Sushil Singh Vs State of Hp

“i) Directing the respondent No 1 to 3 to release 95% grantin-aid in respect of salary/allowances and other consequential benefits to respondent no.5 school, particularly in the case of the applicant.

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ii) Directing the respondents to pay salary and other allowances to the applicant at parity with teachers,

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

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2

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working in Government School Cadre Lecturer from the due date i.e. 1-06-2002, till the applicant discharged his duties as lecturer (Economics) and the date of actual payment along with interest at the rate of 18 percent per annum and further directions be issued to the respondents to pay salary and allowances to the applicant in future at par with School Cadre Lecturer working in aided school.”

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The facts as emerged from the pleadings are that the petitioner, vide office order dated 01.06.2002, was appointed as Lecturer in Economics in Vivekanand Model Senior Secondary School, Raja-Ka-Talab, Tehsil Nurpur, District Kangra (H.P.) by the Managing Committee of respondent No.5, after following due process of law. The petitioner was possessing the requisite qualification to hold

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the post and further, the school in which he was appointed was in receipt of 95% grant-in-aid from the respondentsState. Though the petitioner had discharged his duties in the

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School, but the grant-in-aid was not released to him by the respondents-State.

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The petitioner feeling aggrieved by the said

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inaction on the part of the respondents-State had preferred

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the writ petition before this Court bearing CWP No.3787 of

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2011-D , titled, Sushil Singh vs. State of Himachal Pradesh and

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others, which came to be withdrawn by him, reserving liberty to file afresh before the appropriate forum and this Court had granted the permission and held that the question of limitation would not come in his way. The relevant para of the order reads as under:-

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“Learned counsel for the petitioner seek permission to withdraw the present petition, reserving liberty to file afresh before the appropriate forum. Permission granted. Needless to add, since the petitioner had been pursuing the petition here, question of limitation would not come in his way. As such, present petition, stands disposed of as withdrawn, so also pending application(s), if any.”

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4. After withdrawal of the writ petition, the petitioner

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filed the original application before the learned Tribunal,

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which came before this Court as the present petition.

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The respondents-State filed reply to the petition

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and averred that the petitioner was engaged by the

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concerned private school management on their own on fixed remuneration. Moreover, the respondent-State has taken over all the 95% aided private schools with or without movable and immovable assets and the employees pursuant to taking over policy guidelines dated 20.07.2011. It has further been averred that this Court in its order dated 23.11.2011 passed in COPC No.351 of 2011 in CWP No.7885/2010 has ruled that the obligation of the Government to release the GIA will arise only in case the appointment is made in terms of rules and not otherwise.

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Hence, the applicant has no cause of action to file and maintain the present original application. Further it has been submitted that the School, where the petitioner was appointed, has been taken over by the Government without its assets vide Notification dated 20.04.2012 and there are many other such schools which have not handed over their assets and such schools are still functioning. The petitioner

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5

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was engaged by private management i.e. respondent No.4

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and 5 and the respondents-State has no link or relation with

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the appointment/engagement of the petitioner. Further the

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terms and conditions of the appointment/engagement of the petitioner by the concerned management was not binding on

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the State Government and after taking over the 95% aided

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employees and aided schools, the Government has repealed the 95% Grant-in-Aid Rules, 1997.

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The petitioner filed rejoinder to the reply and controverted the averments made in the reply.

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I have heard the learned counsel for the parties and also perused the record carefully.

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It is not in dispute that the petitioner after having been appointed as Lecturer in Economics with Vivekanand

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Model Senior Secondary School by respondent No.5Committee, had discharged his functions on the said post. It is also not in dispute that the post of Lecturer in Economics

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was sanctioned and the petitioner was fulfilling the qualification to hold the post. It is also not in dispute that after the taking over of the said School by the State Government, the services of the petitioner have also been taken over by the respondents-State. The dispute is only with respect to the release of grant-in-aid when the petitioner had discharged his duties on the post of Lecturer in Economics w.e.f. 01.06.2002.

