CWPOA/6227/2020 on 31 December 2024

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

CWPOA No.6227 of 2020 Decided on: 31.12.2024 __________________________________________________________

Rita Devi

.....Petitioner

Versus

State of Himachal Pradesh

…...Respondents and others

Coram

Hon’ble Mr. Justice Ranjan Sharma, Judge 1Whether approved for reporting? No

For the petitioner: Mr. Narender Sharma, Advocate.

For the respondents: Mr. Vishav Deep Sharma, Additional Advocate General, for respondents No.1, 2 and 4-State.

Ms. Sunita Sharma, Senior Advocate with Mr. Dhananjay Sharma, Advocate, for respondent No.3-HPSEBL.

Ranjan Sharma, Judge

Petitioner [Rita Devi], presently serving as School Lecturer and [earlier TGT Arts] has come up, before this Court, seeking the following reliefs:- “7(a) That in view of the facts and circumstances as well as submissions made herein above the humble applicant pray for a direction to the respondents to count past services rendered by the applicant to the Respondent HPSEB and consequent thereupon the pay of the applicant be fixed giving benefits of past services.

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

7(b) That the consequential relief including arrears and consideration for promotion against the post of lecturer be granted from due date.”

FACTUAL MATRIX:

2. Precisely, the case is that the petitioner [Rita Devi] was appointed as Clerk in Himachal Pradesh State Electricity Board Limited on 07.11.1997, [Annexure A/1], and she joined on 10.11.1997 under Executive Engineer, Electrical Division, HPSEBL, Palampur. 2(i). Since the petitioner possessed qualifications of Graduation, Post-Graduation and Bachelor of Education [B.Ed.], therefore, the petitioner sought permission from parent employer i.e. Respondent-Board so as to enable her to apply and seek employment as a Trained Graduate Teacher [Arts] in Education Department. Consequently, the Senior Executive Engineer of Respondent-Board grant- ed ‘No Objection’ to the petitioner on 31.03.2000, [Annexure A/2]. Pursuant to issuance of ‘No Objection’ the petitioner applied for selection for the post of Trained Graduate Teacher [Arts], in Elementary Education Department and thereafter the petitioner was appointed as Trained Graduate Teacher on 16.03.2002, [Annexure A-3]. Even the Respondent-Board, accepted her technical

resignation as per orders dated 27.03.2002 w.e.f. 20.03.2002 [Annexure A-4], so as to enable her to join in Elementary Education Department. After acceptance of technical resignation by Board, the petitioner joined as TGT (Arts) in Elementary Education Department on 21.3.2002. 2(ii). After joining as TGT (Arts) the petitioner submitted a representation, for counting the services rendered by her as Clerk in Electricity Board from 10.11.1997 to 20.03.2002 towards services rendered as TGT [Arts] and under Elementary Education Department thereafter as Lecturer in Higher Education Department for pensionary benefits. Resultantly, the School- Authorities took up the matter with the Senior Executive Engineer, of Respondent Board Limited, Barsar between June 2006 to June 2008 [Annexure A-6 to A-8] and then by the Respondent Board with Director, Elementary Educa- tion, on 25.06.2009, [Annexure A-9] and on 30.05.2017 [Annexure A-10]. 2(iii). Ultimately, the Accounts Officer (Pen.) of Respondent-Board sent a communication to Senior Executive Engineer concerned on 10.07.2018, [Annexure A-11], that the Director of Elementary Education was

