Raksha Mankotia Vs State of Hp

Hon’ble Mr.Justice Jiya Lal Bhardwaj, Judge. Whether approved for reporting?¹ For the petitioner: Mr. Atharv Sharma, Advocate. For the respondents: Mr.Amit Kumar Chaudhary, Deputy Advocate General for respondents No.1 to 3. None for respondents No.4 to 16.

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Jiya Lal Bhardwaj, Judge (Oral)

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The petitioner, by way of present petition, has

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prayed for the following substantive reliefs:-

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“(i) That a Writ in the nature of certiorari for quashing the order dated 9.7.2009 whereby while condoning the period of joining, a condition has been imposed to grant the seniority as Head Mistress from the date of joining in her present place of posting (Annexure P-3), orderdated 10.6.2009 passed by respondent no. 3 (Annexure P-6), order-dated 31.8.2010 passed by respondent no.3 (Annexure P-6), order-dated 31.8.2010 passed by respondent no.3 (Annexure P-7), as well as the order dated January 2011, (received by the petitioner on 18.2.2012 (Annexure P-10) and also to quash the promotions of the respondent nos. 4 to 16 who being juniors have been promoted over and above the petitioner.

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

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(ii) That a Writ in the nature of mandamus directing the respondents to grant the seniority to the petitioner from the date of her promotion order-dated 24.3.2008 regarding which period of joining has already been condoned by the respondent no. 2 and also to grant all consequential benefits including the promotion to the post of Center Head Teacher from the date when the juniors to the petitioners have been promoted.”

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The facts which emerge from the pleadings, are that as per office order dated 24.03.2008 (Annexure P-1), the petitioner on the recommendation of the Departmental Promotion Committee was placed/transferred on the post of Head Teacher in the pay scale of Rs.4550-7220, but due to medical reasons, she could not join within the stipulated period of 15 days. However, later on, as per office order dated 30.06.2009 (Annexure P-2), the petitioner was adjusted in GPS Mehatpur Market, District Una in condonation of delay in joining period. In pursuance of the said order dated 30.06.2009, the petitioner submitted her joining report, but she was not allowed to join her duties and told that the clarification be got from respondent No.2. In response to the letter of respondent No.3, respondent No.2 issued an office order on 09.07.2009 (Annexure P-3) stating that the petitioner has been adjusted against vacant post of Head Teacher in condonation of delay in joining time. However, her seniority be reckoned from the date she joins at new place of

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posting. Thereafter, as per office order dated 14.07.2009 (Annexure P-4) passed by respondent No.3, the petitioner was permitted to join her duties but with the condition that her seniority as Head Teacher will be reckoned from the date of joining in her present place of posting.

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The petitioner feeling aggrieved by the said order had preferred the representations before respondent No.1, however, the same were not decided. The petitioner feeling aggrieved by the inaction on the part of the respondents-State had approached this Court by way of CWP No.6665 of 2010, titled, Raksha Mankotia Vs. State of H.P. & Anr. , which petition came to be decided on 22.11.2010, when direction was given to respondent No.2 to consider the representations made by her and take appropriate action thereon in accordance with law within a period of two months from the date of production of a copy of the judgment along with a copy of the writ petition.

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Respondent No.2 after receipt of the order passed by the Court on 22.11.2010 had passed an order on 18.02.2012 (though mentioned January 2011) (Annexure P-10) and rejected the claim of the petitioner on the grounds that vide order dated 30.06.2009 she was adjusted at GPS

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Mehatpur Market by condoning the delay in joining period, but subsequently vide letter dated 09.07.2009, the joining period was condoned with the condition that the seniority will be reckoned from the date of joining at new place of posting. 5. The petitioner has averred that in similar circumstances, respondent No.2 had granted the seniority to one Smt. Champa Devi as per Annexure P-12 and since the petitioner was similar situate, she too was entitled to the same relief. It has further been averred that once the period of joining was condoned, no modification could have been done subsequently. The petitioner was not issued any notice before modifying the earlier order dated 30.06.2009. The seniority and merit of the petitioner as per the initial order dated 24.03.2008 could not have been disturbed in which she was placed on the post of Head Teacher along with other persons. As per the office order dated 24.03.2008, the petitioner was at Sr. No.7 with seniority position as 1196. It has also been averred that the representation of the petitioner was pending consideration before respondent No.2, but the order came to be passed on 18.02.2012 when the stamp of the Directorate of Elementary Education has been appended. It has been averred that the persons who were juniors to the petitioner

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were promoted to the post of Center Head Teacher on regular basis. Since the respondents have wrongly rejected the claim of the petitioner in not considering her merit as per the office order dated 24.03.2008 and seniority and further promoted juniors to the post of Center Head Teacher, the same be quashed and also the order dated 18.02.2012(Annexure P- 10), whereby it has been held that the seniority of the petitioner shall be reckoned from the date of joining as Head Teacher.

