Dismissed

Praveen Sharma v. the State of Hp and Others

Himachal Pradesh HC20 Sept 2024CWPOA/4/2024

Case brief

AI extract

What is this about?

The Court examined a petition seeking re-fixation of pay and seniority by accepting joining with a private school during leave tenure. Evidence showed no leave was sanctioned. The petition, filed earlier, was dismissed as she re-employed later. Future relief is directed via representation.

What did the court decide?

Petition dismissed. Liberty given to avail appropriate remedy via representation.

Praveen Sharma Vs the State of Hp… — Pension and Retirement Benefits | Himachal Pradesh HC (2024)

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2024:HHC:8922

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWPOA No. 04 of 2024 Decided on: 20^th 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, Additional Advocate General.

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Vivek Singh Thakur, Judge (Oral)

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Petitioner has approached this Court seeking for following main relief(s):-

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“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.”

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

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2. We have heard both sides and have also gone through

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the record placed on record, as well as produced by the petitioner-State.

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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.

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4. TA No.494 of 2015 was decided by the Erstwhile Tribunal, by passing the following order:-

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“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.

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The applicant may file appropriate representation furnishing all factual details before the 2^nd respondent within a week from the date of receipt of copy of this order. 2^nd 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.

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The present aforesaid transferred application stands disposed of, so also pending application(s), if any.

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5. Respondent-State had preferred a Review Petition before

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the Erstwhile Tribunal along with an application, bearing MA No.937 of 2015 (registered as CMP(T) No.1281 of 2020 after

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receiving the record in this High Court from Erstwhile Tribunal on its abolition), for condonation of delay in filing the Review Petition.

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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.

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7. Vide oder dated 23.08.2024, CMP(T) No.1281 of 2020 has been allowed and delay in filing the Review Petition has been condoned.

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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.

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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.

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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 1^st , 3^rd , 4^th , 5^th , 8^th , 11^th , 12^th , 17^th , 20^th , 29^th , 30^th and 31^st May, 2006 by depicting her arrival at 7:45/7:50 am with departure at 2:00 PM except 1^st to 3^rd May, 2006 on which date she availed half day casual leave and arrived in the school at 11:10 am.

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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.

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12. In October, 2006 Parveen Sharma had marked her presence in Chand Public School in the similar fashion without mentioning her arrival and departure.

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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.

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14. 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

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as a Principal as is evident from the record of the private school.

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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. However, admittedly, no response was ever received to this application meaning thereby that sanction of leave was never communicated either to Parveen Sharma or to the Headmistress/Principal of the Government School.

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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.

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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.

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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.

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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 nonexisting 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.

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20. Taking into consideration pleadings and the material available on file and record produced by the respondentsState, we do not find any merit in the present petition and, therefore, petition is dismissed.

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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.

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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.

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23. However, petitioner shall have liberty to avail

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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.

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24. Present petition is disposed of, in aforesaid terms, so also pending application, if any.

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A copy of this judgment be also placed on the file of RP(T) No. 3 of 2024.

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(Vivek Singh Thakur) Judge

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(Ranjan Sharma) Judge

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September 20, 2024 (himani)

Praveen Sharma v. the State of Hp and Others

Case brief

What is this about?

What did the court decide?

Praveen Sharma v. the State of Hp and Others

Case brief

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What did the court decide?

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