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Himachal Pradesh High Court · body

2010 DIGILAW 719 (HP)

GHANA NAND v. STATE OF HIMACHAL PRADESH

2010-04-09

RAJIV SHARMA

body2010
JUDGMENT Rajiv Sharma, J.-Material facts necessary for the adjudication of this petition are that petitioner No.1 jointed as Junior Basic Trained Teacher on 15.10.1965, petitioner No.2 joined as Junior Basic Trained Teacher on 18.10.1965 and petitioner No.3 joined as Junior Basic Trained Teacher in the month of October, 1965. Petitioners were promoted to the post of Head Teacher. Post of Head Teacher is in feeder category for promotion to the post of Centre Head Teacher. Petitioners were considered for promotion to the post of Centre Head Teacher on 12.3.2001. However, a rider was put by way of condition No.6 that the incumbents promoted to the post of Centre Head Teacher have to join new place of posting within a period of 15 days, failing which they were to be debarred for promotion for a period of five years. Respondent-Department made further promotions to the post of Centre Head Teacher on 13.8.2001 and 28.12.2001. Petitioners were not considered for promotion since they had failed to join their duties at the new place of posting as per Annexure A-1. Juniors to the petitioners were promoted. Petitioners made representations vide Annexures A-4 to A-6 for redressal of their grievance. Case of the respondent-State, in a nutshell, is that once the petitioners have not joined their new place of posting after their promotion to the post of Centre Head Teacher within a period of 15 days, they could not be considered for promotion to the post of Centre Head Teacher for a period of 5 years. 2. Ms. Ranjana Parmar has vehemently argued that action of the respondents of not considering the case of petitioners for promotion to the post of Centre Head Teacher again is illegal, arbitrary, discriminatory and thus violative of Articles 14 and 16 of the Constitution of India. She has relied upon instructions dated 15.10.1996 (Annexure A-8). She has further contended that similarly situate persons, namely, Smt. Parbati Bhardwaj, Smt. Savitri Sen and Sh. Chet Ram, who were promoted to the post of Centre Head Teacher on 6.11.2001, have been permitted to join their duties after a period of 15 days. 3. Mr. She has relied upon instructions dated 15.10.1996 (Annexure A-8). She has further contended that similarly situate persons, namely, Smt. Parbati Bhardwaj, Smt. Savitri Sen and Sh. Chet Ram, who were promoted to the post of Centre Head Teacher on 6.11.2001, have been permitted to join their duties after a period of 15 days. 3. Mr. Rajinder Dogra, learned Additional Advocate General has strenuously argued that action of the respondent-State not to consider the case of petitioners for a period of five years for further promotion, once they have failed to join at their new place of posting, cannot be termed as arbitrary and illegal. 4. I have heard the learned counsel for the parties and have perused the pleadings carefully. 5. Petitioners have been promoted to the post of Centre Head Teacher strictly as per their seniority on 12.3.2001. A condition No.6 had been imposed in letter dated 12.3.2001 that in case they did not join their duties at new place of posting, they were to be debarred for further promotion for a period of five years. State Government has issued instructions dated 15.10.1996. Text of instructions dated 15.10.1996 reads thus: “In this context it is to inform to you that in case the promotions of Head Teachers/Centre Head Teachers are made on regular basis and after the expiry of joining period, due notice be again served to such promotee to join his/her duty at their new place of postings by giving at least 15 days more. Even then if the promotee fails to join as HT/CHT in that event they are certainly to be dovetailed in the seniority and their promotion should have been forfeited till the holding of next DPC or at least one year as per provision laid down in CSR 418 (Vol.II). Please note that this provision shall not be applicable in case of ad hoc promotions.” 6. It is evident from the phraseology employed in instructions dated 15.10.1996 that a teacher, who is promoted as Head Teacher/Centre Head Teacher on regular basis does not join after the expiry of joining period, due notice is required to be served again on such promotee to join his/her duty at their new place of postings by giving at least 15 days more. It is also stipulated that if the promotee fails to join as Head Teacher/Centre Head Teacher he shall be dovetailed in the seniority list and his/her promotion is to be forfeited till the holding of next Departmental Promotion Committee or at least one year as per the provisions of CSR 418 (Vol.II). In view of instructions dated 15.10.1996, respondents could not debar petitioners for further promotion for a period of five years. Condition No.6 imposed in Annexure A-1/1 dated 12.3.2001 is in contravention of the instructions issued on the subject on 15.10.1996. Petitioners could only be debarred as per contents of instructions dated 15.10.1996 till the holding of next Departmental Promotion Committee or at least for one year. No tangible evidence has been placed on record by the respondents that any notice was ever issued to petitioners to join their duties even after the period of 15 days as per Annexure A-8. Next Departmental Promotion Committees were held in the same year i.e. 2001 and the promotions were made vide office order dated 13.8.2001 and 28.12.2001. Petitioners’ cases were required to be considered for promotion by the Departmental Promotion Committees as per Annexure A-8 dated 15.10.1996 in the year 2001 itself. Persons junior to the petitioners have been promoted to the post of Centre Head Teacher and the petitioners have been left out. Cases of the petitioners could not be over looked by the Departmental Promotion Committee. 7. Matter is required to be considered from another angle. Petitioners have been debarred for promotion for a period of five years since they have failed to join their new place of posting within a period of 15 days. However, similarly situate persons, who were promoted on 6.11.2001, namely, Smt. Parbati Bhardwaj, Smt. Savitri Sen and Chet Ram were permitted to join their duties after 15 days period. It amounts to invidious discrimination. It is evident from the office order dated 6.11.2001 that when these persons were promoted, a condition also existed that they will have to join new place of posing within 15 days, failing which they were to be debarred for promotion for five years. Respondents cannot treat equals as unequals. 8. Accordingly, in view of the observations made hereinabove, petition is allowed. Respondents cannot treat equals as unequals. 8. Accordingly, in view of the observations made hereinabove, petition is allowed. Respondents are directed to consider the case of the petitioners for promotion to the post of Centre Head Teacher strictly as per Annexure A-8 dated 15.10.1996 with all the consequential benefits within a period of eight weeks from today. No costs.