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Himachal Pradesh High Court · body

2006 DIGILAW 377 (HP)

SUDESH PARIHAR v. STATE OF H. P.

2006-11-29

M.R.VERMA

body2006
JUDGMENT M.R. Verma, Chairman.—The applicant in this original application has claimed the relief that order dated August 21, 2000 Annexure-A/ 1 forfeiting the promotion of the applicant for next five years may be quashed and set aside and the promotion of the applicant may be restored and applicant may be given all service benefits as Head Teacher from May 2000 i.e. the date of her promotion. 2. The case of the applicant as made out in the application is that she was promoted to the post of Head Teacher vide Annexure-A/2 and was transferred and posted as such in Govt. Primary School Gunaha. The applicant represented vide Annexure-A/3 dated May 12, 2000 that she was suffering from acute chest pain and high blood pressure and was undergoing treatment and no medical facility was available at Gunaha, therefore, she requested for two months time to join at the place of posting. The respondent No. 4 then called upon the applicant to submit a Medical certificate from a Medical Officer/Board counter signed by Chief medical Officer within a week failing which she would be ordered to join at the place of posting on promotion vide Annexure-A/4. In turn the applicant vide Annexure-A/5 informed respondent No. 4 that she had applied to the Chief Medical Officer for medical examination by a Medical Board and she would submit the requisite certificate when the Board sits for her medical examination. On June 19, 2000 the applicant informed respondent No. 4 that her application for her medical examination had been misplaced in the office of Chief Medical Officer, therefore, she had made another application on June 6, 2000 which has been marked to the concerned officer. She further informed that medical board sits only once in a week on Saturday and June 10, 2006 being second Saturday the Board did not sit and on medical examination of the applicant on June 17, 2000 she was referred for TMT test to Snowdon Hospital. The applicant further informed that after getting TMT Test conducted on June 24, 2000 she would produce the same before the medical board and thereafter the requisite medical certificate would be issued to her Vide Annexure-A/6, she appended copy of her application to the Chief Medical Officer and prescription slip issued from Solan Hospital. The applicant further informed that after getting TMT Test conducted on June 24, 2000 she would produce the same before the medical board and thereafter the requisite medical certificate would be issued to her Vide Annexure-A/6, she appended copy of her application to the Chief Medical Officer and prescription slip issued from Solan Hospital. On June 22, 2000 the applicant again represented to respondent No. 3 videAnnexure-A/7 that because of her suffering from high blood pressure and Ingina she may be adjusted at a place where she could continue with her treatment or at Shimla and along with this communication she enclosed OPD slip issued from Snowdon Hospital Shimla. Vide Annexure-A/8 dated July 11, 2000 the applicant again informed respondent No.3 that her TMT test had been fixed for July 27, 2000 and also enclosed with Annexure-A/8 an outdoor Ticket issued from Indira Gandhi Medical College and Hospital Shimla and requested for one months more time to join at Gunaha. In the meanwhile she was deputed for preparing the voter list and was discharged of the said assigned job vide Annexure-A/9 on August 7, 2000. Thereafter the applicant on August 9, 2000 videAnnexure-A/10 represented that there was some improvement in her health but there were summer vacations in the school to which she had been transferred therefore sought the advise whether she would join n the office of Block Primary Education Officer Nalagarh or she might join in the school to which she was transferred on opening of the school after summer vacations. She received communication Annexure-A/11 dated August 14, 2000 informing her that last date to join on promotion was June 30, 2006, therefore she had been debarred from her promotion. On receipt of this communication the applicant vide Annexure-A /12 requested for furnishing her a copy of the order by which her promotion was cancelled. Thereafter she made representation Annexure-A/13 requesting for restoring the promotion against the background of her illness. Since no decision was taken on this representation, therefore the applicant sent reminder Annexure-A/14. The applicant claims that the impugned order Annexure-A/1 was passed without issuing her any notice or even informing her about it, therefore is illegal, wrong and arbitrary and injustice have been done to her. Hence this application. 3. Since no decision was taken on this representation, therefore the applicant sent reminder Annexure-A/14. The applicant claims that the impugned order Annexure-A/1 was passed without issuing her any notice or even informing her about it, therefore is illegal, wrong and arbitrary and injustice have been done to her. Hence this application. 3. The respondents contested the claim of the applicant and averred in their reply that after promotion of the applicant vide Annexure-A/ 2, the joining time to her was extended upto June 30, 2000 and it was made clear that no further extent ion of joining time would be allowed and in the event of the applicant not joining her duties at the place of posting, she would be debarred for promotion for five years. It is also claimed that the applicant wanted to be posted to some suitable place therefore did not join, therefore, she has rightly been debarred for the next promotions. It is also case of the respondents that the applicant failed to substantiate her alleged illness at the relevant time and only furnished a certificate from a private practitioner which was issued after her promotion order and she failed to produce the medical certificate of a medical board as was desired to be produced. Thus the sum and substance of the defence of the respondents is that the applicant wanted a convenient posting and did not want to join at the place to which she was posted therefore asked for extention on ground of ill health which she failed to substantiate, therefore was rightly debarred from being promoted. 