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Himachal Pradesh High Court · body

2016 DIGILAW 1907 (HP)

Shailender Kumar v. State of Himachal Pradesh

2016-09-07

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. 1. Petitioners were appointed as teachers in respondent No.4-school on different dates. The State Government has framed the rules called “The Himachal Pradesh Non-Government Institution (Grant-in-aid) Rules, 1997” Appendix-II”. These were notified on 29.10.1998. The object of the grant was to provide for meeting the deficit in the net approved expenditure on salary of approved staff of privately managed schools. The grant was to be released exclusively for salary component and it was not to be utilized for any other purpose. According to the notification, before the grant was to be released, the grantee was required to execute a bond with two sureties to the Governor of H.P. to the effect that he would abide by the condition of grant and in the event of his failing to comply with the condition or committing breach of bond, he and the sureties individually and jointly were liable to refund to the Governor of H.P., the entire amount of the grant with interest. The grant was to be based on average attendance for the preceding year or for such shorter period as the school might have been in existence. The management was required to ensure monthly salary to the teachers working in the private institutions. The payment of salary was to be made through cheques and by opening an account in the name of each teacher in a scheduled bank. According to the notification, seven Lecturers for schools running only Humanities Group were required for Senior Secondary Schools, i.e. +1 and +2 classes, and not less than 150 students in both the classes and additional three Lecturers were required for Science Group provided the number of students studying the science subjects is not less than 50 in both the classes. For High Schools having only two classes, i.e. IX and X, there was requirement of one Trained Graduate (Science), one Trained Graduate (Arts), one O.T. or L.T., if number of students in both the classes was not less than 50. For Middle schools having classes VI to VIII, there was requirement of one Trained Graduate (Science), one Trained Graduate (Arts), one O.T. or L.T., if number of students was not less than 20. In Primary Schools, two J.B.T. Teachers were required upto the strength of 60 students. 2. The State Government has also framed “The H.P. State Privately Managed Recognized/Aided School Employees (Security of Service) Rules, 1997”. In Primary Schools, two J.B.T. Teachers were required upto the strength of 60 students. 2. The State Government has also framed “The H.P. State Privately Managed Recognized/Aided School Employees (Security of Service) Rules, 1997”. The appointment and methods of appointment are provided under rule 2. All the appointments to the aided schools were to be made by the managing committee in the following manner:- (i) Appointing authority shall advertise in both English and Vernacular daily newspapers in the State, vacancy or vacancies to be filled in by giving full particulars thereof including the requisite qualifications, number of vacancies to be filled in and the last date by which the applications may be submitted. In the alternative name of suitable candidates may be obtained through the employment exchange. (ii) The recommendations for appointment of the candidates shall be made by a sub-committee consisting of five members of managing committee and a representative/ nominee of H.P. Education Department. 3. The members of the sub-committee other than Departmental Nominee were required to be appointed by the managing Committee. The employees were to be governed by the Code of Conduct. Dismissal/removal etc. of the employees is provided under rule 6. According to rule 7, the scale of pay and other allowances of the employees working in the private aided schools were not to be less than those of the employees of the schools run by the State Government. The age of retirement was 58 years. 4. The Management Committee of St. Hilda’s Senior Secondary School, Kangra resolved in its meeting held on 27.6.2008 that since it was not possible for the management to bear the expenses of the classes 6th to 10th of St. Hilda’s School, Kangra, the same be closed w.e.f. 16.10.2008. The services of the petitioners were terminated w.e.f. 16.10.2008. Petitioners had earlier approached this Court against the decision of the management dated 16.10.2008 by filing CWP Nos. 2500, 2501, 2502 and 2503 of 2010. These petitions were permitted to be withdrawn with liberty to file fresh on the same cause of action. According to the averments made in the petitions, the petitioners were duly qualified as per the rules, noticed hereinabove. Petitioners were teaching and serving in the school since 1985, 1986, 1996 and 1997, respectively. They were fully qualified. 5. One Shri Om Parkash filed a CWP No. 1898/2008 before this Court against the decision dated 27.6.2008. According to the averments made in the petitions, the petitioners were duly qualified as per the rules, noticed hereinabove. Petitioners were teaching and serving in the school since 1985, 1986, 1996 and 1997, respectively. They were fully qualified. 