Himachal Pradesh High Court

Nishant Banshtu vs State Of Himachal Pradesh & Others on 25 October, 2024

Author: Virender Singh

Bench: Virender Singh

( 2024:HHC:10255 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CWPOA No. 7230 of 2019 Reserved on : 06.08.2024 Decided on : 25.10.2024

Nishant Banshtu ...Petitioner

Versus

State of Himachal Pradesh & Others ...Respondents

Coram The Hon'ble Mr. Justice Virender Singh, Judge.

Whether approved for reporting?1 Yes.

For the petitioner : Mr. Onkar Jairath & Mr. Peeyush Mehta, Advocates.

For the respondents : Mr. Tejasvi Sharma & Mr. Pratush Sharma, Additional Advocate General, for respondents No.1 to 4.

Name respondent No.5 stands deleted.

Virender Singh, Judge

PetitionerNishant Banshtu has invoked the

jurisdiction of the erstwhile Himachal Pradesh State

Administrative Tribunal (hereinafter referred to as the

'Tribunal'), by filing Original Application No.1630 of 2016,

Whether Reporters of local papers may be allowed to see the judgment? Yes.

2 ( 2024:HHC:10255 )

preferred, under Section 19 of the Administrative Tribunals

Act, 1985, seeking the following reliefs:

"I) That the respondents may be directed to release the GrantinAid in favour of the Applicant from the date of his initial appointment.

II) That the Respondents may be directed to release the GrantinAid @ rate of 9% on the delayed payment of such GrantinAid."

2. After the abolition of the Tribunal, the said

Original Application was transferred to this Court and

thereafter, registered as CWPOA No.7230 of 2019.

3. The abovementioned reliefs have been sought, by

the petitioner, on the ground that the respondents have

committed the act of omission and commission, in not

releasing the benefits of GrantinAid to the petitioner, on the

pretext that he is not possessing the essential educational

qualification, according to the Recruitment and Promotion

Rules. However, according to the petitioner, he is fully eligible

for the same, as per the Recruitment and Promotion Rules.

4. Even otherwise, it is the case of the petitioner that

respondents, vide notifications dated 16.1.2014 and 24.5.2014, 3 ( 2024:HHC:10255 )

took a conscious decision that all the PTA teachers shall be

permitted to complete their educational qualification till

16.8.2016 and till then, it has been decided to release the

GrantinAid, in their favour.

5. The petitioner has placed reliance upon the

decisions of this Court in CWP No.3158 of 2011, titled as

Rajni Devi versus Principal Secretary (Elementary) &

Others, and in CWP No.5928 of 2014, titled as Chande

Ram versus State of H.P. & Others, decided on 16.5.2015.

6. In addition to this, on the basis of the educational

qualification, the petitioner has pleaded that he is eligible to

be appointed, as Drawing Master in the Education

Department, as per the Recruitment and Promotion Rules.

7. It is the further case of the petitioner that way

back, in the year 1973, the State of Himachal Pradesh,

through its Education Department, had framed the

Recruitment and Promotion Rules, in exercise of powers under

Article 309 of the Constitution of India, vide notification dated

28.12.1973.

4 ( 2024:HHC:10255 )

8. The eligibility for the post of Drawing Master has

been mentioned in the Rules, as, matriculation with two years

diploma in Art and Craft, whereas, in the year 2009, the

Recruitment and Promotion, Rules were amended and vide

notification dated 31.12.2009, the qualification for the post of

Art and Craft Teachers has been notified, as under:

"Ten Plus Two (10+2) with 50% marks with two years diploma in Art and Craft Teacher or its equivalent from University/Institution recognized by HP Govt.

Bachelor of Arts with Fine Arts/Visual Art (Painting or Sculpture or Applied Arts) as an elective subject with 50% marks in Fine Arts or its equivalent from a recognized university.

Master Degree in fine Arts/Visual Arts (Painting and Sculpture) or its equivalent from a University/Institution recognized by the HP Govt."

9. Since, there was one post of Drawing Master lying

vacant in Government Senior Secondary School, Dalgaon,

Tehsil Rohru, District Shimla, as such, on the permission

accorded by the Deputy Director (Elementary Education) 5 ( 2024:HHC:10255 )

Shimla, the post of Drawing Master, was filledup on the basis

of PTA scheme, after following the guidelines.

10. It has further been pleaded that after obtaining

necessary sanction, the Principal has invited applications,

from the eligible candidates of the locality. In response to the

said advertisement, only the applicant had applied and was

appointed, as Drawing Master, vide resolution No.30 of PTA.

Thereafter, he has joined on 15.09.2007.

