IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 796 of 2004 Reserved on: 2.9.2009 Date of decision: 7.09.2009 Smt. Suman Kaul … Petitioner Versus State of H.P. & Ors. … Respondents Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the Petitioner: Mr. M.L. Sharma, Advocate. For the respondents: Mr. Rajesh Mandhotra, Deputy Advocate General, for respondents No. 1 to 3. Per V.K. Ahuja, J. : This is a civil writ petition filed by the petitioner under Articles 226/227 of the Constitution of India for setting aside the order passed by the H.P. State Administrative Tribunal, Shimla, dated 27.8.2004 in O.A. No. 558/2001. Briefly stated, the facts of the case are that the petitioner was posted as J.B.T. teacher. According to the seniority list of J.B.T. teachers, the name of petitioner was appearing at Sr. No. 400. It was alleged that the respondents issued promotion orders of J.B.T. teachers as Head Teachers and the petitioner who was duly qualified was also entitled to be promoted as Head Teacher. It was alleged that in the final 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 seniority list of Head Teachers as it stood on 31.12.1997, the name of the petitioner appears still as J.B.T. teacher, whereas several persons have been promoted who were junior to her. The petitioner alleged that one Smt. Indira Sharma who was at Sr. No. 437 has been promoted as Head Teacher on 4.6.1997. The applicant preferred a representation to respondent No. 2, which was forwarded to the District Primary Education Officer. But inspite of the representation made, she was not promoted as Head Teacher and the persons junior to her have already been promoted as Head Teacher. The petitioner filed an application under Section 19 of the Administrative Tribunals Act before the H.P. State Administrative Tribunal praying that her case should be considered for promotion as Head Teacher from the date her juniors have been promoted and she be given all the consequential benefits. In reply filed by the respondents, they took up the plea that the petitioner was promoted as Head Teacher vide order dated 12.5.1998 and was posted in Government Primary School, Ranfua, but she did not join her duties in this school and remained posted at Government Primary School, Giri Project, Giri Nagar. It was further pleaded that due to her non-joining of duties as Head Teacher within the prescribed period, she has been debarred from further promotion for a period of five years, in view of the stipulation in the order of promotion issued by the respondents. The learned Tribunal after considering the pleadings of the parties and record of the case dismissed the application vide its impugned order dated 27.8.2004. Being aggrieved, the petitioner has filed the present petition for quashing of the said order. We have heard the learned counsel for the parties. 3 It is clear from the reply filed by the respondents that the case of the petitioner was considered for promotion and she was duly promoted alongwith other persons as Head Teacher. However, the case of the respondents is that she never joined as Head Teacher and as such, she has forfeited her right to be considered for promotion for five years. On the other hand, the case put up by the learned counsel for the petitioner was that the petitioner never received any copy of the order promoting her and once she has not received the orders there was no question of her joining the place of posting as Head Teacher. It was also submitted that she was never relieved from her duties and directed to join the duties as Head Teacher and as such, the petitioner was not aware of the orders promoting her passed by the respondents. A perusal of the copy of the seniority list Annexure P-5, shows that the name of the petitioner appears at Sr. No. 400 and the place of posting has been shown at Government Primary School, Chaban. A perusal of the promotion order dated 12.5.1998 (Annexure P-4) shows that the name of the petitioner appear at Sr. No. 37 and her place of posting has been shown as P.S. Giri Project and she was transferred to Primary School, Ranfua, on promotion. Copy of this order was sent to all the Block Primary Education Officers for information and necessary action according to the endorsement made in this order. Endorsement of this letter reads as under:- “All the Block Primary Education Officers Sirmaur District for information and necessary action. They are directed to get the orders noted from the concerned teachers and relieve them within 15 days under intimation to this office. No extension will be allowed. The relieving/joining may be sent to this office at the earliest. Latest posting address be located and orders served at your end.” 4 It is, therefore, clear that these orders have not been sent to the newly promoted Head Teachers by name. But the Block Primary Education Officers have been directed to get the orders noted from the concerned teachers and relieve them within fifteen days. It is clear from a perusal of the impugned order passed by the learned Tribunal that there is nothing on record to show or has been pleaded by the respondents that the Block Primary Education Officer ever got delivered the said letter to the applicant nor her signatures were taken in this regard of having received the promotion order at any time. The learned Tribunal on the basis of the record produced before it observed that the petitioner was on duty on 25.5.1998 as well as on 30.5.1998 when the orders were received by the B.P.E.O., Nahan. This fact was further verified from the original record. The learned Tribunal made the observations as under:- “Moreover why authorities concerned would withhold the promotion orders particularly it has been received in the office for the purpose of delivering to the official/an employee concerned. Neither the principal nor the BPEO or any officer posted in GPS Cantt Nahan was inimical to the applicant. Therefore, the case set up by the applicant that she never received the copy of the order is not acceptable.” We are not in agreement with the reasoning given by the learned Tribunal in holding that there is no merit in the Original Application filed by the petitioner. The petitioner was posted at Giri Project and she was not posted in the same office. It was for the Block Primary Education Officer to get the copy served upon her and was required to get the signatures of the petitioner on the said copy in proof of the fact that she has received the communication in regard to the promotion. However, the learned Tribunal did not look into this 5 question as to whether the copy was supplied to the petitioner against receipt or not. The learned Tribunal observed that neither the principal nor the BPEO or any officer posted in G.P.S. Cantt Nahan was inimical to the applicant. It was not required of the petitioner to have taken steps to find out as to who was inimical to her. In case, she was posted in the same office, the case of the petitioner could have been considered differently. Once she was not posted under the Block Primary Education Officer in his office and no copy was delivered to her against any receipt, she cannot be debarred from claiming her right to be promoted from the date her juniors were promoted. The reasoning given by the learned Tribunal does not appeal to us and as such, the impugned order passed by the Tribunal is liable to be set aside, which is set aside accordingly. In view of the above discussion, the impugned order passed by the learned Tribunal is set aside. The petitioner is entitled to be promoted as Head Teacher from the date i.e. 12.5.1998 as her juniors were promoted in the same order and she shall be entitled to the seniority in accordance with the notification dated 12.5.1998 as well as consequential benefits of pay etc. The order shall be complied with by the respondents within a period of three months from today and fresh posting order shall be issued to the petitioner accordingly by the respondents. The writ petition is allowed alongwith costs including lawyer’s fee. ( Deepak Gupta ), Judge ( V.K. Ahuja ), September 7, 2009 Judge (BSS) 6