Himachal Pradesh High Court
State Of H.P. And Others vs Dechan Palmo R on 6 July, 2015
Bench: Mansoor Ahmad Mir, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA LPA No. 179 of 2014 .
Reserved on: 23.6.2015
Date of decision: July 06, 2015
State of H.P. and others ..... Appellants
Vs.
Dechan Palmo r .... Respondent
Coram
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice. The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?Yes For the Appellants : Mr. Shrawan Dogra, Advocate General with Mr. Anup Rattan, Mr. Romesh Verma, Addl. Advocate Generals and Mr. J.K. Verma, Deputy Advocate General.
For the Respondent : Mr. Sanjeev Bhushan, Advocate. Tarlok Singh Chauhan, Judge This Letters Patent Appeal is directed against the judgment passed by learned writ Court on 9.8.2011 in CWP (T) No. 12072 of 2008 whereby the services of the writ petitioner (respondent herein) were ordered to be regularized by taking into account the entire service rendered by her w.e.f. 30.7.1987.
2. The facts, in brief, may be noticed. The writ petitioner was selected as an O.T. teacher by duly constituted DPC on 30.7.1987 and after being appointed joined services on 13.10.1987. The writ petitioner vide order dated 15.10.1992 was adjusted in Govt. Primary _____________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? ::: Downloaded on - 15/04/2017 18:30:50 :::HCHP 2 School, Cheling and vide order dated 4.5.1994 the writ petitioner was shown to be working as Classical and Vernacular Teacher (C & V .
Teacher) on tenure basis in Govt. High School, Keylong.
3. Aggrieved by the non-regularisation of her services, the writ petitioner approached the erstwhile Tribunal by filing Original Application No. 1741 of 2005 wherein it was averred that she had been discriminated by non-regularisation of her services whereas all the teachers, who were working on tenure basis, had been regularized on completion of 10 years of services.
4. In the Original Application, the writ petitioner claimed the following reliefs:
(i) Respondents may be directed to regularise the services of the applicant as LT teacher from 1997 with all consequential benefits of pay, seniority, etc. etc.
(ii) That respondents may be directed to count the services rendered by the applicant on tenure basis accept the option exercised by the applicant and further respondent may be directed to continue the applicant in existing pay scale of TGT uptil 1.7.97 and thereafter only to fix him in the pay scale to the post of Lecturer, with all consequential benefits of pay, arrears and further the accruing benefits in pension may be granted to the applicant.
5. The respondents contested the petition by filing a short reply, and paras 3 and 4 thereof, reads as follows:
"3. That the replying respondent No.2 had issued instructions during the year 1998 to all the Distt. Education Officer in Himachal Pradesh (copy attached as Annexure R-1) that all such S.V. posts were to be converted into O.T./L.T./Home Science teacher depending upon the qualification of each such S.V. Teacher. Her case also falls in this category and is to be decided as per instructions from time to time as regard her for regularisation.
4. That the replying respondent after considering the case of the applicant has directed the Dy. Director of Elementary Education, L&S at Keylong vide letter No. EDN-H(III)E(I)OA No. 1741/2005 dated 22.11.2007 to consider/process the case of the applicant as per the ::: Downloaded on - 15/04/2017 18:30:50 :::HCHP 3 instructions for the purpose of regularisation if otherwise she is found eligible. It is further submitted that the competent authority to consider .
such cases is the Dy. Director of Elementary Education of the Distt. who has now been directed to process and finalise her case."
6. On abolition of the Tribunal, the case was transferred to this Court and during the pendency of the case the services of the writ petitioner were ordered to be regularized as L.T. w.e.f. 18.5.2004 vide office order dated 22/23.4.2008.
7. The learned writ Court came to the conclusion that the respondents while considering the case of the writ petitioner for regularisation had not taken into consideration the various orders placed on record by the writ petitioner as Annexures A-1 to A-3, therefore, her case was required to be considered by taking into account her entire length of service rendered w.e.f. 30.7.1987 for the purpose of regularisation.
8. The State has preferred this appeal on the ground that the learned writ Court had over-looked the fact that the writ petitioner was though a qualified O.T. but was initially appointed as JBT on tenure basis on 30.7.1987 and working as such till 17.5.1994. She joined the post of Senior Vernacular Teacher on tenure basis only on 18.5.1994, which was subsequently designated as O.T. and therefore, the services of the petitioner on completion of 10 years w.e.f. 18.5.1994 were rightly regularized on 18.5.2004. It is further contended that the period of services rendered as JBT at best could count for the purpose of pension in accordance with Rule 13 of the Pension Rules read with the judgment passed by this Court on 19.5.2009 in CWP(T) No. 7712 of 2008 titled Paras Ram vs. State of H.P. and another.
