IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA. CWP No.150 of 2009. Reserved on: 7.1.2010. Decided on: 8.1.2010. Pushpa Thakur and others. …Petitioners. versus State of H.P. and another. …Respondents. Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting? Yes. For the Petitioners : Mr. Shrawan Dogra, Advocate. For the Respondents : Mr. R.K. Sharma, Senior Additional Advocate General with Mr. Rajinder Dogra, Addl. Advocate General. Rajiv Sharma, J. Material facts necessary for the adjudication of this petition are that petitioner No.1 was appointed as Trained Graduate Teacher (Arts) on 1.1.1991. Petitioner No.2 was appointed as Trained Graduate Teacher (Science) on 26.5.1994. Petitioner No.3 was appointed as Shastri on 25.5.1998. Petitioner No.4 was appointed as Clerk on 3.3.1992. Petitioner No.5 was appointed as Peon w.e.f. 1.4.1986. These appointments were made by petitioner No.6. Petitioner No.6 was called upon by the Director Whether reporters of the local papers may be allowed to see the judgment? Yes. -2- of Education on 18th October, 2005 to supply the following information: “(a) Whether your management is ready to transfer all the assets along with liabilities to the Government. (b) If not, detailed reasons may be given for not transferring all the assets along with liabilities to the Government. (c) Land Status of the school, whether the management have their land for the school campus or the school building has been constructed on Govt. land. Copy of Tatima and Jamabandi may be enclosed. (d) Detail of Govt. schools along with distance from the privately managed 95% aided school in area.” In sequel thereto, petitioner No.6 passed a Resolution and sent the copy to the Joint Director (Education) along with necessary revenue record. The State Government has decided to take over the services of the staff working in 13 privately managed 95% aided schools functioning parallel to the Government Institutions. Petitioner No.6 made prolonged correspondence with the Education Department to take over privately managed 95% aided school. The State Government instead of taking over petitioner No.6 school upgraded Government Middle School, Neen to that of Government High School on 31.7.2006. The Director of -3- Higher Education sought information regarding assets and liabilities from petitioner No.6 on 9.3.2007. The same was furnished on 29.3.2007. Petitioner No.6 was also directed to supply information about the distance of any other Government Middle School/Government High School/Institution running near to the school on 13th September, 2007. This information was also supplied on 18.9.2007. The petitioners made a representation to the Hon’ble Chief Minister on 17.1.2008 for the redressal of their grievance. The petitioners also filed Original Application No. 507 of 2008 before the learned H.P. Administrative Tribunal. The same was directed to be treated as representation to the Principal Secretary (Education) to the Government of Himachal Pradesh with a direction to decide the same within a reasonable time. This order was passed on 14th March, 2008. However, the fact of the matter is that the case of the petitioner for taking over the school i.e. Janta High School, Neen was rejected on 20.12.2008. Mr. Shrawan Dogra, learned counsel for the petitioners has strenuously argued that the decision Annexure P-18 dated 20.12.2008 is illegal, arbitrary thus violative of Article 14 of the Constitution of India. Mr. R.K. Sharma, learned Senior Additional Advocate General has supported the decision dated 28.12.2008. I have heard the learned counsel for the parties and gone through the pleadings carefully. What emerges from the facts enumerated hereinabove is that the matter has remained under the active consideration of -4- the State Government to take over petitioner No.6 school. The information was sought by the Education Department from time to time. The information was furnished by petitioner No.6 school to the Education Department. However, the State Government instead of taking over petitioner No.6 school has decided to upgrade the Government Middle School, Neen to Government High School, Neen. The State Government has already taken over the services of the staff working in privately managed 95% aided school and functioning parallel to the Government Institutions on 23.11.2005. The State Government has remained in constant correspondence with petitioner No.6 even after the Government Middle School, Neen was upgraded to Government High School, Neen on 31.7.2006. The matter was put up before the Cabinet pursuant to the directions issued by the Tribunal. The Cabinet has rejected the proposal on 9.12.2008. The decision