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Himachal Pradesh High Court · body

2016 DIGILAW 1128 (HP)

Vikas Sharma v. State of H. P.

2016-06-22

VIVEK SINGH THAKUR

body2016
JUDGMENT : Vivek Singh Thakur, J. Petitioner was engaged as PTA Teacher against sanctioned post of Language Teacher by respondents through Parent Teacher Association in April, 2004 in Govt. Middle School (now GHS), Jaunta. Respondent has notified Grant-in-Aid to Parent Teacher Association Rules, 2006 (here-in-after referred to as GIA Rules, 2006) vide Notification No. EDN-A-Kha)) 7-3/2006 dated 29.06.2006. Petitioner was engaged much before notifying GIA Rules, 2006. Petitioner is claiming grant-in-aid w.e.f. June 2006 with all consequential benefits. 2. Respondents are contesting claim of the petitioner on the ground that petitioner was appointed on the basis of resolution No.26 dated 15.9.2004 before issuance of (GIA) Rules, 2006 without conducting proper interview on merit basis and therefore, petitioner is not entitled for grant-in-aid from respondents as his appointment was not made, as per procedure prescribed, under GIA Rules 2006. 3. It has been further contended that at the time of his appointment essential qualifications for direct recruitment of Language Teacher was “Prabhakar (Honors in Hindi) with Matric (full subject) and Language Teacher Training or JBT 2 years training from recognized University/Institution, whereas petitioner was possessing qualification of B.A. with an elective subject of Hindi having more than 50% marks and therefore, petitioner was not having essential qualifications at the time of his initial appointment as per R & P Rules in vogue at that time. 4. It is further stand of respondents-State that as per revised R&P Rules, essential qualifications for Language Teacher is “B.A. with Hindi as an elective subject from a recognized university with 50% marks in Hindi or its equivalent or M.A in Hindi with 50% marks”. It has been admitted by respondents that as per R&P Rules prevailing as of today, petitioner is possessing essential qualifications required for post of Language Teacher. 5. On 26.4.2016, learned Deputy Advocate General was directed to have fresh instructions from the Department. As per instructions dated 7.5.2016 imparted by Director of elementary Education, Himachal Pradesh, it has been stated as under:- “Though both the incumbents are similar and possess the academic qualification as per new R&P Rules for the post of Language Teacher, but they have not been appointed as per the GIA Rules 2006 by adopting the proper process.” Only objection of respondents is that petitioner has not been appointed as per GIA Rules, 2006 by adopting proper process. 6. 6. Denial of grant-in-aid for non compliance of procedure which was not in existence at the time of appointment of petitioner is not justified rather irrational, unreasonable and arbitrary. Procedure prescribed under Grant-in-Aid Rules, 2006 cannot be made applicable retrospectively. 7. Petitioner was appointed prior to existence of GIA Rules, 2006 in the year 2004 against sanctioned post of Language Teacher by passing a resolution by Parent Teacher Association on the basis of norms prevailing at the time of appointment of petitioner. Respondents are availing service of petitioner till date but are not willing to release grant-in-aid to petitioner, despite the fact that petitioner is performing the same duty as are being performed by other similar situated teachers to whom grant-in-aid is being released. Petitioner is neither entitled nor claiming grant-in-aid prior to issuance of GIA Rules, 2006. 8. Present case is a glaring example of exploitation of unemployed destitute citizens by mighty State. ‘We the people of India’ have submitted ourselves to a Democratic Welfare State. Even in ancient era, in India, State was always for welfare of citizens being guardian and protector of their rights. Primary duty of State was welfare of people and exploitive actions of rulers were always deprecated and even such rulers were punished. “Rule of Law” was Fundamental Principle of “Raj Dharma”. Dream of our forefathers to establish ‘Rule of Law’ after independence, has emerged in our Constitution. Exploitation by State was never expected on the part of State as the same can never be termed as ‘Rule of Law’ but arbitrariness which is antithesis of ‘Rule of Law’. To make law to ameliorate exploitation is duty of State and in fact State has also framed laws to prevent exploitation. But in present case State is an instrumental in exploitation which is contrary to essence of the Constitution. 9. In an identical matter, Co-ordinate Bench of this Court in CWP No.8692 of 2012 dated 10.4.2015 titled Lata Kumari vs. State of H.P. & Ors., directing the State to release grant-in-aid to the person appointed prior to issuance of notifying GIA Rules, 2006, has held as under:- “9. The matter can be looked from a different angle. Indisputably the petitioner had been appointed and assigned the duties to teach the students and such duties have been continuously performed by her. The matter can be looked from a different angle. Indisputably the petitioner had been appointed and assigned the duties to teach the students and such duties have been continuously performed by her. Then can the respondents, who are model employers, be permitted to act with total lack of sensitivity and indulge in “Begar”, which is specifically prohibited under Article 23 of the Constitution of India. 10. The State government is expected to function like a model employer, who is under an obligation to conduct itself with high probity and expected candour and the employer, who is duty bound to act as a model employer has social obligation to treat an employee in an appropriate manner so that an employee is not condemned to feel to tally subservient to the situation. A model employer should not exploit its employee and take advantage of their helplessness and misery. In the present case the conduct of the respondents falls short of expectation of a model employer. 11. It is not the case of the respondents that petitioner has not been discharging her duties diligently, honestly and faithfully. Therefore, in such circumstances while demanding her legitimate due by way of grant in aid under the Rules, the petitioner has not asked for the moon. 12. In view of the aforesaid discussion, there is merit in the petition and the same is allowed and the respondents are directed to release the grant-in-aid to the petitioner as per the ‘Grant-in-Aid to Parent Teacher Association Rules, 2006’ from the date of promulgation of the Rules. No costs.” 10. In view of above discussion, petition is allowed and respondents are directed to release the grant-in-aid to petitioner from the date of notification of GIA Rules, 2006 within eight weeks from today after adjusting amount, if any, received by petitioner under these Rules. Respondent No.2 shall file compliance affidavit within ten weeks. 11. Petition is disposed of in aforesaid terms, so also the pending applications, if any.