Himachal Pradesh High Court
Ms. Nigma Devi vs State Of Himachal Pradesh on 30 August, 2022
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 30th DAY OF AUGUST, 2022
BEFORE
.
HON'BLE MR. JUSTICE VIVEK SINGH THAKUR
CIVIL WRIT PETITION No. 1314 OF 2016
Between:-
MS. NIGMA DEVI, WIFE OF SH. SUBHASH
CHAND, R/O VILLAGE & POST OFFICE
SANDHOLE, DISTRICT MANDI, H.P. ...PETITIONER
(BY SH. ONKAR JAIRATH, ADVOCATE.)
AND r
1. STATE OF HIMACHAL PRADESH
THROUGH ADDITIONAL CHIEF
SECRETARY (EDUCATION) TO THE
GOVERNMENT OF HIMACHAL PRADESH,
SHIMLA-2.
2. THE DIRECTOR OF ELEMENTARY
EDUCATION, HIMACHAL PRADESH,
SHIMLA-171001.
3. THE DISTRICT EDUCATION OFFICER,
KANGRA DISTRICT AT DHARAMSHALA,
HIMACHAL PRADESH. ...RESPONDENTS
(BY SH. RAJU RAM RAHI,
DEPUTY ADVOCATE GENERAL.)
Whether approved for reporting? Yes.
This petition coming on for pronouncement this day, the
Court passed the following:
JUDGMENT
Present petition has been filed seeking direction to the respondents to pay compensation to the tune of 15,00,000/- or reasonable compensation as deemed fit by the Court in the interest of justice, on account of debarring the petitioner from appointment and joining service as Language Teacher in Education Department of Government of Himachal Pradesh, despite the fact that she was having ::: Downloaded on - 30/08/2022 20:04:52 :::CIS 2 CWP No. 1314 of 2016 academic/educational qualification prescribed under Recruitment and Promotion Rules for the said purpose.
2. Petitioner, during the year 1989 passed 'Hindi Shikshan .
Parangat' from Kendriya Hindi Shikshan Mandal, Agra, examination whereof was conducted by Kendriya Hindi Mandal, Agra. Thereafter, petitioner, from Himachal Pradesh University, completed Prabhakar and Graduation as prescribed for Prabhakar passed candidate, with Hindi as
3. Petitioner, r after to elective subject and English and History as main subjects.
passing 'Hindi Shikshan Parangat' enrolled her with Employment Exchange, Palampur and on acquiring qualification BA and Prabhakar, endorsement to that effect was also made in the Registration of petitioner in Employment Exchange.
4. A candidate with Prabhakar, Graduation and 'Hindi Shikshan Parangat' was eligible for appointment as Language Teacher as these qualifications were recognized as equivalent to prescribed qualifications for appointment as Language Teacher.
5. In the years 1994, 1998, 2001 and 2002, petitioner was sponsored by the concerned Employment Exchange for her appointment as Language Teacher in Education Department, but her candidature was rejected every time with objection that 'Hindi Shikshan Parangat' acquired from Kendriya Hindi Shikshan Mandal, Agra was not recognized, whereas one Nisha Devi, who passed 'Hindi Shikshan Parangat' from Kendriya Hindi Shikshan Mandal, Agra was considered eligible and appointed as Language Teacher.
6. It is further case of the petitioner that Government of India in consultation with Union Public Service Commission and Ministry of Home ::: Downloaded on - 30/08/2022 20:04:52 :::CIS 3 CWP No. 1314 of 2016 Affairs has also recognized the course of study conducted by Kendriya Hindi Sansthan, Agra for the purpose of employment in Central Government by considering 'Hindi Shikshan Parangat' equivalent to .
B.T/B.Ed Degree of an Indian University. Similarly, Central Board of Secondary Education has also recognized the degrees awarded by Kendriya Hindi Sansthan, Agra for the purpose of employment.
Government of Himachal Pradesh also, since 1966 recognized degrees awarded by Kendriya Hindi Sansthan Mandal, Agra for the purpose of employment in service in respective Departments.
