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Himachal Pradesh High Court · body

2018 DIGILAW 997 (HP)

Renuka Devi v. State of H. P.

2018-05-26

VIVEK SINGH THAKUR

body2018
JUDGMENT : Vivek Singh Thakur, J. 1. Petitioner was appointed as Science teacher on 29.8.2007 by PTA concerned against the vacancy of TGT (Science) for the reasons that regular Science teacher had proceeded on extra ordinary leave. Initially, petitioner was appointed at a remuneration of Rs. 500/- per month, which was increased from time to time as Rs. 1300/-, Rs. 2000/- and Rs. 3000/-. 2. Petitioner has passed her B.Sc. Examination on 17.6.2006, completed her Bachelor of Education (B.Ed.) on 31st August, 2007 and qualified Teachers Eligibility Test (TET) for the post of Science teacher. Petitioner is rendering her services continuously since her appointment by PTA vide resolution No. 8, dated 29.8.2007, but grant-in-aid as provided under Grant-in-Aid PTA Rules, 2006 (herein after referred to as GIA Rules), has not been released in her favour, constraining her to file present petition. 3. State has contested the petition by stating in reply that petitioner was appointed by the concerned PTA by passing a resolution Annexure P-and therefore, PTA and SMC has to make arrangement from PTA fund for making payment of remuneration to the petitioner as she is not covered and entitled for grant-in-aid under GIA Rules, 2006. 4. Respondents have also taken objection that in view of ratio of law laid down in CWP No. 1310 of 2009, titled Manju Bala Vs. State of H.P. and others, present petition is not maintainable against the respondents. This plea of respondents is misconceived as evident from the operative part of judgment in the said case, reproduced in reply to the writ petition. In the said case, the issue of appointment by PTA in terms of Grant-in-Aid Rules was subject matter and writ petition was held to be maintainable against the appointment or termination or such other allied grievances only in case the appointment has been made by PTA in terms of Grant-in-Aid Rules. In present case neither the petition has been filed against appointment nor the petitioner has been terminated and the writ has also not been filed against the PTA for denial of benefit on the part of PTA, but against non grant of grant-in-aid, which is to be granted by respondents-State only and for any action or inaction on the part of respondents-State, writ is definitely maintainable against it. 5. 5. The issue in present writ 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 her 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 establish consent for appointment and continuation of the petitioner as PTA teacher. 6. 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. 7. 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 on its own or in compliance of various orders passed by this Court. Petitioner has referred para 9 of judgment of this Court passed in CWP No. 2928 of 2015, titled Balbir Singh Vs. Petitioner has referred para 9 of judgment of this Court passed in CWP No. 2928 of 2015, titled Balbir Singh Vs. State of H.P. and others, wherein it has been referred that candidate appointed on 10.10.2007, without having requisite academic qualification but with qualification of MA only, was also paid grant-in- aid by respondents. 8. 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 Hem Raj Sharma Vs. State of H.P. and others, decided on 7.8.2015 and judgments of co-ordinate benches of this Court in CWP No. 2638 of 2015 titled Devi Saran Vs. State of H.P. and others decided on 16.9.2016 and CWP No. 358 of 2015 titled Chander Parkash Sharma Vs. State of H.P. and others decided on 1.7.2016, wherein the persons appointed even after issuance of instructions dated 3.1.2008 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 3.1.2008 were also being paid grant-in-aid and the said fact has not been denied by respondents-Department in the said writ petition. 9. Reliance has also been put by learned counsel for the petitioner on pronouncement of Division Bench of this Court passed in CWP No. 929 of 2017 titled Sonika Chaudhary Vs. State of H.P. & another decided on 3.4.2018 and judgment passed by co-ordinate Bench of this Court in CWP No. 226 of 2010 titled as Promila Devi Vs. State of H.P. & others decided on 2.4.2015 with plea that in compliance of directions therein respondents have released grant-in-aid. 10. 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 her, despite the fact that she is performing the same duty, as being performed by other PTA teachers to whom grant-in-aid is being released. 11. GIA Rules were notified vide notification No. EDN-A(Kha)7- 3/2006, dated 29-06-2006. Respondents are availing services of the petitioner till date but are not willing to release grant-in-aid to her, despite the fact that she is performing the same duty, as being performed by other PTA teachers to whom grant-in-aid is being released. 11. 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 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. 12. In present case, appointment of petitioner has been made by resolution Annexure P-2, which has been duly signed by President PTA, Member Secretary PTA along with other members. Member Secretary is none else, but the Head Master of the said school. After her appointment till date, she is continuously teaching the students like other similarly situated teachers for last 11 years. 13. It is strange behavior on the part of the State that for the teaching students, petitioner is eligible, but for making payment of grant-in-aid, she is being considered ineligible for want of certain formalities to be performed by PTA on behalf of respondents-State. In case her appointment was defective or illegal, she should not have permitted to continue for 11 years. There is no dispute about the eligibility of the petitioner for her appointment as Science teacher. 14. During the course of arguments, learned Additional Advocate General submits that he has recent instructions to say that the post against which petitioner is working, is that of TGT Science Medical Group, whereas the petitioner is B.Sc. (Non-medical). No such plea has been raised in the reply. However, if it is taken into consideration even at this time, it is evident from the appointment letter that petitioner was appointed against post of TGT Science and there was no mention of medical or non medical. Moreover, she is continuously teaching the students for the last 11 years and for teaching students she is quite eligible and for grant-in-aid, she is being considered ineligible with plea that vacancy is for TGT (Medical) and she is TGT (Non- medical). Moreover, she is continuously teaching the students for the last 11 years and for teaching students she is quite eligible and for grant-in-aid, she is being considered ineligible with plea that vacancy is for TGT (Medical) and she is TGT (Non- medical). In any case, there was no impediment to the State to make arrangement of a teacher having requisite qualification for the post, during last eleven years. Therefore, this plea at this stage is not sustainable for denying grant-in-aid. 15. It is not for the first time that in the Education Department persons having the qualification of TGT (Non-medical) has been allowed to work against TGT (Medical) in numerous cases when someone has to be adjusted at a particular place, frequent Mal-adjustments, in these two categories, are made by the Department by posting TGT (Non-medical) against TGT (Medical) and vice versa. Therefore, on this count, petitioner’s entitlement for grant-in-aid cannot be denied. 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. 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. & Others, directing the State to release grant-in-aid to the person appointed prior to issuance of notifying GIA Rules 2006, has observed as under:- “9. The matter can be looked from a different angle. State of H.P. & Others, directing the State to release grant-in-aid to the person appointed prior to issuance of notifying GIA Rules 2006, 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. 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 ‘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 the pronouncements of this Court referred herein-above, petition is allowed and the respondents are directed to release the grant-in-aid to the petitioner from the date of her appointment on or before 31.7.2018, after adjusting amount as per Rules, if any, paid to her. 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 31.7.2018. 20. Petition is disposed of in aforesaid terms, so also the pending applications, if any.