JOGINDER SINGH v. STATE OF H. P. — 1991 DIGILAW 96 (HP)

JUDGMENT M. G. Chitkara Member (J.)—The applicant, Shri Joginder Singh Shastri a permanent resident of village Mandhol, Tehsil Jubbal District Shimla has filed the present application under section 19 of the Administrative Tribunals Act, 1985 challenging the action of the respondents mainly respondents 1 and 2, Secretary (Education) to the Government of Himachal Pradesh, Shimla and Director of Education. H. P,, Shimla who while taking over of Dr. Y. S Parmar Memorial High school, Gaura, District Solan did not absorb the applicant as Shastri Teacher in the Education Department. 2. The brief relevant facts of the case as they emerges from the application are as follows : "The applicant is a matriculate from the Himachal Pradesh Board of School Education securing 1st division during the year 1973. He successfully passed the Shastri examination from the Himachal Pradesh University, Shimla during the sessions year 1978-79. He also passed Vyakaran Acharya from Himachal Pradesh University in second division during the year 1981-82. The applicant who is a permanent resident of village Mandhol, an interior of Himachal Pradesh, in search for job got his name registered in the Employment Exchange, Solan and was appointed as Shastri Teacher on May 3, 1981 and he joined his duties on May 5, 1981 It was the applicant alone who appeared in the interview and was selected on a salary in the pay scale of Rs. 570-1080. The aforesaid private school was recognised with effect from May 3, 198! vide office order dated August 18, 1986 issued by the Director of Education, Himachal Pradesh, Shimla. immediately thereafter the school was taken over on September 12, 1986 but the applicant was not absorbed in Government service and as such he was left with no other option but to file the present application for redressal of his grievance." 3. It is forcefully argued by Shri K D. Shreedhar, the learned Counsel for the applicant, that action of the State Government in not absorbing the applicant in Government service on taking over of the Dr. Y. S Parmar Memorial High School, Gaura, District Solan was arbitrary. It is forcefully argued by Shri K D. Shreedhar, the learned Counsel for the applicant, that action of the State Government in not absorbing the applicant in Government service on taking over of the Dr. Y. S Parmar Memorial High School, Gaura, District Solan was arbitrary. He submitted that the action of the respondents 1 and 2 is discriminatory and violative of Articles 14 and 16 of the Constitution of India inasmuch as, three Shastri Teachers namely, S/Shri Udey Prakash, Madan Chand and Manohar Lai were given employment and were absorbed in Government service when Middle Schools, Kotla, Bhararighat and Rajpura were taken over by the State, where the aforesaid Shastri Teachers were serving at the relevant time in the aforesaid private institutions but the applicant is not given employment and is not absorbed and as such the action of the State Government is discriminatory. 4. Shri H K Paul, the learned Assistant Advocate General in rebuttal has mainly submitted that the applicant is resident of village Mandhol, Tehsil Jubbal and he got employment in District Solan which was not just and proper and that the applicant belongs to 1978-79 session and the persons of earlier sessions are to be appointed before the case of the applicant is considered for employment. He also submitted that there is no discrimination because the cases of S/Shri Udey Prakash, Madaa Chand and Manohar Lal stood on different footing. 5. We have considered the respective contentions of the learned Counsel for the parties and have minutely gone through the record and are of the view that the applicant deserves to be absorbed in Government service as Shastri Teacher for reasons recorded hereinafter. 6. There is no dispute that the applicant is eligible and duly qualified to be appointed as Shastri Teacher. 6. There is no dispute that the applicant is eligible and duly qualified to be appointed as Shastri Teacher. A dispute has been raised that the applicants name was not sponsored through the Employment Exchange and as such the applicants services cannot be taken over by the State Government in view of instructions as contained in the memo, issued by the Director of Education, Himachal Pradesh addressed to all the District Education Officers in Himachal Pradesh on the subject "taking over of services of staff working in privately managed schools on session-wise basis." The memo, dated May 1, 1979 is reproduced for the sake of convenience : "As you are aware that it has already been decided that trained teachers are to be appointed in Government service on session-wise basis But in non-Government Schools, this practice is not being followed. It is, therefore, requested that all non-Government Schools managements/Committees be informed that they should appoint only such trained teachers in the privately run schools which synchronise/conform/talley with the session for appointment of teachers in Government Schools in your district. Their names should also be sponsored by the Employment Exchange. You will bring these instructions to the notice of the Officer concerned who is nominated by you to attend the proceedings of private school committees AH appointments made by the Committee should also be approved by the District Education Officers so that no wrong appointment is made by any management/committee." It is clear from the memo, referred to above that an officer to be nominated by the District Education Officer was to participate in the meetings of the Managing Committee who was to ensure that the appointment of the Shastri Teachers was made on session-wise basis after having been sponsored through the Employment Exchange and the District Education Officer was required to approve every such appointment with a view to ensuring that there was no deviation from those instructions issued on July 18, 1979. The Memo, dated May 1, 1979 supra was to be applied prospectively. 