IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 9594 of 2008 Judgment reserved on: 11.7.2011 Date of Decision: 04.08.2011 Kanchan Bala …Petitioner. Versus State of H.P. and others …Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? Yes For the Petitioner : Mr. Surender Sharma, Advocate. For the Respondents : Ms. Ruma Kaushik, Additional Advocate General. Kuldip Singh, Judge The petitioner has prayed mainly the following reliefs:- (i) That the impugned Annexure A-6, dated 19.4.2003 may be quashed and set-aside. (ii) That the respondents may be directed to consider the case of the applicant for promotion to the post of TGT against 25% quota reserved for inservice JBT Teachers with all consequential benefits like arrears of salary and seniority etc. from the date her juniors have been promoted and to pay arrears along with interest @ 18% per annum. ____________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 2. The pleaded case of the petitioner is that in pursuance of letter dated 6.8.2001 of Principal, Govt. College of Teacher Education, Dharamshala the respondent No.3 vide letter dated 9.8.2001 had directed the Centre Head Teacher, Govt. Primary School, Sujanpur to relieve the petitioner to enable her to join the Government College of Teacher Education at Dharamshala. The respondent No.2 vide letter dated 12.10.2001 addressed to the District Primary Education Officer, Hamirpur with endorsement to respondent No.3 informed that the petitioner had sent her application form through proper channel and she had been selected against the quota meant for the Department, the administrative approval was implicit in the selection and no separate permission was required. 3. The petitioner completed her B.Ed Training Course successfully for the academic session 2001-02 and was relieved from Govt. College of Teacher Education, Dharamshala on 13.6.2003 vide office order dated 13.6.2003. The petitioner was legitimately expecting that pursuant to her completion of B.Ed. Training Course, necessary entry of acquiring higher education would be endorsed in the service book of the petitioner and she would be duly considered for promotion to the post of Trained Graduate Teacher (TGT) as per R & P Rules where 25% quota has been reserved for inservice teachers. However, despite lengthy correspondence with respondents, the petitioner has not been considered for promotion to the post of TGT nor necessary endorsement has been made in her service book which has led to grave miscarriage of justice. The respondent No.3 had been 3 insisting that the bond be got executed from petitioner even though petitioner has already successfully completed B.Ed. Training Course and after completion of B.Ed course the petitioner resumed her duties in the department. The stand of respondent No.3 to this effect is arbitrary and is only to harass the petitioner. 4. The petitioner has made detailed representation to respondent No.2 on 17.2.2003, through proper channel, submitting therein that she had been working as JBT teacher since 28.12.1994 and had already completed B.Ed. Training Course, her case was to be considered for promotion to the post of TGT against 25% quota meant for inservice candidates. The petitioner was informed vide letter dated 19.4.2003 by respondent No.3 that the petitioner has failed to execute bond amounting to Rs.10,000/- and till the same is not executed neither endorsement of acquiring of higher education of B.Ed. would be made in the service book nor the candidature of the petitioner would be considered for promotion to the post of TGT. The petitioner was directed to do the needful within a period of ten days. 5. The petitioner met the respondent No.3 several times and apprised him that compliance as per letter dated 19.4.2003 was not required since the petitioner had already joined her duties after completing the course. The petitioner submitted representation dated 26.4.2003. 6. The petitioner was legitimately expecting that on the basis of her educational qualification i.e. B.Ed. and her experience, she would be considered by the DPC for promotion to the post of TGT against 25% quota. However, the petitioner was not considered 4 for promotion to the post of TGT against 25% quota reserved for inservice B.Ed. teachers. On the contrary, persons junior to petitioner such as Jitender Kumar and Ashwani Kumar, JBTs were considered vide office order dated 24.7.2003 for promotion to the post of TGTs without considering the candidature of the petitioner. The petitioner has alleged that letter dated 19.4.2003 Annexure A-6 and non-consideration of the petitioner for promotion to the post of TGT are illegal, arbitrary and in violation of Articles 14 and 16 of the Constitution of India. 