State of Haryana & Ors. v. Mr. R.K. Malik, Sr. Advocate

Mr. R.K. Malik, Sr. Advocate with Mr. Samrat Malik, Advocate for the petitioner. Mr. Naveen Singh Panwar, DAG Haryana. **** HARPREET SINGH BRAR , J. (Oral)

#1. The present writ petition is filed under Article 226 of the Constitution of India for issuance of a writ in the nature of Certiorari seeking quashing of order dated 02.02.2021 (Annexure P-6) whereby earlier order dated 29.01.2020 (Annexure P-2) has been withdrawn. Further, for issuance of a writ in the nature of Mandamus directing the respondents to CWP-14490-2020 2 pay full salary to the petitioner for the period spanning 09.01.2015 to

05.12.2017 with market interest rate.

#2. Learned counsel for the petitioner contends that the petitioner joined service as TGT (Hindi) on 13.01.2006 in Government High School, Balana but her services were terminated on 08.01.2015. The petitioner challenged the said termination by filing Civil Revision No.5499 of 2017 which was disposed of vide judgment dated 04.12.2017 (Annexure P-1). In compliance therewith, respondent No.2- District Elementary Education Officer, Panipat passed order dated 06.12.2017 allowing the petitioner to rejoin service. Further, vide order dated 29.01.2020 (Annexure P-2), she was granted salary for the period from 09.01.2015 to 06.12.2017 i.e. the period where she was arbitrarily kept out of job. Thereafter, the petitioner moved a representation dated 03.02.2020 (Annexure P-3) requesting compliance with order dated 29.01.2020 (Annexure P-2) and consequently, order dated

06.02.2020 (Annexure P-4) was passed by the respondent No.2-District Elementary Education Officer, Panipat directing the release of the petitioner’s salary for the said period. However, respondent No.3- Headmaster has failed to comply with the directions issued vide order dated

29.01.2020 (Annexure P-2) and order dated 06.02.2020 (Annexure P-4). The petitioner had also served an advance notice of the writ petition-cum-final demand notice on 16.03.2020 (Annexure P-5) but to no avail. Further, the CWP-14490-2020 3 earlier order dated 29.01.2020 (Annexure P-2) was subsequently withdrawn vide order dated 02.02.2021 (Annexure P-6) without issuing any show cause notice or providing an opportunity to be heard to the petitioner.

#3. Learned counsel further submits that the termination of the petitioner was unjust and arbitrary as she had been held eligible to hold the post of TGT (Hindi) by this Court vide judgment dated 29.04.2015 passed in RSA No.1631 of 2015 (Annexure P-14). Furthermore, as reflected by order dated 20.04.2017 (Annexure P-7) and order dated 25.07.2017 (Anneuxre P-8), the execution application filed by the petitioner was only denied on the ground that one Geeta has joined against the regular post. However, Geeta had joined as PGT (Hindi) on 07.03.2014 while the petitioner was working as TGT (Hindi). As per the information obtained under the Right to Information Act, 2005, Geeta had not joined against the post of the petitioner. Further, as indicated by Annexure P-13, two posts of TGT (Hindi) still remain vacant in Government High School, Balana. Thus, the employment status of Geeta is irrelevant to the case of the petitioner. Moreover, the directions issued by this Court in CWP No.12689 of 2015 to terminate the services of guest teachers were stayed by the Hon’ble Supreme Court vide order dated 11.07.2016 (Annexure P-11). As such, the petitioner was kept out of the job arbitrarily and deserves to be granted salary for the said period. CWP-14490-2020 4

#4. Per contra, learned counsel for respondents No.1 to 3 submits that the services of the petitioner were reinstated vide order dated

06.12.2017 with certain terms and conditions including that she will not claim salary for the non-working period. However, inadvertently, the non- working period i.e. 09.01.2015 to 06.12.2017 was considered as duty period in order dated 29.01.2020 (Annexure P-2). Upon receiving letter dated

11.03.2020 (Annexure R-2) by the concerned school regarding the same, order dated 29.01.2020 (Annexure P-2) was sent for vetting as orders dated

06.12.2017 and 29.01.2020 provided contradictory directions regarding release of salary for the non-working period. Since the principle of no work no pay is fully applicable to the case of the petitioner and a specific stipulation was made in this regard in her order of reinstatement, order dated

29.01.2020 was withdrawn vide order dated 02.02.2021. Thus, earlier order dated 06.12.2017 is valid and governs the issue raised by the petitioner. OBSERVATIONS AND ANALYSIS

