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HIGH COURT OF HIMACHAL PRADESH
A.M.KHANWILKAR, V.K.SHARMA, JJ.
HARISH KUMAR, SANJEEV KUMAR, BHARAT SINGH, MAHENDER KUMAR - Appellant
VERSUS
STATE OF H.P. - Respondents
CWP No.3162 of 2013
Decided On : October 01, 2013
SMC teachers working in Non Tribal/Non Difficult Areas cannot be discriminated against by the respondent State vis-a-vis teachers of Tribal/Difficult Areas in violation of Articles 14 and 16 of the Constitution. SMC teachers of Tribal/Difficult Areas form a separate and distinct class with which the SMC teachers of Non Tribal/Non Difficult Areas cannot claim parity.
Fact of the Case:
The petitioners are SMC teachers working in Tribal/Difficult Areas and Non Tribal/Non Difficult Areas. They have challenged the State Government's decision to discriminate against SMC teachers of Non Tribal/Non Difficult Areas in terms of remuneration and other benefits. The petitioners have also sought regularization of their services and other consequential service benefits.
Finding of the Court:
The Court held that the SMC teachers working in Non Tribal/Non Difficult Areas cannot be discriminated against by the respondent State vis-a-vis teachers of Tribal/Difficult Areas in violation of Articles 14 and 16 of the Constitution. The Court further held that SMC teachers of Tribal/Difficult Areas form a separate and distinct class with which the SMC teachers of Non Tribal/Non Difficult Areas cannot claim parity. The Court also held that the petitioners are not entitled to regularization of their services or other consequential service benefits.
Issues: 1. Whether SMC teachers working in Non Tribal/Non Difficult Areas can be discriminated against by the respondent State vis-a-vis teachers of Tribal/Difficult Areas in violation of Articles 14 and 16 of the Constitution? 2. Whether SMC teachers of Tribal/Difficult Areas form a separate and distinct class with which the SMC teachers of Non Tribal/Non Difficult Areas can claim parity? 3. Whether the petitioners are entitled to regularization of their services and other consequential service benefits?
Ratio Decidendi: 1. The Court held that the SMC teachers working in Non Tribal/Non Difficult Areas cannot be discriminated against by the respondent State vis-a-vis teachers of Tribal/Difficult Areas in violation of Articles 14 and 16 of the Constitution. The Court relied on the following principles: (a) Article 21 A of the Constitution guarantees fundamental right to all children of the age of six to fourteen years for free and compulsory education. (b) To materialize this right RTE Act has been brought on the statute book, scheme whereof is as follows. (c) The Central Government and the State Governments shall have concurrent responsibility for providing funds for carrying out the provisions of the Act. (d) The Central Government shall provide to the State Governments, as grants in aid of revenues, such percentage of expenditure referred to in sub section (2) as it may determine, from time to time, in consultation with the State Governments. (e) The Central Government may make a request to the President to make a reference to the Finance Commission under sub clause (d) of clause (3) of article 280 to examine the need for additional resources to be provided to any State Government so that the said State Government may provide its share of funds for carrying out the provisions of the Act. (f) Notwithstanding anything contained in sub section (4), the State Government shall, taking into consideration the sums provided by the Central Government to a State Government under sub section (3), and its other resources, be responsible to provide funds for implementation of the provisions of the Act. (g) The Central Government shall (i) develop a framework of national curriculum with the help of academic authority specified under section 29; (ii) develop and enforce standards for training of teachers; (iii) provide technical support and resources to the State Government for promoting innovations, researches, planning and capacity building. (h) Duties of appropriate Government and local authority have been enumerated under Sections 8 and 9 of RTE Act and the same are as under: (i) provide free and compulsory elementary education to every child: 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. Explanation. The term "compulsory education" means obligation of the appropriate Government to (i) provide free elementary education to every child of the age of six to fourteen years; and (ii) ensure compulsory admission, attendance and completion of elementary education by every child of the age of six to fourteen years; (ii) ensure availability of a neighbourhood school as specified in section 6; (iii) 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; (iv) provide infrastructure including school building, teaching staff and learning equipment; (v) provide special training facility specified in section 4; (vi) ensure and monitor admission, attendance and completion of elementary education by every child; (vii) ensure good quality elementary education conforming to the standards and norms specified in the Schedule; (viii) ensure timely prescribing of curriculum and courses of study for elementary education; and (ix) provide training facility for teachers. (j) Every local authority shall (i) provide free and compulsory elementary education to every child: 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; (ii) ensure availability of a neighbourhood school as specified in section 6; (iii) 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; (iv) maintain records of children up to the age of fourteen years residing within its jurisdiction, in such manner as may be prescribed; (v) ensure and monitor admission, attendance and completion of elementary education by every child residing within its jurisdiction; (vi) provide infrastructure including school building, teaching staff and learning material; (vii) provide special training facility specified in section 4; (viii) ensure good quality elementary education conforming to the standards and norms specified in the Schedule; (ix) ensure timely prescribing of curriculum and courses of study for elementary education; (x) provide training facility for teachers; (xi) ensure admission of children of migrant families; (xii) monitor functioning of schools within its jurisdiction; and (xiii) decide the academic calendar. (i) The functions to be performed by SMC are enumerated under sub section (2) of Section 21 of RTE Act, which are as under: (a) monitor the working of school; (b) prepare and recommend school development plan; (c) monitor the utilization of the grants received from the appropriate Government or local authority or any other source; and (d) perform such other functions as may be prescribed. 2. The Court held that SMC teachers of Tribal/Difficult Areas form a separate and distinct class with which the SMC teachers of Non Tribal/Non Difficult Areas cannot claim parity. The Court relied on the following principles: (a) The State Government vide letter dated 6.3.2010, Annexure P I, addressed by the Principal Secretary (Education) to the Govt. of Himachal Pradesh to the Director Elementary Education, had granted its approval for formation of SMCs under the RTE Act in the schools functioning under the education department as per guidelines contained in Annexure 'Ka' to the said letter with powers and responsibilities, interalia, under para 4.19, which reads as under: "4.19 If required, to select the part time/contract teachers as per the Government Policy but the SMC will not have the authority to appoint any part time/contract worker without the approval of the authorized officer." (b) Thereafter the State Government vide notification dated 17th July, 2012, notified the "policy to engage a Teacher(s) through the School Management Committees purely on period basis in Elementary/Higher Education Departments of Himachal Pradesh in Tribal/Difficult Areas" as per procedure contained in Annexure A to the said notification.
