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2025 DIGILAW 468 (HP)

Darshana Kumari v. State of Himachal Pradesh

2025-03-24

SANDEEP SHARMA

body2025
JUDGMENT : (Sandeep Sharma, J. ) By way of instant writ petition, petitioner has prayed for following main reliefs: (i) To issue a writ in the nature of certiorari quashing the impugned order dated 14.1.2020 as being illegal, arbitrary, and unconstitutional and against the principles of natural justice. (ii) To issue a writ in the nature of mandamus directing the respondents to give the petitioner a joining on the post of PGT, History on PTA basis with due and consequential benefits.” 2. Key facts relevant for the adjudication of the case at hand are that the petitioner, who holds a Master’s Degree in History was appointed as Post Graduate Teacher (History) in Govt. Senior Secondary School, Lyhl, District Chamba, Himachal Pradesh, on PTA (GIA) basis in June 2006 In this capacity, the petitioner kept on discharging her services in given school till 16.7.2015 whereafter, she stopped coming to the school on account of her family circumstances. Vide office order dated 26.9.2016 Annexure P/2, Principal, GSSS Lyhl, while calling upon petitioner to submit explanation for her absence also asked her to join duties within 10 days from the receipt of the order. Though after having received aforesaid Office Order, petitioner vide communication dated 28.10.2016 Annexure P/3 submitted her joining but fact remains that she was not permitted to join despite repeated requests. Vide communication dated 29.12.2016 Annexure P/4, Principal of GSSS Lyhl, apprised the Deputy Director, Higher Education, Chamba, District Chamba with regard to joining submitted by the petitioner on 28.10.2016. Vide afore communication, Principal of school concerned specifically called upon Deputy Director, Higher Education, Chamba to take decision at the earliest so that studies of students in the school are not hampered for long. 3. Since authorities concerned failed to take decision on the joining submitted by petitioner, she was compelled to approach erstwhile H.P State Administrative Tribunal by way of Original Application No.2959 of 2018 (Annexure P-5) titled Smt. Darshna Kumari Vs State of H.P. & ors. While issuing notice in the aforesaid petition, erstwhile State Tribunal called upon authorities to take decision on communication dated 29.12.2016 addressed to Deputy Director Higher Education, Chamba by Principal, GSSS, Lyhl within a period of four weeks. However, aforesaid order was not complied with. As such erstwhile Tribunal vide order dated 4.1.2019 again issued order to competent authority to comply with earlier order dated 13.8.2018. However, aforesaid order was not complied with. As such erstwhile Tribunal vide order dated 4.1.2019 again issued order to competent authority to comply with earlier order dated 13.8.2018. Though vide afore order, Deputy Director Higher Education Chamba as well as Principal, GSSS Lyhl were made aware that in case orders are not complied with, they would be hauled for contempt, however, authorities failed to pay any heed to aforesaid orders passed by the erstwhile State Tribunal. On account of abolition of erstwhile H.P. State Tribunal, case filed by the petitioner was transferred to this Court and the same was registered as CWPOA No.1623 of 2019, which was disposed of vide judgment dated 3.1.2020 (Annexure P/7). Vide afore judgment, this Court directed Deputy Director Higher Education Chama to do the needful in terms of order dated 13.8.2018 within a period of one week. In compliance to aforesaid order passed by this Court, respondents passed order dated 14.1.2020 (Annexure P/8), whereby it came to be conveyed that petitioner herein shall not be permitted to rejoin and her services shall be deemed to have been terminated from the date she failed to come to the school. 4. In the afore background, the petitioner has approached this Court in the instant proceedings praying for reliefs as have been reproduced hereinabove. 5. Precisely, the grouse of the petitioner as has been highlighted in petition and further canvassed by Mr. Onkar Jairath, Advocate representing the petitioner is that the impugned order dated 14.1.2020 has been passed in violation of principle of natural justice because before passing such order, no opportunity of being heard was ever afforded to the petitioner. Learned counsel for the petitioner while making this Court peruse the record placed on record vehemently argued that once Principal of the school concerned vide communication dated 26.9.2016 had called upon the petitioner to give her joining and petitioner pursuant to aforesaid order had submitted her joining on 28.10.2016, there was otherwise no occasion for respondent to terminate the services of the petitioner. 