Research › Search › Judgment

Himachal Pradesh High Court · body

2013 DIGILAW 87 (HP)

Neeru Bhardwaj v. State of Himachal Pradesh

2013-01-11

RAJIV SHARMA

body2013
JUDGMENT Rajiv Sharma, J. Petitioner was appointed as Librarian in the respondent-Society on 15.06.1988. She was permanently absorbed w.e.f. 01.09.1992. She made a representation seeking deputation with Education Department. In sequel thereto, the respondent No. 4 sanctioned two years leave to enable the petitioner to join duties on deputation. The Secretary (Education) issued a letter, dated 24.07.1995, whereby the petitioner was appointed on deputation basis for a period of two years, i.e., w.e.f. 06.07.1995 to 05.07.1997. She was relieved by the Principal, Jawahar Navodaya Vidyalaya, Nahan on 05.07.1995. She joined her duties on 06.07.1995. She was transferred to Government Degree College, Chaura Maidan, Shimla on 01.09.1995. Petitioner submitted an application for permanent absorption in the respondent-department on 05.07.1997. The deputation of the petitioner was extended w.e.f. 06.07.1997 to 05.10.1997. The respondent No. 4 sent a communication to the respondent-department on 13.08.1997 to the effect that no leave would be sanctioned to the petitioner beyond 06.07.1997. Thereafter, the Commissioner-Cum-Secretary (Education) sent a letter to the Deputy Director, Navodya Vidyalaya Samiti informing him that the Government intended to consider the absorption of the petitioner as Librarian in the Education Department. The Deputy Director was directed to issue ‘No Objection Certificate’ in favour of the petitioner. However, the fact of the matter is that the lien of the petitioner was terminated on 26.11.1997. Her joining was not accepted by the Education Department and she was relieved on 16/17.12.1997. 2. This Court has passed the following order on 23.06.2010: “The petitioner is working in the respondent-department since 1995. We are in 2010 now. Mr. P.M. Negi, learned Deputy Advocate General is directed to seek instructions from the Principal Secretary (Education) whether the petitioner can be considered for absorption in the respondent department, more particularly, when her lien from Jawahar Navodya Vidyalya Nahan stood terminated. Needful be done within a period of one week. List on July 8, 2010.” Thereafter, the order was passed by this Court on 11.08.2010, the operative portion whereof reads as under: “2. Mr. P.M. Negi, Deputy Advocate General submits that no instructions have been imparted by the Principal Secretary (Education). Consequently, the Principal Secretary (Education) is directed to appear in person on 13th August, 2010 to explain as to why instructions have not been imparted to effectively adjudicate upon this petition.” 3. In sequel to the order, dated 11.08.2010, the Principal Secretary (Education), Govt. Consequently, the Principal Secretary (Education) is directed to appear in person on 13th August, 2010 to explain as to why instructions have not been imparted to effectively adjudicate upon this petition.” 3. In sequel to the order, dated 11.08.2010, the Principal Secretary (Education), Govt. of Himachal Pradesh, has appeared in the Court on 13.08.2010. He has made a concession that the case of the petitioner could be considered for the post of Assistant Librarian. Mr. Dilip Sharma, learned Senior Advocate, for the petitioner was permitted to seek instructions. The Principal Secretary (Education) to the Govt. of Himachal Pradesh has also passed an order on 13.08.2010 and the same is at page 74 of the paper-book. Thereafter, the case came up for hearing on 23.08.2010. This Court has passed the following order on 23.08.2010: “The Principal Secretary (Education) in a letter addressed to the office of learned Advocate General on 13th August, 2010 has made the following observations: “5. However, if the petitioner represents for her absorption as Assistant Librarian, the Education Department could examine her case in consultation with other advisory Department as admissible under rules. Petitioner was working in school cadre in Navodaya and in the schools in Himachal Pradesh we have the post of Assistant Librarian only.” 2. The Principal Secretary (Education) has also appeared before the Court on 13th August, 2010. The order, dated 13th August, 2010, reads as under: “In sequel to order, dated 11.08.2010, Mr. Shri Kant Baldi, Principal Secretary (Education) is present in the Court. He has made a fair concession that the case of the petitioner in view of the intervening events can be considered for the post of Assistant Librarian. 