State Of Himachal Pradesh And Others vs Pushpa Thakur And Others

Satyen Vaidya, J

By way of instant petition, petitioner has prayed for following relief:-

“It is, therefore, respectfully prayed that keeping in view the facts and submissions made in the present writ petition may kindly be allowed,

quashing and setting aside the impugned order/judgment dated 10.01.2018 in TA No.6172/2015 by the Himachal Pradesh Administrative Tribunal

(Annexure P-1). Any other relief deemed fit may also be allowed in favour of the petitioners in the interest of justice and fair play.

BRIEF FACTS OF THE CASE

Respondents herein were employees of Janta High School, Neen P.O. Durgapur, District Shimla (for short, Janta High School). Respondents No.1

to 3 were teachers, respondent No.4 was clerk and respondent No.5 was Peon in Janta High School which was a Government Aided School getting

95% Grant-in-Aid.

Petitioners herein, on 23.11.2005, decided to take over a number of Government Aided Schools with all their assets and services of the staff. In

pursuance to such decision of petitioners, some schools alongwith staff were taken over. One of such school was Indira Gandhi High School Sehrol in

District Solan, Himachal Pradesh. Its assets and services of teaching/non teaching staff were taken over vide Notification dated 06.08.2007. Another

similar school was Public High School Manoh Sihal, District Kangra which was taken over alongwith staff w.e.f. 27.10.2008.

Though, the petitioners had been corresponding with Janta High School regarding its takeover but finally instead of taking over the said school,

petitioners decided to upgrade Government Middle School, Neen to Government High School.

It is worth noticing here that Janta High School was being run by a society registered under Societies Registration Act (for short Society). Initially

the society started running primary school at Village Neen in the year 1975-76. Government of Himachal Pradesh had taken over said primary school

in the year 1979. The society started private middle school for classes 6th to 8th in the same campus in the year 1979, which was also taken over by

Government of Himachal Pradesh in the year 1982. The society consequently started Janta High School for classes 9th and 10 th in the same campus

w.e.f. 03.07.1982. Every time new infrastructure for opening new classes, as a result of Government’s decision to take over its previous assets

was created by the society.

Respondents herein made several representations to the petitioners seeking indulgence towards their grievance as they were seeking parity with

similarly situated persons, whose services had been taken over by the petitioners. Having failed to get their grievance redressed from petitioners,

respondents approached erstwhile Himachal Pradesh Administrative Tribunal by way of Original Application No.507 of 2008. Learned Tribunal

decided the said original application on 14.03.2008 and directed the petitioners to decide the representation of respondents herein. The matter was

considered by Himachal Pradesh Cabinet on 09.12.2008 and was rejected. The rejection was communicated to respondents vide communication dated

20.12.2008.

Aggrieved against rejection of their claims, respondents approached this Court by way of Civil Writ Petition No.150 of 2009, which came to be

allowed by learned Single Judge of this Court in following terms:-

“Accordingly, in view of the observations made hereinabove, the writ petition is allowed and Annexure P-18 dated 20.12.2008 is quashed and set

aside. The respondents are directed to consider the case of the petitioners on the analogy of Public High School, Manoh Sihal, District Kangra and

Indira Gandhi High School, Sehrol, District Solan within a period of six weeks from todayâ€​.

It is apt to refer at this stage to the discussion made by learned Single Judge on the basis of material before his Lordship in CWP No.150 of 2009

which is as under:-

“There is no explanation why the petitioners have been discriminated against. Petitioner No.6 school and the teachers are similarly situated vis-à -

vis the teachers/staff who were working in Public High School, Manoh Sihal, District Kangra and the Indira Gandhi High School, Sehrol. The State

Government has treated equals as unequals. It is true that to take over the school or the services of the teachers/staff is a policy matter. However, it

is equally true that the policy decision should apply to all the similarly situated persons/institutions universally. There cannot be any pick and choose

while implementing the policy. The case of the petitioners is to be treated at par with schools/teachers who were serving in Public High School,

Manoh Sihal, District Kangra and Indira Gandhi High School, Sehrol. In fact the Department of Education has reco mmended the case of the

petitioners on the analogy of Public High School, Manoh Sihal, District Kangra but the decision has gone against the petitioners. The petitioners have

been given assurances from time to time by the Education Department that needful will be done and the school will be taken over.

However, despite the prolonged correspondence what has happened is that the Government Middle School, Neen has been upgraded to High School,

Neen. The State Government as per Annexure P-8 has decided to take over the schools, which were functioning parallel to the Government

institutions. As many as 13 institutions were taken over.

From the above noted material, there is no doubt that the learned Single Judge of this Court while allowing CWP No.150 of 2009 vide judgment

dated 08.01.2010 had specifically declared the right of respondents herein to be treated at par with teachers who were serving in Public High School

Manoh Sihal, District Kangra and Indira Gandhi High School, Sehrol District Solan H.P. It was specifically held in the said judgment that Janta High

School and its teachers were similarly situated vis-Ã -vis the teachers/staff who were working in Public High School Manoh Sihal, Distrct Kangra and

Indira Gandhi High School, Sehrol. It was also held in unambiguous terms that the State Government had treated equals and unequals and there was

no explanation why the petitioners therein had been discriminated against.

