Research › Search › Judgment

Himachal Pradesh High Court · body

2017 DIGILAW 216 (HP)

Ram Swaroop v. State of H. P.

2017-03-21

CHANDER BHUSAN BAROWALIA

body2017
JUDGMENT : Chander Bhusan Barowalia, J. The present writ petition is maintained by the petitioner against the respondents praying therein for the following substantive reliefs :- “(a) for issuance of direction to respondents No.1 to 3 to release 95% Grant-in-aid in respect of salary/allowance and other consequential benefits to respondent No.4-School, particularly in the case of petitioner. (b) to direct the respondents to pay salary and other allowances to the petitioner at parity with Teachers working in Government Schools from 2.6.2003, till the date of actual payment alongwith interest at the rate of 18% per annum and further directions to the respondents to pay salary and allowances to the petitioner in future at par with Shastri Teachers working in Government Schools working in aided Schools.” 2. The petitioner has submitted that he was appointed as O.T. (Shastri Teacher) in Bilasa Senior Secondary School, Bilaspur, Tehsil Dehra, District Kangra, H.P., by respondent No.5, after having faced interview conducted by the respondent No.5-Committee, in which he was declared as one of the successful candidates and thereafter, he was appointed as O.T. (Shastri Teacher) in the respondent-School on 2.6.2003 and since then, he has been working as such. 3. It has been alleged that the petitioner has passed Matriculation Examination from the H.P. Board of School Education in the year 1986 and thereafter did Visharad from Punjab University in the year 1988. The petitioner also passed Shastri from Punjab University in the year 1992. It has been alleged that since his appointment, the petitioner has been working with utmost sincerity, dedication and missionary zeal. 4. It has further been contended that respondent No.4-School has been duly receiving 95% Grant-in-aid from the Government of Himachal Pradesh and the School has also appointed the Teachers and other Clerical staff for the smooth functioning of the School and also that the petitioner is working on a duly sanctioned post. It has also been contended that Respondent No.4-School is paying 5% of its share of the salary to its staff, including the Teachers and rest of the 95% of share of the salary is being paid by the Government of Himachal Pradesh. It has also been contended that Respondent No.4-School is paying 5% of its share of the salary to its staff, including the Teachers and rest of the 95% of share of the salary is being paid by the Government of Himachal Pradesh. It has also been averred that the similarly situated employees/Teachers working in the said School are getting pay scale of Shastri at par with that of Government School Teachers working as School Cadre and that he is also entitled for such benefit, but he is not getting the pay scale of Shastri Teacher. 5. It has been alleged that he has orally apprised the Authorities/Management of respondent No. 5 and also meeting them personally for the grant of scale of School Cadre Teacher at par with other School Cadre Teachers working in the said School, but of no avail. 6. It has been alleged that the State of Himachal Pradesh had framed Rules called as “Grant-in-Aid Rules”, hereinafter referred to as the “Rules”, which have been incorporated in the Himachal Pradesh Education Code and these Rules have been specifically made to grant 95% Grant-in-aid to privately managed Schools. It has been submitted that once 95% Grant-in-aid is granted to such Schools, the State Government has deep and pervasive control over such Schools. The relevant extract of the Rules ibid, as has been taken from Para-4 of the judgment of the Hon’ble Apex Court, rendered in (1995) 4 SCC 507 , which is reproduced as under:- “45-Q. Management shall introduce such scales of pay and allowances for teachers and to other staff members as are prescribed by the Government for corresponding staff in Government Schools. 45-J. That the income from subscription, endowments and other sources (excluding fees) suffices to ensure that the management can contribute at least 5 per cent of the net expenditure from their own funds after the School is aided”. 7. It has been averred that the aided Schools teaches the same syllabus and curriculum, prescribe the books and courses as per Government directions and prepare the students for same examinations for which the students studying in Government Schools are prepared. 7. It has been averred that the aided Schools teaches the same syllabus and curriculum, prescribe the books and courses as per Government directions and prepare the students for same examinations for which the students studying in Government Schools are prepared. It has also been averred that the qualification of the Teachers is also prescribed by the State Government and the appointments are being made with the approval of the State Government and the fee levied and concession allowed are strictly in accordance with the instructions issued by the Education Department from time to time. It has been submitted that the Managing Committees of the aided Schools are duly approved by the State Government and two members of the Committee are being appointed by the Education Department and the service conditions of the Teachers including disciplinary proceedings and award of punishment etc. etc., are also governed by the Rules framed by the State Government. 