Himachal Pradesh High Court
Liaq Ram Sharma vs State Of H.P. And Others on 28 September, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.7019 of 2023 Date of Decision: 28.9.2023 .
_______________________________________________________ Liaq Ram Sharma .......Petitioner Versus State of H.P. and others ... Respondents _______________________________________________________ Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
of Whether approved for reporting? 1 For the Petitioners: Mr. Mukul Sood, Advocate. For the Respondents: Mr. Rajan Kahol, Mr. Vishal Panwar and Mr. B.C.Verma, Additional Advocate Generals rt with Mr. Ravi Chauhan, Deputy Advocate General.
____________________________________________________________ Sandeep Sharma, Judge(oral):
By way of instant petition filed under Article 226 of the Constitution of India, petitioner has prayed for following relief:-
"i) That writ in nature of the certiorari may be issued and office memorandum dated 6.7.2020 may kindly quashed and set aside (Annexure P-5).
ii) That writ of mandamus may kindly be issued directing the respondent to grant benefit of earned leave to the petitioner from the date of regularization i.e.1.1.2007 in view of judgment passed in CWP No.5043 of 2023, titled Sunita Sangroli versus State of H.P. with all consequential benefits in the interest of justice and fair play."1
Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 04/10/2023 20:34:16 :::CIS 22. Notice. Mr. Rajan Kahol, learned Additional Advocate General, appears and waives service of notice on behalf of the respondents.
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3. Having regard to the nature of the order proposed to be passed, coupled with the fact that impugned order, sought to be quashed in the instant proceedings, already stands quashed vide of judgment dated 8.08.2023 passed by Co-ordinate Bench of this Court in CWP No.5043 of 2022 titled Sunita Sangroli versus State of H.P. and others, there appears to be no necessity to call for the reply from rt the respondents.
4. Precisely, the facts of the case, as emerge from the record are that in the year 1996, Government of Himachal Pradesh framed a policy to appoint teachers against the short tenure/leave vacancy on contract basis. In the year 1998, petitioner was appointed on contract basis by the respondent-department as TGT (Arts).
Though, as per policy of regularization framed by Government of Himachal Pradesh petitioner was required to be regularized after his having completed eight years, which he had actually completed in the year 2007 but since department failed to regularize him, he approached this Court by way of Civil Writ Petition No.2227 of 2022, tilted Liaq Ram Sharma and others vs. State of H.P and others, ::: Downloaded on - 04/10/2023 20:34:16 :::CIS 3 which ultimately came to be disposed of vide judgment dated 12.04.202 (Annexure P-1), whereby direction came to be issued to the respondents to decide the case of the petitioner in light of the .
judgment rendered by this Court in CWP No.1853 of 2009-D, titled Arpana Bali versus The State of H.P. and others, decided on 10.4.2013.
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5. Though, pursuant to aforesaid direction issued by Co-
ordinate Bench of this Court, respondent-department considered the case of the petitioner in light of judgment passed in Arpana Bali rt case(supra), but failed to grant benefit of leave encashment. Though, respondents vide order dated 17.11.2022 (Annexure P-2) passed in purported compliance of judgment dated 12.04.2022 passed by Co-
ordinate Bench of this Court in CWP No.2227 of 2022, regularized the services of the petitioner with retrospective effect, but since petitioner was not given benefit of leave encashment from retrospective effect, he has approached this court in the instant proceedings, praying therein for the reliefs, as have been reproduced hereinabove.
6. Precisely, the grouse of the petitioner as has been highlighted in the petition and further canvassed by Mr. Mukul Sood, learned counsel for the petitioner, is that respondent while passing ::: Downloaded on - 04/10/2023 20:34:16 :::CIS 4 order dated 17.11.2022(Annexure P-2), wrongly placed reliance upon office memorandum dated 6th July 2020(Annexure P-3), whereby clarification was issued with regard to accumulation of earned leave .
from the date of regularization of service retrospectively as per court orders etc. He submitted that aforesaid office memorandum was quashed and set aside by Co-ordinate Bench of this Court in CWP No.5043 of 2022, titled Sunita Sangroli versus State of H.P. and of others, decided on 8.08.2023 and as such, there was otherwise no occasion for the respondents to take note of aforesaid office memorandum.
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7. Mr. Rajan Kahol, learned Additional Advocate General while fairly admitting factum with regard to quashment of office memorandum dated 6th July 2020, stated that since order dated 17.11.2022 was passed before passing of judgment dated 8.8.2023 in CWP No.5043 of 2022, wherein aforesaid office memorandum came to be quashed and set aside, there was otherwise no occasion for the respondent-department to not to take into consideration office memorandum dated 6th July, 2020 while passing impugned order dated 17.11.2022.
8. Having heard learned counsel for the parties and perused the material available on record, this Court finds that though pursuant ::: Downloaded on - 04/10/2023 20:34:16 :::CIS 5 to directions contained in judgment dated 12.04.2022 filed by writ petitioner, respondent-department vide order dated 17.11.2022 regularized his service from retrospective effect, but earned leave was .
not granted from the retrospective effect in light of office memorandum dated 6th July, 2020, issued by Government of Himachal Pradesh, wherein it came to be clarified by Deputy Secretary (Finance) to the Government of Himachal Pradesh to all the of administrative Secretaries of Government of Himachal Pradesh that there is no such provision in the CCS(Leave) Rules, 1972 to grant the rt benefit of earned leave from the retrospective date and as such, where the services of the employees are regularized from the retrospective date, as a result of Government decision or due to final Court orders, the benefit of accumulation of earned leave from the retrospective date due to regularization in service from the back date is not admissible.
9. Aforesaid office memorandum dated 6th July 2020 ultimately came to be quashed and set aside vide judgment passed by Co-ordinate Bench of this Court in Sunita Sangroli case (supra), wherein Co-ordinate Bench of this Court while setting aside the aforesaid order, directed the respondents to grant benefit of earned leave from the initial date of regularization in the case of Sunita Sangroli case (supra). Now, the precise grouse of the petitioner is ::: Downloaded on - 04/10/2023 20:34:16 :::CIS 6 that since office memorandum dated 6th July 2020 stands quashed, he is also entitled to the benefit of earned leave from the revised date of regularization.
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10. Having taken note of the fact that office memorandum 6th July, 2020 stands quashed, there appears to be merit in the contention raised on behalf of the petitioner, whose services of admittedly have been regularized from the retrospective date, but was not granted benefit of earned leave in terms of clarification issued vide communication rt dated 6th July 2020. Since aforesaid communication already stands quashed, petitioner is also entitled to earned leave from retrospective effect.
11. No doubt, at the time of passing of order dated 17.11.2022, office memorandum dated 6th July 2020 was very much in existence and as such, no illegality can be said to have been committed by the respondent-department while passing the impugned order dated 17.11.2022, but now since office memorandum dated 6th July 2020 stands quashed, prayer made on behalf of the petitioner for grant of earned leave from retrospective date deserves to be allowed.
12. Consequently, in view of the above, the present petition is allowed and order dated 17.11.2022 is quashed inasmuch as petitioner has not been granted benefit of earned leave from the ::: Downloaded on - 04/10/2023 20:34:16 :::CIS 7 retrospective date with further direction to the respondents to grant benefit of earned leave to the petitioner from the retrospective date forthwith. Pending applications, if any, also stands disposed of.
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(Sandeep Sharma), Judge September 28, 2023 (shankar) of rt ::: Downloaded on - 04/10/2023 20:34:16 :::CIS