6. While inviting attention of this Court to the judgment dated 4.11.2022 passed by this Court in CWP No.4943 of 2021 titled Aarti Bhanwal Vs State of H.P & ors . and CWP No.4571 of 2020 titled Sunita Vs. State of H.P & ors. 6. While inviting attention of this Court to the judgment dated 4.11.2022 passed by this Court in CWP No.4943 of 2021 titled Aarti Bhanwal Vs State of H.P & ors . and CWP No.4571 of 2020 titled Sunita Vs. State of H.P & ors. decided on 13.3.2025, learned counsel for the petitioner stated that though case at hand deserves to be allowed on the basis of violation of principle of natural justice but even otherwise, vide notification dated 22.5.2014, Government of Himachal Pradesh had decided to re-engage all the PTA provided teachers, who were engaged prior to 31.12.2007 and whose services were discontinued for the reasons other than the inquiry committee, the petitioner is required to be re-engaged forthwith. 7. Mr. Jairath also placed reliance on the judgment passed by Hon’ble Apex Court in case titled as Nar Singh Pal Vs. Union of India & ors. 2000 (3) SCC 588 to state that even in the case of temporary employee, disciplinary proceedings are required to be initiated and delinquent official can only be removed after providing opportunity of being heard. Mr. Jairath states that since the petitioner herein never came to be afforded opportunity of being heard before passing an order, impugned order deserves to be set aside. 8. He also places reliance upon the judgment passed by Hon’ble Apex Court in case titled as Dr. Vijaykumaran C.P.V Vs Central University of Kerala and ors. 2020 (12) SCC 426 to substantiate his aforesaid plea. 9. Per contra Shri Rajan Kahol, learned Additional Advocate Gneral while supporting impugned action of respondents vehemently argued that since the petitioner was appointed as PTA Teacher on temporary basis, there was no requirement, if any, to conduct disciplinary proceedings under CCS (Conduct) Rules 1972. He submitted that it was decided in PTA meeting of GSSS, Lyhl on 14.1.2020 that in welfare of students, services of the petitioner are deemed to be terminated from the date of her absence. Mr. Kahol stated that the petitioner remained absent from duties for more than one year that too without there being any prior information to school and as such, no illegality can be said to have been committed by authorities while passing impugned order. Mr. Mr. Kahol stated that the petitioner remained absent from duties for more than one year that too without there being any prior information to school and as such, no illegality can be said to have been committed by authorities while passing impugned order. Mr. Kahol further contended that judgment passed by this Court in case titled as Aarti Bhanwal and Sunita (supra) is not applicable on the present facts and circumstances because in the case at hand, the petitioner was repeatedly provided opportunities to join the duties but she failed to do so. 10. I have heard learned counsel representing the parties and have gone through the material placed on record. Careful perusal of pleadings adduced on record by respective parties clearly reveals that the petitioner had been discharging her duties as PGT history on PTA (GIA) basis at GSSS Lyhl w.e.f. 3.5.2006 till 17.5.2015, i.e., more than 9 years. Though it clearly appears from the record that the petitioner failed to join her duties on 20.7.2015, but it is also not in dispute that she was sent notice for the first time on 26.9.2016 Annexure P/2. It would be apt to take note of the aforesaid office order, which reads as under:- ‘’Office Order Smt. Darshna Kumari who has been working as PGT (History) on PTA basis in this institution is absent from her duties since 20.7.2015 without any information. In this regard absentee report of the said employee has been sent to the Dy.Director of Hr. Education Chamba on dated 31.8.2015 & 5.5.2016 and copy also been forwarded to the concerned employee and also telephonically informed her but no reply has been received from the part of Smt. Darshna Kumari as of now. In this connection in view of the interest of the students Smt. Darshna Kumari is hereby informed that submit her reply to this office about her joining of the duties within 10 days after receiving this order otherwise case will be forwarded to the higher authorities for further n/a. Sd/- Principal, GSSS Lyhl Teh. & Distt. Chamba DDO Code 233” 11. Careful perusal of aforesaid office order clearly reveals that Principal of the concerned school while calling upon petitioner to file reply also called upon her to give her joining so that studies of the students are not hampered. & Distt. Chamba DDO Code 233” 11. Careful perusal of aforesaid office order clearly reveals that Principal of the concerned school while calling upon petitioner to file reply also called upon her to give her joining so that studies of the students are not hampered. Pursuant to aforesaid office order, vide communication dated 28.10.2016, the petitioner herein while assigning reasons for not coming to school after 20.7.2015, also gave joining. Authorities concerned though received aforesaid communication but neither permitted the petitioner to rejoin her duties nor passed appropriate order thereby disengaging the petitioner. Matter remained pending before competent authority for more than 4 years. It is only after the intervention of erstwhile State Administrative Tribunal as well as this Court, office order dated 14.1.2020 came to be issued under signature of Principal, GSSS Lyhl, Chamba, Annexure