8. It has also been mentioned that after the Kothari Commission’s Report, the State Government has a deep and pervasive control on the aided Schools and they have always been treated at part. It has also been contended that this Hon’ble Court has authoritatively laid down that the Teachers working in the aided Schools are entitled to the same salary and allowances, as are being paid to the Teachers in the Government Schools. 9. It has been averred that the Hon’ble Supreme Court in the aforesaid judgment held that such Schools are recognized, aided and are under deep and pervasive control of the State Government, as such the Government is under an obligation to give Grant-in-aid to the Schools, as envisaged under the Scheme of the Rules referred to hereinabove. It has been mentioned that this Hon’ble Court has also held the 95% Grant-in-aid valid, but the year of Grant-in-aid was changed by the Hon’ble Apex Court. It has been mentioned that this Hon’ble Court has also held the 95% Grant-in-aid valid, but the year of Grant-in-aid was changed by the Hon’ble Apex Court. It has been contended that the question of Grant-in-aid to other similarly situated Schools came up for consideration before this Hon’ble Court in Writ Petition No. 492/1997, titled Kailash Gupta & others versus State of H.P. and that this Hon’ble Court allowed the writ petition and issued directions to the privately managed Schools, inter-alia, to take up the claim with the State Government for the grant in aid for the period it is due and on the claim so filed by the privately managed school and the State Government shall pay the arrears of such Grant-in-aid and on receipt of the said aid from the Government the management of the School shall disburse the salaries and other allowances to the staff within a prescribed period, as laid down in the judgment. Thereafter, the State Government preferred L.P.A. against the judgment rendered in CWP No. 492 of 1997, which was registered, as LPA No.37 of 2004 and the same was decided on 17.11.2008. The appeal preferred by the State of H.P. was dismissed in view of the law laid down by the Hon’ble Apex Court in Chandigarh Administration and others Vs. Rajni Vali (Mrs.) and others, reported in (2002) 2 SCC 42. 10. It has also been averred that in another case titled Balkar Singh & others versus State of H.P. & Ors., CWP No.970 of 2005, this Hon’ble Court in Division Bench decided the same issue on 2.12.2009, which squarely covers the case of the petitioner. In this case also the teachers of the privately managed Senior Secondary School, Intpur in District Kangra had claimed the same benefit. So, the petitioner is also entitled for 95% share of his salary from respondents No.1 to 3 from the due date till the date of actual payment and for future salary, the petitioner is also entitled for parity of pay scale and allowances alongwith other Government teachers, working as TGT (Arts). It has been averred that respondent No.1 has considered the case of the petitioner in view of the law already laid down by this Hon’ble Court in the judgments referred supra and to implement the same in his case in its true perspective to avoid further litigation. 11. It has been averred that respondent No.1 has considered the case of the petitioner in view of the law already laid down by this Hon’ble Court in the judgments referred supra and to implement the same in his case in its true perspective to avoid further litigation. 11. It has also been contended that respondent No.4-School, hereinafter referred to as respondent No.4, is recognized and aided School, which falls within the category of aided Schools and that similarly situated teachers and other staff of this School are being paid salary at par with the Government teachers/staff. The petitioner is being discriminated without any rhyme or reason in the matter of payment of salary etc. The respondent No.1 is under legal obligation to get the matter persuaded with respondents No.1 to 3 for his legitimate right, as the petitioner is performing the same and similar nature of duties as a School cadre Teacher, as are being performed by other teachers, working in the Government Schools or in the Schools, which are getting 95% Grant-in-aid. It has been submitted that the judgment of this Court in a case titled Balkar Singh and others vs. State of H.P. (CWP No.970 of 2005) has been implemented by the State Government and the judgment passed by the learned Single Judge of this Court in CWP No.492 of 1997, titled Kailash Gupta Vs. Secretary (Education) and others was further upheld by this Hon’ble Court in LPA No.37 of 2004, has also been implemented. Therefore, the case of the petitioner is squarely covered by the judgments, so, respondents No.1 to 3 are required to be directed to grant 95% Grant-in-aid to the said School so as to meet the outstanding dues with regard to salary and other allowances including consequential benefits to him and the due and admissible arrears from the due date till the date of actual payment be also paid to him with interest @18% per annum. 12. In the reply, Respondents No.1 to 3 have submitted that the petitioner was appointed in gross violation of the provisions laid down in Appendix-II of the Grant-in-aid Rules, 1997. 