Allowed

Meli Ram v. State of Hp and Others

Himachal Pradesh HC7 Nov 2023CWP/1515/2023

Case brief

AI extract

What is this about?

The High Court held that an SMC-appointed teacher's abrupt termination without notice violated natural justice. Relying on the RTE Act's provisions allowing in-service teachers to qualify later and Supreme Court precedents on SMC policies, the court ruled for re-engagement and grant-in-aid.

What did the court decide?

Writ petition allowed; rejection order and disengagement set aside; petitioner re-engaged with service continuity and grant-in-aid from initial appointment date.

Meli Ram Vs State of Hp and Others — Education and Admissions | Himachal Pradesh HC (2023)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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	*CWP No:1515 of 2023* *Decided on: 07.11.2023*
_____________________________________ Meli Ram	_______________________ ...Petitioner
Versus
State of Himachal Pradesh and others	…Respondents

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Coram:

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Hon’ble Mr. Justice Ranjan Sharma, Judge

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1 Whether approved for reporting? Yes

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For the Petitioner: }	Mr. Balwant Singh Thakur Ms. Anchal Sharma, Advocates.	and
For the Respondents:	Mr. Rajan Kahol, Additional Advo General, for respondents No.1 2-State.	cate and
	Mr. Jai Ram Sharma, Advocate, respondent No 3.	for

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Ranjan Sharma, Judge (Oral)

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Petitioner, a disengaged Trained Graduate Teacher {Medical}, who was appointed through the School Management Committee [SMC], has come up before this Court, in the instant petition, seeking the following relief(s):-

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“(i). That the writ in the nature of mandamus may kindly be issued and respondent department may kindly be directed to re-engage the present petitioner immediately

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1 Whether reporters of Local Papers may be allowed to see the judgment?

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alongwith all service benefits in the interest of justice immediately.

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(ii). That the writ of certiorari may kindly be issued and impugned Office Order dated 29.10.2020 Annexure P-6, may kindly be ordered to be quashed and set side being wrong and contrary to the service jurisprudence in the interest of justice.

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(iii). That a writ in the nature of Mandamus may kindly be issued commanding respondent education department to release GIA in favour of the petitioner w.e.f. his initial date of appointment in the interest of justice.”

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FACTUAL MATRIX:

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2. Case of the petitioner, as submitted by

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Mr. Balwant Singh Thakur, Learned counsel is that

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upon due selection, the School Management Committee

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of Government High School [now GSSS] Sinvi, Tehsil

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Anni, District Kullu (HP), appointed the petitioner

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as a Trained Graduate Teacher (Medical) by way of a resolution and he joined his duties in the said

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school 01.07.2013 and petitioner performed his duties

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and functions by taking classes as assigned by the schools authorities till 12.03.2019 when, one, Rajesh Kumar, on appointment as TGT [Medical] on 05.03.2019,

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on contract basis joined on 12.03.2019 in GHS (now

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GSSS) Sinvi, Tehsil Anni, District Kullu and due to joining of Rajesh Kumar, the respondents verbally disengaged the services of the petitioner.

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2(i). Feeling aggrieved, against the action of

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the respondents in verbally disengaging the petitioner from service, the petitioner filed an OA No 1514 of 2019 , which was disposed of by the erstwhile Himachal Pradesh State Administrative Tribunal on

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24.4.2019, Annexure P-4, enabling the petitioner to make a representation for retention to the respondents

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with further direction to the respondents to permit the petitioner to continue at GSSS Sinvi, Tehsil Anni, District Kullu, as under:-

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“4. In the facts and circumstances, the original application is disposed of with a direction that the applicant may file a comprehensive representation for his retention at GSSS Sinvi, Tehsil Ani, alongwith certified copy of this order to 2^nd respondent within five days. 2^nd respondent shall decide the same after affording an opportunity of being heard to the applicant as well as private respondent No.4, if so desired, by 30^th May, 2019. The applicant,

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in the meanwhile, is permitted to continue at GSSS Sinvi, Tehsil Ani.”

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2(ii). Mr. Balwant Singh Thakur, learned counsel

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submits that though the petitioner had submitted a representation to the Respondents, in compliance to

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the directions/orders of Learned Himachal Pradesh

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State Administrative Tribunal dated 24.04.2019, but

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the respondents deprived the petitioner to continue

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in GSSS Sinvi, Tehsil Anni [Kullu], and due to this inaction, the petitioner was constrained to file a CWP No 3089 of 2020 and during the pendency of the aforesaid writ petition, the Respondent No 2-

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Director, Elementary Education passed an order on 29.10.2020, Annexure P-6 , rejecting the claim of the petitioner for continuity-reengagement in service as

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TGT [Medical] in GSSS Sinvi [Tehsil Anni, Kullu], on the ground that the petitioner was not qualified as he “did not possess the Teachers Eligibility Test [TET]” prescribed for the post of TGT(M); and his appointment was not against any vacancy ; and also

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that the termination was ordered due to appointment

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/joining of regular incumbent, namely Rajesh Kumar on 12.03.2019 in terms of Clause-9 of the SMC Policy dated 17.07.2012, providing that on the appointment of a regular/contract teacher the services of the SMC engaged teacher will stand terminated. Accordingly, based on these grounds as contained in rejection orders dated 29.10.2020, Annexure P-6,

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the petitioner withdrew the CWP No. 3089 of 2020 on 13.03.2023, Annexure P-5 , with liberty to file a fresh, at appropriate stage.

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It is in this background, that the instant

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writ petition [CWP No.1515 of 2023] was filed assailing the rejection order(s) and praying for re-engagement with all service benefits.

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STAND OF STATE AUTHORITIES IN INSTANT PROCEEDINGS:

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3. The Respondents have filed a reply, by

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reiterating the same grounds which were contained in rejection orders dated 29.10.2020, Annexure P-6

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and also by relying on the decision(s) in CWP No. 277 of 2017, titled as Subhash & Ors versus State of H.P. & Ors. along with connected matters and CWP No1728 of 2019, titled as Kuldeep Kumar and others versus State of Himachal Pradesh & others. The operative part of the reply filed by Respondents reads as under:-

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“3. That in compliance to the above order, the representation of the petitioner was received in the respondent department on 24.07.2019 and after going through the record of the case, it was gathered that the petitioner was engaged as TGT (Med.) by the SMC of the concerned school by passing a resolution on 01.07.2013. The petitioner was engaged on account of a temporary arrangement and was not given any appointment against the vacancy. The petitioner was not eligible to be appointed as a TGT(Med) due to the reasons that he had not qualified the Teacher's Eligibility Test (TET) at the relevant point of time and he was not paid any remuneration by the respondent department. The petitioner has also filed CWP 3089/2020 which was withdrawn on 13.03.2023 with liberty to file a fresh at appropriate stage.

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That the services of the petitioner were disengaged due to the joining of contract teacher Sh. Rajesh Kumar, TGT (Med.) on dated 12.03.2019 as such the engagement SMC teachers is a temporary arrangement

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and C lause-9 of the SMC Policy dated 17.07.2012 is also self -speaking that "The Head of the institutions ensure that the services of the said SMC provided teachers will automatically be terminated as and when regular /contract teacher appointed/transferred by the Government joins against the said post of after completion of the academic session of the institution, whichever is earlier." Hence, the representation of the petitioner was rejected by way of passing a detailed/self-speaking order passed on 29.10.2020 and the copy of same is annexed with the present petition by the petitioner as Annexure P-6 to the present Civil Writ Petition. The copy of appointment and joining of said Rajesh Kumar TGT are placed on record as Annexure R-1 and R-2 respectively.

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6. That the Division Bench of this Hon’ble Court in CWP No.277 of 2017-titled as Subhash & Ors. Versus State of H.P . & others and allied matters, on 30.10.2018, has been pleased to held as under:-

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“5. It is not in dispute that the petitioners have not been appointed by following the process as is envisaged in the above-mentioned Policy.

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6. In view of the matter, the State cannot be directed to release wages in favour of the petitioners who have not been appointed, in terms of the 2012 Policy.

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7. Similarly, as the petitioners have not been appointed as per the Recruitment and Promotion Rules against the posts which presently are being manned by them, therefore, no direction for regularization of their services can be

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issued.

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8. This Court in case No. CWPIL No. 157 of 2017 titled Court on its own motion Vs. State of H.P. & Ors., has directed the respondent - State to come out with a time schedule to fill up all the vacant posts in various schools of the State on regular/contract basis. Accordingly, subject to orders to be passed in the above mentioned writ petition i.e. CWPIL No. 157/2017, all these writ petitions are disposed of by directing that an endeavour be made by the State to fill up the vacant posts of teachers on regular basis within a period of one year and in the interregnum on contract basis within a period of six months. It is clarified that till the posts in issue are filled up by way of appointment of teachers either on contract or regular basis, present petitioners shall be permitted to continue to serve. It is further clarified that the petitioners shall be entitled to participate in the process of selection for appointment on contract/regular basis subject to eligibility. It is made clear that continuation of the services of the petitioners as SMC appointees shall not confer any preferential right of appointment upon them.”

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7. That after the decision of the Hon'ble High Court in CWP No. 1728/2019 titled as Kuldeep Kumar & Ors Vs State of H.P. & Ors dated 14.08.2020 the Government decided to assail the judgment and filed Civil Appeal No 3815/2020 titled as State of Himachal Pradesh & Ors. vs Kuldeep Kumar before the Hon'ble Supreme Court of India which was listed before the Hon'ble Court on 24.11.2020

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and the Hon'ble Supreme Court has been pleased to pass the following orders in this case:-

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17. These stipulations ensure elements of fairness and transparency. Thus all the appointments of SMC teacher were pro-tem or temporary arrangements and in any case as accepted by the petitioner in their affidavit in reply filed in this Court. Regular Recruitment Process is being undertaken by the State as that the petitions have also participated in such regular has fairly accepted that the State will make regular appointment periodically and at least every year so that the fresh talent emerging in the State has sufficient avenues and opportunities. This stand will sufficiently take care of the apprehension that the State may not make regular recruitment and thereby deny adequate opportunities to the concerned candidates. 18 In the circumstances, we do not find any infirmity in issuance of notification dated 17.07.2012 and in framing of the Policy permitting SMCs to appoint teachers at local level to tide over the difficulties. It must be stated here that even in 2009 Rules, a provision has been in the form of Rule 15 A to make contract appointments, through the Selection Process stipulated therein is of a different dimension and character.

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We therefore, allow these appeals

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and set aside the judgment and order passed by the High Court. It is directed that the appointments made by SMCs in terms of Notification dated 17.07.2012 hold good for the purpose for which said appointments were made till regular appointments are undertaken in accordance with 2009 Rules.

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19. With the aforesaid observations, these appeals are allowed without any order as to costs.”

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STAND OF RESPONDENT No.3-SMC:

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4. Mr. Jai Ram Sharma, Advocate, appeared

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for Respondent No.3-School Management Committee on 31.05.2023 and upon listing of case today, the reply filed by Respondents No.1 and 2-State Authorities is adopted by stating that the rejection orders dated 29.10.2020 [Annexure P-6] were issued by the State Authorities.

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REJOINDER BY PETITIONER:

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5. Petitioner filed a rejoinder, though not on

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record. However, a copy of rejoinder as furnished by the Learned State Counsel is perused by this Court, indicating that though the petitioner was not

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eligible for the post of TGT (Med) at the time of his

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initial appointment in the year 2013 but during service in the aforesaid School, the petitioner passed the TET in the year 2017, as per Annexure P-3 (colly)

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and, in these circumstances, it was averred that

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the rejection orders dated 29.10.2020 [Annexure P-6] treating the petitioner as not eligible is misconceived

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and contrary to facts.

