Aashkaran Joshi vs State of Chhattisgarh

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Amitendra Kishore Prasad, J

By way of the present petition, the petitioners seek to challenge the arbitrary and illegal action of the respondent–State authorities, particularly assailing the orders dated 19.08.2020 and 04.09.2023 (Annexure P/1) passed by respondent No. 6, whereby the representation submitted by the petitioners has been rejected and the earlier order dated 19.08.2020 cancelling the absorption order dated 01.07.2018 has been affirmed. By virtue of the said orders, the petitioners have been treated as absorbed w.e.f. 01.07.2019 and it has been directed that the period of eight years of service shall be counted from the date of joining at the posted school. Consequent thereto, recovery proceedings have also been initiated against the petitioners vide order dated 31.07.2021. The impugned action of the respondents has been taken without following due procedure of law and is wholly arbitrary, being prima facie contrary to the State Circulars dated 30.06.2018 and 06.07.2018, as well as based on an erroneous interpretation of the order dated 11.04.2023 passed by co-ordinate Bench of this Court in WPS No.3986/2020. Hence, the present petition.

The petitioners have filed this petition with the following relief(s):-“10.1 A writ and / or an order in the nature of writ of appropriate nature kindly do issue to the respondents authority and directed placed entire documents of the records before this Hon'ble court pertaining the case of the petitioners.

10.2 A writ and / or an order in the nature of writ of appropriate nature kindly do issue to the respondents authority and set aside the order dated 19.08.2020 and order dated 4.09.2023 Annexure P/1 in respect of the petitioners are being illegal and contrary to the state guideline in the facts and circumstances of the case.

10.3 A writ and / or an order in the nature of writ of appropriate nature kindly do issue to the respondents authority and consequences recovery order dated 31.07.2021 be set- aside in respect of the petitioners in the facts and circumstances of the case.

10.4 Any other relief in the direction of this Hon'ble Court.”

Learned counsel for the petitioners submits that the impugned orders passed by the respondent authorities are wholly arbitrary and contrary to the State Circulars dated 30.06.2018 and 06.07.2018 governing absorption of Shiksha Karmis. As per the said circulars, all Panchayat teachers who had completed eight years of service as on 01.07.2018 were entitled to be considered for absorption in the State service. The petitioners were appointed by order dated 30.06.2010 and had joined their duties on 01.07.2010 at the office of respondent No. 7 in compliance with the conditions mentioned in the appointment orders. Therefore, for the purpose of counting the period of eight years of service, the date of initial joining in pursuance of the appointment order ought to have been taken into consideration.

It is further submitted that thereafter, as per the directions of the competent authority, the petitioners were posted to their respective schools where they joined on 05.07.2010 and 08.07.2010. The said subsequent joining at the place of posting cannot be treated as the initial date of joining for the purpose of calculating the qualifying period of eight years. The authorities have erroneously ignored the fact that the petitioners had already joined service on 01.07.2010 before the competent office and were thereafter relieved to join the posted schools, which is a routine administrative process.

Learned counsel further submits that on the basis of the appointment orders and the original joining dates, the competent authority had rightly found the petitioners eligible for absorption and accordingly passed the absorption order dated 10.07.2018 granting them absorption w.e.f. 01.07.2019. However, on the basis of a complaint, the respondent authorities conducted an enquiry and, by misinterpreting the requirement of joining at the posted school, cancelled the earlier absorption order vide order dated 19.08.2020 and treated the absorption of the petitioners from 01.07.2019. Such action, according to learned counsel, is unsustainable in law as it amounts to changing the basis of eligibility retrospectively without any authority of law.

Learned counsel also submits that pursuant to the order passed by co-ordinate Bench of this Court in WPS No. 3986/2020 dated 11.04.2023, the respondents were required to consider the representation of the petitioners objectively and in accordance with law. However, while passing the impugned order dated 04.09.2023, the authority has again rejected the claim of the petitioners by holding that they joined their respective schools only on 05.07.2010 and 08.07.2010, whereas similarly situated teachers who joined on 02.07.2010 have been granted the benefit. The said interpretation adopted by the respondents is manifestly illegal, arbitrary and perverse, and has resulted in unjust denial of the lawful benefit of absorption to the petitioners.

On the other hand, learned State counsel opposes the submissions advanced by learned counsel for the petitioner and submits that the present writ petition is wholly misconceived and devoid of any merit and is therefore liable to be dismissed at the threshold. It is submitted that the petitioners have approached this Court on the basis of selective and self-serving documents without placing the complete and correct facts on record. According to the State, the factual matrix would clearly demonstrate that the action taken by the competent authorities is strictly in accordance with the policy decision of the State Government and does not suffer from any illegality or arbitrariness.

It is further submitted that the petitioners were initially appointed on the post of Shiksha Karmi Grade-III vide order dated 30.06.2010 issued by the Chief Executive Officer, Janpad Panchayat Chhuriya, District Rajnandgaon. In pursuance thereof, the petitioners joined their duties at their respective places of posting. Subsequently, the State Government took a policy decision to absorb the services of Teacher (Panchayat) into the School Education Department upon completion of eight years of service as on 01.07.2018, and accordingly issued an order dated 30.06.2018 laying down the criteria for such absorption.

