IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.: 1520 of 2008. Reserved on: 03.11.2008. Decided on: 11.11.2008. Baneeta Kumari. … … … Petitioner. Versus State of Himachal Pradesh and Others. … … … Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 No. For the petitioner: Ms. Jyotsna Rewal Dua, Advocate. For the Respondents: Mr. Rajinder Kishore Sharma, Senior Additional Advocate General with Mr. Rajinder Dogra, Additional Advocate General and Mr. Vikas Rathore, Deputy Advocate General. Rajiv Sharma, Judge: Brief facts necessary for adjudication of this petition are that the petitioner was appointed as Laboratory Assistant on 29th August, 1996 in D.A.V. College, Sujanpur Tihra, District Hamirpur. Her services were regularised with effect from 6.5.1999 vide communication dated 16.1.2001. The respondent-State took over the college on 7.3.2001. The services of the teaching and non-teaching employees of the college Whether reporters of local papers may be allowed to see the judgment? No. - 2 - were also taken over on 28th August, 2001. As per the averments contained in the writ petition an error has crept in the notification whereby the services of the petitioner and similarly situate persons were taken over to the effect that against the name of the petitioner Library Attendant was mentioned. The Principal of respondent No.3-College sent a communication to the Secretary (Education) on 11th September, 2001 bringing to his notice that as per the record submitted to the Scrutiny Committee and record preserved in the office some rectifications and amendments are required to be carried out in the particulars of the staff members mentioned in the list. The details of rectifications and amendments were appended as Annexure with the letter. She made a representation to the higher authorities for carrying out necessary corrections in the notification and to reflect her name against the category of Library Assistant instead of Library Attendant. It will be apt at this stage to state that the post of Library Assistant in Education Department was redesignated as Junior Lecturer Assistant. In view of the representations made by the petitioner a conscious decision was taken by the State and was conveyed to the Director of Higher Education on 18th October, 2007. The text of letter dated 18th October, 2007 reads thus:- “I am directed to refer to the subject cited above and to say that the Government have taken over the erstwhile private college Sujanpur Tihra vide this department notification of even number dated 7-3-2001 along with the staff. The services of Smt. Baneeta Kumari, Lab. Asstt. Were also taken over as L.A. In this regard, it is clarified that services of Smt. Baneeta Kumari were taken over as Laboratory Assistant as she was holding the same post in the erstwhile college. - 3 - Now, the post of Lab. Assistant in Education Department has been re-designated as Jr. Lecturer Asstt, hence she may be given the designation of Jr. Lecturer Asstt. Instead of L.A. from the date of taking over of the college. You are, therefore, requested to take further necessary action accordingly under intimation to this department.” The respondent No.3-Principal sent a communication to the Deputy Director of Higher Education for pay fixation of the petitioner after taking over her services as Junior Lecturer Assistant with effect from 7th March, 2001. This communication was sent on 13th November, 2007. It is evident that no decision was taken despite sending communication dated 13th November, 2007. The petitioner thereafter submitted fresh representation to the Principal, Government Degree College, Sujanpur Tihra dated 9th August, 2008. The Principal, Government Degree College, Sujanpur Tihra sent the representation to the Director of Education on 9th August, 2008. The Principal sought the permission of the Director of Education to decide the pay fixation case of the petitioner in the scale of Junior Lecturer Assistant or accord permission to release the salary against vacant post from the other institution/college as soon as possible as she was surplus with effect from 1.4.2008. The writ petition came up for admission on 29.8.2008 when the Court passed the following order:- “Two weeks’ time allowed to the authorities concerned to carry out the directions contained in Annexure P-7 dated 18th October, 2007 issued by the State Government and pay salary to the petitioner in accordance with law or show cause.” - 4 - Thereafter the petition was admitted and the following order was passed on 25.9.2008, which reads thus:- “Admit. The learned Deputy Advocate General informs that petitioner’s salary against the post of Lab. Attendant has already been ordered and the same would be paid to the petitioner within a week. Learned Deputy Advocate General further informs that otherwise the matter of the petitioner has been referred to the Finance Department of the State, as soon as any decision is taken, the court will be informed. Three weeks’ time is allowed for filing response and two weeks for rejoinder.” The respondent No.2 has filed reply on behalf of respondents No.1 to 3. The principal stand in the reply filed by respondents No.1 to 3 is that 17 posts of non-teaching staff out of which two posts of Laboratory Attendants were created. She was offered the appointment of Laboratory Attendant. In other words, the case of the respondent- State is that the services of the petitioner could not be taken over as Laboratory Assistant in contravention of the Notification. The