IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 7713/2010 Reserved on: 16.8.2011 Decided on:19.9. 2011 _____________________________________________ Pooja Sharma. …Petitioner. Versus State of H.P. and others. …Respondents. ______________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the petitioner : Mr. Bhuvnesh Sharma, Advocate. For the Respondents: Mr. R.P. Singh, Asstt. A.G. for respondents No.1 and 2. Mr. C.N. Singh, Advocate for respondents No.3 and 4. ___________________________________________________ Justice Rajiv Sharma, Judge. Petitioner was interviewed for the post of T.G.T. (Arts) in the G.A.V. Senior Secondary School, Kangra on 22.6.2003. She joined her duties on 1.7.2003. Case of the petitioner, in a nutshell, is that respondent-State has not released grant-in-aid towards her salary. 2. Mr. Bhuvnesh Sharma has strenuously argued that the petitioner has been appointed by a duly constituted Selection Committee and the management 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 has entered into protracted correspondence with the State Government to accord sanction to fill up the post of T.G.T. (Arts). According to him, the petitioner is fully eligible for the release of grant-in-aid. 3. Mr. R.P. Singh, learned Assistant Advocate General has vehemently argued that since nominee/representative of the Education Department was not present at the time of interview, petitioner is not entitled to grant-in-aid as per Grant-in-Aid Rules notified on 12.3.1999. Respondents No.3 and 4 have not chosen to file any reply. 4. I have heard the learned counsel for the parties and have perused the pleadings carefully. 5. State Government has issued rules called “The Himachal Pradesh Non-Government Institution (Grant-in-Aid) Rules, 1997” (hereinafter referred to as the “Grant-in-Aid Rules” for brevity sake) notified on 12.3.1999. These rules have come into force with effect from 1.1.1997. The service conditions of the teachers of the Himachal Pradesh Privately Managed Recognized/Aided Schools are to be governed by the provisions in Appendix-II as well as the decisions of the Government taken from time to time in such matters for getting grant-in-aid. It is evident from the perusal of the 3 Appendix-II annexed with the Grant-in-Aid Rules that the minimum qualifications for recruitment to the aided posts are the same as may be prescribed by the Government for similar category of posts in Government institutions. 6. Appointments to the aided posts are to be made by the managing committee in the following manner: “(i) Appointing authority shall advertise in both English and Vernacular daily newspapers in the State, vacancy or vacancies to be filled in by giving full particulars thereof including the requisite qualifications, number of vacancies to be filled in and the last date by which the applications may be submitted. In the alternative name of suitable candidates may be obtained through the employment exchange. (ii) The recommendations for appointment of the candidates shall be made by a sub-committee consisting of five members of managing committee and a representative/nominee of H.P. Education Department.” 7. Petitioner was interviewed on 22.6.2003. It is not in dispute that the representative of the H.P. Education Department was not present at the time when she was interviewed. According to the Rules, presence of representative of H.P. Education Department in the Selection Committee was sine qua non. However, the fact of the matter is that she has joined her duties on 1.7.2003. Thereafter, she has been appointed on 4 1.6.2004, 16.5.2005, 8.5.2006, 3.5.2007, 8.5.2008 and 16.4.2009 by the management of the school. 8. The Principal of the school has also entered into correspondence with respondent No.2 vide Annexures P-5 and P-6, P-7 and P-8 seeking permission to fill up the post of T.G.T. (Arts). The reminder was also sent by the Principal to respondent No.2 on 9.12.2008. Respondent No.2 sought certain information regarding filling up the vacant posts on 26.12.2008, vide Annexure P-10, from the Presidents of the privately managed 95% aided Primary and Middle Schools in Himachal Pradesh. In sequel to Annexure P-10, the Principal informed respondent No.2 on 3.1.2009, vide Annexure P-11, that the interview was held on 22.6.2003 in which 22 candidates had appeared and on the basis of merit, petitioner was selected. She joined her duties on 1.7.2003 and was working continuously. Respondent No.2 sought certain information from the Principal of the respondent-school on 12.3.2009 whether the departmental nominee was deputed to attend the said interviews, if yes, the copy of order may please be enclosed, whether the post was advertised in leading daily two newspapers and whether the permission was granted to fill up the vacant post, if yes, a copy of the 5 same was asked for. In sequel to communication dated 12.3.2009, the Principal informed respondent No.2 vide Annexure P-14 dated 25.4.2009 that no departmental nominee was deputed to attend the interview. The advertisement was given in two leading newspapers, i.e. Divya Himachal and the Tribune and no permission was granted to fill up the post. The Deputy Director of Elementary Education recommended the case seeking necessary permission to fill up the vacant post of Senior Secondary School, G.A.V. Kangra on 21.10.2009, vide Annexure P-15. Petitioner has also relied upon Annexures PR-1, PR-2, PR-3, PR-4 and PR-5 filed alongwith the rejoinder. 9. What emerges from the facts enumerated hereinabove is that though the post was advertised, however, no Government nominee was present at the time of interview on 22.6.2003. The respondent- management has not been accorded permission to fill up the post. There is a detailed procedure, as noticed above, the manner in which the aided posts are to be filled up. 10. Mr. Bhuvnesh Sharma has also argued that similarly situate persons, namely, Sanjeev Kumar had been released the grant-in-aid, though no nominee of the H.P. Education Department was present at the time of 6 his interview, vide Annexure PR-3. He has also drawn the attention of the Court specifically to Annexure PR-5 to substantiate that number of teachers were appointed by the management though no Government nominee was present at the time of interview. The Court is of the considered view that once the procedure has been prescribed to fill up the post in order to get the grant-in- aid, the same has to be followed scrupulously. The fact that few teachers as per Annexures PR-3 and PR-5 had been released grant-in-aid will not advance the case of the petitioner. Article 14 is a positive concept and cannot be applied negatively. The Principal of the respondent-school has admitted in his correspondence entered with respondent No.2 that no departmental nominee was present at the time of interview on 22.6.2003. The post has been filled up without permission from the State Government. Since the appointment of the petitioner was not as per the Grant- in-Aid Rules notified on 12.3.1999, the State Government cannot be directed to release the grant-in-aid in favour of the petitioner. 11. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in the petition and the same is dismissed. However, in the 7 interest of justice, respondent-State is directed to consider the case of the management for sanctioning the post of T.G.T (Arts), as per Annexure P-15, within a period of two months from today. Pending application(s), if any, also stands disposed of. There shall, however, no order as to costs. (Justice Rajiv Sharma), Judge. 19.9. 2011 *awasthi*