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2016 DIGILAW 1446 (HP)

JASWANT SINGH v. STATE OF HIMACHAL PRADESH

2016-07-20

HARINDER HIRA, V.K.SHARMA

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JUDGMENT : 1. On establishment of the Himachal Pradesh Administrative Tribunal, this matter has been received from the Honble High Court of Himachal Pradesh by transfer. It be registered. 2. Heard. 3. In September 1992, the applicant had joined as Lecturer (Zoology) in the erstwhile Pandit Amar Nath Smark Mahavidyalaya, Jogindernagar, District Mandi. Subsequently, the said College was taken over by the State Government with effect from 04.05.1994 and re-named as Government Degree College, Jogindernagar, District Mandi. However, though the College was taken over, but the services of the applicant and his two other counterparts, namely, Bhim Singh and Dharam Vir Singh, and some other members of teaching/non-teaching staff were not taken over. Being aggrieved, the applicant and the said Bhim Singh and Dharm Vir Singh approached the erstwhile H.P Administrative Tribunal (in short the erstwhile Tribunal) by way of original application No.2108/95, Bhim Singh and others v. State of Himachal Pradesh and others, which was disposed of vide order dated November 1,1996, Annexure A-1, text whereof is as under:- "This application has been filed against the non-taking of service of the applicants by the Education Department after the Private institution known as Pandit Amar Nath Smark Mahavidyalaya Joginder Nagar Distt. Mandi was taken over by the Govt. No reply has been filed by the Respondent State in spite of sufficient opportunities given to them. The institution was taken over by the Govt, w.e.f. May, 4, 1994 vide notification dated September 25, 1994, Annexure-A/15. 2. We have heard the learned counsels for both the parties. In view of the decision of this Court in Hans Raj Soni v. State of Himachal Pradesh OA No. 2971/1994 and Anil Kumar v. State of Himachal Pradesh and others OA No. 736/1995 we find that the applicants No.1 and 2 who had joined the institution in September, 1992 are eligible for their services being taken over by the Govt, in accordance with its policy. However, applicant No.3 joined the private institution on July 29, 1993 and has not completed one year on May 4, 1994 hence he is not eligible. 3. However, applicant No.3 joined the private institution on July 29, 1993 and has not completed one year on May 4, 1994 hence he is not eligible. 3. Consequently the application is accepted in so far as applicants No. 1 and 2 are concerned the Respondents are directed to offer the respective post on which the applicants 1 and 2 had been serving in the privately managed institution within a period of two months from the date of service of this order. However, the seniority of these applicants shall count from the date of taking over the school The break of service between the date of taking over and joining the school the Department of education shall net be treated as absence. However, no salary shall be paid for this period on the principle of No work No pay 4. Since applicant No.3 3hr; Dharam Vir Singh has not completed one year on the date of taking over the school, the application qua him is dismissed without any order as no costs." 4. However, since in para 3 of the above order dated November 1,1996, in the fifth ' line from the bottom, the last word wrongly came to be mentioned as school instead of college, a review petition was filed seeking rectification of the error, which was allowed vide order dated 25.3.1998, Annexure A-2, in the following terms:- "Heard. We have seen the original record i.e. pleadings of the parties and also the averments made in this application. The Institution which was taken over vide Notification of even date (Annexure RC) indicates that Pt. Amar Nath Samarak Mahavidyaiaya, Jogindernagar Tehsil Jogindernagar Distt. Mandi earlier managed by the respondent No.4 later on designated as Rajiv Gandhi Memorial Degree College, Jogindernagar and the said institution was named in the Notification as College, In our judgment dated November 1,1996 of which review is sought for by the applicant" reference has been made of taking over the School instead of taking-over the privately managed Institution(College). Thus, there appears to be an error appellant on the face of the record. In that view of the matter, the judgment is liable to be amended to that extent. Thus, in the judgment dated November I 1,1996 wherever the term School has been used, is ordered to be substituted by the expression College. Thus, there appears to be an error appellant on the face of the record. In that view of the matter, the judgment is liable to be amended to that extent. Thus, in the judgment dated November I 1,1996 wherever the term School has been used, is ordered to be substituted by the expression College. To that extent, the judgement is deemed to have been modified because of the I clerical mistake apparently existing therein. Review petition is allowed to this extent only." 5. However, in the meanwhile, owing to the above error in the nomenclature of the Institution taken over as School instead of College, the applicant was offered appointment as Lecturer in a school, which he accepted and joined. After the error was rectified pursuant to review, the applicant was offered appointment as Lecturer (College Cadre), vide order dated 13.5.1998, Annexure A-3, pursuant to which he joined as such on 26.05.1998. 