demanding remission of 20% penal interest on aforesaid amounts. Thereafter, the Director, Elementary Education took up the matter with Senior Executive Engineer, Electrical Division, HPSEBL Barsar and Deputy Director Elementary Education, Solan and Principal, GSSS [Girls] Nalagarh, District Solan [HP] on 09.09.2009 [Annexure A-12 Colly.] to deposit the contribution of Pro-rata pension, in addition to leave salary contribution so that her service continued be counted. Thereafter on 27.02.2018 & 13.02.2018, Respondent No.4-Director Elementary Education directed Senior Executive Engineer, Barsar to send the service book and other information, so that further action can be taken. 2(iv). In response to various communications exchanged inter-se, the Chief Engineer [Operation], Central Zone, HPSEB Ltd. Mandi accorded approval on 16.01.2019 for remitting 20% penal interest on Pro-rata share of Pension, DCRG and Leave Encashment in favour of petitioner amounting to Rs.2,01,641/-. Pursuant to this approval, Senior Executive Engineer HPSEB Division Barsar passed further orders on 05.04.2019 [Annexure A-13], affirming to remit this amount by way of a draft. Accordingly, this amount was remitted to

Respondent No.4-Director, Elementary Education, Himachal Pradesh but surprisingly, the Respondent No.4- Director Elementary Education returned the draft to Sr. Executive Engineer of Respondent Board, Barsar on 20.06.2019 [Annexure A-14], on the ground, since the petitioner is working as Lecturer and her incumbents falls under Respondent No.2-Director of Higher Education therefore, the draft-amount was required to be remitted to the Respondent-Director, Higher Education.

In this background, the case of the petitioner is that benefit of counting of service rendered in the Respondent-Board as Clerk on regular basis from 10.11.1997 to 20.03.2002 towards service rendered under the State Government as TGT (Arts) w.e.f. 21.03.2002 in Directorate of Elementary Education and thereafter as School Lecturer w.e.f. 31.08.2008 under the Higher Education Department has not been given to petitioner due to the inter-departmental inaction of Respondents No.2 and 4 [Education Department], which has resulted in denying the benefits, earned during service rendered in Respondent Board forwards the service rendered in Respondent-Education Department on her retirement.

STAND OF STATE AUTHORITIES-DIRECTOR HIGHER EDUCATION:

3. Pursuant to issuance of notice, Respondent No.2-Director, Higher Education, Himachal Pradesh, has filed a Reply-Affidavit dated 25.12.2018, that since the petitioner was appointed as Trained Graduate Teacher [Arts] and had joined on 20.03.2002 and this category falls under the Establishment of Director, Elementary Education therefore, in these circumstances, the matter is to be initially considered and appropriate steps are to be taken by Elementary Education Department in instant case.

NO REPLIES BY RESPONDENT NO.3-HPSEBL AND BY RESPONDENT NO.4-DIRECTOR ELEMENTARY EDUCATION:

3(i). Respondent No.3-Board has not filed any reply since the date of issuance of notice on 11.01.2019. Even the newly added Respondent No.4-Director, Elementary Education, Himachal Pradesh has not filed any reply despite opportunity granted on 24.09.2024. 3(ii). Learned Senior Counsel for Respondent-Board submits that pursuant to the approval given by Chief Engineer on 16.01.2019, through Senior Executive Engineer of Respondent Board had remitted the amount of contribution alongwith interest to Respondent No.4-

Director of Elementary Department on 05.04.2019, [Annexure A-13] but the remitted draft amount was erroneously returned by Director of Elementary Education Department on 20.06.2019, [Annexure A-14], on the ground, that since the petitioner was presently serving as Lecturer School Cadre under Higher Education Department [Respondent-2]; therefore, the amount of con- tribution needs to be sent to Director, Higher Education, ignoring the fact that once the petitioner was appointed as TGT under Respondent No.4-Director of Elementary Education Department then, this Respondent was bound to be take up the matter and complete required formalities at its end and then to forward the case to Respondent No.2- Director of Higher Education, for counting of service for admissible benefits. In this backdrop, it was asserted that the inaction of Respondents No.2 and 4 [Elementary Education/Higher Education Department] has resulted in denying the admissible service benefits to the petitioner.

