Himachal Pradesh High Court
Ravinder Kumar vs State Of H.P. & Others on 25 May, 2015
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
CWP No.2462 of 2012..
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Decided on : 25th May, 2015.
Ravinder Kumar .....Petitioner.
Versus
State of H.P. & others ....Respondents.
Coram:
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1
For the Petitioner: Mr. Varun Thakur, Advocate.
For Respondents No.1 to 3: Mr. Vivek Attri, Dy. A.G.
Sureshwar Thakur, Judge (oral)
The petitioner herein earlier instituted an Civil Writ Petition bearing CWP No.7634 of 2010 before this Court.
Therein he had claimed that his disengagement from service as PTA Lecturer (Political Science) at Government Senior Secondary School, Dhaloon, District Kangra, H.P. was illegal.
The said writ petition instituted by the petitioner herein was 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 18:14:51 :::HCHP 2decided by this Court on 6.12.2010 with the hereinafter extracted directions to the respondents:-
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"An attempt shall be made by the Directorate to see as to whether the regularly appointed teachers, be it on contract basis or otherwise selected by the Himachal Pradesh Subordinate Services Selection Board, can be accommodated in any of the posts, which are lying vacant even without PTA teachers. After making such an attempt only the replacement of PTA teachers need to be made. It will be open to the petitioners also to point out such vacant posts where services of the teachers are required, so as to enable the Directorate to pass appropriate orders, as above. This exercise shall be completed within a period of six weeks from the date of receipt/production of a copy of this judgment by the petitioners. In case any regularly appointed/contract teacher is to be replaced in implementation of this judgment, that teacher shall also be afforded an opportunity of hearing."
2. The learned counsel appearing for the petitioner submits that the respondents in pursuance to the afore extracted directions rendered by this Court have re-engaged the services of the petitioner as PTA in the school concerned.
However, even after the rendition of directions by this Court in CWP No.7634 of 2010, on 6.12.2010, in pursuance whereof, the ::: Downloaded on - 15/04/2017 18:14:51 :::HCHP 3 petitioner came to be re-engaged in service as PTA Lecturer (Political Science) in the school concerned, the petitioner before .
this Court has now claimed the relief of his disengagement from service w.e.f. 10th July, 2009 to 2nd February, 2011 being declared as wrong and illegal with a concomitant relief of seniority as well as back wages being afforded to him.
3. The learned counsel for the petitioner has been unable to demonstrate, that the aforesaid reliefs as may have been afforded by this Court to the petitioner, it while constituting accrual of cause of action in favour of the petitioner alongwith the other entwined or blended causes of action with it, had been agitated for redressal for the first time before this Court. However, given the factum that the petitioner earlier had instituted a petition before this Court bearing CWP No. 7634 of 2010 with an accrual contemporaneous to its institution then before this Court, of all accurable causes of action, inclusive of the one now canvassed for redressal before this Court or when it was then open to the petitioner to claim all reliefs inclusive of directions being rendered by this Court qua his services while having been terminated illegally, he be ::: Downloaded on - 15/04/2017 18:14:51 :::HCHP 4 reengaged in service, besides his period of disengagement from service being declared to be wrong and illegal and .
concomitantly, the ensuing relief flowing in favour of the petitioner of his being entitled to salary for the period of his disengagement as well as seniority being afforded in his favour.
However, an incisive reading of the directions earlier rendered by this Court which stand extracted hereinabove omit to portray that the reliefs as now claimed had come to be afforded in favour of the petitioner. Obviously, non affording of reliefs aforesaid earlier by this Court which stand now claimed by the petitioner naturally prods this Court, to conclude that the petitioner had omitted to claim reliefs in the previously instituted writ petition qua facets inclusive of the one incorporated for redressal in the instant writ petition, though, were in existence or were alive earlier. Consequently, when in case the petitioner had ventilated his claim qua the grievances now ventitlated before this Court, he would have been empowered to adduce cogent material in proof of the fact of his having remained not gainfully employed w.e.f. 10.07.2009 to 2.2.2011 in which eventuality he would have been foisted with a tenable right to ::: Downloaded on - 15/04/2017 18:14:51 :::HCHP 5 claim back wages as well as seniority w.e.f. 10.07.2009 to 2.2.2011. Assuming that the reliefs as now agitated before this .
Court by the petitioner in the instant petition, were claimed by him in the earlier petition, nonetheless, this Court while rendering directions on 6.12.2010 when has omitted to afford the reliefs as now agitated before this Court or which may have been claimed earlier in writ petition No.7634 of 2010, consequently, when in case the reliefs assumingly as now claimed before this Court had come to be refused earlier then it was open to the petitioner to assail the non affording of reliefs to him qua back wages from 10.07.2009 to 2..2.2011 by way of availing his remedy of challenging the directions of this Court by filing a Special Leave Petition before the Hon'ble Apex Court.
However, the remedy as availed by the petitioner by instituting a separate writ petition even when the reliefs as now claimed were claimable earlier and which for lack of production of the apposite pleadings comprised in the earlier instituted writ petition, are to be construed to be omitted to have been claimed earlier, bars and estops the petitioner to claim the said relief as had accrued to him earlier alongwith other reliefs then agitated.
::: Downloaded on - 15/04/2017 18:14:51 :::HCHP 6The further concomitant sequeling inference which arises from the fact of the learned counsel for the petitioner omitting to .
place on record pleadings of the earlier petition and theirs divulging his having claimed the relief parameteria to the one as claimed herein and theirs having come to be refused by this Court in which eventuality, the remedy available to the petitioner was not by way of instant petition rather by way of challenging the earlier orders of this Court by instituting a Special Leave Petition before the Hon'ble Apex Court, as also, the omission on the part of the petitioner to claim all refliefs accrued earlier inclusive of the instant reliefs which reliefs obviously along with other reliefs then claimed in the earlier petition, as a corollary arose contemporaneously along with them earlier, theirs having been omitted to be claimed or ventilated then, wholly forestalls the claim of the petitioner to claim/agitate them now before this Court. Furthermore, the absence of pleadings to the extent aforesaid and the absence of apposite material portraying the fact that the relief as now claimed before this Court in the instant petition was not claimed in the earlier writ petition, constitutes waiver as well as ::: Downloaded on - 15/04/2017 18:14:51 :::HCHP 7 abandonment of the reliefs as now agitated in the instant writ petition. The apt deduction as tenably ensues is that the .
petitioner for the period of his disengagement w.e.f. 10th July, 2009 to 2.2.2011 had remained gainfully employed. In aftermath, given the fact of his having remained gainfully employed w.e.f. 10.07.2009 to 2.2.2011, his claim for back wages for the aforesaid period is not made out.
4. For the foregoing reasons, there is no merit in this petition which is accordingly dismissed. All pending applications also stand disposed of. No costs.
Dasti copy.
25th May, 2015. ( Sureshwar Thakur ),
(jai) Judge.
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