P/8, thereby terminating the services of the petitioner from the date she failed to come present in school. At this stage, it would be apt to take notice of office order dated 14.1.2020 Annexre P-8. "Office Order As per letter of opinion received from Deputy Director of Higher Education Chamba vide his office order No.EDN-CHM (Inquiry)/2019-19-6007- 08 dated 9.1.2020 vide which undersigned called the PTA meeting of GSSS Lylh, today on dated 14.01.2020, in this meeting clarification as received from worth Deputy Director of Higher Education, Chamba discussed with the PTA committee. All the committee members who are present in the meeting emphatically says that the welfare of students, the service of Smt. Darshana Kumari has been deemed to be terminated i.e., (From the date her absence from duty without any information) and vacancy position may be forwarded to the higher authority for fill up the post, so our children may not be suffered from the next session i.e. 2020-21. Hence, the as per recommendation of PTA Committee service of Smt. Darshana Kumari is deemed to be terminated." 12. Careful perusal of aforesaid office order, nowhere suggests that authority concerned before passing order at hand ever afforded an opportunity of being heard to the petitioner, rather afore order suggests that some meeting was convened of the PTA members and therein decision was taken to terminate the services of the petitioner. Careful perusal of aforesaid office order, nowhere suggests that authority concerned before passing order at hand ever afforded an opportunity of being heard to the petitioner, rather afore order suggests that some meeting was convened of the PTA members and therein decision was taken to terminate the services of the petitioner. Since vide afore order, services of the petitioner came to be terminated, there appears merit in the contention of learned counsel for the petitioner that petitioner ought to have been afforded opportunity of being heard, especially when it had serious repercussion. To ascertain the factum with regard to non-association of petitioner at the time of passing of afore order Department ought to have conducted enquiry but no enquiry was conducted and after four years of sending communication dated 26.9.2016, petitioner was informed that she stands terminated. This Court vide order dated 20.3.2025 specifically called upon respondents to impart instructions “whether before passing termination order, inquiry if any, was conducted by the competent authority or not?” 13. Pursuant to aforesaid order, learned Additional Advocate General has placed on record communication dated 22.3.2025 issued under the signatures of Director of Higher Education, Himachal Pradesh which is taken on record. It is stated in the afore communication that an inquiry was not conducted as the PTA teacher being temporary are not covered under CCS (Conduct) Rules, 1972. However, there is no explanation that why it took almost four years for competent authority to pass final decision on the joining submitted by petitioner pursuant to office order dated 26.9.2016. True it is the petitioner herein was appointed as TGT on PTA (GIA) on temporary basis, but once she was terminated on account of her continuous absence, she ought to have been afforded opportunity of being heard by competent authority before passing impugned order having serious repercussion. 14. By law it is well settled that even in the case of a temporary employee, disciplinary proceedings are required to be initiated before passing stigmatic order. Since in the case at hand, petitioner came to be terminated on account of her continuous absence, order of termination being stigmatic and punitive could not have been passed without adhering to the principle of natural justice which also includes opportunity of being heard. 15. Reliance in this regard is placed on judgment passed by Nar Singh Pal VS UOI & ors. 15. Reliance in this regard is placed on judgment passed by Nar Singh Pal VS UOI & ors. (supra), relevant paras whereof are reproduced as under:- “8. The documents which have been placed before us pertain to the preliminary enquiry made against the appellant in which the statement of certain persons who had seen the incident was recorded. The services of the appellant were, thereafter, terminated by paying him the retrenchment compensation through a cheque along with the order dated 20-5-1992. The order having been passed on the basis of preliminary enquiry and not on the basis of regular departmental enquiry without issuing a chargesheet or giving an opportunity of hearing to the appellant, cannot be sustained. 