IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP(T) No. 9122 of 2008 Date of Decision : March 3, 2011 Smt. Mamta Sharma Petitioner Versus State of Himachal Pradesh and others Respondents Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the petitioner : Mr. Ranjan Sharma, Advocate, for the petitioner. For the respondents : Mr. Ram Murti Bisht, Deputy Advocate General with Mr. Vinod Thakur, Dy. A.G. for the respondents. Sanjay Karol, J. (Oral) Petitioner has prayed for the following reliefs:- (i) That the action of the respondents in denying the retrial benefits like pension, w.e.f. 1.4.2002 till today, is unfair, unjust, illegal and arbitrary. (ii) That the respondents may be directed to regulate the pension of the applicant by giving the benefit of retrospective permanent absorption to the applicant from the date the other teachers were absorbed on 12.7.1982/24.6.1983 till retirement on 31.3.2002 for the purposes of treating the said period as qualifying service, for pension forthwith. Whether reports of Local Papers may be allowed to see the judgment? 2 (iii) That the respondents may be directed to release the arrears of pension accruing to the applicant by counting the service w.e.f. 12.7.1982/24.6.1983 till retirement on 31.3.2002 alongwith interest @ 18% per annum forthwith. (iv) That in case the relief(s) 7(ii) & (iii) are found to be not admissible by the Hon’ble Tribunal, Then, the Hon’ble Tribunal may please direct the respondents to calculate and release the pension and arrears accruing there from by giving the benefit of provision of Rule 49(3) of the CCS (Pension) Rules as mentioned in ground (1) of the OA alongwith interest @ 18% per annum forthwith. (v) That the Respondents may be directed to give the benefit of retrospective permanent absorption to the applicant from the date the other similar teachers of the same institution were permanently absorbed and the benefit of consequential notional pay fixation from the date of retrospective absorption and the benefit of the service rendered after retrospective absorption till retirement on 31.3.2002 for all other service benefits, including gratuity, leave encashment GIS and other retrial benefits forthwith. (vi) That the Respondents may be directed to release the gratuity, leave encashment, GIS and other retrial benefits, by counting the service of the applicant from a retrospective date of permanent absorption on 12.7.1982/24.6.1983 till retirement on 31.3.2002 alongwith arrears alongwith interest @ 18% per annum as prayed for 7(v) supra forthwith. (vii) That any other relief(s) deemed fit and proper may also be granted. 3 (viii) That the cost of the application may also be granted. 2. Learned counsel for the petitioner however submits that he confines the relief for absorption w.e.f. February, 1992 and that too not for the purposes of availing monetary benefits but treating the same as qualifying service only for the purposes of pension. 3. Briefly stated petitioner was employed as a Professor with Gita Vidya Peeth Ayurvedic College, Palampur which institution was taken over by the government on 19.11.1977. Staff of the college was however not taken over. Sometime in the year 1982, Government also took a decision for taking over the services of the staff originally employed with the institution. For the purposes of screening and selecting the eligible candidates, Government constituted a Committee headed by the Deputy Commissioner, Kangra. Noticeably Deputy Secretary (Health), Director Ayurveda and District Education Officer, amongst others were also members of the said Committee. Qua the petitioner, the Committee made the following recommendations:- “Shrimati Mamta Sharma She has passed the Bhishagacharya Shiromani and Shastri examinations and has been working as Professor in this college since 10 August, 1974. Thus she fulfills all the essential qualifications for the post of Professor except post-graduate qualification. However the Committee does not propose to recommend relaxation in qualification and hence it recommends that 4 she may be permanently absorbed in the post of Demonstrator, but may be given five advance increments owing to the higher position she has held in this college. From the angle of upper age limit she was eligible on the date of take over of the college. It was shown to us that the Bhishagacharya Shiromani qualification has been treated as equivalent to the Ayurveda Acharya by the Central Council of Indian Medical Sciences and she was admitted to the post – graduate course of Govt. Ayurvedic College, Patiala. Therefore, the Bhishagacharya Shiromani qualification of Smt. Mamta Sharma and Shri Gulshan Kumar appear to be equivalent to recognised degree of Ayurveda.” 4. However inspite of such recommendations petitioner’s services were not taken over by the Government. Feeling aggrieved, Dr. Gulshan Kumar Sharma and the petitioner approached the H.P. Administrative Tribunal by filing O.A. No. 85 of 1986, which stood decided in their favour in terms of judgment dated 21.8.1991. The relevant portion of the judgment reads as under:- “11. After going through the record, analysing the relevant arguments addressed before us and averment of the parties following two questions require to be decided: (i) Whether the applicants 1 and 2 were employed in the institution on April 29, 1978 when the Government had ordered its taking over; 5 (ii) If reply to above question is in the affirmative whether the applicants are entitled to be absorbed in equivalent posts in Him Ayurvedic College Paprola or on other equivalent posts in the Department of Ayurveda in view of their academic qualifications and experience;” “14. … We are satisfied from the report dated March 2, 1982 of Deputy Commissioner, Kangra, report of Shri Guler Chand Committee and report dated December 16, 1975 supra of District Ayurvedic Officer, Dharamsala that both the applicants were borne on the roll of the institution and we hold that like other employees of the institution, whose services have admittedly been taken over by the Government, they too were entitled to be absorbed appropriately either in Him Ayurvedic College Paprola or elsewhere in the Department of Ayurveda. The respondent had acted arbitrarily in denying their absorption in Govt. service. When the institution was taken over on November 19, 1977 it was implied that staff was also to be taken over, subject to their fulfilling academic and other conditions required for Govt. service.”