7. Feeling aggrieved by rejection of her candidature, petitioner approached erstwhile H.P. State Administrative Tribunal by filing Original Application No. 1733 of 2009, which was transferred to High Court of Himachal Pradesh on abolition of erstwhile H.P. State Administrative Tribunal and was re-registered as CWP (T) No. 2594 of 2008, which, on the basis of reply/stand of respondents-State, was dismissed by learned Single Judge vide judgment dated 16.11.2010 on the ground that 'Hindi Shikshan Parangat' degree of petitioner was not recognized by the State Government for employment.
8. Petitioner assailed the judgment dated 16.11.2010 by filing LPA No. 84 of 2011, titled as Nigma Devi vs. State of Himachal Pradesh and others. On 15.10.2014, Division Bench of this High Court allowed the LPA No. 84 of 2011 and directed the respondents to extend similar benefits as were given to Nisha Devi, who was similarly situated to the petitioner and whose appointment was upheld by erstwhile H.P. state Administrative Tribunal Bench at Dharamshala. Judgment passed in LPA No. 84 of 2011 was never assailed further.
::: Downloaded on - 30/08/2022 20:04:52 :::CIS 4 CWP No. 1314 of 20169. It has also come on record that appointment of Nisha Devi was assailed by one Sarojni Devi in erstwhile H.P. State Administrative Tribunal by filing Original Application and the said Original Application, on .
abolition of H.P. State Administrative Tribunal, was transferred to and registered in this High Court as CWP (T) No. 4595 of 2008, titled as Sarojni Devi vs. State of Himachal Pradesh and others. The said Writ Petition was allowed by learned Single Judge vide judgment dated 6.8.2010. However, vide judgment dated 15.10.2014, LPA No. 257 of 2010, preferred by Nisha Devi against judgment passed in CWP (T) No. 4595 of 2008 was allowed and Nisha Devi was continued in service.
Judgment passed in LPA No. 257 of 2010 was never assailed, rather accepted by the respondents-State.
10. The observation, relevant for the purpose of adjudication of present petition, in judgment dated 15.10.2014 passed in LPA No. 257 of 2010, is as under:-
"3. The dispute in this Letters Patent Appeal is whether the Degree of Parangat from Kendriya Hindi Shikshan Mandal, Agra is recognized with Himachal Pradesh Government and direction to terminate the service of writ respondent No. 3-appellant herein, is correctly made?
4. While addressing the arguments, the learned Counsel for the appellant argued that the issue has already been thrashed out by the Himachal Pradesh Administrative Tribunal, Camp at Dharamshala, in the judgment rendered in O.A. No. 498 of 1998, titled as Ms. Nisha Devi versus State of Himachal Pradesh and others, decided on 23.08.2007, (Annexure A-7), wherein it has been held that the said degree is recognized for the purpose of the employment and the writ petitioner was found eligible for appointment against the Post of Language Teacher and it was held that she was rightly appointed.::: Downloaded on - 30/08/2022 20:04:52 :::CIS 5 CWP No. 1314 of 2016
5. The said judgment has not been questioned by the State till today, has attained finality."
11. After direction passed by this High Court vide judgment .
dated 15.10.2014 in LPA No. 84 of 2011, petitioner, for non compliance of the said direction, approached this High Court by filing COP (C) No. 591 of 2015, wherein respondents were directed to comply with directions within a period of six weeks. For inaction on the part of respondents-
State, petitioner was forced to file one more Contempt Petition COP(C) No. 70 of 2016. During pendency of this petition, reply was filed on behalf of respondents-authority that though respondents decided to offer appointment to the petitioner by considering qualification obtained by her as valid, but she could not be appointed as she had attained age of superannuation on 31.7.2014, i.e. before passing of order by the Division Bench of this Court in LPA No. 84 of 2011 and as such, Contempt Petition COP (C) No. 70 of 2016 was disposed of vide order dated 11.5.2016.
12. In aforesaid circumstances, petitioner has approached this Court seeking direction to respondents to pay compensation, as referred supra.