respondent No.2 has requested the State Government to withdraw the clarification dated 18.10.2007. Ms. Jyotsna Rewal Dua had strenuously argued that once a conscious decision has been taken vide letter dated 18th October, 2007, the respondents were bound to re-designate her as Junior Lecturer Assistant and to release her salary. She also contended that the respondent No.2 has no jurisdiction to seek clarification/withdrawal of letter dated 18th October, 2007 issued by the State Government after due application of mind. The learned Additional Advocate General has argued on the basis of the stand taken in the reply. - 5 - I have heard the learned counsel for the parties and perused the record carefully. The petitioner was appointed as Laboratory Assistant being in possession of a National Trade Certificate on 29.8.1996. Her services were regularised on 16.1.2001 with effect from 6.5.1999. The DAV College, Sujanpur Tihra was taken over by the State on 7.3.2001. The services of teachers and non-teaching staff were also taken over by the State on 28.8.2001. Prima facie it appears that an error has crept in the notification whereby the petitioner’s services instead of being taken over as Laboratory Assistant had been taken over as Laboratory Attendant. The Principal, DAV College had taken up the issue with the higher authorities and had brought to their notice that the mistake which has crept in the notification be rectified and the services of the petitioner be deemed to have been taken over in the capacity of Laboratory Assistant. In view of the various representations made by the petitioner and the matter being vigorously brought to the notice of the respondents, a conscious decision was taken by the Government vide Annexure P-7, dated 18th October, 2007. The text of the letter has already been reproduced hereinabove. It was clarified vide letter dated 18th October, 2007 that the services of the petitioner were taken over as Laboratory Assistant since she was holding the same post in the erstwhile College and the post of Laboratory Assistant is now re-designated as Junior Lecturer Assistant and she may be given the designation of Junior Lecturer Assistant instead of Laboratory Attendant from the date of taking over of the college. In view of communication dated 18th October, 2007, the services of the petitioner were to be considered to be taken over as Laboratory Assistant and she was further required to be - 6 - re-designated as Junior Lecturer Assistant. However, for un-known reasons, the respondents did not implement the order/decision dated 18th October, 2007 in letter and spirit. This Court on 29th August, 2008 directed the respondents to carry out the directions contained in Annexure P-7 dated 18th October, 2007. Thereafter the learned Deputy Advocate General had informed the Division Bench that the matter of the petitioner had been referred to the Finance Department of the State and as soon as any decision is taken, the Court will be informed. The fact of the matter is that the respondents had not implemented the order dated 18th October, 2007. The only reason assigned in the reply filed by respondents No.1 to 3 for not treating the petitioner as Laboratory Assistant is that the post of Laboratory Attendant was created by way of notification. This cannot be treated as sufficient reason/explanation for not according the petitioner her rightful status of the post which she was holding at the time of taking over of the college, i.e. Laboratory Assistant. It is reiterated at the cost of repetition that the petitioner was appointed as Laboratory Assistant and her services were regularised on 16.1.2001. Her services were to be taken as Laboratory Assistant and not Laboratory Attendant. The mistake committed while issuing the notification has been rectified by the State Government in its own wisdom on 18th October, 2007 in view of the representation made by the petitioner and the case projected by the Principal of the college. The Principal of the college had been vigorously pursuing the case of the petitioner for the release of her salary and re- designation as Junior Lecturer Assistant as is evident from communications dated 13th November, 2007, 5th April, 2008 and 9th August, 2008. Once a decision has been taken on 18th October, 2007, - 7 - consequential steps were required to be taken by the respondents including re-designating the petitioner as Junior Lecturer Assistant and to release her salary against this post. The respondent No.2 works under respondent No.1. Once the higher authority, i.e. the State has taken a decision, which has led to the issuance of letter dated 18th October, 2007, the respondent No.2 had no authority to sit over the same by seeking its clarification or withdrawal. The steps taken by respondent No.2 for the withdrawal of letter dated 18th October, 2007 are without jurisdiction. There is hierarchy in the administration and the person lower in the hierarchy must obey the command of the superiors in day to day administration. The decision dated 18th October, 2007 is rational based on the material placed before the State and the same cannot be faulted with. Consequently, in view of the observations made hereinabove, the writ petition in is allowed. The respondents are directed to implement Annexure P-7, dated 18th October, 2007 within a period of four weeks from today. The petitioner is held entitled to all consequential benefits with effect from 7th March, 2001. No costs. November 11, 2008. (Rajiv Sharma) (sck). Judge.