Himachal Pradesh High Court
Naresh Sharma vs 4.2013 on 9 September, 2021
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
ON THE 9th DAY OF SEPTEMBER, 2021
.
BEFORE
HON'BLE MR. JUSTICE AJAY MOHAN GOEL
CIVIL WRIT PETITION (ORIGINAL APPLICATION)
No.180 of 2019
Between:
1. NARESH SHARMA S/O SH.
KRISHAN DATT, VILLAGE
BAGARTI, P.O. MASYANA
TEHSIL AND DISTRICT
HAMIRPUR POSTED AS JBT
AT GPS NALTI.
2. SAROJ KUMARI W/O VIJAY
DHIMAN,
RESIDENT OF
VILLAGE DOHRWIN, P.O.
NALTI, TEHSIL AND DISTRICT
HAMIRPUR, H.P. JBT AT GPS
GALORE.
3.SAROTI DEVI D/O SH. SHIV
RAM, RESIDENT OF VILLAGE
RAILI, P.O. RAILI JAJRI,
TEHSIL BARSAR, DISTRICT
HAMIRPUR H.P., HT AT ROPA
RAJPUTTAN.
4.SEEMA KUMARI D/O SH.
MUNSI RAM, VPO BHUKKAR,
TEHSIL BHORANJ, DISTRICT
HAMIRPUR, H.P., HT AT GPS
SAMKARI.
5. SANTOSHI DEVI D/O SH.
KIRPA RAM, VPO BHUKKAR,
TEHSIL BHORANJ DISTRICT
HAMIRPUR, H.P., HT AT GPS
CHHOUN.
6. SHOK KUMAR S/O SH.
SHAKTI CHAND R/O VILLAGE
DHALOT, P.O. BOHNI, TEHSIL
AND DISTRICT HAMIRPUR,
H.P., POSTED AS GPS
LAGDEVI.
7. RAJNEESH KUMAR S/O SH.
VISHESHWAR NATH, VPO
KHAGGAL, TEHSIL AND
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DISTRICT HAMIRPUR, H.P.,
HT AT GPS BALETA.
8. SURINGDER KUMAR S/O
SH. SUKH RAM, VILLAGE
JADWAL, P.O. BARA, TEHSIL
.
NADAUN, DISTRICT
HAMIRPUR, H.P., PRESENTLY
POSTED AT GPS JEEHAN.
9. RAMESH KUMAR S/O SH.
JAI RAM R/O VILLAGE BARIN
MANDIR, P.O. TOUNI DEVI,
TEHSIL TOUNI DEVI,
DISTRICT HAMIRPUR, H.P.,
JBT AT GPS DARBHIAR.
10. RAVINDER KUMAR S/O
SH. SHANKAR DATT, VILLAGE
CHAMARDI, P.O. DATLANDER,
TEHSIL SUJANPUR, DISTRICT
HAMIRPUR, H.P., JBT AT GPS
BHATERA.
11. BALBIR SINGH S/O SH.
OM PARKASH, RESIDENT OF
VILLAGE BHALANA P.O. REE,
TEHSIL SUJANPUR, DISTRICT
HAMIRPUR, H.P., JBT AT GPS
CHALOKHAR.
12. KULDEEP CHAND R/O
VILLAGE GHANSUHI, P.O.
JHIRARLARI, TEHSIL
BARSAR, DISTRICT
HAMIRPUR, H.P., JBT AT GPS
GALOTE.
13. SANJEEV CHANDEL S/O
SH. JAGDISH CHAND
CHANDEL, R/O VILLAGE
MOHIN, TEHSIL AND
DISTRICT HAMIRPUR, H.P.,
JBT GPS ROPA KOT.
14. RAJESH KUMAR S/O SH.
KANSHI RAM R/O VILLAGE
PADAL, P.O. HAMIRPUR,
TEHSIL AND DISTRICT
HAMIRPUR, H.P., JBT GPS
PANJHALI.
15. DALJIT SINGH S/O SH.
UDHAM SINGH, VPO
DHANGOTA, TEHSIL BARSAR,
DISTRICT HAMIRPUR, H.P.,
JBT AT GPS SAMTANA
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KHURD.