13. In response to the petition; passing of order in favour of petitioner whereby respondents were directed to give her appointment, adjudication of issue of recognition of her qualification in OA No. 498 of 1998 titled Nisha Devi Vs. State of H.P. and others decided on 23.8.2007 and attainment of finality thereof ; has been admitted in reply. However, it has been contended that Nisha Devi was already in employment and her appointment was upheld by the Court, whereas Nigma Devi was not given appointment and her claim attained finality on 15.10.2014, on ::: Downloaded on - 30/08/2022 20:04:52 :::CIS 6 CWP No. 1314 of 2016 passing of judgment in LPA No. 84 of 2011 on that day whereas she had attained age of superannuation on 31.7.2014, i.e. prior to decision on LPA No. 84 of 2011 and, for this reason she could not be given appointment .
and, thus, claim of the petitioner for compensation is devoid of merit.
14. It has been contended on behalf of petitioner that finally after passing of judgment in LPA No. 84 of 2011, respondents decided to offer appointment to petitioner by considering her qualification to be valid, but expressed their inability to do so for attaining age of superannuation by the petitioner during pendency of litigation, which was result of non-
application of mind and deliberate resistance to the claim of the petitioner on false ground contrary to factual position, but not on account of any lapse on the part of petitioner and, therefore, respondents have deprived the petitioner from her lawful claim in violation of her fundamental right entitling her to be considered in like manner to the similarly situated persons i.e. Nisha Devi and others, who had acquired 'Hindi Shikshan Parangat' from the same Institution and were appointed on the basis of the same qualification, and, therefore, respondents-State is liable to pay compensation on account of losses caused to the petitioner, as the petitioner, on appointment would have been entitled for pay as well as benefit of pension and, therefore, prayer for burdening the respondents with heavy compensation has been made.
15. It is undisputed that petitioner is similarly situated to Nisha Devi who was appointed by considering her to be eligible for possessing similar qualification of 'Hindi Shikshan Parangat' and further that issue regarding recognition of decree of 'Hindi Shikshan Parangat' obtained from Kendriya Hindi Shikshan Mandal, Agra, with Himachal Pradesh ::: Downloaded on - 30/08/2022 20:04:52 :::CIS 7 CWP No. 1314 of 2016 Government was finally settled in OA No. 498 of 1998, titled as Nisha Devi Vs. State of Himachal Pradesh, decided on 23.8.2007 by erstwhile H.P. State Administrative Tribunal as also recorded in judgment dated .
15.10.2014 in LPA No. 257 of 2010, with further observation that the said judgment was never questioned by respondent-State and had attained finality and decree of 'Hindi Shikshan Parangat' was held to be recognized for the purpose of employment in Himachal Pradesh and Nisha Devi having the said decree was declared eligible for appointment against post of Language Teacher and her appointment was upheld.
Fact that above referred decision passed by erstwhile Administrative Tribunal in OA No. 498 of 1998 has attained finality, has also been re-
iterated in judgment passed in LPA No. 84 of 2011.
16. To oppose the claim of compensation of the petitioner, learned Deputy Advocate General has referred pronouncements of the Supreme Court in Kasturilal Ralia Ram Jain vs The State Of Uttar Pradesh, AIR 1965 SC 1039; Tamil Nadu Electricity Board vs Sumathi And Others, (2000) 4 SCC 543; and Municipal Corporation of Delhi, Delhi Vs. Uphaar Tragedy Victims Association and others, (2011) 14 SCC 481, with submission that State is not liable to pay any damages on the basis of doctrine of sovereign immunity and for involvement of disputed questions of facts in present case.
17. As discussed supra, there is no disputed question of fact in present case with respect to finality of issue regarding recognition of qualification/degree in 'Hindi Shikshan Parangat' in the year 2007 and further that by denying appointment to similarly situated person is not a sovereign function of the State, rather it is duty of the State to treat all like ::: Downloaded on - 30/08/2022 20:04:52 :::CIS 8 CWP No. 1314 of 2016 persons in like manner, without any discrimination. Therefore, respondents are not entitled for immunity under doctrine of sovereign. In democratic welfare Country like India, Principle that 'Crown can never be .
at fault' is not applicable. Therefore, I find that judgments referred by learned Deputy Advocate General are of no help to the respondents-
State.
18. It is also noticeable that the Government of Himachal Pradesh has approved 'H.P. State Litigation Policy' (hereinafter referred to as 'Policy') in the year 2011 and the same , r not only has been circulated by the Principal Secretary (Home) to the Government of Himachal Pradesh, vide communication No. Home (Prosecution)(F)101/2010, dated 7.3.2011, to all the Principal Secretaries/Secretaries to the Government of Himachal Pradesh and all the Head of Departments in Himachal Pradesh, but has also been uploaded on the Website of Prosecution Department from the link of Home Department website www.himachal.nic.in/home.
