Research › Search › Judgment

Uttarakhand High Court · body

2024 DIGILAW 138 (UTT)

Sudhir Sharma v. State of Uttarakhand

2024-02-28

PANKAJ PUROHIT

body2024
JUDGMENT : (Pankaj Purohit, J.) : Petitioner, who is scheduled to retire on 29.02.2024, has filed the present writ petition with a prayer to treat the period of his absence from duty with effect from 22.03.2006 to 26.02.2008 as ‘compelled waiting leave’ and with a further prayer to grant him all consequential benefits including promotion, arrears of salary, from the date when his juniors were given promotion on the post of Lecturer. 2. Facts necessary for proper adjudication of the case are that petitioner was appointed as Assistant Teacher, L.T. Grade (Agriculture) in Govt. Intermediate College, Bilkhet, Pauri Garhwal vide order dated 18.02.1994. Pursuant to the said appointment letter, petitioner joined his duties on 18.03.1994. Petitioner made an application for deputation to U.P. Land Reforms Corporation which was allowed by the respondents and he was sent on deputation to the said Corporation on 10.01.1995. Since the State of Uttarakhand was created on 09.11.2000, after being carved out from the State of Uttar Pradesh, petitioner was repatriated to his parent Department without his request for the same vide order dated 01.04.2002. Petitioner challenged the said order of unilateral repatriation passed by Corporation by filing WPSS No.2661 of 2002 before the High Court of Judicature at Allahabad (Lucknow Bench). The Allahabad High Court vide order dated 14.05.2002, stayed the order of petitioner’s repatriation. Consequently, the petitioner remained on deputation with the respondent-Corporation. 3. On 02.02.2006, the stay order granted by the Allahabad High Court, on dated 14.05.2002, was vacated for the reason that no rejoinder affidavit was filed by the petitioner, and accordingly, the petitioner was relieved by the Corporation vide order dated 21.03.2006. Petitioner, after being relieved from Corporation, straightway went to the Govt. Inter College, Bilkhet, Pauri Garhwal on 24.03.2006 for giving joining in his parent Department but the Principal of the said College refused to give him joining on the ground of non-availability of vacancy in the said subject. The petitioner on the very next day i.e. 25.03.2006, and subsequently on 06.04.2006 and 10.04.2006, wrote applications to the District Education Officer, Pauri Garhwal requesting him to give joining on the post of Assistant Teacher, L.T. Grade (Agriculture) as he returned after repatriation from the Corporation where he had earlier joined on deputation. The respondent-District Education Officer did not pass any order on the same and accordingly the representations moved by the petitioner remained undecided. 4. The respondent-District Education Officer did not pass any order on the same and accordingly the representations moved by the petitioner remained undecided. 4. It appears from the record that after being frustrated, petitioner came back to Lucknow and preferred Special Appeal No.275 of 2006 before the Division Bench of Allahabad High Court assailing the stay vacation order dated 02.02.2006. Vide order dated 26.04.2006, the special appeal filed by petitioner was disposed of by restoring the stay order, and as a result, petitioner was directed to remain posted with the Corporation on deputation. 5. Despite order dated 26.04.2006, the Corporation did not permit the petitioner to join his duties, and it (Corporation), chose to file Special Leave Petition (C) No.21344 of 2006. The said appeal was allowed by the Hon’ble Supreme Court of India vide order dated 01.02.2008, whereby, the judgment passed in appeal by the Division Bench of Allahabad High Court was set aside, the appeal was allowed, and at the same time, the petitioner was permitted to join his parent cadre within four weeks thereafter. For ready reference, the order dated 01.02.2008 passed by Honb’le Supreme Court is reproduced hereinbelow:- “Having heard learned counsel for the parties, we are of the opinion that as the respondent no.1 has no legal right to continue to remain on deputation with the appellant Corporation, the High Court committed a manifest error in passing the impugned judgment. It is set aside accordingly. The appeal is allowed. Respondent no.1 shall join his parent cadre in terms of office order dated 01.04.2002 within four weeks.” 6. Petitioner consequently joined his duties in Govt. Inter College, Pujaragaon, District Tehri Garhwal on 27.02.2008. 7. The grievance of petitioner is that absence of service from 22.03.2006 to 26.02.2008 should be treated to be on duty by extending him the benefit of some other kind of leave, which the respondents are not doing, and the petitioner, feeling aggrieved, has moved this writ petition before this Court, though in the relief clause it has been mentioned that the period of absence of period be treated as ‘compelled waiting leave’. 8. 