Himachal Pradesh High Court
Decided On: 20Th September vs State Of Himachal Pradesh And Others on 20 September, 2024
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
2024:HHC:8922
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CWPOA No. 04 of 2024
Decided on: 20th September, 2024
__________________________________________________________
Praveen Sharma ......Petitioner
.
Versus
State of Himachal Pradesh and others ...Respondent
Coram
Hon'ble Mr. Justice Vivek Singh Thakur, Judge
Hon'ble Mr. Justice Ranjan Sharma, Judge
1 Whether approved for reporting ?
For the applicant/State: Mr. Dushyant Dadwal, Advocate
For the respondent: Mr. Anup Rattan, Advocate General
with Mr. Ramakant Sharma,
r Additional Advocate General.
Vivek Singh Thakur, Judge (Oral)
Petitioner has approached this Court seeking for
following main relief(s):-
"The present petition may kindly be allowed and the respondents
may kindly be directed to accept the joining of the petitioner with
all consequential benefits including seniority & pay fixation, with
the further prayer to direct the respondents to permit the
petitioner to join in the same school from where she was relieved
off her duties while proceeding on Extra Ordinary Leave by
handing over the charge to one of her colleague as per the
directions of the then respondent no 3, which fact was also
acknowledged by her while preparing the document of handing
over and taking over of the charge and in the interest of justice."
Whether reporters of Local Papers may be allowed to see the judgment?
2024:HHC:8922
2. We have heard both sides and have also gone through
the record placed on record, as well as produced by the
petitioner-State.
.
3. Petitioner had approached this Court by filing CWP
No.7234 of 2014. During pendency of said petition, H.P.
State Administrative Tribunal was established and, therefore,
the said petition was transferred to the Tribunal and was
registered as TA No.494 of 2015.
4.
TA No.494 of 2015 was decided by the Erstwhile
Tribunal, by passing the following order:-
"The respondents have accepted the inquiry report and the leave has
been sanctioned. The seniority of the applicant, as such, would remain
undisturbed. The claim of the applicant for re-fixation has to be
considered by the respondents.
2. The applicant may file appropriate representation furnishing all
factual details before the 2nd respondent within a week from the date of
receipt of copy of this order. 2nd respondent/competent authority will
look into the matter, verify the facts and pass appropriate orders thereon
in accordance with law, within a one month. The applicant will produce a
certified copy this order while submitting the representation.
3. The present aforesaid transferred application stands disposed of, so
also pending application(s), if any.
5. Respondent-State had preferred a Review Petition before
the Erstwhile Tribunal along with an application, bearing MA
No.937 of 2015 (registered as CMP(T) No.1281 of 2020 after
2024:HHC:8922
receiving the record in this High Court from Erstwhile
Tribunal on its abolition), for condonation of delay in filing
the Review Petition.
.
6. Before final adjudication of the Review Petition along
with MA No.937 of 2013 (CMP(T) No.1281 of 2020), the
erstwhile Tribunal was abolished and the application and the
Review Petition were transferred to this Court.
7. Vide oder dated 23.08.2024, CMP(T) No.1281 of 2020
been condoned.
r to
has been allowed and delay in filing the Review Petition has
8. The Review Petition was registered RP(T) No.03 of 2024.
The said Review Petition was also adjudicated and allowed
vide separate order dated 23.08.2024, and the order dated
2.3.2016, passed in TA No.494 of 2015, has been reviewed
and set aside, and TA No.494 of 2015 (present petition) has
been revived and the Registry has registered TA No.494 of
2015 as CWPOA No. 4 of 2024.
9. Perusal of record depicts that during the Month of May,
2006 Parveen Sharma attended the Government Senior
Secondary School (Girls) Palampur for some days and for
maximum period she remained on earned leave, as is evident
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from the Teacher's Attendance Register of the said school.
Record of Teacher's Attendance Register for the Months of
May, 2006 and October, 2006 pertaining to Nand Kumar
.
Sanatam Dharam Chand Public Senior Secondary School
Ghuggar, Palampur, indicates that in May, 2006 Parveen
Sharma had attended the said school and marked her
presence as Principal on all working days of May, 2006 and
October, 2006.
10.
It is the further apparent from the record that in May,
2006 Parveen Sharma marked her presence in Teacher's
Attendance Register of Government Senior Secondary School
(Girls), Palampur on 1st, 3rd, 4th, 5th, 8th, 11th, 12th, 17th, 20th,
29th, 30th and 31st May, 2006 by depicting her arrival at
7:45/7:50 am with departure at 2:00 PM except 1st to 3rd
May, 2006 on which date she availed half day casual leave
and arrived in the school at 11:10 am.
11. At the same aforesaid period, in the month of May,
2006, Parveen Sharma attended the private Nand Kumar
Sanatan Dharam Chand Public Senior Secondary School on
each and every working day without showing any time of her
arrival and departure in the said school.
2024:HHC:8922
12. In October, 2006 Parveen Sharma had marked her
presence in Chand Public School in the similar fashion
without mentioning her arrival and departure.
.
13. On perusal of original record, it is apparent that in
attendance registers of private school, during both months
i.e. May, 2006 and October, 2006, signatures of Parveen
Sharma in English are matching with each other whereas in
Government School she has appended her signature in
Hindi.