7. The candidature of the petitioner has been wrongly withheld by the respondents. The bond, if any, was to be executed before the petitioner had been sent on training by the Department after her selection against the quota reserved for departmental candidates. The insistence of executing the bond after the petitioner has joined her duty after completing the course is meaningless and without application of mind. On completion of B.Ed. course by the petitioner necessary entry in the service book of the petitioner is required to be made. 8. The petition has been contested by the respondents by filing reply. It has been admitted that the petitioner while serving as JBT teacher in Govt. Primary School, Sujanpur was selected and admitted to the B.Ed. Training Course at Government College of Teacher Education at Dharamshala. As per Rule 53 of the CCS(Leave Rules), 1972 (for short ‘Rules’) study leave should be sanctioned by the competent authority. The employee before commencement of study leave is required to execute bond in forms 7 and 8. The petitioner was relieved by the respondent No.3 without 5 sanction/granting of study leave and without executing bond. The respondent No.2 vide order dated 9.10.2002 gave ex-post-facto sanction of study leave in favour of the petitioner subject to execution of bond of `10,000/-. Thereafter, respondent No.3 vide letter dated 12.11.2002 asked the petitioner to execute the bond of `10,000/- as well as to supply some other information. However, the petitioner failed to execute the bond. 9. The audit party after conducting the audit of the office of respondent No.3 in October, 2002, pointed out irregular payment of CA and HRA made to the petitioner. The respondent No.3 vide letter dated 19.4.2003 informed the petitioner to execute the bond of `10,000/- so that the entry of her higher education in the service book could be made and after entering the same promotion case would be sent to the Director of Education. The petitioner was also informed to deposit the irregular payment made to her but nothing has been done by the petitioner so far. The petitioner herself has put hindrances in her own case for which she should not blame the respondents. The respondents have prayed for dismissal of the petition. 10. I have heard the learned counsel for the parties. The case of the petitioner is that she had been working as JBT since 28.12.1994. There is no dispute that petitioner was selected as inservice candidate for B.Ed. Training Course for the session 2001- 02 which is clear from letter dated 6.8.2001 of Principal, Govt. College of Teacher Education, Dharamshala. The respondent No.3 vide letter dated 9.8.2001 directed the Centre Head Teacher, Govt. Primary School, Sujanpur to immediately relieve the petitioner so 6 that she could mark her presence for B.Ed. Training Course in view of her selection vide letter dated 6.8.2001 of Principal, Govt. College of Teacher Education, Dharamshala. The respondent No.2 vide letter dated 12.10.2001 directed the District Primary Education Officer, Hamirpur to release the salary of petitioner immediately since petitioner had applied for permission for B.Ed. training, through proper channel and she had been selected in departmental quota. The petitioner completed her B.Ed. Training Course and she was relieved from Govt. College of Teacher Education vide office order dated 13.6.2002 of Principal, Govt. College of Teacher Education, Dharamshala. 11. The petitioner made a representation dated 17.2.2003 to respondent No.2 requesting him to consider her against the vacancies of TGT against 25% quota as she had completed B.Ed. Training Course as a departmental candidate. In response to letter dated 17.2.2003, the petitioner was informed vide letter dated 19.4.2003 that she had not given the bond and other information to the office in terms of letter dated 12.11.2002 of respondent No.3, therefore, till she would not give the required documents and information to the office of respondent No.3, the entry of higher education (B.Ed.) would not be made in the service record nor her case for promotion on the post of TGT would be sent to the Director. The petitioner was also informed that audit party has shown recovery of ` 776/- on account of house rent, `2086/- on account of compensatory allowance, total `2862/- from the petitioner. The petitioner was directed to do the needful within ten days. 7 12. It has also come on record that vide office order dated 24.7.2003 two persons namely Jitender Kumar, JBT appointed on 4.8.1995 and Ashwani Kumar, JBT appointed on 1.9.1995 were promoted as TGTs being in service teachers on the basis of recommendation of Departmental Promotion Committee held on 14.7.2003. In fact office order dated 24.7.2003 indicates that many in service JBT teachers junior to petitioner who completed B.Ed. Training Course lateron were also promoted as TGTs. 13. In the reply, the respondents have relied Rule 53 and Forms 7 and 8 for denying benefit of B.Ed. Training Course for the purpose of promotion against 25% quota to petitioner on the ground that before proceeding on study leave, the petitioner had not given requisite bond in accordance with Rule 53 and Forms 7 and 8. The respondents have not denied that similarly situated persons junior to petitioner have been promoted. On the contrary, the stand of the respondents is that till the requisite bond is not given by the petitioner entry of attaining higher education cannot be made in her service book nor her case can be recommended for promotion as TGT against 25% quota. 