Himachal Pradesh High Court
Timbi vs State Of Hp on 5 January, 2022
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
ON THE 5th DAY OF JANUARY, 2022
.
BEFORE
HON'BLE MR. JUSTICE VIVEK SINGH THAKUR
CIVIL WRIT PETITION (ORIGINAL APPLICATION) NO.7915 OF
2019
Between:-
SMT. SHYAMA RANA, WIFE OF
SHRI JAI SINGH RANA, VILLAGE
AND PO KAMRAU, SUB TEHSIL
KAMRAU, DISTRICT SIRMAUR
(HP) PRESENTLY WORKING AS
LANGUAGE TEACHER AT GSSS
TIMBI, TEHSIL SHILLAI, DISTRICT
SIRMAUR HP
....PETITIONER
(BY SHRI PRAKASH SHARMA, ADVOCATE)
AND
1. STATE OF H.P. THROUGH
ADDITIONAL CHIEF SECRETARY
(EDUCATION) TO THE GOVERNMENT
OF H.P., SHIMLA
2. THE DIRECTOR OF ELEMENTARY
EDUCATION, HIMACHAL PRADESH
SHIMLA.
3. THE DEPUTY DIRECTOR OF
ELEMENTARY EDUCATION,
SIRMAUR H.P.
4. PRINCIPAL,
GOVERNMENT SENIOR SECONDARY
SCHOOL, TIMBI, TEHSIL SHILLAI,
DISTRICT SIRMAUR HIMACHAL
PRADESH .......RESPONDENTS
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2
(BY MR. RAJU RAM RAHI, DEPUTY ADVOCATE GENERAL)
.
Whether approved for reporting? Yes.
This petition coming on for hearing this day, the Court passed the following:
ORDER
Petitioner herein has approached this Court seeking
(a) directions to respondents to frame a policy for conferring
contractual status to teachers working through School
Management Committee (in short 'SMC') under Local
Fund/Student Welfare Fund basis in the Government Schools and
for her regularization in due course of time; (b) to declare the
petitioner entitled to continue in service from due date i.e.
17.5.2013 with all consequential benefits; (c) direction to release
the grant-in-aid in favour of petitioner from due date i.e.
17.5.2013 alongwith interest on market rate; and also, (d) in
alternative, direction to treat the petitioner in continuous service
in view of notification dated 17.7.2012 extended from time to
time with all consequential benefits.
2 However, learned counsel for petitioner has
restricted the claim of petitioner in present petition, only for
seeking direction to respondents to release the grant-in-aid in
favour of petitioner from the due date i.e. 17.5.2013 and
alternatively, to release the grant-in-aid w.e.f. 16.8.2014, the
date of notification extending the applicability of SMC Policy to
all schools including the school of petitioner.
.
3 Therefore, without adjudicating other prayers of
petitioner, leaving those issues open to be decided in
appropriate petition, if so preferred, in the present petition claim
of petitioner for her entitlement to grant-in-aid is being
adjudicated.
Undisputed facts in present petition are that for
shortage of staff petitioner was engaged by School Management
Committee, respondent No.4, Principal, Government Senior
Secondary School, Timbi as Language Teacher on SMC basis
w.e.f. 17.5.2013 and since then she is continuing as such.
5 Claim of petitioner is that she is fully eligible to be
appointed as Language Teacher fulfilling essential qualification
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 said Policy as notified vide communication dated 20 th
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 GSSS Timbi also came in the area for
which Policy to engage teacher(s) through SMC was extended.
6 Respondents have opposed the claim of petitioner by
filing reply, stating therein that petitioner was engaged by
School Management Committee vide Resolution dated 16.5.2013
against the post of Language Teacher for Academic Session
2013-14 by deciding to pay honorarium at the rate of Rs.20/- per
student by collecting the same from parents/guardians and
petitioner was allowed to continue her service for Academic
Session 2013-14. It has been further stated in reply that when
petitioner was not allowed to continue her service in school for
next Academic Session then she approached the Erstwhile H.P.
State Administrative Tribunal by filing OA No. 4464 of 2015 and
in pursuant to order dated 24.11.2015 passed by Erstwhile H.P.
State Administrative Tribunal, she was allowed to re-join the
school on 29.02.2016 and since then, she is continuing as such
and after re-joining she has been paid Rs.2000/- per month w.e.f.
1.3.2016 to 31.12.2019 and Rs.3000/- w.e.f. 1.1.2020 to
31.03.2020 by collecting the funds from parents and guardians
of students by the concerned School Management Committee.
Lastly, it has been stated that this High Court in CWP No. 277 of
2017 titled Subhash Chand vs. State of HP, has held that State
.
cannot be directed to release wages in favour of petitioners who
have not been appointed in terms of 2012 Policy, and thus, it has
been contended that petitioner is not entitled for any grant-in-
aid from the respondent/State.
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 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 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
petitioners 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
r to
respondent-State to release grant-in-aid in favour of petitioner in
accordance with Rules w.e.f. 20th September, 2014.
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 Language Teacher in school. Therefore, there was
lapse or failure on the part of respondents/State to provide a
teacher. Hence the School Management Committee 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 School Management Committee,
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
persons, the same candidate is considered ineligible for want of
certain formalities to be performed by School Management
Committee as well as Department on behalf of
14 Following
observations
respondents/State and for want of requisite qualification. Such
behaviour of State is unwarranted.
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 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 her appointment prior to
issuance and extension of SMC policy in the school, petitioner is
otherwise eligible for grant-in-aid. Arrears of grant-in-aid of
petitioner shall be paid as expeditiously as possible preferably
before 31st March, 2022.
.
Petition stands disposed of, as aforesaid, including all
pending miscellaneous application (s), if any.
January 05, 2022 (Vivek Singh Thakur)
(ms) Judge
r to