16. SURINDER PAUL S/O SH.
KARAM CHAND R/O VILLAGE
KAIHRAN, P.O. BARA, TEHSIL
NADAUN, DISTRICT
.
HAMIRPUR, H.P. POSTED AT
GPS BATAHLI.
17. KUSHAL KUMAR S/O SH.
MURARI LAL R/O VILLAGE
PAKHROL, P.O. SERA TEHSIL
NADAUN, DISTRICT
HAMIRPUR H.P., POSTED AT
BRCC NADAUN, (PRY)
18. UTTAM SINGH
BHARMOTA S/O SH. GIAN
CHAND BHARMOTA, VPO
CHAKMOH, TEHSIL BARSAR,
DISTRICT HAMIRPUR, H.P.,
POSTED AT GPS MUTHAN.
19. PARNESH KUMAR S/O SH.
BALDEV DASS, VPO BADHANI,
THEIL BHORANJ DISTRICT
HAMIRPUR, H.P., JBT AT GPS
BADHANI.
20. NARESH KUMAR S/O SH.
DEV SHARMA, VPO DUNGRI,
TEHSIL BHORANJ, DISTRICT
HAMIRPUR H.P., JBT AT GPS
DHAMROL.
21. PARDEEP KUMAR S/O
SHRI KISHAN DASS, R/O
VILLAGE GUJREHRA, P.O
CHABUTRA, TEHSIL
SUJANPUR, DISTRICT
HAMIRPUR, H.P., JBT AT
MAJHOG SULTANI.
22. JEEVAN KUMAR S/O SH.
ATTAR SINGH, R/O VILLAGE
ANU KALAN, TEHSIL &
DISTRICT HAMIRPUR, H.P.,
JBT AT GPS MATHANI.
23. RAKESH KUMAR S/O SH.
PARTAP CHAND, R/O
VILLAGE KARGOO, P.O.
BADHERA, TEHSIL NADAUN,
DISTRICT HAMIRPUR, H.P.,
JBT AT GPS PANSAI.
24. PARVEEN KUMAR S/O SH.
RASILA RAM, R/O VPO
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KHAGGAL TEHSIL AND
DISTRICT HAMIRPUR, H.P.,
JBT AT GPS NADIANA
SADIANA.
25. SANJAY KUMAR SHARMA
.
S/O SH. AGYA RAM SHARMA,
VILLAGE KHAJJIAN, P.O.
BAHINA, TEHSIL BARSAR,
DISTRICT HAMIRPUR, H.P.,
JBT AT GPS KIARA BHAG.
26. VINOD KUMAR S/O SH.
ROOP LAL, R/O VILLAGE
BHABLE, P.O. KAROTHA,
TEHSIL BHORANJ, DISTRICT
HAMIRPUR, H.P., JBT AT
MUNDKHAR.
27. RASHI SHARMA W/O SH.
NARESH SHARMA R/O
VILLAGE BAGARTI, P.O.
MASYANA
TEHSIL AND
DISTRICT HAMIRPUR, H.P.,
GPS ROPA.
28. ANIL KUMAR S/O SH.
HARI RAM R/O VILLAGE
NAHLWIN, P.O. AGHAR,
TEHSIL AND DISTRICT
HAMIRPUR, H.P., JBT AT GPS
DAROUNDLA.
29. VIJAY KUMAR S/O SH.
HEM RAJ, R/O VILLAGE
BHADROON, P.O. KANJIAN,
TEHSIL BHORANJ, DISTRICT
HAMIRPUR, H.P., JBT AT GPS
KANJIAN.
30. DESH RAJ S/O SH.
BHAGAT RAM, R/O VILLAGE
TIKKER RAJPUTTAN, P.O.
BAMBLOO, TEHSIL, BARSAR,
DISTRICT HAMIRPUR, H.P.,
JBT AT GPS BIAR.
31. MEENA KUMARI W/O SH.
RAJ KUMAR, R/O VPO ROPA,
TEHSIL AND DISTRICT
HAMIRPUR, POSTED AT GPS
ROPA SAHIL.
