SOM DATT Vs. THE STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) -This petition has been filed by the petitioners for directing the respondents to take over their services on the taking over of the privately managed Middle School, Kharsi, by the respondents. Petitioner No. 1 is the President of the Society which was running the school (Dr. Parmar Samarak Middle School, Kharsi) Petitioners 2 to 6 are the teachers while petitioner No, 7 is the peon Since other Middle Schools were located at a long distance and this area being educationally and socially backward, people of the area started running this school since 1986. It was receiving aid from the State Government from time to time and was being inspected by the officials of the education department. Names of petitioner Nos. 2 to 6 were sponsored by the employment exchange. They were employed after they were selected by the Board consisting of the Headmaster of the Central School, Gohar, Sub -Divisional Magistrate, Chairman of the Managing Committee and two Members thereof. District Education Officer, Mandi, was requested to participate in the interview Board in writing, but no reply was received from him.

(2.) Petitioner Nos. 1 and 2 are B. A. B. Ed, petitioner No. 3 is B. A. (Shastri), petitioner No. 4 is B, Sc. B. Ed., petitioner No. 5 is Matric Drawing trained, petitioner No. 6 is Matric and Trained PTI, and petitioner No. 7 is Middle pass Peon (Annexure PA/A), The District Education Officer inspected the School on 29th October, 1986 and submitted his report (Annexure PFI). Again, the School was inspected on 9 -6 -1987, 21 -11 -1988 and 24 -10 -1990 by Headmaster of Government High School, Gohar. The working of the School was found in order and deficiences pointed out were removed. The pay of all the teachers had been fixed in accordance with the Schedule of the Government and the School was being run in accordance with the instructions/directions of the State Government.

(3.) People of the area had been demanding the taking over of the School by the Government, By an order of 12 -1 -1990, the School was taken over. The Managing Committee of the School requested the District Education Officer, Mandi, for taking over the staff of the School, but the District Education Officer returned the papers with the remarks that since the School had been downgraded by the Government of Himachal Pradesh, the case for taking over the staff of this School could not be forwarded to the State Government The petitioners requested the State Government to take over their services through individual applications and a resolution to this effect was also passed by the Managing Committee on 10th July, 1990 which was sent to the State Government, Communication of District Education Officer, Mandi (Annexure PJ) was the result of some kind of communication gap since the School had not been downgraded at any time. Rather, a Drawing Teacher and a Trained Graduate Teacher were posted in this School (Annexure PK), The petitioners further submit that their case is fully covered by the policy of the State Government dated 7th July, 1985 since: (a) The School had been recognised by the Education Department 5 (b) The Managing Committee has always been prepared to hand over all the assets of the school to the Government, but it has not been taken over on behalf of the Government on the supposed notion that the School has been downgraded ; (c) No liability had been incurred by the school; (d) The staff to be taken over by the Government is qualified in accordance with the posts sanctioned by the Government in the prescribed scale. The petitioners are fully covered by the policy of the State Government and are qualified, therefore, they are entitled to be absorbed in the Government service. Inaction on the part of the respondents in not taking over their services is arbitrary, unreasonable and violates Articles 14 and 16 of the Constitution. The cancellation order of taking over the school was later withdrawn by notification dated 9 -1 -1991. The services of the staff of the school are not to be taken over by the Government mechanically and automatically by the taking over of the school. Certain norms have to be followed for doing so. These norms are as under : "(1) That the privately run institutions/classes should be recognised by the Government/Department. (2) That no liability is to be borne/accepted by the Government. (3) That the management hands over all the assets. (4) That only qualified staff will be taken over, in accordance with posts sanctioned by Government, in the prescribed scales. (5) That the services of superannuated, untrained or unqualified members of the staff are not taken over by the Government. (6) That only such staff will be considered for taking over which was in position in the school at least for one year prior to the date of taking over of privately managed school/classes by the Government. (7) That after the school is taken over, it will be known as Government Primary/Middle High School as the case may be. (8) That members of the staff who are taken over in Government service shall be treated as new entrants to all intents and purposes. (9) That the cases of appointees of staff with requisite qualifications, who have been in service for one year or more in the institution already taken over or are going to be taken over by the Education Department, need not be referred to the H, P9 Public Service Commission. (10) That the Government shall not accept any liability in respect of the staff etc. prior to their date(s) of appointment(s) in the Education Department which is subject to the availability or sanction of posts. (11) That the pattern of staff for the newly opened/upgraded/taken over school is sanctioned as below : (i) Primary School. JBT Teacher1 (ii) Middle School. Trained Graduate Teacher Science 1 Trained Graduate Teacher (Arts) 1 OT (Sanskrit; 1 LT (Hindi) 1 PT1 (CP Ed )I Arts and Craft Teacher1 Peon 1 (iii) High School. Headmaster 1 Trained Graduate Teacher (Arts)1 Trained Graduate Teacher (Science) 1 Clerk 1 Peon 1 (12) In addition to the aforesaid norms the teachers appointed by Management of the Privately managed Schools must be of the same or earlier sessions of training as of those who are being appointed in Government service (by the Department) at the State or District levels/cadres on regular basis. (13) The names of the candidates to be appointed in the privately run/managed schools must be sponsored through the employment exchange. (14) The selections/interviews committees of the privately managed schools must have the District Education Officer or his representative in that selection/interview committee or Board. (15) That the appointments made in the aforesaid manner must be approved by the concerned District Education Officer. (16) That there must be formal request from the Management of privately run/managed school for handing over the school/classes. (17) That the formal deed is executed by the management for handing over their school/classes with the clear understanding covering and complying with all the above and other essential requirements."