1Whether reporters of Local Papers may be allowed to see the judgment? Yes IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.812 of 2023 Date of decision: 28.04.2025 Mukesh Chand. ...Petitioner. Versus State of H.P. & Anr. ...Respondents. Coram: Ms. Justice Jyotsna Rewal Dua, Judge. Whether approved for reporting? For the petitioner : Mr. Onkar Jairath and Mr. Piyush Mehta, Advocate. For the respondents : Mr. Anup Rattan, Advocate General with Ms. Leena Guleria, Deputy Advocate General. Jyotsna Rewal Dua, Judge Petitioner is serving as Lecturer (Commerce) appointed by the School Management Committee (‘SMC’) w.e.f. 31.08.2015 onwards. Respondents have not paid him Grant-in-Aid, hence, the writ petition. 2. Facts. 2(i). Petitioner was initially appointed on the vacant post of Postgraduate Teacher (‘TGT’) (Commerce) in Government Boys Senior Secondary School Arki, District Solan, on temporary basis till the joining of regular incumbent under Resolution No.2/2012 passed on -2- 11.05.2012. He was to be paid out of the Student Welfare Fund. 2(ii). The respondent-State approved/notified School Management Committee Policy on 17.07.2012 for engaging teachers through SMC on period basis in Elementary/Higher Education Departments of respondents-State in tribal/difficult areas. The benefit of the Policy was extended vide notification dated 16.08.2014 to all the schools which were upgraded during academic years 2013-14 and 2014-15 irrespective of the area in which they fell and all those sanctioned posts of teaching cadre which had remained vacant for over two years. 2(iii). Services of the petitioner were disengaged on joining of regular teacher on 01.04.2013 in the said school. However, on transfer of regular teacher, services of the petitioner were again engaged by the concerned SMC on 31.08.2015. 2(iv). The petitioner was not being paid the admissible grant-in-aid as SMC appointed teacher. He, therefore, preferred CWP No.2669 of 2021 in this Court praying for -3- release of Grant-in-Aid. The writ petition was disposed on 07.11.2022 with following directions:- “On the request of learned counsel for the parties, the matter is taken up for final hearing. Learned counsel for the petitioner submits that the case is squarely covered by the judgment passed by Hon’ble Coordinate Bench of this Court in CWP No.2467 of 2015, titled Villam Singh Versus State of HP & Ors., decided on 07.04.2016 and upheld by Hon’ble Division Bench of this Court in CMP(M) No.1458 of 2017 in LPA No.53 of 2018, titled State of Himachal Pradesh and others Versus Sh. Villam Singh, decided on 26.11.2018 as well as CWP No.4876 of 2022, titled Jai Prakash Versus State of Himachal Pradesh & another, decided on 21.07.2022. Learned Additional Advocate General denies the same. 2. Be that as it may, this petition is disposed of with the direction that let the issues raised by the petitioner be considered by the competent authority in light of the judgment being relied upon by the petitioner and necessary orders be passed within a period of eight weeks after hearing the petitioner. Pending miscellaneous applications, if any, stand disposed of.” 2(v). Pursuant to the aforesaid directions, the respondents considered the case of the petitioner and vide office order dated 08.02.2023 rejected the same. Petitioner feels aggrieved and therefore, has instituted this writ petition seeking following substantive reliefs:- “i) appropriate writ, order or directions may kindly be issued, directing the Respondents to release Grant-in-Aid in favour of the petitioner w.e.f. 31.08.2015 when the Petitioner was appointed in terms of policy dated 16.08.2014, as has been directed by this Hon'ble Court in Villam Singh's Case Supra and upheld by the Hon'ble Division Bench of this Hon'ble Court. -4- ii) That the writ in the nature of Mandamus or any other appropriate writ, order or directions may kindly be issued, directing the Respondents to release the arrears of Grant-in- Aid w.e.f. 31.08.2015 till date along with interest @ 9% P.A. and the respondents be further directed to continuously release the same in future also. iii) That the writ in the nature of Prohibition or any other appropriate writ, order or directions may kindly be issued, directing the Respondents to not to terminate the services of the petitioner and he be allowed to continue his services at Government Boys Senior Secondary School Arki, District Solan (HP).” Vide interim order dated 28.02.2023 passed in this writ petition, the respondents were restrained from terminating the services of the petitioner. Petitioner is admittedly continuing to discharge his duties as SMC appointed teacher at GBSS Arki, District Solan. 