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5(i). In rejoinder, the petitioner reiterated the

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Notification dated 21.09.2022 [Annexure P-7] that the

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regular/contract teachers could be posted against clear-cut vacancies where the SMC teachers are not

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in position and it was only after filling the clear-cut vacancies, then only, the posting may be made against SMC teachers.

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In this background, the petitioner reiterated that the petitioner was eligible for post of TGT [Medical]

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since 2017 i.e. prior to termination and the post of TGT [Medical] is vacant since September, 2022

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[Annexure P-10] and, therefore, the petitioner deserves

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to be re-engaged and granted the salary under Grantin-Aid also. The operative part of the rejoinder reads as under:-

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“2. That the averments made in Para 2 are wrong hence denied. It is stated that petitioner has been appointed against a sanctioned post after having been found eligible to be appointed against the post of TGT(M) by the SMC concerned by passing resolution dated 01.07.2013 i.e. much prior to the implementation of applicability of SMC Policy in schools of Himachal Pradesh. Further, services of present petitioner has been terminated illegally by the respondent State and this Hon'ble Court in case of Vinod Kumar Versus State of H.P., CWP 379/ 2018, CWP 4670/2015 Raj Kumar Pathania Versus State of H.P., CWP 384/2017 Renuka Devi Versus State of H.P. and CWP 1406/2023 Kavita Kumari Versus State of H.P., under the same and similar circumstances has directed the Respondent Education Department to re-engage the petitioners whose services were terminated after joining of regular /contract teacher. Thus the case in hand is securely covered by the judgments referred herein above. Hence, the direction to the Department may be given to reengage the present petitioner. 11. That contents of Para 11 are wrong hence denied. It is stated that the petitioner was engaged by School Management Committee by passing a resolution dated 01.07.2013 and thereafter he continued at the same place till March 2019. The policy dated 17.07.2012 had been made applicable to all schools of Himachal Pradesh vide notification dated 16.08.2014 whereas the petitioner has been engaged

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much prior to this notification. Further it is important to state here that petitioner has qualified Teacher Eligibility Test in the year 2017 and at the date of initial appointment the requirement of TET was not there. Hence the petitioner is eligible to be appointed against the post of TGT (M) and the post is lying vacant since September 2022.”

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6. Today (07.11.2023), Mr. Rajan Kahol, learned

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Additional Advocate General has placed on record the Instructions furnished by Director, Elementary Education, Himachal Pradesh, dated 06.11.2023, to reassert that the rejection orders dated 29.10.2020, Annexure P-6, were passed in view of the State Rules dated 31.05.2012 and since the petitioner was not TET pass and therefore, he was not qualified for holding the post of TGT(M).

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7. Heard Mr. Balwant Singh Thakur along with Ms. Anchal Sharma, learned counsel, for the petitioner and Mr. Rajan Kahol, Learned Additional Advocate General, for the respondents No.1 and 2- State.

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8. Before proceeding further in the matter, it

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is necessary to have a re-cap of the statutory provisions i.e. the Right of Children to Free and Compulsory Education Act, 2009 {referred to as RTE Act} and the Right of Children to Free and Compulsory Education Rules, 2010, {referred to as RTE Rules}.

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8(i). The provisions of the Right of Children to Free and Compulsory Education Act, 2009, which are relevant for purposes of instant matter, under:-

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“8. Duties of appropriate Government.—

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The appropriate Government shall-

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(a). provide free and compulsory elementary education to every child:

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Provided that where a child is admitted by his or her parents or guardian, as the case may be, in a school other than a school established, owned, controlled or substantially financed by funds provided directly or indirectly by the appropriate Government or a local authority, such child or his or her parents or guardian, as the case may be, shall not be entitled to make a claim for reimbursement of expenditure incurred on elementary education of the child in such other school.

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Explanation-The term “compulsory education” means obligation of the appropriate Government to-

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(i). provide free elementary education

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to every child of the age of six to fourteen

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years; and

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(ii). ensure compulsory admission, attendance and completion of elementary education by every child of the age of six to fourteen years;

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(b) ensure availability of a neighborhood school as specified in

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section 6;

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(c) ensure that the child belonging to weaker section and the child belonging to disadvantaged group are not discriminated against and prevented from pursuing and completing elementary education on any grounds;

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(d) provide infrastructure including school building, teaching staff and learning equipment;

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(e) provide special training facility specified in section 4;

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(f) ensure and monitor admission, attendance and completion of elementary education by every child;

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(g) ensure good quality elementary education conforming to the standards and norms specified in the Schedule;

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(h) ensure timely prescribing of curriculum and courses of study for elementary education; and

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(i). provide training facility for teachers.”

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21.

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School Management Committee.—

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(1) A school, other than a school specified in sub-clause (iv) of clause (n) of section 2, shall constitute a School Management Committee consisting of the elected representatives of the local authority,

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parents or guardians of children admitted in such school and teachers:

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Provided that at least three-fourth of members of such Committee shall be parents or guardians:

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Provided further that proportionate representation shall be given to the parents or guardians of children belonging to disadvantaged group and weaker section:

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Provided also that fifty per cent of members of such Committee shall be women.

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(2) The School Management Committee shall perform the following functions, namely:—

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(a) monitor the working of the school;

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(b) prepare and recommend school development plan;

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(c) monitor the utilisation of the grants received from the appropriate Government or local authority or any other source; and

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(d) perform such other functions as may be prescribed:

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Provided that the School Management Committee constituted under sub-section (1) in respect of-

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(a) a school established and administered by minority whether based on religion or language; and

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(b) all other aided schools as defined in sub-section (ii) of clause (n) of section 2,

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shall perform advisory function only.

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23. Qualifications for appointment and terms and conditions of service of teachers-

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(1) Any person possessing such minimum qualifications, as laid down by an academic authority, authorized by the Central

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Government, by notification, shall be eligible for appointment as a teacher.

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(2) Where a State does not have adequate institutions offering courses or training in teacher education, or teachers possessing minimum qualifications as laid down under sub-section (1) are not available in sufficient numbers, the Central Government may, if it deems necessary, by notification, relax the minimum qualifications required for appointment as a teacher, for such period, not exceeding five years, as may be specified in that notification:

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Provided that a teacher who, at the commencement of this Act, does not possess minimum qualifications as laid down under sub-section (1), shall acquire such minimum qualifications within a period of five years:

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Provided further that every teacher appointed or in position as on the 31^st March, 2015, who does not possess minimum qualifications as laid down under sub-section (1), shall acquire such minimum qualifications within a period of four years from the date of commencement of the Right of Children to Free and Compulsory Education (Amendment) Act, 2017 (24 of 2017).

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(3) The salary and allowances payable to, and the terms and conditions of service of, teachers shall be such as may be prescribed.”

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8(ii). Likewise, the provisions of the Right of

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Children to Free and Compulsory Education Rules, 2010 { hereinafter referred to as ‘RTE Rules}, read

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as under:-

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“3. Composition and functions to the School Management Committee.

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(1) A School Management Committee (hereinafter in this rule referred to as the said Committee) shall be constituted in every school, other than an unaided school, within six months of the appointed date, and reconstituted every two years.

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(2) Seventy five percent, of the strength of the said Committee shall be from amongst parents or guardians of children.

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(3) The remaining twenty five percent, of the strength of the said Committee shall be from amongst the following persons, namely :-

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(a) one third members from amongst the elected members of the local authority, to be decided by the local authority;

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(b) one third members from amongst teachers from the school, to be decided by the teachers of the school;

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(c) one third members from amongst local educationists or children in the School, to be decided by the parents in the said Committee.

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(4) To manage its affairs, the said Committee shall elect a chairperson and vice-chairperson from among the parent members ; the head teacher of the school, or where the school does not have a head teacher, the senior most teacher of the school, shall be the ex-officio member-convener of the said Committee.

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(5) The said Committee shall meet at least once a month, and the minutes and decisions of the meetings shall be properly recorded

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and made available to the public.

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(6) The said Committee shall, in addition to the functions specified in clause (a) to (d) of sub-section (2) of section 21, perform the following functions, namely:

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(a) communicate in simple and creative ways to the population in the neighbourhood of the school, the rights of the child as enunciated in the Act; as also the duties of the appropriate Government, local authority, school, parent and guardian;

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(b) ensure the implementation of clauses (a) and (e) of section 24, and of section 28,

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(c) monitor that teachers are not burdened with non academic duties other than those specified in section 27;

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(d) ensure the enrolment and continued attendance of all the children from the neighbourhood in the school;

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(e) monitor the maintenance of the norms and standards specified in the Schedule;

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(f) bring to the notice of the local authority any deviation from the rights of the child, in particular mental and physical harassment of children, denial of admission, and timely provision of free entitlements as per sub-section (2) of section 3;

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(g) Identify the needs, prepare a plan, and monitor the implementation of the provisions of Section 4;

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(h) monitor the identification and enrolment of, and facilities for education of children with disability, and ensure their participation in, and completion of elementary education;

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(i) monitor the implementation of the mid-day meal in the school;

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(j) prepare an annual account of receipts and expenditure of the school.

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(7) Any money received by the said Committee for the discharge of its functions under this Act, shall be kept in a separate account, to be audited annually.

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(8) The accounts referred to in clause (j) to sub-rule (6) and in sub-rule (7) should be signed by the chairperson or vicechairperson and convenor of the said Committee and made available to the local authority within one month of their preparation.

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Minimum qualifications.

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(1) The Central Government shall, within one month of the appointed date, notify an academic authority for laying down the minimum qualifications for a person to be eligible for appointment as a teacher.

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(2) The academic authority notified under sub-rule (1), shall, within three months of such notification, lay down the minimum qualifications for persons to be eligible for appointment as a teacher in an elementary school.

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(3) The minimum qualifications laid down by the academic authority referred to in sub-rule (1) shall be applicable for every school referred to in clause (n) of section 2.

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Acquiring minimum qualifications.

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(1) The State Government and the Union territory shall provide adequate teacher education facilities to ensure that all teachers in schools referred to in sub-clause (i), and schools owned and managed by the Central Government or the State Government or Union territory or local authority under sub-

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clause (iii), of clause (n) of section 2, who do not possess the minimum qualifications laid down under sub-rule (2) of rule 17 at the time of commencement of the Act, to acquire such minimum qualifications within a period of nine years from the commencement of the Act.

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(2) For a teacher, of a school referred to in sub-clause (ii) and (iv) of clause (n) of section 2, and of a school referred to in sub-clause (iii) of clause (n) of section 2 not owned and managed by the Central Government, State Government or Union Territory or local, who does not possess the minimum qualifications laid down under sub-rule (2) of Rule 17 at the time of commencement of the Act, the management of such school shall enable such teacher to acquire such minimum qualifications within a period of nine years from the commencement of the Act.

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Salary and allowances and conditions of service of teachers.

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(1) The Central Government or the appropriate Government or the local authority, as the case may be, shall notify terms and conditions of service and salary and allowances of teachers of schools owned and managed by them in order to create a professional and permanent cadre of teachers.

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(2) In particular and without prejudice to subrule (1), the terms and conditions of service shall take into account the following , namely:-

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(a) accountability of teachers to the School Management Committee;

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(b) provisions enabling long term stake of

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teachers in the teaching profession.

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(3) The scales of pay and allowances, medical facilities, pension, gratuity, provident fund, and other prescribed benefits of teachers shall be at par for similar qualification, work and experience.”