....PETITIONERS.
(BY SHRI HAMENDER SINGH CHANDEL, ADVOCATE)
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AND
1. STATE OF H.P. THROUGH
PRINCIPAL SECRETARY
(EDUCATION) TO THE
.
GOVERNMENT OF H.P.,
SHIMLA-2.
2.DIRECTOR OF
ELEMENTARY EDUCATION,
HIMACHAL PRADESH
SHIMLA-1.
3. DEPUTY DIRECTOR OF
ELEMENTARY EDUCATION,
DISTRICT HAMIRPUR, H.P.
4 MS. REENA KUMARI D/O
RATTAN LAL, R/O VPO
PAIRI, TEHSIL BARSAR,
DISTRICT HAMIRPUR, H.P.
5. MS. INDU BALA W/O SH.
BRIJ LAL, R/O VPO MAIR,
TEHSIL AND DISTRICT
HAMIRPUR, H.P.
6.SANJEEV KUMAR SHARMA
S/O SH. FINA NATH
SHARMA, R/O VILLAGE
CHHANER, P.O. CHAMIANA.
TEHSIL SUJANPUR,
DISTRICT HAMIRPUR, H.P.
7. SUNIL KUMAR S/O SH.
HARI DASS, R/O VPO
DUDHANA, TEHSIL AND
DISTRICT HAMIRPUR, H.P.
8. SALOCHNA SHARMA W/O
SH. RAVI KANT SHARMA,
AGED 58 YEARS, R/O VPO
DAUGRI, TEHSIL NANDAUN,
DISTRICT HAMIRPUR, H.P.
9. GURDEV SINGH, AGED 57,
YEARS, S/O SH. PREM
SINGH, R/O VILLAGE
GOPALNAGAR, P.O. DARUHI,
TEHSIL AND DISTRICT
HAMIRPUR, H.P.,
PRESENTLY OFFICIATING AS
BLOCK ELEMENTARY
EDUCATION OFFICER (GOVT.
PRIMARY SCHOOL KAKRIAN)
HAMIRPUR BLOCK,
DISTRICT HAMIRPUR, H.P.
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10. RAJ KUMAR S/O SH.
KRISHAN CHAND, R/O
VILLAGE THANA BRAHMNA,
P.O. BALIAH, TEHSIL
BARSAR DISTRICT
.
HAMIRPUR, PRESENTLY
WORKING AS CENTRE HEAD
TEACHER AT GOVT PRIMARY
SCHOOL, SALAURI,
OFFICIATING AS BLOCK
ELEMENTARY EDUCATION
OFFICER IN EDUCATION
BLOCK BIJHARI, DISTRICT
HAMIRPUR, H.P.
11. ONKAR SINGH S/O SH.
HARNAM SINGH, R/O
VILLAGE GOPALNAGAR, P.O.
DARUHI, TEHSIL & DISTRICT
HAMIRPUR, H.P.,
PRESENTLY WORKING AS
CHT IN GOVT. PRIMARY
SCHOOL RANGES,
EDUCATION BLOCK GLORE,
DISTRICT HAMIRPUR,
OFFICIATING AS BLOCK
ELEMENTARY EDUCATION
OFFICER AT EDUCATION
BLOCK GLORE, DISTRICT
HAMIRPUR, H.P.
12. MADAN LAL S/O SH.
BHAGAT RAM, R/O VILLAGE
BHATER, P.O. MOHIN,
TEHSIL AND DISTRICT
HAMIRPUR, PRESENTLY
WORKING AS CENTRAL
HEAD TEACHER (CHT) IN
GOVT. PRIMIARY SCHOOL
AMROH, EDUCATION BLOCK
HAMIRPUR, DISTRICT
HAMIRPUR H.P.
13. OM PARKASH S/O SH.
MUNSHI RAM, R/O VILLAGE
SERVI, P.O. BAINU, TEHSIL
BARSAR, DISTRICT
HAMIRPUR, PRESENTLY
WORKING AS CENTRAL
HEAD TEACHER (CHT) IN
GOVT. PRIMARY SCHOOL
MAHARAL, EDUCATION
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BLOCK BAIJHARI, DISTRICT
HAMIRPUR, H.P.
