Himachal Pradesh High Court
Tehsil Karsog vs State Of Himachal Pradesh Through on 18 October, 2022
Bench: Satyen Vaidya
REPORTABLE/NON-REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 18th DAY OF OCTOBER, 2022
BEFORE
.
HON'BLE MR. JUSTICE SATYEN VAIDYA.
CIVIL WRIT PETITION ORIGINAL APPLICATION No. 1763 of 2019
Between:-
SH. MANI RAM (RETD. PRINCIPAL),
S/O LATE SH. BINHU RAM,
VILLAGE PANJRAT, P.O. AND
TEHSIL KARSOG, DISTRICT MANDI, H.P.
...PETITIONER
(BY SH. DUSHYANT DADWAL, ADVOCATE).
AND
1. STATE OF HIMACHAL PRADESH THROUGH
PRINCIPAL SECRETARY (EDUCATION),
GOVT. OF HIMACHAL PRADESH,
H.P. SECTT. SHIMLA-2.
2. THE DIRECTOR OF HIGHER EDUCATION,
GOVERNMENT OF HIMACHAL PRADESH.
....RESPONDENTS
(BY SH. DESH RAJ THAKUR, ADDITIONAL
ADVOCATE GENERAL, WITH MR. NARENDER
THAKUR, DEPUTY ADVOCATE GENERAL).
RESERVED ON: 12.10.2022.
DECIDED ON: 18.10.2022.
__________________________________________________________________
This petition coming on for pronouncement of
judgment this day, the Court, passed the following:
ORDER
By way of instant petition, the petitioner has prayed
for following relief:
"It is therefore, respectfully prayed that keeping
.
in view the facts and circumstances of the case
and in view of the averments made hereinabove
the present petition may kindly be allowed and
the respondents may kindly be directed to re-fix
the pay and pension of the petitioner after his
retirement strictly as per Rule 22 (1) (a) (i),
which has not been done due to the fact that
option exercised by the petitioner has not been
sent to the Director office by the officials of the
office of Deputy Director of Education Mandi,
District Mandi, where the same was submitted
well in time immediately at the time of
promotion of petitioner, as a result of which the
petitioner had to suffer a huge loss and till date
is suffering the same and in the interest of
justice."
2. Brief facts necessary for adjudication of petition are
that the petitioner is an Ex-serviceman. After discharge of
petitioner from Armed Forces, he got himself registered with
Ex-Servicemen Cell, Hamirpur for the purpose of
re-employment. Petitioner was offered appointment as
Lecturer (School Cadre) against the Ex-serviceman quota vide
office order dated January, 2001 and was posted at GSSS,
.
Garli, District Kangra. The earlier order of appointment of
petitioner was partially modified in March, 2001 and
petitioner was ordered to be posted at GSSS, Polian Purohita,
District Una against vacancy.
3. Petitioner was promoted as Principal on ad-hoc basis
vide notification dated 29.09.2005 and was posted at GSSS,
Ropa, District Mandi, H.P. Petitioner joined as Principal at
GSSS, Ropa, District Mandi on 05.10.2005. Petitioner
superannuated on 31.05.2010.
4. The grievance of the petitioner is that on his ad-hoc
promotion as Principal, vide notification dated 29.09.2005, he
had opted for promotion increment within one month and
sought the next increment w.e.f. 01.04.2006 on the basis of
date of increment in the lower cadre. Respondents, however,
fixed the pay of the petitioner vide office order issued in
March, 2006 and his next increment was shown to be
applicable w.e.f. 01.10.2006.
5. Petitioner continuously represented to the
respondents against the date of fixation of increment in his
case, but his grievance remained un-redressed till his
.
superannuation. It was only on 20.07.2013 that an order was
passed by respondent No.2, whereby the claim of the
petitioner was rejected on the ground that the ad-hoc
promotion of petitioner was regularized on 25.08.2007 and he
was required to exercise an option as per the provisions of
F.R. 22 (1) (a) (i) within one month from the date of regular
promotion orders, which he had failed. The claim of the
petitioner was also rejected on the ground that, since, the
Government had again regularized the ad-hoc promotion of
345 Principals (School), on the basis of Review DPC dated
31.12.2012, and the case of petitioner was included therein,
hence, the petitioner should have exercised a fresh option to
get his pay fixed before the Controlling Officer within
stipulated period. Having failed to get justice, petitioner has
approached this Court by way of instant petition.
6. The respondents have filed their reply. In reply, the
respondents took the stand that petitioner had exercised his
option on 07.11.2009. The earlier option exercised by
petitioner after his ad-hoc promotion was not admissible. In
such view of the matter, the respondents tried to justify their
.
action.
7. During the pendency of the petition, respondent No.2
in pursuance to orders passed by this Court placed on record
an order of regularization of petitioner issued vide notification
dated 31.12.2012. The name of the petitioner was included at
serial No. 316 of the list attached to the said notification and
the date of ad-hoc as well as regular promotion was shown as
29.09.2005. Respondent No.2 vide written instructions dated
01.08.2022, tried to take another stand that the petitioner
was regularized as Principal vide notification dated
31.12.2012 and the notification dated 25.08.2007 wherein at
serial No. 516 the name of Mani Ram was reflected, was in
respect of some other incumbent and not the petitioner. This
was stated to be the reason of not conveying the regularization
order dated 25.08.2007 to the petitioner. Respondent No.2
filed yet another affidavit dated 20.09.2022 during the
proceedings of this case, this time taking a different stand in
following terms:
"2. That the Govt. regularized the ad-hoc promotion of
.
Principal vide notification dated 1.1.2008. The order
dated 1.1.2008 was also endorsed to the concerned.
