Government Primary School vs State Of Himachal Pradesh
2021 Latest Caselaw 3851 HP

                                 1

   IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.




                                                             .

                ON THE 12th DAY OF AUGUST, 2021
                            BEFORE





            HON'BLE MR. JUSTICE AJAY MOHAN GOEL
    CIVIL WRIT PETITION (ORIGINAL APPLICATION) No. 5013 of 2020
Between:-
SH.  GOPAL KRISHAN, S/O SH.




HAZURA SINGH, R/O VILLAGE
KALEHRA,     P.O.   KUNGHRAT,
TEHSIL HAROLI, DISTRICT UNA,
HIMACHAL PRADESH, PRESENTLY

WORKING       AS    JBT     AT

GOVERNMENT PRIMARY SCHOOL,
KALOH-BELI, P.O. KALOH, TEHSIL
GHANARI,     DISTRICT     UNA,
HIMACHAL PRADESH.



                                                     ....PETITIONER
(BY M/S ONKAR JAIRATH & SHUBHAM SOOD, ADVOCATES)




AND





1. STATE OF HIMACHAL PRADESH
THROUGH             SECRETARY
(EDUCATION) TO GOVERNMENT





OF HIMACHAL PRADESH, SHIMLA-
2.
2.   DIRECTOR OF ELEMENTARY
EDUCATION,           HIMACHAL
PRADESH,    LALPANI,   SHIMLA-
171001, HIMACHAL PRADESH.
3.   DEPUTY    DIRECTOR    OF
ELEMENTARY EDUCATION UNA,
DISTRICT     UNA,    HIMACHAL
PRADESH.




                                            ::: Downloaded on - 31/01/2022 22:52:22 :::CIS
                                        2

4.   SMT. SUSHMA KUMARI, D/O




                                                                    .
NOT KNOWN TO THE APPLICANT,





THROUGH RESPONDENT NO. 3.

                                                          ...RESPONDENTS





(SH. ASHOK SHARMA, ADVOCATE GENERAL, WITH MR.
SUMESH RAJ & ADARSH SHARMA, ADDITIONAL ADVOCATE
GENERALS & MR. KAMAL KANT CHANDEL, DEPUTY
ADVOCATE GENERAL, FOR R-1 to 3.




R-4 Ex-parte.
Whether approved for reporting? Yes.
    __________________________________________________________


             This petition coming on for orders this day, the Court passed the
following:

                                    JUDGMENT

By way of this writ petition, the petitioner has, inter alia,

prayed for the following reliefs:

"I. That the Impugned Communication dated

09.07.2018 (Annexure A-154), may kindly be quashed and set aside being illegal, arbitrary and discriminatory.

I(A) That the Impugned Corrigendum dated 15.12.2018 (Annexure A-14) may kindly be quashed and set aside being illegal, arbitrary and discriminatory.

II. That the respondents may be further commanded with the appropriate order or direction to take into consideration the initial date of appointment of

the applicant as Voluntary Teacher for the purpose of

.

seniority and other consequential benefits like promotion

etc.

III. That the respondents may be further directed

to correct the seniority list and the applicant may be appropriate placed in the JBT list and may be promoted to the next higher post."

2.

Brief facts necessary for the adjudication of the present petition

are as under:-

The petitioner was initially appointed as a Voluntary Teacher in

the Education Department vide Office Order dated 17.02.1992 (Annexure A-

1). His appointment was assailed by one Ms. Anju Bala by way of CWP

No. 355/1992 before this Court. Said writ petition was allowed by the

Hon'ble Division Bench of this Court vide judgment dated 30.12.1992. The

appointment of the petitioner was set aside and it was ordered that

appointment be offered to Ms. Anju Bala.

3. Feeling aggrieved, the petitioner filed a Special Leave to

Appeal (Civil) No. 8139/93 before the Hon'ble Supreme Court. The same

was disposed of by the Hon'ble Supreme Court vide Annexure A-3 in the

following terms:

"Though we are not satisfied with the approach of the

.

High Court, we are still disinclined to interfere in its

order. We feel that the High Court terming the petitioner as unqualified was not call for as apparently

the petitioner was suitably qualified for the post. Additionally, we feel that for the view it was taken a suitable direction to the State should have been issued

by the High Court to have the petitioner adjusted in some other school according to his entitlement. Thus, we pass such a direction to the State for the petitioner's

adjustment, even though ex parte, but subject to recall at the instance of the State. The petitioner be adjusted in a suitable post of an identical nature of which he has

been deprived. SLP is disposed of accordingly."

4. Thereafter, the petitioner was re-engaged by the Education

Department, as is evident from office order, dated 25.08.1993 (Annexure A-

4/T), which is quoted hereinbelow:

"Earlier appointed Voluntary Teacher Sh. Gopal Krishan in Government Primary School, Lalri (Lower) has been terminated from service in accordance with judgment of the Hon'ble High Court dated 30.12.1992 vide Office Order E.D.M. U(E-11)/203/86-7/93-97 dated 15.2.1993. Now, the Hon'ble Supreme Court of India in SLP No. 8139/93, Sh. Gopal Krishan, S/o Sh. Hazura

Singh, Village Kalehra, Tehsil Haroli, P.O. Kangrat,

.

