Research › Search › Judgment

Himachal Pradesh High Court · body

2012 DIGILAW 717 (HP)

Hans Raj Kaundal v. State of Himachal Pradesh

2012-10-12

DHARAM CHAND CHAUDHARY

body2012
Judgment Dharam Chand Chaudhary, J. 1. By means of this writ petition filed in the erstwhile Himachal Pradesh State Administrative Tribunal and on its abolition transferred to this Court, following reliefs have been claimed:- “(i) That the respondent be directed to take over the services of the applicant, (ii) That the respondent be directed to pay to the applicant all the consequential benefits, such as pay etc., (iii) That the non-taking over of the services of the applicant be declared wrongful and the respondent be directed to reinstate the applicant in service from the day of taking over of the school, (iv) That the respondent be directed to pay the interest on the pay at the rate of 18%.” 2. The petitioner being qualified trained graduate was sponsored by sub-employment exchange Chowari, District Chamba for appointment as TGT in Indira Gandhi Memorial Middle School, Amlehar, Tehsil Nadaun, District Hamirpur, a privately managed School. Consequently, he was appointed as such vide appointment letter dated 25.5.1985 Annexure A-2. He continued to discharge his duties as such in the School till August 1990 when on the School being taken over by the Government, his services were dispensed with as is apparent from the perusal of Office Order Annexure A-5/2, issued by District Education Officer, Hamirpur. The management of the School recommended taking over the services of the petitioner and other members of teaching staff of privately managed school, Amlehar. The District Education Officer, Hamirpur vide letter Annexure A-6 informed the Director of Education, Himachal Pradesh vide letter dated 24.9.1990 that the services of the staff, which was working in the said privately managed school can only be taken over on being recommended to his office along with gift deed by the management of the School. A copy of the letter Annexure A-6 was endorsed to Pradhan, Gram Panchayat, Amlehar also. The gift deed Annexure A-7 came to be executed on 27.8.1990 and the following provisions were made therein qua taking over the services of the staff working in the privately managed school. “3) That Govt. shall not be bound to take in Govt. the services of the staff of the school and shall not have full discretion in taking over such of them in Govt. service as may be considered suitable by Himachal Pradesh Govt. in the light of the instructions contained in the letter No. EDXI.H (T)I-6/85 Dev. “3) That Govt. shall not be bound to take in Govt. the services of the staff of the school and shall not have full discretion in taking over such of them in Govt. service as may be considered suitable by Himachal Pradesh Govt. in the light of the instructions contained in the letter No. EDXI.H (T)I-6/85 Dev. Dated 27.6.1985 4) The members of the staff who are taken in Government services by the Government under the preceding clause shall be treated as fresh entrants in Govt. service and no credit whatsoever of their previous services in school shall be allowed to them and their seniority vis-à-vis the old Govt. servant shall be determined accordingly.” 3. The then Manager of this school, Shri Baldev Singh had also sworn in an affidavit Annexure A-7 (Colly.) stating inter alia as under:- “xxx (iv) That only qualified staff is to be accepted by the Govt. (v) That no unqualified staff is to be taken over. (vi) That only such staff will be considered for taking over in the school at least one year period to the date of taking over of school/classes by the Govt. xxx” 4. The petitioner being B.A., B. Ed. was duly qualified for being appointed as Trained Graduate Teacher and even was appointed as such after his name having been sponsored by the employment exchange, however, when not taken back in service on taking over the school, filed OA No.1842/1991 in the erstwhile Administrative Tribunal, which was disposed of vide judgment Annexure A-8, which reads as follows: “ Similar matters have been decided by this Tribunal, that is, TA-876/86 (Suchil Kumar Kaushal vs. State), TA 875/86 (Smt. Maya Devi vs. State), OA 175/88 (Sarwan Kumar vs. State) and OA 160/90 (Surinder Kumar vs. State). In view of the facts and circumstances of the present case, it is directed that the present application be treated as a representation to the Secretary (Education) to the Government of Himachal Pradesh, who will consider the same in the light of the judgment referred to above and decided within a period of three months after affording an opportunity of being heard to the applicant through notice. In case the decision is adverse to the applicant, the same shall be supported by reasons. In case the decision is adverse to the applicant, the same shall be supported by reasons. In view of this, the application does not survive for the time being and is disposed with liberty reserved to the applicant to come to this Tribunal against on the same cause of action.” 