14. PURSHOTAM CHAND
SHARMA, S/O SH. K.L.
SHARMA, R/O VILLAGE
.
BHASYAR, P.O. HARETA,
TEHSIL NADAUN, DISTRICT
HAMIRPUR, PRESENTLY
WORKING AS CENTRAL
HEAD TEACHER IN GOVT.
PRIMARY SCHOOL KARSAI,
EDUCATION BLOCK BIJHARI,
DISTRICT HAMIRPUR, H.P.
15.BHUVNESH CHAND S/O
SH. CHIRANJI, R/O HOUSE
No.90,WARD No.04,VPO
NADAUN, TEHSIL NADAUN,
DISTRICT HAMIRPUR, H.P.,
RETIRED CENTRAL HEAD
TEACHER.
16. SUJATA RANI W/O SH.
JIWAN SHARMA, R/O VPO
MEHRE, TEHSIL BARSAR,
DISTRICT HAMIRPUR, H.P.,
PRESENTLY WORKAING AS
HEAD TEACHER IN GOVT.
PRIMARY SCHOOL KHAJIAN,
TEHSIL BARSAR DISTRICT
HAMIRPUR, H.P.
17. SUMAN BALA W/O SH.
RAMESH CHAND, R/O VPO
MEHRE (HPPWD COLONY),
TEHSIL BARSAR, DISTRICT
HAMIRPU, H.P. PRESENTLY
WORKING AS HEAD
TEACHER IN GOVT.
PRIMARY SCHOOL
BUMBLOO, DISTRICT
HAMIRPUR, H.P.
18. KANTA DEVI W/O SH.
ASHOK THAKUR, R/O VPO
MEHRE (GARLI ROAD),
TEHSIL BARSAR, DISTRICT
HAMIRPUR, H.P. PRESENTLY
WORKING AS HEAD
TEACHER IN GOVT.
PRIMARY SCHOOL JEOLI
DEVI, DISTRICT HAMIRPUR,
H.P.
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19. RATTANI DEVI W/O SH.
PRITAM CHAND R/O VPO
MEHRE (HPPWD COLONY),
TEHSIL BARSAR DISTRICT
HAMIRPUR, H.P.,
.
PRESENTLY WORKING AS
HEAD TEACHER IN GOVT
PRIMARY SCHOOL
CHAMBEL, DISTRICT
HAMIRPUR, H.P.
20. RANAJANA RANI, W/O
SH. KRISHAN LAL, R/O
HOUSE NO. 189, PARTAP
NAGAR, WARD NO-3,
MUNICIPAL COUNCIL
HAMIRPUR, DISTRICT H.P.,
PRESENTLY WORKING AS
HEAD TEACHER, GPS
KANGRI, CENTRE-
CHABUTRA,
ELEMENTARY
EDUCATION BLOCK-
SUJANPUR, DISTRICT
HAMIRPUR, H.P.
21. SMT. VIJAY KUMARI
WIFE OF SHRI KRISHAN LAL
SEHGAL, AGED 56 YEARS,
RESIDENT OF HOUSE
NO.490, WARD NO.11,
BEHIND SABJI MANDI
DOSARKA, HAMIRPUR, H.P.,
PRESENTLY WORKING AS
HEAD TEACHER IN
GOVERNMENT PRIMARY
SCHOOL BAKARTI, UNDER
COMPLEX GOVERNMETN
PRIMARY CENTRE SCHOOL
BARIPHARNOL, EDUCATION
BLOCK HAMIRPUR, THESIL 7
DISTRICT HAMIRPUR, H.P.
....RESPONDENTS.
(BY MR. ASHOK SHARMA, ADVOCATE GENERAL, WITH
MR.ADARSH SHARMA, MR. SUMESH RAJ AND MR. SANJEEV
SOOD, ADDITIONAL ADVOCATES GENERAL, FOR
RESPONDENTS NO.1 TO 3.
MR. SURINDER SAKLANI, ADVOCATE, FOR RESPONDENTS
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NO.4 AND 5.
RESPONDENTS NO.6 AND 7 EX PARTE.