12. In the reply, Respondents No.1 to 3 have submitted that the petitioner was appointed in gross violation of the provisions laid down in Appendix-II of the Grant-in-aid Rules, 1997. As per these Rules the appointing authority shall advertise in both English and vernacular daily Newspapers, in the State, with regard to the 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 Exchanges and the appointment shall be made by a Sub-Committee consisting of five members of Managing Committee and a representative/nominee of H.P. Education Department. The members of the Sub-Committee other than Departmental Nominee shall be appointed by the Managing Committee. It has further been submitted that in the case of the petitioner, the Appendix-II of the Rules ibid has been grossly violated. It has been submitted that the petitioner has not placed on record the strict proof with regard to his appointment, as Shastri, in the School, under reference and the merit list has also not been placed on record to prove that the interview has been conducted by the Managing Committee of the said School, which clearly reflects the violation of the Rules. It has further been submitted that in COPC No. 351 of 2011, this Hon’ble Court has also held that the obligation of the Government to release the Grant-in-aid will arise only in case the appointment is made in terms of the relevant Rules and not otherwise. It has been submitted that the appointment of the petitioner was made by the Managing Committee of the School. Hence, it has been submitted that the claim of the petitioner for Grant-in-aid is not justified. 13. The petitioner also submitted the rejoinder to the reply filed by respondents No.1 to 3 and reiterated the contents, as mentioned in the writ petition. The petitioner has further submitted that the respondents have intentionally evaded real issue raised by him. Hence, it has been submitted that the claim of the petitioner for Grant-in-aid is not justified. 13. The petitioner also submitted the rejoinder to the reply filed by respondents No.1 to 3 and reiterated the contents, as mentioned in the writ petition. The petitioner has further submitted that the respondents have intentionally evaded real issue raised by him. Further, that he has raised a specific issue that respondent No.4 is receiving 95% Grant-in-aid from the Government of Himachal Pradesh, but he is not being paid the same salary and allowance at part with the similarly situated persons and the respondents instead of addressing the real issue have raised altogether different issues just to divert the attention of this Hon’ble Court. The respondent School is duly recognized and aided and falls within the category of aided Schools, and the similarly situated employees and staff are being paid salary at par with the Government Teachers/Staff and the petitioner is deprived of his legitimate right. So, he has prayed that he be allowed relief. 14. Heard learned counsel for the parties. 15. Learned counsel for the petitioner has argued that the petitioner like other similarly situated persons is also entitled for the Grant-in-aid, as he is working regularly and continuously till the School is taken over by the State Government. On the other hand, the learned Additional Advocate General has argued that the petitioner was not appointed as per the Government instructions and he was appointed without following the proper procedure and, therefore, the State is not liable to pay Grant-in-aid. In rebuttal, the learned counsel for the petitioner has argued that this matter has already been settled by the various pronouncements of the Hon’ble High Courts and to substantiate this fact has relied upon the latest judgment of this Hon’ble Court rendered in case titled Promila Devi vs. State of H.P. & ors, CWP No. 226 of 2010, decided on 2.4.2015, in which the petitioner has also been held entitled for grant in aid. 16. To appreciate the arguments adduced by the learned counsel for the parties, I have gone through the record in detail. 16. To appreciate the arguments adduced by the learned counsel for the parties, I have gone through the record in detail. So far as the factual position is concerned, it has come on record that the working of the petitioner as O.T. (Shastri) in Respondent No.4-School is proved by the petitioner and he has also placed on record to that effect his appointment letter (Annexure P-1) alongwith his rejoinder. At the same point of time, it is also proved on record that the petitioner is working in the School from the year 2003, when other teachers are working on the post and has joined the government service. Now when the petitioner has been working in the School for such a long time, he is required to be considered whether at the time of granting Grant-in-aid by the Government this fact that he was not appointed as per the instructions of the Government after giving due advertisement is immaterial. The Hon’ble Apex Court in a case titled State of HP vs. H.P. Recognized and Aided Schools Managing Committee and others” has held as under:- “The State of Himachal Pradesh, therefore, is committed to implement the Kothari Commission recommendations regarding parity in the pay scales of the teachers working in the government schools and the aided schools. While agreeing in principle to revise the pay-scales of the teachers in the aided schools and also to meet 95% of the net approved expenditure, the Himachal Government has fixed the maximum limit upto which the grant can be paid to various schools. In this respect we may notice Rule 47(2) of the Rules which is as under : "(2) Management of the aided schools shall be required to meet 5 per cent of the net approved expenditure in any school year. The balance of the expenditure being met from the Government grant, the net approved expenditure being the total expenditure approved by the Education Department minus the income from the fees, fines, etc. In case of girls schools and schools located in scarcely populated area the Government may, at its discretion authorise payment of Grant-in-aid to the