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2023 DIGILAW 542 (HP)

Sarita Devi v. State of Himachal Pradesh

2023-12-15

RANJAN SHARMA

body2023
JUDGMENT : Ranjan Sharma, J. Notice. Mr. Ravi Chauhan, learned Deputy Advocate General, appears and waives service of notice on behalf of the respondents. 2. The petitioners have filed the instant writ petition praying for the following reliefs:- “(i) That the act of the respondents in not regularizing the services of the petitioners as JBT on completion of the period of five years’ service in view of the letter dated 5-2-2022 (Annexure-P/3) issued by the respondent No.3 in compliance of the judgment passed by this Hon’ble Court in CWP No.3544/2019 a/w COPCT No.758/2020 titled as “State of H.P. and others-Versus-Surendra Sharma and others” and in making inordinate delay in the matter may kindly be held illegal, unconstitutional, discriminatory, arbitrary, contrary, invalid, unreasonable, unjustified and unsustainable in the eyes of law. (ii) That the respondents may kindly be directed to take further effective action for regularizing the services of the petitioners as JBT on completion of the period of five years on the basis of the letter dated 5-2-2022 (Annexure-P/3) issued by the respondent No.3 forthwith and to provide such benefit of regularization in a time bound manner along with all consequential benefits.” 3. Case of the petitioners is that they joined Respondent-Department as a Nursery Teachers against the post of JBT in the year 1997 and 1998. The petitioners were regularized w.e.f. 30.01.2006. Based on the decision taken by the State Government in the communication dated 02.02.1999, the petitioners were granted the benefit of antedated i.e. retrospective regularization w.e.f. 01.01.2003. 4. The matter in issue as to whether the Nursery Trained Teachers who have been granted the benefit of retrospective regularization, in terms of the letter-communication dated 02.02.1999, on completion of five years of service were entitled for financial benefits including pay fixation from such retrospective-deemed date of regularization stands adjudicated by the State Administrative Tribunal and thereafter by the Division Bench of this Court in CWP No.3544 of 2019, titled as State of Himachal Pradesh versus Surendra Sharma & ors., decided on 06.11.2020 (Annexure P-1). The operative part of the judgment dated 06.11.2020 (Annexure P-1), reads as under: “3. The respondents have done one year condensed course of Nursery Teacher and were appointed against the post of JBT vide letter dated 19.09.1997. The operative part of the judgment dated 06.11.2020 (Annexure P-1), reads as under: “3. The respondents have done one year condensed course of Nursery Teacher and were appointed against the post of JBT vide letter dated 19.09.1997. The Government of Himachal Pradesh vide letter dated 02.02.1999 had decided to regularize the services of the Nursery Trained Teachers on completion of five years instead of 10 years, as would be evident from the relevant portion of the letter, which reads as under:- “I am directed to refer to your letter No.EDN-H(II)PRY(B) (6)2-1/97 dated 14.09.98 the subject cited above and to say that the matter with regard to the regularisation of the Nursery Trained Teachers has been considered by the Government and it has been decided that these Nursery Trained Teachers may also be treated on par with Volunteer Teachers. Therefore, their services may also be regularised after completion of the five years services instead of 10 years and JBT Special Certificate may be awarded to them on the pattern of Volunteer Teachers who are being regularised we.f. 1.8.98 after completion all formalities.” 4. Since, the petitioners had been appointed on 19.09.1997, therefore, in terms of letter dated 02.02.1999 they were entitled to be regularized in the year 2002. The learned Tribunal was absolutely right in restricting the financial benefits to three years prior to the filing of the petition, which directions are in tune with the judgment of the Hon’ble Supreme Court in HRTC vs. Jai Dev Gupta, AIR 1998 SC 2819 . 5. It is more than settled that High Court does not act as a Court of appeal against the decision of the Tribunal and only exercise its power of judicial review. There is no perversity in the order passed by the learned Tribunal. 