6. Against the foregoing background, the applicant filed another original application, being OA No. 903/2001, Jaswant Singh v. State of Himachal Pradesh, before the erstwhile Tribunal to lay claim for seniority as Lecturer (college cadre) from inception, that is, the date of taking over of the College (04.05.1994), along with consequential benefits, which was disposed of vide order dated 5.7.2004, Annexure A-9, treating the same as a representation, text whereof is as under: "Reply not filed. The grievance of the applicant is that the benefit of seniority has not been given to ; him. Whereas the similarly situated persons had already been given the benefit of seniority in pursuance of Tribunal order passed on 25.3.1998 Annexure A-1 in OA-No.2108/95. It is requested on behalf of applicant, that this Original Application may be treated as representation to the Secretary Education who will consider the case of the applicant. In view of the aforesaid this Original Application be treated as representation to the Secretary (Education) who shall consider and dispose of the same keeping in view the orders of Annexure A-1 and Annexure A-5. If needed the applicant be given personal hearing before passing any order. The representation be decided within four weeks from the receipt of the order. In terms of above Original Application stands disposed of." 7. Pursuant to the above order dated 5.7.2004, Annexure A-9, the claim of the applicant for seniority as Lecturer, (college cadre) was though granted, yet on notional basis sans financial benefits/arrears. 8. The representation be decided within four weeks from the receipt of the order. In terms of above Original Application stands disposed of." 7. Pursuant to the above order dated 5.7.2004, Annexure A-9, the claim of the applicant for seniority as Lecturer, (college cadre) was though granted, yet on notional basis sans financial benefits/arrears. 8. Still aggrieved, the applicant again approached tine erstwhile Tribunal byway of OA No. 2167 of 2005, Jaswant Singh v. State of Himachal Pradesh and another, which on abolition of the said Tribunal, was transferred to the Honble High Court of Himachal Pradesh and registered as CWP(T) No. 12170 of 2008 and subsequently on establishment of the Himachal Pradesh Administrative Tribunal, came to be transferred to this Tribunal and has been registered as TA No. 618 of 2015, with the following substantive prayer vide para 7(i): 7(i) "That the Respondents may be directed that the applicant may be held entitled for all service benefits accruing to him on the basis of seniority granted vide order dated 25.6.2005 w.e.f. 4.5.1994 with all consequential benefits." 9. Basically, the applicant is seeking parity with a similarly situate Lecturer, namely, R.K. Pathania, and Clerk, Yadvender Kumar, who consequent upon grant of seniority with effect from taking over of the College on 04.05.1994, have been extended consequential benefits of pay fixation and arrears vide memos, dated 4th August, 2001, Annexure A-11, and 11th March, 2002, Annexure A-12, respectively. Reference is also invited to para 2 of the order dated 01.11.1996, Annexure R/1, according to which such relief was also granted to similarly situate members of the staff on taking over of the College in Hans Raj Soni v. State of Himachal Pradesh, OA No. 2971/1994 and Anil Kumar v. State of Himachal Pradesh and others, OA No. 736/1995. 10. From the above narration, it is manifest that the applicant has been grossly discriminated vis-a-vis other members of the staff similarly situate in violation of Articles 14 and 16 of the Constitution, entitling him to the relief prayed for. 11. Accordingly, we hold that consequent upon taking over of the services of the applicant as Lecturer (Zoology) with effect from 4.5.1994, vide notification dated 25th June, 2005, Annexure A-10, he shall be entitled for all the consequential benefits for the purposes of seniority, pay fixation, promotion, benefit under the Assured Career Progression Scheme(s) issued by the State Government from time to time. 12. 12. Consequential benefits including arrears, if any, accruing to the applicant in terms of this order shall be extended/disbursed to him by the respondents/ competent authority within six months from the date of production of certified copy of this order by the applicant, failing which interest at the rate of 6% per annum shall also be payable. 13. The transferred application as also pending application(s), if any, stand disposed of in the above terms.