was conveyed to the petitioners on 20.12.2008. It will be appropriate at this stage to take note of notification dated 6th August, 2007. A bare perusal of this notification reveals that the State Government has decided to take over the services of the teachers mentioned in the notification teaching in the privately managed Indira Gandhi High School, Shehrol District Solan. Similarly, the services of three teachers were taken over vide Annexure P-20 dated 27th October, 2008 who were teaching in Public High Schoolo, Manoh Sihal, District Kangra. This school was closed in the year 2000. However, the decision has been taken on 27th October, 2008 to -5- take over the services of the teachers who were teaching in Public High School, Manoh Sihal, District Kangra. The learned Senior Additional Advocate General was directed to seek instructions on the basis of the averments contained in para 19 of the petition. He has sought the instructions from the State Government. The copy of the instructions was permitted to be taken on record. It has come in the instructions imparted to Mr. Sharma that the matter was placed before the Cabinet on 9.12.2008 on the analogy of Public High School, Manoh Sihal, District Kangra giving full justification. There is no explanation why the petitioners have been discriminated against. Petitioner No.6 school and the teachers are similarly situated vis-à-vis the teachers/staff who were working in Public High School, Manoh Sihal, District Kangra and the Indira Gandhi High School, Shehrol. The State Government has treated equals as unequals. It is true that to take over the school or the services of the teachers/staff is a policy matter. However it is equally true that the policy decision should apply to all the similarly situated persons/institutions universally. There cannot be any pick and choose while implementing the policy. The case of the petitioners is to be treated at par with schools/teachers who were serving in Public High School, Manoh Sihal, District Kangra and Indira Gandhi High School, Shehrol. In fact the Department of Education has recommended the case of the petitioners on the analogy of Public High School, Manoh Sihal, District Kangra but the decision has gone against the petitioners. The petitioners have -6- been given assurances from time to time by the Education Department that needful will be done and the school will be taken over. However, despite the prolonged correspondence what has happened is that the Government Middle School, Neen has been upgraded to High School, Neen. The State Government as per Annexure P-8 has decided to take over the schools, which were functioning parallel to the Government Institutions. As many as 13 Institutions were taken over. Their Lordships of the Supreme Court have held in Kumari Shrilekha Vidyarthi and others vs. State of U.P. and others, (1991) 1 SCC 212 that Article 14 of the Constitution of India applies also to Governmental policy. Their Lordships have held as under: “29. It can no longer be doubted at this point of time that Art. 14 of the Constitution of India applies also to matters of governmental policy and if the policy or any action of the Government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional. (See Ramana Dayaram, Shetty v. The International Airport Authority of India (1979) 3 SCR 1014: (AIR 1979 SC 1628) and Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir (1980) 3 SCR 1338: (AIR 1980 SC 1992)). In Col. A. S. Sangwan v. Union of India, 1980 (Supp) SCC 559: (AIR 1981 SC 1545), while the discretion to change the policy in exercise of the executive power, when not trammelled by the statute or rule, was held to be wide, it was emphasised as imperative and implicit in Art. 14 of the Constitution that a change in policy must be made fairly and should not give the impression that it was so done arbitrarily or by any ulterior criteria. The wide -7- sweep of Art. 14 and the requirement of every State action qualifying for its validity on this touch-stone, irrespective of the field of activity of the State, has long been settled. Later decisions of this Court have reinforced the foundation of this tenet and it would be sufficient to refer only to two recent decisions of this Court for this purpose.” Accordingly, in view of the observations made hereinabove, the writ petition is allowed and Annexure P-18 dated 20.12.2008 is quashed and set aside. The respondents are directed to consider the case of the petitioners on the analogy of Public High School, Manoh Sihal, District Kangra and Indira Gandhi High School, Shehrol, District Solan within a period of six weeks from today. 8th January, 2010. (Rajiv Sharma), J. (tr)