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Himachal Pradesh High Court · body

2012 DIGILAW 721 (HP)

Madan Lal Sharma v. State of Himachal Pradesh

2012-10-12

DHARAM CHAND CHAUDHARY

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Judgment Dharam Chand Chaudhary, J. 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 respondent be directed to pay the interest of 18% p.a.” 2. The petitioner claims to have been appointed as Trained Graduate Teacher after his name was sponsored by the Employment Exchange in Indira Gandhi Memorial Middle School Amlehar, Tehsil Nadaun, District Hamirpur, a privately managed School on 6.6.1985. He continued to discharge his duties as such in the School till 1990 when on taking over the School by the State Government, his services were dispensed with. At the time of taking over the school, the applicant as well as other teachers of the school were assured verbally that their services would soon be taken over by the Govt. after completion of all the formalities but despite numerous visits to the office of the respondent, the services of the petitioner were not taken over by the Government. 3. When his services were not taken over, he filed OA No.1195/1991 in the erstwhile Administrative Tribunal, which was disposed of vide judgment Annexure A-1, 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 Govt. of H.P., who will consider the same in the light of the judgments referred to above and decided within a period of three months after affording an opportunity of being heard to the applicants, through notice. In case the decision is adverse to the applicants, 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 applicants to come to this Tribunal against on the same cause of action.” 4. In case the decision is adverse to the applicants, 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 applicants to come to this Tribunal against on the same cause of action.” 4. 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:-“ The petitioner/representationist was appointed by the management of Indian Gandhi Memorial Middle School, Amlehar on 6.6.1985 as per certificate issued by the Management of the school. His name was sponsored by the Employment Exchange on 24.1.1986 after about six months of his appointment which is an irregular practice. According to the instructions of 1979 & 1985 issued by the Government, the following conditions must be fulfilled for taking over the services of the staff:- 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.” had concluded as under:- “ The representationist belongs to 1982-83 session whereas at the time of his appointment, mid 1978 session were eligible for appointment. This school was taken over through a Gift deed signed between the Management of the school and the Head Master of the Government Middle School, Almehar. As per conditions of the gift deed, government was not bound to take over the services of the staff of the school. It was specifically mentioned in the gift-deed that only the services of those staff will be considered for taking over by the State Government who are found eligible under the instructions contained in the instructions of June, 1985.” 5. 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. 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. 6. 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(i): That the contents of this para is not admitted. In fact the applicant was appointed as Shastri by the management of Indira Gandhi Memorial Middle School, Amlehar on 6.6.85, but not as a TGT. But the applicant has not been appointed as Shastri according to the norms and instructions of the Govt., issued in the year 1979 and 1985 as per annx. R-1 and R-2. As the applicant belongs to 1982-83 session, whereas at the time of his appointment mid 1979 session was eligible for appointment. 7. On going through the rival contentions and also the material available on record, it is abundantly clear that the petitioner was appointed as Shastri and not Trained Graduate Teacher. In the absence of anything contrary, it can be presumed that he was duly qualified for appointment as Shastri. No doubt as finds mention in the impugned order, his name was sponsored by the employment exchange on 24.1.1986 i.e. after about six months from the date of his appointment i.e. 6.6.1985. The fact, however, remains that his name was registered in the employment exchange at that time. Thus, the instructions issued by respondent-State in the matter of taking over the services of the teaching staff of privately managed schools in the year 1979 and 1985 to the extent of 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. 8. The impugned order Annexure A-2 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, those incumbents who belong to 1979 batch were being considered and appointed as Shastri 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 pertaining to the same school and on record of a similar writ petition bearing No.CWP(T) 55 of 2011, as Annexure A-7 filed by a Trained Graduate Teacher, who was appointed in the same and similar manner by the Management of Indira Gandhi Memorial Middle School, Amlehar, there is nothing suggesting that the appointment of teaching staff in that school was required to be made by the management on the basis of batch-wise criteria and rather in the affidavit of Shri Baldev Singh annexed to the gift deed, an understanding to the effect that only the services of qualified staff working in the School will be taken over, was there between the respondent State and the management of the School. 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, the taking over their services was left open at the discretion of the respondent-State. 9. 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. 10. 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. 11. In such a situation, the only inescapable conclusion would be that the impugned order Annexure A-2 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. 12. In view of what has been stated hereinabove, the writ petition succeeds and the same is accordingly allowed. Consequently, the impugned order Annexure A-2 is quashed and set aside. There shall be a direction to the respondent-State to appoint the petitioner as Shastri w.e.f. 27.8.1990, the date when Indira Gandhi Memorial Middle School, Amlehar, District Hamirpur, was taken over, with all consequential benefits. 13. The writ petition stands finally disposed of, so also the pending application(s), if any.