IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.4499 of 2010 Judgment reserved on: 20.7.2011 Date of decision: 08.08.2011 Himachal Pradesh Private Schools’ Teachers Association …Petitioner Versus State of H.P. and another …Respondents Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 No For the Petitioners : Mr.Surinder Sharma, Advocate. For the Respondents : Mr.Vivek Thakur, Addl.A.G. for Respondents. Deepak Gupta, J. 1. By means of this petition, the petitioner Association has prayed that the services of the employees of the petitioner-Association working in private schools should be taken over by the State Government and they should be posted in the sub-cadre area as per the policy of the Government. It is further prayed that Conditions No.1&2 as laid down in Annexures PF and PK are illegal and liable to be set-aside. Whether reporters of the local papers may be allowed to see the judgment? Yes 2 2. The undisputed facts are that the petitioner Association is an Association of Private School Teachers. Due to establishment/upgradation of Government Schools in the areas where private schools were functioning some private schools had to shut down. The teachers serving in these private schools formed an Association and made a demand that their services should be taken over by the State Government. In fact, their case was also taken up by the H.P. Employees Confederation and thereafter a meeting was held between the aggrieved parties and the Director of Education. In the meeting it was made clear that the State of Himachal Pradesh has not ordered the closure of any private institution but with a view to end the protracted strike the following issues were identified for further decision/action at the Government level: “(1). Efforts would be made to utilize the services of these teachers on special contract basis on priority, when appointments are made to fill up the 3 vacancies that exist in the various schools in the Pradesh. (2)Efforts would also be made to appoint these teachers/staff in the vacancies occurring in the tribal and hard areas, as and when the separate sub cadre for these regions is constituted. (3)The clerks & Class-IV officials would be considered for appointment on daily wages. (4)Once this process is commenced, the Private Schools appearing in the attached list would be deemed to be closed. (5)The processes for seeking the necessary relaxations and consultation with the HPPSC & HPSEB respectively, in the R&P rules etc. as required would be started within one month. (6) till such time the implementation of the above decisions becomes possible, the private institutions will continue to maintain the status quo ante and provide educational services in their respective local areas.” 3. According to the petitioners, this is a policy decision of the State Government. This decision dated 9.4.1999 was followed by another decision dated 22nd June, 1999 whereby the difficult area sub cadre was created. According to the petitioners, this sub cadre area was created to accommodate the private teachers who were rendered jobless in these difficult sub cadre areas. 4 Thereafter, the State of Himachal Pradesh issued a notification dated 6.2.2000. The subject matter of this letter is as follows: “Appointment on Special Contract basis of teachers, Lecturers, C&V (excluding TGT) and Ministerial staff on daily wages basis working in the privately managed schools in H.P. affected by the up-gradation/opening of Govt. schools at the same locations.” 4. The relevant portion of the letter reads as follows: “1.Teaching staff of various categories who have rendered three years or more continuous service in these private schools shall be appointed on contract basis subject to a maximum period of 5 years and they shall be posted in the difficult area sub-cadre. (2)The Ministerial/Non-teaching staff who have rendered 3 years or more continuous service in the schools shall be appointed on daily wages basis and shall be posted in the difficult area sub-cadre.” 5. The petitioners and other persons challenged these orders in various writ petitions. The petitioners had made a representation to the State and therefore a direction was issued that the Principal Secretary (Education) should reconsider the representations of the petitioners. The representations were 5 rejected by the Principal Secretary (Education) vide his order dated 25.6.2010, relevant portion of which reads as follows: “The above request of the petitioner was considered. The State Government after due consideration had decided to appoint some of the teachers and staff of privately managed schools as per the terms and conditions mentioned in the letter dated 5.2.2000. The terms and conditions were put up after due consideration of the case of the petitioner by the competent authority. The issues raised in the meeting held on 9.4.1999 were also considered by the competent authority before deciding the case. There is no justification to reconsider the matter as the terms and conditions are just and proper. Therefore, the representation made by the petitioner is rejected.” 6. Aggrieved by this order, the petitioners have filed the present petition. 7. Sh.Surinder Sharma, learned counsel appearing on behalf of the petitioners submits that the Government had in the year 1999 agreed to absorb all the teachers who were rendered jobless in the sub-cadre area and therefore the petitioners should have been engaged by the Government. He further submits that the decision of the 6 government to lay down a condition that only those who had completed 3 years of service in the private schools would be considered for appointment in the sub cadre area is arbitrary decision having no nexus with the object sought to be achieved. 8. In my view, there is no merit in the contention of the petitioners. There is a duty cast upon the State to ensure that all citizens including poor citizens especially children below the age of 14 are given free education. The State is therefore duty bound to open the schools. When the schools were opened some private schools may have had to shut down. There was no obligation on the State to take over the services of the teachers working in these private schools. It however appears that since there was a long drawn agitation a meeting was held between the two sides in which certain issues were identified some of which have been quoted above. 7 9. The contention of Sh.Surinder Sharma is that the minutes of the meeting dated 9.4.1999 quoted hereinabove, reflect a decision of the State Government to utilize the services of all these teachers on special contract basis on priority. I am of the considered opinion that this contention is totally mis-conceived. A perusal of the minutes quoted hereinabove clearly show that these were issues identified for decision/action at the Government level. The Director of Education had not taken a decision but only made a recommendation. The Government was not bound by this recommendation. Thereafter, the Government took a decision that only those persons who had worked in the private institutions for three years or more should be considered for appointment on contract basis for a period of five years and that these persons would be posted in difficult sub cadre areas. 10. According to Sh.Surinder Sharma, the criteria of 3 years has no nexus with the 8 object sought to be achieved. He submits that the object was to rehabilitate those who had been rendered jobless and therefore no such criteria should have been laid down. There is no force in this contention. The Government did not take a decision to rehabilitate all employees of the private schools. There could be some employees who may have worked for a few days or months. Services of all these teachers could not be taken over. The Government in its wisdom decided that it would grant contractual employment for a period of five years but only to those employees who had worked in the private schools for at least 3 years. The criteria cannot be said to be arbitrary or capricious. As already stated above, there was no obligation on the Government to provide employment to those employees of the private schools who were rendered jobless. The State taking a lenient view of the matter decided that they would take over the services of those who had 9 worked for 3 years. This clearly shows that the State was of the opinion that those who had worked in private schools for a certain length of time i.e. 3 years and were to be rendered jobless may be accommodated by the State. This criteria also has a reasonable nexus with the object of rehabilitation of those who had put in a fairly long length of service in private schools. We must remember that these teachers were being offered contract appointment without competing with others in the market. They were being appointed de hors the rules. These teachers cannot now turn around and say that no criteria should be laid down by the Government. 11. Lastly, it was contended that some of the teachers had even after taking over of the schools worked for further period and thus completed 3 years and they should be considered for appointment on contract basis. This argument is also without merit. The decision of the Government dated 10 6.2.2000 clearly shows that the services of 3 years or more should be in the private school and the services, if any, rendered after taking over to meet the emergent situation cannot be taken into consideration. 12. In view of the above discussion, I find no merit in the petition which is accordingly rejected. No costs August 08, 2011 ( Deepak Gupta ), PV Judge