IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.20 of 2011. Judgment reserved on: 30.5.2011. Date of decision: 03.6.2011. Dinesh Kumar …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 Petitioner : Mr.Neel Kamal Sharma, Advocate. For the Respondents : Mr.Vivek Singh Thakur, Addl.A.G. for Respondents No.1 to 3. Mr.Onkar Jairath, counsel for R-4. Deepak Gupta, J. 1. By means of this petition, the petitioner has challenged the order Annexure P-6 passed in December, 2010 whereby the petitioner has been transferred/adjusted at Government Senior Secondary School, Forsythganj, District Kangra and respondent No.4 Kumari Anjana was retained at GSSS Kashmaila, District Mandi, H.P. 2. The facts of the case are that respondent No.4 Kumari Anjana was appointed by the Whether reporters of the local papers may be allowed to see the judgment? Yes 2 Parents Teacher Association as PTA teacher in Government Senior Secondary School, Kashmaila on 27.8.2008 as Lecturer in Commerce. The petitioner is a regular employee of the Education Department. He was appointed as Trained Graduate Teacher on 22.12.1994. On 2.7.2009 the petitioner was promoted to the post of Lecturer (Commerce) and initially posted at Sundla but he did not join there and was transferred/adjusted at Government Senior Secondary School, Kashmaila. Respondent No.4 was working as a PTA teacher in the said school. The petitioner joined at Kashmaila as a result of which Kumari Anjana had to lose her job. 3. Thereafter, Kumari Anjana filed CWP No.1320 of 2010 titled as Kumari Anjana vs. State of H.P. in this Court. This petition came up for hearing before a Division Bench of this Court on 9.4.2010. It appears that no notice was issued to the private respondent in that case i.e. the present petitioner and 3 the Court passed an order directing the Director of Higher Education to consider the representation Annexure P-4 filed by Kumari Anjana. The Director of Higher Education considered the representation and came to the conclusion that petitioner Sh.Dinesh Kumar had joined as Lecturer in Commerce on 2.7.2009 and since a regular Lecturer had been appointed in place of Kumari Anjana the post was no longer lying vacant at GSSS Kashmaila and rejected the representation of Kumari Anjana. 4. Thereafter, Kumari Anjana filed another writ petition and this petition was disposed of by a Division Bench of this Court in the following terms: “The petitioner approached this Court when he was sought to be replaced by a regular/contract teacher. In case the petitioner points out any vacancy, the second respondent will make an attempt to see whether private respondent can be accommodated in that School so that the petitioner can be continued in the present School. However, we make it clear that this is not to be taken that the petitioner has a lien to continue in the post and PTA appointment is only an ad hoc arrangement and that PTA appointment is not to be for an indefinite period since in any case, when 4 regular hands are to be accommodated, PTA appointed teachers will have to give way. We make it clear that so long as the petitioner is continuing as PTA teacher, the due and admissible salary will be paid. In case the regularly appointed teacher is disturbed in terms of the orders in this writ petition, an opportunity of being heard to that teacher shall also be granted. 2. With these observations, the writ petition is disposed of, so also the pending applications, if any.” 5. After this order was passed, the Director of Higher Education basically relying upon the order adjusted the petitioner at Forsythganj, District Kangra and allowed Kumari Anjana to continue as PTA teacher in GSSS Kashmaila. This order has been challenged in the present petition. 6. Sh.Neel Kamal Sharma, learned counsel for the petitioner has strenuously urged that the earlier orders passed by the Division Bench are not binding on the petitioner since both those orders were passed without giving any notice to the petitioner. He urges that any observations made therein cannot bind his client. He further submits that as per the PTA policy the appointments on PTA basis 5 are only a stop gap ad hoc arrangement and cannot continue indefinitely. He has relied upon a judgment of this Court wherein this Court has considered the entire PTA scheme and held that once a regular teacher is appointed in a school the teacher appointed on PTA basis has no legal right to continue and the regular teacher cannot be transferred elsewhere. 7. A Division Bench of this Court in CWP Nos.1341 and 1459 of 2007 decided on 29.10. 2007 considered the import of the PTA policy. This Court noted that it had come across a large number of cases where selections were made by the PTA on extraneous considerations since the Government had not laid down any guidelines on which the marks are to be awarded. This Court also noticed that more often than not the posts were filled in by the PTA without any advertisement. Even where advertisements were issued they were restricted to limited areas around the village. 