Himachal Pradesh High Court
Pushpa Devi vs State Of H.P. & Others on 16 August, 2016
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No.3013 of 2012 Reserved on : 09.8.2016 .
Date of Decision:_____________ Pushpa Devi ......Petitioner Versus State of H.P. & others of .....Respondents Coram: rt The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. Whether approved for reporting? Yes.
For the petitioner : Mr. Vijay Chaudhary, Advocate.
For the respondents : Mr. Virender Kumar Verma, Addl. A.G. with Mr. Pushpinder Jaswal, Dy. A.G. Chander Bhusan Barowalia, Judge The writ petition is filed with the following prayers:
"(a) Writ of certiorari be issued quashing the order dated 1/2/2012 (Annexure-P/5) whereby the respondent No.2 has held the petitioner to be entitled to the consequential benefits only from the date of her actual appointment and not from the date of her selection.
(b) Writ of mandamus be issued directing the respondents to treat the petitioner ::: Downloaded on - 15/04/2017 21:01:44 :::HCHP in service from the date of her selection pursuant to interviews held from 1/8/2002 to 5/8/2002."
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2. The petitioner has submitted that one Kamlesh Kumar son of Radhu resident of village Diswani had filed OA No.1896 of 2002 before the erstwhile HP State Administrative Tribunal and the petitioner was arrayed of as respondent No.8, while other persons whose appointments had been challenged like that of the rt petitioner namely Devinder Singh and Surinder Singh were also arrayed as respondents. The appointment pertaining to the post of Vidya Upasak in the Government Primary School, Diswani, Kamaraon and Tikkar in Block Chirgaon, District Shimla.
3. It has been alleged in the petition that the respondents filed their reply to the original application through respondent No.2, in which the respondent-State had justified the appointments made in favour of the petitioner, as also in favour of said Devinder Singh and Surinder Singh. It has further been alleged that during the course of proceedings before the State Administrative Tribunal, the learned Tribunal, vide its order dated 21.2.2002, granted stay of all the appointments and on ::: Downloaded on - 15/04/2017 21:01:44 :::HCHP 30.7.2004, the learned Tribunal also modified the earlier order dated 21.1.2002 and directed the respondents not to consider the candidature of the petitioner and .
Devinder Singh & Surinder Singh for Diswani School and the case was ordered to be taken up on 29.9.2004 for further proceedings.
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4. It has been alleged that for no fault of the petitioner, the case could not be decided till 6.9.2007, in rt fact the erstwhile Tribunal came to a categorical conclusion that the petitioner was higher in the merit, yet it did not set aside the appointment of Kamlesh Kumar( applicant therein), whereas the petitioner was ordered to be considered for appointment/adjustment against the other two schools i.e. Government Primary School, Kamraon and Tikkar and not at the school in Diswani.
5. It has further been averred that the petitioner has been aggrieved by the judgment passed by the learned Tribunal and then filed CWP No.1467 of 2007 in this Court. It has also been alleged that none of the parties to the writ petition chose to file any separate reply and the writ petition came up for hearing on 30.3.2010, on which date the petition was allowed and ::: Downloaded on - 15/04/2017 21:01:44 :::HCHP the respondents were directed to accommodate the petitioner at Government Primary School, Kamraon and further direction were issued to the effect that .
respondent No.3 would also pass an appropriate order in accordance with law and justice with regard to consequential benefits.
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6. The respondents contested the writ petition by filing the reply and had denied the contents of the writ rt petition and had averred that the present writ petition is not maintainable. The case of the respondents is that the interview for the post of Gram Vidya Upasak in GPS, Kamaraon, GPS, Tikkar and GPS, Diswani, was conducted by the Selection Committee, which was headed under the Chairmaship of the SDO (C), Rohru and the petitioner was interviewed for the post of Gramin Vidya Upasak on the basis of marks obtained by her in the interview and was selected for the said post in GPS, Diswani. In the reply at paras 2 & 3 of the preliminary submissions it is stated as follows:
"2 & 3. That the selection of the petitioner was challenged by one Shri Kamlesh Kumar before the Erstwhile Administrative Tribunal bearing O.A No.1896/2002, titled as Kamlesh Kumar Vs. ::: Downloaded on - 15/04/2017 21:01:44 :::HCHP State of H.P. with relief to quash the impugned order of selection and appointment of respondents No.8 to 10, i.e. the present petitioner and others. The O.A. was listed on .
