IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.3461 of 2010 Judgment reserved on: 26.4.2011 Date of decision:13.6.2011. Surender Singh Chauhan …Petitioner Versus State of H.P. and others …Respondents Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 Yes For the Petitioners : Mrs.Jyotsna Rewal Dua, Advocate. For the Respondents : Mr.Vivek Singh Thakur, Addl.A.G. for Respondents No.1&2. None for respondent No.3. Deepak Gupta, J. 1. The petitioner, by means of this petition, submits that he was an employee of the Gram Panchayat and not of the State Government and therefore the State Government had no authority to initiate disciplinary action against him. 2. The State of Himachal Pradesh framed a policy for recruitment of Gram Vidya Upasaks. The purpose of appointing such Whether reporters of the local papers may be allowed to see the judgment? Yes 2 Gram Vidya Upasaks was to provide teachers in primary schools situated in remote areas of the State. Selection of the Gram Vidya Upasaks was to be made by the Gram Panchayats. Relevant portions of the policy read as follows: “(e)The GRAM VIDYA UPASAKS so recruited will be the employees of the GRAM PANCHYATS, for all intents and purposes. They will not have any claim for regularization/absorption in to Govt. job. (f)The services of such Gram Vidya Upasaks, shall be utilized by the Gram Panchayats in the Govt. Primary Schools against vacancies separately allocated for the purpose. …………………………. 10.APPOINTING/PUNISHING AUTHORITY The Gram Vidya Upasaks so recruited shall be contractual employees of the Gram Panchayats, for all intents and purposes. The appointing/punishing authority in respect of Gram Vidya Upasaks will be the employer Gram Panchayats. The Gram Vidya Upasaks shall maintain absolute discipline and observe timings of the school. The Gram Vidya Upasaks shall enter into an agreement with the concerned Gram Panchayats. The form of agreement is at Annexure-II”. Relying on conditions, it is submitted that it is only the Gram Panchayat which can take action and not the State. 3 3. The petitioner was selected as Gram Vidya Upasak and was appointed to serve in Government Primary School, Kuraya, Tehsil Shillai, District Sirmour. According to him, his work and conduct was satisfactory and there was no complaint from any quarter. The case of the petitioner is that on 3rd June, 2009, he was directed by the Director, Elementary Education to attend five days basic training course at Government Primary School, Bakraa, District Sirmour under ‘Sarva Shiksha Abhiyan’. The training took place from 2.6.2009 to 6.6.2009. 7.6.2009 was Sunday and the petitioner was to join school on 8.6.2009. 4. According to the petitioner, on 8.6.2009 his daughter fell seriously ill and had to be taken to the Community Health Centre, Shillai and therefore the petitioner submitted a casual leave application which was received in the school in the afternoon. According to him, while he was at the CHC he was intercepted by the vigilance officials who alleged that he 4 had been found absent from the school on 8.6.2009 and had in fact engaged another teacher to teach in his absence. Thereafter, the respondent-State vide its letter dated 10.6.2009 directed that an inquiry be held against the petitioner for this purpose. The Inquiry Officer came to the conclusion that the charge of willful absence from duty against the petitioner stood proved. Thereafter, the petitioner submitted his reply but the State directed the Gram Panchayat to terminate the services of the petitioner. 5. I shall first deal with the question as to whether the State has any authority to direct the Gram Panchayat to hold such an inquiry. The Gram Vidya Upasaks are paid honorarium for 10 months in an academic year and the entire burden of paying of honorarium is on the State Government. The Gram Panchayat pays the honorarium out of the grant-in-aid received from the State Government. It is only when the honorarium is higher than that fixed by the Government 5 that the Gram Panchayat has to pay the same out of its own funds. It is also apparent that the computation, release and utilization of grant-in-aid is to be regulated by the Rules made by the State Government. 6. Under Clause 10 of the Scheme it is the Gram Panchayat which is vested with the disciplinary power. It is the Gram Panchayat which can take action against the Gram Vidya Upasaks but this does not mean that the State Government cannot recommend that inquiry be conducted or action be taken against the Gram Vidya Upasaks. 7. It is notoriously well known fact that in certain remote areas the teachers appointed do not function in the schools and they in turn engage students or other teachers to teach in the schools. On 8th June, 2009 the petitioner was not found present in the school and it was observed that he had engaged some other person in his place. Thereafter, the Director issued a notice to the petitioner and an inquiry was got 6 conducted. Two charges were levelled against the petitioner firstly that he was willfully absent on 8th June, 2009 and secondly that he was running a private shop and had not taught in the school for a long time and that one Inder Singh, a student of 10th Class, had been teaching in the school and the petitioner was paying him Rs.1000/- per month. Inder Singh obviously supported the petitioner. The Inquiry Officer examined witnesses and gave a finding that the petitioner had remained willfully absent from duty. Thereafter, the Deputy Director (Elementary Education) directed the Gram Panchayat to cancel the agreement entered into with the petitioner. 8. The Gram Panchayat has passed a Resolution stating that it has no objection to continuing the agreement with the petitioner but till no objection is received from the State the Pradhan could not enter into the agreement. The stand of the Panchayat even in its reply is that the Gram Panchayat 7 was satisfied with the work of the petitioner and it has no objection to continue the petitioner in service. 9. On the other hand, the stand of the State is that on the basis of specific information and complaints, raids were conducted in various schools and in the school in question it was found that the petitioner was absent and he had employed a student of 10th class to teach in his place. It was also found that the petitioner was running a private shop on regular basis. On the day of the raid no teacher was found in the school and only one class-IV employee was present in the school. 10. It is the interest of the students which is paramount. Discretionary relief under Article 226 of the Constitution of India can be refused in such like cases where serious allegations are made against the petitioner. The Gram Panchayat is free to engage the petitioner if it pays salary out of its own funds. The State cannot be compelled to give grant-in-aid for an employee whom the 8 State considers totally unsuitable to hold the job on valid grounds. True it may be that a Gram Vidya Upasak is an employee of the Gram Panchayat but the State which gives grant-in-aid and salary has to have some right and must ensure that the teachers appointed perform their duties. Article 21-A of the Constitution gives a fundamental right of education to all children below the age of 14. It is the paramount duty of the State to ensure that this right is effective and not illusory. The State can therefore oversee the functioning of the Gram Vidya Upasaks and if it comes to the conclusion on the basis of some material, like in the present case, that the Gram Vidya Upasaks are not performing their duties the State is only performing its duty if it asks the Gram Panchayat to terminate the services of such employees. As earlier observed, in case the Gram Panchayat wants to retain the services of the petitioner it can do so but then it cannot claim grant-in-aid from the State and has to 9 pay the salary of the petitioner out of its own funds. 11. The writ petition is disposed of with the aforesaid observations. No costs. June 13, 2011 ( Deepak Gupta ), PV Judge