State Of Himachal Pradesh vs State Of H.P. And Another
2021 Latest Caselaw 4067 HP

                            REPORTABLE/NON-REPORTABLE
    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
                     ON THE 24th DAY OF AUGUST 2021
                                BEFORE




                                                        .
           HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN





                                   &
                HON'BLE MR. JUSTICE SATYEN VAIDYA





                CIVIL WRIT PETITION No. 1008 OF 2019

         Between:-
    1. STATE OF HIMACHAL PRADESH




       THROUGH ITS SECRETARY (EDUCATION)
       TO THE GOVT. OF HIMACHAL PRADESH.

    2.   DIRECTOR OF HIGHER EDUCATION,

         HIMACHAL PRADESH, SHIMLA 01.

                                                  ......PETITIONERS

         (BY SH. ASHOK SHARMA, ADVOCATE GENERAL WITH SH.


         RAJINDER DOGRA, SENIOR ADDITIONAL ADVOCATE
         GENERAL, SH. VINOD THAKUR, SH. HEMANSHU MISRA,
         SH. SHIV PAL MANHANS, ADDITIONAL ADVOCATE




         GENERALS AND SH. BHUPINDER THAKUR, DEPUTY
         ADVOCATE GENERAL)





         AND

    1. PUSHPA THAKUR





       D/O SH. KUNDAN SINGH THAKUR
       VILLAGE TALOTI PO KHATNOL
       VIS MASHOBRA DISTT SHIMLA H.P.

    2. INDER SINGH,
       S/o SH. TILAK RAM VERMA,
       VILLAGE NEEN P.O. DURGAPUR,
       TEHSIL SUNNI DISTRICT SHIMLA
       H.P.




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    3. PRIYAVRAT SHARMA,
       S/o SH. TOTA RAM SHARMA,
       VILLAGE CHAIVEN, P.O.
       MASHOBRA, TEHSIL & DISTT. SHIMLA
       H.P.




                                                                 .
    4. TILAK RAJ VERMA,





       S/o SH. GIRDHARI LAL,
       R/o VILLAGE NEEN
       P.O. DURGAPUR, TEHSIL SUNNI,





       SHIMLA, HP.

    5. RITU RAJ,
       S/o SH. KHUB RAM,
       VILLAGE NEEN, PO DURGAPUR,




       TEHSIL SUNNI, DISTRICT SHIMLA
       H.P.

                                                           .....RESPONDENTS

        (BY SH. SHRAWAN DOGRA, SR. ADVOCATE, WITH SH.

        DEEPAK SHARMA, ADVOCATE)
        RESERVED ON : 18.08.2021
        DECIDED ON: 24.08.2021



          This    petition   coming        on       for     orders        this      day,
    Hon'ble Mr. Justice Satyen Vaidya, passed the following:




                                   ORDER

By way of instant petition, petitioner has prayed

for following relief:-

"It is, therefore, respectfully prayed that keeping in view the facts and submissions made in the present writ petition may kindly be allowed, quashing and setting aside the impugned order/judgment dated 10.01.2018 in TA No.6172/2015 by the Himachal Pradesh

Administrative Tribunal (Annexure P-1). Any other relief deemed fit may also be allowed in favour of the petitioners in the interest of justice and fair play.

.

BRIEF FACTS OF THE CASE

2. Respondents herein were employees of Janta High

School, Neen P.O. Durgapur, District Shimla (for short, Janta

High School). Respondents No.1 to 3 were teachers,

respondent No.4 was clerk and respondent No.5 was Peon in

Janta High School which was a Government Aided School

getting 95% Grant-in-Aid.

3. Petitioners herein, on 23.11.2005, decided to take

over a number of Government Aided Schools with all their

assets and services of the staff. In pursuance to such

decision of petitioners, some schools alongwith staff were

taken over. One of such school was Indira Gandhi High

School Sehrol in District Solan, Himachal Pradesh. Its assets

and services of teaching/non teaching staff were taken over

vide Notification dated 06.08.2007. Another similar school

was Public High School Manoh Sihal, District Kangra which

was taken over alongwith staff w.e.f. 27.10.2008.

4. Though, the petitioners had been corresponding

with Janta High School regarding its takeover but finally

instead of taking over the said school, petitioners decided to

upgrade Government Middle School, Neen to Government

High School.

.

5. It is worth noticing here that Janta High School

was being run by a society registered under Societies

Registration Act (for short Society). Initially the society

started running primary school at Village Neen in the year

1975-76. Government of Himachal Pradesh had taken over

said primary school in the year 1979. The society started

private middle school for classes 6th to 8th in the same

campus in the year 1979, which was also taken over by

Government of Himachal Pradesh in the year 1982. The

society consequently started Janta High School for classes 9 th

and 10th in the same campus w.e.f. 03.07.1982. Every time

new infrastructure for opening new classes, as a result of

Government's decision to take over its previous assets was

created by the society.