14. Rule 53 (4)(a) provides as under:- “Every Government servant in permanent employ who has been granted study leave or extension of such study leave shall be required to execute a Bond in Form 7 or Form 8, as the case may be, before the study leave or extension of such study leave granted to him commences.” The purpose of bond provided in Rule 53 (4)(a) is clear from the language of Form 7 which stipulates that in the event of failing to resume duty, or resigning or retiring from service or otherwise 8 quitting service without returning to duty after the expiry of termination of the period of study leave or failing to complete the course of study or at any time within a period of three years after return to duty, the employee would pay to the Government or as may be directed by the Government on demand the sum of rupees mentioned in the bond together with interest thereon from the date of demand at Government rates for the time being in force on Government loans. There is further stipulation that on making such payment, the written obligation mentioned in the bond shall be void and of no effect, otherwise it shall be and remain in full force. Form No. 8 is similar to Form No. 7 but it is to be executed by the Government servant when he is granted extension of study leave. In the present case the extension of study leave is not involved, therefore, Form No. 8 is not applicable. 15. It appears the purpose of Rule 53(4) and Form No. 7 is that after the study leave, the employee should resume the duty so that the Department is in a position to take benefit of knowledge acquired by employee from study for which he took study leave. In the present case, the Department did not enforce Rule 53(4) and Form No. 7 before the petitioner was relieved and allowed to join B.Ed. course. The petitioner was granted study leave for completing her B.Ed. course after her selection for completing B.Ed. course in Govt. College of Teachers Education at Dharamshala. Once the Department had allowed the petitioner to join B.Ed. course without insisting to furnish bond in terms of Rule 53(4), granted her study leave and after completion of B.Ed. course, the petitioner joined her duty in the Department, the compliance of Rule 53(4) read with Form 9 7 in the facts and circumstances of the present case becomes redundant keeping in view the purpose of Rule 53(4) and Form No.7. 16. Once the petitioner has successfully completed B.Ed. course and the Department is aware of successful completion of B.Ed. course by the petitioner, the respondents are required to make necessary entry in the service book of the petitioner. It has come on record that many persons similarly situated but junior to the petitioner have been promoted as TGT against 25% quota. Therefore, petitioner has made out a case for consideration of her case for promotion as TGT against 25% quota. The respondents, are, therefore, required to convene DPC for this purpose immediately inasmuch as the case of the petitioner for promotion has been delayed and her juniors have already been promoted as TGTs vide office order dated 24.7.2003. 17. In view of above discussion, the petition is allowed. The part of the letter dated 19.4.2003 Annexure A-6 whereby petitioner has been ordered to furnish surety bond of `10,000/- is quashed. The respondents are directed to consider the case of the petitioner for promotion as TGT by convening DPC within a period of two months from the date of supply of copy of this judgment by the petitioner to the competent authority. The DPC on convening shall take decision within two weeks and convey the decision to the competent authority and in case petitioner is found suitable for promotion by DPC, then she will be promoted in further one month as TGT from the date her juniors were promoted as TGT against 25% quota as provided in Recruitment and Promotion Rules of the 10 relevant time. The petitioner shall also be given seniority, pay fixation etc. as TGT from the date when her juniors were promoted but no back wages. ( Kuldip Singh ), August 4, 2011. Judge. (GR)