19. It has also been communicated to all that Policy outlines broad guidelines of litigation strategies to be followed by the State Government or its agencies with a view to reduce litigation to save avoidable costs on unproductive litigation so as to reduce unavoidable load on judiciary with respect to Government induced litigation.
20. The Policy has been made applicable to any claim and litigation involving the State or its agencies including litigation before Courts, Tribunals, inquiries and in arbitration and matters pending in other alternative dispute resolution processes. All concerned have been requested to take necessary steps in accordance with this Policy after ::: Downloaded on - 30/08/2022 20:04:52 :::CIS 9 CWP No. 1314 of 2016 immediately forming Departmental Litigation Monitoring Committee in the Department and also appoint Nodal Officers to monitor the pendency and future litigation being faced by the Department in terms of Policy.
.
21. As per Policy, it is compulsory obligation upon the State and its agencies to act honestly and fairly in handling claims and litigation, which includes dealing with claims promptly and not causing unnecessary delay in the handling of claims; paying legitimate claims without litigation, including making partial settlements of claims or interim payments, where it is clearly established that at least part of the claim is payable; acting consistently in the handling of claims and litigation; endeavoring to avoid litigation, wherever possible; where it is not possible to avoid litigation, keeping the costs of litigation to minimum, including by: i) not requiring the other party to prove a matter which the State or an agency knows to be true; and ii) not contesting clearly established liability if the State or an agency knows that the dispute is really about quantum; not taking advantage of a claimant who lacks the resources to agitate a legitimate claim before any competent Court; not relying on technical defences unless the interests of the State or a State agency would be prejudiced adversely; and not to file/continue appeals/ revisions etc unless the State or an agency believes that it has reasonable prospects for success or the appeal is otherwise justified in the public interest, provided that a decision to file/continue the appeal is made as soon as practicable and to file second appeals only on substantial questions of law.
22. Despite approval and adoption of aforesaid Policy, it has been seen that Departments, like present case, are invariably, instead of settling the claims or redressing grievances at their own level or rectifying ::: Downloaded on - 30/08/2022 20:04:52 :::CIS 10 CWP No. 1314 of 2016 the mistake wherever it is apparent on the face of record, are contesting cases vigorously for years together.
23. Another case, where despite noticing and admitting mistake, .
Department/ Government did not rectify it, is CWPOA No.7684 of 2019, titled as Netar Singh v. The State of H.P., wherein also, reply was filed in the year 2017, admitting the mistake, but till 2021 no action for rectifying the same was taken, causing this Court to observe that despite having noticed the mistake, no steps have been taken to rectify it and to redress the grievance of the petitioner that too after filing reply-affidavit to that effect. It was further observed by the court that such practice deserves to be deprecated and it can be done by the Government by issuing reminders, time-to-time, to all concerned and Court may also enforce this Policy by imposing heavy costs upon the State, recoverable from the concerned Officers/officials responsible for overburdening the Courts with unwarranted and avoidable litigation.
24. It is also relevant to note that in CWP No.1498 of 2017, titled as State of H.P. vs. Raju Ram, a Division Bench of this High Court has directed as under:
"11. Under these circumstances, we direct the Chief Secretary to the Government of Himachal Pradesh to convene a meeting of the Principal Secretaries of the Government of Himachal Pradesh, in apprising them of the existence, importance, significance, advantages and benefits of adhering to the Litigation Policy, in letter and spirit. In turn, it is expected of the Principal Secretaries to convene a meeting in their respective Departments, sensitizing the stakeholders with regard thereto. This would only help curtail the problem of docket explosion and prevent cause any unnecessary inconvenience and expenditure by innocent persons.