#5. Having heard learned counsel for the parties and after perusing the record of the case, it transpires that admittedly, the petitioner was allowed to rejoin services vide order dated 06.12.2017 passed by respondent No.2- District Elementary Education Officer in compliance with the directions issued by this Court in Civil Revision No.5499 of 2017 vide CWP-14490-2020 5 judgment dated 04.12.2017 (Annexure P-1). The relevant part thereof is reproduced below: “[4]. Today, Mr. Rajesh Kumar, Clerk of the office of District Elementary Education Officer, Panipat has come present along with authorization for attending the proceedings of this case. He has moved a list showing vacancy position of Hindi Teachers in different schools as on 27.10.2017. Serial No.8 finds vacancy position of Hindi Teacher to which petitioner has shown her desire to be accommodated. [5]. Learned State Counsel on instructions from Mr. Rajesh Kumar, Clerk of the office of District Elementary Education Officer, Panipat states that the Department would issue necessary order of appointment within fortnight. [6]. Let necessary follow up action be done in the aforesaid context. Petitioner would be at liberty to seek consequential benefit in appropriate Forum. In the event of such claim, the same shall be decided by the competent authority in accordance with law.”

#6. In view of paragraph 6 of judgment dated 04.12.2017 (Annexure P-1), the petitioner sent a notice requesting release of salary and other benefits of the non-working period i.e. 09.01.2015 to 06.12.2017 where she was wrongly kept out of job. Consequently, order dated

29.01.2020 (Annexure P-2) was passed by respondent No.2- District Elementary Education Officer granting financial benefits for the said period to the petitioner. However, Government High School, Balana sought clarification as the initial order i.e. order dated 06.12.2017 had stipulated that the petitioner shall be allowed to rejoin service if she foregoes the claim CWP-14490-2020 6 for salary for the non-working period. Addressing the said contradiction between order dated 06.12.2017 and 29.01.2020 (Annexure P-2), respondent No.2- District Elementary Education Officer passed impugned order dated

02.02.2021 (Annexure P-6) withdrawing his previous order (29.01.2020 (Annexure P-2)) merely stating that the previous order was passed in haste. The relevant part thereof is reproduced below: “ Keeping in mind the whole matter I reached to the conclusion that the order dated 29.01.2020 was passed in haste without considering the well settled principle i.e. no work no pay. So, now I withdraw the previous order dated 29.01.2020 being passed erroneously and inadvertently and consequent thereof the previous order dated 06.12.2017 will remain valid and further mentioned therein is genuine one.”

#7. It is a trite law that once a benefit has been granted by a competent authority, the same cannot be withdrawn by reviewing the matter subsequently by its successor-in-office. A reference in this regard can be made to the judgment rendered by a Division Bench of this Court in The General Manager, Northern Railway, Baroda House, New Delhi, and another vs. Madan Lal Chopra, Luggage Guard, Northern Railway and others in LPA No. 43 of 1969 decided on 03.09.1971 and this Court in Gaganpreet Singh and others vs. Punjab State Grains Procurement Corporation Ltd and others 2025(3) Law Herald 2343. It would also be profitable to refer to the judgment rendered by the Privy Council in R.T. CWP-14490-2020 7 Rangachari vs. Secretary of State AIR 1937 PC 27 wherein it was observed that that when a duly competent government officials has honestly arrived at one conclusion, their successor-in-office cannot purport to reconsider the matter in order to arrive at totally different decision after the same has been acted upon and is in effective operation. Further, the successor-in-office can only review a duly passed order conferring certain service benefits if the same was passed without jurisdiction or in violation of the applicable statutory rules or, if the said order is vitiated by fraud etc. Such exercise must not be indulged in a casual, whimsical manner, merely motivated by prejudice.

#8. Moreover, it is abundantly clear that the petitioner was removed from service illegally and arbitrarily as this Court vide judgment dated

29.04.2015 passed in RSA No.1631 of 2015 (Annexure P-14) reaffirmed her qualifications and thereby her eligibility to the post of TGT (Hindi). Further, admittedly, the petitioner could only be removed if a regular appointment was made against her post, as stipulated in order dated 06.12.2017. However, as recorded in judgment dated 04.12.2017 (Annexure P-1) in Civil Revision No.5499 of 2017, Geeta (PGT) had not joined against the post of the petitioner. As such, there never existed a valid ground to remove her from service thereby making her eligible to claim financial benefits for the period of 09.01.2015 to 06.12.2017. 8 CWP-14490-2020 CONCLUSION

#9. Accordingly, the present petition is allowed and impugned order dated 02.02.2021 (Annexure P-6) is hereby quashed. Further, the respondents/concerned authority are directed to release the salary of the petitioner for the period of 09.01.2015 to 06.12.2017. The petitioner shall also be entitled to interest at the rate of 6% p.a. on the salary for the said period, calculable from the date of filing of the present writ petition till actual realisation. The needful be done within 06 weeks of the date of receipt of a certified copy of this order. (HARPREET SINGH BRAR) JUDGE

02.07.2026 parul verma Whether speaking/reasoned. : Yes/No Yes/No Whether Reportable. :