full extent of the difference between approved expenditure and approved income. This authority shall be exercised by the Government only in special circumstances where the school management is unable to meet the deficit from its own financial resources. This authority shall be exercised by the Government only in special circumstances where the school management is unable to meet the deficit from its own financial resources. The grants as assessed above shall be admissible subject to the maximum amount shown against each category of institutions:- The Government has laid down the following enhanced maximum limits :- 1. High/Higher Secondary Schools having more than 1000 students and classes 1 to X/l to XI : Rs. 20,000 2. High/Higher Secondary Schools having less than 1000 students and classes 1 to X/l to XI : Rs. 17,000/- 3. Higher Secondary Schools having classes VI to XI : Rs. 15,000/- 4. Higher Secondary Schools having classes VI to X classes: Rs. 15,000/- 5. High Schools having Classes IX to X: Rs. 15,000/- 6. Middle Schools classes I to VIII: Rs. 10,000/- 7. Middle Schools classes VI to VIII: Rs. 8,000/- 8. Primary Schools classes I to V: Rs. 3,000/-. After the introduction of 10 + 2 system, the limits of maximum Grant-in-aid respect of Senior Secondary Schools, recognized and privately managed, are as under :- (1) Where the students are less than 1000 : Rs. 30,000/- (2) Where the students are more than 1000 Students : Rs, 35,000/- The aided schools teach the same syllabus and curriculum, prescribe the books and courses as per Government directions and prepare the students for same examinations for which the students studying in government schools are prepared. The qualifications of the teachers are prescribed by the State Government and the appointments are made with the approval of the State Government. The fees levied and concessions allowed are strictly in accordance with the instructions issued by the Education Department of the State Government from time to time. The Managing Committees of aided schools are approved by the State Government and two members of the Committee are appointed by the Education Department. The service conditions of the teachers including disciplinary proceedings and award of punishment etc. are governed by the Rules framed by the State Government. It is, thus, obvious that the State Government has a deep and pervasive control on the aided schools. The Government Schools and the aided school specially after the Kothari Commission Report - have always been treated at par. are governed by the Rules framed by the State Government. It is, thus, obvious that the State Government has a deep and pervasive control on the aided schools. The Government Schools and the aided school specially after the Kothari Commission Report - have always been treated at par. It has been authoritatively laid down by this Court that the teachers working in the aided schools are entitled to the same salaries and allowances as are being paid to the teachers in the Government schools. In Haryana State Adhyapak Sangh and Ors, Etc, v. State of Haryana and Ors., [1988] Suppl. 1 SCR 682 Pathak, CJ speaking for this Court held "in our opinion, the teachers of aided schools must be paid the same pay scale and dearness allowance as teachers in the Government schools for the entire period claimed by the petitioners...". This judgment was subsequently interpreted by this Court in Haryana State Adhyapak Sangh and Ors. v. State of Haryana and Ors., AIR (1990) SC 968, where Agrawal, J. speaking for the Court observed as under : "The judgment of this Court dated July 28, 1988 also accepts the principle of parity in the matter of salaries and dearness allowance of teachers employed to aided schools and those employed in Government schools and there is nothing in the judgment which indicates that the said principle of parity is to be applied upto December 31, 1985 only, and not thereafter. In the circumstances we are of the view that the direction of this Court in the judgment dated July 28, 1988 must be construed to mean that the respondent are required to maintain such parity and to revise, from time to time, the pay scales and dearness allowance of the teachers employed in aided schools as and when the pay scales and dearness allowance of teachers employed in Government schools are revised. It is, therefore, incumbent upon respondent to revise the pay scales of teachers employed in the aided schools so as to bring the same at par with the pay scales of the teachers employed in the Government schools with effect from January 1, 1986 and fix the salaries of the teachers employed in aided schools in the revised pay scales with effect from January 1, 1986 and pay the salaries and dearness allowance to these teachers on that basis." It is, therefore, late in the day to say that the teachers in the aided schools are not entitled to parity in the matter of salary, allowances etc. with their counterparts in the Government schools. The question, for our consideration, however, is whether the State Government or the management is to meet the consequent expenditure”. 