MR. ASHOK KUMAR SHARMA, ADVOCATE, FOR
RESPONDENT NO.8.
.
MR. ONKAR JAIRATH, ADVOCATE, FOR RESPONDENTS NO.9
TO 15.
MR. R.L. CHAUDHARY AND MR. H.R. SIDHU, ADVOCATES,
FOR RESPONDENTS NO.16 to 19 & 21.
MR. BHUVNESH SHARMA AND MR. JAI RAM SHARMA,
ADVOCATES FOR RESPONDENT NO.20 )
Whether approved for reporting?1 Yes
This petition coming on for orders this day, the Court passed the following:
JUDGMENT
CMP No.325 of 2021
For the reasons stated therein, this application is
allowed and disposed and Smt. Vijay Kumari, wife of Shri Krishan
Lal Sehgal, is impleaded as party respondent No.21 in CWPOA
No.180 of 2019.
CWPOA No.180 of 2019
By way of this petition, the petitioners have prayed for
the following reliefs:-
"(i) That the impugned final seniority list dated 1.4.2013,
Annexure A-7, may be declared illegal and may be
quashed and set aside;
(ii) That inter se seniority position as existed prior to the
issuance of impugned final seniority list may be ordered
to be restored.
(iii) That in case any promotions are made during the
pendency of the O.A. on the basis of the impugned
seniority list, such promotions affecting the rights of the
applicants may be held illegal and quashed;"
2. Brief facts necessary for the adjudication of the present
petition are as under:-
.
The undisputed facts are that the petitioners were
recruited and appointed against the posts of JBT in the year 1998-
1999/2000. Thereafter, five seniority lists were issued, depicting the
seniority of Junior Basic Training Teacher (JBT Teacher) as in
district Hamirpur, qua which the petitioners had no grievance. This
was followed by issuance of a tentative seniority list dated
03.01.2013 (Annexure P-6), reflecting the tentative seniority of JBT
Teachers as it stood on 31.12.2012, in district Hamirpur, H.P. With
regard to this tentative seniority list also the petitioners were not
having any grievance, as according to them they were rightly placed
in the said seniority list. Their grievance arose from the finalization
of tentative seniority list dated 03.01.2013 and issuance of final
seniority list Annexure P-7, dated 01.04.2013, which reflected the
final seniority of JBT Courses teachers, working in various primary
schools of district Hamirpur, H.P., as it stood on 30.09.2012. The
grievance of the petitioners is that without any notice etc., in this
final seniority list, they were arbitrarily placed before private
respondents No.4 to 7, who otherwise were always reflected below
the petitioners in the previous seniority lists and which seniority
lists were never assailed by the said private respondents.
3. This petition was originally filed before learned erstwhile
Himachal Pradesh Administrative Tribunal and registered as O.A.
No.5771 of 2016. Learned counsel for the petitioners has argued
that leaving all other contentions aside, the impugned seniority list
is not sustainable in the eyes of law, for the simple reason that the
.
settled seniority of the petitioners has been unsettled by way of said
final seniority list, dated 01.04.2013 without any notice to the
petitioners at their back. According to him, the petitioners were
neither issued any notice nor they were put to any caveat by the
department as to on account of what reasons their seniorities were
unsettled by way of issuance of a final seniority list dated
01.04.2013. On this short count, he submits that the petition be
allowed and the impugned final seniority list be set aside.
4. Learned Additional Advocate General while opposing the
petition has argued that there are valid and cogent reasons available
with the department, on account of which the seniority position of
the petitioners as reflected earlier was reworked by the State as is
borne out even from the reply which has been filed to the petition by
the State.
5. Mr. Surinder Saklani, learned counsel appearing for the
contesting private respondents has also supported the stand of the
State. He further submitted that as the cause of action accrued
upon the petitioners on the date when the final seniority list was
issued, the petition is not filed within the statutory period provided
under the Administrative Tribunal Act.