9. We may, at this stage, refer to the observations of Krishna Iyer, J. in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha in which the learned Judge observed as under: 53.. Masters and servants cannot be permitted to play hide and seek with the law of dismissals and the plain and proper criteria are not to be misdirected by terminological cover-ups or by appeal to psychic processes but must be grounded on the substantive reason for the order, whether disclosed or undisclosed. The Court will find out from other proceedings or documents connected with the formal order of termination what the true ground for the termination is. If, thus scrutinised, the order has a punitive flavour in cause or consequence, it is dismissal. If it falls short of this test, it cannot be called a punishment. To put it slightly differently, a termination effected because the master is satisfied of the misconduct and of the consequent desirability of terminating the service of the delinquent servant, is a dismissal, even if he had the right in law to terminate with an innocent order under the standing order or otherwise. Whether, in such a case the grounds are recorded in a different proceeding from the formal order does not detract from its nature. Nor the fact that, after being satisfied of the guilt, the master abandons the enquiry and proceeds to terminate, (liven an alleged misconduct and a live nexuses between it and the termination of service the conclusion is dismissal, even if full benefits as on simple termination, are given and non-injurious terminology is used" (Emphasis supplied) 10. Nor the fact that, after being satisfied of the guilt, the master abandons the enquiry and proceeds to terminate, (liven an alleged misconduct and a live nexuses between it and the termination of service the conclusion is dismissal, even if full benefits as on simple termination, are given and non-injurious terminology is used" (Emphasis supplied) 10. Applying the above principles, the order in the instant, case, cannot be treated to be a simple order of retrenchment. It was an order passed by way of punishment and, therefore, was an order of dismissal which having been passed without holding a regular departmental enquiry, be sustained. 16. Reliance has also been placed upon judgment passed by Hon’ble Apex Court in Dr. Vijaykumaran C.P.V Vs Central University of Kerala and ors . (supra), relevant paragraphs whereof have been given as under: “11. In the present case, all the three elements are attracted, as a result of which it must follow that the stated order is exfacie stigmatic and punitive. Such an order could be issued only after subjecting the incumbent to a regular inquiry as per the service rules. As a matter of fact, the Internal Complaints Committee had recommended to proceed against the appellant appropriately but the Executive Council proceeded under the mistaken belief that in terms of clause 7 of the contract, it was open to the Executive Council to terminate the services of the appellant without a formal regular inquiry as per the service rules. Indisputably, in the present case, the Internal Complaints Committee was constituted in reference to the complaints received from the girl students about the alleged misconduct committed by the appellant, which allegations were duly inquired into in a formal inquiry after giving opportunity to the appellant and culminated with the report recording finding against the appellant with recommendation to proceed against him. 13. A priori, we have no hesitation in concluding that the impugned termination order dated 30.11.2017 is illegal being ex- facie stigmatic as it has been issued without subjecting the appellant to a regular inquiry as per the service rules. 13. A priori, we have no hesitation in concluding that the impugned termination order dated 30.11.2017 is illegal being ex- facie stigmatic as it has been issued without subjecting the appellant to a regular inquiry as per the service rules. On this conclusion, the appellant would stand reinstated, but whether he should be granted backwages and other benefits including placing him under suspension and proceeding against him by way of departmental or regular inquiry as per the service rules, is, in our opinion, a matter to be taken forward by the authority concerned in accordance with law. We do not intend to issue any direction in that regard keeping in mind the principle underlying the exposition of the Constitution Bench in Managing Director, ECIL, Hyderabad & Ors. vs. R. Karunakar & Ors. 4. In that case, the Court was called upon to decide as to what should be the incidental order to be passed by the Court in case after following necessary procedure, the Court/Tribunal was to set aside the order of punishment. The Court observed thus: “31. ….Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the 4 (1993) 4 SCC 727 authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back- wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law.” (emphasis supplied) Following the principle underlying the above quoted exposition, we proceed to hold that even though the impugned order of termination dated 30.11.2017 is set aside in terms of this judgment, as a result of which the appellant would stand reinstated, but at the same time, due to flawed approach of the respondent No. 1 – University, the entitlement to grant backwages is a matter which will be subject to the outcome of further action to be taken by the University as per the service rules and in accordance with law.” 17. Careful reading of aforesaid judgment passed by Hon’ble Apex Court clearly reveals that order of retrenchment by way of punishment cannot be passed without holding a regular departmental inquiry. Hon’ble Apex Court in aforesaid judgments has held that since termination order is punitive in nature and stigmatic, delinquent official is required to be subjected to regular enquiry. In both the cases before Hon’ble Apex Court, delinquent officials were temporary employee. 