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2025 DIGILAW 731 (HP)

Sheetal Sharma v. State of Himachal Pradesh

2025-04-10

SATYEN VAIDYA

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JUDGMENT : Satyen Vaidya, J. Both these petitions have been heard and are being decided together as common question of facts and law are involved. 2. Petitioners were appointed as Special Educators on contract basis in ‘Sarav Shiksha Abhiyan’ (for short ‘SSA’) on the fixed monthly emoluments of Rs. 5,000/- per month. Petitioner (Sheetal Sharma) in CWPOA No. 885 of 2019, was appointed on 02.06.2005 and petitioner (Manjula Sharma) in CWPOA No. 5854 of 2019, was appointed on 06.09.2006. For convenience, the petitioners hereafter shall be referred to by their respective names, wherever required. 3. Respondent No. 1, took a policy decision vide notification dated 09.05.2006 to pay salary to the contract employees on a uniform pattern. The Executive Committee of SSA adopted the said notification and thereafter started paying to all its contract employees salary on the initial of the pay scale + dearness allowance @ 50 %. 4. Petitioners were not granted the benefit of above-said notification. Petitioner (Sheetal Sharma), approached this Court by way of CWP No. 11861/2011 seeking parity with the other contract employees of SSA. Respondents in their reply filed in the said writ petition contested the claim of the petitioner on the ground that only those contract employees of SSA were allowed the benefit of salary at the initial of the pay scale+50% of the dearness allowance w.e.f. 01.09.2006, who were on the sanctioned establishment of the society and whose salaries were met from management establishment of the society as per norms approved by the Project Approval Board (PAB) of Ministry of Human Resource Development (MoHRD). It was also submitted that the petitioner in the said petition was appointed as Special Educator temporarily on contract basis and her salary was claimed against specific intervention scheme i.e. under inclusive education component of SSA and for such reason she was not entitled for the benefit of Notification 9.5.2006. It was further submitted that the honorarium of Special Educator had already been enhanced @ Rs. 7,500/- per month w.e.f. 23.02.2011 as per approval granted by the Executive Committee of SSA. 5. This Court vide judgment dated 19.12.2012, disposed of CWP No. 11861 of 2011 in following terms: - “4. Accordingly, in view of the observations and discussions made hereinabove, the writ petition is allowed. 7,500/- per month w.e.f. 23.02.2011 as per approval granted by the Executive Committee of SSA. 5. This Court vide judgment dated 19.12.2012, disposed of CWP No. 11861 of 2011 in following terms: - “4. Accordingly, in view of the observations and discussions made hereinabove, the writ petition is allowed. The respondents are directed to give the benefit of merger of 50% of dearness pay on the initial of the pay scale to the petitioner w.e.f. 01.09.2006 with interest @ 7% per annum, within a period of ten weeks from today, failing which, the petitioner will be entitled to interest @ of 12% per annum till the payment is realized. The pending application(s), if any, also stands disposed of. No costs.” 6. Petitioner Manjula Sharma also approached this Court by way of CWP No. 2630 of 2013 and the same was disposed of on 27.05.2014, by a Division Bench of this Court in following terms: - “Mr. Praveen Chauhan, learned counsel for the petitioner submits that the present lis is squarely covered by the judgment dated 19th December, 2012, rendered by this Court in CWP No. 11861 of 2011, titled as Sheetal Sharma versus State of H.P. & others. 2. Consequently, the present petition is disposed of with a direction to the respondents-State to consider the case of the petitioner within a period of four weeks from today, strictly in view of the principles laid down in the judgment cited hereinabove. The pending application(s), if any, are also disposed of. No costs.” 