5. Consequent upon the direction of the erstwhile Tribunal, the respondent treating the OA as representation and after hearing the applicant as well as making a reference to the following instructions circulated in the year 1979 and 1985:- “As per instructions of the Government issued in the year 1979 and 1985 (Annexed), the following conditions must be fulfilled before taking over the services of the staff in the private run school:- 1. that the staff should be recruited through employment exchange by following proper procedure. 2. that the recruitment of the teacher should be made according to the session. 3. that all the appointments must be approved by the D.E.O.” had concluded as under:-“ He had done his B.Ed. in 1982 session whereas at the time of his appointment in 1985 the mid 1970 sessions were eligible for appointment. As per the gift-deed the Government of Himachal Pradesh is not bound to take over the services of the staff. He has submitted a certificate according to which he belongs to a backward class community. Although the candidates belonging to the backward classes have a different session criteria yet the session running at that time was earlier one to that of the session of the candidate.” 6. This has led in filing the present petition on the grounds inter alia that the action of the respondents in not taking over the services of the applicant is contrary to the judgments rendered by the erstwhile Administrative Tribunal in several cases and also contrary to the instructions, which provide for taking over the services of the staff duly qualified. Also that only those staff members, who were not qualified, had to be terminated from service. The petitioner being duly qualified was entitled to be taken back in service, on taking over the school. The petitioner belongs to backward community and having qualified for the post in question in the year 1982 his services were not taken over whereas the services of the persons belonging to 1985 were taken over and thereby an altogether discriminatory treatment made out to him. 7. The petitioner belongs to backward community and having qualified for the post in question in the year 1982 his services were not taken over whereas the services of the persons belonging to 1985 were taken over and thereby an altogether discriminatory treatment made out to him. 7. The respondent-State when put to notice has filed the reply to the writ petition and has taken the following stand in its defence:- “Para 6(ii): That the contents of this para are admitted. But however it is submitted that Managing Committee of the Indira Gandhi Memorial School had not done proper requisition of the candidates from the employment exchange, as the record shows that the name of the applicant was requisitioned fro sub employment exchange, Chowari, District Chamba whereas the recruitment was made in Hamirpur. xxx xxx Para 6(x): That the contents of this para are admitted. But it is stated that the representation of the applicant has been decided according to the instructions of the Govt. These instructions provides that following conditions must be full filled before taking over the services of the staff in the private run schools: 1. That the staff should be recruited through employment exchange by following proper procedure. 2. That the recruitment of the teacher should be made according to the session. 3. That all the appointment must be approved by the DEO. But conditions mentioned above have not been full filled in this case. There was no proper procedure followed for requisitioning the name from the employment exchange in this case, which is borne by the fact that the recruitment was done in Hamirpur where as the name of the candidates have been requisitioned from sub-employment exchange Chowari District Chamba. This is an irregularity on the part of the management of school. It is further stated that the applicant had done his B.Ed. in 1982 session whereas at the time of his appointment in 1985 the mid 1970 sessions were eligible for appointment. This copy of instruction which provides the above mentioned conditions are attached and marked as Annexure R-I and R-2.” 8. On going through the rival contentions and also the material available on record, it is abundantly clear that the petitioner being a graduate and having B.Ed. qualification acquired in the year 1982 was duly eligible to be appointed against the post in question. On going through the rival contentions and also the material available on record, it is abundantly clear that the petitioner being a graduate and having B.Ed. qualification acquired in the year 1982 was duly eligible to be appointed against the post in question. His name was registered in the sub-employment exchange, Chowari, District Chamba. On a requisition having been received for the post in question, the name of the applicant was sponsored by the employment exchange concerned. Thus, the instructions issued by respondent-State in the matter of taking over the services of the teaching staff of privately managed school in the year 1979 and 1985 to the extent one should be qualified and his name having been registered with the employment exchange at the time of his recruitment in the privately managed school stand satisfied. 