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8(iii). In order to meet out shortfall of teachers

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in schools, the State Government earlier notified the Parent Teachers Association Policy [referred as PTA Policy under the H.P. Education Code]. After the enactment and coming into force of the RTE Act and Rules and for accomplishing the objectives of the statute and with the object of ensuring proper infrastructure, adequacy of teaching staff and all other ancillary requirements, the Respondents-State Authorities notified the SMC Policy on 17.07.2012 i.e. Policy to Engage Teachers through the School Managing Committees purely on period basis in the Elementary as well as Higher Education Department of Himachal Pradesh in Tribal and Difficult Areas so as to meet out the deficiency of teachers in the schools located in these areas. Despite this,

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hundreds of teaching posts still remained vacant not only in Tribal and Difficult Areas but also in other areas (other than tribal and difficult areas) of the State and in these circumstances, the State Government issued another Notification on 16.08.2014, extending the SMC Policy dated 17.07.2012 to all the schools, irrespective of areas, where the sanctioned teaching cadre post(s) remained unfilled for quite some time.

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ANALYSIS OF RESPECTIVE CLAIMS OF PARTIES :

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9. In the backdrop of the RTE Act and the

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RTE Rules, this Court proceeds to examine the claim laying challenge to disengagement of the petitioner 12.03.2019 and the consequential rejection orders dated 29.10.2020 [Annexure P-6] with the prayer for re-engagement with past seniority and further claim for salary through Grant-in-Aid in succeeding paras of this judgment.

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TERMINATION : WITHOUT PRIOR NOTICE AND PERSONAL HEARING DEFEATS ARTICLES 14, 16 AND 21 OF THE CONSTITUTION OF INDIA:

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9(i). Admittedly, the petitioner being B.Sc. and

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B.Ed., as per Annexure P-3 was appointed/engaged as Trained Graduate Teacher (Medical), upon selection

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by the School Management Committee of GHS [now GSSS] Sinvi, Tehsil Anni, District Kullu [HP], by a resolution on 01.07.2013 [Annexure P-1] and though the petitioner performed his work, duties and functions

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as TGT (M) in aforesaid School, but his services were disengaged by the Respondents on 12.03.2019 in an abrupt and arbitrary manner i.e. without giving a prior notice and without giving a personal hearing to the petitioner by giving a complete go-by to the principles of natural justice and therefore, the action of the Respondents in terminating the petitioner from service on 12.03.2019 is not sustainable in the eyes of law.

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9(ii). Notably, the abrupt termination of the petitioner from service on 12.03.2019 has visited him with civil consequences resulting in depriving him of

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the job and curtailing his right to earn livelihood but without giving a prior notice and without affording a personal hearing before passing the coercive order by giving a complete go-by to the principles of natural justice when, these principles are the heart and soul of Article 14 of the Constitution of India. In these circumstances, the prejudicial order of termination has certainly visited the petitioner with civil consequences which needs to be interdicted by this Court, in view of the mandate of law in Mohinder Singh Gill and another versus The Chief Election Commissioner, New Delhi and others, (1978) 1 SCC 405, whereby the expression “civil consequences” encompasses not only the infraction of property or personal rights but of civil liberties, material deprivations and non-pecuniary damages, in following

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terms:-

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“66. It was argued, based on rulings relating to natural justice, that unless civil consequences ensued, hearing was not necessary. A civil right being adversely affected is a sine qua non for the

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invocation of the audi alteram partem rule. This submission was supported by observations in Rain Gopal and Col. Sinha. Of course, we agree that if only spiritual censure is the penalty, temporal laws may not take cognizance of such consequences since human law operates in the material field although its vitality vicariously depends on its morality. But what is a civil consequence, let us ask ourselves; by passing verbal boobytraps? 'Civil consequence' undoubtedly covers infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In its comprehensive connotation, everything that affects a citizen in his civil life inflicts a civil consequence.”

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9(iii). The abrupt termination of service of the

¶216

petitioner on 12.03.2019 in violation of the principles of “Audi Alteram Partem”, is in itself prejudicial to a person and non-compliance has been deprecated by the Hon’ble Supreme Court in S.L. Kapoor versus

¶217

Jagmohan and others, (1980) 4 SCC 379, as under:-

¶218

“24. In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently proof of denial of natural justice is unnecessary. It will comes from a person who has denied justice that the person

¶219

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who has been denied justice is not prejudiced. As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because Courts do not issue futile writs. We do not agree with the contrary view taken by the Delhi High Court in the judgment under appeal.

¶221

In the light of the discussion we have no option but to hold that the order dated February 27, 1980, of the Lt. Governor superseding the New Delhi Municipal Committee is vitiated by the failure to observe the principle Audi Alteram Partem. The question is what relief should be given to the appellant? The term of the Committee is due to expire on October 3, 1980 which means that just a few days more are left for the term to run out. If now the order is quashed and the Committee is directed to be reinstated with liberty to the Lt. Governor to proceed according to lawthis should be our order ordinarily-, it may lead to confusion and even chaos in the affairs of the Municipality. Shri Sorabji, learned Counsel for the appellant, had relieved us of our anxiety by stating "in view of the fact that the term expires on October 3, 1980, and as the appellant is anxious to have the stigma cast on him by the notification removed, the appellant does not press either for reinstatement in office or for striking down the notification so long as there is a just determination of the invalidity of the notification". We have held that the notification is vitiated by the failure to observe the principles of natural justice and we let the matter rest

¶222

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¶223

there. We neither quash the notification nor reinstate the Committee. Nor are we to be understood as having expressed any opinion on the merit of the supersession. We allow the appeal in the manner indicated. The appellant is entitled to his costs.”

¶224

9(iv). Likewise, the Hon’ble Supreme Court, in

¶225

Union of India and others Versus E.G. Nambudiri,

¶226

(1991) 3 SCC 38, held as under:-

¶227

“8. The question is whether principles of natural justice require an administrative authority to record reasons. Generally, principles of natural justice require that opportunity of hearing should be given to the person against whom an administrative order is passed. The application of principles of natural justice, and its sweep depend upon the nature of the rights involved, having regard to the setting and context of the statutory provisions. Where a vested right is adversely affected by an administrative order, or where civil consequences ensue, principles of natural justice apply even if the statutory provisions do not make any express provision for the same, and the person concerned must be afforded opportunity of hearing before the order is passed. But principles of natural justice do not require the administrative authority to record reasons for its decision as there is no general rule that reasons must be given for administrative decision. Order of an administrative authority which has no statutory or implied duty to state reasons or the grounds of it decision is not rendered illegal merely on account of absence of reasons. It has never been

¶228

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¶229

a principle of natural justice that reasons should be given for decisions. Though the principles of natural justice do not require reasons for decision, there is necessity for giving reasons in view of the expanding law of judicial review to enable the citizens to discover the reasoning behind the decision. Right to reasons is an indispensable part of a sound system of judicial review. Under our Constitution an administrative decision is subject to judicial review if it affects the right of a citizen, it is therefore desirable that reasons should be stated.”

¶230

9(v). Even in case of administrative decisions

¶231

which vest the power to decide to the prejudice of a person, implicitly necessitates, issuing a notice and affording a personal hearing before passing any adversarial order(s), has been outlined by the Hon’ble Supreme Court, in Prakash Ratan Sinha versus State of Bihar and others, (2009) 14 SCC 690, as under:-

¶232

“13. The law in this regard has been settled by several decisions of this Court. The principle that emerge from the decisions of this Court is that, if there is a power to decide and decide detrimentally to the prejudice of a person, duty to act judicially is implicit in exercise such a power and that the rule of natural justice operates in areas not covered by any law validly made.

¶233

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Corollary principles emanating from these cases are as to what particular rule of natural justice should apply to a given case must depend to an extent on the facts and circumstances of that case and that it is only where there is nothing in the statute to actually prohibit, the giving of an opportunity of being heard and on the other hand, the nature of the statutory duty imposed on the decision maker itself implies an obligation to hear before deciding. These cases have also observed, whenever an action of public body results in civil consequences for the person against whom the action is directed, the duty to act fairly can be presumed and in such a case, the administrative authority must give a proper opportunity of hearing to the affected person.”

¶235

9(vi). In Dharampal Satyapal Limited versus

¶236

Deputy Commissioner of Central Excise, Gauhati

¶237

and others, (2015) 8 SCC 519, the Hon’ble Supreme

¶238

Court has held that principles of natural justice form

¶239

an integral part of Article 14 of the Constitution of

¶240

India and all administrative actions have to conform

¶241

to fairness and reasonableness in spirit of Articles 14, 16 and 21 of the Constitution of India as under:-

¶242

“24. The principles have sound jurisprudential

¶243

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¶244

basis. Since the function of the j udicial and quasi-judicial authorities is to secure justice with fairness, these principles provide great humanizing factor intended to invest law with fairness to secure justice and to prevent miscarriage of justice. The principles are extended even to those who have to take administrative decision and who are not necessarily discharging judicial or quasi-judicial functions. They are a kind of code of fair administrative procedure. In this context, procedure is not a matter of secondary importance as it is only by procedural fairness shown in the decision making that decision becomes acceptable. In its proper sense, thus, natural justice would mean the natural sense of what is right and wrong. 27. It, thus, cannot be denied that principles of natural justice are grounded in procedural fairness which ensures taking of correct decision and procedural fairness is fundamentally an instrumental good, in the sense that procedure should be designed to ensure accurate or appropriate outcomes. In fact, procedural fairness is valuable in both instrumental and non-instrumental terms.

¶245

28. It is on the aforesaid jurisprudential premise that the fundamental principles of natural justice, including audi alteram partem, have developed. It is for this reason that the courts have consistently insisted that such procedural fairness has to be adhered to before a decision is made and infraction thereof has led to the quashing of decisions taken. In many statutes, provisions are made ensuring that a notice is given to a person against whom an order is likely to be passed before a decision is made, but there may be instances where though an

¶246

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¶247

authority is vested with the powers to pass such orders, which affect the liberty or property of an individual but the statute may not contain a provision for prior hearing. But what is important to be noted is that the applicability of principles of natural justice is not dependent upon any statutory provision. The principle has to be mandatorily applied irrespective of the fact as to whether there is any such statutory provision or not.”

¶248

9(vii). In Amar Kumar Vs. State of Bihar, (2023)

¶249

9 SCC 160, the Hon’ble Supreme Court has mandated

¶250

that termination, causing prejudice, cannot be ordered

¶251

without affording an opportunity of personal hearing in following terms:-

¶252

“4. The second batch of writ petitions filed by the appellants was dismissed by the learned Single Judge who opined that the termination of their services cannot be treated as punitive. The Division Bench agreed with the learned Single Judge and dismissed the appeals.

¶253

We have heard the learned counsel for the parties and perused the record including order dated 16-6-2011 (Annexure R-1) , which clearly show that action to terminate the services of the appellants was taken after holding an inquiry into the allegations of serious misconduct allegedly committed by them. We have also gone through the judgment of this Court in Anoop Jaiswal v. Union of India and SBI v. Palak Modi.

¶254

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In view of the law laid down in the aforementioned judgments, it must be held that the services of the appellants could not have been terminated without holding a proper enquiry and giving them an opportunity of hearing.

¶256

In the result, the appeals are allowed. The impugned judgment is set aside and the termination of the services of the appellants is declared illegal and quashed. The respondents shall reinstate the appellants with consequential benefits. However, it is made clear that the competent authority shall be free to hold enquiry into the allegations of misconduct against the appellants and pass appropriate order with requisite expedition. It will also be open to the competent authority not to give posting to the appellants till the conclusion of the enquiry.”

¶257

9(viii). In State Bank of India and others

¶258

versus Rajesh Agarwal and others, (2023) 6 SCC 01, the Hon’ble Supreme Court outlined that an

¶259

administrative order which results a person with civil consequences, cannot be passed without affording an opportunity of being heard before passing the prejudicial order, in the following terms:-

¶260

“40. The process of forming an informed opinion under the Master Directions on Frauds is administrative in nature. This has also been acceded to by RBI and lender banks in their written submissions. It is now

¶261

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¶262

a settled principle of law that the rule of audi alteram partem applies to administrative actions, apart from judicial and quasi-judicial functions. It is also a settled position in administrative law that it is mandatory to provide for an opportunity of being heard when an administrative action results in civil consequences to a person or entity.