6. Respondents herein made several representations

to the petitioners seeking indulgence towards their grievance

as they were seeking parity with similarly situated persons,

whose services had been taken over by the petitioners.

Having failed to get their grievance redressed from petitioners,

respondents approached erstwhile Himachal Pradesh

Administrative Tribunal by way of Original Application No.507

of 2008. Learned Tribunal decided the said original

.

application on 14.03.2008 and directed the petitioners to

decide the representation of respondents herein. The matter

was considered by Himachal Pradesh Cabinet on 09.12.2008

and was rejected. The rejection was communicated to

respondents vide communication dated 20.12.2008.

    7.         Aggrieved


                           against      rejection      of

respondents approached this Court by way of Civil Writ r their claims,

Petition No.150 of 2009, which came to be allowed by

learned Single Judge of this Court in following terms:-

"Accordingly, in view of the observations made hereinabove, the writ petition is allowed and Annexure P-18 dated 20.12.2008 is quashed and set aside. The respondents are directed

to consider the case of the petitioners on the analogy of Public High School, Manoh Sihal,

District Kangra and Indira Gandhi High School, Sehrol, District Solan within a period of six weeks from today".

8. It is apt to refer at this stage to the discussion

made by learned Single Judge on the basis of material before

his Lordship in CWP No.150 of 2009 which is as under:-

"There is no explanation why the petitioners have been discriminated against. Petitioner No.6 school and the teachers are similarly

situated vis-à-vis the teachers/staff who were working in Public High School, Manoh Sihal, District Kangra and the Indira Gandhi High School, Sehrol. The State Government has treated equals as unequals. It is true that to take over the school or the services of the

.

teachers/staff is a policy matter. However, it

is equally true that the policy decision should apply to all the similarly situated persons/institutions universally. There cannot

be any pick and choose while implementing the policy. The case of the petitioners is to be treated at par with schools/teachers who were serving in Public High School, Manoh Sihal, District Kangra and Indira Gandhi High

School, Sehrol. In fact the Department of Education has reco mmended the case of the petitioners on the analogy of Public High School, Manoh Sihal,

District Kangra but the decision has gone

against the petitioners. The petitioners have been given assurances from time to time by the Education Department that needful will be done and the school will be taken over.

However, despite the prolonged correspondence what has happened is that the Government Middle School, Neen has been upgraded to High School, Neen. The State

Government as per Annexure P-8 has decided to take over the schools, which were

functioning parallel to the Government institutions. As many as 13 institutions were taken over.

9. From the above noted material, there is no doubt

that the learned Single Judge of this Court while allowing

CWP No.150 of 2009 vide judgment dated 08.01.2010 had

specifically declared the right of respondents herein to be

treated at par with teachers who were serving in Public High

School Manoh Sihal, District Kangra and Indira Gandhi High

School, Sehrol District Solan H.P. It was specifically held in

the said judgment that Janta High School and its teachers

.

were similarly situated vis-à-vis the teachers/staff who were

working in Public High School Manoh Sihal, Distrct Kangra

and Indira Gandhi High School, Sehrol. It was also held in

unambiguous terms that the State Government had treated

equals and unequals and there was no explanation why the

10. to petitioners therein had been discriminated against.

Petitioners, after the judgment in CWP No.150 of

2009, vide Notification dated 28.09.2010, took over services

of respondents w.e.f. 28.09.2010 on contract basis. Though,

the respondents accepted the employment offered to them, yet

they kept agitating their claim of not having meted with the

same treatment as allowed to similarly situated persons i.e.

the Staff of Indira Gandhi High School, Sehrol, District Solan

And Public High School, Manoh Sihal, District Kangra.

11. Again having not received positive result from

petitioners, the respondents again approached this Court by

way of Civil Writ Petition, which was converted as TA No.6172

of 2015 before the Himachal Pradesh State Administrative

Tribunal. Vide order dated 10.01.2018, the learned Tribunal

decided the TA No.6172 of 2015 in following terms:-

3. "It is not in dispute that the service of the applicants were taken over in sequel to the directions of the Hon'ble High Court of H.P. in

.

CWP No.150 of 2009, titled Pushpa Thakur and others Versus State of H.P. and another,

decided on 08.01.2010, Annexure P-1. The final order of the judgment reads as under:- According in view of the observations made hereinabove, the writ petition is allowed and

Annexure P-18 dated 20.12.2008 is quashed and set aside. The respondents are directed to consider the case of the petitioners on the analogy of Public High School, Manoh Sihal,

District Kangra and Indira Gandhi High School, Shehrol, District Solan within a

period of six weeks from today.

