Ajoli Mod vs Registrar
2021 Latest Caselaw 5743 HP

    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
              ON THE 15th DAY OF DECEMBER, 2021
                       BEFORE
     HON'BLE MR. JUSTICE CHANDER BHUSAN BAROWALIA




                                                            .
    CIVIL WRIT PETITION (ORIGINAL APPLICATION) No.2757 of 2019





    Between:­
    KAUSHALYA    DEVI,  W/O  SH.
    ASHWANI KUMAR, R/O V.P.O





    AJOLI   MOD,     TEHSIL AND
    DISTRICT UNA, H.P.
                                                  ......PETITIONER
    (BY   MS.       ARCHNA       DUTT,
    ADVOCATE)

    AND
    (1) STATE OF H.P. THROUGH
    SECRETARY
                   r         to
                    (COOPERATIVE
    SOCIETIES), GOVERNMENT OF

    H.P., SHIMLA­2.
    (2)   THE         REGISTRAR,
    COOPERATIVE SOCIETIES, H.P.,
    SHIMLA.
    (3)   THE          ASSISTANT



    REGISTRAR,       COOPERATIVE
    SOCIETIES UNA, DISTRICT UNA,
    H.P.




                                                  ......RESPONDENTS





    (BY SH. ARVIND SHARMA, ADDL.
    AG WITH SH. AMIT DHUMAL, DY.
    AG.)





    Whether approved for reporting? Yes.


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

The petitioner was appointed as Peon in the

respondent­Department vide office order dated 05.11.1997

(Annexure P­1) and she was posted in the office of Registrar

Cooperative Societies, Shimla. The petitioner was promoted as

Clerk vide office order dated 27.06.2005 (Annexure P­2) and she

performed her duties as such till the year 2007. However, in the

same year she suffered neurological disorder and had requested

.

the department to revert her back to the post of Peon. The

request of the petitioner was accepted by the respondent­

department and vide office order dated 8 th June, 2007

(Annexure P­3), the petitioner was reverted back to the post of

Peon. The petitioner worked as Peon in the respondent­

Department till the year 2008 and since now she was fit for

duties, she submitted a medical fitness certificate (Annexure

P­4) to the respondent­Department. Thereafter, the petitioner

was again promoted to the post of Clerk vide office order dated

31.12.2008 (Annexure P­5), but in the promotion order, the

respondents have put conditions that she has to pass 10+2

examination till 2011 and also has to qualify typing test within

six months with minimum speed of 25 words per minute in

Hindi/English, failing which, her promotion will be withdrawn.

2. Consequently, the petitioner passed her typing test

as per the condition laid down in the promotion order, within

the prescribed period and also started pursuing her studies of

10+2, however, she could not pass her 10+2 examination, as

stipulated by the respondent­Department and made a

representation (Annexure P­6) to respondent No. 2 requesting

therein that she is going to appear in 10+2 examination, which

has been scheduled to be held w.e.f. 07.04.2012, as such, three

months further time be given to her for passing the 10+2

examination. The petitioner appeared in 10+2 examination in

.

the month of April, 2012 and her result was awaited, however,

in the meantime, the request made by the petitioner qua

extension of time was rejected by the respondents vide order

dated 07.06.2012 (Annexure P­7). Consequently, vide order

dated 11.07.2012 (Annexure P­8), the petitioner was reverted

3. Feeling r to back from the post of Clerk to the post of Peon.

aggrieved by reversion order,

11.07.2012 (Annexure P­8), the petitioner preferred the instant dated

petition.

4. Ms. Archna Dutt, learned counsel for the petitioner

has argued that action of the respondents by reverting the

petitioner back is wrong and arbitrary, as the petitioner had

requested the Department well in time for extension of three

months time to pass 10+2 examination, however, the

respondents have not granted time to the petitioner and

reverted her back to the post of Peon. She has further argued

that the reason given by the respondents in rejection order

while referring to the judgment rendered by this Hon'ble Court

in COPC No. 329/2011, is not applicable in the instant case,

because the petitioner is not claiming relaxation, but the

petitioner has requested that she may be given time till her

result of 10+2 is not declared. She has further argued that the

petitioner has always performed her duties with utmost

sincerity and devotion and there is no complaint whatsoever

.

with regard to her work and conduct and she cannot be reverted

to the post of Peon merely on the technical ground that she has

not passed the 10+2 examination as stipulated by the

respondents. Lastly, she has argued that reversion order dated

11.07.2012 (Annxure P­8) be quashed and set aside and the

respondents be directed to allow the petitioner to perform her

duties as Clerk on the same place and same capacity by taking

on record her 10+2 certificate (Annexure P­10).

5. On the other hand, Mr. Arvind Sharma, learned

Additional Advocate General has argued that the petitioner was

initially appointed as Peon and thereafter she was promoted as

Clerk in the year 2005, but she on her own requested that she

be reverted back to the post of Peon. He has further argued that

the petitioner was again promoted as Clerk in the year 2009,

but, at that time the qualification was 10+2 and as the

petitioner could not qualify 10+2 examination within the

stipulated time she was reverted back. However, as per the

interim order of this Hon'ble Court, she is continuing as Clerk

and performing her duties as such.

6. The petitioner was promoted as Clerk on

27.06.2005 vide Annexure P­2, but, as she suffered neurological

disorder, on her request, she was reverted back to the post of

Peon. It is the dedication of the petitioner that when she was

unable to perform the duties of Clerk, she had requested for her

.

reversion. Had she not requested her reversion, she would have

been continued as Clerk and by now she might have been

promoted to the post of Superintendent Grade­II or even to

Superintendent Grade­1. The respondents have not considered

this aspect while reverting her back and had they considered so,

the respondents should have granted her one time relaxation in

educational qualification, as she was not promoted to the post

of Clerk for the first time.

7. So, the present is a fit case where writ is required to

be issued to the respondents, by directing them to allow the

petitioner to be promoted to the post of Clerk from the year

2009, when she was promoted as Clerk for the second time and

when she was not having neurological problem, for which

reason she asked for her reversion in the year 2007, after her

earlier promotion in the year 2005. Further, the petitioner has

performed her duties as Clerk satisfactorily and no complaint

was ever found against her from year 2005 to 2007 and from

the year 2009 till date and present is a fit case where even her

experience creates a right in her favour due to legitimate

expectations that when she was rightfully promoted in the year

2005 and she was reverted back in the year 2007 on her

request due to neurological problem, she was having legitimate

expectations that she will be promoted after few years when her

medical conditions will improve. But reverting her back with the

.

condition that she is required to pass 10+2 examination as per

the Rules, which have come into force after 2009, the legally

approved right of the petitioner by way of legitimate

expectations has been infringed. Accordingly, the instant

petition is allowed and the respondents are directed to continue

the petitioner to the post of Clerk with all consequential benefits

from the year 2009, when she was promoted for the second

time.

8. With the aforesaid observations the writ petition is

disposed of, leaving the parties to bear their own costs. Pending

application(s), if any, stands disposed of.

(Chander Bhusan Barowalia)

Judge

15th December, 2021

(raman)