Himachal Pradesh High Court
Between vs State Of on 11 October, 2022
Bench: Satyen Vaidya
REPORTABLE/NON-REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 11th DAY OF OCTOBER, 2022
.
BEFORE
HON'BLE MR. JUSTICE SATYEN VAIDYA.
CIVIL WRIT PETITION No. 1901 OF 2015
Between:-
SH. KISHORE KAMTA
SON F SH. BIJA RAM,
RESIDENT OF PREM COTTAGE,
NEAR ENGINE GHAR, SANJAULI,
SHIMLA - 171006.
r ...PETITIONER
(BY SH. SANJEEV BHUSHAN, SENIOR ADVOCATE
WITH MR. RAJESH KUMAR, ADVOCATE)
AND
1. STATE OF H.P. THROUGH
SECRETARY (EDUCATION),
GOVERNMENT OF H.P., SHIMLA.
2. DIRECTOR OF HIGHER EDUCATION,
H.P. SHIMLA.
3. PRINCIPAL, GSSS, LALPANI,
TEHSIL AND DISTRICT SHIMLA, H.P.
... RESPONDENTS.
(SH. DESH RAJ THAKUR,
ADDITIONAL ADVOCATE GENERAL).
RESERVED ON: 29.09.2022.
DECIDED ON: 11.10.2022.
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This petition coming on for pronouncement of judgment
this day, the Court passed the following:
.
ORDER
By way of instant petition, petitioner has prayed for following
substantive reliefs:
(I) That an appropriate writ, order or directions may kindly
be issued and the respondents may kindly be directed
to bring the services of the petitioner on contract basis
from the date when juniors of the petitioner in the State
have been given such benefits with further directions to
give all the monetary benefits of the contract services to
the petitioner w.e.f. January, 2015 when such benefits
were extended to the juniors of the petitioner in the
State of HP in the interest of justice.
(ii) That a writ in the nature of mandamus may kindly be
issued and the respondents may kindly be directed to
release all the entire arrears of grant in aid to the
petitioner with effect from 2007, the date when
respondents started releasing grant in aid to the PTA
teachers with interest @ 12 % p.a. till date and also to
pay grant in aid in future to the petitioner.
2. The case of the petitioner in nutshell is that in 2005, the
strength of students in +1 and +2 classes in GSSS Lalpani, Shimla was
around 2000. Only 1 (one) DPE was posted in the said school. The
school management found it difficult to cope with the requirements of
students with only one DPE posted in the school. Permission was
sought for another post of DPE in GSSS, Lalpani, Shimla from
.
respondent No.2. Keeping in view the strength of the students,
respondent No.2 granted the sanction to employ a DPE in GSSS,
Lalpani, Shimla through the PTA. A selection committee was
constituted. The post of DPE in GSSS, Lalpani, Shimla was advertised.
Total 24 candidates participated in the selection process. Interviews
were conducted and a panel of successful candidates was prepared.
Petitioner was placed at serial No.2. The post of DPE in GSSS, Lalpani,
Shimla was initially offered to the person placed at serial No.1 of the
merit list, however, the said person resigned from the post within a
month from the date of joining. Thereafter, the petitioner was offered
appointment in October, 2005. Petitioner accepted the offer and has
been working as DPE in GSSS, Lalpani, Shimla since then.
3. The grievance of the petitioner is that despite being allowed
to work as DPE in GSSS, Lalpani, Shimla since 2005, he was not
granted the benefit of grant-in-aid and was paid meagre emoluments
from PTA funds. His further grievance is that he had also become
entitled for the benefit of contract appointment after requisite period of
service followed by regularization as per the policy adopted by the State
Government.
4. The respondents, by way of their reply, have contested the
.
claim of petitioner only on the ground that there was only one
sanctioned post of DPE in GSSS, Lalpani, Shimla and it was held by a
regular incumbent. Petitioner was not appointed against the sanctioned
post and hence had no right to claim the benefits of grant-in-aid scheme
to PTA teachers formulated by the State Government. The other factual
aspects of the matter have not been denied on behalf of the
respondents.
5. I have heard learned counsel for the parties and have also
gone through the records of the case carefully.
6. It is evidently clear from the pleadings of the parties that the
petitioner has been working as DPE in GSSS, Lalpani, Shimla since
October, 2005. Almost 17 years have elapsed since the appointment of
petitioner. Petitioner is being paid meager emoluments out of the PTA
funds. Petitioner has been denied the benefit of PTA-GIA Policy-2006
only on the ground that he was not appointed against the sanctioned
post. It is also not denied that respondent No.2 had allowed the
Principal, GSSS, Lalpani, Shimla vide communication dated
13.07.2005 to appoint a DPE in the school out of the PTA funds keeping
in view the strength of the students in the school. It is also not in
dispute that on the basis of such sanction accorded by respondent
No.2, a selection process was initiated and petitioner was appointed as
.