Learned State counsel submits that upon scrutiny and inquiry conducted pursuant to certain complaints, it was found that the petitioners had actually joined their respective schools on 05.07.2010 and not on 01.07.2010 as claimed by them. Since the policy specifically provides that only those teachers who had completed eight years of service as on 01.07.2018 would be entitled for absorption from that date, the petitioners, having joined their place of posting on 05.07.2010, had not completed the requisite qualifying service by the cut-off date. Therefore, the earlier absorption granted to them w.e.f. 01.07.2018 was found to be erroneous and accordingly the competent authority rectified the mistake by issuing the impugned order dated 19.08.2020, whereby the date of absorption of the petitioners was re-fixed as 01.07.2019.

It is further submitted that since the petitioners had received salary and other benefits on the basis of the earlier erroneous absorption order, which they were not legally entitled to, the competent authority was constrained to initiate recovery proceedings vide order dated 31.07.2021. According to the learned State counsel, the said action has been taken strictly in accordance with law and pursuant to the inquiry conducted by the competent authorities. It is thus contended that the impugned orders are just, proper and legal, and do not warrant any interference by this Court in exercise

of its writ jurisdiction. Hence, the petition deserves to be dismissed.

I have heard learned counsel for the parties and perused the materials available on record.

The controversy involved in the present case essentially revolves around the interpretation of the State Government circulars dated 30.06.2018 and 06.07.2018 relating to absorption of Teacher (Panchayat) into the School Education Department upon completion of eight years of service. The material placed on record reveals that the petitioners were appointed on the post of Shiksha Karmi Grade–III by order dated 30.06.2010 and in pursuance thereof they had joined their duties on 01.07.2010 before the competent authority as required under the terms of the appointment order. The subsequent joining of the petitioners at their respective schools on 05.07.2010 and 08.07.2010 was merely a consequential administrative step taken in compliance with the directions of the authorities and cannot be construed as the initial date of entry into service.

The policy decision of the State Government clearly stipulates that those teachers who have completed eight years of service as on 01.07.2018 are entitled to be absorbed into the School Education Department. The undisputed factual position demonstrates that the petitioners had entered service on 01.07.2010 and therefore completed the requisite qualifying period of eight years on 01.07.2018 itself. The action of the respondents in treating the date of joining at the posted school as the determinative date for counting the period of service, thereby postponing the date of absorption to 01.07.2019, reflects a manifestly erroneous interpretation of the governing circulars and the service conditions of the petitioners.

It is also noteworthy that the competent authority had initially considered the records of the petitioners and, being satisfied with their eligibility, granted them absorption in the School Education Department with effect from 01.07.2018 by order dated 10.07.2018. The subsequent cancellation of the said benefit by the impugned order dated 19.08.2020 appears to have been made solely on the basis of a narrow and technical interpretation of the date of joining at the place of posting, ignoring the undisputed fact that the petitioners had already joined service pursuant to their appointment order on 01.07.2010. Such an approach, in the considered view of this Court, defeats the very purpose of the policy decision taken by the State Government and results in unjust denial of legitimate service benefits to the petitioners.

This Court further finds that while passing the order dated 04.09.2023 pursuant to the earlier direction issued by co-ordinate Bench of this Court in WPS No. 3986/2020, the respondent authorities have once again proceeded on the same erroneous premise and failed to consider the claim of the petitioners in its correct perspective. The impugned decision thus suffers from arbitrariness and non-application of mind, as the authorities have ignored the material facts relating to the initial joining of the petitioners in service and have adopted a hyper-technical interpretation which is neither supported by the policy circulars nor by the service jurisprudence governing such matters.

Insofar as the recovery proceedings initiated against the petitioners pursuant to the order dated 31.07.2021 are concerned, the same are merely consequential to the impugned action of re- fixing the date of absorption. Once the very basis of such re- fixation is found to be unsustainable in law, the consequential recovery proceedings cannot be allowed to stand. The petitioners cannot be penalized for an action which had originally been taken by the authorities themselves after due consideration of the records.

In view of the aforesaid discussion and considering the matter in its entirety, this Court is of the considered opinion that the impugned orders dated 19.08.2020 and 04.09.2023, whereby the date of absorption of the petitioners has been altered from 01.07.2018 to 01.07.2019, are arbitrary, legally unsustainable and liable to be set aside. Accordingly, the said orders are hereby quashed. The respondents are directed to treat the petitioners as duly absorbed in the School Education Department with effect from 01.07.2018 in terms of the State Government circulars dated 30.06.2018 and 06.07.2018 and to extend all consequential service benefits flowing therefrom. The recovery proceedings initiated against the petitioners pursuant to order dated 31.07.2021 shall also stand quashed.

The respondents shall undertake the necessary exercise and pass appropriate consequential orders within a period of 90 days from the date of receipt of a certified copy of this order.

The writ petition is accordingly allowed. No order as to costs.