¶263

In State of Orissa v. Dr (Miss) Binapani Dei, a two-judge bench of this Court held that every authority which has the power to take punitive or damaging action has a duty to give a reasonable opportunity to be heard. This Court further held that an administrative action which involves civil consequences must be made consistent with the rules of natural justice:

¶264

“9 …. The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set-up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would therefore arise from the very nature of the function intended to be performed: it need not be shown to be super-added. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. That is a basic concept of the rule of law and importance thereof

¶265

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transcends the significance of a decision in any particular case.”

¶267

In Maneka Gandhi v. Union of India, a seven judge bench of this court held that any person prejudicially affected by a decision of the authority entailing civil consequences must be given an opportunity of being heard. This has been reiterated in a catena of decisions of this Court.”

¶268

In this background, admittedly, once the

¶269

Respondents have neither issued any prior notice

¶270

nor afforded a personal hearing before terminating

¶271

the petitioner from service on 12.03.2019, therefore,

¶272

the decision-making process stands vitiated for nonconforming to the inbuilt pre-requisites of natural

¶273

justice as mandated in Article 14 of the Constitution of

¶274

India and accordingly, the impugned order-action of termination based thereon cannot operate to the prejudice and disadvantage of the petitioner. Ordered accordingly.

¶275

TERMINATION AND REJECTION ORDERS UNTENABLE WHEN PETITIONER APPOINTED AGAINST VACANCY :

¶276

10. The first ground in the rejection orders

¶277

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¶278

dated 29.10.2020 [Annexure P-6], justifying the termination of service of the petitioner on 12.03.2019, as TGT [Medical] in GSSS Sinvi, Tehsil Anni, District Kullu [H.P.], is that the appointment of petitioner was not made against a vacancy.

¶279

The aforesaid plea of the Respondent No. 2-Director, Elementary Education, Himachal Pradesh

¶280

is contrary to the records, for the reason, that as per the Resolution dated 1.7.2013, Annexure P-1, passed by the School Management Committee, of GHS Sinvi [now GSSS], Tehsil Anni, District Kullu, two posts of Science Teachers [TGTs] were vacant in the said School and since the studies of the students were suffering therefore, the petitioner being B.Sc, B.Ed, upon selection {as per averments in the

¶281

writ petition, which has not been denied in the reply} was appointed/engaged as TGT (Med), against

¶282

one of the two available vacant posts on 01.07.2013 and continued to work and perform his job, duties

¶283

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¶284

and function to the knowledge of the RespondentsState Authorities till the abrupt termination of his service, illegally on 12.03.2019. Even a perusal of communication dated 30.10.2022 [Annexure P-10],

¶285

indicates that one post of TGT [Medical] was lying vacant in GSSS Sinvi since 09.09.2022, which fact has not been disputed by the State AuthoritiesRespondents also.

¶286

In these circumstances, the plea of the State Authorities-Respondents and the very basis

¶287

of the rejection orders that the appointment of the petitioner was without any vacancy is contrary to the records and the rejection passed by ignoring the relevant considerations, when, the appointment of the petitioner in 2013 was against a sanctioned vacant post of TGT (Med) on which he continued till his termination on 12.03.2019. Accordingly, the rejection orders dated 22.10.2020 [Annexure P-6] passed by ignoring material aspects, (availability of

¶288

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¶289

vacancy) vitiates the decision-making process, being perverse and therefore, the rejection orders cannot be permitted to operate against the petitioner. Ordered accordingly.

¶290

TERMINATION AND REJECTION ORDERS UNTENABLE WHEN PETITIONER IS ELIGIBLE AND QUALIFIED BY OPERATION OF THE RTE ACT (INCLUDING RTE AMENDED ACT) AND RTE RULES :

¶291

11. The second ground contained in the rejection orders dated 29.10.2020 [Annexure P-6] is that the petitioner did not qualify the Teachers Eligibility Test [TET], as required by norms, for the post of TGT (Medical) at the relevant time.

¶292

The aforesaid plea of the Respondent No 2 is devoid of any merit, for the reason, that in terms of the first proviso to Sub-Section (2) of Section 23 of the RTE Act [as inserted by the RTE Amending Act 24 of 2017] read with Sub-Rule

¶293

(2) of Rule 17 of RTE Rules a teacher in a School who does not possess the minimum qualifications prescribed in the RTE Act and Rules can acquire

¶294

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such minimum qualification(s) within a period of five years from the date of commencement of the RTE Act w.e.f. 1.4.2010.

¶296

Later, the Legislature inserted the Second Proviso to Sub-Section (2) of Section 23 of RTE Act , by virtue of Right of Children to Free and Compulsory Education [Amendment Act No 24 of 2017] notified on 10.8.2017, providing that every teacher appointed or in position as on 31^st March, 2015, who does not possess the minimum qualifications as laid down under sub-section (1), shall acquire such minimum qualifications within a period of four years from the date of commencement of the Right of Children to Free and Compulsory Education (Amendment) Act, 2017 (24 of 2017), which was notified on 02.08.2017. Meaning thereby, that a Teacher who was appointed or was in position as on 31^st March, 2015, was permitted to acquire the prescribed qualifications within a period of four years from the date of

¶297

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¶298

commencement of the Amended RTE Act i.e. from 09.08.2017 and prior to 08.08.2021.

¶299

In above backdrop of the RTE Act and the Amended RTE Act of 2017 and the RTE Rules, the petitioner having passed B.Sc. in March 2010 and B.Ed. in April, 2013 was appointed as TGT [Medical] on 01.07.2013 against sanctioned vacant post, by a resolution by the Local SMC. Pursuant to appointment, the petitioner joined in GHS Sinvi (now GSSS Sinvi) and during service, the petitioner passed the Teachers Eligibility Test [TET] on 12.10.2017, Annexure P-3 (colly) and by virtue of the Right of Children to Free and Compulsory Education Act, 2009 which came into force w.e.f. 01.4.2010 and the amendment carried out to the Right of Children to Free and Compulsory Education (Amendment) Act, 2017 (24 of 2017), the petitioner {being an in-service teacher as on 31.03.2015} possessed and acquired the Teachers Eligibility Test

¶300

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¶301

(TET) Examination on 12.10.2017 and on acquiring this Qualification, the petitioner gained eligibility

¶302

to hold and continue on the said post, by virtue of the Statute and Statutory Rules and in view of this, the Respondents-State Authorities permitted

¶303

the petitioner to continue on the post of TGT (Med) in GHS(now GSSS Sinvi), but the abrupt termination

¶304

of the petitioner on 12.03.2019 despite being eligible is perverse. Moreover, in order to cope up with non-availability of qualified teachers, even the RTE Act and new norms did not provide for termination

¶305

of those teachers who were either ineligible at the time of initial appointment/engagement or on the date of commencement of the RTE Act but at the same time, the legislature, in larger public interests

¶306

by virtue of the RTE Act, and the RTE Amended Act of 2017 permitted teachers who were appointed

¶307

and were in position as on 31.03.2015 to possess and acquire the prescribed qualifications and on

¶308

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¶309

acquiring prescribed qualifications, such teachers were

¶310

deemed to be eligible and were conferred a right to hold the post and to continue as teachers. In the instant case, once the petitioner was appointed/engaged as TGT (M) on 10.07.2013 against vacant post but during service, the petitioner possessed-acquired the prescribed-required TET qualification on 12.10.2017 and gained eligibility for holding the post and to continue as teacher i.e. TGT(M), which was held by him since 10.7.2013, then, the action of the Respondents in terminating the service abruptly on 12.03.2019 and the plea of the Respondent No.2 in passing the rejection orders on rejection orders dated 29.10.2020 [Annexure P-6] that the petitioner was not qualified is factually incorrect. Further, once the State Authorities have permitted the similarly placed teachers, as TGT (M) and in other categories, to continue in service who have improved their qualifications by virtue of the operation of the RTE

¶311

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¶312

Act as referred to above and have extended the

¶313

salary under Grant in Aid also then, the denial of continuity in service to the petitioner and salary under grant in aid on the same analogy as given to others is discriminatory and amounts to treating “equals as unequal”, which cannot be permitted to stand the test of judicial scrutiny.

¶314

11(i). In a similar matter the Division Bench of this Court, in CWP No.2259 of 2017, titled as Rajeshwari Devi versus State of Himachal Pradesh & others along with connected matter, decided on 26.03.2018 directed continuance of PTA [now SMC] Teacher, who was not initially qualified, but had acquired the required qualification in terms of the RTE Act and RTE Rules by directing respondents to re-engage the aforesaid Teacher, at the same station where he was initially appointed as Teacher under SMC, in the following terms:-

¶315

“4. The law on the point is no more res integra as a Single Bench of this Court in CWP No. 2719 of 2015, titled Surjit Singh Vs.

¶316

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¶317

State of H.P. and others, while deciding similar issue and taking into consideration the decision of Government taken subsequently whereby the PTA teachers were even granted time to acquire requisite qualification, even as in service candidate, along with the release of grant in aid in their favour, held that the disengagement of the petitioner Surjit Singh therein is illegal and consequently directed the respondent-State to allow him to continue as PTA teacher and also to release the grant in aid in his favour.

¶318

The issue raised by respondents-State that petitioner(s) were engaged by PTA itself and were to be paid out of its own funds, was considered again by a Division Bench of this court in judgment Annexure P-7 (colly) in Rajeshwari Devi’s case, whereas Annexure P-6 (Colly) in the connected writ petition. Therefore, on this also, the petitioner(s) cannot be discriminated against similarly situated persons.

¶319

Therefore, we dispose of both the writ a petitions with a direction to 2nd respondent to consider the matter qua release of grant in aid in favour of the petitioners in the light of observations hereinabove and the law laid down in the judgments cited supra within four weeks from the date of production of a copy of this judgment along with that of judgments referred to herein by the petitioner(s) before the said respondent within two weeks. It has been brought to our notice that both petitioners have been removed from the service. In the light of the observations made herein above, there shall be a direction to the respondentsState to reengage them forthwith at

¶320

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¶321

the stations where they both were initially appointed as PTA, as the post of Physical Education Teacher and Drawing Master are lying vacant.”

¶322

11(ii). While dealing with a similar situation, a

¶323

Co-ordinate Bench of this Court has directed of re-engagement on acquiring/improving qualification in terms of the Recruitment and Promotion Rules and RTE Act/Rules as well as RTE Rules and by releasing

¶324

the Grant-in-Aid in CWP No.379 of 2018, Vinod Kumar versus State of Himachal Pradesh & others, decided on 17.07.2018 [Annexure P-8], in the following terms:-

¶325

“6. The another point raised in reply to writ petition that he was not qualified when engaged as Shastri on PITA basis is also arbitrary for the reason that as per own policy of the Government, such PTA, who were not qualified at the time of their engagement, were given opportunity to improve their qualification and now such extension is available to PTA teachers, who were not eligible, till the year 2021. We have also decided a similar writ petition bearing No. 2259 of 2017 titled Rajeshwari Devi vs. State of H.P. and others and its connected petition CWP No. 2316 of 2017 titled Roshan Lal vs. State of H.P. and others vide judgment dated 26.3.2018. As a matter of fact the point in issue in this petition is squarely covered in favour of the petitioner by the judgment ibid.

¶326

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¶327

Therefore, removal of petitioner from service as Shastri on PTA basis illegal and such action on the part of respondent/State as such is hereby quashed and set aside. The writ petition is allowed.