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It is also not in dispute that when the petitioner had earlier filed the writ petition, this Court had granted him permission to withdraw the petition, reserving liberty to file afresh before the appropriate forum and further since he had been pursuing the petition before this Court, limitation would not come in his way. This Court had disposed of the writ petition on 17.11.2016 and thereafter the petitioner filed the original application before the Tribunal, which is now before this Court.

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The petitioner for the first time had approached

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this Court in the year 2011. No doubt, this Court had granted the liberty to file petition afresh before the appropriate forum

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for the reason that since it was a service matter, the petitioner had to first approach the Tribunal and at that moment, the H.P. Administrative Tribunal was in existence, but since he had filed the petition only in the year 2011, he cannot be held entitled to the arrears from the date of his appointment and the same has to be curtailed to three years from the date of institution of the earlier writ petition, which admittedly was filed in the year 2011.

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The plea raised by the respondents that the petitioner was not appointed as per the Rules, cannot be countenanced in view of the decision rendered by this Court

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in CWP No.7851 of 2022 , titled Smt. Sangeeta and others vs. State of Himachal Pradesh and others , wherein it has been

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held that there is no specific procedure provided for selection

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of employees under Grant-in-Aid Rules, 1997, and further when it is not the case of the respondents-State that the said school was not in receipt of 95% grant-in-aid and the post on which the petitioner was appointed as a sanctioned post in the said school. It is also not in dispute that the petitioner was not possessing the requisite qualification to hold the post. The plea taken by the respondents that the petitioner was engaged by the private school management at their own, also deserves to be rejected for the reasons that the respondents-State was releasing 95% grant-in-aid to such schools, which were imparting education to the students, which otherwise was the job of the State. The plea taken that the engagement of the petitioner by the Managing Committee is not binding also deserves rejection. The plea that the Rules were not followed also deserves rejection as once the respondents-State has admitted that after the issuance of the Notification dated 20.04.2012, services of the

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petitioner have been taken over by them, which clearly shows

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that the petitioner was possessing the requisite qualification to hold the post and further was appointed against the sanctioned post.

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The learned Additional Advocate General has

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argued that there is no obligation on the Government to release the GIA and it will arise only in case the appointment is made in terms of the Rules and not otherwise. The learned Additional Advocate General has not addressed the submission that how the Rules were not followed, while making the appointment of the petitioner. Once this Court has already held that there is no specific procedure provided for selection of employees and the petitioner was appointed against the sanctioned post by the management of the school, which school was in receipt of 95% grant-in-aid, the said contention deserves to be rejected, more particularly when the respondents have later on taken over his services

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after taking over the school.

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Learned Additional Advocate General has also vehemently argued that the petition instituted by the petitioner was not instituted within the period of limitation

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though the said stand has not been taken in the reply. The said contention also deserves to be rejected on the ground that when the petitioner had earlier filed the writ petition before this Court, the Court had specifically observed that since the petitioner had been pursuing the petition before this Court, the question of limitation would not come in his

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way. Since the petitioner had approached this Court in the year 2011, the claim made by him cannot be rejected in toto, but at the same time when the petitioner was not vigilant about his rights, this Court can definitely restrict the arrears for three years from the date of institution of the earlier writ petition before this Court in the year 2011 in view of the law

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laid down by the Hon’ble Supreme Court in Union of India

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and others vs. Tarsem Singh , (2008) 8 SCC 648, wherein it was

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held that normally a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is

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sought by an application to the Administrative Tribunal), however, one of the exceptions to the said rule is cases relating to a continuous wrong. It was held that if the claim involved issues relating to seniority or promotion etc. affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. But if the claim is

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with respect to arrears, the principles relating to recurring/successive wrongs would apply and in such cases, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years’ prior to the date of filing of the writ petition. The relevant para reads as

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under:-

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“7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or

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limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.

