IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.1413 of 2008 Judgment reserved on: 22.7.2009 Date of decision: 29. 7.2009. Nagender Dutt and another .…Petitioners Vs. State of H.P. and Ors. ….Respondents ________________________________________________________________ Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting? Yes For the Petitioners : Ms. Jyotsna Rewal Dua, Advocate. For the Respondents : Mr. R.K. Sharma, Senior Addl. Advocate General with Mr. Anshul Bansal, Addl. Advocate General and Mr. R.P. Singh, Assistant Advocate General, for respondents No.1 to 3. Kuldip Singh, Judge The petitioners through this writ petition have prayed a direction to the respondents to release PTA salary/grant-in-aid to the petitioners along with past arrears of grant-in-aid w.e.f. 24.12.2007 till its payment within a fixed time schedule alongwith interest. 2. The pleaded case of the petitioners is that petitioner No.1 had completed his B.A. (Shastri) and thereafter M.A. (Acharya). The petitioner No.2 has obtained two years Drawing Diploma in Arts and Crafts from Kurukshetra University. One 2 post of Shastri Teacher and one post of Drawing Master were advertised which were to be filled in through Parents Teachers Association (PTA) in Government Middle School Suketi under Complex GSSS Mogi Nand, District Sirmaur. The competent authority had given sanction for filling up those posts and the interview for filling up the post of Shastri Teacher and Drawing Master was fixed on 5.10.2007. The petitioners and other candidates applied for the posts of Shastri Teacher and Drawing Master. The results of the two posts were declared on 8.10.2007. The petitioner No.1 was selected as lecturer in Sanskrit and petitioner No.2 as Drawing Master in Government Middle School Nagal Suketi, District Sirmaur. 3. The appointment letters were issued to petitioners on 9.10.2007 by respondent No.4. The petitioners took the appointment letters to respondent No.2 on 10.10.2007 for their joining but they were directed by respondent No.2 to report after two days. In the meantime with effect from 12.10.2007 due to Assembly Elections, code of conduct came into force and the petitioners were not allowed to join despite their appointments on 9.10.2007. The petitioners after the Assembly Elections were allowed to join their duties by respondent No.3 on 24.12.2007. Thereafter the petitioners are continuously serving as teachers on PTA basis. 4. The case of the petitioners for their dues and admissible grant/salary was forwarded by respondent No.3 to respondent No.2 but grant-in-aid was not released for petitioners. The respondent No.2 had even called explanation from 3 respondent No.3 as to why he has allowed the petitioners to join their duties. The respondent No.1 on 3.1.2008 stopped the appointments of PTA selected teachers and thereafter did not accept the joining of PTA appointed teachers. The grievance of the petitioners is that they are working as PTA teachers but they have not been released their dues and grant-in-aid till date. The petitioners even made a representation dated 9.7.2007 (sic 9.7.2008) which has also been signed by PTA members but despite that nothing has been paid to the petitioners. 5. The respondents No.1 and 2 had filed reply and contested the petition, they have made preliminary submissions that the petition is not maintainable as the PTA had appointed the petitioners during ban period starting from 6.11.2006 under grant- in-aid to Parents Teachers Association Rule, 2006 Annexure R/1. The appointment of the petitioners is in violation of the instructions of the Department, therefore, the petitioners are not entitled to grant-in-aid. It is the responsibility of the concerned PTA to make the payment of salary to the petitioners. The petitioners were not appointed on PTA basis by adopting proper procedure. The respondent No.3 illegally accepted the joining reports of the petitioners on 24.12.2007 during imposition of ban of Model Code of conduct due to Vidhan Sabha Elections. The explanation of respondent No.3 was called for accepting joining report during ban period. The appointment of petitioners is in violation of PTA Scheme and is not sustainable. The respondent No.2 had received the joining report of petitioners on 1.1.2008 and forwarded the same to the Deputy Director of Elementary 4 Education, Sirmaur at Nahan for grant-in-aid to the PTA teachers, who returned the documents on the ground that no joining could be accepted during enforcement of Model Code of conduct due to elections. On merits, the respondents No.1 and 2 have admitted that the petitioners were selected as Shastri Teacher and Drawing Master on 8.10.2007. 6. Heard and perused the record. 