IK THE HIGH COUST OI? JUDICATURE AT BILASPUR (C.G._)_ WRXT PET'ITION I<|0.^6"22 Of 2001 BETWEE" il ^ 2. ^'J^ A?' ^/fj •/ ^.^ ^y'41 w^ ; f'! ! ??r- t ••' 0.' o. ^ ^' .'o' s-Y o Bhojraj Choudhert} S/o. Shri GainduraraC'notidharyi, aged about 41 ysars, occupatj-on Upper Division Teacher, Govt. Kisan Higher Secondary School, Karanikara Distr-ict Rajnanc.saon. Shikhai'ri Ram Sahu 3/o« Shri rtsb-rara Sahu, Boed a-Dout 30 years* occupatlon Upper Dlvislon Teacher Govt., Kisan Highsr Secondary school. Karsn.kara Dlstrlct.Rajnandgson. Koashal Ram sahu S/o. Shri Kumar .singh Saha, aged sbout 36 years, occupation Upper Division 'Teacher Govt. Kisan Hiyher Secondary school, K ar afdtar a , Dlstr-Lct Rajnanclgaon* Mukesh Kuraar Sharma S/Oo Shri Kurnar Sharma, ageci about 34 years. occupation Upper Division Teacher, Govt. Kisan Hlgher Secondary School, Kare-n-ikara, District Bajaandgaon, I'laksudan Lal Verna S/o. shsi Tet'k.urar.-i Verma, aged about 35 years« occupation Upper Dj-vision Teachsr Govt. Klsan Higlier Secondsry School, Karafikara, Dlstrict Rajnandgaon. Satish Kumar Sharma S/o. Radheshyam Shsrmc,. aced about 41 years, occupatj.on Craft Teacher, Govt. Klsan H-Lgher Secondary School, Karaml;ara, Dlstrict Rajnandgaon. Kaaliu Raindhankar S/Oi, Dayarairi D'hankar, aged • about 35 years, occupatJ.on »'>ssist£ntTeacher (Science) Govt. Kisan Hj-sher Secono.ary school, Karar.'ikara, Disfcrict Rajnand-gaon. ChaQnua SaUu S/o. Sadnu Ssm Sshu, aged aboufc 32 yea.i.'s, occupafclon 'peon, Govt. Kisan Hlgher seconaary scaool, Kararai^ara, U-i-strict RajnandgaoB cont.<3.»*2»* 02 10, Bhonduram Sahu S/o Odla Ram sahu, aged about 33 yearss occupation peon, Govt Klsan Higher Secondary School Karainksra Dlstr3.et Rajnano.gaon» Bhengraj Ganjir S/o Sbrj. Khamhanlal aged about 34 years, occupafcion peoa, GovfcoElsan Hicrber Secondarv gchool Karamara, district Rajnandgaon. tl- •K: TT r;''TDT\T'?;i::^f::S A-l ^--t- -> -i-Tu'A.^nt^.U; N D 1« v-^ T'he state of Chhattisgarh,through the »~i Secretary departiaent of School Eciucstion, D.K.Buildinci.Ra.L'oar. '•' 2« The Diredtor, Public Instructions, Raipur. 3 o Commissioner, Pabli.c Instructions, Raipar» 4» District Education Officer, Bajnaadgaon Disfcrict Rajnandgaon. 5» Chief Executlve Office.E, Dlstrict paachayat Rajnandgaon o RESPOND32t7TS -/ l-iS=3L££2£l=OEJSi2^S-AS23£±£S-.SlSZ^Z_2I.-IlS CONS'FITUTION 03- INDIA A I: Q ' V7,, v HIGH COURI‘ OF CHHATTISGARH AT BILAESPUxr;vm*\ 2 MN" Wn't Pgtition No. 2622 of 2001 Petitioners Bhojraj Choudhmy and others VersuS Respondents The Stats of Chhattisgarh and others WritM Petition No, 1403 of 2002 Petitioner Tap Chand Sahu Versus ‘ Respondents The State of Chhattisgarh 311d 0th€rs K Pest for onier 011 10 July, 2006. g5 5di- ‘ I J Satish K. Agnihotri ; Judge mf‘moca V12? HIGH COURT OF CHI-IATTISGARH AT BILASPUR Writ Petition No. 2622 of 2001 Petitionérs Bhojraj Choudhaxy and others -\ V€rsus Respondents The State of Chhattisgarh and others Writ Peh'tion No. 1403 of 2002 Petitioner Top Chand Sahu Vorsus Respondeots The Stats of Chhattisgaxh and others single 36nd: : Hon’blo Mr. Justice Satish K. Aglihotri. Shri Awadh Tripathi, Advocatc for the petitioners. Smt. Anju Abuja, Deputy Govt. Advocate for the respondents No. 1 to 4. ORDER ( ,2 afiuly, 2006) The following order of the Court is passed by Satish K. Agnihotri, 5 Writ Petition No. 2622 of 2001 and Writ Petition No. 1403 of 2002C A, involve the same question of law, as to Whether the petitionere being employee of a private school are entitled to absomtjon in service by the Government, at the time of taking over of the school by the Government. Thus, both the petitions are being decided together. The facts in nutshell are as under:- Wn't Petition No. 2622 of 2001 The petitioners were employed in the Kisan Higher Secondary School, Karamkara. The petitioners No. 1 to 5 were working as Upper Division Teacher, petitioner No.6 was working as Craft 'Teacher, petitioner No.7 was working as Assistant Teacher (Science) and the O[ \: 128 petitioners No, 8 t0 10 we1‘e working as Peons. The Respondent tate by 1ett€r dated 26.9. 