6. Having said so, we find no merit in this petition and the same is accordingly dismissed, so also pending application(s), if any.” 5. The learned counsel submits that based on the judgment in case of Surendra Sharma (Annexure P-1), the Division bench of this Court had directed the respondents in CWP No.4165 of 2021, titled as Shanta Kumari versus State of H.P. & ors., decided on 07.01.2022 (Annexure P-2) to regularize the service of Nursery Trained Teachers from the date they completed five years of service, but by restricting the actual monetary benefits for three years preceding the filing of the writ petition. 6. 6. In terms of the judgment in case of Surendra Sharma and the judgment in case of Shanta Kumari [Annexures P-1 & P-2] (supra) reveals that the Nursery Trained Teachers, were entitled for regularization from the date they complete five years of service and they were entitled for pay fixation from the date of retrospective regularization, after five years service but the arrears were restricted for a period of three years prior to the filing of the writ petition by the respective teachers. 7. Mr. Ravi Chauhan, learned Deputy Advocate General submits that in compliance to the judgment passed in case of Surendra Sharma (supra) dated 06.11.2020 (Annexure P-1), though the Deputy Director of Elementary Education, Mandi, District Mandi, has forwarded a communication on 05.02.2022 (Annexure P-3) to the Block Elementary Education Officer(s) to report compliance, in terms of the judgment, in the case of Surendra Sharma, referred to above but it is not clear from this communication, as to whether after granting retrospective regularization from the date of completion of five years, the financial benefits i.e. notional pay fixation from due date and actual financial benefits a period of three years preceding the filing of the writ petition has been given to the petitioners and for to other similarly placed incumbents as yet. 8. In this background, Ms. Anuja Mehta, learned vice counsel submits that the petitioner(s) are only claiming financial benefit notionally from due date and actual monetary benefits i.e. for a period of three years, preceding the date of filing of the instant writ petition by the petitioners herein. 9. The learned vice counsel further refers to judgment passed by the Co-ordinate Bench of this Court in CWP No.5730 of 2023, titled as Sunita Devi versus State of H.P. & others, decided on 07.10.2023 [Taken on Record] whereby, the Co-ordinate Bench of this Court has directed the respondents to consider/examine the case of the petitioners in the light of the judgment in case of Surendra Sharma (supra). 10. Mr. Ravi Chauhan, learned Deputy Advocate General, at the very outset, submits that the pleadings on record nowhere narrate that the judgment in the case of Surendra Sharma (supra) implemented and the financial benefits from due date and actual financial- monetary benefits for the period of three years prior to the date of filing of the writ petition have been granted or not. He further submits that the matter needs to be looked into and the factual aspects are also to be examined. 11. Faced with this situation, learned vice counsel for the petitioner, on instructions, submits that she may be permitted to make a representation to Respondent No.2-Director of Elementary Education, highlighting all the above aspects, within one week from today; with further directions to the aforesaid respondent to examine the same and to pass appropriate orders in the matter. 12. Upon consideration, in case the respondents arrive at a conclusion that judgment in case of Surendra Sharma (supra) stands implemented then, the respondents shall also consider the case of the petitioners for grant of financial benefits (pay fixation etc.) notionally as given to Surendra Sharma (supra) but actual monetary benefits shall be restricted for the period of three years prior to filing of the writ petition (on 12.12.2023), in terms of the mandate of law in case of Union of India versus Tarsem Singh (2008) 8 SCC 648 ; Shiv Dass versus Union of India and Others; (2007) 9 SCC 274 ; State of Madhya Pradesh and Others versus Yogendra Shrivastava (2010) 12 SCC 538 and Asger Ibrahim Amin Versus Life Insurance Corporation of India (2016) 13 SCC 797 , followed in Rushibhai Jagdishchandra Pathak versus Bhavnagar Municipal Corporation CA No.4134 of 2022 [2022 SCC Online S C 641] decided on 18.5.2022. 13. Needless to say that, this Court has not adverted to the rival contentions and merits of the matter and all questions of facts and law are left open. In aforesaid terms, the writ petition as well as the pending miscellaneous application(s), if any, shall also stand disposed of, accordingly.