¶328

The respondents are directed to re-engage the petitioner forthwith as Shastri PTA basis and he is also entitled to all admissible benefits including the release of Grant-in-Aid as per GIA Rules 2006 upto 31.10.2015. The due and admissible arrears be paid to him within months from today. The period from 01.11.2015 till his re-engagement though shall be considered for the of continuity and seniority etc., however without any payment of back wages. The respondent/State shall continue sanction and release the Grant-in-Aid in future also in his favour. The writ petition stands disposed of.

¶329

The regular incumbent working in Government Middle School, Gwalpur, Tehsil Karsog, District Mandi may be transferred to any other school where vacant post is lying including Government Middle School, Sarahan, P.O. Sarahan, Tehsil Karsog, District Mandi, where as the averments in rejoinder, the post of Shastri is lying vacant.”

¶330

11(iii). While dealing with the issue regarding the continuity of a TGT, who acquired-improved the qualification and while examining claim for salary under grant in Aid, the Division Bench of this Court in CWP No. 1045 of 2018, titled Jagmohan Sharma versus State of Himachal

¶331

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¶332

Pradesh & others decided on 11.09.2018 has held

¶333

as under:

¶334

“2. Petitioner initially was appointed as Trained Graduate Teacher in Government Senior Secondary School, Doghri, Tehsil Sundernagar, District Mandi, H.P. on 28.10.2009. At that time, his educational qualification was B.A, B.Ed. The certificate is annexure P-2. This even is the educational qualification prescribed for the post of Trained Graduate Teacher, however with a rider that candidate must have 45% aggregate marks in graduation. The petitioner admittedly is not having 45% marks in aggregate in B.A. The facts however remain that his qualification is BA, B.Ed. It is not only the petitioner alone, but other persons were also appointed as teachers on PTA basis, who were not qualified as per the guidelines. It is for this reason, the respondent-State had taken a decision Annexure P-7 to the rejoinder (wrongly mentioned as Annexure P-6), granted thereby time to such teachers who were not having the essential qualification to acquire the same within the time granted .

¶335

As per Annexure P-7 Colly, the time for acquiring the requisite qualification by such teachers, has been extended till 16.8.2021. Therefore, the petitioner is also entitled to take benefit of the Government decision referred herein above and may improve his qualification on or before the cut of date i.e. 16.8.2021.

¶336

In a similar matter CWP No. 379 of 2018, titled Vinod Kumar Vs. State of H.P. (Annexure P-8 with the rejoinder), decided by us recently on 17.7.2018, the respondent

¶337

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¶338

State has been directed to re-engage the petitioner therein as Shastri on PTA basis and also to release grant-in-aid for the period he rendered his service and in future also . 5. The point in issue involved in this writ petition, is squarely covered by the judgment Annexure P-8 cited supra. We therefore, dispose of this writ petition with a direction to 2nd respondent to consider the case of the petitioner in the light of judgment Annexure P-8 and release grant-in-aid in his favour for the past service, he rendered i.e. up to 31.8.2018, within two months. The respondent shall also continue to release the grant-in-aid in his favour in future also….”

¶339

In the backdrop of the above position, once the petitioner being B.Sc. and B.Ed. was

¶340

appointed as TGT (M), against a vacant post on 10.7.2013 by the SMC in GHS Sinvi (now GSSS

¶341

Sinvi, District Kullu) and once during service, the petitioner possessed-acquired the TET Examination on 12.10.2017 and in terms of the RTE Act including

¶342

the RTE Amended Act, the RTE Rules and the R & P Rules and even after acquiring the prescribed -required qualification (TET), the Respondents have permitted the petitioner to continue then, the abrupt

¶343

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¶344

disengagement on 12.03.2019 and resultant rejection

¶345

orders dated 29.10.2020, Annexure P-6, in treating

¶346

the petitioner as ineligible-unqualified for want of TET Examination is vitiated by non-application of mind, by ignoring the relevant facts, and therefore, the decision making process being perverse is vitiated ; and besides this, the impugned action in treating the petitioner as ineligible/unqualified amounts to depriving the petitioner {who is an in-service teacher as on 31.03.2015 and who by virtue of the Statue i.e. the RTE Act and RTE Rules was enabled to

¶347

improve or to acquire or possess the prescribed qualification} of the benefits of “having gained eligibility”

¶348

and to continue as a teacher i.e. as TGT (Med) ; and the inaction of the State Authorities amounts to curtailing and denying the benefits and advantages which had accrued to the petitioner under the Statute and the Statutory Rules ; and moreover, when, the impugned action-order {Annexure P-6} cannot negate

¶349

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¶350

the eligibility conferred by the beneficial provisions of the Statute in favor of the petitioner ; and the impugned action-order, Annexure P-6 being dehors the Statute i.e. the RTE Act and RTE Rules cannot operative to the prejudice and disadvantage of the petitioner ; and when, the impugned order, Annexure P-6, is wholly erroneous and contrary to the mandate

¶351

of law of this Court in the cases of Rajeshwari Devi, Vinod Kumar and Jagmohan Sharma [supra] which recognizes eligibility on an in-service teacher on improving or possessing or acquiring the required qualification(s) and also permits such SMC provided teachers to continue and moreover when, the Learned Counsel for petitioner submits that the State authorities have implemented these judgement, which fact is not disputed by the Respondents also ; further, once the Respondents No 1 and 2 have permitted the similarly placed teachers, who were initially not qualified but during service had acquired and improved prescribed

¶352

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¶353

qualifications then, upon acquiring of eligibility such teachers were granted the salary through grant in aid from the date of their respective initial appointment therefore, the petitioner cannot be singled out and discriminated, which certainly amounts to treating “equals as unequal”. Accordingly, the impugned actionorders, including the abrupt disengagement as well as rejection orders dated 29.10.2020, Annexure P-6, in still treating the petitioner as ineligible and notqualified, despite having acquired the eligibility within the permissible time line provided under the Statute then, the impugned order and actions cannot stand the test of judicial scrutiny and the same is quashed and set aside.

¶354

TERMINATION AND REJECTION BASED ON CLAUSE 9 OF SMC POLICY ILLEGAL :

¶355

12. Rejection order dated 29.10.2020, Annexure P-6, justify the termination dated 12.03.2019 by

¶356

relying upon Clause-9 of SMC Policy dated 17.07.2012 that services of SMC Teacher shall automatically

¶357

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¶358

terminate when, a regular/contract teacher is appointed /transferred by Government and since the department

¶359

had appointed one Sh Rajesh Kumar as TGT [Med], on contract basis, as per the Order dated 05.03.2019 [Annexure R-1] in place of petitioner and the said

¶360

incumbent joined on 12.03.2019, Annexure R-2, the termination was ordered.

¶361

The above plea of the respondents in

¶362

terminating the petitioner from service on 12.03.2019 and then in issuing the rejection orders dated 29.10.2020 [Annexure P-6] by invoking Clause-9 of

¶363

the SMC policy, on joining of a regular/contract incumbent [Rajesh Kumar] in place of the petitioner, is contrary to the communication dated 23.4.2018 {Taken on record}, which permits the SMC provided teachers to continue for the academic session 20182019, as under:

¶364

Clause 10 of SMC Policy

¶365

“In the next academic session, a fresh selection process will be conducted. In no case, the SMC provided teacher earlier be allowed to continue

¶366

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¶367

after completion of academic session nor after the joining of regular/contract teacher appointed by the Government.”

¶368

Communication dated 23.4.2018

¶369

Copy of letter No.EDN-HE(19)B(1)14/2012-SMCGen dated 10/04/2018 received from DEHP Shimla-1 and copy to All the Dy. Director Higher Education in HP.

¶370

Subject: Regarding continuation of services of SMC provided teacher in Elementary /Higher Education Department of H.P. for the academic session 2018-19.

¶371

I am directed to refer to the subject cited above and to convey approval of the Government to continue the services of already engaged SMC provided teachers for the academic session 2018-19 in Elementary/Higher Education Department in relaxation of Clause 10 of SMC Policy with immediate effect.

¶372

You are, therefore, requested to take further necessary action accordingly.

¶373

Sd/Deputy Secretary (Ele. Edu.) to the Government of Himachal Pradesh.”

¶374

12(i). The practice of appointing and in posting

¶375

regular/contract incumbents against the PTA and

¶376

SMC provided teachers, despite the fact that numerous

¶377

vacant posts were available at other places has been deprecated by the Division Bench of this Court in

¶378

CWPIL No. 157 of 2017 , as under:-

¶379

“A n endeavour be made by the State to fill

¶380

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¶381

up the vacant posts of teachers on regular basis within a period of one year and in the interregnum on contract basis within a period of six months. It is clarified that till the posts in issue are filled up by way of appointment of teachers either on contract or regular basis, present petitioners shall be permitted to continue to serve.”

¶382

12(ii). Moreover, while dealing with an issue as to whether a teacher appointed/engaged by the

¶383

PTA [now SMC], could be disengaged on appointment /posting of a regular/contract teachers, besides other issues therein, the Division Bench of this Court has held in CWP No. 277 of 2017, Subhash & Ors. versus State of HP & Ors alongwith connected

¶384

matters, decided on 30.10.2018 as under:-

¶385

“8. This Court in case No. CWPIL No. 157 of 2017 titled Court on its own motion Vs. State of H.P. & Ors., has directed the respondent - State to come out with a time schedule to fill up all the vacant posts in various schools of the State on regular/contract basis . Accordingly, subject to orders to be passed in the above mentioned writ petition i.e. CWPIL No. 157 / 2017, all these writ petitions are disposed of by directing that an endeavour be made by the State to fill up the vacant posts of teachers on

¶386

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¶387

regular basis within a period of one year and in the interregnum on contract basis within a period of six months. It is clarified that till the posts in issue are filled up by way of appointment of teachers either on contract or regular basis, present petitioners shall be permitted to continue to serve. It is further clarified that the petitioners shall be entitled to participate in the process of selection for appointment on contract/regular basis subject to eligibility. It is made clear that continuation of the services of the petitioners as SMC appointees shall not confer any preferential right of appointment upon them.”

¶388

12(iii). While upholding the SMC Policy and the right of SMC teachers in the context of the RTE

¶389

Act and RTE Rules, the Hon’ble Supreme Court, in Civil Appeal No 3815 of 2020, State of Himachal Pradesh versus Kuldeep Kumar, decided on 24.11.2020, has mandated that the appointments

¶390

made by SMCs hold good for the purposes for which the said appointments were made till the regular appointments are undertaken in accordance with 2009

¶391

Rules, in the following terms:-

¶392

“17. These stipulations ensure elements of fairness and transparency. Thus all the appointments of SMC teacher were pro-

¶393

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¶394

tem or temporary arrangements and in any case as accepted by the petitioner in their affidavit in reply filed in this Court. Regular Recruitment Process is being undertaken by the State as that the petitions have also participated in such regular has fairly accepted that the State will make regular appointment periodically and at least every year so that the fresh talent emerging in the State has sufficient avenues and opportunities. This stand will sufficiently take care of the apprehension that the State may not make regular recruitment and thereby deny adequate opportunities to the concerned candidates.

¶395

18. In the circumstances, we do not find any infirmity in issuance of notification dated 17.07.2012 and in framing of the Policy permitting SMCs to appoint teachers at local level to tide over the difficulties. It must be stated here that even in 2009 Rules, a provision has been in the form of Rule 15 A to make contract appointments, through the Selection Process stipulated therein is of a different dimension and character.

¶396

We therefore, allow these appeals and set aside the judgment and order passed by the High Court. It is directed that the appointments made by SMCs in terms of Notification dated 17.07.2012 hold good for the purpose for which said appointments were made till regular appointments are undertaken in accordance with 2009 Rules.”