12. We further direct the Chief Secretary as also the Principal Secretaries to the Government of Himachal Pradesh to have all the cases reviewed, periodically, in terms of the H.P. State Litigation Policy. This alone would generate lot of good will to the State."::: Downloaded on - 30/08/2022 20:04:52 :::CIS 11 CWP No. 1314 of 2016
25. A Division Bench of this High Court in CWPIL No.133 of 2017, titled as Court on its own Motion v. State of Himachal Pradesh, .
after observing that State, as a model employer, is expected to show fairness in action and directed as under:
"36. We notice that State has formulated a Litigation Policy with the avowed object of not only reducing litigation, saving avoidable cost on unproductive litigation, reducing avoidable load on judiciary with respect to Government induced litigation. This is in tune with the mandate of Article 39-A of the Constitution of India, obligating the State to promote equal justice and provide free legal aid. In fact, by virtue of clause 1.4 (d to h) of the State Litigation Policy, the State is under an obligation to take steps to reduce litigation, wherever possible. Now, if the employees are not paid their salaries within time, obviously, they are left with no remedy but to rush to the Courts.
37. Of late, litigation pertaining to employees of the State has increased and it is not that State is the petitioner. The action assailed is of mis-governance or avoidable omissions on the part of the Government. Why should the State force an employee to litigate in a case where emoluments/salaries, which are undisputed, are not disbursed in time.
38. ... ... ... ... ...
39. In the light of the aforesaid discussion and position of law, in exercise of our writ jurisdiction, we deem it necessary to pass the following directions:-
A. The Chief Secretary to the Government of Himachal Pradesh, shall provide a mechanism for enabling the employees to vent out their grievances of non-disbursement of due and admissible wages/salaries/ emoluments. And one such mechanism being of setting up a 'Web Portal' at the level of the Principal Secretary/ Secretary of the concerned Department(s), where the employees can lodge their grievances/ complaints. Such grievances/ complaints shall be processed and adequately responded to within a period of one week. This would facilitate speedy redressal of genuine grievances and prevent unnecessary litigation, clogging the wheels of administration of justice. Such endeavour shall not only be in the spirit of Litigation Policy, framed by the State Government. We see great advantage in the use of information and technology. Not only it would result into effective and efficient redressal of grievances, if any, but also improve efficiency in the affairs of governance of the State.
B. All the Head of Departments of Government of Himachal Pradesh/ Government Institutes/State Instrumentalities to ::: Downloaded on - 30/08/2022 20:04:52 :::CIS 12 CWP No. 1314 of 2016 ensure that in future emoluments to all employees of their respective Departments/ Institutes are disbursed in time;
C. In case of said emoluments not being disbursed on schedule, except in the event of the emoluments being .
withheld as per law, the State/ instrumentality of the State shall be liable to compensate the employees concerned by paying statutory interest or the existing rate for saving bank deposit account provided by the State Bank of India, whichever is higher;
D. Immediately thereto, the Head of the Departments/Instrumentality of the State shall hold an inquiry, which shall be completed within a period of 30 days, to ascertain the omission on the part of the concerned person, resulting in delay of disbursement on schedule; and E. Pursuant to the findings of the inquiry, the interest which stands paid to such employee, shall be recovered from the erring officer(s)/officials(s)."
26. The Supreme Court in Nilabati Behera (Smt) Alias Lalita Behera (through the Supreme Court Legal Aid Committee) Vs. State of Orissa and others, (1993) 2 SCC 746, after taking into consideration its earlier pronouncements in Rudul Sah Vs. State of Bihar, (1983) 4 SCC 141; Sebastian M,. Hongray Vs. Union of India, (1984) 1 SCC 339; Sebastian M. Hongray vs. Union of India, (1984) 3 SCC 82; Bhim Singh Vs. State of J & K, 1984 Supp SCC 504; Bhim Singh Vs. State of J & K, (1985) 4 SCC 677; Saheli: A Women's Resources Cntre Vs. Commissioner of Plice, Delhi Police Headquarters (1990) 1 SCC 422;
State of Maharashtra Vs. Ravikant S. Patil, (1991) 2 SCC 373;
Kasturilal Ralia Ram Jain Vs. State of U.P., AIR 1965 SC 1039 and decision of Privy Council in Maharaj Vs. Attrony-General of Trinidad and Tobago, (1978) 2 All England Reporter 670, has observed as under:-
"16. Lord Hailsham while dissenting from the majority regarding the liability for compensation in that case, concurred with the majority opinion on this principle and stated at page 687, thus:-::: Downloaded on - 30/08/2022 20:04:52 :::CIS 13 CWP No. 1314 of 2016
"...I am simply saying that, on the view I take, the expression 'redress' in sub-section (1) of Section.6 and the expression 'enforcement' in sub-section (2), 'although capable of embracing damages where damages are available as part of the legal consequences of contravention, do not confer and .
are not in the context capable of being construed so as to confer a right of damages where they have not hitherto been available, in this case against the State for the judicial errors of a judge."
