State Of Himachal Pradesh And Others vs Reeta Devi And Others

Satyen Vaidya, J

By way of instant petition, the petitioners have assailed the order dated 23.05.2017 passed by the State Administrative Tribunal (for short,

Tribunalâ€​) in O.A. No. 3431 of 2016.

Respondent herein preferred O.A. No. 3431 of 2016, before the Tribunal praying inter-alia for following reliefs: -

(i) That the respondent department may kindly be directed to frame a policy for conferring contractual status on the teachers working on SMC under

Local Fund/Student Welfare Fund basis in the Government School, and for regularisation in due course of time.

(ii) That the oral termination of the applicant may kindly be quashed and set aside and she may be held entitled to all consequential benefits from due

date;

(iii) That the respondents may kindly be directed to release grant in aid in favour of the applicant from due date i.e. 5.5.2012;

(iv) That in the alternative the respondent department may be directed to treat the applicant continue in service in view of notification dated

17.07.2012, extended from time, with all consequential benefits;â€​

The above noted reliefs were sought on the premise that the respondent herein was appointed as Physical Education Trainer in Government Senior

Secondary School, Mohari, Tehsil Theog, District Shimla, H.P., by the School Management Committee on 05.05.2012. It was averred that services of

the respondent were orally terminated by the school and she was not being allowed to continue as PET despite availability of vacancy. As per

respondent, in the year 2013, she had filed a Writ Petition before this Court challenging her termination and the said petition was disposed of with a

direction to the petitioners to consider her case sympathetically.

Petitioners submitted their reply, inter alia raising the objection of limitation. It was submitted that the disengagement of respondent was effected on

31.12.2013 and she had approached the Tribunal in July, 2016 after expiry of the period of limitation prescribed under The Administrative Tribunal

Act, 1985. It was also averred that the respondent had earlier filed CWP No. 4177 of 2013 on the same grounds as raised in O.A. No. 3431 of 2016

and the same was rejected by the Division Bench of this Court vide judgment dated 25.10.2013 passed in bunch of matters with CWP No. 3162 of

2013 titled Harish Kumar versus State of H.P. & others as lead case. On merits, also the claim of respondent was contested on the grounds, firstly

that her appointment was not in accordance with law as the same was without prior approval of the competent authority as required under RTE Act

and Rules framed thereunder and secondly, the respondent also did not have the requisite qualification for the post of PET as per the R & P Rules.

The learned Tribunal, however, vide impugned order disposed of O.A. 3431 of 2016 in following terms:-

“3. It is manifest from the communication dated 9th March, 2017 addressed by the Deputy Secretary (Elementary Education) to the Government

of Himachal Pradesh to the Director Higher Education, Himachal Pradesh and respondent No.2, the Director Elementary Education, Himachal

Pradesh, with copies, inter alia, to respondent No.3, the Deputy Director Elementary Education, Shimla, District Shimla, and 4, the Principal, GSSS

Mohari, Tehsil Theog, District Shimla, H.P., (copy filed which is taken on record), text whereof is as under, that the Department is alive to the

situation:

Education Department

Government of Himachal Pradesh

To

The Director, Higher Education, Himachal Pradesh, Shimla-171001

The Director, Elementary Education, Himachal Pradesh, Shimla-171001.

Dated; Shimla-171002, the 9th March, 2017

Subject: Regarding continuation of already engaged SMC Teachers under Smc Policy in Elementary/Higher Education, Departments of Himachal

Pradesh for the academic session 2017-18.

Sir,

I am directed to refer to your letters No. EDN-H9190B910-14/2012-SMC-Gen dated 02.03.2017 and No. EDN-H(ELE)-SMC/1426/2015 Supreme

Court dated 28.2.2017 on the subject cited above and to convey approval of the Government to continue already engaged SMC provided teachers

under SMC Policy dated 17.7.2012 amended from time to time in relaxation of clause 10 of SMC Policy for the academic session 2017-18.

You are therefore, requested to take further necessary action accordingly.

Yours faithfully,

Sd/

(Ved Bhushan Sagyan)

Deputy Secretary (Ele.Edu) to the Government of Himachal Pradesh.

In view of the above, the original application is disposed of with a direction to the respondents/competent authority to allow the applicant to join duty

as PET at GSSS Mohari, Tehsil Theog, District Shimla as an SMC appointee on the same terms and conditions as before, in accordance with her

initial appointment, vide resolution dated 05.05.2012, Annexure A-2 (colly).

