Himachal Pradesh High Court
Smt. Uma Sharma vs State Of Himachal Pradesh & Another on 7 December, 2022
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
CWPOA No.4929 of 2019
Decided on: 07.12.2022
Smt. Uma Sharma ....Petitioner.
Versus
State of Himachal Pradesh & another .... Respondents.
Coram
Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 Yes
For the petitioner : Mr. Dilip Sharma, Senior Advocate,
r with M/s Manish Sharma and
Deepak Sharma, Advocates.
For the Respondents : M/s Sumesh Raj, Sanjeev Sood,
Additional Advocates General, with
Mr. Amit Kumar Dhumal, Deputy
Advocate General, for respondent
No.1State.
Respondent No.2 ex parte.
Ajay Mohan Goel, Judge (Oral)
As despite repeated calls, none has put in appearance on behalf of respondent No.2, said respondent is ordered to be proceeded against ex parte.
By way of the present Writ Petition, the petitioner has prayed for the following reliefs: 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 14/12/2022 20:30:52 :::CIS 2"(i) That the respondents may be directed to consider the petitioner for releasing her proficiency set up w.e.f.
.
1992 and 2000 on completion of 8 and 16 years of service will all consequential benefits including arrears of salary.
(ii) That the respondents may be directed to release the amount of leave encashment as also arrears on account of enhancement of dearness allowance in 2007, with arrears of salary.
(iii) That the respondents may also be directed to pay interest on delayed payments on market rate."
2. Brief facts necessary for the adjudication of the present petition are that the petitioner was appointed as Child Welfare Organizer under respondent No.2, which post was upgraded on 02.01.1984 to that of Executive Officer. As per the petitioner, she became eligible for grant of proficiency step up on completion of eight years of service as Executive Officer in the year 1992, but the benefit of proficiency step up was not given to her on account of registration of two FIRs, i.e. FIR No.5 of 990 and FIR No.38 of 1991, on 15.03.1991. As per the petitioner, these FIRs were in fact registered against the then General Secretary of the respondent Council, but subsequently the name of the petitioner was also implicated in these matters without any basis. Though, ::: Downloaded on - 14/12/2022 20:30:52 :::CIS 3 the petitioner was suspended for some time, but the suspension was revoked on 06.07.1995, but the benefit of proficiency step up .
was not given to her from the due date.
3. Learned Senior Counsel appearing for the petitioner has argued that withholding of the proficiency step up to which the petitioner was entitled to upon completion of eight and sixteen years of service, respectively, as an Executive Officer is totally arbitrary and illegal, for the reason that the FIR in issue, i.e. FIR No.38 of 1991 upon investigation resulted in an untraced report being presented in the Court of learned Judicial Magistrate, 1 st Class, Court No.1, Shimla, H.P. and this untraced report which was submitted before the Court on 15.12.2012 was accepted by the learned Court on 26.03.2013. By drawing the attention of the Court to Annexure MA1 appended with M.A. No.1480 of 2018 (Page 73 of the Paper Book), learned Senior Counsel has submitted that one another accused in FIR No.38 of 1991, namely, Shri Lekh Ram had approached this Court for release of proficiency step up and in his case, in terms of judgment dated 26.02.2015, i.e. Annexure MA1, this Court was pleased to allow the petition filed by Shri Lekh Ram and the respondents were directed to consider the case of the petitioner therein for grant of all the reliefs claimed ::: Downloaded on - 14/12/2022 20:30:52 :::CIS 4 in the petitioner within four weeks from the date of passing of judgment, failing which it was held that the petitioner shall be .
entitled for interest @ 9% on the amount so assessed. Learned Senior Counsel further submitted that despite the fact that this judgment was pronounced by Hon'ble Coordinate Bench of this Court as far back as on 26.02.2015, till date the proficiency step up has been denied to the petitioner on the pretext of lodging of said FIR only, i.e. FIR No.38 of 1991. To substantiate his contention, learned Senior counsel has drawn the attention of the Court to the reply which has been filed by respondent No.2 and by referring to para2 of the same on merit, learned Senior counsel has submitted that perusal thereof clearly demonstrates that the proficiency step up at the relevant time was denied to the petitioner only on account of the pendency of FIR No.38 of 1991. Learned Senior Counsel further submitted that to be fair to respondent No.2, though this reply was filed on 29.08.2012, yet the adjudication of the writ petition of Shri Lekh Ram cannot be denied by respondent No.2 as it was a party respondent in the said petition and in all fairness, after the adjudication of the case of Lekh Ram, respondent No.2 ought to have had given proficiency step up to the petitioner also. Accordingly, learned Senior Counsel ::: Downloaded on - 14/12/2022 20:30:52 :::CIS 5 has submitted that the present petition be allowed by diercting the petitioners to grant the proficiency step up upon completion of .
eight and fifteen years of service and with regard to the remaining relief, learned Senior Counsel has submitted that the petitioner be granted liberty to move an appropriate representation to the authority concerned.
4. Learned Additional Advocate General, who is representing respondent No.1, has submitted that a perusal of the reply filed by respondent No.2 demonstrates that at the relevant time the proficiency step up was correctly denied to the petitioner, as FIR No.38 of 1991 was pending against the petitioner. He further submitted that in the facts involved in the petition, appropriate orders be passed.
5. Having heard learned Senior Counsel appearing for the petitioner as also learned Additional Advocate General and having carefully gone through the pleadings, more so the response filed by respondent No.2, this Court is of the considered view that the present petition has to be allowed as far as the of grant of proficiency step up is concerned.
6. It is clearly borne out from the record of the case, that proficiency step up upon completion of eight and sixteen years of ::: Downloaded on - 14/12/2022 20:30:52 :::CIS 6 service as an Executive Officer was denied to the petitioner on account of pendency of registration of FIR No.38 of 1991, in which .
the petitioner was also an accused.
7. Be that as it may, as is evident from the judgment which was passed by Hon'ble Coordinate Bench of this Court in CWP No.278 of 2012, titled Lekh Ram Versus State of H.P. & another, decided on 26.02.2015 that post investigation of said FIR and untraced report was presented to the Court of learned Judicial Magistrate, 1st Class, Court No.1, Shimla, H.P. on 15.12.2012, which was accepted by learned Trial Court on 26.03.2013, this Court is of the considered view that now there is no cogent reason available with respondent No.2 to deny the proficiency step up to the petitioner. In fact, the Court concurs with the submissions made by learned Senior Counsel for the petitioner that after the pronouncement of the judgment in Lekh Ram's case (supra) by Hon'ble Coordinate Bench, the respondent Council ought to have had released the proficiency step up in favour of the petitioner, as the foundation for denying the same stood eroded.
8. Accordingly, this Writ Petition is allowed to the extent that the respondents are directed to grant proficiency step up to the petitioner on completion of eight and sixteen years of service ::: Downloaded on - 14/12/2022 20:30:52 :::CIS 7 from the date due within a period of eight weeks from today, failing which the petitioner shall also be entitled to interest @ 9% on the .
amount so assessed. With regard to the remaining reliefs, the petitioner is permitted to agitate the same by way of representation before the appropriate Authority and it be construed that the present petition has been permitted to be withdrawn visàvis those reliefs, with liberty to approach the Authority concerned.
9. With these observations, the petition is disposed of, so also the pending miscellaneous applications, if any.
(Ajay Mohan Goel) Judge December 07, 2022 (Rishi) ::: Downloaded on - 14/12/2022 20:30:52 :::CIS