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2015 DIGILAW 952 (HP)

Poonam Kumari v. State of Himachal Pradesh

2015-07-27

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

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JUDGMENT Mansoor Ahmad Mir, J. By the medium of this writ petition, the petitioner has sought the following main reliefs, on the grounds taken in the writ petition:- “i) For issuing a writ of Mandamus to the respondents to count period w.e.f. 12.10.2007 to 18.5.2008 towards petitioner’s service and seniority. Also for directing the respondents to treat the period of 9 days from 4.11.2008 to 12.11.2008 as extra ordinary leave and to count it towards her service. ii) For directing the respondents to release grant in aid to the petitioner for 12.10.2007 to 18.5.2008 along with interest. iii) For directing the respondents to regularize/take on contract basis, the services of the petitioner as PTA Teacher at par and alongwith those whose services had been taken over after completion of 7 years of service by 10.12.2014 alongwith all consequential benefits by counting the period of 12.10.2007 to 18.5.2008 towards her service.” 2. The respondents have filed reply. It is apt to reproduce paras 2(b) and 2(d) of the reply herein:- “2(b) That in reply to this para it is respectfully submitted that the petitioner was selected vide resolution dated 09.10.2007 on the fixed amount i.e. Rs. 1000/- per month out of their local funding and it was clearly provided in the resolution that the engagement will only be till 29.02.2008. She joined as such on 12.10.2007 whereas model code of conduct was imposed vide Notification dated 10.10.2007. Therefore, the PTA also passed resolution on 12.10.2007 that appointment cannot be given to the teachers who were interviewed on 05.10.2007 due to imposing of model code of conduct, hence they will be paid only Rs. 1000/- and the engagements were stopped by the Govt. vide instructions dated 03.01.2008. According to resolution dated 09.10.2007 the services of the petitioner were terminated on 29.01.2008. Thereafter she was allowed to rejoin on 19.05.2008 in view of interim order dated 15.05.2008 passed by this Hon’ble Court in CWP No. 757/2008. (c) …………………………….. (d) That in reply to this para it is respectfully submitted that as per Govt. instructions dated 06.08.2013, it was decided that the services of Para Teachers will be regularized after completion of ten years and PTA engaged under GIA to PTA Rules 2006 will be taken over on Contract after completion of 7 years of service. Whereas the petitioner was engaged by the PTA out of its local fund. instructions dated 06.08.2013, it was decided that the services of Para Teachers will be regularized after completion of ten years and PTA engaged under GIA to PTA Rules 2006 will be taken over on Contract after completion of 7 years of service. Whereas the petitioner was engaged by the PTA out of its local fund. Hence these instructions are not applicable in the case of petitioner. Thereafter the Govt. has decided vide instructions dated 03.01.2015 that EOL availed for doing B.Ed./any other higher qualification required to fulfill eligibility as per R&P Rules, Maternity leave beyond 84 or 168 days (two separate spells of Maternity leave) as the case may be, leave availed on medical grounds should not be considered as break for the purpose of counting the qualifying period of 10 or 7 years for regularization/taking on contract as the case may be and a period of maximum 60 days of absence on account of other reasons in a total period of 10 years should not be considered as break in service of regularization for para teachers. In case of PTA this should be for a maximum period of 42 days for taking over them on contract. The petitioner was not engaged under the PTA-GIA w.e.f. 12.10.2007 to 29.02.2008 as per resolution of the PTA and thereafter she did not work w.e.f. 01.03.2008 to 18.05.2008. Hence the case of the petitioner is not covered under said instructions. Moreover petitioner had not completed continuous service on the day when last taking over order were released in favour of PTA provided teachers.” 3. Admittedly, the petitioner was selected as PTA vide resolution dated 9th October, 2007. She joined as such on 12th October, 2007. Her services were terminated on 29th February, 2008, constraining her to file CWP No. 757 of 2008, titled as Poonam Kumari versus State of Himachal Pradesh & others, wherein interim direction dated 15th May, 2008, was passed by this Court directing the respondents to allow her to re-join her duties. She re-joined on 19th May, 2008. 4. Mr. Anup Rattan, learned Additional Advocate General, stated at the Bar that though, the petitioner has joined as PTA on 12th October, 2007, but she was not allowed to work because of model code of conduct and is in position w.e.f. 19th May, 2008. 5. She re-joined on 19th May, 2008. 4. Mr. Anup Rattan, learned Additional Advocate General, stated at the Bar that though, the petitioner has joined as PTA on 12th October, 2007, but she was not allowed to work because of model code of conduct and is in position w.e.f. 19th May, 2008. 5. It appears that the petitioner has been deprived of her legitimate right, which she has earned in terms of selection made vide resolution dated 9th October, 2007, but was not allowed to work w.e.f. 12th October, 2007 to 18th May, 2008, for no fault of her. 7. Keeping in view the law laid down by the apex Court in a case titled as Sanjay Dhar versus J&K Public Service Commission and another, reported in (2000) 8 Supreme Court Cases 182, we deem it proper to direct the respondents to treat the services of the petitioner w.e.f. 12th October, 2007 to 18th May, 2008, notionally. Ordered accordingly. 8. Accordingly, the writ petition is disposed of, alongwith pending applications.