17. In a case titled Haryana State Adhyapak Sangh v. State of Haryana, it has been held as under: “In our opinion, the teachers of the aided Schools must be paid the same pay scales and dearness allowance as teachers in the government Schools for the entire period claimed by the petitioners”. The petitioner has also submitted that this judgment was also subsequently interpreted by this Hon’ble Court in Haryana State Adhyapak Sangh v. State of Haryana and observed as under: “The judgment of this Court dated 28.7.1988 also accepts the principle of parity in the matter of salaries and dearness allowance of teachers employed in aided Schools and those employed in Government Schools and there is nothing in the judgment which indicates that the said principle of parity is to be applied up to 31.12.1985 only, and not thereafter. In the circumstances we are of the view that the directions of this Court in the judgment dated 28.7.1988 must be construed to mean that the respondents are required to maintain such parity and to revise, from time to time, the pay scales and dearness allowance of the teachers employed in aided Schools as and when the pay scales and dearness allowance of teachers employed in government schools are revised. It is, therefore, incumbent upon respondents to revise the pay scales of teachers employed in the aided schools so as to bring the same at par with the pay scales of the teachers employed in government schools with effect from 1.1.1986 and fix the salaries of the teachers employed to pay the salaries and dearness allowance to these teachers on that basis.” “14. It has therefore, been contended that it is not late in the day to say that the teachers in the aided Schools are not entitled to parity in the matter of salary, allowances etc. etc. with their counterparts in the government Schools. The question for consideration, however, is whether the State Government or the Management is to meet the consequent expenditure.” 18. From the above, it is clear that as the petitioner was regularly working in the School and was discharging his duties to the best of his ability and at no point of time, there was no reasons with regard to his appointment in the School. A learned Single Bench of this Hon’ble Court in CWP No.226 of 2010, titled Promila Devi vs. State of H.P. & ors, decided on 2.4.2015, 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. 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 totally 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 discharging her duties diligently, honestly and faithfully. 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 discharging her duties diligently, honestly and faithfully. Therefore, in such circumstances by claiming grant in aid on regular basis the petitioner has not asked for the moon. Not only is the petitioner entitled to regular grant in aid but having worked for nearly a decade, the petitioner can also not be denied her legitimate claim for regularization. 12. A similar question came up for consideration before learned Division Bench of this Court in Pritam Singh versus State of Himachal Pradesh and others, CWP No.4098 of 2012 decided on 13.09.2012 and it is apt to reproduce Paras 2 to 4 of this judgment which reads thus: “2. The admitted facts are that from 30th November, 1992 the petitioner was working as part time sweeper/ water carrier at Govt. Senior Secondary School, Kalal, District Bilaspur. He was appointed by the Parents Teacher Association at Rs.200/- per month. In 2003 a certificate was issued by the Principal of the school that the petitioner has worked for more than 10 years. The salary of the petitioner in 2004 was increased from Rs.200/- to Rs.500/-. The petitioner had also applied for the post of water carrier but he was not selected. 3. We called for the record and we find that the selection of respondent No.4 cannot be said to be invalid. At the same time we cannot be oblivious to the fact that the petitioner has worked as part -time worker for more than 20 years. It may be true that he has worked on part time basis and was employed by the Parents Teacher Association but the fact remains that he has worked for 20 years. An employee who worked for 20 years has genuine expectation that over a period of time he would be regularized. 4. It may be true that he has worked on part time basis and was employed by the Parents Teacher Association but the fact remains that he has worked for 20 years. An employee who worked for 20 years has genuine expectation that over a period of time he would be regularized. 4. Without going into the merits of the case and without making this case a precedent, keeping in view the peculiar facts and circumstances of the case we direct that in case the work of sweeper or any other work of similar nature is available in the school then it is the petitioner alone who shall be offered appointment against the said post and such post shall not be given to any other person. The petition is disposed of accordingly. No costs.” 19. In the present case also, the petitioner has discharged his duties diligently and honestly, therefore, in my considered view, it is a fit case where the respondents are required to be directed to release Grant-in-aid in respect of the petitioner. So, the present writ petition is allowed. 20. Taking node from the aforesaid judgment and bearing in mind the peculiar facts and circumstances of the case, more particularly the fact that the petitioner has been working for more than a decade continuously, this Court is of the view that the following direction would sub-serve the ends of justice:- (i) The respondents are directed to release the Grant-in-aid in favour of the petitioner from the date when the Grant-in-aid Rules were notified and till the time the petitioner discharged his duties as O.T. (Shastri). 21. The aforesaid direction be complied within a period of two months. The petition is disposed of. However, in the peculiar facts and circumstances of the case, there is no order as to costs. 22. All pending applications if any, also stands disposed of.