7. In compliance to aforesaid judgments initially the respondents granted the benefit, to the petitioner Sheetal Sharma, by paying salary at the initial of the pay scale +50% of the dearness allowance. The arrears were also paid w.e.f. 01.09.2006, however, later the respondents initiated action to revoke its earlier decision and to that effect a notice dated 07.09.2013, was received by the petitioner Sheetal Sharma. The said petitioner again challenged the notice by filing writ petition before this Court. The writ petition was allowed by a Division Bench of this Court on 24.09.2013 as CWP No. 7741 of 2013. The notice impugned in the said petition was quashed. Respondents were directed to grant an opportunity of filing reply to the show cause notice to the petitioner Sheetal Sharma and thereafter to dispose of the case by a speaking and reasoned order. The notice impugned in the said petition was quashed. Respondents were directed to grant an opportunity of filing reply to the show cause notice to the petitioner Sheetal Sharma and thereafter to dispose of the case by a speaking and reasoned order. Respondents after complying with the aforesaid order passed by this Court issued an office order dated 11.03.2014, reiterating their earlier stand. Recovery in the sum of Rs. 04,04,990/- was ordered to be made from the petitioner Sheetal Sharma and her salary was ordered to be reduced to the stage of Rs. 7,500/- per month w.e.f. March, 2014 onwards. 8. In the case of petitioner Manjula Sharma, it was noticed by the State Project Director, SSA, vide communication dated 04.08.2014 that since Manjula Sharma did not possess the required qualification, she was being paid honorarium @ Rs. 7,500/- per month w.e.f. 01.02.2011 on her undertaking to improve her educational qualification within three years. It was further directed that the remuneration for the period 2006 to 2010 will be released in her favour in case she fulfilled the undertaking. Thereafter, by the communication dated 29.07.2015, the District Project Officer, Shimla, wrote to the Central Head Teacher, Government Primary School, Totu, as under:- “Vide letter no. SSA/RMSA HQ-3/14 –IED (Court Case)-III-282 O/O the State project Director (SSA/RMSA) dated 01.05.2015 regarding subject cited above. The recovery has been fixed we.f. 2011-12 to 2014-15 for excess of honorarium paid to Mrs. Majula Sharma Sp. Edu. Working under Day Care Centre Totu. She has submitted undertaking on dated 01.10.2022 in the office of undersigned for improving her qualification in stipulated period within three years which is commenced from 01.10/2011 as per undertaking if she fails to qualify her enhanced honorarium will be withdrawn i.e. Rs. 86136/- this amount will be recovered in 24 installments @ Rs. 3589 per month.” 9. Petitioner Sheetal Sharma has amended her petition and has also claimed the benefit of regularization at par with other contract employees of SSA. Petitioner Manjula Sharma has also included a prayer to similar effect in her petition. The relief of regularization has been sought claiming parity with other contract employees of SSA. It is contended that the respondents had taken a decision to regularize its contract employees w.e.f. 16.12.2020. 10. Petitioner Manjula Sharma has also included a prayer to similar effect in her petition. The relief of regularization has been sought claiming parity with other contract employees of SSA. It is contended that the respondents had taken a decision to regularize its contract employees w.e.f. 16.12.2020. 10. In defence, respondents have reiterated its stand that the petitioners were against specific intervention i.e. Inclusive Education for CWSN (Children with Special Needs) and the honorarium payable to the petitioners was being drawn against the said specific intervention. The continuity of their engagement depended upon the approval of the PAB of MoHRD on year to year basis. On such ground, the cases of petitioners have been sought to be differentiated from the other contract employees of the SSA. 11. Respondents have further tried to defend their action by alleging that arrears were wrongly calculated in favour of petitioner Manjula Sharma whereas she were entitled to the fixed honorarium of Rs. 7,500/- per month only. Further, in the case of petitioner in Petitioner Manjula Sharma it has been submitted that since the petitioner had acquired the qualification of B.Ed. in special education on 03.03.2015, the SSA had released the enhanced honorarium to her after acquiring the requisite qualification w.e.f. 30.03.2015. 12. I have heard learned counsel for the parties and have also gone through the record of the case carefully. 