1998 (Annexure P/ 7) infomed the Commissicmer, Public Education, communicating the. consent of the Government that the Government had agneed to take over the private Kisan Higher Secondary School, Karmkara, Distn'ct- Rajnandgaon with the following staffing pattern:- Serial Designation Number Pay scale No. subject to certain terms and conditions, including that the employees working in the said school would be absorbed after screening on the basis of their qualifications, following the reservation policy. The school was accordingly, taken over by the Government wef. 1. 12. 1998, as per the communication dated 1. 1. 1999 (Annexnie P/ 8). Thereaiter vide memo dated 22.7.2005 seven more posts i.e. 3 posts of Shiksha Karmi Grade-ll, 1 post of Shiksha Kanni Grade—III and 3 posts of Peons, were sanctioned by the State] respondents. Writ Petition No. 1403/2002 The petitioner was appointed as Upper Division Teacher on 2.7.1982 in Kisan Higher Secondary School, Kaxamkaxa. The said school was taken over by the Government, with the stailing pattern, as stated above. Thereafter the petitioner was promoted to the post of Lecturer t on 28.7.1997. The petitioner could not be absorbed because he was not eligible for the post of either as Lecturer or as Upper Division ¢ Teacher but he was eligible for appointment on lOWer grade i.e. on the 1. Principal 01 8000— 13500 2. Lecturer (Shjksha ’ Kanm' OS 1200—2060 Grade-I) 3. Lowe Division Clerk 0 1 Rs._ 4OOI— Part- time 7"”. post of Lawer Division Teacher. However, the petitioner could not be appointed even on the post of Lower Division Teacher on fhe ground of non-availability of the sanctioned post. 3. Shri Awadh Tripa‘fhi, leaxned counsel appealing for the petitioners, in aforementioned both the writ petitions, submitted that the Joint Director vide letter dated 27.8.1993 (Anuexure P/4) addressed to the Diiector, Public Instructions informed that keeping in View the number of students, the school requixed 17 posts and presently 17 p employees were working. However, the reservation was not followed fully. It was, therefore, recommended that the number of employees as per their working staffing patterns be sanctioned. 4. . Learned counsel further submitted that the petitioners should be absorbed on the lower grade, if they are not eligible for the post on which they were working. [gained counsel relied on a circular dated 26.6. 1995 (Annexnre R/ 2) to the etl‘ect that Upper Division Teachers, Lecturers and other stah'would be absorbed on the post held by them at the time of taking over of the institution under the Government control provided (i) he is qualified to the post held by him, (ii) and, he is receiving the prescribed scale of pay at the cadre. A person who does not fulfill the conditions laid down in sub-para (i) and (ii) above, may be absorbed in lower gradejpost for which he is entitled on the strength of his qualifications and pay. Learned counsel on the basis of the above stated circular submitted that the petitioners have right to be absorbed subject to the qualifications possessed by them. If the petitioners are not qualified for the post held by them, they may be absorbed in lower grade] post. Learned counsel further submitted that though the requirement of the employee in the private institution taken {over by the State Government was 17, as recommended by the Joint Director,wPublic ‘ Instructions, but 111a Government has approvad only 14 posts, as out 0f than, thr€€ persons W€re not qualified for tha posts held by than, It was furthar submitted that ths petitioner in W.P.No. 1403/2002, as per the scheme of the Government is entitled for absorption on the post of Lower Division Teacher. it was accordingly submitted that the State] Respondent be directed to sanction more posts, keeping inview the eligibility of the employees(petitioners) for their absorption as the Goveiilnient is under an obligation as per the cincular/memo dated 26.6. 