It shall be the responsibility of the applicant to produce certified/self-attested copies of this order before respondents No.2 to 4 and 5, the President,

School Management Committee, GSSS Mohari, Tehsil District Shimla, H.P., forthwith, but not later than a week from today.â€​

The petitioners have assailed the impugned order on the grounds that the engagement of the respondent by SMC was not in accordance with law.

She never held a civil post and further the claim put forth by respondent in O.A. No. 3431 of 2016 was hit by principle of res judicata in view of the

judgment dated 25.10.2013 passed in CWP No. 4177of 2013. Further, the grievance of the petitioners is that the Tribunal failed to exercise jurisdiction

in accordance with law as it did not consider the objection of petitioners with respect to limitation. Even letter dated 9th March, 2017 on which the

Tribunal placed reliance pertained only to those teachers employed by SMC who were continuing in service.

We have heard Mr. Ashok Sharma, learned Advocate General, for the petitioners and Mr. Parkash Chand, Advocate, for respondent and have also

gone through the entire records.

It is evident from a perusal of impugned order that the learned Tribunal had not decided the Original Application on merits. Since, the petitioners

were contesting the claim of the respondent by raising specific objection, the original application could not have been decided without considering the

rival contentions of the parties on merits. It is also not borne out from the impugned order that the petitioners had given up their defence or had

consented for passing of the impugned order in the manner it was passed.

Undisputedly, the respondent had already been disengaged even before filing of O.A. NO. 3431 of 2013 before the Tribunal. Though, the

respondent had not disclosed the date of her disengagement, but petitioners in their reply to O.A. specifically mentioned the date of her disengagement

as 31.12.2013, which fact was not rebutted by the respondent. That being so, we have no hesitation to hold that learned Tribunal erred in passing the

impugned order on the basis of letter dated 9th March, 2017 which had reference to altogether a different category. As per said letter, the

Government had given approval to continue those SMC provided teachers who were already engaged under SMC Policy dated 17.07.2012 that too for

academic session 2017-2018 only. The case of the respondent was that she was engaged by SMC on 05.05.2012 i.e. even prior to the coming into

being of SMC Policy dated 17.07.2012. A perusal of SMC resolution dated 5.5.2012 reveals that the respondent was recommended to be appointed in

petitioner No. 4 School without any remuneration. Another document i.e. Annexure A-3 annexed with the original application reveals that copy of the

aforesaid resolution was forwarded to the Deputy Director, Elementary Education, Himachal Pradesh for further directions, but there is nothing on

record to suggest that the petitioners had ever approved the resolution of SMC recommending the appointment of respondent as PET. That being so,

above mentioned letter dated 9th March, 2017 could not be made applicable to the case of the respondent for the reasons that respondent was not

continuing in service on the date of said letter and she was also not appointed under the SMC Policy dated 17.07.2012.

Further, the contention of the petitioners that CWP No.4177 of 2013, filed by respondent in the year 2013 before this Court for the same relief and

on the same ground, stood dismissed, has not been rebutted by the respondent. A perusal of the judgment passed by the Division Bench of this Court

on 25.10.2013 in bunch of matters with lead case being CWP No. 3162 of 2013, reveals that CWP No.4177 of 2013 filed by the respondent was also

included therein. There was a disagreement on opinion between the learned Judges constituting the Division Bench. The matter was thus placed

before the learned third Judge and on the basis of judgment passed by learned third judge, the petitions were disposed of on 25.10.2013 in following

terms: -

“Considering the opinion of third Judge, all these petitions are disposed of on the following terms:

Re: Non-tribal areas.

a) The relief claimed against the State Government to bear the liability of remuneration of the petitioners and similarly placed persons appointed on

contract basis by the concerned SMCs in non-tribal areas, is rejected.

b) The SMCs in non-tribal areas shall pay the remuneration to the teachers appointed by it on contract basis for the period they have worked regularly

as per the terms specified in contract.

c) The State Government may consider of formulating a policy to compensate the SMCs in non-tribal areas by providing commensurate grant-in-aid in

respect of contract teachers appointed by it due to fortuitous situation.

d) The State Authorities shall make inquiry on case-to-case basis against the respective SMCs in non-tribal areas and take action, as may be

warranted by law, including against the members of the SMC.

Re: Tribal Areas:

a) The assurance given by the State through the learned Advocate General that the contract teachers appointed by the SMCs in tribal areas will be

paid remuneration as per the policy document, is accepted. The contract teachers appointed by the SMCs in tribal areas would be entitled to receive

amo0unt as specified in the policy document, dated 17th July, 2012.