3. Heard learned counsel for the parties and considered the case file. 3(i). Learned counsel for the petitioner submits that the respondents-State had taken a conscious decision to release Grant-in-Aid to SMC appointed teachers irrespective of the fact whether they were appointed prior to the enforcement of policy dated 17.07.2012 or 16.08.2014. The respondents cannot discriminate between two set of employees, the one who were appointed prior to -5- promulgation of policies dated 17.07.2012 and 16.08.2014 and the second set of that who were appointed after the promulgation of the policies. Such action of the respondents is patently illegal, arbitrary and in violation of Articles 14 & 16 of the Constitution of India. The petitioner was first appointed on 11.05.2012. His services were re-engaged by SMC of the concerned school on 31.08.2015 in terms of SMC Policy as he fulfilled the prescribed criteria in terms of applicable Recruitment and Promotion Rules governing the field on 31.08.2015. Reliance was place upon Villiam Singh vs. State of H.P. & Ors.1 in support of claim of the grant-in- aid. Above decision was affirmed by State of Himachal Pradesh & Ors. vs. Villam Singh2. 3(ii). According to learned Deputy Advocate General, petitioner was though appointed under the SMC Policy but without following the prescribed norms. Learned Deputy Advocate also submitted that while deciding the petitioner’s previous writ petition, i.e. CWP No.2669 of 2021, the respondents were directed to keep in view several decisions of the Court rendered on the subject, but these judgments 1 CWP No.2467 of 2015 decided on 07.04.2016. 2 LPA No.53 of 2018 decided on 26.11.2018 -6- are not applicable to the petitioner. The petitioners in the decisions referred to in the order were working as Physical Education Teacher, Drawing Master and Shastri, whereas the present petitioner was appointed as Lecturer (Commerce). There was no provision in the SMC Policy for engaging Physical Education Teacher, Drawing Master, Shastri and Lecturer (Commerce). The GIA had been released in the case of petitioners under the aforesaid judgments only with approval of the Competent Authority. 4. It comes out from the record that the petitioner was initially engaged on 11.05.2012 on the vacant post of TGT (Commerce). On joining of regular teacher, his services were disengaged on 01.04.2013. Petitioner was re-engaged by the SMC of GBSS Arki, District Solan, on 31.08.2015. Grant-in-aid has been refused to the petitioner by the respondents on the ground that his appointment was without following any procedure and norms notified in SMC Policy dated 17.07.2012. At this juncture, it will be appropriate to refer to Ramesh Kumar V/s State of Himachal Pradesh & -7- Others3. In the said case, the stand of the respondents was that appointment of the petitioner therein, who was engaged as Physical Education Teacher (PET) on SMC basis, was without following any valid procedure, therefore, he was not entitled for Grant-in-Aid. It was also urged for the respondents in that case that there was no provision in the SMC Policy to engage PET. The Court did not accept the reasons assigned by the respondents and observed that if the Department was of the view that SMC had not been conferred any power for engaging any PET, then, as soon as the petitioner was engaged as such by the SMC, the Department should have called upon the SMC to dis-engage his services; This course was not adopted by the Department; The petitioner therein was allowed to continue to serve as PET; Such action of the Department would amount to its acquiescence insofar as engagement of the petitioner therein as PET by the SMC is concerned. Relevant paras from the decision are as under:- “5. Learned Additional Advocate General while referring to the reply filed by the State has submitted that as the appointment of the petitioner on PET basis was without following any valid procedure, therefore, the petitioner is not entitled for the relief, he has prayed for. He has further submitted that as there is no provision in the policy to engage PET on SMC basis, therefore also, the petitioner is 3 Latest HLJ 2024 (HP)(2) 1093 -8- not entitled for the relief. However, it could not be disputed that order passed by the Hon’ble Coordinate Bench of this Court in favour of an incumbent similarly situated as the petitioner has been implemented by the Department. 