6. In rebuttal, learned counsel for the petitioners
submitted that it is settled law that an order has to be defended by
the propounder of the order on the basis of the contents thereof and
subsequently, infirmities in the same cannot be cured by way of
affidavits etc. He has further submitted that the petition as was
.
originally filed before learned Tribunal was well within limitation
because the final seniority list was never communicated to the
petitioners and as from the date when the same came to the notice
of the petitioners, the original application was filed well within
limitation.
7.
I have heard learned counsel for the parties and have
gone through the record of the case.
8.
It is not in dispute that in the final seniority list, dated
01.04.2013, which reflects the final seniority of the JBT Course
Teachers, working in various primary schools in district Hamirpur,
H.P. as on 30.09.2012, the seniority position of the petitioners as
was reflected in the tentative seniority list, dated 03.01.2013, was
altered to their disadvantage. There is nothing on record to
demonstrate that any notice was given to the petitioners putting
them to a caveat that there were reasons available with the
department, on the basis of which, it intended to rework the
seniority position of the petitioners as was reflected in the tentative
seniority list. In other words, no show cause notice was issued to the
petitioners by the department as to why the seniority position of the
petitioners as was reflected in the tentative seniority list, dated
03.01.2013, be not altered.
9. In addition, there is nothing on record from which it can
be inferred that the final seniority list was ever circulated to the
petitioners after it was finalized vide Notification dated 01.04.2013.
.
10. Hon'ble Supreme Court, in D.K. Yadav Versus J.M.A.
Industries Ltd., (1993) 3 SCC 259, has been pleased to hold that it is
a fundamental Rule of Law that no decision must be taken which
will affect the right of any person without first being informed of the
case and giving him/her an opportunity of putting/forward his/her
case. Hon'ble Supreme Court has been further pleased to hold that
any order involving civil consequences must be made consistently
with the Principles of Natural Justice.
11. Similarly, Hon'ble Supreme Court, in Mohinder Singh
Gill and Another Versus The Chief Election Commissioner, New Delhi
and Others, (1978) 1 SCC 405, has been pleased to hold that civil
consequences covers infraction of not merely property or personal
rights, but of civil liberties, material depravities and non-pecuniary
damages.
12. It is settled law that a person gains seniority in a cadre
from the date when he is born in that particular cadre. The
importance of the seniority viz-a-viz an employee is that the same
gains importance when the eligibility of a person has to be seen for
the purposes of promotion to the next higher post, be it a selection
post or non selection post.
13. In this background, it is but natural that if settled
seniority of a party is disturbed at his back, it has civil
consequences qua him because it adversely affects his subsequent
rights of promotion etc.. Therefore, in this background, this Court is
of the considered view that as the final seniority list dated
.
01.04.2013, vide which the seniority positions of the petitioners were
disturbed to their disadvantage, was issued at their back without
issuing them any show cause notice, the same is not sustainable in
the eyes of law as the same has been issued by violating the
principles of natural justice.
14.
Accordingly, this writ petition is allowed to the extent
that the final seniority list of JBT Course Teachers, as it stood
issued on 01.04.2013 by the respondent-department reflecting the
final seniority list of JBT Course Teachers, as it stood on 30.09.2012
with regard to district Hamirpur qua the petitioners and the original
respondents No.4 to 7, is ordered to be quashed and set aside. It is
further directed that in case the department still intends to redraw
the seniority of the petitioners as it stood reflected in the tentative
seniority list (Annexure P-6), then a notice shall be issued to the
petitioners, mentioning therein the reasons, on the basis of which
the department intends to take such an action, within three weeks
from today. As from the date of receipt any such notice, response
thereto shall be filed by the petitioners definitely within a period of
two weeks from the said date and appropriate orders upon the same
shall be passed by the authority concerned within three weeks as
from the date of receipt of the said response. Till then, status-quo,
qua the petitioners and the contesting respondents, i.e. respondents
Nos.4 to 7, shall be maintained. In case the department does not
issues any notice in the said period, then the petitioners and
respondents No.4 to 7 be assigned said seniorities as were earlier
.
reflected in the tentative seniority list. Petition stands disposed of
accordingly, so also pending miscellaneous applications, if any.
Interim order, if any, stands vacated.
(Ajay Mohan Goel)
Judge
September 09, 2021
(Rishi)