5. One Shri Om Parkash filed a CWP No. 1898/2008 before this Court against the decision dated 27.6.2008. The writ petition was dismissed on the ground of alternative remedy. It was clarified that the petitioners have the right to raise all the grounds, which were taken in the writ petitions before the competent court of law/appropriate authority. An appeal was preferred under rule 6 (b) Appendix-II of the Himachal Pradesh Non-Government Institution (Grant-in-aid) Rules, 1997. The appeal was rejected by the Director of Elementary Education, Himachal Pradesh vide Annexure P-1 annexed with Annexure P-2. Respondent Nos. 1 to 3 have filed detailed reply. The gist of the reply is that since the strength of students was reduced, the school was closed down by the management vide decision dated 27.6.2008. 6. Ms. Jyotsna Rewal Dua has drawn the attention of the Court to letter dated 30.7.2011 Annexure P-1 whereby a decision was taken to take over all existing 95% Government aided schools in the following manner: (a) the Management is willing to transfer the school alongwith movable and immovable assets to the State Government; (b) the Management is unwilling to handover the school. 7. The petitioners had been teaching in the respondent-school w.e.f. 1.5.1986, 1.1.1996, October, 1997 and 1.10.1985, respectively. A decision was taken by the management to close down the school on 27.6.2008. However, vide Annexure P-1, a conscious decision has been taken to take over the services of the employees, both teaching and non-teaching, who were paid from grant-in-aid from the Government at the time of taking over with a rider that the employee must possess qualifications, as prescribed in the Recruitment and Promotional Rules applicable to the identical posts of Education Department. The services of the staff working in 95% aided schools were to be taken over as a fresh appointment on regular basis on minimum of pay scale of the post in those cases where the management was willing to handover the school to the State Government. The services of the staff working in 95% aided schools were to be taken over as a fresh appointment on regular basis on minimum of pay scale of the post in those cases where the management was willing to handover the school to the State Government. In those cases where the management was unwilling to handover the school, the services of only those employees, both teaching and non-teaching were to be taken over, who were paid from the grant-in-aid from the Government at the time of taking over and the employees possessed requisite qualification as per the Recruitment and Promotional Rules. The services of taken over aided staff could be utilized any where in the State and they were to give in writing an undertaking to this effect. Thus, it is evident that the staff of the respondent-school was receiving grant-in-aid from the Government at the time of taking over of the school. Their services were required to be taken over by the State Government. 8. According to letter dated 20.7.2011, even the services of an employee, who has worked only for a few months were liable to be taken over by the State Government and the petitioners, who have worked w.e.f. 1.5.1986, 1.1.1996, October, 1997 and 1.10.1985, respectively, their services have not been taken over. The respondents have also not followed rule 6 of the H.P. State Privately Managed Recognized/Aided School Employees (Security of Service) Rules, 1997. According to rule 6 (b), subject to any rule that may be made in this behalf, no employee was to be dismissed, removed nor his services were otherwise to be terminated except with the prior approval of the Deputy Director of Zone. In the present case, the respondents have not placed on record contemporaneous record that the approval of the Deputy Director of Zone was obtained before terminating the services of the petitioners. The decision dated 20.7.2011 will apply retrospectively. All the teachers appointed in the 95% Government aided schools on 20.7.2011 and before that also constitute homogenous class. There could not be a class within the class. 9. Accordingly, in normal circumstances, the Court would have struck down the cut of date, i.e. 20.7.2011, but in order to make it practical, the same is read down to declare that the petitioners’ services are also liable to be taken over on the basis of Annexure P-1 dated 20.7.2011. 10. There could not be a class within the class. 9. Accordingly, in normal circumstances, the Court would have struck down the cut of date, i.e. 20.7.2011, but in order to make it practical, the same is read down to declare that the petitioners’ services are also liable to be taken over on the basis of Annexure P-1 dated 20.7.2011. 10. Consequently, in view of the analysis and discussion made hereinabove, writ petition is allowed. In normal circumstances we would have ordered the respondents to consider the cases of the petitioners, but taking into consideration that one of the petitioners Shailender Kumar is 57 years old, their services would be deemed to have been taken over on the basis of letter dated 20.7.2011 within a period of 10 weeks from today with all the consequential benefits except back wages for this period. Pending applications, if any, also stands disposed of. No costs.