18. Since in the case at hand, termination order against petitioner came to be passed without holding any inquiry, therefore, the same is not tenable in the eyes of law and as such, deserves to be quashed. 19. There is another aspect of the matter that vide notification dated 22.5.2014, Government of Himachal Pradesh, on recommendations of High Powered Committee constituted under the Chairmanship of Chief Secretary to the Government of Himachal Pradesh, decided to re-engage all PTA provided teachers who were engaged before 31.12.2007 and whose services were dis-continued for the reasons other than the enquiry committee, if they are eligible as per Recruitment & Promotion Rules. Admittedly in the instant case, the petitioner was appointed as TGT on PTA basis under GIA Rules much before 31.12.2007. It is also not in dispute that her services were not dis-continued pursuant to report if any given by the inquiry committee. Similarly, there is no dispute with regard to eligibility of the petitioner for being appointed to the post in question in terms of Recruitment & Promotion Rules. 20. It is also not in dispute that her services were not dis-continued pursuant to report if any given by the inquiry committee. Similarly, there is no dispute with regard to eligibility of the petitioner for being appointed to the post in question in terms of Recruitment & Promotion Rules. 20. Though at this stage learned Additional Advocate General attempted to argue that impugned order dated 14.1.2020 (Annexure P- 8) was passed by inquiry committee but he was unable to substantiate aforesaid submission of him by placing on record proceeding if any conducted by disciplinary committee. As has been taken note of above, Principal of school concerned itself by way of office order dated 26.9.2016 Annexure P-2 called upon petitioner to submit her joining. Though pursuant to aforesaid communication, petitioner submitted her joining on 28.10.2016 Annexure P-3 but yet she was not permitted to re-join. It is only after intervention of competent court of law, respondent proceeded to pass order dated 14.1.2020 (Annexure P-8), whereby simply intimating petitioner that members of PTA in their meeting have decided to terminate the services of the petitioner from date she failed to come present in school. This quite apparent from the aforesaid order dated 14.1.2020 that the services of the petitioner were terminated without there being holding any inquiry. If it is so, case of the petitioner is required to be considered by Government of Himachal Pradesh in terms of notification dated 25.5.2014 whereby decision was taken to re-engage the services of such PTA teachers, whose services were terminated prior to 31.12.2007 subject to certain conditions as taken note herein above. 21. In similar facts and circumstances, in a case titled as Aarti Bhanwal’s case supra, whereby the services of the petitioner, who was appointed as Lecturer (Political Science) at GSSS Sandhole, Distt. Mandi, H.P on 11.10.2007 on PTA basis, her services were dis- engaged on 24.7.2009 on account of continuous absence from duties and this Court, after having taken note of notification dated 22.5.2014 issued by Government of Himachal Pradesh as stated above, allowed the petition and directed the respondents to re-engage the aforesaid petitioner against the post of Lecturer (Political Science) at GSSS Sandhole in terms of policy decision dated 25.4.2014 within a period of four weeks. It is not in dispute that the aforesaid judgment passed by this Court already stands implemented. 22. It is not in dispute that the aforesaid judgment passed by this Court already stands implemented. 22. In yet another case, i.e Sunita Vs State of HP CWP No.4571 of 2020 decided on 13.3.2025 (supra), this Court having taken note of notification dated 22.5.2014 issued by the Government of Himachal Pradesh directed the respondents-State to re-engage the aforesaid person against the post of Lecturer (Political Science) at GSSS Baldwara, District Mandi, H.P in terms of policy decision dated 20.5.2014. 23. Consequently, in view of detailed discussion made hereinabove and law taken into consideration, this Court finds merit in the petition and accordingly the same is allowed. Impugned order dated 14.1.2020 (Annexure P-8) is quashed and set aside and the respondents are directed to re-engage the petitioner against the post of PGT (History) at GSSS Lyhl, District Chamba, H.P in terms of policy decision dated 22.5.2014 within a period of six weeks. In case post in question stands filled up in afore school, petitioner may be given appointment against the vacant post in some other school. Since the petitioner never worked after 15.7.2015, she shall not be entitled to any monetary benefits for the period starting from 15.7.2020 till her actual joining, however, such period shall be counted for the purpose of seniority. All pending applications stand disposed of.