8. A counter affidavit is filed on behalf of the State wherein, accepting the facts of petition, it is mainly contended that the petitioner has moved an application to the respondent-Department, wherein, he has requested to treat the absence of period from 22.03.2006 to 26.02.2008 as ‘compelled waiting leave’, and it is also submitted that the salary of period of absence, as stated above, would be admissible and would be paid to the petitioner only when he would submit a medical certificate of the said period. 9. The petitioner has filed rejoinder affidavit reiterating the facts, as narrated in the writ petition, and further submitted that since the respondent –Department has granted increment, seniority and selection grade by taking into consideration the period of his absence, hence, at this stage, the petitioner cannot be denied the benefit of continuity in service. 10. Heard learned counsel for the parties at length and carefully perused the record of the case. 11. The facts, as narrated above, are not disputable to the parties. The crux of the matter which needs to be decided by this Court is that the petitioner wants to get his absence from 22.03.2006 to 26.02.2008 to be treated in continuation of service. The respondent-Department has shown its unwillingness to do the same. But from a perusal of the record, and in particular, the fact that the petitioner has been granted increment, seniority and even selection grade taking into account the absence of petitioner during that period, at this stage, the respondent-Department cannot deny continuity of service to the petitioner. 12. Learned Senior Counsel, appearing for the writ petitioner, has drawn the attention of this Court towards the communication dated 12.09.2013 sent by the Regional Additional Director (Secondary Education), Garhwal Region, Pauri to the Director, Secondary Education, Uttarakhand, in which it is categorically stated that the entire dispute arose because of the mistake and carelessness on the part of the respondent-State since the petitioner was not permitted to give joining to his parent Department when he came for that purpose after his repatriation on 24.03.2006 and he also requested twice on 25.03.2006 and 06.04.2006 for giving joining. It is further mentioned in the said letter that had the petitioner been permitted to give joining without any demur on the said date, no dispute would have arisen. 13. It is further mentioned in the said letter that had the petitioner been permitted to give joining without any demur on the said date, no dispute would have arisen. 13. It is also apt to mention at this stage that the petitioner can well be extended the benefit of Rule 85, Chapter-X of the Uttar Pradesh Fundamental Rules, contained in the Financial Hand Book, Vol.II (Parts II to IV) which deals with the conditions where ‘extraordinary leave’ can be granted. For the sake of convenience, the same is quoted hereinbelow: - “85. (a) Extraordinary leave may be granted in Special circumstances (1) when no other leave is by rule admissible, or (2) when, other leave being admissible, the government servant concerned applies in writing for the grant of extraordinary leave. Such leave is not debited against the leave account. No leave salary is admissible during such leave. (b) The authority which has the power to sanction leave may grant extraordinary leave as in clause (a) in combination with, or in continuation of, any leave that is admissible and may commute retrospectively periods of absence without leave into extraordinary leave.” 14. From the peculiar facts and circumstances of the case, it appears to this Court also that there is no mistake on the part of petitioner. Rather he has been made to suffer due to the inaction on the part of respondent-State when, at the first instance, he was refused to give joining in Govt. Inter College, Bilkhet, Pauri Garhwal. 15. It also needs to be mentioned at this stage that the Hon’ble Supreme Court while allowing the Special Leave Petition filed by the Corporation has directed the petitioner to join his parent Department within four weeks. This further gives respite to the petitioner for his absence and it is within four weeks, the petitioner was given time to join his duties and within that period of four weeks, he joined on 27.02.2008. 16. In this view of the matter, the writ petition deserves to be, and is accordingly, allowed. The petitioner’s absence from 22.03.2006 to 26.02.2008 is directed to be treated in continuous service. 16. In this view of the matter, the writ petition deserves to be, and is accordingly, allowed. The petitioner’s absence from 22.03.2006 to 26.02.2008 is directed to be treated in continuous service. In order to do complete justice, the respondent-State shall treat the aforesaid petitioner’s absence period i.e. from 22.03.2006 to 26.02.2008 to be in service by giving him the benefit of ‘Extraordinary Leave’ in view of Rule 85(a), Chapter-X of the Uttar Pradesh Fundamental Rules contained in Part II of the Financial Handbook, Volume II (Parts II to IV). In the given facts, the petitioner shall also be allowed to get all benefits, including promotion treating him to be in continuous service. 17. There would be no order as to costs. 18. Pending application, if any, stands disposed of as such.