Final Decision: The petitions were allowed in part. The Court directed the State Government to pay remuneration to the SMC teachers including those of Non Tribal/Non Difficult Areas from their initial appointment till they continue to be in such employment strictly in terms of their employment on part time/contract/period basis. The Court also held that both sets of SMC teachers are entitled to compete for being appointed as such in the new academic session(s) alongwith other eligible candidates and any interpretation of paras 9 and 10 of Annexure A to the notification dated 17th July, 2012 to the contrary, would not come in their way. The rest of the claims set up by the petitioners were declined.
A.M.KHANWILKAR, J. -
1. I have perused the judgment prepared by my esteemed brother Justice V.K. Sharma. I respectfully disagree with my brother Judge and, therefore, deem it appropriate to express my opinion separately.
2. THE group of petitions, which we have heard together, essentially form two sets of teachers engaged by the School Management Committees (hereinafter referred to as the SMCs), namely, teachers working in tribal/difficult areas and the other being non tribal/non difficult areas. However, the reliefs claimed in each of these petitions are similar with little variations. The petitioners have essentially sought direction against the State Authorities, inter alia, to pay the salary to the petitioners equal to the salary of the teachers working on the similar posts as regular teachers; to frame appropriate policy for giving training to the petitioners, if required, and to regularise them from the date of their joining as teachers; to release the balance of the salary of the petitioners after calculating the same equal to the regular teachers of the same post and to pay appropriate interest on the said balance salary amount, as may be determined by the Court; and not to dispense with the services of the petitioners and instead allow them to continue as teachers on the post held by them in the concerned School.
Although the concerned SMCs have been impleaded as respondents, they have not chosen to appear in the proceedings, except in Writ Petition No.4258 of 2013.
3. BEFORE dealing with the contentious issues, it is worthwhile to mention that during the course of arguments, the counsel appearing for the petitioners have fairly given up the relief claimed by the respective petitioners for regularisation and also regarding equal pay for equal work, as claimed. These reliefs have been given up realizing that none of the petitioners were appointed in selection process followed as per Recruitment and Promotion Rules of the State Government, nor were holding civil posts. Further, the appointments of the respective petitioners by the concerned SMCs as teachers were on period basis and not as full time teacher as such.
4. THAT leaves us essentially with three other broad reliefs claimed by the petitioners. Firstly, to direct the respondents to continue the petitioners in service until the regular teachers are appointed after following procedure prescribed under the Recruitment and Promotion Rules. Secondly, the State Authorities must be made responsible to bear the financial burden arising out of the employment of the petitioners on contract basis by the concerned SMCs, by providing grant in aid to the respective SMCs to enable them to disburse the remunerations payable to the petitioners, as most of the petitioners were working without any remuneration whatsoever. Thirdly, the petitioners who have been appointed on contract basis by the SMCs must be paid on similar lines as given to PTA teachers and Vidya Upasaks.
As brother Justice Sharma has referred to the relevant provisions, I do not wish to reproduce the same in my judgment in entirety except the relevant provision wherever necessary, to avoid duplication.
5. I shall first deal with the relief claimed by the petitioners that the State Authorities be directed to pay the remuneration of the petitioners by way of grant in aid to the concerned SMCs, so that it can be disbursed to the petitioners. While considering this issue, one cannot be oblivious of the fact that there are large number of teachers similarly placed as that of the petitioners before this Court. As per the figure disclosed by the petitioners themselves, it is not less than 7000 teachers who have been appointed by different SMCs across the State. There can be no doubt that if it is obligatory for the State to appoint such contract teachers to discharge its obligation under the Right of Children to Free and Compulsory Education Act, 2009, (hereinafter referred to as the Act of 2009), the State cannot
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