JUDGMENT :

Deepak Gupta, J.

1. By means of this writ petition, the petitioner has challenged the order Annexure P-2 whereby respondent No.4 has been transferred from Government Senior Secondary School, Rohanda to Government Senior Secondary School, Nanawan resulting in the termination of services of the petitioner on PTA basis.

2. Briefly sated the facts are that the petitioner was appointed as Lecturer in the subject of Geography by the Parents Teachers Association (PTA) of Government Senior Secondary School, Nanawan on stop-gap arrangement basis with effect from 7.6.2007. On the transfer of respondent No.4 to the school in question, the services of the petitioner were terminated. This order has been challenged before us.

3. The main ground of challenge is that the Deputy Secretary (Higher Education) to the Govt. of H.P., has issued a letter dated 16.1.2007 directing that PTA provided teachers should not be replaced by a regular teacher on transfer or on promotion-cum- transfer. The relevant portion of the letter reads as follows:-

“In this regard, I am directed to further state that existing institution lays down that no PTA provided teachers will be replaced either by a regular teachers on transfer or on promotion-cum-transfer. The PTA provided teachers will remain in their present places and regular teachers on transfer or promotion/transfer be posted against vacancies only.”

4. This is the mainstay of the case of the petitioner.

5. Shri Lalit Sharma learned counsel for the petitioner has strenuously urged that these instructions are law within the meaning of Article 162 of the Constitution and hence binding on the State Government.

6. On the other hand Shri Neel Kamal Sharma learned counsel for respondent No.4 submits that the letter aforesaid has no force of law. He further submits that the said letter is in total violation of the education code and the Grand-in-aid to PTA Rules. He also contends that the right to education must be meaningful and must be given its due importance.

7. The PTA has been incorporated under the HP Education Code. One of the objectives of the PTA in clause 2.33.1(7), is “to make arrangement for teachers etc., when there is shortage of staff in the institution as a temporary measure”. This is the only statues which empowers the PTA to appoint teachers. The power is limited to appoint teachers when there is shortage of staff and only as a temporary measure.

8. The State of H.P. has framed the Grant-in-aid to PTA Rules 2006 laying down certain guidelines for appointment of teachers. These guidelines permit the PTA to even appoint unqualified persons as teachers. PTA has been empowered to also appoint over-aged persons as teachers. The rules, however, provide that Grant-in-Aid shall not be given in respect of teachers who do not fulfil the prescribed qualification or those who are over-age.

9. From a perusal of the Education Code, the Rules and the Scheme, it is apparent that PTA has a right to appoint teachers only as stop-gap arrangements to meet the current shortage of staff. The teachers appointed by the PTA have no right to claim that they should not be replaced by regularly appointed teachers or by regular teachers on transfer. The selections to the post by the PTA are made on local basis without giving wide publicity. We have come across hundreds of cases where the PTA members have appointed their near and dear ones as teachers. The method of appointment is totally flawed. Such teachers appointed without giving due publicity and in violation of the recruitment rules cannot be given preference over the regularly appointed teachers.

10. It would not also be in the larger interest of students to implement the letter in question. The PTA may appoint an unqualified teacher to teach a subject. Does such a person has right to continue indefinitely? Can no teacher be sent in his/her place on transfer basis? If such interpretation is given, the entire educational system will collapse. We cannot permit unqualifi