Thus, on this principle, the view was unanimous, that enforcement of the constitutional right and grant of redress embraces award of compensation as part of the legal consequences of its contravention.
17. It follows that 'a claim in public law for compensation' for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is 'distinct from, and in addition to, the remedy in private law for damages for the tort' resulting from the contravention of the fundamental right. The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution. This is what was indicated in Rudul Sah and is the basis of the subsequent decisions in which compensation was awarded under Articles 32 and 226 of the Constitution, for contravention of fundamental rights.
18. A useful discussion on this topic which brings out the distinction between the remedy in public law based on strict liability for violation of a fundamental right enabling award of compensation, to which the defence of sovereign immunity is inapplicable, and the private law remedy, wherein vicarious ::: Downloaded on - 30/08/2022 20:04:52 :::CIS 14 CWP No. 1314 of 2016 liability of the State in tort may arise, is to be found in Ratanlal & Dhirajlal's Law of Torts, 22nd Edition, 1992, by Justice G.P. Singh, at pages 44 to 48.
.
19-21. ... .... .... ....
22. The above discussion indicates the principles on which the Court's power under Articles 32 and 226 of the Constitution is exercised to award monetary compensation for contravention of a fundamental right. This was indicated in Rudul Sah and certain further observations therein adverted to earlier, which may tend to minimise the effect of the principle indicated therein, do not really detract from that principle. This is how the decisions of this Court in Rudul Sah and others in that line have to be understood and Kasturilal distinguished therefrom. We have considered this question at some length in view of the doubt raised, at times, about the propriety of awarding compensation in such proceedings, instead of directing the claimant to resort to the ordinary process of recovery of damages by recourse to an action in tort. In the present case, on the finding reached, it is a clear case for award of compensation to the petitioner for the custodial death of her son."
27. In MCD Vs. Uphaar Tragedy Victims Association, (2011) 14 SCC 481, the Supreme Court has observed as under:-
"103. Legal liability in damages exist solely as a remedy out of private law action in tort which is generally time-consuming and expensive, and hence when fundamental rights are violated the claimants prefer to approach constitutional courts for speedy remedy. The constitutional courts, of course, shall invoke their jurisdiction only in extraordinary circumstances when serious injury has been caused due to violation of fundamental rights, especially under Article 21 of the Constitution of India. In such circumstances, the Court can invoke its own methods depending upon the facts and circumstances of each case."
28. In Indibly Creative Private Limited and others Vs. Government of West Bengal and others, (2020) 12 SCC 436, had awarded compensation to the petitioners therein to the tune of ::: Downloaded on - 30/08/2022 20:04:52 :::CIS 15 CWP No. 1314 of 2016 20,00,000/- for violation of fundamental freedoms of the petitioners, guaranteed under Article 19 of the Constitution of India, with observation that a remedy in public law for the grant of remedial compensation was .
required in the said case.
29. In present case also, respondents-State has acted arbitrarily, more particularly to the Litigation Policy, causing damage not only to the petitioner, but also loss of time, energy and resources of the State as well as public exchequer at the cost of infringement and violation of Fundamental Rights of the petitioner.
r Arbitrariness is antithesis of Article 14 of the Constriction of India. Act and conduct of respondents is irrational, unreasonable and arbitrary whereby petitioner has been discriminated by denying equality of opportunity relating to employment and appointment to an office under the State, resulting into infringement of Fundamental Rights of the petitioner guaranteed under Part IV of the Constitution of India, especially Article 14 and 16. Therefore, it is a fit case where petitioner is entitled for damages for violation of her Fundamental Rights.