Petitioners, after the judgment in CWP No.150 of 2009, vide Notification dated 28.09.2010, took over services of respondents w.e.f. 28.09.2010 on

contract basis. Though, the respondents accepted the employment offered to them, yet they kept agitating their claim of not having meted with the

same treatment as allowed to similarly situated persons i.e. the Staff of Indira Gandhi High School, Sehrol, District Solan And Public High School,

Manoh Sihal, District Kangra.

Again having not received positive result from petitioners, the respondents again approached this Court by way of Civil Writ Petition, which was

converted as TA No.6172 of 2015 before the Himachal Pradesh State Administrative Tribunal. Vide order dated 10.01.2018, the learned Tribunal

decided the TA No.6172 of 2015 in following terms:-

“It is not in dispute that the service of the applicants were taken over in sequel to the directions of the Hon’ble High Court of H.P. in CWP

No.150 of 2009, titled Pushpa Thakur and others Versus State of H.P. and another, decided on 08.01.2010, Annexure P-1. The final order of the

judgment reads as under:-

According in view of the observations made hereinabove, the writ petition is allowed and Annexure P-18 dated 20.12.2008 is quashed and set aside.

The respondents are directed to consider the case of the petitioners on the analogy of Public High School, Manoh Sihal, District Kangra and Indira

Gandhi High School, Shehrol, District Solan within a period of six weeks from today.

The respondents were directed to consider the case of the applicants on the analogy of Indira Gandhi High School, Sehrol, District Solan and Public

High School, Manoh Sihal, District Kangra. However, the respondents had taken over the services of the applicants on contract basis, vide notification

dated 28. 10.2010, Annexure P-5, whereas the services of the staff of Indira Gandhi High School, Sehrol, District Solan were taken over on regular

basis vide notification dated 6. 08.2007, Annexure P-3.

Consequently, the transferred application is allowed and the respondents are directed to consider the case of the applicants on the analogy of

decision dated 08.01.2010 rendered in CWP No.150 of 2009 by giving similar treatment to the applicants herein as given to the staff of Sehrol School

(supra), within three months from the date of production of certified copy of this orderâ€​.

It is the order dated 10.01.2018 passed by learned Tribunal in TA No.6172 of 2015 i.e under challenge in the instant petition.

We have heard learned Additional Advocate General for petitioners and Senior Advocate Sh. Shrawan Dogra with Sh. Deepak Sharma, Advocate

for respondents.

The case set up by petitioners in the present petition is that the respondents cannot be said to be similarly situated to the teachers of Indira Gandhi

High School, Sehrol, District Solan and Public High School, Manoh Sihal, District Kangra. The reason assigned by petitioners are that firstly the

respondents were given appointments on the basis of policy applicable during the relevant period which was different then the policy applicable at the

time when others were given appointments and secondly as per grant-in-aid Rules, in order to be eligible for grant-in-aid, a school was required to

have a minimum strength of students and since Janta High School did not enroll students after 2007, it was not entitled for grant-in-aid.

Both the grounds raised by petitioners on their face appears to be fallacious. The contention that respondents were given employment on the basis

of prevalent policy does not hold good for the reasons that the petitioners have not substantiated its stand with any tangible evidence. On the other

hand the respondents alongwith their reply have placed on record document Annexure R-1/4 which is the information provided by the office of

petitioner No.2 under Right to Information Act to respondent No.1. As per this information, there was no specific guidelines or instructions adopted by

petitioners prior to 2011 for taking over of 95% aided schools. That being so, it does not lie in the mouth of petitioners to raise such an absurd

argument. Even otherwise, the petitioners had no option but to implement the judgment passed by this Court in CWP No.150 of 2009 without taking

any exception to it since the same had attained finality and the petitioners had not chosen to challenge it. As noted above, there was specific

declaration by learned Single Judge of this Court and the respondents were held to be similarly situated to those who were employees of Indira Gandhi

High School, Sehrol, District Solan and Public High School, Manoh Sihal, District Kangra.

As regards the other ground, we have no hesitation to hold that the same is also without any substance. Once the petitioners had upgraded the

Government Middle School, Neen to High School in the same campus, for obvious reasons Janta High School could not have fetched students. In any

case, when the rights of respondents have been held to be at par with rights of the staff of Indira Gandhi High School, Sehrol, District Solan and Public

High School, Manoh Sihal, District Kangra, they could not be discriminated at the whims and fences of the authorities. The respondents cannot be

faulted for the delay in taking over of their services by the petitioners. It is evident from the material on record that the respondents had been

continuously agitating in respect of their claims before authorities but the authorities instead of doing justice, kept on forcing the respondents to

approach the Courts repeatedly. The conduct of petitioners belies their claim to be the model employer.

The agonies of respondents are still unabated only due to the non-serious and casual approach of the petitioners. Despite a clear mandate in favour

of respondents by virtue of judgment passed in CWP No.150 of 2009, they are being made to run from pillar to post to get their genuine claims settled.

We feel it appropriate to observe that the preposterous conduct of petitioner is evident from perusal of order dated 29.11.2019 recorded by this Court

in instant petition. On instructions, it was stated on behalf of the petitioners that the claim of respondents herein was not identical to that of the writ

petitioners in CWP No.150 of 2009. Without realizing, that the respondents herein were the petitioners in CWP No.150 of 2009, above noted

representation was made on behalf of the petitioners.

In light of above discussion, we find no merit in the present petition and the same is accordingly dismissed, so also the pending miscellaneous

application(s), if any, with no orders as to cost.