14. to
Presence of the petitioner in Chand Public School in
October, 2006 is also substantiated from the document
placed on record on behalf of the petitioner itself i.e.
communication dated 30.10.2006 issued by the President of
GGDSD Educational Society registered at Baijnath who is
running Sanatan Dharam Chand Senior Secondary School
Palampur. In this letter there is reference of previous letter of
the society dated 01.05.2006 and offer appointment to the
petitioner as Principal against permanent vacancy on regular
basis from the date of her joining which indicates that the
said appointment was effective from May, 2006 when the
petitioner Parveen Sharma had attended the private school
2024:HHC:8922
as a Principal as is evident from the record of the private
school.
15. It is case of Parveen Sharma that in June 2006 she had
.
applied for extraordinary leave to serve outside Government
within country for five years on year to year basis. The said
fact is substantiated from the official record depicting that
such application was forwarded by the Headmistress of the
then Government Girls High School (Palampur) to the Deputy
Director Education,
Kangra on 05.06.2006.
admittedly, no response was ever received to this application
r However,
meaning thereby that sanction of leave was never
communicated either to Parveen Sharma or to the
Headmistress/Principal of the Government School.
16. On record there is a communication of September,
2006 addressed to the Deputy Director Education sent from
Joint Director of Education, Government of Himachal
Pradesh from the Directorate of Education informing that in
view of memorandum dated 05.08.2006 henceforth no
extraordinary leave will be admissible to the State
Government Employee for the purpose of securing
employment in the private school in India or abroad.
2024:HHC:8922
17. Aforesaid communication was also communicated to
the Headmistress of the school as well as Parveen Sharma.
According to Parveen Sharma this letter was never received
.
by her. To substantiate sanction of leave she is also harping
upon the inquiry report submitted by Inquiry Officer initiated
against her in the year 2015 wherein it has been recorded
that extraordinary leave was cancelled vide above referred
communication received from the Directorate of Education.
18.
Firstly, it is apparent from record that leave was never
sanctioned in favour of petitioner (Parveen Sharma). Leave
cannot be claimed as a matter of right therefore, before
receiving the sanction of leave, neither Parveen Sharma
could have been relieved from the duty nor she should have
left the place or the school or absented from the duty from
the Government School. The communication of September,
2006 is simply informing that for issuance of memorandum
dated 05.08.2006 for the purpose of securing employment in
the private sector in India or abroad no extraordinary leave
will be admissible. But it does not mean that application of
leave submitted before 05.08.2006 has to be deemed to have
been granted. Here is a case where leave was never
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sanctioned. So far as Inquiry Report is concerned it was
never accepted by the Disciplinary Authority as apparent
from the record.
.
19. In aforesaid facts and circumstances, it is apparent that
as recorded in order dated 02.03.2016 by erstwhile Himachal
Pradesh State Administrative Tribunal, the inquiry report
was never accepted and leave had also not been sanctioned
by the Competent Authority. Therefore, observation of the
Erstwhile Tribunal that seniority of Parveen Sharma as such
would remain undisturbed is based on incorrect or non-
existing facts. The same is contrary to the record. Therefore,
Parveen Sharma was not entitled for re-fixation of the pay as
claimed by her. In aforesaid facts and circumstances, the
order dated 2.3.2016, based on wrong information being
contrary to the record, is recalled and set aside.
20. Taking into consideration pleadings and the material
available on file and record produced by the respondents-
State, we do not find any merit in the present petition and,
therefore, petition is dismissed.
21. At this stage, learned counsel for the petitioner
submits that petitioner had approached the Court in
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September, 2014 by filing CWP No.7234 of 2014, which, on
creation of H.P. State Administrative Tribunal, was
transferred to the Tribunal and was registered as TA No.494
.
of 2015. Now on abolition of the Tribunal it has been
transferred to this Court and has been registered as present
petition CWPOA No. 4 of 2024. He further submits that after
filing of the present petition, petitioner had rejoined her
duties in the Education Department in October, 2015 and
thereafter she served as a Government Teacher in the
Education Department till her retirement i.e. on 31.05.2018.
He further submits that the said period has not been
counted for the purpose of pensionary benefits as well as pay
fixation whereas petitioner, for serving during that period, is
entitled for service benefits by counting the said period.
22. As the aforesaid relief prayed by learned counsel for
the petitioner is based upon event subsequent to filing of
present petition and was not incorporated in the present
petition before its disposal on 02.03.2016, therefore, we are
of the considered view that such relief cannot be considered,
adjudicated and granted in present petition.
23. However, petitioner shall have liberty to avail
2024:HHC:8922
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appropriate remedy available under law, including making
representation to the respondents and filing petition for
redressal of her grievance. In case such representation is
.
preferred by the petitioner, the same shall be decided by the
concerned authority within two months after receipt by
passing a speaking order, after giving opportunity of hearing,
if desired so.
24. Present petition is disposed of, in aforesaid terms,
so also pending application, if any.
A copy of this judgment be also placed on the file
of RP(T) No. 3 of 2024.
(Vivek Singh Thakur)
Judge
(Ranjan Sharma)
Judge
September 20, 2024
(himani)
