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Himachal Pradesh High Court · body

2015 DIGILAW 7 (HP)

Khem Raj v. State of Himachal Pradesh

2015-01-02

RAJIV SHARMA, SURESHWAR THAKUR

body2015
Judgment Rajiv Sharma, J. Petitioner No. 1 and 2 are working as lecturers in the Education Department. Petitioner No. 3 to 18 are working as TGT and petitioners No. 19 and 20 are working as PET and Art and Craft teacher, respectively. Petitioners were working in various Government aided schools before their appointment. A proposal was made out vide letter dated 20.7.2011 to take over the teaching/non-teaching staff of 95% government aided schools. According to annexure P-2, different yardsticks were adopted i.e. A and B, to take over existing 95% government aided schools where management was willing to transfer the schools alongwith movable assets to the State and such schools where management was unwilling to handover the schools. Para-A(3) reads as under: “(3) The services of the staff working in 95% aided schools shall be taken over as a fresh appointment on regular basis on minimum of pay scale of the post. However, their salaries shall be protected as a measure personal to them. The past service rendered in aided institutions shall not be counted for any other intent and purpose i.e. seniority, pensionary benefits and leave etc. They will be placed at the bottom of the seniority list”. 2. In sequel to letter dated 20.7.2011, Secretary Education sent a communication to the Director Higher Education on 21.4.2012. Text of the letter reads as under: “I m directed to refer to your letter No. EDN-H(5)C(10)-17/2010-School-Taking Over dated 13.4.2012 on the subject cited above and to convey the approval of the Government for making appointments of taken over 95% aided staff of 25 aided schools except F.C. Sikh High School, Shimla & Janta High School, Majhar, Shimla in accordance with the terms and conditions of the policy issued vide this department’s letter No. Shiksha-II-Chha(10)8/2011 dated 20-7-2011. You are therefore requested to take further necessary action accordingly. In addition to above you are requested to clarify as to how the contracts appointments have been made of the teachers of F.C. Sikh High School, Shimla & Janta High School, Majhar, Shimla.” 3. You are therefore requested to take further necessary action accordingly. In addition to above you are requested to clarify as to how the contracts appointments have been made of the teachers of F.C. Sikh High School, Shimla & Janta High School, Majhar, Shimla.” 3. Thereafter, Secretary Education sent a communication dated 13.7.2012 to the Director Higher Education vide annexure P-4, which reads as under: “I am directed to refer to your letter No. EDN-H(5)C(10)-17/2011 –Taking Over dated 23..2012 on the subject cited above and to convey the approval of the Government for making appointments of taken over 95 aided staff of 3 aided schools i.e. F.D.Sr. Sec. School, Mandmiani, Distt. Kangra, 2. BLB Memorial Sr. Secondary School, Palampur, Distt. Kangra and 3. VNM Sr.Sec.School, Raja-ka-Talab Distt. Kangra in accordance with the terms and conditions of the policy issued vide this department’s letter No. Shiksha-II-Chha(10)-8/2011 dated 20-7-2011. You are, therefore, requested to take further necessary action accordingly.” 4. A decision was taken to take over 95% aided staff of three different schools i.e. F.D.Sr. Sec. School, Mandmiani, Distt. Kangra, 2. BLB Memorial Sr. Secondary School, Palampur, Distt. Kangra and 3. VNM Sr.Sec.School, Raja-ka-Talab Distt. Kangra as per policy issued vide letter dated 20.7.2011. The teachers of these schools were appointed vide annexure P-5 and P-6. Their pays were also fixed as per annexure P-7, P-8, P-9, P-10 and P-11. 5. The case of the petitioners in a nutshell is that they were also working in various capacities in the government aided schools. Their pay has not been protected at par with the teaching/non-teaching staff as per policy decision taken on 20.7.2011. Their further case is that persons who have now been appointed as per annexures P-2, P-3 and P-4, are drawing higher salary than the petitioners. It is also contended by them that a class within a class has been created and cut off date of 1.4.2012 is also bad in law. Petitioners became government employees as per annexure P-1 before the decision has been taken to take over all the 95% government aided school by the State Government. Teaching/non-teaching employees appointed before decision dated 20.7.2011 constitute a separate class, and, persons who have been appointed on the basis of letter dated 20.7.2011 constitute a separate class. Persons appointed in sequel to letter dated 20.7.2011 were employees of government aided schools. These schools were getting 95% aid. Teaching/non-teaching employees appointed before decision dated 20.7.2011 constitute a separate class, and, persons who have been appointed on the basis of letter dated 20.7.2011 constitute a separate class. Persons appointed in sequel to letter dated 20.7.2011 were employees of government aided schools. These schools were getting 95% aid. The State Government, in its own wisdom, has thought that instead of giving 95% aid to these schools, it is better to take over schools in larger public interest. It is in these circumstances that the schools were taken over by the State Government. Persons who have been appointed as annexure P-2 dated 20.7.2011 have been offered fresh appointment on regular basis on the minimum of pay scales of the posts. However, their salaries were protected as a measure personal to them. Their past services rendered in aided schools are not to be counted for any other intent and purpose i.e. seniority, pensionary benefits and leave etc. and they are to be placed at the bottom of seniority list. Persons, who have been appointed on the basis of policy decision dated 20.7.2011 are in a disadvantageous position since their entire service rendered in aided institutions, is not to be counted for seniority, pensionary benefits and leave etc and they have to be placed at the bottom of the seniority list. Only saving grace for them is that their salaries are to be protected as a measure personal to them. Persons appointed in 95% aided schools have also gone through the selection process as per law. Lecturers appointed in Government colleges were required to fulfill minimum essential qualifications as per ordinances of the HP University. Teachers/non-teaching employees appointed in government aided schools were also required to meet the prescribed standards and their suitability was adjudged by a duly constituted selection committee. To find suitability of the teachers of 95% aided schools, nominees of the Director Higher Education and Elementary Education were required to be present. 6. In these circumstances, the petition is wholly misconceived. Petitioners’ service rendered in government aided schools before their appointment in the Education Department can not be counted for any purpose including pay fixation. These teachers have been appointed by way of direct recruitment/batchwise basis. There is no illegality or arbitrariness in the condition imposed vide policy decision dated 20.7.2011. Scope of judicial review to tinker with the policy decision is very limited. These teachers have been appointed by way of direct recruitment/batchwise basis. There is no illegality or arbitrariness in the condition imposed vide policy decision dated 20.7.2011. Scope of judicial review to tinker with the policy decision is very limited. It is only in cases where policy is violative of Articles 14 and 16 of the Constitution of India that Court can intervene by way of judicial review. The cut-off date prescribed for giving appointment as annexure P-2, P-3 and P-4, has a rationale with object to be achieved. There has to be a cut-off date for giving appointment. Cut-off date can not be termed illegal or arbitrary in the present case. 7. Accordingly, there is no merit in the present petition and the same is dismissed, so also the pending applications, if any.