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The respondents filed reply to the petition and averred that neither any legal and fundamental rights of the petitioner have ever been infringed nor any cause of action accrues to her to file and maintain the present writ petition. The petitioner was promoted as Head Teacher vide office order dated 24.03.2008. Thereafter, she had applied for grant of extension of joining time on 07.04.2008 supported by medical certificate dated 28.03.2008 and change her station of posting from GPS Kuthera Jaswalan (G) to GPS Ajouli Malookpur and further represented for adjustment in GPS Nangal Khurd with extension in joining time. The case of the petitioner was considered and rejected vide order dated 06.08.2008. Thereafter, the petitioner had directly

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represented to the Hon’ble Chief Minister on 07.02.2009 for grant of extension in joining time and consequently, the petitioner was adjusted at GPS Mehtapur Market District Una and her seniority is reckoned from the date of joining at the relevant place of posting. Therefore, the petitioner is not entitled for the seniority from the date of passing the order dated 24.03.2008. The representation made by the petitioner has rightly been rejected. So far as the issuance of office orders dated 10.06.2009 and 31.08.2010 are concerned, the name of the petitioner was not considered for the reason that in both these orders, the promotions of those persons as Center Head Teacher were made who had seniority of three years having served as Head Teacher. The seniority of the petitioner was not disturbed. However, her seniority in terms of the Head Teacher/JBT is far below from the Head Teacher mentioned in Annexure P-11.

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I have heard the learned counsel for the parties

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and also perused the record carefully.

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It is not in dispute that as per office order dated 24.03.2008, the petitioner was promoted to the post of Head Teacher and her name was at Sr. No.7 with seniority No.1196. As per the terms and conditions of this office order,

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the Head Teacher was directed to report at the place of their respective posting within 15 days from the issuance of these orders positively, failing which, the placement as Head Teacher shall be withdrawn and the next senior in seniority will be posted as such in his/her place. The relevant conditions of the office order dated 24.03.2008 are as under:

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“1. The above Head Teachers are directed to report at the place of their respective posting within 15 days from the issue of these orders positively failing which the placement as HT shall be withdrawn and the next senior in seniority will be posted as such in his/her place.

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2. No extension will be given in any case.

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3. In case a senior is left out in this placement, the junior most will stand automatically placed to his earlier posting as JBT Teacher.

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4. If dates/statements quoted in ACRs are found false/fictitious later on, action will be initiated against such defaulting Govt. Servant.”

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The above placements from Sr. No.1 to 35 shall be subject to the final decision of O.A. No.623/97, Dated : 23-04-1997 and W.P.(C) No.295/2002 Devi Ram Tanwar and Others Vs. Union of India. and final decision of O.A. No.44/2006, dated: January, 2006 “Rama Sood, JBT Vs. State of HP & others. OA No.102/8 GPT Fedration Una Vs H.P. State and A No.163/2008 dated 27-01-08 Shiv Kumar and others Vs State.

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Sd/-

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Dy. Director Elementary Education, Una, Distt. Una(H.P.)”

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A perusal of the conditions only stipulates that in case the Head Teachers do not report at the place of their

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respective posting within 15 days from the issuance of the orders positively, their placement as Head Teacher shall be withdrawn. In the present case, the respondents-State had admittedly not withdrawn the order in respect of the petitioner despite the fact she did not join within 15 days from 24.03.2008. Once the respondents-State did not opt the said course rather the initial representation made by the petitioner was rejected on 06.08.2008, but later on in continuation of the earlier office order dated 24.03.2008, respondent No.2 had passed the order on 30.06.2009 and the petitioner was adjusted in GPS Mehatpur Market Distt. Una, H.P. in condonation of delay in joining period. The relevant order reads as under:

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“EDN-II-(Etc-4) 4 (6) Sp-5/2009-Una Government of Himachal Pradesh Directorate of Elementary Education

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Dated Shimla 171001 the 30^th June, 2009

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To

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The Deputy Director Elementary Education, Una, District, Una (HP)

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Subject: Transfer/adjustment

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Memo:

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With the prior approval of the Govt. the following transfers/adjustments are hereby ordered as under:

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Sr.	Name of teacher/ design/	School for		which
No.	Place of posting Sh./Smt.	transfer/adjustment desired/approved	has	been
1.	Smt. Raksha Mankotia, JBT GPS Dehlan on	Be adjusted GPS Market Distt.	Me Una	hatpur in
	promotion as HT	condonation of delay period.	in	joining

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You are, therefore, directed to implement the transfers/adjustments orders of the above teachers, in view of conditions given overleaf under intimation to this Directorate within 7 days. If implementation is not possible in any case, it may be referred back with complete detail immediately.

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The petitioner had not initially placed on record the conditions which were mentioned overleaf of the order dated 30.06.2009, however, by way of an application the same have been placed on record (page 100) and the same reads as under:

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“Conditions for the transfers/adjustments :-

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“1. The case regarding transfer/adjustment must not be subjudiced.

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2. Stay/Distance determined by the Government must be complete.

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3. The teacher must not be Contract/Adhoc Vidya Upasak /Gramin Vidya Upasak working against the post of JBT.