21.8.2002, when interim stay was granted. It has further been averred that the reply to the O.A. was also filed by the respondent-State, which is also annexed with the petition in which it has been mentioned that Sh.
of Kamlesh Kumar applied only for GPS, Diswani. Thereafter, the O.A. was listed before the Tribunal on 30.7.2004, when the rt interim order dated 21.8.2002, was modified to the extent that the stay granted by the Forum was only for GPS, Diswani School. Due to this position, respondents were directed not to consider the candidature of respondents No.8 and 9 for Diswani School, as such no appointment was made in the said School.
Thereafter, the case was listed before the Hon'ble High Court on 6.9.2007, when it was disposed of with the observations that, "In the foregoings, the selection and appointments of respondents No.8, 9 and 10 for their respective Schools, are quashed and set-aside with further directions to appoint the applicant, i.e. Kamlesh Kumar against the post of GPS, Diswani from the date of respondent No.8 was appointed with all consequential benefits. However, the respondent-department will be at liberty to adjust the respondent No.8 and 9, namely Pushpa Devi an Devinder Singh against other ::: Downloaded on - 15/04/2017 21:01:44 :::HCHP two Schools in accordance with their merits based on the selection process already concluded. It has further been submitted that feeling aggrieved with the orders of this .
Hon'ble Court, the petitioner filed CWP No.1467 titled as Pushpa Devi Vs. State of H.P. seeking relief to select and appoint the petitioner against the post of Vidya Upasak on the basis of merit in GPS, Diswani with all of consequential benefits. The case was listed in the Court on 30.3.2010, when it was disposed rt of with the directions to the respondents to appoint the petitioner in GPS, Kamraon. So, in compliance to the orders of this Hon'ble Court, the petitioner was offered appointment in GPS, Kamraon, as Gram Vidya Upasak and she joined her duties on 12.7.2010.
7. Heard the learned counsel for the parties.
8. The learned counsel for the petitioner has stated that as the petitioner remained without appointment for no fault of her and she was required to be appointed from the date of her initial selection i.e. is from the year 2002. On the other hand, the learned Additional Advocate General has argued that the petitioner has joined her duties only with effect from the date i.e. 12.7.2010 and so she is entitled only for the benefits from 12.7.2010. In rebuttal, the learned counsel ::: Downloaded on - 15/04/2017 21:01:44 :::HCHP for the petitioner has relied upon the judgment rendered in CWP No.188 of 2012, titled Chattar Singh vs. State of H.P. and others, decided on 1st May, 2012, wherein the .
petitioner in that case was granted notional benefits from the date of his selection i.e. 8.8.2002,though, the other benefits were granted to him from 13.5.2003, when he of joined the duties, yet in the present case, the petitioner has joined her duties only on 12.7.2010. So far as the rt monetary benefits are concerned, she is only entitled for such benefits from 12.7.2010. However, it is a fit case where the respondents are required to be directed to consider the case of the petitioner as per the judgment of this Hon'ble Court passed in CWP No.188 of 2012, titled Chattar Singh vs. State of H.P. and others, decided on 1st May, 2012, wherein it has been held as under:
"3. No doubt, the petitioner joined duty only on 13.5.2003. But in his favour admittedly there is an order by the Appointing Authority on 8.8.2002 to give appointment, as has been noted by the Tribunal in Annexure P-1, order. It is that order, which has been upheld by the Tribunal and the direction issued by the Tribunal is for implementing the said order. Therefore, for all purposes, the petitioner shall be deemed to be appointed on 8.8.2002, on the date admittedly the petitioner was directed to be appointed by the Sub Divisional Magistrate. However, taking note of the ::: Downloaded on - 15/04/2017 21:01:44 :::HCHP fact that the petitioner has joined duty on 13.5.2003 after the order was issued to him, the entitlement of the petitioner for actual monetary benefit shall be only from 13.5.2003. In order to avoid any ambiguity, .
it is made clear that the petitioner shall be deemed to be appointed in the post of Gramin Vidya Upasak on 8.8.2002 for all purposes; but from 8.8.2002 to 13.5.2003, the benefits shall only be notional and from 13.5.2003, the petitioner shall be entitled to all monetary benefits."
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9. In view of the above stated position, it is rt ordered that the respondent No.2 will consider the case of the petitioner in the light of the judgment passed by the Hon'ble Division Bench of this Court in CWP No.188 of 2012, titled Chattar Singh vs. State of H.P. and others, decided on 1st May, 2012, as regards the grant of the notional benefits to the petitioner and the respondent No.2 shall communicate his decision to the petitioner within a period of three months from the date of receipt of a certified copy of this judgment.
10. With the above observations, the writ petition is disposed of. All pending application(s), if any, shall also stand disposed of accordingly.
(Chander Bhusan Barowalia), 16.8.2016 Judge (M. gandhi) ::: Downloaded on - 15/04/2017 21:01:44 :::HCHP