9. The impugned order Annexure A-9/1 passed by the respondent on the representation of the petitioner reveals that the claim of the petitioner for taking over his services has been rejected only on the sole ground that in the year 1985 when he was appointed in the privately managed school, only those incumbents, who belong to 1970 batch, were being considered and appointed as TGT by the respondent-State in Government Schools. I am afraid that any such opinion could have been formed by the 1st respondent in the given facts and circumstances of this case because in the gift-deed Annexure A-7, nothing to this effect finds mention and rather in the affidavit of Shri Baldev Singh, which forms the part of the gift deed, there was understanding for taking over the services of qualified staff working in the privately managed Indira Gandhi Memorial Middle School, Amlehar. No doubt as per the terms and conditions in the gift-deed, it is nowhere obligatory on the part of the respondent-State to take over the services of the staff of this privately managed school, however, taking over their services was left open at the discretion of the respondent-State. 10. No doubt as per the terms and conditions in the gift-deed, it is nowhere obligatory on the part of the respondent-State to take over the services of the staff of this privately managed school, however, taking over their services was left open at the discretion of the respondent-State. 10. Otherwise also the taking over a privately managed school does not mean to take over the building/furniture and other assets, but the respondent-State is under an obligation to tackle a human problem i.e. to take over the services of the staff working in the said school also no doubt duly qualified by adopting a pragmatic approach and not to deny the legitimate claim of the staff members on unreasonable grounds having no nexus between the capability and the services to be rendered by such staff members and particularly when they are duly qualified and appointed after having been sponsored by the employment exchange such staff members cannot also be blamed or penalized for nonobservance of the batch-wise criteria by the management. 11. When the petitioner was duly qualified and his name having been sponsored by the employment exchange, this Court is of the considered opinion that the respondent-State should have exercised such discretion in his favour to do justice to him and not to reject his claim with respect to taking over his services on flimsy grounds such as batch wise criteria etc.. No such plea is available to the respondent-State for want of any contemporaneous record suggesting that the instructions to this effect were received by the Management of the school and ignored while making appointment of the petitioner against the post in question. What to speak of any contemporaneous record in this behalf, there is not even a whisper qua this aspect of the matter in reply to the writ petition. 12. It is also worthwhile to mention here that the petitioner belongs to backward classes as per certificate Annexure A-3. The impugned order Annexure A-9/1 is silent as to in the year 1985 the incumbents of which batch belonging to this category were being given appointments as Trained Graduate Teacher in the Government Schools except for a passing reference that admittedly for backward classes a different session criteria was being followed and the session running at that time was earlier one to that of the sessions of the candidate (petitioner). For want of specific explanation qua this aspect of the matter, the impugned order cannot be said to be legally and factually sustainable. 13. In such a situation, the only inescapable conclusion would be that the impugned order Annexure A-9/1 is neither legal nor factually sustainable. The same rather seems to have been passed mechanically and without application of mind and as such deserves to be quashed and set aside. 14. In view of what has been stated hereinabove, the writ petition succeeds and the same is accordingly allowed. Consequently, the impugned order Annexure A-9/1 is quashed and set aside. There shall be a direction to the respondent-State to appoint the petitioner as Trained Graduate Teacher w.e.f. 27.8.1990, the date when Indira Gandhi Memorial Middle School, Amlehar, District Hamirpur, was taken over, with all consequential benefits. 15. The writ petition stands finally disposed of, so also the pending application(s), if any.