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2023 DIGILAW 571 (HP)

Umesh Bhushan v. State of Himachal Pradesh

2023-12-20

RANJAN SHARMA

body2023
JUDGMENT : Ranjan Sharma, J. Notice. Mr. Rajan Kahol, learned Additional Advocate General, appears and waives service of notice on behalf of the respondents. 2. With the consent of the parties, the instant writ petition is taken up for disposal, at this stage, in view of the peculiar facts as borne out from the pleadings. 3. The petitioner has filed the instant writ petition with the following prayer(s):- “(i) That writ in the nature of mandamus may very kindly be issued, directing the respondents to grant the benefit of higher pay to the petitioner on promotion from the post of Lecturer to the post of Headmaster as per Fundamental Rules 22(1)(a)(1). The pay of the petitioner on the post of Headmaster may be fixed at higher stage vis-à-vis the pay the petitioner was getting on the post of Lecturer at the time of promotion and further pay till date be also re-fixed as such. The petitioner may be extended the benefit of the principles as laid down in judgment dated 07.07.2022, Annexure P-1, passed by this Hon’ble Court in CWP No.842 of 2017 titled as State of H.P. and others versus Sardari Lal and another in favour of the petitioner, with all consequential benefits. Any wrongful recovery may be set aside.” 4. The case of the petitioner, as submitted by the learned counsel, is that the petitioner was appointed as a Trained Graduate Teacher (Medical). Thereafter, he was promoted as Lecturer (Biology) (School Cadre) on 06.07.1989 and while working as Lecturer, the petitioner was promoted to the post of Headmaster on 16.07.2008 in accordance with the Recruitment & Promotion Rules of Head master(s). It is further submitted that on promotion as Head Master, respondents reduced the pay scale/ basic pay, which was being drawn by the petitioner, as Lecturer (School Cadre) resulting in civil consequences and recovery illegally. It is further submitted that on promotion as Head Master, respondents reduced the pay scale/ basic pay, which was being drawn by the petitioner, as Lecturer (School Cadre) resulting in civil consequences and recovery illegally. He further submits that once the petitioner was promoted as Headmaster in terms of his eligibility as per the Recruitment and Promotion Rules, from the feeder category of Trained Graduate Teacher, [though the petitioner at the time of promotion as Headmaster was working as Lecturer i.e. higher post than the post of TGT with higher pay scale and higher basic pay] then, on promotion as Headmaster the petitioner was entitled to be fixed, in pay over and above the pay being drawn by him as Lecturer (School Cadre), after giving the benefit of Fundamental Rule 22 (I) (a) (i). In this background, learned counsel submits that the denial of promotional increment(s) under Fundamental Rule 22 (I) (a) (i) as Headmaster, over and above the pay drawn as Lecturer (School Cadre), has resulted in financial loss to the petitioner since his promotion as Headmaster w.e.f. 16.07.2008 till day and resultant recovery, if any, in violation of the principles of natural justice as well as the law laid down by the Hon’ble Apex Court, in the case of State of Punjab versus Rafiq Masih, (2015) 4 SCC 334 , reiterated in the case of Thomas Daniel versus State of Kerala, 2022 SCC On line 536. 5. Learned counsel further submits that the matter in issue, already stands adjudicated by the Division Bench of this Court, in CWP No. 842/2017 titled as State of Himachal Pradesh Vs. Sardari Lal on 07.07.2022, whereby, the impugned orders of reduction in basic pay and recovery were quashed and set aside. 6. Per contra, Learned State Counsel, Mr. Rajan Kahol, at this stage submits that the case of the petitioner shall be examined, in the light of the judgment passed by this Court in the case of Sardari Lal (supra), in case, the petitioner raises a grievance, by way of a representation to the competent authority. 7. 6. Per contra, Learned State Counsel, Mr. Rajan Kahol, at this stage submits that the case of the petitioner shall be examined, in the light of the judgment passed by this Court in the case of Sardari Lal (supra), in case, the petitioner raises a grievance, by way of a representation to the competent authority. 7. Faced with this situation, and as prayed for by the learned counsel for the petitioner, this Court permits the petitioner to make a representation to the Respondent No. 2- Director Higher Education, Himachal Pradesh within four weeks from today; with further directions to the aforesaid respondent to examine the representation to be made and to pass appropriate orders in accordance with law, within six weeks thereafter. 8. Upon consideration, in case the respondents arrived at a conclusion that judgment in case of Sardari Lal (supra) stands implemented then, the respondents shall also consider the case of the petitioner for grant of financial benefits (pay fixation etc.) notionally as given to Sardari Lal (supra) but actual monetary benefits shall be restricted for the period of three years prior to filing of the writ petition (on 18.12.2023), 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. 9. 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.