11. It is the further case of the petitioner that

although, the selection process was conducted by the PTA

Committee, strictly, in accordance with the GrantinAid

Rules, but, the GrantinAid has not been released by the

respondents.

12. It has also been alleged that concerned Principal

has not raised demand for releasing the GrantinAid, despite

the request made by the petitioner. In this regard,

representations were also submitted to the Principal,

Government Senior Secondary School, Dalgaon, but, the

GrantinAid, has not been released. Thereafter, he has filed

CWP No.6197 of 2012, which was disposed of on 23.3.2013, 6 ( 2024:HHC:10255 )

with the observation that as and when the representation is

received by the respondentsauthorities, the same shall be

decided in accordance with law.

13. Thereafter, the petitioner has submitted the

detailed representation dated 3.5.2023. In response to the said

representation, respondent No.2 has called the petitioner for

personal hearing on 3.5.2013. Consequently, the petitioner

has put forward his position, before respondent No.2, but, the

said representation was rejected vide office order dated

8.5.2013.

14. It is the further case of the petitioner that the only

ground, upon which, his representation was rejected was that

at the time of engagement of the petitioner, GrantinAid/PTA

Rules, were not followed, whereas, according to the petitioner,

his appointment was made, in compliance to the above Rules.

15. While rejecting the representation of the

petitioner, the respondents have also taken the ground that

when the petitioner was appointed, interview has not been

conducted, whereas, according to the petitioner, he was the

only candidate, who had applied for the said post.

7 ( 2024:HHC:10255 )

16. When, the grievances of the petitioner were not

redressed, he was constrained to file CWP No.4556 of 2013,

which was disposed of on 5.11.2014, by passing the following

orders:

" Heard. The impugned order, Annexure P10, is quashed in view of Annexure A1. The case of the petitioner be decided as per Annexure A1 within a period of three weeks from today.

2. With the aforesaid observations, writ petition is disposed of. Pending application(s), if any, also stands disposed of."

17. After disposal of CWP No.4556 of 2013, the case of

the petitioner was strictly recommended, by the Principal of

the School on 2.1.2015 to release the GrantinAid, but, despite

the fact that the rejection order was already set aside by this

Court, the respondents again rejected the case of the petitioner

for GrantinAid, on the same and similar grounds.

18. In this way, the petitioner has sought the relief, by

relying upon the decision of this Court in Rajni Devi and

Chande Ram's cases supra.

8 ( 2024:HHC:10255 )

19. When put to notice, respondents No.1 to 4, have

filed the joint reply, by taking the preliminary objections that

the petitioner is not maintainable, on the ground that the

teacher appointed by the PTA is not the holder of civil post

under the State.

20. While relying upon CWP No.332 of 2007, titled as

Baldev Singh versus State, it is the further case of the

respondents that after taking into consideration shortage of

staff, State has framed the GrantinAid to Parents Teachers

Association Rules, 2006, vide notification dated 29.6.2006.

This was done in compliance to the interim order passed by

the Tribunal in O.A. No.2919 of 2006, titled as Jasbir Singh

& Others Versus State of H.P. & Others.

21. All these facts have been highlighted to show that

the petitioner has not been appointed, as per the procedure,

enumerated in letter dated 20.02.2007 (Annexure R1).

22. It is the further case of the respondents that the

applicant has been appointed, after passing resolution dated

13.09.2007, purely on remuneration of Rs.1000/ per month, by 9 ( 2024:HHC:10255 )

the local PTA Committee and his appointment is stated to be

in violation of the instructions, issued by the State

Government.

23. It is the further case of the respondents that the

petitioner was appointed by the P.T.A., in the year 2007,

however, he has filed the Civil Writ Petition No.6197/2012, in

the year 2012, after a lapse of five years and the same was

disposed of, with a direction to decide the representation,

made by the petitioner. Thereafter, his representation was

rejected.

24. Thereafter, the petitioner had again filed CWP

No.4556 of 2013, which was also disposed of on 5.11.2014, with

a direction to decide the matter afresh. His representation

was again rejected on 24.6.2015.

25. It is the further case of the respondents that the

petitioner was appointed, after passing the resolution, on

13.09.2007, purely, on remuneration of Rs.1,000/ per month,

by the local PTA Committee, however, his appointment was

made, in violation to the instructions, issued by the

Government, from time to time, as, neither vide publicity was 10 ( 2024:HHC:10255 )

given, nor interview was fixed, so that the desirous candidates

could appear on the date of interview.

26. On the basis of the above submissions, a prayer

has been made to dismiss the writ petition.