30. Issue involved in present case was adjudicated and finally decided in the year 2007 and Nisha Devi, similarly situated to the petitioner, was appointed and allowed to continue in service on the basis of the same qualification as that of petitioner, but in case of petitioner, respondent-Department continued to oppose the claim of the petitioner on the ground that her qualification was not recognized. Whereas, keeping in view the acceptance of verdict in OA No. 498 of 1998, titled Nisha Devi Vs. State of Himachal Pradesh and others, pronounced on 23.8.2007, it was expected from respondents, more particularly after framing and ::: Downloaded on - 30/08/2022 20:04:52 :::CIS 16 CWP No. 1314 of 2016 adoption of Litigation Policy of the State, to accede to the claim of petitioner and to offer her appointment in the year 2007 itself, but instead thereof, respondents , like chronic and perverse litigant, decided to .
contest the claim of the petitioner till 2014 and ultimately during pendency of Contempt Petition No. 70 of 2016, decided to offer appointment to her, but it was too late by that time. Petitioner was having Fundamental Right under Articles 14 and 16 of the Constitution of India to be treated in like manner amongst like persons and also for consideration of her candidature for appointment and to have been appointed without any discrimination on the part of respondents-State. It is a case of infringement of fundamental rights of the petitioner, causing irreparable loss and damage to her. Therefore, as propounded by the Supreme Court in case referred supra, petitioner is entitled for compensation.
31. Petitioner was always ready and willing to join the post of and to perform duty as Language Teacher, but she was precluded from doing so by refusing her appointment on a ground which was not sustainable rather was contrary to an accepted verdict of this Court (Tribunal). At present petitioner is 66 years old lady, who has been agitating for her rights guaranteed under the Constitution, infringed by the respondents. Present case is not a case where petitioner at her own had chosen not to perform duty on her appointment. Therefore, principle of 'no work no pay' shall not come in the way of petitioner to avoid her compensation for damages caused by the respondents-State.
32. It is apt to notice that compensation of 15,00,000/- was prayed in the year 2015, whereas in rejoinder filed in 2017, prayer for granting 20,00,000/- compensation has been made. Petitioner was ::: Downloaded on - 30/08/2022 20:04:52 :::CIS 17 CWP No. 1314 of 2016 entitled to be appointed in the year 1994 on the first sponsorship of her name and at least in the year 2007 when verdict with respect to recognition of degree of 'Hindi Shikshan Parangat' was accepted by .
respondents by accepting and implementing judgment in OA No. 498 of 1998 and, in such eventuality, petitioner would have worked and received salary from 1998 or at least since 2007 till her attaining age of superannuation in 2014 and would have also been entitled for pension/Contributory Pension Fund and in case pay of the petitioner and other monetary benefits are calculated on the basis of pay scale prevalent on relevant point of time, damages caused to the petitioner would be much more than 15,00,000/- claimed in the petition. Therefore, without going into intricacies of calculations, petitioner is held entitled for compensation of 20,00,000/- as a token.
33. The aforesaid amount of 20,00,000/- shall be paid by respondents-State to the petitioner within a period of two months, latest by 31st October, 2022, failing which respondents shall also be liable to pay interest @ 5% per annum on 20,00,000/- from the date of filing of present petition, i.e. 15.5.2015 till final payment thereof.
34. Being Head/Incharge of the Department of Government Secretary/Additional Secretary/Additional Chief Secretary/Chief Secretary as the case may be, is responsible for ensuring mandate of the Constitution in business of the Department and also for implementing the Policies/instructions/orders of the Government/Court uniformly. In present case there is lapse on the part of Government/Officers/Officials.
Therefore, aforesaid amount of 20,00,000/-, after payment by State, shall be recovered from Secretary/Principal Secretary/Additional Chief ::: Downloaded on - 30/08/2022 20:04:52 :::CIS 18 CWP No. 1314 of 2016 Secretary who remained incharge of Education Department to the Government of Himachal Pradesh from time to time after 2007 say from 1.1.2008, on pro-rate basis in proportionate to their respective tenure of .
holding the charge of Education Department since then till payment of compensation. Interest on delayed payment shall be recovered from the Officer incharge, during the period of delay in payment, of concerned Department causing delay in payment.
pending applications, if any.
r to The petition stands disposed of in aforesaid terms, so also (Vivek Singh Thakur), th 30 August, 2022 Judge.
(Keshav) ::: Downloaded on - 30/08/2022 20:04:52 :::CIS