2. Mr. Dilip Sharma, Advocate prays for and is permitted to seek instructions by the next date of hearing.” 3. Mr. Dilip Sharma, learned counsel for the petitioner, who was directed to seek instructions from his client on 13th August, 2010, submits that his client is ready and willing to be absorbed as Assistant Librarian, however, only with the rider that she may be absorbed from the date when her lien was terminated by the Navodaya Vidalaya. He further submits that in the eventuality of the petitioner being absorbed from this date, she will not seek arrears of salary etc. except continuity in service. 4. Now, in order to finally adjudicate and give quietus to this case, Mr. He further submits that in the eventuality of the petitioner being absorbed from this date, she will not seek arrears of salary etc. except continuity in service. 4. Now, in order to finally adjudicate and give quietus to this case, Mr. P.M. Negi, learned Deputy Advocate General is permitted to seek instructions only with regard to the sate of absorption of the petitioner by tomorrow.” Thereafter, the matter was finally adjudicated on 24.08.2010 on the basis of letter, dated 23.08.2010, issued by the Principal Secretary (Education) to the Government of Himachal Pradesh. The respondent-State also filed an LPA against the judgment, dated 24.08.2010. However, since the judgment, dated 24.08.2010, was recalled on 09.03.2012, the LPA was dismissed. 4. What emerges from the facts enumerated hereinabove, is that the petitioner joined the respondent-department on deputation as Librarian on 06.07.1995. The Commissioner-Cum-Secretary (Education), Government of Himachal Pradesh has informed the Deputy Director, Navodaya Vidalaya Samiti on 08.10.1997 to issue ‘No Objection Certificate’ in favour of the petitioner, since her case was being considered for absorption in the Education Department as Librarian. Since the matter remained under correspondence for long period, the lien of the petitioner was also terminated on 26.11.1997. Petitioner was not permitted to join her duties after she availed medical leave and she was ultimately relieved on 16/17.12.1997. It is evident from letter, dated 13.08.2010 that the respondent-State has agreed to consider the case of the petitioner in case she was ready and willing to be considered for absorption as Assistant Librarian instead of Librarian. Mr. Dilip Sharma, learned Senior Advocate, for the petitioner, on the basis of instruction imparted to him, has informed the Court that his client was ready and willing to be absorbed as Assistant Librarian. 5. What is stated in letter, dated 23.08.2010, as noticed in the judgment, dated 24.08.2010, is that if the petitioner makes an application, the matter was required to be sent to the Advisory Departments and thereafter, the matter was to be placed before the Cabinet for decision. The petitioner is working in the Education Department as Librarian on the basis of interim order, dated 18.12.1997, passed in OA 2239 of 1997, which was transferred to this Court after the abolition of learned erstwhile Himachal Pradesh Administrative Tribunal and reregistered as CWP(T) No. 6336 of 2008. 6. The petitioner has continuously worked as Librarian w.e.f. 05.07.1995. The petitioner is working in the Education Department as Librarian on the basis of interim order, dated 18.12.1997, passed in OA 2239 of 1997, which was transferred to this Court after the abolition of learned erstwhile Himachal Pradesh Administrative Tribunal and reregistered as CWP(T) No. 6336 of 2008. 6. The petitioner has continuously worked as Librarian w.e.f. 05.07.1995. The respondent-department should have taken steps to absorb the petitioner, more particularly, when her lien was also terminated by her erstwhile employer on 26.11.1997. Petitioner was legitimately expecting that on the basis of Annexure P-13, 08.10.1997, she would be absorbed permanently in the respondent-department. There is no complaint against the working of the petitioner till date. The action of the respondent-department of not considering the case of the petitioner for absorption is arbitrary and unreasonable, thus, violative of Articles 14 and 16 of the Constitution of India. 7. Accordingly, in view of the discussions and analysis made hereinabove, the petition is allowed. Annexure A-14, dated 26.11.1997 and Annexure A-21, dated 16/17.12.1997, are quashed and set aside. The petitioner shall be deemed to be absorbed as Assistant Librarian in Education Department with seniority and continuity alone w.e.f. 26.11.1997. The pending application(s), if any, also stands disposed of.