion whereof 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 rresources.
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 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 ::: Downloaded on - 27/06/2023 20:35:03 :::CIS 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."
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 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 ::: Downloaded on - 27/06/2023 20:35:03 :::CIS 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.
9 For compliance, list on 31.7.2023.
(Tarlok Singh Chauhan) Judge (Satyen Vaidya) Judge 26.6.2023 (pankaj) ::: Downloaded on - 27/06/2023 20:35:03 :::CIS .
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