¶397

12(iv). The SMC Policy dated 17.07.2012 was

¶398

applied so as to cover the Schools in Tribal and

¶399

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¶400

Difficult areas of the State but since the shortage of teachers aggravated and the studies of Children were affected, therefore, the State Authorities widened

¶401

the applicability of the SMC Policy as per Notification dated 12/14.08.2016 to cover all schools throughout the State. Based on the judgements in cases of Subhash and Kuldeep Kumar (supra) the State Authorities, amended the SMC Policy on 21.09.2022 [Annexure P-7] by inserting a provisio below existing Clause 9 of the SMC Policy, as under:-

¶402

“The Governor, Himachal Pradesh is further pleased to delete Clause-10 and to add a Proviso to Clause-9 of the SMC Policy notified by this Department Notification No. EDN-C-A(4)1/2011, dated 17^th July, 2012, as under:-

¶403

“ Provided that the regular / contract teachers shall be posted preferably against the clear cut vacancies where the SMC teachers are not in position . After all the clear cut vacancies are filled up only then the posting may be made against the SMC teachers .”

¶404

In the backdrop of the above discussion,

¶405

though the teachers appointed under SMC Policy [earlier PTA Policy] have a right to continue till

¶406

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¶407

posts in issue were filled up by way of appointment of teachers either on contract or regular basis. Meaning

¶408

thereby, that the SMC teachers would continue till clear vacancies were filled from contract and regular appointees and such contract-regular incumbents

¶409

were not to be posted against the SMC teachers, for the reason that posting such incumbents against SMC provided teachers will not only aggravate the shortage of teachers but will also defeat the very spirit of SMC Policy and will impede the object of the RTE Act and Rules which necessitates that all school shall have teachers in terms of the teacher -pupil ratio prescribed by the Statute. Further, the

¶410

action of the State Authorities in appointing/posting the contract-regular appointees against the SMC provided teachers by resorting to pick and choose fashion, shall definitely lead to an anomalous and

¶411

whimsical situation where, a similarly placed and even a junior TGT (Medical) provided by SMC is

¶412

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¶413

retained in a school whereas the petitioner, a senior

¶414

TGT (Medical) has been made to face the wrath of improper exercise of discretion, leading to abrupt termination. In these circumstances, the invocation of Clause 9 for abruptly disengaging the petitioner from service as TGT (Med) on 12.3.2019 despite being senior and eligible while retaining the several similarly placed and even junior incumbents as TGT (Medical) in other schools amounts to improper exercise of discretion, is highly anomalous, is also unreasonable and arbitrary and therefore, in these circumstances, the abrupt disengagement and the rejection orders needs to be interdicted by this Court and accordingly, the impugned action and the impugned order (Annexure P-6) is deprecated and is set-aside.

¶415

RE-ENGAGEMENT AND SALARY UNDER GRANT IN AID TO PETITIONER WHEN EXTENDED TO OTHERS:

¶416

13. Needless to say that the State Government

¶417

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¶418

notified the SMC Policy on 17.7.2012, initially covering

¶419

tribal and difficult areas, but once the aforesaid Policy as extended and made applicable for schools situated in non-tribal and non-difficult areas throughout the State as per Notification dated 16.08.2014. In this background, once the State Authorities have extended benefit of continuity in service and also granted salary under Grant-in-Aid to those teachers who were appointed even prior to the implementation of the SMC Policy and have therefore, the petitioner, who was appointed as TGT [Medical] in GHS [Now GSSS] Sinvi, Tehsil Anni, District Kullu on 01.07.2013, through the SMC and his services were utilized by the Respondents till 12.03.2019, therefore, the petitioner is entitled for re-engagement and salary under Grant-in-Aid, as given to others.

¶420

13(i). While dealing with the issue of continuity and salary under grant-inaid to a teacher, engaged

¶421

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¶422

prior to the applicability of SMC policy to schools in the non tribal-non difficult areas, a Co-ordinate Bench of this Cout in CWP No. 2467 of 2015, titled as Villam Singh versus State of HP &

¶423

Ors., decided on 7.4.2016, as under:-

¶424

“2. In nut shell, facts giving rise to this petition are that a post of Lecturer (Political Science) was lying vacant for quite some time in Government Senior Secondary School, Dhar Chandna. Since the School Management Committee (for short ‘SMC’) was competent to appoint the teachers where the posts.

¶425

It would be evident from the perusal of the contents of the aforesaid reply that the only reason to deny the petitioner grant-in-aid is that he had been engaged prior to the notification dated 16.8.2014 read with SMC policy dated 17.7.2012 and, therefore, cannot claim the benefit under the SMC policy. It is not at all their case that the petitioner’s appointment is any manner illegal, or contrary to law or that he is not qualified. Mere fact that were lying vacant, they in order to ensure that the studies of the students do not suffer, offered appointed to the petitioner to the post of Lecturer (Political Science) vide appointment letter dated 5.5.2012. the area where the petitioner was teaching was notified only on 16.8.2014, would at best, give fresh cause to the petitioner to lay claim to the grant in aid prospectively from the date of notification i.e. 16.8.2014 and not retrospectively when

¶426

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¶427

the original notification was issued on 17.7.2012, which admittedly did not cover the school and area where the petitioner was teaching.

¶428

Having said so, I find no difficulty in concluding that the action of the respondents in not paying grant-inaid to the petitioner with effect from 16.8.2014 is illegal and arbitrary and, therefore, the same cannot be countenanced or sustained.

¶429

In view of above discussion, present petition is allowed and the respondents are directed to release grant-in-aid in favour of petitioner in accordance with the rules, with effect from 20th September, 2014.”

¶430

The judgment in Villam Singh [supra] was assailed by the State Authorities in LPA No 53 of 2018, titled as State of Himachal Pradesh and others Versus Sh. Villam Singh, which was dismissed on 26.11.2018. Even the SLP i.e. Petition(s) for Special Leave to Appeal (C) No(s) 19103 / 2019, titled as The State of Himachal Pradesh & Ors. versus Villam Singh was dismissed on 09.08.2019.

¶431

13(ii). While extending benefit of continuity and grant in aid to SMC provided teachers, who were

¶432

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¶433

appointed by way of a resolution prior to the

¶434

introduction of SMC policy, the Coordinate Bench of this Court has extended these benefits, in CWP No. 5671 of 2023, titled as Sandeep Kumar versus State of HP & Ors., decided on 17.10.2023, as

¶435

under:-

¶436

Precisely, the facts of the case as emerge from the record are that petitioner herein was appointed as Physical Education Teacher (PET) in GSSS Dhol Ka Jubbar, District Solan, on the basis resolution passed by the SMC on 13.5.2011 and since then, he has been working continuously. On 17.7.2012, Government of Himachal Pradesh vide notification dated 17.7.2012, framed policy to engage teachers from the SMCs purely on period basis in the Elementary/Higher Education Departments of Himachal Pradesh in tribal/difficult areas. Besides above, State of Himachal Pradesh also promulgated grant-in-aid rules in the year, 2014, however, fact remains that petitioner though was working since year 2011, but was not released grant-inaid as per grant-in-aid rules, which were originally promulgated in the year, 2006, but were extended from time to time. In the aforesaid background, petitioner has approached this court in the instant proceedings, praying therein for reliefs as have been reproduced herein above.

¶437

The grouse of the petitioner, as has been highlighted in the petition and further canvassed by Mr. Onkar Jairath, learned counsel for the petitioner is that all the

¶438

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¶439

similarly situate persons, who were initially appointed by the SMCs are being released grant-in-aid, but for some unknown reasons, such benefit is not being extended to the petitioner, as a result of which, great prejudice is being caused to him. While making this Court peruse the judgment dated 7.4.2016, passed by the coordinate Bench of this Court in CWP No. 2467 of 2015 titled Villam Singh v. State of Himachal Pradesh and Ors., learned counsel for the petitioner submits that case of the petitioner is covered with the aforesaid judgment and as such, petitioner would be content and satisfied in case a direction is issued to the respondents to grant relief in terms of the aforesaid judgment, which has otherwise attained finality. 4. Vide order dated 27.9.2023, this Court specifically called upon the respondent department to file reply, failing which respondent No.2 was ordered to remain present in the Court. Though reply to the petition has not been filed till date, but Director, Elementary Education (respondent No.2) has come present. Though Director, Elementary Education has explained the reasons for not filing the reply and prayed for some more time, but having taken note of the fact that since 22.8.2023, matter is being adjourned, enabling the respondents to file reply, this Court sees no reason to adjourn the matter, especially when learned Additional Advocate General is unable to dispute that issue sought to be raised in the instant petition, already stands adjudicated vide judgment dated 7.4.2016, passed by the coordinate Bench of this Court in CWP No. 2467 of 2015, titled as Villam Singh vs. State of Himachal Pradesh and others, which has been further upheld by the Division Bench of this

¶440

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¶441

Court vide judgment dated 26.11.2018, passed in LPA No. 53 of 2018 . It is also not in dispute that SLP filed by the Respondent-State against the aforesaid judgment passed by the Division Bench of this Court also stands dismissed.

¶442

Otherwise also, department is under obligation to extend the benefit of judgment passed in Villam Singh’s case (supra) to the petitioner, who is similarly situate. At this stage, it would be apt to take note of the following paras of the judgment passed by the Division Bench of this Court while dismissing LPA No. 53 of 2018, filed by the respondents-State.

¶443

“8. Whether the respondent was appointed as per the procedure prescribed in a Policy which saw the light of the day after his appointment, is essentially a question of fact. There ought to have been appropriate pleadings from the side of the appellants to which respondent could be given an opportunity to submit his counter. No such factual plea was taken in the reply or pleaded before the learned Single Judge. We are thus of the view that such a plea cannot be allowed to be raised at this stage. That apart, the respondent admittedly possessed the requisite qualification for the subject post. The object of the SMC Policy for payment of Grantin-Aid to the teachers appointed in tribal/difficult areas is to give an incentive to the educated and qualified young persons to serve in these areas. The Policy no doubt contemplates a procedure for appointment, but then such procedure cannot be applied to the appointments which have already been made well before the Policy came into existence. The object of paying Grant-in-Aid being an incentive

¶444

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¶445

to retain qualified teachers in tribal/ difficult areas, no self defeating objection should be allowed to sustain.

¶446

We are thus of the view that there is nothing to fault with the appointment of the respondent as SMC teacher for the limited purpose of receiving Grant-inAid. No case to interfere with the order under appeal is thus made out. The appeal is dismissed on both counts i.e. on limitation as well as merits. In view of the order passed herein above, the appeal stands disposed of, so also pending miscellaneous applications including the application for condonation of delay.”

¶447

Having perused judgment sought to be relied i.e. Villam Singh (supra) vis-à-vis issue raised in the petition, this Court finds that issue raised in the instant petition already stands adjudicated in the Villam Singh case supra and as such, no prejudice, if any, shall be caused to either of the parties, if a direction is issued to the respondents-State to grant similar benefit to the petitioner. 7. Consequently, in view of above, present petition is disposed of by directing that the directions contained in CWP No. 2467 of 2015 titled Villam Singh v. State of Himachal Pradesh and others, decided on 7.4.2016, shall mutatis mutandis also apply to the present case . In case, petitioner is found to be similarly situate to the petitioner in the aforesaid judgment, he would be similar benefits. Needless to say, authority concerned while doing the needful in terms of the instant order shall afford an opportunity of hearing to the petitioner and pass detailed speaking order thereupon. Petitioner would be entitled for grant-in-aid from 20.9.2014.

¶448

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¶449

Liberty is reserved to the petitioner to file appropriate proceedings before appropriate court of law, if he still remains aggrieved. All pending applications stand disposed of.