27. The petitioner has filed rejoinder, denying the

stand taken by the respondents, in the reply to the writ

petition. Along with the rejoinder, the information, obtained

under the Right to Information Act, has also been annexed,

according to which, number of teachers were appointed, on

various dates, by the Resolution(s), passed by the PTA

Committee(s).

28. One thing is not disputed, in this case, that the

pettioner was engaged by the PTA against the post of Drawing

Master and he is working, as such, till date. From 15.09.2007,

till date, he is imparting education to the students. The main

grievance of the petitioner, in the present case, is that Grant

inAid has not been released, by the Government in his favour,

despite repeated requests made by him, as well as, by other

authorities.

11 ( 2024:HHC:10255 )

29. For the last 17 years, the petitioner is performing

duties of Drawing Master, in the said School, against a

sanctioned post. Till date, the respondents have not appointed

regular Drawing Master, in the said School. Meaning thereby,

the respondentdepartment is taking full advantage of the

factum of his serving the school and imparting education to

the students, but, they have not released the GrantinAid to

the School concerned, for further release thereof to the

petitioner. Meaning thereby, the respondents have denied the

wages to the petitioner, for which, he is entitled to, on account

of the services rendered by him, in the School, as Drawing

Master, having been appointed, by the PTA.

30. So far as the stand taken by the respondents

regarding the nonadherence to the conditions, as enumerated

in PTA Scheme, is concerned, no efforts have been made by

the respondents to dispense with the services of the petitioner

on this score till date.

31. A Division Bench of this Court, in LPA No.111 of

2023, titled as State of Himachal Pradesh versus Shyama

Rana, decided on 26.7.2023, has elaborately dealt with the 12 ( 2024:HHC:10255 )

issue regarding release of GrantinAid. Relevant paragraphs

7 and 8 of the judgment, are reproduced, as under:

"7. Having heard learned Additional Advocate General as well as learned Counsel for the respondentpetitioner and having carefully gone through the judgment passed by learned Single Judge as well as the writ record, we do not find any reason to interfere with the findings returned by learned Single Judge. This is more so for the reason that the only argument raised before us on behalf of the State was that the appointment of the respondentpetitioner in the School was not by following the procedure prescribed under the relevant Recruitment and Promotion Rules. In our considered view, the need to appoint teachers like the respondentpetitioner through SMC was a result of inaction on the part on the State to fill up the posts of teachers in the Schools as per Recruitment and Promotion Rules. Besides this, the school in which the respondentpetitioner was appointed as a Language Teacher was not a private school but a government school. The Department acquiesced to the appointment of the teachers through SMC and thereafter when it came to paying the Grantinaid etc., the State/ Department turned its back by disowning such like teachers on the ground that they were appointed by the SMC. Learned Single Judge rightly held that it was the duty of the Education Department, being functionary of the State, to provide sufficient teachers in the school which was opened by the State. Learned Single Judge rightly held that on account of lapse or failure on the part of the State to provide teachers, SMCs were constrained to appoint persons like the petitioner to cater to 13 ( 2024:HHC:10255 )

the needs of the students and the State allowed the SMCs to make such like appointments, therefore, the act of the State of denying payment of Grantinaid and other emoluments equivalent to similarly situated persons as the respondentpetitioner, for the reasons assigned by the Department was unwarranted. We fully concur with the reasoning assigned by the learned Single Judge because, as observed hereinabove, the primary reason for appointment of the petitioner as a Language Teacher through SMC was inaction on the part of the State/Department to appoint regular teacher as per Recruitment and Promotion Rules. The State cannot be allowed to shun away from its duty to pay to the respondentpetitioner the Grantinaid as well as other emoluments as were payable to the similarly situated persons. This is more so for the reason that during the course of hearing, learned Additional Advocate General could not dispute the fact that the petitioner otherwise was similarly situated as Villam Singh, relying upon the judgment in whose case, the relief was granted to the respondentpetitioner by the learned Single Judge.

8. Accordingly, in view of above discussion, as we do not find any merit in the present appeal, the same is accordingly dismissed. Pending miscellaneous application(s), if any, also stand disposed of accordingly."

(Self emphasis supplied)

32. Judging the case of the petitioner, in the light of

the decision of the Division Bench, as referred to above, this 14 ( 2024:HHC:10255 )

Court is of the view that the petitioner is entitled to the relief,

as claimed.

33. The respondents are utilizing the services of the

petitioner for the last 17 years, as, he is teaching the students,

but, his GrantinAid, has not been released, merely on the

ground that certain formalities were not completed by the

PTA. The relief, as claimed by the petitioner, cannot be

denied, as, in case, the appointment of the petitioner was

found to be in violation of the terms and conditions of the