DPE in the school in pursuance thereto. The qualification of petitioner
for the post of DPE is also not in question.
7. In the aforesaid circumstances, the question arises whether
the petitioner can be denied the benefit of PTA-GIA-2006 policy and
further benefits of contract employment and regularization, merely on
the ground that the petitioner was not appointed against a sanctioned
post?
8. The State Government has been justifying the appointment
of teachers by PTA on the grounds of its financial constraints. The
temporary employment to teachers by PTA has continued for many
years. The continuance of the employment in aforesaid form crystalized
certain rights in favour of the incumbents so employed. The State
Government formulated the PTA-GIA Policy in 2006. Subsequently,
after requisite number of years, the incumbents appointed by the PTAs
were given contract employment followed by regularization.
9. Petitioner was appointed by the PTA of the school before
formulation of PTA-GIA-2006 Policy. The mere fact that petitioner has
been allowed to work as DPE in GSSS, Lalpani, Shimla for such a long
spell proves that the requirement of deployment of second DPE to cope
with the pressure of work continued throughout. That being so, the
stand of the respondents to deny petitioner the grant-in-aid and all
.
consequential benefits is clearly unjustified.
10. The respondents have utilized the services of the petitioner
for 17 long years for their own cause and requirement. It is on record
that the Administrative Department recommended to the State
Government for creation of an additional post of DPE in GSSS, Lalpani,
Shimla, but the same was rejected by the Finance Department. The
failure of the Government to create an additional post of DPE in GSSS,
Lalpani, Shimla despite the requirement to meet students-teachers
ratio cannot be used as a tool to exploit the petitioner. In case there was
no requirement to have second DPE in the school, petitioner should not
have been allowed to work for such a long period. Once the respondents
have utilized the services of the petitioner, they are estopped from
denying him the claims as have been given to other PTA teachers.
11. In CWP No. 226 of 2010, titled Promila Devi vs. State of
H.P. and others, decided on 02.04.2015, a Co-ordinate Bench
of this Court in almost identical facts, posed a pertinent question
as under:
"6. At this stage, a wider issue arises for consideration as to
whether the State as a model employer after having extracted
nearly a decade of service from the petitioner can claim that
she had not been regularly appointed. Further, can the State
.
be permitted to argue that petitioner even in these days of
high cost of living should remain content with the
remuneration of Rs.1000/- more particularly when
admittedly the petitioner has already been paid the salary
out of PTA fund with effect from April 2010 to March 2013."
12. While answering the above noted question, it was observed
as under: r
"9. The matter can be looked from a different angle.
Indisputably the petitioner had been appointed and
assigned the duties to teach the students and such duties
have been continuously performed by her. Then can the
respondents, who are model employers, be permitted to
act with total lack of sensitivity and indulge in "Begar",
which is specifically prohibited under Article 23 of the
High Court of H.P. Constitution of India.
10. The State government is expected to function like a model
employer, who is under an obligation to conduct itself with
high probity and expected candour and the employer,
who is duty bound to act as a model employer has social
obligation to treat an employee in an appropriate manner
so that an employee is not condemned to feel totally
subservient to the situation. A model employer should not
exploit its employee and take advantage of their
helplessness and misery. In the present case the conduct
of the respondents falls short of expectation of a model
employer."
.
13. Similarly, in CWP No. 384 of 2017, titled Renuka Devi vs.
State of H.P. and others, decided on 26.05.2018, another co-ordinate
Bench of this Court in related facts situation observed as under:
"13. It is strange behavior on the part of the State that for teaching
students, petitioner is eligible, but for making payment of grant-
inaid, she is being considered ineligible for want of certain
formalities to be performed by PTA on behalf of respondents-State.
In case her appointment was defective or illegal, she should not
have permitted to continue for 11 years. There is no dispute about
the eligibility of the petitioner for her appointment as Science
teacher.
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."
.
14. Applying the above noticed exposition to the facts of the case,
there is no hesitation to hold that the treatment given to petitioner by
respondents is harsh and discriminatory and hence cannot be
sustained. Petitioner was duly qualified from the very inception of his
joining as DPE in GSSS, Lalpani, Shimla in October, 2005. There is no
allegation of petitioner being incompetent to discharge his duties.
Respondent No.1 as a model employer cannot be allowed to indulge in
exploitative actions towards the citizens of the country. The
administrative failure of respondents to sanction a post despite
requirement cannot be allowed to be used as a shield for such
exploitative action.
15. Resultantly, the petition is allowed. The respondents are
directed as under:
i) To release the grant-in-aid in favour of petitioner from
the date when the grant-in-aid Rules were notified
and;
ii) To consider the case of petitioner for contract
employment and regularization in accordance with the
policy.
.
16. The aforesaid directions be complied with within a period of
three months.
Petition is disposed of accordingly, so also the pending
application(s), if any.
11th October, 2022
(GR) r to (Satyen Vaidya)
Judge