… “17. …We do not know under what circumstances, and for what reasons the Govt. had failed to absorb the applicants in teaching side or on other equivalent jobs, inspite of specific recommendation of the Screening Committee. Both the applicants had thus been discriminated against in the matter of their absorption.” … “18. Coming to the case of the applicant No. 2, Smt. Mamta Sharma, we find from para 6(iii) of the application that she had done degree course of 6 Bhishgacharya Shiromani. As already stated Shri Rattan Lal has already found on investigation that she had not passed the Bhishgacharaya Shiromani examination in 1972 from Rajputana Ayurvedic Unani College Jaipur. With her supplementary-affidavit dated July 2, 1991 this applicant has attached an attested copy of the marks- sheet awarded to her on July 25, 1972 by Rajputana Ayurvedic and Unani Tibbi College Jaipur. The respondent may investigate the genuineness of her academic qualifications keeping in view the objections raised in the supplementary-affidavit dated June 19, 1988 by applicant No. 1 against the enquiry report dated December 10, 1987 of Shri Rattan Lal, within a period of four months from today. This applicant should also be heard during investigation. If after investigation of this applicant’s academic qualifications the respondent is satisfied that she possess a degree in Ayurveda from a recognised institution she should be appointed as Ayurvedic Chikitsa Adhikari in the Department of Ayurveda within a period of six months from today. It is clarified that this applicant will be at liberty to file fresh application if the decision of the authorities be adverse to her.” (Emphasis supplied) 5. From the aforesaid it is thus quite apparent that positive direction, after holding that petitioner’s name was found to be there on the rolls of the institution, was given to the respondents to give her appointment within a period of six months from the date of passing of the judgment. 7 6. It is a common case of the parties that even then petitioner was not given appointment and consequently she was constrained to move an application being MA No. 1154/92 in the aforesaid OA No. 85/86 which also stood decided in her favour in terms of the following directions:- “In view of above, we have no option but to direct the respondents to give appointment to Smt. Mamta Sharma as Ayurvedic Chakitsa Adhikari immediately but not later than 22.8.1992. No other or further order is required to be passed.” 7. It is not in dispute that pursuant to such direction petitioner was issued letter of appointment on 22.8.1992 as Ayurvedic Chikitsa Adhikari (Class-II)(Annexure A-5). It is not in dispute that petitioner retired on 31.3.2002 and just prior to her retirement she represented to the Government for counting the period of her service w.e.f. 1978, the date on which the institution was taken over by the Government, for the purposes of grant of pension. 8. It is true that petitioner did not make any grievance with respect to order dated 22.8.1992 immediately prior to her retirement. However in my considered view, on this short ground alone her claim cannot be rejected. The attending facts and circumstances, under which order of appointment was eventually issued to the petitioner cannot be ignored. She was constrained to knock the doors of the Court not once but twice. From the record it 8 could not be pointed out that fault lied with her. In fact way back in March, 1982 itself, her claim based on existing facts stood considered and recommended by the Screening Committee itself. Her services ought to have been taken over alongwith other similarly situated persons in the year 1983 itself. State acted illegally and she was forced to seek redressal of her grievance before a judicial forum. This could have been avoided had the Government performed its duties in accordance with law. There was no impediment in giving appointment to her and nothing has been shown from the record to the contrary. 9. Directions issued in O.A. No. 85 of 1986 were unambiguously clear. Since State failed to comply with the same she was prompted to approach the Tribunal again. It is not the case of the State that judgment dated 21.8.1991 was pending review before any superior judicial forum. Having accepted the same, State was duty bound to comply with the directions and give her appointment within a period of six months. Thus State was duty bound to give appointment at least w.e.f. 22.2.1992. Her letter of appointment is also not in consonance with the directions dated 21.8.1991 issued by the Court. No doubt her appointment is after passing of order dated 7.8.1992, but the same was passed on the application filed by the petitioner seeking compliance of orders dated 21.8.1991. Consequently petitioner is held entitled to the benefit of counting of the period of her service w.e.f. 22.2.1992 onwards. It is clarified, as so stated by the learned counsel for the petitioner, such benefit is 9 for the purposes of counting the period of service only for the purposes of pension. 10. Respondents shall take all consequential action within a period of four months from the date of receipt of certified copy of the judgment. All pensionary benefits, after the date of her retirement be released to the petitioner within a period of six months from the date of receipt of the certified copy of the judgment, failing which petitioner shall be entitled to interest @ 6% per annum. With the aforesaid directions the present petition is disposed of. (Sanjay Karol), Judge. March 3, 2011 (PK)