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2024 DIGILAW 275 (HP)

Dhiender Kumar v. State of Himachal Pradesh

2024-04-24

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. By way of this petition, the petitioners have prayed for the following reliefs:- (a) “That the impugned action of the respondents in denying the petitioners the benefit of Grant-in-Aid, may kindly be declared arbitrary, illegal and unconstitutional. (b) That this Hon’ble Court may kindly be pleased to issue a writ in the nature of mandamus and the respondents may kindly be directed to extend the benefit of PTA Grant-in-Aid Rules, 2006 to the petitioner without any discriminati0on from the date of their initial appointment alongwith interest @ 9% per annum and to continue releasing the Grant-in-Aid in favour of the petitioners in future also, in accordance with law.” 2. The case of the petitioners is that petitioner No.1 was appointed as Assistant Professor (Political Science) in Government College Sarkaghat w.e.f. 09.03.2015 on PTA basis and petitioner No.2 was appointed as Lecturer (Physical Education) in Government College Sarkaghat w.e.f. 07.08.2009. Though the services of petitioner No.2 were terminated on account of the joining of a regular hand in the month of March, 2010, however, in the month of April 2011, he was re-engaged and he continues to serve as such. According to the petitioners, in terms of notification dated 26.07.2014 (Annexure P-6) all incumbents appointed on PTA basis prior to issuance of the said notification have been allowed to continue in service, with the condition that, inconsonance with the UGC guidelines, candidates who acquired M.Phil Degree before 11.06.2009, are not even required to pass NET/SET. According to the petitioners, they are being paid by the PTA, out of the funds being generated by the PTA, and meager salary is being paid to them despite the fact that they are performing same and similar duties as are being performed by regularly appointed teacher/lecture. According to the petitioners, they possess requisite qualification for being appointed against the posts manned by them and, in these circumstances, the petition stands filed with the prayer that respondents be directed to extend the benefit of PTA Grant -in-Aid Rules to the petitioners from the initial date of their appointment with interest. 3. The stand of the State is that the Government of Himachal Pradesh has notified Grant-in-Aid Rules to Parent Teacher Association. 3. The stand of the State is that the Government of Himachal Pradesh has notified Grant-in-Aid Rules to Parent Teacher Association. Petitioners were never engaged in terms of the said policy and in terms of the information gathered by the respondents; both the petitioners were engaged purely on local PTA fund collected mostly from the parents of students for effective teaching only excluding the vacation. The petitioners were verbally engaged by the PTA Executive Committee. Petitioner No.2 is stated to be not even qualified to perform the duties of an Assistant Professor. It is further the case of the respondents that the Government of Himachal Pradesh has extended the PTA policy to 14 newly open Government Colleges only in order to make them functional vide notification dated 08.09.2014 and as the petitioners are not appointed in either of these 14 Colleges, therefore, they are not entitled qua the relief being claimed. It is further the stand of the Department that there are hundreds of other PTAs, who are working in the Colleges and who will also claim the same benefits. It is also the stand of the State that there is a substantial distinction in the mode and manner of appointment/engagement of the petitioners vis-à-vis regularly appointed Assistant Professors, who have to face open competition and are appointed through HP Public Service Commission. On these basis, the State has opposed the claim of the petitioners. 4. I have heard learned Senior Counsel for the petitioners as well as learned Advocate General and have also carefully gone through the pleadings alongwith documents appended therewith. 5. The petitioners though appointed on PTA basis have been appointed in Colleges, which are Government Colleges. As from the date of their appointment, they are imparting education to the students, who are studying in Government Colleges. 5. The petitioners though appointed on PTA basis have been appointed in Colleges, which are Government Colleges. As from the date of their appointment, they are imparting education to the students, who are studying in Government Colleges. There are recruitment and promotion rules framed under the proviso to Article 309 of the Constitution of India for filling up the posts in issue, but, then, it is an open secret that these rules are not being strictly adhered to for the purpose of making appointment to various posts, be it Government Schools or Government Colleges in the State of Himachal Pradesh and the Government with open eyes is permitting the posts to be manned by incumbents like the petitioners who are being recruited through various agencies like the Parent Teacher Association, which itself is a creation of the State. Taking into consideration the fact that there is a complete imbalance between demand and supply, when it comes to jobs and qualified unemployed youth, persons like the petitioners have no option, but to get into the stream of employment through whatever mode, it is possible. Had the Government religiously following the procedure prosecuted in the recruitment and promotion rules for making recruitments to such like posts, there was no occasion for persons like the petitioners to be manning these posts and that too for decades together. 6. In addition, as already observed hereinabove, the institutions where the petitioners are imparting education are Government institutions. The posts which are presently being occupied by the petitioners are sanctioned posts, which the Government has permitted to be occupied by the petitioners and similarly situated persons, as apparently, it is also happy with the fact that the purpose of imparting education to the students is being achieved by not monetarily paying to the incumbents the pay, to which, a regular incumbent is entitled to. This, in fact, is a perfect example of exploitation of the unemployed youth right under the nose of the Government. Now, the moot question, which the Court has to decide, is that in these circumstances, when the petitioners are serving, though on PTA basis, in Government Colleges and imparting education to students for more than a decade, can they be denied the benefit of Grant-in-Aid Rules? This Court is of the considered view that the answer obviously has to be in the negative. This Court is of the considered view that the answer obviously has to be in the negative. The appointment of the petitioners were made in the year 2015 as far as petitioner No.1 is concerned and April 2011 as far as petitioner No.2 is concerned. These appointments have not been objected to by the Department and the very fact that the Department has permitted the incumbents to continue amounts to acquiescence of the Department vis-a-vis the continuation of said teachers who are serving against sanctioned posts. It is not the case of the respondents that the petitioners have not imparted education to the students in the College concerned or that the certificates, which are being issued to the students, to whom, education has been imparted by petitioners are in any way inferior to the certificates which are being issued to the students, who are being imparted education by regularly appointed teachers. 7. That being the case, it is highly unjust on the part of the Department to deny Grant-in-Aid to the petitioners while extracting the work of Assistant Professor from them in Government College. Respondent-State being a modal employer, ought to have ensured that the posts in issue should have been manned by person recruited through the procedure prosecuted in the recruitment and promotion rules, but, as the Government has failed to do so and has allowed a proxy system to be operative as far as imparting education to the students is concerned, then least that is expected from the Government is that Grant-in-Aid as is being provided by it to other teachers appointed under the PTA policy should be extended to the petitioners also. 8. The contention of the State that petitioner No.2 is not qualified to hold the post is also of no assistance as far as extension of the benefit of Grant-in-Aid is concerned for the reason that if the State is of the view that petitioner No.2 is not eligible to hold the post, then, the Department can take appropriate action. But, till the time he is there on the roles, may be on the basis of an appointment through PTA he is also entitled to be extended the benefit of PTA Grant-in-Aid Rules as these benefits are required to be conferred upon the petitioners also in lieu of the services that have been rendered by them after their appointment by the PTA as Assistant Professors. 9. Accordingly, in view of the above observations this writ petition is allowed and the respondents are directed to extend the benefit of PTA Grant-in-Aid Rules to the petitioners from the date of their appointment i.e. 09.03.2015, as far as petitioner No.1 is concerned and April 2011 as far as petitioner No.2 is concerned. In the event of the benefit being extended to the petitioners within a period of three months from today, the same shall not entail any interest, but, if the benefit is not extended within the aforesaid period, then, the same shall entail interest @6% from the date of the filing of the writ petition. Pending miscellaneous applications, if any, also stand disposed of.