Meena Vaidya vs State of H.P. and Others

Dharam Chand Chaudhary, J.—The writ petition is filed with the following prayers:-

i) To direct the respondent No. 2 to implement part (b) of the order passed by respondent No. 1, Annexure A-8, in its true letter and spirit and the applicant be ordered to be reinstated in service and also given the same station of posting with all consequential benefits

ii) To quash and set aside the part (a) of the orders passed by Respondent No. 1 as reproduced in pare 6(xi) supra, being illegal unconstitutional and arbitrary for the reasons stated in para 6 (xii) supra.

The petitioner was working as lecturer (School Cadre) Hindi and while posted at Government Senior Secondary School, Namhol, District Bilaspur was transferred to Ranital, District Kangra on 8.6.1998. She did not join duties there and proceeded on medical leave. Subsequently, she was transferred and posted in Government Senior Secondary School Chhota Shimla and there also not allowed to join her duties as the transfer of the incumbent Smt. Madhu Verma was cancelled. Thereafter she was transferred to Government Senior Secondary School, Lalpani, Shimla and there she was also not allowed to join her duties. Thereafter the petitioner was transferred and posted in Government Senior Secondary School, Bahali (Rampur), District Shimla, she did not join duties there. In the meanwhile she was charge-sheeted and served with memorandum of charge Annexure A-4. She submitted her statement of defence Annexure A-6 to the memorandum of charge.

Although inquiry report is not available on record yet, admittedly she was ordered to be removed from service. Against the said order she preferred OA No. 351/05 in the erstwhile H.P. State Administrative Tribunal. The same was disposed of vide order Annexure A-7 directing thereby the Principal Secretary (Education) to the Government of Himachal Pradesh to treat the application as representation and decide the same within four weeks, after affording an opportunity of being heard to the petitioner. This has led in passing the order Annexure A-8 dated 16.5.2005 by the Principal Secretary (Education), the 1st respondent. The operative part of this order reads as follows:-

... Under the circumstances, the following orders would meet the ends of justice:-

a) The entire period of absence should be treated as leave without pay with break in service.

b) The penalty of removal from service is set aside and the entire case is remanded to the Director Education to decide the penalty afresh after examining all aspects to the case.

It is (a) supra of the impugned order Annexure A-8 by which the petitioner is aggrieved. This part of the impugned order has been challenged on the grounds inter alia that she was treated indifferently in the matter of her transfer and posting from time to time and at few of the places of her posting not allowed to join. The salary for the period has also not been released. She was compelled to approach the erstwhile Administrative Tribunal twice. During the course of departmental inquiry conducted against her various procedural irregularities were committed. She was condemned unheard and in this backdrop (a) of impugned order Annexure P-8 passed by the 1st respondent, according to her is without due application of mind as she was never at fault and rather it is the department adamant in not giving her the posting orders during the period 1998 to 2002. Also that the attitude of the 3rd respondent, the then Director (Education) was adamant against her and rather he was totally revengeful and biased.

Though the grievance is qua direction (b) in the impugned order Annexure P-8 also that the same has not been complied with by the said respondent, however, now seems to be ventilated because admittedly she was reinstated in service in the years 2007.

Having gone through the record and analyzing the submissions made on both sides, in my considered opinion, the petitioner is not entitled to reopen the issue of departmental inquiry initiated against her nor is there any relief claimed in this petition to that effect and rightly so because the said controversy was set at rest by 1st respondent while deciding the representation of the petitioner vide impugned order Annexure A-8 on the direction of the erstwhile Administrative Tribunal in its order passed on 23.2.2005 in OA No. 351/2003. Therefore, there is no need to enter into that part of the controversy referred to in this writ petition.

If coming to the legality and validity of direction (a) in the impugned order, it is well established on record that the petitioner remained absent from duty w.e.f. 8.6.1998 to 21.6.2002. It cannot be said that during this period she was not given the posting. The record rather reveals that she wanted herself to be posted near and around Shimla and it is for this reason she seems to have not joined the duties in Government Senior Secondary School Kuthar in Ranital, District Kangra. Even if it is believed that she was on maternity leave during this period in that event also she should have joined the place of her posting next to that school given to her on assuming duties after availing the maternity leave.

True it is that she was posted at Government Senior Secondary Schools, Chhota Shimla and Lalpani and she was willing to join the said schools, however, on account of the reason that at Chhota Shimla, the transfer of the incumbent against whom the petitioner was posted, was later on cancelled. At Government Senior Secondary School, Lalpani she was not allowed to join duties and rather transferred and posted in Government Senior Secondary School, Bahali (Rampur). The said order she assailed before the Tribunal in OA No. 232 of 2002, which was disposed of and ordered to be treated as representation. Consequently, the first respondent passed the order on her representation on 11.4.2002, which is Annexure A-1 with a direction to adjust her at Shimla against the person having longer stay. It is thereafter, she was posted in Government Senior Secondary School, Totu, Shimla in January 2002. Thereafter, she was proceeded against departmental inquiry.

The petitioner, therefore, remained absent and when reported for duty was given posting in different Schools including Government Senior Secondary School, Chhota Shimla and Lalpani and also at Government Senior Secondary School, Bahali in Rampur. Any how, this controversy now stands settled and penalty of removal from service merged into compulsory retirement vide order Annexure A-8. In these circumstances, suffice would it to say that the first respondent had taken a lenient view while directing the 2nd respondent to treat her entire period of absence as leave without pay, no doubt with break in service and rightly so because during this period she remained absent from duty and as such was not entitled to any service benefit.

Not only this but, instead of imposing penalty upon her, the 2nd respondent pursuant to the direction at (b) has reinstated her in service and on her reinstatement she was posted in Government Senior Secondary School, Mahadev, District Mandi. Instead of joining her duties there, she again proceeded on medical leave as is apparent from the reply to the writ petition filed on behalf of respondent No. 1 and 2. She no doubt, reported for joining duty in the said school on 17.10.2007, however, by that time someone else had joined the said School. Prior to reporting for duty at Mahadev, she was adjusted in Government Senior Secondary School, Chah Ka Dohra, District Mandi vide office order dated 10.10.2007, however, instead of reporting for duty there, she preferred CWP No. 837 of 2009 in this court against the said order of transfer, which though was dismissed vide judgment dated 24.6.2009. Thereafter the respondent-department again initiated departmental action against her and she was dismissed from service. On her appeal, respondent No. 1 has reduced the penalty imposed upon her from removal of service to compulsory retirement vide order dated 5.3.2011. The said order according to learned counsel is also under challenge in separate writ petition before this Court.

The submission that the copy of reply has not been supplied to learned counsel for the petitioner also carries no weight because as per endorsement on 1st page of the reply, its copy was supplied to Shri Neel Kamal Sood, Advocate through his Clerk Shri Jagdish Verma. As a matter of fact, Shri Neel Kamal Sood, was the counsel, who initially filed the petition on behalf of the petitioner. It is in this backdrop and the discussion hereinabove; I find no illegality or infirmity in the impugned order Annexure A-8. This writ petition, therefore, deserves dismissal and the same is accordingly dismissed. Pending application(s), if any shall also stand disposed of.