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2018 DIGILAW 873 (HP)

Balbir Singh v. State of H. P.

2018-05-10

VIVEK SINGH THAKUR

body2018
JUDGMENT : Vivek Singh Thakur, J. Present petition has been filed against rejection of claim of petitioner for grant-in-aid by Director vide his order dated 05.01.2015 (Annexure P-6). Petitioner was engaged as a PTA teacher on 22.03.2007 against the sanctioned post of Language Teacher in pursuant to the resolution of the PTA Committee of the concerned school. But grant-in-aid to Parent-Teachers Association, as provided under Grant-in-Aid Rules, 2006 (in short 'GIA Rules’) was not released by respondents in his favour. 2. Aggrieved by non release of grant-in-aid, petitioner had approached this High Court by filing CWP No. 10246/2011, titled as Balbir Singh versus State of Himachal Pradesh & others, seeking direction to respondents to release up to date grant-in-aid to him w.e.f 22.03.2007, alongwith interest thereupon. At that time, proposal sent by Principal for releasing grant-in-aid, in favour of the petitioner, was pending consideration with the respondent authority and therefore, the said petition was disposed of on 22.12.2011, with a direction to respondent authority to take final decision in the matter within a period of two months from the date of production of a copy of judgment before the Deputy Director of Elementary Education, Kullu. 3. In compliance to the aforesaid direction passed in CWP No. 10246 of 2011, Director Elementary Education, has passed the impugned order rejecting the claim of the petitioner on the ground that at the time of appointment of the petitioner, as per the Recruitment and Promotion Rules in vogue, he was not eligible to be appointed as a Language Teacher and he was engaged by the PTA Pradhan on the basis of resolution of PTA committee of the concerned school without adopting the proper procedure provided in GIA Rules. 4. GIA Rules were notified vide notification No. EDN-A (Kha)7-3/2006, dated 29-06-2006. Thereafter, the State has circulated clarification/administrative instructions on “Grant-in-Aid” to PTA Rules, 2006, vide communication dated 2nd August, 2006/19th August, 2006, wherein Principal was advised to distance himself from the selection of a candidate by the PTA and was directed to advise the PTA to constitute a selection committee comprising of President PTA, Secretary PTA and Subject Specialist/Expert., as provided in the said notification. There is no other communication brought in notice in this regard, except instructions dated 13.07.2007, prescribing any definite procedure for appointment of PTA teachers, as pre-condition for entitling them for grant-in-aid under the GIA Rules. 5. There is no other communication brought in notice in this regard, except instructions dated 13.07.2007, prescribing any definite procedure for appointment of PTA teachers, as pre-condition for entitling them for grant-in-aid under the GIA Rules. 5. In the instructions dated 13.07.2007, procedure to be followed by the PTAs for appointment of PTA teachers was circulated for the first time, providing issuance of advertisement, giving 15 days’ time to the desirous candidates, conducting interview on 5th or 20th of a month, duly notified in advance to the desirous candidates and appointing those candidates only, who fulfill the educational and professional qualification, as per Recruitment and Promotion Rules, for the concerned post. It was further directed that the selection should be made strictly on the basis of merit by adopting objective competitive criteria. 6. Admittedly, the petitioner was appointed as PTA teacher on 22nd March, 2007. At that time, instructions dated 13.07.2007 were not in existence. Undisputedly, the petitioner was appointed after issuance of GIA Rules, but prior to issuance of procedure and criteria for making appointment for PTA teachers by passing a resolution by the Parents Teachers Resolution on the basis of practice prevailing at the time of appointment of the petitioner. Therefore, objections of the respondents with regard to non-adoption of procedure prescribed for appointment of PTA teachers vide Instructions dated 13.07.2007, is not sustainable. Denial of grant-in-aid for non-compliance of procedure, which was not in existence at the time of appointment of the petitioner, is not justifiable, rather irrational, unreasonable and arbitrary. 7. So far as the academic and professional qualification for the post in question is concerned, it is also undisputed that as on date, as per existing Recruitment and Promotion Rules, the prescribed qualification 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’. Besides that, for appointment as a teacher, one has also to qualify Teacher Eligibility Test (TET). The petitioner has placed on record his testimonials, wherefrom it is evident that he has passed B.A. with Hindi as an elective subject, with 50% marks in Hindi, in the year 1999 and has completed his M.A. (Hindi), securing more than 50% marks in the year 2004 and has also qualified the TET for Language Teacher in the year 2013. 8. 8. The petitioner has also placed on record information received under RTI from the Deputy Director, Elementary Education, Sirmour, (Annexure P-9) indicating therein that similarly situated persons appointed before and after issuance of GIA Rules, having qualification of B.A. and M.A. only, which was not prescribed academic qualification for Language Teacher at that time, are being paid grant-in-aid by the respondents. In the said information, candidate at Sr. No. 4, having qualification of M.A. was appointed on 1st June, 2006, candidate at Sr. No. 8, having qualification of B.A, M.A. (Hindi) and TET, was appointed on 01.09.2006 and candidate at Sr. No. 13 having qualification of M.A. only, was appointed on 10.10.2007, i.e. even after appointment of the petitioner and also circulation of instructions dated 13.07.2007. State is not supposed to discriminate the similarly situated persons, particularly, when the same duty is being performed by such employees. 9. The issue in present petition is not between the petitioner and PTA, but between the petitioner and the respondents-State, as though petitioner was appointed by PTA, but it is the State which has permitted him to continue teaching the classes for about 11 years and that too, without paying a single penny in grant-in-aid or otherwise. Schools have been opened by the respondents-State, but without teachers, existence of schools is meaningless. Therefore, after opening the schools, to provide teachers in those schools is the primary function of the State. Though, it is also a serious issue that the State cannot shirk from its duty to provide well qualified regular teachers to the students by permitting PTA to appoint teachers in schools and allowing them to continue for such a long period under the garb of stop gap arrangements. But, despite the fact that it is depreciable arrangement, such arrangement does not absolve the State from paying admissible remuneration to petitioner appointed by PTA in the Government School against vacant post, which has not been filled up by appointing a regular teacher by respondents-State. Undoubtedly, no one can be permitted to teach the students in Government Schools without express or implied consent of the State and the omissions and commissions on the part of State established consent for appointment and continuation of the petitioner as PTA teacher. 