Santosh Kumar vs State Of H.P. & Others

Vivek Singh Thakur, J

Petitioner has approached this Court, by way of this petition, seeking direction to the respondents to consider conversion of her services from EGS Instructor to Gramin Vidya Upasak w.e.f. 27.02.2009 with all service, monetary and consequential benefits instead of 30.08.2013.

Petitioner had rendered her services as EGS Instructor w.e.f. 01.10.2003 to 06.03.2004, voluntarily, on oral orders of the respondents. Subsequently, she was appointed and served as EGS Instructor w.e.f. 04.10.2004 to 10.07.2008 and, thus, had completed three years and nine months as duly appointed EGS Instructor.

The Government vide letter No.EDN-C-B(2)-9-111 dated 27.02.2009 had conveyed its approval to convert those EGS Instructors to Gramin Vidya Upasak, who had completed four years continuous service as EGS Instructors possessing minimum qualification of 10+2 and vide Notification dated 05.10.2009 it was decided to pay honorarium @ `3500/- per month to the said converted Gramin Vidya Upasak as payable to untrained Primary Assistant Teachers (PAT) for ten months in a year.

Services of the petitioner were not converted into Gramin Vidya Upasak for want of continuous four years service as EGS Instructor, whereupon petitioner had filed CWP No.7018 of 2010, titled as Santosh Kumari vs. State of H.P. & others, with prayer to count her services rendered by her voluntarily as EGS Instructor w.e.f. 01.10.2003 to 06.03.2004 for the purpose of determining her eligibility for conversion/appointment to the post of Gramin Vidya Upasak and to pay for this period alongwith interest @ 9%. During hearing of that petition, it was submitted on behalf of the petitioner that she would be contended, if her prayer was allowed only for the purpose of continuity of service.

In view of aforesaid submission made on behalf of the petitioner, after adjudicating matter on merit, the Single Bench of this High Court vide judgment dated 09.01.2012 had directed the respondents to count period of services w.e.f. 01.10.2003 to 06.03.2004, rendered by the petitioner as EGS Instructor for the purpose of considering petitioner's case for appointment to the post of Gramin Vidya Upasak with clarification that the said period shall be considered only for the purpose of continuity of service and not for monetary benefits.

In sequel to aforesaid judgment dated 09.01.2012 respondents, vide order dated 27.08.2013, have appointed the petitioner as Gramin Vidya Upasak and in pursuant thereto, she has joined her duties as such on 30.08.2013.

It is submitted by learned Deputy Advocate General that non consideration of the petitioner for conversion of her services from EGS Instructor to Gramin Vidya Upasak was for the reason that she had not completed continuous four years service as EGS Instructor, but had completed only three years and nine months. Further that, though, it has been established on record during adjudication of CWP No.7018 of 2010 that petitioner had rendered voluntary services as EGS Instructor w.e.f. 01.10.2003 to 06.03.2004, however, at the same time it is also a fact that even if, date of initial appointment of petitioner is considered as 01.10.2003 then also, there was a break in service w.e.f. 07.03.2004 to 03.10.2004 as the appointment of petitioner as EGS Instructor, on the basis of written order, was w.e.f. 04.10.2004 and, thus, prima facie, in absence of judgment passed in CWP No.7018 of 2010, petitioner had not completed four years continuous service and it is for direction of the Court, to consider the voluntary services rendered by the petitioner as EGS Instructor, break in her service has been ignored. Thus, non-appointment of the petitioner as Gramin Vidya Upasak was not for unfounded reasons but for valid reason as she was not fulfilling criteria framed for the purpose.

Be that as it may, fact remains that the judgment in CWP No.7018 of 2010 has been accepted which leads to draw inference that petitioner has been considered to be eligible for appointment to the post of Gramin Vidya Upasak on the basis of her services rendered as EGS Instructor after including her voluntary service. Other EGS Instructors, as is evident from Annexure A-6 placed on record with the petition, were appointed as Gramin Vidya Upasak on the basis of letter dated 27.02.2009 (referred supra) vide office order dated 09.09.2009. Therefore, claim of the petitioner to convert her services as Gramin Vidya Upasak w.e.f. 27.02.2009 is not tenable, rather such claim would have been put forth w.e.f. 09.09.2009, date on which other EGS Instructors were appointed as Gramin Vidya Upasak on contract basis as per terms and conditions provided in Gramin Vidya Upasak Scheme, 2001.

It is not a case where petitioner was undoubtedly eligible to be considered for her appointment as Gramin Vidya Upasak on the basis of her services rendered as EGS Instructor without any relaxation by Department or intervention of the Court as she had not completed four years of continuous regular service, even if, her voluntary service as EGS Instructor is taken into consideration as there was break in her service. Though this issue is not to be reopened in view of the judgment passed in CWP No.7018 of 2010, however, it is a material fact relevant for considering claim of the petitioner with respect to monetary benefits as Gramin Vidya Upasak from the date of appointment of other EGS Instructors. It is not a case where petitioner was fully eligible and was prevented by the respondents from being appointed and joining her duties as Gramin Vidya Upasak arbitrarily, without any justifiable reason.

Therefore, so far as monetary benefits from 09.09.2009, the date of appointment of other EGS Instructors as Gramin Vidya Upasak is concerned, petitioner is not entitled for the same as she has not worked since 09.09.2009 to 29.08.2013 and her case does not fall in the category where respondents can be blamed for not appointing her on 09.09.2009. However, other consequential benefits, including counting her services as Gramin Vidya Upasak for the purpose of pay fixation and regularization etc., petitioner is entitled for that for the reason that once the respondents have accepted the judgment, petitioner is to be considered to have been appointed as Gramin Vidya Upasak w.e.f. 09.09.2009, but on notional basis entitling her for all benefits of service except actual monetary benefits.

Taking into consideration peculiar facts of the case and submission made on behalf of parties and also for reason discussed supra present petition is allowed to the extent that petitioner is to be considered to have been appointed as Gramin Vidya Upasak w.e.f. 09.09.2009 with all consequential benefits, but without actual monetary benefits for the period of 09.09.2009 to 29.08.2013 and petitioner would be entitled for counting of the said period on notional basis for the purpose of fixation of pay, increments and also for counting the length of service for the purpose of regularization and other service benefits.

It is made clear that petitioner shall be entitled for arrears of difference of salary for the period in which she has actually served i.e. after 30.08.2013 on re-fixation of her pay after counting her services w.e.f. 09.09.2009 on notional basis.

The necessary action/formalities for extending benefits to the petitioner shall be completed by the respondents on or before 31.12.2020.

Pending application(s), if any, also stand disposed of.