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Himachal Pradesh High Court · body

2019 DIGILAW 577 (HP)

Jai Shankar v. State of H. P.

2019-05-09

DHARAM CHAND CHAUDHARY, VIVEK SINGH THAKUR

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JUDGMENT : Vivek Singh Thakur, J. 1. Appellant herein had filed a petition (Original Application No. 2763 of 2001), in the H.P. State Administrative, Tribunal which was transferred to this High Court on abolition of the said Tribunal in 2008 and was registered as CWP(T) No. 8032 of 2008. Learned Single Judge has dismissed the said petition vide judgment dated 9.4.2012, which has been assailed in present appeal. 2. We have heard Mr.Sanjeev Bhushan, Senior Advocate representing appellant and Mr.J.S. Guleria, Learned Deputy Advocate General for State and have also gone through the record. 3. Petitioner/Appellant's case is that he was appointed as Lecturer (Political Science) in a private College, namely, R.V.M.S.D. College Sujanpur Tihra on 9.8.1997 and had joined as such in the said College on 19.8.1997. Later on, on 28.2.2000 R.V.M.S.D. College Sujanpur Tihra was merged with DAV College (Women) Sujanpur and was named as DAV College Sujanpur Tihra and the appellant continued to be Lecturer (Political Science) in the said College. It is also case of the petitioner/applicant that during his service in DAV College Sujanpur Tihra, he, with prior approval of the Managing Committee of the College, had applied for regular post of Lecturer (Political Science) School Cadre in the Education Department of Himachal Pradesh, advertised through Public Service Commission and further that after his selection to the said post of Lecturer (Political Science) School Cadre, he had submitted an application on 17.5.2000 with two prayers i.e. one for granting extra ordinary leave of 16 months, under para 53 (Appendix 'A' ) Chapter XXXVIII, paragraph 38.5 B (d) of Himachal Pradesh University Ordinances, in order to get benefit of taking over of College as per announcement made by the Hon'ble Chief Minister and second for relieving him to join new posting, whereupon on the same date, Principal of DAV College had relieved him to join the new assignment. Grievance of appellant is that at the time of taking over of College, his service has not been taken over along with other staff. 4. Grievance of appellant is that at the time of taking over of College, his service has not been taken over along with other staff. 4. Respondent-State had issued a notification dated 7th March, 2001, vide which order for taking over aforesaid Private College, was notified with immediate effect, with rider that terms and conditions would be notified later on, which were notified vide notification dated 28.8.2001 and services of teaching and non-teaching staff, in consonance with instructions already notified vide notification dated 26.8.1994, were notified with certain changes incorporated in this notification dated 28.8.2001. 5. Claim of the petitioner is that being on leave for 16 months w.e.f. 17.5.2000, he was on roll of the College till 16.9.2001 and therefore, at the time of issuance of notification dated 7th March, 2001 and 28.8.2001, he was occupying the post of Lecturer (Political Science) in the College taken over by respondent-State and being eligible person as per notified terms and conditions and also R&P Rules, he was entitled for taking over of his service by respondent/State as a Lecturer (Political Science) in the College Cadre. 6. Claim of the appellant has been opposed by respondent-State on the ground that he was not in continuous service preceding one year at the time of taking over the College i.e. 7.3.2001 and his services with DAV College were ended on his relieving on 17.5.2000 and no extra ordinary leave, as claimed by him, was ever sanctioned to him and therefore, his name was not found in the list of employees, serving at the time of taking over of the College and therefore, he is not entitled for relief claimed. 7. Learned Single Judge, after hearing the parties and taking in to consideration the pleadings, has rejected the claim of the petitioner/appellant on various grounds. 7. Learned Single Judge, after hearing the parties and taking in to consideration the pleadings, has rejected the claim of the petitioner/appellant on various grounds. At the time of rejecting the claim of petitioner, learned Single Judge, after believing that petitioner had submitted an application seeking his relieving and extra ordinary leave vide Annexure A-2 with the petition, has observed that there is no tangible material on record to show that extra ordinary leave, applied by the petitioner under H.P. University Ordinances, was sanctioned and on the date of taking over of the College, petitioner was not on rolls of DAV College Sujanpur Tihra and he was not in continuous service for a period of one preceding year before taking over the College for want of sanction of any kind of leave. In addition it has also been observed by Learned Single Judge that there is no contemporaneous record to show that petitioner has sought employment in the State Government with prior permission of the Management and thus it cannot be said that petitioner's case was covered under para 53 of Appendix 'A' of H.P. University Ordinances. 8. Now, with present appeal, appellant/petitioner has filed a photocopy of no objection certificate dated 5.2.2000 issued by President of Managing Committee of R.V.M.S. D. College, Sujanpur Tihra, whereby no objection to join other job was granted in favour of appellant/petitioner and banking upon this No Objection Certificate, learned counsel for the appellant/petitioner has contended that learned Single Judge has committed a mistake for rejecting the claim of the appellant/petitioner by returning findings that there was no contemporaneous record to show that petitioner had sought employment in the State Government with prior permission of the Management. 9. Though, as evident from the perusal of record of original petition filed by the appellant/petitioner, no such No Objection Certificate was placed on record before learned Single Judge and it has been disclosed for first time in this appeal, that too, without filing any application for leading any additional evidence, however, in the interest of justice, we have considered the same and had called for record from the respondents related to the appellant/petitioner. Respondent-State has produced the requisite record. Respondent-State has produced the requisite record. We find that this No Objection Certificate was issued in favour of appellant/petitioner on filing an application by him on 4.2.2000, whereby he had sought permission to appear in the interview of School Cadre Lecturer conducted by Himachal Pradesh Public Service Commission with request to issue him experience and No Objection Certificate. It is evident from this application that the petitioner had not applied for post of Lecturer (School Cadre) with prior permission of the Management, but had sought No Objection Certificate at the time of appearing in interview for the said post. Even if, this No Objection Certificate, issued at the time of interview, is considered to be permission of the Management for seeking employment with the State Government, it is of no help to the appellant/petitioner for the reasons stated hereinafter. 