4. Heard, Mr. Narender Sharma, Learned Counsel, for the petitioner and Mr. Vishav Deep Sharma, Learned Additional Advocate General, for respondents No.1, 2 and 4-State and Ms. Sunita Sharma, Learned Senior Counsel, assisted by Mr. Dhananjay Sharma, Learned

Counsel, for Respondent No.3-HPSEBL.

ANALYSIS:

5. Taking into account the entirety of facts and circumstances and the material on record and in the nature of relief(s) prayed for and the stand of the Respondents herein, this Court is of the considered view, that the claim of petitioner for counting the service rendered by petitioner as Clerk in Respondent No.3-Board from 10.11.1997 till 20.03.2002 towards service rendered as TGT [Arts] in Elementary Education Department, w.e.f. 21.03.2002 followed by service rendered on promotion as Lecturer w.e.f. 20.08.2008 in Higher Education Department towards Pension, Leave Encashment, Gratuity and Other Retiral Benefits, deserves to be accepted, for the following reasons;

6. Material on record reveals that the stand of Respondent No.4-Director, Elementary Education, in communication dated 20.06.2019, Annexure A-14, for not counting the service rendered by petitioner as Clerk from 10.11.1997 to 20.03.2002, in Respondent-Board, towards service rendered as TGT (Arts) from 21.03.2002 to 31.08.2008 under Director of Elementary Education is that the petitioner stands promoted as Lecturer in Hindi on

31.08.2008. Importantly, the subsequent promotion of petitioner as Lecturer in Hindi will neither give leverage nor would be taken as an excuse for not performing his part of the action. Non-performance of functions and duties by Respondent No.4-Director, Elementary Education cannot be permitted to be a ground for depriving the peti- tioner of her right to seek counting of past service rendered in Respondent No.3-Board w.e.f. 10.11.1997 to 20.03.2002 towards service rendered as TGT (Arts) in Elementary Education Department, followed by service rendered on promotion as Lecturer (Hindi) on 31.08.2008 in Higher Education Department for admissible service benefits on superannuation. Petitioner cannot be made to suffer for inaction or non-performance of duties by respondents. Accordingly, the stand of Respondent No.4-Director Elementary Education in the communication dated 13.06.2019 [Annexure A-19], is declared illegal and inoperative for all intents and purposes. 6(i). Notably, once the Parent Establishment i.e. Himachal Pradesh State Electricity Board Limited has permitted the petitioner who was a Clerk to apply for the post of TGT [Arts], in Elementary Education Depart- ment by issuing the necessary ‘No Objection Certificate’

and upon selection, had accepted her technical resignation w.e.f. 20.03.2002 [Annexure A-5] and thereafter the Respondent-Board has accorded the necessary sanction and also remitted the amount of pro-rata share of Pension, DCRG, Leave Encashment alongwith 20% penal interest on 05.04.2019, [Annexure A-13] to Respondent No.4- Director, Elementary Education, then, aforesaid Respond- ent No.4 was duty bound to accept the contribution so remitted by Respondent-Board and initially to update the entries in service Book and to complete all codal formalities at its end; and then to remit the Service Book alongwith record to Respondent No.3-Higher Education Department for counting the rendered service on promotion as Lecturer w.e.f. 31.08.2008 for admissible benefits on superannuation. Inaction of Respondents 3 & 4 inter-se, cannot be made the basis for not counting the service rendered in Board towards the service rendered as TGT in Elementary Education and thereafter the service rendered as Lecturer in Higher Education Department. Inaction and non-performance of duties by Respondent No.4- Director Elementary Education and then by Respondent No.2-Director Higher Education cannot be the basis for

giving a complete go-by to the rights of petitioner for counting of service as per norms. 6(ii). Petitioner cannot be made to suffer for the inaction of Respondents. Even the rights of petitioner cannot be negated, due to administrative intricacies or bureaucratic delays by Respondents 3 and 4, so as to frustrate the benefits which were due to the petitioners as per existing norms, in facts of instant case. 6(iii). The petitioner has a right to get the benefit of counting of service rendered in Respondent- Board towards service rendered in Education Department [Respondent No.4 and Respondent No.2, respectively] as qualifying service towards retiral benefits and also towards earned leave(s) en-cashable on superannuation. These legal entitlements, being the property under Article 300-A of the Constitution of India cannot be frustrated, due to the inaction of respondents, when, deprivation and denial of these benefits results has resulted in civil consequences illegally without giving notice, without affording personal hearing and that too arbitrarily which cannot sustain in facts of instant case.

