Ajay Mohan Goel, Judge (Oral)

By way of this petition, the petitioner has, inter alia, prayed for the following reliefs:-

(i) That a writ in the nature of certiorari may kindly be issued and impugned office order dated 14.12.2022 may kindly be quashed and set aside being contrary to law occupying the field.

(ii) That a writ in the nature of mandamus may kindly be issued and respondent education department may kindly be directed to release the admissible dues of remuneration/salary in favour of the present petitioner immediately w.e.f. 04.06.2011 to till date alongwith the interest of 12% in the interest of justice and in future also.

(iii) That a writ in the nature of mandamus may kindly be issued directing the respondent to allow the petitioner to continue in the service in the interest of justice.

2. The case of the petitioner is that vide Annexure P-1, the petitioner was appointed by the School Management Committee of Government High School Moolkoti, Tehsil and District Shimla, H.P., as Art and Craft Teacher. Her grievance is that despite the fact that the petitioner continues to serve against the post of Art and Craft Teacher till date, grant-in-aid is not being paid to her. It is in this backdrop that the reliefs mentioned hereinabove are being claimed by the petitioner.

3. The stand of the Department is that the petitioner was engaged Drawing Master by the School Management Committee of Government High School Moolkoti after passing resolution dated 17.08.2013 purely on temporary basis at its own level in the absence of any policy. It is further the stand of the Department that the SMC was not authorized to engage the teachers in the school and the petitioner was not having the minimum essential qualification to be appointed against the post in issue and she acquired the essential qualification after his appointment on 16.05.2014. As per the respondents, in the present case, as the petitioner was engaged by the SMC in violation of the instructions of the Government, therefore, the members of the SMCs were solely responsible to grant salary to the petitioner.

4. Learned counsel for the petitioner has argued that the petitioner was fully eligible to be appointed against the post of Drawing Master when she was appointed as such. He further submitted that since 2013, the petitioner is imparting education to the students of the School in issue and, if the appointment of the petitioner was bad in law, then, nothing prevented the Department from dispensing with her services. However, the very fact that the petitioner has been allowed to continue on the said post for almost 13 years demonstrates that there is no illegality or irregularity in the appointment of the petitioner. Learned counsel further submitted that herein, the Department on one hand, is taking advantage of the services of the petitioner and ensuring that the post of Drawing Master is occupied and students are being imparted education, but, on the other hand, is not paying due and admissible salary to her, which otherwise is payable to a Teacher. Learned counsel submitted that forget the due and admissible salary payable to a regular teacher, even grant-in-aid is not being paid to the petitioner. Accordingly, he submitted that the act of the State is both arbitrary and discriminatory and the petition be allowed as prayed for.

5. On the other hand, learned Deputy Advocate General, by referring to the reply of the State submitted that, as it is not in dispute that the petitioner was not appointed by the Department, but by the SMC, the onus to pay whatever the petitioner is entitled to, lies on the SMC. He submitted that at the time of the engagement of the petitioner, no holding out or promise was made by the Department that her wages shall be paid by the Department. He submitted that it is a matter of record that the petitioner was engaged by the SMC in violation of the instructions of the Government and, therefore also, the petitioner is not entitled for grant-in-a