¶450

13(iii). In a similar matter, akin to the instant

¶451

case, where an incumbent was appointed by the SMC by a resolution (16.5.2013) even after coming into force of the SMC Policy (17.7.2012), the Division

¶452

bench of this Court in LPA No 111 of 2023, titled as State of Himachal Pradesh versus Shyama Rana,

¶453

decided on 26.7.2023, held as under :-

¶454

The case of the respondent/ petitioner before the learned Single Judge was that she was engaged as a Language Teacher by the School Management Committee of Government Senior Secondary School, Timbi, Tehsil Shillai, District Sirmaur, H.P. vide resolution dt. 16.05.2013 . A notification was issued by the State on 17.07.2012 for engaging teachers through School Management Committees (SMCs), in terms whereof, the Grant- in-aid was payable to the teachers appointed by the School Management Committee, provided that the appointee was fulfilling the educational qualifications for appointment to the post as prescribed by the State from time to time. According to her, she was fulfilling the educational

¶455

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¶456

qualifications prescribed under the Recruitment and Promotion Rules for the post at the time of her engagement.

¶457

As the Department was not allowing her to continue for the Session 2014 -15, feeling aggrieved, she filed OA No. 4464 of 2015 , which was disposed of by the learned Tribunal vide order dt. 24.11.2015, directing the respondentsState to allow the petitioner to continue on the same terms and conditions on which she was engaged. Thereafter, in terms of order dt. 01.02.2016, Deputy Director of Elementary Education, District Sirmaur at Nahan, allowed her to continue as a Language Teacher in the School in issue. According to her, the Department was not releasing Grant-in-aid in her favour nor was framing a policy with regard to the teachers appointed under local fund/ Students Welfare Fund. Feeling aggrieved, she filed the petition, praying for reliefs already enumerated hereinabove.

¶458

Learned Single Judge has allowed the writ petition by holding that the case of the petitioner was squarely covered by the judgment passed by this Court in CWP No. 2467 of 2015, titled as Villam Singh vs. State of H.P. and others, wherein the directions were issued to release Grant-in-aid in favour of the petitioner therein who was similarly situated as the petitioner. Learned Single Judge further held that the judgment passed in CWP No. 2467 of 2015 was confirmed in LPA No. 53 of 2018 and even the Special Leave Petition

¶459

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¶460

preferred by the State against the judgment of Hon’ble Division Bench before Hon’ble Supreme Court, was dismissed. Learned Single Judge also observed that it was not the case of the State that there was no necessity of appointing Language Teacher in the school concerned and the appointment through School Management Committee was on account of lapse of the Department to cater to the needs of the students. Learned Single Judge held that as the State failed to provide teachers to teach students and rather SMC was allowed to appoint such teachers, therefore, when responsibility of paying to the teachers arose, the State could not be allowed to wash its hands off on the plea that teachers were engaged by SMC and not by the Department and therefore, they were not the responsibility of the Department. Accordingly, learned Single Judge allowed the writ petition by directing the State to release Grant-in-aid in favour of the petitioner as per relevant Rules w.e.f. 16.08.2014.

¶461

Having heard learned Additional Advocate General as well as learned Counsel for the respondent-petitioner and having carefully gone through the judgment passed by learned Single Judge as well as the writ record, we do not find any reason to interfere with the findings returned by learned Single Judge. This is more so for the reason that the only argument raised before us on behalf of the State was that

¶462

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¶463

the appointment of the respondentpetitioner in the School was not by following the procedure prescribed under the relevant Recruitment and Promotion Rules. In our considered view, the need to appoint teachers like the respondent-petitioner through SMC was a result of inaction on the part on the State to fill up the posts of teachers in the Schools as per Recruitment and Promotion Rules. Besides this, the school in which the respondent- petitioner was appointed as a Language Teacher was not a private school but a government school The Department acquiesced to the appointment of the teachers through SMC and thereafter when it came to paying the Grant-in-aid etc., the State/Department turned its back by disowning such like teachers on the ground that they were appointed by the SMC. Learned Single Judge rightly held that it was the duty of Education Department, being functionary of the State, to provide sufficient teachers in the school which was opened by the State. Learned Single Judge rightly held that on account of lapse or failure on the part of the State to provide teachers, SMCs were constrained to appoint persons like the petitioner to cater to the needs of the students and the State allowed the SMCs to make such like appointments, therefore, the act of the State of denying payment of Grant-in-aid and other emoluments equivalent to similarly situated

¶464

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¶465

persons as the respondent-petitioner, for the reasons assigned by the Department was unwarranted. We fully concur with the reasoning assigned by the learned Single Judge because, as observed hereinabove, the primary reason for appointment of the petitioner as a Language Teacher through SMC was inaction on the part of the State / Department to appoint regular teacher as per Recruitment and Promotion Rules. The State cannot be allowed to shun away from its duty to pay to the respondentpetitioner the Grant-in-aid as well as other emoluments as were payable to the similarly situated persons . This is more so for the reason that during the course of hearing, learned Additional Advocate General could not dispute the fact that the petitioner otherwise was similarly situated as Villam Singh, relying upon the judgment in whose case, the relief was granted to the respondent-petitioner by the learned Single Judge.

¶466

Accordingly, in view of above discussion, as we do not find any merit in the present appeal, the same is accordingly dismissed.

¶467

In the above background, it is pertinent

¶468

to note that once the State Authorities, have extended

¶469

benefit of continuity as well as salary through the Grant-in-Aid to the teachers provided by the SMCs

¶470

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¶471

who had acquired and improved qualifications during

¶472

service ; who were appointed against sanctioned post to cope up with the need for teachers in a school in the interests of students though without following the procedure and the department-State Authorities had acquiesceised to such appointment/continuance irrespective of the fact whether they were appointed

¶473

before or after the coming into force of SMC Policy on 17.7.2012 (for tribal-difficult areas) and 16.8.2014 (other areas) and their services were utilized by

¶474

the department so as to meet out the shortfall and dearth of regularly appointed teachers so as to attain the object of the RTE Act in the larger interests of students and the State, based on the judgements

¶475

passed in the cases of Rajeshwari, Vinod Kumar, Jagmohan Sharma, Villam Singh, Sandeep Kumar,

¶476

Shyama Rana and other judgements or otherwise in similar eventualities, then, the petitioner who was appointed as TGT [Med}, in GHS Sinvi (now GSSS),

¶477

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¶478

Tehsil Anni, Kullu} through SMC on 01.07.2013 and had worked continuously since his joining till acquisition of qualification of TET as required by the RTE Act and Rules and the State Norms on 12.10.2017 and the Respondents have utilized his services even thereafter till the abrupt termination of his services on 12.03.2019, then, the disengagement of the petitioner from service and resultant rejection orders Annexure P-6 are uncalled for. The respondents cannot singled out and discriminate the petitioner by denying reengagement with continuity in service

¶479

and salary under grant in aid, as a TGT [Medical] in the government school in which he had been run appointed or in any other school being run by the Respondents when, numerous vacant posts are available and once the State Authorities have accorded continuation in service and released the salary under grant in aid to many other similarly placed and even junior SMC provided teachers then,

¶480

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¶481

the petitioner deserves similar treatment in order

¶482

to avoid discrimination and to obviate any violation of “equals being treated unequally”, as mandated in Articles 14 and 16 of the Constitution of India.

¶483

Accordingly, the abrupt disengagement as well as impugned rejection orders dated 29.10.2020, Annexure P-6, does not satisfy the judicial conscience of this Court and accordingly, the impugned action and orders are set-aside and the petitioner deserves to be re-engaged as TGT [Medical] and granted the salary under grant-in-aid by the respondents.

¶484

RIGHT OF RE-ENGAGEMENT OF PETITIONER IN VIEW OF ACQUIESCENCE OF RESPONDENTS:

¶485

14. Another aspect of the matter needs to be

¶486

taken note of in the instant case. Once petitioner was appointed as a TGT [Medical] on 01.07.2013,

¶487

against a sanctioned vacant post, through the SMC

¶488

and the Respondents-State Authorities had permitted

¶489

the petitioner to continue and perform the work and duties as were entrusted to him by the school

¶490

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¶491

authorities in the aforesaid government school and during service in the said school, the petitioner had acquired-passed the Teachers Eligibility Test- TET Examination on 12.10.2017 and even thereafter the Respondents utilized the services of the petitioner by permitting him to continue and work as TGT (Med) continuously till his abrupt termination on 12.03.2019, then, in this background, once the State Authorities have utilized the services of the petitioner for about seven long years for their own cause then, it does not lie in the mouth of the State Authorities to deny benefits of reengagement, continuity in service and salary under the Grantin-Aid to the petitioner. Having utilized the services of petitioner for seven long years, the State Authorities are estopped from denying benefits of reengagement, continuity in service continuity and salary under grant in aid when, the Respondents have extended these benefits to other many other similarly placed

¶492

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¶493

PTA/SMC teachers. The exploitative practice of the State Authorities in utilizing the services of petitioner

¶494

for seven long years but in denying salary under grant in aid, on the same analogy, as given to other SMC teachers working in government schools throughout the state amounts to begaar and this exploitative practice has been deprecated by the Co-ordinate Bench of this Court in CWP No 1901 of 2015, Kishore Kamta Versus State of Himachal

¶495

Pradesh and others, decided on 11.10.2022, in following terms:-

¶496

“3. The grievance of the petitioner is that despite being allowed to work as DPE in GSSS, Lalpani, Shimla since 2005, he was not granted the benefit of grant-in-aid and was paid meagre emoluments from PTA funds. His further grievance is that he had also become entitled for the benefit of contract appointment after requisite period of service followed by regularization as per the policy adopted by the State Government.

¶497

Petitioner was appointed by the PTA of the school before formulation of PTAGIA-2006 Policy. The mere fact that petitioner has been allowed to work as DPE in GSSS, Lalpani, Shimla for such a long spell proves that the requirement of deployment of second DPE to cope with the pressure of work continued throughout. That being so, the stand of

¶498

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¶499

the respondents to deny petitioner the grant-in-aid and all consequential benefits is clearly unjustified .

¶500

The respondents have utilized the services of the petitioner for 17 long years for their own cause and requirement . It is on record that the Administrative Department recommended to the State Government for creation of an additional post of DPE in GSSS, Lalpani, Shimla, but the same was rejected by the Finance Department. The failure of the Government to create an additional post of DPE in GSSS, Lalpani, Shimla despite the requirement to meet students-teachers ratio cannot be used as a tool to exploit the petitioner. In case there was no requirement to have second DPE in the school, petitioner should not have been allowed to work for such a long period. Once the respondents have utilized the services of the petitioner, they are estopped from denying him the claims as have been given to other PTA teachers.

¶501

In CWP No 226 of 2010, titled Promila Devi vs. State of H.P. and others, decided on 02.04.2015, a Co-ordinate Bench of this Court in almost identical facts, posed a pertinent question as under:

¶502

“6. At this stage, a wider issue arises for consideration as to whether the State as a model employer after having extracted nearly a decade of service from the petitioner can claim that she had not been regularly appointed. Further, can the State be permitted to argue that petitioner even in these days of high cost of living should remain content with the remuneration of Rs.1000/- more particularly when admittedly the petitioner has already been paid the salary out of PTA fund with effect from April 2010 to March 2013.”

¶503

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¶504

Similarly, in CWP No. 384 of 2017, titled Renuka Devi vs. State of H.P. and others, decided on 26.05.2018, another co-ordinate Bench of this Court in related facts situation observed as under:

¶505

“13. It is strange behavior on the part of the State that for 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.

¶506

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 “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

¶507

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¶508

case State is an instrumental in exploitation which is contrary to essence of the Constitution.”

¶509

Applying the above noticed to the facts of the case, there is no hesitation to hold that the treatment given to petitioner by respondents is harsh and discriminatory and hence cannot be sustained. Petitioner was duly qualified from the very inception of his joining as DPE in GSSS, Lalpani, Shimla in October, 2005. There is no allegation of petitioner being incompetent discharge his duties. Respondent No.1 as a model employer cannot be allowed to indulge in exploitative actions towards the citizens of the country. The administrative failure of respondents to sanction a post despite requirement cannot be allowed to be used as a shield for such exploitative action.