7. It is not in dispute that the petitioner was engaged as a PET by the SMC of the School concerned and that too, in the year 2011. Incidentally, the School, in which, the petitioner was engaged was not a private School, but a Government School. If the Department was of the view that SMC was not conferred any power or authority of engaging any PET, then, as soon as the petitioner was engaged as a PET by the SMC, the Department should have called upon the SMC to disengage the service of the petitioner. This not having been done and the fact of the matter being that the petitioner continues to serve as PET till date, this amounts to acquiescence of the Department as far as the engagement of the petitioner as a PET Teacher in the School by the SMC is concerned. Besides this, it is not the case of the respondents before this Court that SMC has engaged the petitioner as a PET in the absence of any such post being there in the School or that the petitioner has not imparted any physical education to the students of the School. Therefore, if the services of the petitioner has been utilized by the Department since the year 2011, as far as imparting of education of physical education to the students studying in that School is concerned, the non-release of Grant-in-Aid in his favour on the reasoning which has been assigned in the impugned order cannot be sustained in law. Otherwise also, whether or not a PET appointed through SMC is entitled for the release of Grain-in-Aid is no more res-integra and the issue stands settled by the Hon’ble Coordinate Bench of this Court CWPOA No.7906 of 2019, titled Bhadur Singh and another versus State of Himachal Pradesh and others and in this view of the matter, the denial of the Grant-in-Aid to the petitioner by respondents is not sustainable. 8. Accordingly, this writ petition is allowed. Annexure P-4 dated 23.09.2023, is quashed and set aside and the mandamus is issued to the respondents to release Grant-in- Aid in favour of petitioner in accordance with relevant Rules w.e.f. 16.8.2014, except for his appointment prior to issuance and extension of SMC policy in the school concerned. Arrears be paid as expeditiously as possible and preferably within a period of three months from today. Pending miscellaneous applications, if any, also stand disposed of.” In view of above reasons, the Court in Ramesh Kumar’s3 case directed the respondents to release Grant-in- Aid in favour of the petitioner in accordance with the relevant -9- rules. Similar is the ratio of decision in Shri Ravi Sharma Versus State of Himachal Pradesh and another4. Learned counsel for the petitioner submits that the aforesaid decisions have been implemented by the respondents and Grant-in-Aid has been released in favour of the petitioners therein. 5. Facts of the present case are almost similar to that of Ramesh Kumar’s3 case. Present petitioner is serving as Lecturer (Commerce) in a government school on SMC basis w.e.f. 31.08.2015. The respondents were aware about petitioner’s appointment as such. In case the respondents had any issue about petitioner having been appointed without following the prescribed norms in the SMC Policy, it was for them to take this objection and appropriate action at the relevant time. The respondents acquiesced to the appointment of the petitioner and let him serve as such in the school. Petitioner has continued to serve as Lecturer (Commerce) year after year. There is no complaint against his work and conduct. It is also not the case of the respondents that the petitioner had been appointed as Lecturer (Commerce) against a non-existent post. At this stage, the 4 CWP No.1631 of 2023, decided on 06.03.2024 -10- respondents cannot deny Grant-in-Aid to the petitioner by raising the plea of his appointment, allegedly being contrary to the norms. Therefore, following the ratio of above referred decisions, petitioner is entitled to Grant-in-Aid. For the aforesaid reasons, this writ petition is allowed. Impugned order dated 08.02.2023 (Annexure P-8) is quashed and set aside. The respondents are directed to release the due and admissible Grant-in-Aid in favour of the petitioner in accordance with the relevant rules, within a period of eight weeks from today. The writ petition stands disposed of in the above terms, so also the pending miscellaneous application(s), if any. Jyotsna Rewal Dua 28th April, 2025 Judge (Pardeep)