Point of Law : State being a Model Employer, cannot be permitted to discriminate between similarly situated persons and the petitioners are entitled for the pay protection which they are seeking by way of these writ petitions.

JUDGMENT :

As common factual matrix as well as legal issues are involved in all these three writ petitions, the same are being decided by a common judgment. The prayer in the writ petitions is for issuance of a direction to the respondents as under:-

“That a writ of mandamus may be issued directing the respondents to grant benefits of notional increments and fix the pay keeping in view the release of revised pay scales and further after fixing the increments and pay the arrears accrued thereto alongwith interest of late grant of notional increments and fixation of pay may be granted in favour of the petitioner from his initial appointment till taking over the school with all other consequential benefits such as facility of pension, leave due, gratuity etc., which were available to the government employees who were working on the similar posts at the time of appointment of petitioner in a Government aided school and the service rendered by the petitioner from his initial appointment till taking over the school may also be counted for the purpose of length of service in the interest of justice.”

2. The case of the petitioners is that they were appointed in Indira Gandhi Middle School Khararhatti, Tehsil Arki, District Solan, H.P., which was managed by Shiksha Samiti Khararhatti, Tehsil Arki, District Solan, a Society duly registered under the Societies Act, XXI, 1860. Petitioner, namely, Rajinder Kumar, in CWPOA No. 690 of 2019, was appointed as peon on 05.07.1991. Petitioners, namely, Sh. Shyam Singh Thakur and Sh. Prakash Chand, in CWPOA No. 1407 of 2009, were appointed as Drawing Teacher on 01.09.1987 and Trained Graduate Teacher, Science on 1.09.1997, respectively. Petitioner, namely Sh. Subhash Chand, in CWPOA No. 3373 of 2019, was initially appointed as Trained Graduate Teacher on Ad-hoc basis on 01.03.1996 and his services were regularized w.e.f. 24.04.1996. The school in issue was receiving 95% grant-in-aid from the Government of Himachal Pradesh. Vide communication dated 19.09.2005 (appended with CWPOA No. 690/2019 as Annexure P-2) the Government decided to take over the assets and liability of the 13, 95% Government aided schools subject to conditions as were referred to in the said communication. This was followed by issuance of Annexure P-3, communication dated 24.11.2005 in terms whereof, the assets and liabilities of 13 privately managed 95% aided schools, details whereof were given in the said communication, stood taken over by the Government of Himachal Pradesh. The name of the school where the petitioners were employed was mentioned at serial No.8 therein. Thereafter, the services of the petitioners were taken over by the Education Department in the pay scales mentioned against their names vide communication dated 23.02.2006 and 05.04.2006, copies whereof are appended with the respective petitions. The grievance of the petitioners is that whereas their services were taken over by the Education Department with immediate effect in the pay scales mentioned against the relevant office order, the last pay being drawn by them was not protected, whereas subsequently in the case of the persons similarly situated as the petitioners, the last pay being drawn by them stood protected. During the course of arguments, only this point was stressed by learned counsel for the petitioner.

3. To substantiate this fact, the petitioners have appended with these writ petitions office order dated 06.09.2012 (Annexure P-4A, appended with CWPOA No. 690 of 2019), perusal whereof demonstrates that when services of persons similarly situated as the petitioners, who were serving in other private schools, staff of which was also taken over by the Government, then though their appointment was stated to be fresh appointment but the pay being drawn by them was ordered to be protected as a measure personal to the incumbent. Representations in this regard were made by the petitioners but as their grievance was not redressed by the Department concern