7. At this stage, Learned Counsel for the petitioner states on Instructions that the petitioner shall

be satisfied, in case, Respondents No.3 Board remits the amount of contribution [as in communication dated 05.04.2019 [Annexure A-3] alongwith interest afresh to Respondent No.2-Director Elementary Education after completion of codal formalities; and thereafter, Respondent No.2-Director of Higher Education may be directed to complete necessary updation in service records for service rendered as Lecturer, In nutshell Learned Counsel for petitioner prays that Respondents No. 2 to 4 may be directed to take consequential action for counting of service for admissible retiral benefits. [Statement taken on record].

8. Statement made by Learned Counsel for petitioner is not opposed by Learned Respondents’ Counsel also. Moreover, the statement, so made, shall expedite the entire matter. Accordingly, in order to meet the ends of justice, this Court passes the following directions, in peculiar fact-situation of instant case.

DIRECTIONS:

9. In view of the above discussion and the prayer made by Learned Counsel for petitioner, this Court, disposes of the instant petition, at this stage, in the following terms:-

(i) Respondent No.3-Board is directed to remit the amount of Rs.2,01,641/- as in communication dated 05.04.2019 [Annexure A-13] or such like amount to Respondent No.4 so as to ensure counting of service rendered as Clerk in Board with service rendered as TGT [Arts] under Respondent No.4-Director Elementary Education and then towards the service rendered as Lecturer (School Cadre) under Respondent No.2-Director Higher Education, for all retiral benefits, within three weeks from the date of receipt of certified/downloaded copy of this judgment;

(ii) Respondent No.4-Director, Elementary Education, on receipt of amount/ contribution from Respondent No.3-Board as in (i) above, shall complete necessary verification of service, rendered by petitioner as TGT [Arts]; and shall thereafter forward the records duly completed to Respondent No.2 i.e. Director Higher Education, within two months from the receipt of amount by Respondent No.3- Board as in (i) supra;

(iii) Pursuant to direction

(ii) supra, Respondent No.2-Director, Higher Education, shall ensure updation of verification and completion of service

records for period of service rendered as Lecturer for retiral benefits;

(iv) Respondents No.2 to 4 are directed to coordinate inter se and to ensure completion of verification of service records and passing necessary order(s) entitling petitioner for counting of service rendered by petitioner as Clerk [from 10.11.1997 to 20.03.2002] in Respondent No.3- Board with service rendered as TGT [Arts] w.e.f. 21.03.2002 to 30.08.2008 followed by service rendered on promotion as Lecturer Hindi from 31.08.2008 till superannuation]; within four months in totality from the date of receipt of certified/downloaded copy of this order;

(v) Failure to release the admissible benefits as in (i) to (iv), shall mandate the Respondents 2 to 4 to pay interest, beyond four months [as in (v) above] at the rate of 6% per annum till actual realization; and

(vi) Needless to say, that in case, any additional amount, as shown in communication dated 19.05.2019 [Annexure A-19] is required to be remitted by Respondent No.3 to Respondent No.4 the same shall also be remitted with interest so as to ensure compliance of directions in (i) and (ii) supra.

10. In aforesaid terms, the instant petition is allowed and pending miscellaneous application(s), if any, shall stand disposed of accordingly.

(Ranjan Sharma)

Judge December 31, 2024

[Bhardwaj]