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4. The teacher retiring within two years must not be shifted/transferred.

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5. The orders be implemented only the teacher is retired as per the pupil/teacher ratio fixed by the Government.

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6. Newly appointed JBT teacher will have to complete three years stay at one place of his/her first posting.

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7. From the different area Sub-cadre, the teacher be relieved only after the joining of his/her substitute.

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8. Contract teacher will be replaced by the fresh appointee only.

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9. Order regarding cancellation of transfer be implemented if surplus arrangement is not created in the school.

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10. The Deputy Director Elementary Education will ensure that any provision of Rationalization scheme is not violated.

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11. Instruction/orders of the Government be complied with strictly while implementing the transfer orders.

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12. The school must not be left without teacher at any condition.”

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From a perusal of the above orders, it is crystal clear that the adjustment of the petitioner on promotion as Head Teacher was made in condonation of delay in joining period. Once, the Competent Authority had condoned the delay in joining time of the petitioner as per office order dated 30.06.2009, the subsequent orders issued to determine her seniority are unsustainable in law for the reason that the respondents-State had acted on the promotion orders dated 24.03.2008, whereby the petitioner was promoted to the post of Head Teacher and thus, to say that her seniority shall be reckoned from the date of joining at the new place of posting is dehors the conditions of the office order dated 24.03.2008. Not only this, even the office order dated 14.07.2009 issued by respondent No.3 mentioning that the seniority of the

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petitioner shall be reckoned from the date of joining in her present place of posting is illegal for the reason that as per office order dated 24.03.2008, respondent No.3 could have withdrawn the order of promotion. In the present case, the respondents had not withdrawn the said orders, but in continuation of the said order had issued an office order dated 30.06.2009 when the petitioner was permitted to join in condonation of delay in joining period. Once, the respondents-State had condoned the delay in joining time, the merit and seniority as determined when the petitioner was earlier promoted vide office order dated 24.03.2008 to the post of Head Teacher cannot be annulled by issuing the subsequent orders. Once the petitioner was permitted to join her duties in pursuance of the promotion order dated 24.03.2008, respondents No. 2 and 3 later on, cannot say that the seniority of the petitioner is to be determined from the date of joining. Thus, the impugned orders issued by respondent No.2 and 3 to assign the seniority to the petitioner to the post of Head Teacher is patently illegal, arbitrary and discriminatory.

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This Court while disposing of the writ petition on 22.11.2010 (Annexure P-9) had given the direction to

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respondent No.2 to decide the representation made by the petitioner and respondent No.2 has only reiterated that vide subsequent letter dated 09.07.2009, the joining time was condoned with the condition that the seniority will be reckoned from the date of joining at new place of posting. The said reason cannot be accepted for the reason that the joining of the petitioner at the new place of posting was in terms of office order dated 24.03.2008 and once respondent No.2 had condoned the delay in joining period, the petitioner has to be assigned the seniority as per the merit drawn by respondent No.3 while issuing office order dated 24.03.2008. The petitioner at the most, can be denied the benefit of the salary from the date of passing the order till her joining as Head Teacher but she cannot be denied the other benefits such as further promotion to the post of Center Head Teacher and seniority since she was permitted to join in sequel to the recommendations of the Departmental Promotion Committee and further as per office order dated 24.03.2008. Thus, the action on the part of the respondents to reject the representation made by the petitioner dated 18.02.2012 (Annexure P-10) is unsustainable in law and as such quashed and set aside.

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It is borne out from the record that in case of Smt. Champa Devi, she was assigned seniority from the date of passing the order of her promotion and in her case too, she had not joined within the stipulated period. In her case too, the promotion orders were not withdrawn. Since in the case of the petitioner too, her promotion orders were not withdrawn, parity demands that she may also be given the same treatment, otherwise it will offend Article 14 of the Constitution of India. As already mentioned above, once the respondents-State had not withdrawn office order dated 24.03.2008 whereby the petitioner was promoted to the post of Head Teacher and had been permitted to join in condonation of delay in joining period, she is entitled to seniority as per her merit drawn by the DPC.

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Resultantly. the present petition is allowed and the impugned orders dated 09.07.2009 (Annexure P-3), 14.07.2009 (Annexure P-4) and 18.02.2012 (Annexure P-10) are quashed and set aside with a direction to the respondents-State to draw the seniority of the petitioner as per office order dated 24.03.2008 (Annexure P-1) and in case, she is eligible and further juniors to her have been promoted earlier to her as Centre Head Teacher, she may also be

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promoted from the same date, with all consequential benefits. The respondents are directed to release the arrears in favour of the petitioner after granting her promotion as Center Head Teacher, if any, within three months from today and in case the benefits of arrears are not released in her favour within three months, she shall be entitled to interest @ 6% per annum from today till actual payment to her. No orders as to cost. Pending applications, if any also stand disposed of.

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20^th May, 2026 (Kiran)

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( Jiya Lal Bhardwaj ) Judge

Raksha Mankotia v. State of Hp

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Raksha Mankotia v. State of Hp

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