7. The appointment letters were issued to petitioners by respondent No.4 on 9.10.2007 vide Annexure P-2. They reported for joining on 10.10.2007 but on that date their joining was not accepted by respondent No.2. It is the case of the petitioners that in the meantime w.e.f. 12.10.2007 due to Assembly Elections model code of conduct came into force but in rejoinder the petitioners have stated that the model code of conduct came into force w.e.f. 10.10.2007 and the petitioners were not allowed to join as PTA teachers on the basis of their appointments dated 9.10.2007. 8. The case of respondents No.1 and 2 is that the petitioners were appointed during ban period starting from 6.11.2006 as indicated in Annexure R/1. The petitioners were not appointed on PTA basis by adopting proper procedure. The joining of the petitioners on 24.12.2007 during the ban due to model code of conduct on account of Vidhan Sabha Elections is also wrong. In the reply respondents No.1 and 2 have not indicated or pleaded what procedural lapse was committed while making appointments of petitioners on PTA basis. On behalf of the respondents No.1 and 2, it has been contended that as per 5 letter dated 20.2.2007, grant-in-aid to Parents Teachers Association Rule 2006, provisions were made as indicated in Annexure R/1 which provides that no PTA teachers would be appointed henceforth till further orders. 9. The petitioners have placed on record Annexure P-8 dated 13.7.2007 wherein it has been provided that Government has further decided that the PTA may be allowed to make available C & V category teachers i.e. OT ( Shastries) LT, DM and PETs in view of the fact that there are still large number of vacancies especially in difficult and remote area schools and no regular recruitment is likely to take place against these categories in near future. The Annexure P-8 dated 13.7.2007 clearly authorizes PTA to make available some categories of teachers such as LT (Shastries), DM(Drawing Master) and others as mentioned in Annexure P-8. The appointments of the petitioners as PTA teachers were made on 9.10.2007 and therefore, respondent No.4 was fully competent to appoint petitioners No.1 and 2 as Shastri teacher and Drawing Master respectively. The respondent No.1 again imposed ban on the appointments of PTAs vide Annexure P-4 dated 3.1.2008 but the petitioners were appointed before the issuance of letter dated 3.1.2008 Annexure P-4 imposing ban on the selection/appointment of PTA teachers. 10. The petitioners were allowed to join on 24.12.2007 and according to the petitioners on that date code of conduct due to Assembly Election was over. The respondent No.2 had asked the explanation of respondent No.3 vide letter dated 16.1.2008 Annexure P-3 on the grounds that during elections code no 6 appointment could have been made and the Government had imposed ban on PTA selections/appointments. The petitioners have taken positive stand that on 24.12.2007 when they joined in pursuance of their appointment letters dated 9.10.2007, the model code of conduct due to Assembly election was over. The respondents No.1 and 2 in their reply have nowhere specifically pleaded the date on which model code of conduct due to Assembly Election was lifted. In these circumstances, it can be safely held that on 24.12.2007 the model code of conduct due to Assembly Election was not in force. Insofar as ban on the appointments of PTA teachers is concerned, it has already been noticed above that in view of Annexure P-8 dated 13.7.2007 there was no ban for appointment of PTA teachers in the categories of Shastri teachers and Drawing Master on 9.10.2007. The ban was again imposed on 3.1.2008. The appointments of the petitioners are of the period when there was no ban. 11. In light of above discussion, it is held that when the petitioners were appointed on PTA basis there was no ban on the appointment of PTA teachers for the categories of the petitioners. The learned counsel for the petitioners has submitted that petitioners have not been released grant-in-aid for paying their salary/wages right from 24.12.2007 onwards when they joined as PTA teachers. It is not the case of respondents No.1 and 2 that under no circumstance the petitioners are entitled to grant-in-aid. Their objection is with respect to the legality of the appointments of the petitioners on PTA basis which they have failed to establish and has already been rejected. In view of above discussion, the 7 respondent No.1 is liable to release grant-in-aid for payment of salary/wages of petitioners w.e.f. 24.12.2007. The petition is accordingly allowed, the respondent No.1 is directed to release the grant-in-aid for payment of salary/wages of petitioners w.e.f. 24.12.2007 onwards within a period of two months from today, failing which, the respondent No.1 shall be liable and petitioners shall be entitled to interest at the rate of 9% per annum on the arrears of their salary/wages till payment. No costs. CMP No.2538 of 2009 Infructuous. ( Kuldip Singh) Judge July 29, 2009(sks) 8