10. Applying for employment with the State Government with prior permission of the Management, does not entitle the appellant/petitioner for automatic grant of extra ordinary leave, as claimed by petitioner. Permission to apply and join job elsewhere is quite different from the grant of extra ordinary leave. As per record produced, extra ordinary leave, as claimed by petitioner was neither ever applied by the petitioner nor was granted in his favour at any point of time. 11. Perusal of record produced by respondent-State reveals that there is no such application dated 17.5.2000, as claimed by appellant/petitioner to be submitted for seeking extra ordinary leave of 16 months. Copy of the said application filed with the petition as Annexure A-2, is not only unsigned, but also does not have any indication of its receipt by the Principal or any other official of the College. Plea of learned counsel for the petitioner/appellant that the record is not maintained by respondents properly is not tenable, as on one hand he is relying upon this record for grant of no objection to the appellant/petitioner to join services with respondent-State and on the other hand he is doubting the maintenance of the same record in proper manner. He cannot be permitted to blow hot and cold at the same time. Therefore, this application Annexure A-2 appears to have been fabricated later on in order to substantiate the claim of petitioner for the post of Lecturer in College Cadre after undertaking of the College. 12. He cannot be permitted to blow hot and cold at the same time. Therefore, this application Annexure A-2 appears to have been fabricated later on in order to substantiate the claim of petitioner for the post of Lecturer in College Cadre after undertaking of the College. 12. Even if, it is considered that the appellant/petitioner had filed application Annexure A-2, then also it does not create any right in favour of appellant/petitioner to consider him on extra ordinary leave of 16 months, as claimed. It is settled law that leave cannot be claimed as a matter of right. Leave applied, but not sanctioned amounts to rejection of the prayer for leave, more particularly when petitioner was relieved without any rider. Relieving dated 17.5.2000 (Annexure A-3) is only a relieving simplicitor of the appellant/petitioner on 17.5.2000 to join his new assignment. It does not speak anything about grant of any kind of leave in favour of appellant/petitioner for joining as a Lecturer (School Cadre) with respondent-State. Therefore, this relieving at any stretch of imagination cannot be said to be grant of extra ordinary leave, as claimed. This relieving order also reflects that no such application dated 17.5.2000 as purported to have been filed as Annexure A-2, was ever submitted by the appellant/petitioner. This fact is further substantiated from perusal of Character Certificate issued on the same day i.e. 17.5.2000 in favour of appellant/petitioner by the same Principal of DAV College, which is available on the record produced by respondent-State, which was duly received by appellant/petitioner putting his signatures dated 17.5.2000 thereon. In this certificate, it has been unambiguously certified that appellant/petitioner had served DAV College as a Lecturer (Political Science) from 19.8.1997 to 17.5.2000. It clearly indicates that services of appellant/petitioner were ended with concerned DAV College on 17.5.2000. Neither this Character Certificate nor Relieving Certificate, in any manner, indicates that the appellant/petitioner was granted leave and permitted to continue after 17.5.2000, rather these documents establish contrary thereto. 13. Further had leave as claimed by appellant/petitioner, would have been sanctioned in his favour, he must have been on the roll of the College, but there is nothing on record to establish that after 17.5.2000, the appellant/petitioner was on the roll of DAV College, rather as discussed above, the record indicates contrary that his service was put to an end on 17.5.2000. 14. 14. Learned Single Judge has rightly observed that though in the petition filed by the appellant/petitioner, he has claimed to have making a representation (Annexure A-5) to respondent No. 1, stating all the facts therein, which was not replied, but copy of the said representation has not been placed on record with the petition and we also, on perusal of record of Original Application filed by the petitioner, do not find any such document on record. It is also noticeable that in the Index of Original Application also, there is no mention of any Annexure A-5, to have been filed with the Original Application/petition, but there is reference of Annexure A-5 in body of the Original Application. 15. Learned counsel for the appellant/petitioner, to substantiate the claim of the petitioner/appellant, has also referred to an application dated 22.4.2001 available on record produced by respondents-State, submitted by appellant/petitioner for considering him for the appointment in the newly undertaken College. In para 1 of this application, appellant/petitioner had stated that on 17.5.2000, he had to go on extra ordinary leave for 16 months, because he had to appear in the competitive examination for the post of Lecturer School Cadre, which is contrary to the admitted facts and also the contents of application Annexure A-2, wherein he had sought relieving w.e.f. 17.5.2000, on account of his selection as a Lecturer School Cadre in the Department of Education and also for extra ordinary leave. In application dated 22.4.2001, petitioner/appellant had stated that he had qualified the examination and was appointed as Lecturer on 22.5.2000, whereas in application Annexure A-2, dated 17.5.2000, it is stated that he had been selected as a Lecturer School Cadre in Department of Education. The contents of both these applications cannot co-exist together, which again indicates that the application Annexure A-2 is result of afterthought to extend the claim to the post of Lecturer College Cadre. 16. In view of above discussion, we find that there is no illegality, irregularity or perversity in the judgment passed by learned Single Judge. As no ground for interference is made out, accordingly appeal is dismissed. No costs.