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8. In this case, the delay of sixteen years would affect the consequential claim for arrears. The High Court was not justified in directing payment of arrears relating to sixteen years, and that too with interest. It ought to have restricted the relief relating to arrears to only three years before the date of writ petition, or from the date of demand to date of writ petition, whichever was lesser. It ought not to have granted interest on arrears in such circumstances.”

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The aforesaid view taken by the Hon’ble Supreme

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Court was again considered in Rushibhai Jagdishbhai Pathak

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vs. Bhavnagar Municipal Corporation, (2022) 18 SCC 144, wherein it was held that the delay of 16 years in approaching

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the Courts affected the consequential claim of arrears and this Court had restricted the arrears only for three years before the writ petition. The Hon’ble Supreme Court had rejected the prayer made by the appellants that they should be given arrears right from the year 2010 and further to refund the entire amount, which had been collected by the respondent-Corporation in terms of order dated 28.10.2010. The relevant paras of the judgment read as under:-

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“14. In Tarsem Singh, the delay of 16 years in approaching the courts affected the consequential claim for arrears and thus, this Court set aside the direction to pay arrears for 16 years with interest. The Court restricted “ the relief relating to arrears to only three years before the date of writ petition, or from the date of demand to date of writ petition, whichever was lesser ”. Further the grant of interest on arrears was also denied

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15. xxxxx

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16. In the facts of the present case, it is accepted that

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the respondent Corporation had accepted the interpretation rendered by the High Court of Gujarat to the Scheme whereby the appellants, on financial upgradation, would be entitled to the higher grade pay scale of the next promotional post, which is Rs.5000-8000 in the present case. As noted above, the impugned judgment of the Division Bench accepts the said position and grants the appellants the said pay scale but restrict the benefit from the date of the judgment of the Single Judge in the writ petitions filed by the appellants, that is, with effect from 31-7-2018. The Division Bench should not have taken the date of the decision/judgment of the Single Judge for grant of the said benefit in view of the decision and ratio in Tarsem Singh which has been followed in several other decisions. That apart, the date of the decision of the Single Judge is a fortuitous circumstance. Only the date of filing of the writ petition is relevant while examining the question of delay and laches or limitation. The appellants would, in consonance with the case law referred to above, be entitled to the arrears for three years before the date of filing of the writ petitions 17. xxxxx

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18. In view of the aforesaid discussion, the prayer of the appellants that they should be given arrears right from 2010 has to be rejected. We also reject the prayer of the appellants that they should be refunded the entire amount which had been collected by the respondent Corporation in terms of the order dated 28-10-2010.

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19. Recording the aforesaid, we partly allow the present appeals with a direction that the appellants would be entitled to arrears in the pre-revised pay scale of Rs.5000-8000 for three years prior to the date of filing of the writ petitions along with interest @ 7% p.a. with effect from 1-9-2017. The arrears, with interest, would be paid within a period of four months from the date of

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pronouncement of this judgment. A computation sheet/statement of accounts on the basis of which payment is made by the respondent Corporation shall be furnished to the appellants. The impugned judgment is, accordingly, partly set aside and the writ petitions filed by the appellants would be treated as allowed in the aforesaid terms. There would be no order as to costs .”

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Consequently, the present petition is allowed and

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the respondents are directed to release the 95% grant-in-aid in respect of the salary/allowance of the petitioner with all consequential benefits w.e.f. 01.06.2002 on notional basis, however the actual monetary benefits shall be paid to him w.e.f. 01.01.2008 till taking over the services of the petitioner. In case, the amount is not released in favour of the petitioner within a period of three months from today, it shall carry interest @6% per annum from 01.01.2008, till its payment.

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The petition is accordingly disposed of. However, there shall be no order as to costs. Pending application(s), if

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any, shall also stand disposed of.

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8 th April, 2026 ( Jiya Lal Bhardwaj ) (ankit) Judge

Sushil Singh v. State of Hp

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Sushil Singh v. State of Hp

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