Disposed

Asha Devi v. State of Hp and Others

Himachal Pradesh HC5 Dec 2023CWP/8665/2023

Case brief

AI extract

What is this about?

Petitioner sought release of arrears of pay based on a prior judgment granting retrospective regularization. The High Court directed respondents to examine implementation and examine petitioner's case, subjecting any admissible monetary benefits for arrears to a three-year cap from the date of filing, while leaving all factual and legal merits open.

What did the court decide?

Petition disposed of with directions to examine implementation and facts; merits left open.

Asha Devi Vs State of Hp and Others — Pension and Retirement Benefits | Himachal Pradesh HC (2023)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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CWP No.8665 of 2023

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Decided on: 05^th December, 2023

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Asha Devi ....Petitioner

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Versus

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State of Himachal Pradesh & ors. ….Respondents

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Coram

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Hon’ble Mr. Justice Ranjan Sharma, Judge

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1 Whether approved for reporting? Yes

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For the petitioner	:	Mr. Pra	shant	Chauhan,
		Advocate, Datta, Adv	vice ocate.	Mr. Sandeep
For the respondents	:	Mr. Ravi Advocate responden	Cha Gene ts.	uhan, Deputy ral, for the

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Ranjan Sharma, Judge (Oral)

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Notice. Mr. Ravi Chauhan, learned Deputy Advocate General, appears and waives service of notice on behalf of the respondents.

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2. The petitioner has filed the instant writ

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petition praying for the following reliefs:-

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“(i) That the respondents be directed to release the

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes

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arrears of pay to the petitioner in compliance to the judgment passed by this Hon’ble Court contained in Annexure P-2 with immediate effect.”

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2. Case of the petitioner is that she joined Respondent-Department as a Nursery Teacher against the post of JBT in Government Primary School Ghaloum, Block Bijhari on 06.01.1998. The petitioner was regularized w.e.f. 01.04.2006. Based on the decision taken by the State Government in the communication dated 02.02.1999, the petitioner was granted the benefit of antedated i.e. retrospective regularization w.e.f. 01.01.2003.

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3. The matter in issue as to whether the

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Nursery Trained Teachers who have been granted the benefit of retrospective regularization, in terms of the letter-communication dated 02.02.1999, on completion of five years of service were entitled for financial benefits including pay fixation from such retrospective-deemed date of regularization stands adjudicated by the State

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Administrative Tribunal and thereafter by the Division Bench of this Court in CWP No.3544 of 2019 , titled as State of Himachal Pradesh versus Surendra Sharma

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& ors. , decided on 06.11.2020 (Annexure P-2) . The operative part of the judgment dated 06.11.2020 (Annexure P-2), reads as under:

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“3. The respondents have done one year condensed course of Nursery Teacher and were appointed against the post of JBT vide letter dated 19.09.1997. The Government of Himachal Pradesh vide letter dated 02.02.1999 had decided to regularize the services of the Nursery Trained Teachers on completion of five years instead of 10 years, as would be evident from the relevant portion of the letter, which reads as under:-

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“I am directed to refer to your letter No.EDN-H(II)PRY(B) (6)2-1/97 dated 14.09.98 the subject cited above and to say that the matter with regard to the regularisation of the Nursery Trained Teachers has been considered by the Government and it has been decided that these Nursery Trained Teachers may also be treated on par with Volunteer Teachers. Therefore, their services may also be regularised after completion of the five years services

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instead of 10 years and JBT Special Certificate may be awarded to them on the pattern of Volunteer Teachers who are being regularised we.f. 1.8.98 after completion all formalities.”

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Since, the petitioners had been appointed on 19.09.1997, therefore, in terms of letter dated 02.02.1999 they were entitled to be regularized in the year 2002. The learned Tribunal was absolutely right in restricting the financial benefits to three years prior to the filing of the petition , which directions are in tune with the judgment of the Hon’ble Supreme Court in HRTC vs. Jai Dev Gupta, AIR 1998 SC 2819.

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It is more than settled that High Court does not act as a Court of appeal against the decision of the Tribunal and only exercise its power of judicial review. There is no perversity in the order passed by the learned Tribunal.