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9. We have heard learned counsel for the parties and have gone through the record of the case carefully.
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10. The appellants have vehemently argued that the issue in hand is squarely covered by the judgment rendered by learned Single Judge of this Court in Paras Ram vs. State of Himachal Pradesh and another Latest HLJ 2009 (HP) 887 wherein it was held that the benefit of ad hoc service rendered by an employee prior to his regular service on the same post would be counted only for the purpose of increments and pension.
11. The appellants also relied upon a Division Bench judgment of this Court in LPA No. 36 of 2010 titled Sita Ram vs. State of H.P. and others decided on 15th July, 2010 which affirmed the view taken by the learned Single Judge in Paras Ram's case (supra).
12. In addition to this, the appellants would submit that the issue in the instant appeal is otherwise no longer res-integra in view of a Division Bench judgment of this Court in CWP No. 10529 of 2011 titled Youdhisther Kumar Sharma vs. State of H.P. and another, decided on 7.12.2011 wherein it was held that where a person had worked in dual capacity i.e. some period as JBT and some period as Shastri, then as far as the period of service rendered in the capacity of JBT is concerned, the same would count only for the purpose of pension as per Rule 13 of the Pension Rules, whereas the ad hoc/tenure period in the post of Shastri would count for the purpose of increments as also pension.
13. The judgments relied upon by the appellants are clearly distinguishable. In Paras Ram's case (supra), the petitioner therein had passed diploma of Drawing Teacher and in the year 1997 came to be appointed on ad hoc basis against the post of Junior Basic Trained ::: Downloaded on - 15/04/2017 18:30:50 :::HCHP 5 Teacher (JBT) on 31.8.1995. The State Government took a conscious decision to regularize those C & V teacher, who had put in 10 years of .
service as JBT. The grievance of the petitioner therein was that the services rendered by him before his regularisation against the post of JBT should be counted towards the annual increments and this Court on the basis of the letter dated 27.9.1977 allowed the petition and directed the respondents to count the ad hoc services rendered by the petitioner before his regularisation for the purpose of annual increments.
14. In Sita Ram's case, the view taken in Paras Ram's case was affirmed and it was held that if ad hoc service is followed by regular service in the same post, the said service could be counted for the purpose of increments and it was further held that any service that is counted for the purpose of increment, will also count for pension.
15. In Youdhishther Kumar case (supra) the petitioner had worked for some time as JBT and for some time as Shastri. This Court after placing reliance on Sita Ram's case (supra) held that as per the service rendered in JBT is concerned, this period would count only for the purpose of pension as per Rule 13 of the Pension Rules, whereas the period of ad hoc /tenure rendered in the post of Shastri is concerned, the same if followed by regular appointment would count towards increments and pension.
16. It is not in dispute that the writ petitioner was a qualified O.T., who was initially posted as a JBT on tenure basis on 30.7.1987 and worked as such till 17.5.1994. She came to be posted as Senior Vernacular Teacher on 18.5.1994. It is not even the case of the appellants that the writ petitioner was not qualified for being appointed or has been wrongly appointed as O.T. Therefore, none of the judgments ::: Downloaded on - 15/04/2017 18:30:50 :::HCHP 6 as relied upon by the appellants are applicable to the facts of the present case.
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17. It is the specific case of the writ petitioner that similarly situated persons have been regularized in the year 1997 after completion of 10 years of services and it was only the writ petitioner, who had been left out. The respondents have not controverted this allegation and, therefore, the same having gone un-rebutted is deemed to be correct. At this stage, we may also observe that even the further allegations of the writ petitioner that even during the period w.e.f. 30.7.1987 to 17.5.1994 she had been continuously performing the duties of Language Teacher have not been controverted.
18. Even otherwise, the appellants cannot be permitted to take advantage of their own wrong by posting the writ petitioner as JBT when she was admittedly an O.T. It is more than settled that in matters of postings and transfers, an employee has no say and the mere fact that writ petitioner had been posted as a JBT would not take away either the qualification or the post to which the writ petitioner had otherwise been appointed.
19. In view of the aforesaid discussion, we find no merit in this appeal and the same is accordingly dismissed, so also the pending application(s) if any.
(Mansoor Ahmad Mir),
Chief Justice
July 06,2015 (Tarlok Singh Chauhan),
(GR) Judge.
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