Distt. Una is appointed at Government Primary School,

Lalri (Lower) till further orders."

5. For completion of record, it is pertinent to mention here that in

the year 1997, the petitioner approached the erstwhile learned Himachal

Pradesh State Administrative Tribunal by way of Original Application No.

546/1997 with the prayer that he be granted seniority and salary for the

period between 16.01.1993 to 11.07.1993. The reliefs prayed for were not

granted by the erstwhile learned Tribunal to the petitioner, but it was

observed that the petitioner was having right to agitate said issue before the

appropriate authority.

6. Before this, in the year 1994, the services of all the Voluntary

Teachers were dispensed with by the Education Department, including the

petitioner, but all of them were re-engaged, including the petitioner. Services

of the petitioner were subsequently regularized vide Communication dated

09.04.1999 after granting him Special JBT Certificate. It appears that

thereafter when seniority lists of JBT Teachers were issued by the

Department, service rendered by the petitioner before his services were

ordered to be terminated by the High Court in the writ petition filed by Ms.

Anju Bala, was erroneously included for the purpose of seniority. The

.

monetary benefits which said seniority entailed were also given to the

petitioner. Later on, when the respondent-State realized its mistake, vide

Corrigendum, dated 15th December, 2018 (Annexure A-15), the seniority so

assigned to the petitioner was withdrawn.

7. Feeling aggrieved, the petitioner has filed this writ petition.

8. Corrigendum, dated 15th December, 2018 (Annexure A-15)

reads as under:-

"The Office Order No. EDN-U (G-II)Ele/Court Case 3766- 68 issued by this Office on dated 03.04.2012 (copy attached) is hereby withdrawn with immediate effect. Sh.

Gopal Krishan shall be assigned seniority from the date of joining consequently on his fresh appointment in

compliance to the decision given by the Hon'ble Supreme

Court of India/Union of India Vrs. Deep Chand Panday & others."

9. Learned counsel for the petitioner has argued that Corrigendum,

dated 15th December, 2018 (Annexure A-15), inter alia, is liable to be set

aside on the ground that the same has been passed at the back of the

petitioner, without affording him an opportunity of being heard. He submits

that the interest of justice will be served in case this Corrigendum is

quashed and set aside and the competent authority is directed to give

.

personal hearing to the petitioner before taking any decision on the issue.

10. Learned Additional Advocate General, on the other hand, has

submitted that there is no infirmity in the issuance of Corrigendum, dated

15th December, 2018 (Annexure A-15), for the reason that this Corrigendum

has been issued in compliance to the judgment passed by the Hon'ble

Supreme Court, in an SLP, which was preferred by the petitioner himself. He

submits that in the process of implementation of the judgment of the

Hon'ble Supreme Court, there is no need to comply with the provisions of

natural justice, especially when it is not a case where the petitioner was not

aware of the judgment of the Hon'ble Supreme Court, as he himself was the

Special Leave Petitioner, in whose case, the order stood passed. Accordingly,

he has prayed for dismissal of the writ petition.

11. I have heard learned counsel for the parties and also gone

through the pleadings as well as the documents appended therewith.

12. Though it is not in dispute that in the SLP, which was filed

before the Hon'ble Supreme Court by the present petitioner, while deciding

the same, the Hon'ble Supreme Court did not set aside the judgment passed

by this Court in Ms. Anju Bala's writ petition and the only protection which

was granted to the petitioner was that the State was directed to adjust the

.

petitioner in a suitable post of identical nature, yet this Court is of the view

that while withdrawing the seniority, which stood assigned to the petitioner

by the respondent-Department, may be erroneously, the least that was

expected, was that a Show Cause Notice ought to have been issued to the

petitioner before passing the final order. The genesis of issuing the Show

Cause Notice could have been the order of the Hon'ble Supreme Court

passed in the SLP to justify as to why the Department was proposing to

withdraw the seniority, which was erroneously granted to the petitioner, but

as the order of withdrawal of seniority, but natural, was to have civil

consequences as far as the petitioner was concerned, the same could not

have been passed at the back of the petitioner.

13. Therefore, without dwelling on other aspects of the matter, this

petition is disposed of by quashing Corrigendum, dated 15 th December, 2018

(Annexure A-15), with a direction to the respondents that a Show Cause

Notice be issued by the competent authority to the petitioner with regard to

the withdrawal of his seniority and thereafter, decision upon the issue be

taken by the competent authority, after hearing the petitioner in person or

through authorized representative. Miscellaneous applications, if any, also

.

stand disposed of.

                                                  (Ajay Mohan Goel)
                                                        Judge





August 12, 2021
 (bhupender)




                         r           to