10. Undoubtedly, no one can be permitted to teach the students in Government Schools without express or implied consent of the State and the omissions and commissions on the part of State established consent for appointment and continuation of the petitioner as PTA teacher. 10. An objection of non-joinder of necessary party has also been taken by stating that concerned PTA, which has appointed petitioner, has not been made party in the present petition. Concerned PTA is not necessary party as appointment of petitioner by the said PTA has not been disputed by respondents, rather admitted and for the reasons that for release of grant-in-aid, there is no role of PTA and grant-in-aid is to be released by respondents only on the recommendation of principal concerned. Concerned PTA, at the most, may be proper party, whose non-joinder is not fatal. 11. Learned Counsel for the petitioner submits that similarly situated persons, even appointed after appointment of petitioner, have also been extended benefits of grant-in-aid either on their demand by the Department or its own or in compliance of various orders passed by this Court. 12. Learned Counsel for the petitioner has also relied upon the judgments passed by a Division Bench of this High Court in CWP No. 2549 of 2015 titled as Hem Raj Sharma versus State of H.P. and others, decided on 07.08.2015 and judgments of Co-ordinate Benches of this Court in CWP No. 2638 of 2015 titled as Devi Saran versus State of H.P. and others, decided on 16.09.2016 and CWP No. 358 of 2015 titled as Chander Parkash Sharma versus State of H.P. and others, decided on 01.07.2016, wherein the persons appointed even after issuance of instructions dated 03.01.2008 directing to stop the selection/appointment by Parent Teachers Associations and not to accept joining of such appointees, have also been held entitled for grant-in-aid and the said judgments stand implemented by respondents. Further, it is also pointed out that in Hem Raj’s case supra, it has been recorded that three teachers, namely, Indira Devi, Kauran Devi and Mukand Lal, who were appointed on PTA basis after 03.01.2008 were also being paid grant-in-aid and the said fact has not been denied by respondents-Department in the said writ petition. 13. Further, it is also pointed out that in Hem Raj’s case supra, it has been recorded that three teachers, namely, Indira Devi, Kauran Devi and Mukand Lal, who were appointed on PTA basis after 03.01.2008 were also being paid grant-in-aid and the said fact has not been denied by respondents-Department in the said writ petition. 13. Reliance has also been put by learned Counsel for the petitioner on pronouncement of Division Bench of this High Court passed in CWP No. 929 of 2017 titled as Sonika Chaudhary versus State of H.P. & another, decided on 03.04.2018 and judgment passed by a Co-ordinate Bench of this Court in CWP No. 226 of 2010 titled as Promila Devi versus State of H.P. & others, decided on 02.04.2015, with plea that in compliance of decisions therein, respondents have released grant-in-aid. 14. Plea of payment of grant-in-aid in above referred cases remained unrebutted. Respondents are availing services of the petitioner till date, but are not willing to release grant-in-aid to him, despite the fact that he is performing the same duty, as being performed by other PTA teachers to whom grant-in-aid is being released. 15. It is strange behaviour on the part of the State that for teaching the students, petitioner is eligible, but for making payment of grant-in-aid, he is being considered ineligible for want of certain formalities to be performed by PTA on behalf of respondents-State. In case his appointment was defective or illegal, he should not have permitted to continue for 11 years. In any case, there was no impediment to the State to make arrangement of a teacher having requisite qualification for the post, during the last eleven years. Therefore, this plea, at this stage, is not sustainable for denying grant-in-aid. 16. 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. In India, since ancient era, State is always for welfare of citizens being guardian and protector of their rights. Primary duty of State is welfare of people and exploitive actions of rulers have always been deprecated and history speaks that such rulers were always reprimanded and punished. 'Rule of Law’ was and is Fundamental Principle of 'Raj Dharma’. Dream of our forefathers, to establish 'Rule of Law’ after independence, has emerged in our Constitution. Primary duty of State is welfare of people and exploitive actions of rulers have always been deprecated and history speaks that such rulers were always reprimanded and punished. 'Rule of Law’ was and is Fundamental Principle of 'Raj Dharma’. Dream of our forefathers, to establish 'Rule of Law’ after independence, has emerged in our Constitution. Exploitation by State has never been expected on the part of State as the same can never be termed as 'Rule of Law’, but the same is 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. 17. In an identical matter, Co-ordinate Bench of this Court in a judgment dated 10.4.2015, passed in CWP No. 8692 of 2012 titled as 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, has observed 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 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. 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.” 18. Aforesaid observations are fully applicable in present case also. 19. In view of above discussion and pronouncements of this Court referred hereinabove, petition is allowed and the respondents are directed to release the grant-in-aid to the petitioner from the date of his appointment on or before 31.07.2007, after adjusting amount as per Rules, if any, paid to him. Petitioner shall also be entitled for all other consequential benefits, which have been extended by the respondents-State to other similarly situated persons. Respondent No.2 shall file compliance affidavit within two weeks after 31.07.2018. 20. Petition is disposed of in aforesaid terms, so also the pending applications, if any.