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Having said so, we find no merit in this petition and the same is accordingly dismissed, so also pending application(s), if any.”

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4. A perusal of the judgment dated 06.11.2020

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reveals that the Nursery Trained Teachers, were entitled for regularization from the date they complete five years

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of service and they were entitled for pay fixation from the date of retrospective regularization after five years service

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but the arrears were restricted for a period of three years prior to the filing of the writ petition by the respective teachers.

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5. It is submitted by Mr. Ravi Chauhan, learned Deputy Advocate General that in compliance to the judgment dated 06.11.2020 (Annexure P-2), Respondent No.2-Director of Elementary Education has forwarded a communication on 24^th December, 2021 (Annexure P-3) and then on 08.09.2022 (Annexure P-4) to the concerned Deputy Director as well as Block Elementary Education Officer(s) and to report compliance in view of the judgment in the case of Surendra Sharma referred to above.

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6. In view of the communications vide Annexure P-3 & Annexure P-4 ( supra ) though directions have been given to extend benefit to the petitioner in terms of the judgment in the case of Surendra Sharma, Annexure P-2 ( supra ) but it is not clear from these communications

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as to whether after granting retrospective regularization

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from the date of completion of five years, the financial benefits i.e. notional pay fixation has been granted from due date and whether actual financial benefits for three years preceding the filing of the writ petition has been given to the present petitioner or not.

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In this background, Mr. Prashant Sharma, learned vice counsel submits that he is only claiming financial benefit notionally from due date and admissible arrears for a period of three years, preceding the date of filing of the instant writ petition by the petitioner herein. 7. Mr. Prashant Sharma, learned vice counsel further refers to judgment passed by the Co-ordinate Bench of this Court in CWP No.5730 of 2023 , titled as Sunita Devi versus State of H.P. & others , decided on 07.10.2023 [ Taken on Record ] whereby in view of the prayers so made in the writ petition and during the course of hearing today, the Co-ordinate Bench of this Court has directed the respondents to consider/examine the case of the petitioners and

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pass appropriate speaking orders in the matter.

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8. Mr. Ravi Chauhan, learned Deputy Advocate General, at the very outset, submits that the pleadings on record nowhere narrate that the judgment in the case of Surendra Sharma ( supra ) implemented and the financial benefits from due date and actual financialmonetary benefits for the period of three years prior to the date of filing of the writ petition have been granted or not. He further submits that the matter needs to be looked into and the factual aspects are also to be examined.

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9. Faced with this situation, learned vice counsel for the petitioner on instructions submits that he may be permitted to make a representation to the Respondent No.2-Director of Elementary Education, highlighting all the above aspects, within one week from today; with further directions to the aforesaid respondent to examine the same and to pass appropriate orders in the matter.

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10. Upon consideration, in case the respondents

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arrived at a conclusion that judgment in case of Surendra Sharma ( supra ) stands implemented then, the respondents shall also consider the case of the petitioner for grant of financial benefits (pay fixation etc.) notionally as given to Surendra Sharma ( supra ) but it is clarified that the actual monetary benefits shall be restricted for the period of three years prior to filing of the writ petition (on 10.08.2023), in terms of the mandate of law in case of Union of India versus Tarsem Singh (2008) 8 SCC 648; Shiv Dass versus Union of India and Others ; (2007) 9 SCC 274; State of Madhya Pradesh and Others versus Yogendra Shrivastava (2010) 12 SCC 538 and Asger Ibrahim Amin Versus Life Insurance Corporation of India (2016) 13 SCC 797, followed in Rushibhai Jagdishchandra Pathak versus Bhavnagar Municipal Corporation CA No.4134 of 2022 [2022 SCC Online S C 641] decided on 18.5.2022. 12. Needless to say that, this Court has not adverted to the rival contentions and merits of the

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matter and all questions of facts and law are left open.

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In aforesaid terms, the writ petition as well

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as the pending miscellaneous application(s), if any, shall also stand disposed of, accordingly.

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(Ranjan Sharma) December 05, 2023 Judge

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(Shivender)

Asha Devi v. State of Hp and Others

Case brief

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Asha Devi v. State of Hp and Others

Case brief

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