13. Learned Senior Counsel for the petitioners has contended that the judgment passed by a Single Bench of this Court in CWP No. 11861/2011 in the case of petitioner Sheetal Sharma and judgment dated 27.05.2014, passed in CWP No. 2630 of 2013, in the case of petitioner Manjula Sharma by a Division Bench of this Court have attained finality. He would submit that the respondents could not make a distinction in giving the benefit of merger of 50% of dearness allowance on the initial pay scale only on the basis of mode of recruitment. He contended that this Court had clearly held, the classification made by the respondents to deny the benefit of merger of 50% of the dearness allowance on the initial pay scale of the petitioner only on the ground that their salaries were drawn against specific intervention scheme, to be bad in law. He contended that this Court had clearly held, the classification made by the respondents to deny the benefit of merger of 50% of the dearness allowance on the initial pay scale of the petitioner only on the ground that their salaries were drawn against specific intervention scheme, to be bad in law. As per him, the action of the respondents was clearly held to be violative of Articles 14 and 16 of the Constitution of India and it was in this backdrop that the directions, were issued to the respondents to give the benefit of emolument of 50% of the dearness allowance on the initial of the pay scale to the petitioners w.e.f. 01.09.2006 with interest @ 7% per annum. In case of failure of respondents to comply with the judgment within ten weeks, respondents were further held liable to pay interest @ 12% per annum till the payment was realized. 14. He further submitted that the aforesaid judgments having attained finality, cannot be diluted by the respondents. 15. Another submission made on behalf of the petitioners is that since they have been held entitled to parity with other contractual employees of SSA, they are also entitled for regularization w.e.f. 26.12.2020, on which date all other contractual employees of SSA were ordered to be regularized. In addition reliance has also been placed on a judgment passed by this Court on 17.12.2021 in a bunch of matters with CWP No. 3743 of 2021 being the lead case to assert that this Court, on the petitions of other contractual employees of the SSA, had directed the respondents to regularize their services from the date when they had completed eight years of service with all consequential benefits. The financial benefits, however, were held to be made available to the petitioners in the said petitions only for a period of three years before filing of the petitions. He further submitted that the aforesaid judgment was upheld by a Division Bench of this Court vide judgment dated 25.04.2024, passed in LPA No. 66 of 2022 alongwith connected matters and the same has further been upheld by Hon’ble Supreme Court vide order dated 28.03.2025, passed in Special Leave Appeal (C) No. 15289 of 2024. 16. Noticeably, respondents have throughout dwelled on its original stand that the petitioners were appointed against the specific intervention and they could not be equated with the other contractual employees of SSA. 16. Noticeably, respondents have throughout dwelled on its original stand that the petitioners were appointed against the specific intervention and they could not be equated with the other contractual employees of SSA. Indisputably, the petitioners are working now for the last about twenty years. Their services have never been sought to be dispensed with or terminated. The necessary inference, thus, is that the respondents required the services of Special Educators throughout. In such circumstances the distinction tried to be drawn by the respondents between the petitioners and other contractual employees of the SSA is fallacious. In case the respondents require services on posts which in effect are permanent in nature, they cannot seek to absolve themselves by creating fictional or invented distinctions. It cannot be a valid reason that the emoluments in the case of petitioners were drawn from specific intervention. The respondents themselves have admitted that the services of petitioners were continued from year-to-year basis after approval by PAB of MoHRD. It being so the conduct of respondents is clearly exploitative which cannot be sustained at the touch stone of Articles 14 and 16 of the Constitution of India. 