4. The applicant filed rejoinder wherein she denied the defence of the respondents and reiterated her claim as in the original application further alleging that she was never informed that extention to join was given only up to June 30, 2000 and on failure to join by that date she would be debarred for promotion. 5. I have heard the learned Counsel for the applicant and the learned Addl. Advocate General for the respondents. 6. It is not in dispute that the applicant was posted as Head Teacher vide Annexure-A/2. The endorsement therein to the BPEOs concerned reads that the concerned teachers might be relieved of their duties within the stipulated period and compliance is reported by May 20, 2000. Advocate General for the respondents. 6. It is not in dispute that the applicant was posted as Head Teacher vide Annexure-A/2. The endorsement therein to the BPEOs concerned reads that the concerned teachers might be relieved of their duties within the stipulated period and compliance is reported by May 20, 2000. However Annexure-A/2 does not contain any stipulated period for relieving the teachers thereby transferred nor it contain any date by which they were to join at the places of their posting. Further it does not contain the condition that failure of a teacher thereby transferred to join at the place of posting would result in forfeiture of the promotion as head teacher and would be further debarred for promotion as head teacher for a period of five years. In the absence of these conditions/ terms in Annexure-A/2 and in the absence of any other material on record to substantiate these conditions, it cannot be held that the applicant was to be relieved by a specified date and was to join as head teacher at the place of her posting by a specified date. 7. It is case of the respondents that time to join at her place of posting by the applicant as head teacher was extended upto June 30, 2000. The applicant had been seeking extention of joining time. Vide Annexure-A/3 dated May 12, 2000. She requested for extention of two months time to join she had made the requests on health grounds which did not find favour with the concerned authority for want of authentic evidence of illness of the applicant. Therefore vide Annexure-A/4 dated May 24, 2000 the BPEO asked the Central Head Teacher to get from the applicant a medical certificate from a medical board duly countersigned by the Chief Medical Officer within a week failing which she would be directed to join at the place to which she was posted and a copy of Annexure-A/4 was endorsed to the applicant. The applicant thereafter appears to have made attempt to get herself medically examined by a medical board as can be concluded on the basis of unrebutted contents of Annexure-A/5, Annexure-A/6 (along with its two enclosures) Annexures- A/7 and A/8 (along with enclosures). She made request for further extention of joining time by one month vide Annexure-A/8 dated July 11, 2000. The applicant thereafter appears to have made attempt to get herself medically examined by a medical board as can be concluded on the basis of unrebutted contents of Annexure-A/5, Annexure-A/6 (along with its two enclosures) Annexures- A/7 and A/8 (along with enclosures). She made request for further extention of joining time by one month vide Annexure-A/8 dated July 11, 2000. Vide Annexure-A/10 dated August 9, 2000 the applicant informed the District Primary Education Officer that her health had slightly improved, therefore because of vacations in the school of her posting she be advised whether she could join after vacation or should join in the office of Block Primary Education Officer Nalagarh. In response to Annexure-A/10 the applicant was informed vide Annexure-A/11 that last date for her to join at the place of posting after promotion was June 30, 2000, therefore she stood deprived of the promotion and for further information she could contact District Primary Education Officer, Solan. 8. The respondents though have averred in the reply that joining time to the applicant was extended upto June 30, 2000 and it was made dear to her that in case she would not join at the new place of posting by the aforesaid date she would be debarred from promotion for five years. However, this averment in the reply of the respondents is not on affidavit nor they have brought on record the copy of the communication if any sent to the applicant in this regard. The applicant claims that she was not informed of the extended date nor was informed of the consequences of not joining as claimed by the respondents. This stand of the applicant finds support from Annexure-A/12 dated August 21, 2000 submitted by her in response to Annexure-A/11. The respondents thus have failed to show that the joining time to the applicant was extended only upto June 30, 2000 and she was fore warned that in the event of her failure to join by the aforesaid date she would not only forfeit her promotion as head teacher but also be debarred for promotion for a period of five years. 9. It is not the case of the respondents that Annexure-A/9 was issued after giving show cause notice or personal hearing to the applicant. 9. It is not the case of the respondents that Annexure-A/9 was issued after giving show cause notice or personal hearing to the applicant. Therefore, the impugned order whereby the applicant has been deprived of the promotion given to her and has been debarred for promotion for five years is grossly violative of the principle of natural justice and law, therefore cannot be sustained. 10. The question on merits viz. whether the applicant was in fact ill to the extent that she could not join at the place of her posting and whether she was in fact trying to evade joining at the new place of posting and to get adjusted to a place of her choice are questions of fact and the material on record is incapable of answering these questions correctly. However, these questions are even otherwise not to be answered by this Tribunal at this stage in view of the final order being passed in this original application. 11. In view of the above conclusions the impugned order Annexure-A/l is quashed and set aside. The respondent No. 1 is directed to conduct a fact finding inquiry into the circumstances leading to the applicant not joining at the place to which she was posted vide Annexure-A/2 after giving due notice of inquiry and opportunity of hearing to the applicant and then pass appropriate speaking orders in the matter. This original application is disposed of in terms of the above orders with no order as to costs. Application disposed of.