1995. Smt, Anju Ahuja, learned Deputy Govt. Advocate, appearing for the respondent/State, on the contrary, contended that the petition deserved to be dismissed, firstly on the ground that the petitioners have not approached this Court within the reasonable time and as such the petition be dismissed on the ground of delay. Secondly, the cmation of a post is a policy decision of the State Government, keeping in View the financial position of the State which was known to the employees working in the institution at the time of taking over of the institution. The policy decision taken by the Government does not call for any judicial review, except in case of the same being opposed to public policy or being unconstitutional. The posts were sanctioned, admittedly, on the basis of eligibility of the employees. There is no post of Lower Division Teacher, where the petitioner Shri Top Chand Sahu could be absorbed. All the employees~petitioners have been considered in the screening and for want of the required qualification they could not be absorbed. If a person is eligible for the post of Lower Division Teacher, and there is requirement of'Upper Division Teacher, then the post of Lower Division Teacher cannot be created to accommodate an employee, without looking‘into the requirement of the school. The circular dated 26.6. 1995, relied on by learned counsel - {37 for The patitiona‘ does not prescribe that all the employees of the institution, who have been taken over, would be absorbed in Government service. The circular provides for fhe guidelines to absorb only fhose employees who are eligible for the post held by them and in case there is vacancy in the lower grade, the employee can be considered for absorption in the lower grade post. Having heard learned counsel for the parties and having perused the records appended to the peh'tion' and return, it is evident that the circular dated 26.6.1995 provides for absorption of those employees who are eligible on the post held by them at the time of taking over of the inshtution. The absorption to the lower grade] post on the basis of the eligibility depends on the requirement and availability of the post and it is not the condition to absorb each and every employee. . Even if they do not have the required qualification for the post, the State Government has considered the cases of all the 17 employees for absorption and in the screening only 14 persons were found eligible for appointment on various posts. Remaining three could not be found eligible for the posts held by them and they could further not be absorbed on lower grade/post on account of non-availability of the posts. 8. The Supreme Comt in the case of Union of India and others Vs. Tejram Paraehramji Bombhate and others { (1991) 3 SCC 11}, wherein the question of law involved was, Whether the Central Government can be directed to create sn$cient number of posts for regularizing the services on regular basis, the Supreme Court has observed in para 4, as under:- “4. ......... The Ceniml Govenunent has taken a decision that it will not involve itselfm sanctioning oremnning classes beyond the Plimary School level. It is a policy matter involving {3i— j$nam3ia1 burden NO cow”! or the m'bunal Gould compel the gavemmem to change its pelicy invoking expenditure. We Tribunal therefore, cauld mi have issued the directiow as it did to campel §he Central Gavemment ta assess {he needs of the schaai and create the necessary posts wiiheut supper! 0f law. " The Supreme Court in the case of Secretary, State of Karnataka and others Vs. Umadevi (3) and cthers { (2006) 4 SCC 1} in para 43 observed, as under: “43. The oouris must be earef$d in ensuring thaj meg d0 ~ w no: interfere unduly wiih she economic an'angemen! of its waiis by zhe State or its insimmentalities or lend themselves the instruments to facilitate the bypassing of the eonstitutional and statutory mandates.” It is well settled pn'nciples of law that the Government cannot be directed to create a post which may disturb the Elancial status of the“ Govennnent, whereby fuhds are allocated to various depaxtments for vexious purposes. Even othexwise, at this stage the. State Government cannot be directed to create posts to accommodate the petitioners, who could. not be absorbed by the Government on taking over the school/institution as per their qualification when the said posts may _w p not be :equir'ed by the institution. There are total 11 petitioners in both the. petitions, out ofwhom, some have been absorbed on account of further sanction of posts, subsequently, vide ottler dated 22.7.2005. The remaining petitioners, who could not be absorbed on account of the reasons stated-above, have no right to be absorbed under the circular dated 26.6.1995 and the order dated 1.1.1999, taking over the institution. For the reasons stated above, the petitions fail and ale accordingly dismissed. No order as to costs. TI. I Sdl- '1 Satish K. Agnihotri a * h i Judge h g Thakur