7. The applicant was appointed on May 3, 1981 as Shastri Teacher by the President Prabandhak Committee, Dr. Y S Parmar Memorial High School, Gaura. The appointment order is Annexure C-2 The applicant joined his duty on May 5, 1981. An affidavit of Shri Keshwa Ram, President of Dr. 7. The applicant was appointed on May 3, 1981 as Shastri Teacher by the President Prabandhak Committee, Dr. Y S Parmar Memorial High School, Gaura. The appointment order is Annexure C-2 The applicant joined his duty on May 5, 1981. An affidavit of Shri Keshwa Ram, President of Dr. Y. S Parmar Memorial High School, Gaura dated September 4, 1986, Annexure E-2 also shows that the applicant was one of the members of the staff of the institution at the time of taking over of the institution by the State Government The certificate, Annexure F-2 dated August 5, 1986 also supports the case of the applicant that he was appointed on May 3, 1981 and was working till the institution was taken over by the State Government. Annexure-B is the identity card of the applicant that he was registered with the Employment Exchange, Solan and his date of registration is given out as May 15, 1981. The District Employment Officer, Solan District, Solan informed the District Education Officer, Solan that the applicant was employed by the President Prabandhak Committee, Dr. Y S. Parmar Memorial High School Gaura in July 1981 through Employment Exchange, Solan. On May 3, 1981 the applicant could not have been sponsored through Employment Exchange in view of the document Annexure-B But the letter dated October, 1986 issued by the District Education Officer, Solan District Solan requesting the Director of Education, Himachal Pradesh that the necessary approval for absorption of the applicant in Government service be accorded as the applicant was appointed through Employment Exchange, Solan on May 3, 1981, is important. The applicant may or may not be sponsored through the Employment Exchange. The fact remains that the applicant was in service in the private institution since May 3, 1981, An officer nominated by the District Education Officer also participated in the meeting of the Managing Committee to ensure the appointment on sessions-wise basis after having been sponsored through the Employment Exchange. The fact remains that the applicant was in service in the private institution since May 3, 1981, An officer nominated by the District Education Officer also participated in the meeting of the Managing Committee to ensure the appointment on sessions-wise basis after having been sponsored through the Employment Exchange. The District Education Officer was required to approve every such appointment in order to ensure that there was no deviation from those instructions but there appears to be a lapse on the part of the concerned authorities in the present case, in enforcing the instructions The lapse, if any, in the initial appointment of the applicant was on the part of District Education Officer in not enforcing the Government instructions with regard to the session-wise recruitment and in not sponsoring through the Employment Exchange and as such the applicant cannot be penalised therefor by not taking over his services although he is otherwise fully qualified and eligible t for appointment to the post of Shastri Teacher. The applicant has placed on record sufficient material and it is even otherwise admitted by the authorities concerned that the teachers in Middle Schools Rajpura, Kotla and Bhrarighat were absorbed in Government service. In the light of above, it is a fit case to issue directions to the respondents I and 2 regarding the applicants appointment on regular basis. 8. The Director of Education, Himachal Pradesh in a letter dated September 25, 1986 addressed to District Education Officer, Solan on the subject "taking over of Dr Y. S Parmar Memorial High School Gaura and its staff by the Government." It is specifically mentioned that the Honble Chief Minister bad desired that consequent upon the taking over of Dr. Y. S Parmar Memorial High School Gaura, Solan by the Government, the staff working therein should be taken over by the Government who are eligible and asked for his comments We find on the record Annexure F-4 which is a list of qualification/academic certificates attested whereof the of staff appointed in Dr. Y. S. Parmar Memorial High School Gaura with the remarks of District Education Officer, Solan District Solan that the services of Radha Sharma cannot be taken over because the Jubalpur University is not recognised by the Himachal Pradesh Government but the case of other two teachers may be considered in the light of Middle Schools, Rajpura, Kotla and Bhrarighat. Y. S. Parmar Memorial High School Gaura with the remarks of District Education Officer, Solan District Solan that the services of Radha Sharma cannot be taken over because the Jubalpur University is not recognised by the Himachal Pradesh Government but the case of other two teachers may be considered in the light of Middle Schools, Rajpura, Kotla and Bhrarighat. The applicants name is mentioned at S. No. 1 and his academic qualifications are given out as under: "Academic qualification. Session 1. Matric. 1975 HP Board 2. Shastri. June 1978-79 Govt. Sanskrit College, Solan. 3. V. Acharya. 1982 H. P. University Shimla." 9. It is clear from the above referred document that the applicant was fully qualified and eligible for the post of Shastri Teacher We also find from the record a letter dated October, 1986 issued by the District Education Officer, Solan addressed to the Director of Education, Himachal Pradesh on the subject "Taking over of Dr. Y. S. Parmar Memorial High School Gaura and its staff by the Government" requesting that the necessary approval in case of Shri Joginder Singh, applicant be conveyed. It is surprisingly stated that at inspite of the directions given by the Honble Chief Minister, Himachal Pradesh and the fact that the applicant is fully eligible and qualified to be appointed as Shastri Teacher, he was not given appointment though the staff of Middle Schools, Rajpura, Kotla and Bhararighat were taken over, and the teachers working there were absorbed Thus discrimination is writ large. It cannot be ignored that in the service of the private schools, only a few will be ready and willing to serve where the pay is nominal as compared to service in the Government. Dr. Y. S. Parmar Memorial High School is the recognised institution and was completely taken over by the Government for management, It is not merely taking over the land and buildings, tables and chairs. It has to tackle, at the same time, a human problem, that is to say, the fate of the teachers and the staff serving in that institution. It is understandable that the employees of such privately managed institutions had to join the new service under the Government, for the first time and as such they are to be treated as fresh entrants. (See I State of Orissa and another v. N. N. Swamy and others, AIR 1977 SC 1237 paragraph 17 page 1241). It is understandable that the employees of such privately managed institutions had to join the new service under the Government, for the first time and as such they are to be treated as fresh entrants. (See I State of Orissa and another v. N. N. Swamy and others, AIR 1977 SC 1237 paragraph 17 page 1241). It was for the State Government to have absorbed the employees of Dr. Y. S. Parmar Memorial High School, Gaura after completion of necessary formalities. In view of the above, the application is allowed and the respondents 1 and 2 are directed to take over the services of the applicant against the post of Sbastri and issue him the appointment order immediately but not later than August 20, 1991. Parties are left to bear their own costs in the peculiar circumstances of the case. Application allowed.