4. The respondents were directed to consider the case of the applicants on the analogy of

Indira Gandhi High School, Sehrol, District Solan and Public High School, Manoh Sihal, District Kangra. However, the respondents had taken over the services of the applicants

on contract basis, vide notification dated 28.10.2010, Annexure P-5, whereas the

services of the staff of Indira Gandhi High School, Sehrol, District Solan were taken over on regular basis vide notification dated

06.08.2007, Annexure P-3.

5. Consequently, the transferred application is allowed and the respondents are directed to consider the case of the applicants on the analogy of decision dated 08.01.2010 rendered in CWP No.150 of 2009 by giving similar treatment to the applicants herein as given to the staff of Sehrol School (supra), within three months from the date of production of certified copy of this order".

12. It is the order dated 10.01.2018 passed by learned

Tribunal in TA No.6172 of 2015 i.e under challenge in the

instant petition.

.

13. We have heard learned Additional Advocate General

for petitioners and Senior Advocate Sh. Shrawan Dogra with

Sh. Deepak Sharma, Advocate for respondents.

14. The case set up by petitioners in the present

petition is that the respondents cannot be said to be similarly

situated to the teachers of Indira Gandhi High School, Sehrol,

District Solan and Public High School, Manoh Sihal, District

Kangra. The reason assigned by petitioners are that firstly the

respondents were given appointments on the basis of policy

applicable during the relevant period which was different then

the policy applicable at the time when others were given

appointments and secondly as per grant-in-aid Rules, in order

to be eligible for grant-in-aid, a school was required to have a

minimum strength of students and since Janta High School

did not enroll students after 2007, it was not entitled for grant-

in-aid.

15. Both the grounds raised by petitioners on their face

appears to be fallacious. The contention that respondents were

- 10 -

given employment on the basis of prevalent policy does not

hold good for the reasons that the petitioners have not

substantiated its stand with any tangible evidence. On the

.

other hand the respondents alongwith their reply have placed

on record document Annexure R-1/4 which is the information

provided by the office of petitioner No.2 under Right to

Information Act to respondent No.1. As per this information,

there was no specific guidelines or instructions adopted by

petitioners prior to 2011 for taking over of 95% aided schools.

That being so, it does not lie in the mouth of petitioners to

raise such an absurd argument. Even otherwise, the

petitioners had no option but to implement the judgment

passed by this Court in CWP No.150 of 2009 without taking

any exception to it since the same had attained finality and the

petitioners had not chosen to challenge it. As noted above,

there was specific declaration by learned Single Judge of this

Court and the respondents were held to be similarly situated to

those who were employees of Indira Gandhi High School,

Sehrol, District Solan and Public High School, Manoh Sihal,

District Kangra.

16. As regards the other ground, we have no hesitation

to hold that the same is also without any substance. Once the

- 11 -

petitioners had upgraded the Government Middle School, Neen

to High School in the same campus, for obvious reasons Janta

High School could not have fetched students. In any case,

.

when the rights of respondents have been held to be at par

with rights of the staff of Indira Gandhi High School, Sehrol,

District Solan and Public High School, Manoh Sihal, District

Kangra, they could not be discriminated at the whims and

fences of the authorities. The respondents cannot be faulted

for the delay in taking over of their services by the petitioners.

It is evident from the material on record that the respondents

had been continuously agitating in respect of their claims

before authorities but the authorities instead of doing justice,

kept on forcing the respondents to approach the Courts

repeatedly. The conduct of petitioners belies their claim to be

the model employer.

17. The agonies of respondents are still unabated only

due to the non-serious and casual approach of the petitioners.

Despite a clear mandate in favour of respondents by virtue of

judgment passed in CWP No.150 of 2009, they are being

made to run from pillar to post to get their genuine claims

settled. We feel it appropriate to observe that the preposterous

conduct of petitioner is evident from perusal of order dated

- 12 -

29.11.2019 recorded by this Court in instant petition. On

instructions, it was stated on behalf of the petitioners that the

claim of respondents herein was not identical to that of the writ

.

petitioners in CWP No.150 of 2009. Without realizing, that

the respondents herein were the petitioners in CWP No.150 of

2009, above noted representation was made on behalf of the

petitioners.

18. In light of above discussion, we find no merit in the

present petition and the same is accordingly dismissed, so also

the pending miscellaneous application(s), if any, with no orders

as to cost.

(Tarlok Singh Chauhan) Judge

(Satyen Vaidya) Judge

24th August, 2021 (tarun)