Ravi Parkash vs State of H.P. and Others

Tarlok Singh Chauhan, J.—By medium of this writ petition, the petitioner has sought following reliefs:

i) "For issuing a writ of mandamus to the respondents to count period w.e.f. 12.10.2007 to 1.5.2008 towards petitioner''s service and seniority.

ii) For directing the respondents to release grant in aid to the petitioner for 12.10.2007 to 1.5.2008 alongwith interest.

iii) For directing the respondents to regularize/take on contract basis, the services of the petitioner as PTA Teacher at par and alongwith those whose services had been taken over after completion of 7 years of service by 10.12.2014 alongwith all consequential benefits by counting the period of 12.10.2007 to 1.5.2008 towards his service."

The respondents have filed reply. Para 2(b) and 2(d) of the same is reproduced herein:

" 2(b) That in reply to this para it is respectfully submitted that the petitioner was selected vide resolution dated 9.10.2007 on the fixed amount i.e. Rs. 1000/- per month out of their local funding and it was clearly provided in the resolution that the engagement will only be till 29.2.2008. She joined as such on 12.10.2007 whereas model code of conduct was imposed vide notification dated 10.10.2007. Therefore, the PTA also passed resolution on 12.10.2007 that appointment cannot be given to the teachers who were interviewed on 5.10.2007 due to imposing of model code of conduct, hence they will be paid only Rs. 1000/- and the engagements were stopped by the Govt. vide instructions dated 3.1.2008. According to resolution dated 9.10.2007 the services of the petitioner were terminated on 29.2.2008. Thereafter she was allowed to rejoin on 19.5.2008 in view of interim order dated 15.5.2008 passed by this Hon''ble Court in CWP No. 757/2008.

2(d) That in reply to this para it is respectfully submitted that as per Govt. instructions dated 6.8.2013, it was decided that the services of Para Teachers will be regularized after completion of ten years and PTA engaged under GIA to PTA Rules 2006 will be taken over on Contract after completion of 7 years of service. Whereas the petitioner was engaged by the PTA out of its local fund. Hence these instructions are not applicable in the case of petitioner. Thereafter the Govt. has decided vide instructions dated 3.1.2015 that Extra Ordinary Leave availed for doing B.Ed/any other higher qualification required to fulfill eligibility as per R & P Rules, Maternity leave beyond 84 or 168 days (two separate spells of Maternity leave) as the case may be, leave availed on medical grounds should not be considered as break for the purpose of counting the qualifying period of 10 or 7 years for regularization/taking on contract as the case may be and a period of maximum 60 days of absence on account of other reasons in a total period of 10 years should not be considered as break in service of regularization for para teachers. In case of PTA this should be for a maximum period of 42 days for taking over them on contract. The petitioner was not engaged under the PTA-GIA w.e.f. 12.10.2007 to 29.2.2008 as per resolution of the PTA and thereafter he did not work w.e.f. 1.3.2008 to 18.5.2008. Hence the case of the petitioner is not covered under said instructions. Moreover petitioner had not completed continuous service on the day when last taking over order were released in favour of PTA provided teachers."

Admittedly, the petitioner was selected as PTA on 9.10.2007 and joined as such on 12.10.2007. The services of the petitioner were terminated on 2.4.2008, constraining him to file CWP No. 575 of 2008 wherein interim directions dated 21.4.2008 were passed by this Court directing the respondents to allow the petitioner to join duties. He rejoined on 2.5.2008.

Shri V.K. Verma, learned Additional Advocate General, stated at bar that though the petitioner has joined as PTA on 12.10.2007, but was not allowed to actually join because of model code of conduct and not in position w.e.f. 1.5.2008.

The moot question which, therefore, arises in this background as to whether the petitioner can be treated in service for the period w.e.f. 12.10.2007 to 1.5.2008. This issue is no longer res-integra in view of the judgment rendered by Hon''ble Division Bench in CWP No. 1364 of 2015 decided on 27.7.2015 (of which I was one of member). In that case too because of the model code of conduct the petitioner had not actually worked w.e.f. 12.10.2007 to 18.5.2008 and this Court has held para 7 and 8 as under:

"7. Keeping in view the law laid down by the apex Court in a case titled as Sanjay Dhar Vs. J and K Public Service Commn. and Another, , we deem it proper to direct the respondents to treat the services of the petitioner w.e.f. 12th October, 2007 to 18th May, 2008, notionally. Ordered accordingly.

Accordingly, the writ petition is disposed, alongwith pending applications."

In view of the decision rendered in Poonam Kumari (case), I have no option, but to allow this petition and direct the respondents to treat the services of the petitioner w.e.f. 12.10.2007 to 1.5.2008, notionally. Ordered accordingly.

Accordingly, the writ petition is disposed of alongwith all pending application (s), if any, leaving the parties to bear their own costs.