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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
VIVEK SINGH THAKUR, J.
Kashi Ram - Petitioner
Versus
State of Himachal Pradesh & Others - Respondents
CWP No. 144 of 2022
Decided On : 24-11-2022
Recruitment and Promotion Rules - Parent Teachers Association Rules, 2006 - Employment and Service matter - Appointed as Shastri Teacher - Admissible dues of remuneration/salary - Claim of petitioner is that she is fully eligible to be appointed as Shastri Teacher for fulfilling essential qualification prescribed under Recruitment and Promotion Rules (R&P Rules) to this post and after appointment, respondents/State has formulated a Policy date with respect to grant-in-aid to teachers appointed on SMC basis for tribal and difficult areas and the said Policy as notified vide communication dated was extended to all schools which were upgraded during academic sessions irrespective of area in which she falls and to all those sanctioned posts of teaching cadre which were vacant since more than two years from date of issue of notification dated - Resultantly, area of Government High School Kuhal, Tehsil Rampur, District Shimla, H.P., also came in area for which Policy to engage teacher(s) through SMC was extended - It has further been submitted by learned Deputy Advocate General that vide amendment dated as essential qualification for appointment as Shastri Teacher, a person should have passed Teacher Eligibility Test (TET) with 50% marks - She has further submitted that as per Grant-in-Aid to Parent Teachers Association Rules, 2006, a person should be eligible for appointment to post as per Recruitment and Promotion Rules (in short ‘R&P Rules’) and otherwise such person is not entitled for Grand-in-Aid. [Para 12]
Finding of Court : There was lapse or failure on part of respondents/State to provide a teacher - Hence SMC was constrained to appoint the petitioner to cater the needs of students - Nothing was done by respondents/State to provide teacher to teach students, rather School Management Committee was allowed to appoint and when responsibility to pay arises, State/Department washed its hands by posing that teacher was engaged by SMC, not State/Department - It is strange behaviour on part of State that for teaching students, a candidate is considered to be suitable and eligible, but, for making the payment of Grant-in-Aid or other emoluments equivalent to similarly situated persons, same candidate is considered ineligible for want of certain formalities to be performed by SMC as well as Department on behalf of respondents/State and for want of requisite qualification. Such behaviour of State is unwarranted - Respondents are directed to release grant-in-aid in favour of petitioner in accordance with relevant Rules and except for his appointment prior to issuance and extension of SMC policy in school - Arrears of grant-in-aid of petitioner shall be paid as expeditiously as possible preferably before - Failure in making the payment of Grant-in-Aid in aforesaid period, respondent-Department shall be liable to pay interest @ 5% from the date of passing of the order.
Result : Petition is disposed of
JUDGMENT :
Vivek Singh Thakur, J.
Petitioner has approached this Court by filing this petition seeking direction to the respondents to release admissible dues of remuneration/salary in favour of the petitioner w.e.f. 02.05.2012 till date alongwith interest @ 12% till realization thereof.
2. It is undisputed fact that for shortage of staff, petitioner was engaged by School Management Committee (in short ‘SMC’) as a Shastri on SMC basis w.e.f. 02.05.2012 and since then he was permitted to continue as such by passing subsequent resolution in the year 2013 and 2014 and, thereafter, without passing any resolution, he has been continued as SMC Teacher.
3. Claim of petitioner is that she is fully eligible to be appointed as Shastri Teacher for fulfilling essential qualification prescribed under Recruitment and Promotion Rules (R&P Rules) to this post and after appointment, respondents/State has formulated a Policy dated 17.7.2012 with respect to grant-in-aid to teachers appointed on SMC basis for tribal and difficult areas and the said Policy as notified vide communication dated 20th September, 2014 was extended to all schools which were upgraded during academic sessions 2013 and 2014 irrespective of area in which she falls and to all those sanctioned posts of teaching cadre which were vacant since more than two years from the date of issue of notification dated 16.8.2014. Resultantly, the area of Government High School Kuhal, Tehsil Rampur, District Shimla, H.P., also came in the area for which Policy to engage teacher(s) through SMC was extended.
4. Respondents have opposed the claim of the petitioner by filing reply, stating therein that though petitioner was engaged by SMC vide resolution dated 02.05.2012 against the post of Shastri for academic Session 2012-2013 and was continued thereafter for 2013-2014 and 2014-2015, but thereafter, engagement of the petitioner was not continued by SMC by passing any further resolution. Further that, petitioner was engaged on 02.05.2012. Whereas, terms and conditions of Policy to engage Teacher(s), through SMC purely on period basis in Elementary/Higher Education Department of Himachal Pradesh in tribal/difficult areas, was formulated vide notification dated 17.07.2012 and the Policy was applicable for tribal/difficult areas and it was made applicable to other parts of the State w.e.f. 16.08.2014.
5. It has further been submitted by learned Deputy Advocate General that vide amendment dated 27.08.2012, as essential qualification for appointment as Shastri Teacher, a person should have passed Teacher Eligibility Test (TET) with 50% marks. She has further submitted that as per Grant-in-Aid to Parent Teachers Association Rules, 2006, a person should be eligible for appointment to the post as per Recruitment and Promotion Rules (in short ‘R&P Rules’) and otherwise such person is not entitled for Grand-in-Aid, as prayed.
6. Petitioner was engaged by SMC in May 2012 as respondents had failed to provide Shastri Teacher to teach the students. At that time, amendment dated 27.08.2012 was not there and petitioner was having qualification of essential eligibility as per R&P Rules existing and prevailing on that day and after amendment, prescribing passing of TET as essential qualification, petitioner has qualified Shastri Teacher Eligibility Test in the year 2016 during his continuation as Shastri Teacher in the School. Therefore, plea of the State that petitioner was not eligible at the time of appointment and/or is not eligible as on date to be appointed as a Shastri is contrary to the record and, thus, not sustainable. Otherwise also it is also undisputed that Government of Himachal Pradesh has granted an opportunity to the candidates to acquire qualification who are found in service but were ineligible to be engaged in the service for lacking essential qualification as notified after passing of Right to Education Act and Guidelines issued by NCET.
7. Learned counsel for petitioner has contended that present c
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