6 Therefore, this Court framed guidelines in its judgment dated 29.10.2007 as to how advertisements were to be issued and selections made. 8. The question as to whether a teacher appointed on PTA basis has any right to challenge the appointment of a regular hand came up for consideration before a Division Bench of this Court in CWP No.1163 of 2007 decided on 10th January, 2008 wherein this Court held as follows: “The PTA has been incorporated under the HP Education Code. One of the objectives of the PTA in clause 2.33.1(7), is “to make arrangement for teachers etc., when there is shortage of staff in the institution as a temporary measure”. This is the only statues which empowers the PTA to appoint teachers. The power is limited to appoint teachers when there is shortage of staff and only as a temporary measure. The State of H.P. has framed the Grant-in-aid to PTA Rules 2006 laying down certain guidelines for appointment of teachers. These guidelines permit the PTA to even appoint unqualified persons as teachers. PTA has been empowered to also appoint over-aged persons as teachers. The rules, however, provide that Grant-in-Aid shall not be given in respect of teachers who do not fulfil the prescribed qualification or those who are over-age. 7 From a perusal of the Education Code, the Rules and the Scheme, it is apparent that PTA has a right to appoint teachers only as stop-gap arrangements to meet the current shortage of staff. The teachers appointed by the PTA have no right to claim that they should not be replaced by regularly appointed teachers or by regular teachers on transfer. The selections to the post by the PTA are made on local basis without giving wide publicity. We have come across hundreds of cases where the PTA members have appointed their near and dear ones as teachers. The method of appointment is totally flawed. Such teachers appointed without giving due publicity and in violation of the recruitment rules cannot be given preference over the regularly appointed teachers. It would not also be in the larger interest of students to implement the letter in question. The PTA may appoint an unqualified teacher to teach a subject. Does such a person has right to continue indefinitely? Can no teacher be sent in his/her place on transfer basis? If such interpretation is given, the entire educational system will collapse. We cannot permit unqualified over-age teachers to teach when regular hands duly qualified and selected as per rules are available.” (emphasis supplied) 9. I may also add that the interest of the students has to be kept uppermost in mind. Even where PTA teachers are duly qualified they have not been selected after following a proper method of selection and their appointments by the Parents Teacher Association is on a stop gap basis only to fill 8 up the temporary vacancies. The regular teachers on the other hand are appointed on the basis of written tests and interviews conducted by the Department or the Public Service Commission or by the Subordinate Selection Board. Nothing prevents the teachers appointed on PTA basis from applying for these posts. Once people are appointed on regular basis after passing a test a presumption arises that they are more competent than teachers who have not been selected. Why should the students who are studying in the schools where PTA teachers appointed be deprived of having the benefit of regularly appointed teachers who will necessarily have all the essential qualifications and would be better suited to teach the children? The inconvenience of the teachers appointed on PTA basis cannot be a ground to set at naught the fundamental right of education which the children have under Article 21-A of the Constitution of India. 9 10. It has been urged before this Court that the petitioner who is regular teacher may be adjusted somewhere else and respondent No.4 who has been appointed on PTA basis may be permitted to continue. This Court is not to run the administration. The Apex Court time and again has laid down the law that the Courts should not interfere in administrative matters and that transfer orders should not be lightly interfered with unless they are actuated by mala fides or are arbitrary. 11. When a regular hand is appointed he has to be posted somewhere. It is for the Department to decide at which place such a person should be posted and once he has been posted, a teacher working on a stop gap arrangement as under the PTA scheme, cannot claim that the said teacher should not be disturbed. 12. In the present case, the Director has passed an order virtually on the basis of the orders passed by this Court. In fact there were no 10 such directions of this Court and all that the Division Bench of this Court directed was that the Director of Higher Education should decide the matter after hearing both the sides. The question whether a PTA teacher could claim such right was never decided by a Division Bench. Unfortunately, the earlier judgment of this Court in Ajit Singh’s case was not brought to the notice of the Division Bench. 13. In my considered view, Kumari Anjana has no vested right to continue on the post and therefore she could not have challenged the transfer of the petitioner to the said school. 14. In view of the above discussion the writ petition is allowed, the impugned order is quashed and it is directed that the petitioner shall function as Lecturer in Commerce in Government Senior Secondary School, Kashmaila, District Mandi, H.P. No costs. June 03, 2011 ( Deepak Gupta ), PV Judge