¶510

Resultantly, the petition is allowed. The respondents are directed as under:

¶511

i) To release the grant-in-aid in favour of petitioner from the date when the grant-in-aid Rules were notified and;

¶512

ii) To consider the case of petitioner for contract employment and regularization in accordance the policy."

¶513

Notably, it is brought to the notice of this Court by the Learned Counsel for the petitioner, Mr. Balwant Thakur that the State Authorities have implemented the judgment in the case of Kishore Kamta [supra], which has not been disputed by the Learned State Counsel also .

¶514

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¶515

Taking into account the above factual and

¶516

legal matrix, once the Respondents have utilized the services of the petitioner for seven long years from 2013 till his abrupt disengagement in 2019 therefore, the petitioner is entitled for reengagement, continuity in service and salary under Grant-in-Aid as given others SMC provided teachers, included

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Kishore Kamta (supra) as referred to above. In this background, the dis-engagement and rejection order [Annexure P-6] needs to be interdicted by this Court and accordingly, the same is set aside.

¶518

14(i). Respondents notified the SMC Policy on 12.7.2012, for teachers in Tribal and Difficult areas

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and the area of operation of this Policy was enlarged on 16.08.2014 to cover all schools throughout the State where, vacant posts of teachers existed. In instant case, the petitioner was appointed/engaged by the SMC on 01.07.2013 in GSSS Sinvi, Tehsil Anni, District Kullu and the Respondents-School

¶520

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Authorities have permitted the petitioner to continue

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from 1.7.2013 till 12.03.2019 [even after acquiring

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TET qualification on 12.10.2017 under the Right to Education Act and Rules and the respondents have utilized the services by extracting the work of TGT [Med] for seven long years in GHS [now GSSS] Sinvi and during this period, once the

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Respondents have neither disaffirmed nor dissuaded the petitioner {on any of the grounds, as contained in rejection orders or any other ancillary grounds} then, in these circumstances, the State Authorities -Respondents 1 to 3 herein, cannot be permitted rake up the issue relating to improper appointment /engagement without following procedure or in not possessing TET Examination Qualification, in view of the principle of acquiescence, as mandated by the Hon’ble Supreme Court in Union of India and others versus N Murugesan and others,

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(2022) 2 SCC 25 , as under:

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“25. Acquiescence would mean a tacit or passive acceptance. It is implied and reluctant consent to an act. In other words, such an action would qualify a passive assent. Thus, when acquiescence takes place, it presupposes knowledge against a particular act. From the knowledge comes passive acceptance, therefore instead of taking any action against any alleged refusal to perform the original contract, despite adequate knowledge of its terms, and instead being allowed to continue by consciously ignoring it and thereafter proceeding further, acquiescence does take place . As a consequence, it reintroduces a new implied agreement between the parties. Once such a situation arises, it is not open to the party that acquiesced itself to insist upon the compliance of the original terms. Hence, what is essential is the conduct of the parties . We only dealt with the distinction involving a mere acquiescence. When acquiescence is followed by delay, it may become laches. Here again, we are inclined to hold that the concept of acquiescence is to be seen on a case-tocase basis.”

¶528

acquiescence on the part of the Respondents, the impugned action of disengagement and the rejection

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orders, Annexure P-6, cannot sustain and the same are accordingly interdicted by this Court and are quashed and set-aside.

¶530

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CONCLUSION :

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16. Given as above, the decision making process,

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the abrupt disengagement on 12.3.2019 and the rejection orders dated 29.10.2020 cannot be permitted to sustain, for the reason, firstly , that the abrupt disengagement of the petitioner from service on 12.3.2019 as a Trained Graduate Teacher [Medical]

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from GHS Sinvi {now GSSS Sinvi, Tehsil Anni, District

¶535

Kullu} adversely affecting the right of petitioner to earn a livelihood for himself and his family as contemplated in Article 21 of the Constitution of India and such an adversial order, which has visited the petitioner with civil consequences cannot be passed without giving a prior notice and without giving a personal hearing as mandated by the principles of natural justice ; and secondly, even the decision making process leading to the passing of rejection orders dated 29.10.2020 [Annexure P-6], stipulating that appointment of the petitioner was not against

¶536

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a vacant post is perverse and patently contrary to the records, when, a perusal of the communication dated 10.7.2013 {Annexure P-1} indicates that two sanctioned posts of science teachers were vacant in said school at the relevant time when, the petitioner was appointed on 10.7.2013 and further even as per communication dated 30.10.2022, one post of TGT (M) was vacant in said school since September 2022 also ; and thirdly, the plea in the rejection orders dated 29.10.2020 (Annexure P-6) that petitioner

¶538

was ineligible and not qualified as he did not possess-qualify the TET Examination and thus he was not given the salary/ renumeration is vitiated by non-application of mind and the ineligibility so carved out cannot stand the test of judicial scrutiny when, as per the second proviso to Section 23(2) of the RTE Act and RTE Amended Act of 2017 and Rule 17(2) and Rule 19 (1) of the RTE Rules, an existing teacher [who was in service as

¶539

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on 31.3.2015] who did not possess the prescribed qualifications, is enabled and permitted to acquirepossess the prescribed qualification(s) within a period of nine years for which the outer time-line is before 8.8.2021 and in the instant case, once the petitioner had acquired the prescribed qualification of Teachers Eligibility Test [TET] on 12.10.2017, Annexure P-3, in-addition to existing qualifications of BSc and B.Ed., in terms of the State Recruitment and Promotion Rules then, action of the Respondents in terminating the petitioner on 12.3.2019 despite being fully eligible and qualified is unreasonable and arbitrary. The deemed eligibility conferred on the petitioner under the Statute by virtue of the RTE Act read with RTE Rules cannot be negativated by an administrative order i.e. the rejection orders dated 29.10.2020 (Annexure P-6). Eligibility acquired on the basis of the beneficial provisions of Statute [unamended and amended Act of 2017] and RTE

¶541

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Rules can neither be curtailed nor taken away by way of an administrative order on 29.10.2020 [Annexure

¶543

P-6]. The right of deemed eligibility which had accrued

¶544

to the petitioner by virtue of the Statute cannot be extinguished by passing the rejection orders and fourthly, the impugned order has prejudiced the petitioner, for the reason, that once the respondents

¶545

have utilized the services and had extracted the work of TGT(M), against vacant post in GHS Sinvi, Tehsil Anni, District Kullu from 01.07.2013 till the date of the acquired the eligibility (passing TET Examination) on 12.10.2017 and thereafter for about seven years till abrupt disengagement on 12.03.2019

¶546

and the respondents have permitted the petitioner to continue then, respondents cannot be permitted to rake up any such issue {either regarding improper appointment without following procedure or not possessing TET Examination or any other like issue} in view of the principle of acquiescence as mandated

¶547

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by the Hon’ble Apex Court in N Murugesan [supra] and fifthly , t he exploitative practice on the part of the respondents in disengaging the petitioner is contrary to the spirit of the communication dated 10.4.2018 {referred to in Para 12 supra} as well as the Notification dated 21.09.2022 [Annexure P-7] also ; and sixthly, the inaction of respondents in denying salary under Grant-in-Aid, from 2013 to 2019, when the respondents have utilized his services has also been deprecated by this Court in the cases of Rajeshwari, Vinod Kumar, Jagmohan Sharma, Villam Singh, Sandeep Kumar, Shyama Rana and Kishore Kamta (supra) on same analogy on which salary through Grant-in-Aid has been released by the State Authorities to other similarly placed SMC provided TGTs and other categories of teachers throughout the State ; and seventhly, the rejection orders dated 29.10.2020 (Annexure P-6), justifying the abrupt disengagement on 12.03.2019

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by invoking Clause 9 of SMC Policy by posting a contract-regular incumbents against SMC teachers

¶551

is unreasonable, arbitrary and such a clause will not only aggravate the shortage of teachers but will also defeat the very spirit of SMC Policy and will impede the object of the RTE Act and Rules whereby, all schools should conform to the teacher: pupil ratio prescribed by the Statute; and eighthly, the action of State Authorities in appointing /posting the contract-regular appointees against SMC provided teachers by resorting to pick and choose fashion shall definitely leads to an anomalous and whimsical situation whereby, a similarly placed and even a junior TGT (Medical) provided by SMC is retained in a school whereas a senior TGT (Medical) (alike the petitioner) has been made to face the wrath of improper exercise of discretion, leading to his abrupt disengagement. Moreover, in order to avoid the charge of anomalous and invidious discrimination in retaining

¶552

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juniors and by showing the door to seniors is dehors the intent and spirit behind the passing of the judgements by the Division Bench of this Court in CWPIL No.157 of 2017 and in cases of Subhash Chand and even the Hon’ble Supreme Court in case of Kuldeep Kumar (supra), wherein, SMC Policy was upheld and in these circumstances, the State Authorities have issued a communication dated 23.04.2018 {Taken on record}, permitting the SMC provided teachers to continue for the academic session 2018-2019 and when, the Respondent State had added a proviso to Clause-9 of the SMC Policy dated 17.07.2012, providing that the regular/contract teachers shall be posted against clear-cut vacancies and not against the SMC Teachers. Consequently, the Respondents are under obligation to reengage/ reinstate, the petitioner, as TGT [Medical], in GHS Sinvi [now GSSS], Tehsil Anni, District Kullu and in case, the post in said School is filled-up or does

¶554

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not exist due to other ancillary reasons, then, to reengage/reinstate the petitioner in any other School against vacant post with continuity in service as TGT [Medical] from the date of initial appointment; with further direction to the respondents to grant the salary through a Grant-in-Aid to the petitioner from the date of initial appointment on 10.07.2013 till his abrupt termination on 12.03.2019 and even thereafter till reengagement-reinstatement.

¶556

In the backdrop of the entirety of the

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fact situation and for the reasons stated hereinabove, the abrupt disengagement of the petitioner on 12.03.2019, which was assailed in OA No.1514 of 2019 [Annexure P-4]; and the resultant rejection orders dated 29.10.2020 [Annexure P-6] and its decision making process and the resultant impugned orders-action so taken by the State AuthoritiesRespondents, to the disadvantage and prejudice of the petitioner cannot stand the test of judicial scrutiny

¶558

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and the same are accordingly quashed and setaside.

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DIRECTIONS :

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17. In view of the above discussion, and

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for the reasons stated hereinabove, the instant writ petition is allowed, with the following directions:-

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(i) Rejection order passed by the Respondent No 2 dated 29.10.2020, Annexure P-6, and the verbal disengagement of the petitioner on 12.03.2019 are quashed and set-aside;

¶564

(ii) Consequent upon the direction (i) supra, Respondents No 1 to 3 are directed to reengage-reinstate the petitioner in service as a Trained Graduate Teacher [Medical] in GHS Sinvi (now GSSS], Tehsil Anni, District Kullu); and in case, the post at Sinvi is filled up or non-existent for any reasons whatsoever, then, to reengagereinstate the petitioner in service

¶565

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¶566

as TGT [Medical] against a vacant post in any other School ; within three weeks from the date of receipt of the copy of this judgment;

¶567

(iii). Respondents are directed to release the salary to the petitioner under Grand-in-Aid as given to other SMC teachers, from the date of initial appointment as TGT (Med) w.e.f. 10.07.2013 till reengagement /reinstatement as detailed herein-above; within six months thereafter ;

¶568

(iv). Upon reengagement-reinstatement, the Respondents are directed to extend all consequential benefits, including continuity in service and benefit of past-service for seniority from the date of initial appointment, within same period as in (iii) above ; and

¶569