17. Even otherwise, it is difficult to comprehend that as to how the respondents can justify their stand in the teeth of judgment passed by this Court in CWP No. 11861 of 2011. This Court had returned specific findings vide aforesaid judgment in following terms:- “3. The respondents could not make distinction in giving the benefit of merger of 50% of dearness pay on the initial of the pay scale only on the basis of mode of recruitment. The petitioner and other staff of SSA have been appointed on contract basis. The focus of the respondents should be to provide better conditions of service to the employees who are directly involved in SSA instead of giving benefits to those employees who are though employed in SSA, but working as Ministerial Staff. The fact that the salary of the contract staff and the sanctioned establishment of the S.S.A. would be met from the Management of S.S.A. and the salary of the petitioner is claimed against specific intervention/scheme will not come in the way of the petitioner to get benefit of merger of 50% of dearness allowance in the pay. The fact that the salary of the contract staff and the sanctioned establishment of the S.S.A. would be met from the Management of S.S.A. and the salary of the petitioner is claimed against specific intervention/scheme will not come in the way of the petitioner to get benefit of merger of 50% of dearness allowance in the pay. The petitioner has also been appointed by the SSA, even though his salary is claimed against the specific intervention, i.e., inclusive education for CWSN (Children With Special Need). The classification made by the respondents to deny the benefit of merger of 50% of dearness pay on the initial of the pay scale to the petitioner only on the grounds that her salary is drawn against Specific Intervention Scheme, isbad in law. The classification made by the respondents to deny the merger of 50% dearness allowance in the pay on the mode of recruitment is violative of Articles 14 and 16 of the Constitution of India. Moreover, there is no nexus with the objects to be achieved. The conditions of all the employees working under the same employer should be uniform. Once the SSA has adopted the notification issued by the State Government to give the benefit of merger of 50% of dearness pay on the initial of the pay scale, the same should have been applied uniformly by the Board to all the employees working under it. The decision of the SSA not to grant the benefit of merger of 50% of dearness pay on the initial of the pay scale to the petitioner amounts to invidious discrimination and is illegal, arbitrary, thus, violative of Articles 14 and 16 of the Constitution of India.” 18. Admittedly, the aforesaid judgment has attained finality. Thus, the stand as taken by the respondents is not at all sustainable. 19. Petitioner Manjula Sharma has specifically stated in her petition that she was duly qualified. Respondents have not placed on record any specific service rules for the post of Special Educators. They are relying upon an undertaking given by the petitioner Manjula Sharma, which, in my considered opinion, cannot be given much weight keeping in view the bargaining power held by the employer. Respondents had to show existence of specific service rules at the time of induction of petitioners to the post of Special Educators. They are relying upon an undertaking given by the petitioner Manjula Sharma, which, in my considered opinion, cannot be given much weight keeping in view the bargaining power held by the employer. Respondents had to show existence of specific service rules at the time of induction of petitioners to the post of Special Educators. In absence, they cannot be allowed to deny the claim of the petitioner Manjula Sharma on the ground that she was not qualified. In any case, petitioner Manjula Sharma has acquired the qualification of diploma in care of disabled persons from Rehabilitation Council of India as also the B.Ed. 20. It is not the case of respondents that the initial induction of the petitioner was illegal. 21. Once, petitioners have been held to be at par with the other contractual employees of SSA, they cannot be denied the scales of emoluments as given to the other contract employees of SSA. As sequel they will also be entitled for the benefit of regularization at par with said employees including the benefit of judgment passed by this Court on 17.12.2021 in CWP No. 3743 of 2021, titled as Vikas Gupta and Ors. Vs. State of H.P. and Ors. 22. In result, these petitions are, allowed. The orders, Annexure P-9 in CWPOA No. 885 of 2019 and Annexure P-8 in CWPOA No. 5854 of 2019, are quashed and set aside. Petitioners are held entitled to the salary at initial of the pay scale with 50% of the dearness allowance w.e.f. 01.09.2006. They are also held entitled to the benefit of judgment in CWP No. 3743 of 2021, titled as Vikas Gupta and Ors. Vs. State of H.P. and Ors.. Respondents are directed to take necessary action for implementation of this judgment within three months from today. 23. These petitions are, accordingly, disposed of, so also the pending miscellaneous application(s), if any.