Re: Tribal and non-tribal areas:

a) The relief of continuing the petitioners beyond the contract period and until the appointment of regular teacher by following R&P Rules, is rejected.

b) The relief claimed by the petitioners to give similar benefits as given to PTA and Vidya Upasaks, is rejected.

c) The State-shall ensure strict compliance of the provisions of the Right of Children to Free and Compulsory Education Act, 2009, more specifically,

Sections 25, 26 and 27 and the relevant Rules framed thereunder.

Needless to observe that interim relief in the respective cases, if any, shall stand vacated forthwith in view of the disposal of the writ petitions.â€​

Thus, the claims as raised by the respondent in CWP No.4177 of 2013 were rejected. In view of this factual position, the respondent could not raise

the same dispute in O.A. No. 3431 of 2016 before the learned Tribunal. The petitioners had specifically averred in reply to O.A. No. 3431 of 2016

that the disengagement of the respondent was in pursuance to judgment dated 25.10.2013 passed by this Court in a bunch of matter with lead case

No.3162 of 2013 which included CWP No. 4177 of 2013 filed by the respondent.

The respondent was disengaged on 31.12.2013 and she challenged her disengagement, by way of O.A. 3431 of 2016 in July, 2016. Thus O.A. No.

3431 of 2016 filed before the learned Tribunal was not within the prescribed period of limitation under Section 21 of the Administrative Tribunals Act,

1985. No explanation was submitted by respondent seeking condonation of delay in filing the original application. In any case, despite specific objection

of limitation raised by the petitioners, the learned Tribunal had erred in not considering the same, in accordance with law. It is settled that in view of

language of Section 21 of the Administrative Tribunals Act, it is the duty of the Tribunal to first consider whether the application is within limitation?

As evident from the facts of the case, the learned tribunal has erred in not discharging its legal obligation in accordance with law. The Hon'ble

Supreme Court in D.C.S. Negi vs. Union of India and others, (2018)16 SCC 721, has held as under: -

 “12. Before parting with the case, we consider it necessary to note that for quite some time, the Administrative Tribunals established under the

Act have been entertaining and deciding the applications filed Under Section 19 of the Act in complete disregard of the mandate of Section 21, which

reads as under:

Limitation:- (1) A Tribunal shall not admit an application;

(a) in a case where a final order such as is mentioned in Clause (a) of Sub-section (2) of Section 20 has been made in connection with the grievance

unless the application is made, within one year from the date on which such final order has been made;

(b) in a case where an appeal or representation such as is mentioned in Clause (b) of Sub-section (2) of Section 20 has been made and a period of six

months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months.

(2) Notwithstanding anything contained in Sub-section (1), where-

(a) the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years

immediately preceding the date on which the jurisdiction, powers and authority of the Tribunal becomes exercisable under this Act in respect of the

matter to which such order relates; and

(b) no proceedings for the redressal of such grievance had been commenced before the said date before any High Court, the application shall be

entertained by the Tribunal if it is made within the period referred to in Clause (a), or, as the case may be, Clause (b), of Sub-section (1) or within a

period of six months from the said date, whichever period expires later.

(3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2), an application may be admitted after the period of one year specified in

Clause (a) or Clause (b) of Sub- section (1) or, as the case may be, the period of six months specified in Sub- section (2), if the applicant satisfies the

Tribunal that he had sufficient cause for not making the application within such period.

A reading of the plain language of the above reproduced Section makes it clear that the Tribunal cannot admit an application unless the same is

made within the time specified in Clauses (a) and (b) of Section 21(1) or Section 21(2) or an order is passed in terms of Sub-section (3) for

entertaining the application after the prescribed period. Since Section 21(1) is couched in negative form, it is the duty of the Tribunal to first consider

whether the application is within limitation. An application can be admitted only if the same is found to have been made within the prescribed period or

sufficient cause is shown for not doing so within the prescribed period and an order is passed Under Section 21(3).

In the present case, the Tribunal entertained and decided the application without even adverting to the issue of limitation. Learned Counsel for the

Petitioner tried to explain this omission by pointing out that in the reply filed on behalf of the Respondents, no such objection was raised but we have

not felt impressed. In our view, the Tribunal cannot abdicate its duty to act in accordance with the statute under which it is established and the fact

that an objection of limitation is not raised by the Respondent/non applicant is not at all relevant.â€​

The impugned order, in view of the above discussion, cannot be sustained for more than one reason. The writ petition is allowed. Therefore, the

impugned order dated 23.05.2017 passed in O.A. No.3431 of 2016 by the learned Tribunal is set aside and the O.A. filed by respondent is ordered to

be dismissed. No order as to the costs. Pending application(s), if any, shall also stand disposed of.