The petitioner was also asked to exercise the option
within a month but he failed to do so. The ad-hoc
promotion of Principals were again regularized by the
Govt. vide notification dated 31.12.2012 and
petitioner was asked to submit the option for his pay
fixation retrospectively from the date of his joining on
ad-hoc basis i.e. 5.10.2005. The petitioner submitted
his option and his pay was fixed accordingly vide
office order dated 30.07.2013."
8. I have heard learned counsel for the parties and have
also gone through the records of the case carefully.
9. The respondents have given different versions with
respect to the date of regularization of ad-hoc promotion of
petitioner to the post of Principal (School). While rejecting the
representation of the petitioner, respondent No.2 vide order
dated 20.07.2013 specifically mentioned that petitioner was
regularized on 25.08.2007 and he was to exercise the option
on or before 24.09.2007. The version of petitioner that he was
not aware about his regularization order till his personal
hearing on 22.12.2012 in the Directorate of Higher Education
.
was also considered to be correct. The regularization of ad-hoc
promotion of petitioner was then said to have been made vide
order dated 31.12.2012, as a result of Review DPC. As against
the above stand, respondents made deviation while
submitting its reply. Whereas, the date of regularization of ad-
hoc promotion of petitioner was maintained as 25.08.2007
and it was submitted that petitioner had given his option for
pay fixation on 6.11.2009. Such option being time barred,
could not be considered.
10. As noticed above, the regularization order dated
31.12.2012 issued by respondent No.1 in respect of Principals
promoted on ad-hoc basis, petitioner was shown at serial No.
316 with date of ad-hoc and regular promotion as 29.09.2005.
In communication dated 01.08.2022 issued by respondent
No.2 to the office of learned Advocate General, it was stated
that the petitioner was promoted on regular basis on
25.08.2007 and was in fact regularized vide order dated
31.12.2012 and the person named Mani Ram reflected in
regularization order dated 25.08.2007 was some other
incumbent. Strangely, in affidavit dated 20.09.2022 of
.
respondent No.2, it was mentioned that the ad-hoc promotion
of Principals were regularized by the Government on
01.01.2008 and the orders were endorsed to the concerned
Principals. The petitioner was also asked to exercise the
option within a month, but he failed to do so and the ad-hoc
promotion of Principals were again regularized by the
Government vide notification dated 31.12.2012.
11. There is no dispute regarding the fact that ad-hoc
promotion was granted to the petitioner on 29.09.2005 and in
pursuance thereto the petitioner had joined as Principal,
GSSS, Ropa, District Mandi on 05.10.2005. There is also no
specific denial to the fact averred by petitioner that he had
opted for grant of increment from the date on which he was
getting the increment in lower cadre and not from the date of
promotion and such communication was made within one
month from the ad-hoc promotion of petitioner.
12. Though the respondents initially maintained that the
ad-hoc promotion of petitioner was regularized on 25.8.2007,
but later it was suggested by way of communication dated
.
01.08.2022 addressed by respondent No.2 to the office of the
learned Advocate General, as placed on record, that the ad-
hoc promotion regularized on 25.08.2007 was in respect of
some other Mani Ram and not the petitioner.
13. Respondent No.2 then filed an affidavit dated
20.09.2022 and stated therein that the ad-hoc promotion of
Principal was regularized vide notification dated 01.01.2008
and such order was endorsed to all concerned. However,
nothing has been placed on record to substantiate the fact
that the regularization order allegedly issued on 01.01.2008
included the name of petitioner was communicated to him.
The contradictory stand taken by the respondents, fortify the
plea of petitioner that he was never communicated the order
of regularization. That being so, the petitioner could not be
expected to extend his option under F.R. 22 (1) (a) (i) within
stipulated period of one month.
14. Last but not least, respondents took the stand that
the ad-hoc promotion of petitioner was regularized on
31.12.2012 and he should have raised his option within
.
stipulated period thereafter. Such contention is also
misconceived. Petitioner had retired on 31.05.2010 and in
such view of the matter, there was no occasion for him to have
addressed any option after his retirement.
15. In any case the purpose of option under F.R. 22 (1)
(a) (i) is to communicate the intent so as to facilitate the
completion of formalities regarding fixation/re-fixation of pay.
In the instant case, the intent of petitioner was well known to
the respondents. He had communicated such intent by giving
his option immediately after his ad-hoc promotion. Even on
various subsequent dates, the petitioner had been making
representations to the respondents and communicating his
clear intent.
16. The respondents have tried to defend their action by
saying that the petitioner had exercised the option on
06.11.2009 and same being belated could not have been
considered. The communication dated 06.11.2009 addressed
by petitioner to Deputy Director of Higher Education, Mandi,
has been placed on record, which reveals that the said
correspondence was in response to letter dated 30.09.2009
.
issued by the Deputy Director of Higher Education, Mandi
regarding the fixation of pay and the petitioner had contested
such fixation on the ground that he had already exercised the
option within one month from his ad-hoc promotion. In this
view of the matter, the objection raised by the respondents is
baseless.
17. In view of the above discussion, the petition is
allowed and the respondents are directed to re-fix the pay of
the petitioner by granting him the benefit of F.R. 22 (1) (a) (i)
from 01.01.2008 on which date the ad-hoc promotion of
petitioner was regularized as per latest affidavit dated
20.09.2022 filed by respondent No.2. The respondents are
also directed to consequently re-fix the pension of the
petitioner accordingly. The needful shall be done by
respondent No.2 within two months from the date of passing
of this judgment and the arrears, if any, payable to the
petitioner, shall also to be paid to him within the aforesaid
period.
The petition is disposed of in the aforesaid terms, so
.
also the pending miscellaneous application(s) if any.
18th October, 2022 (Satyen Vaidya)
(GR) Judge
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