Himachal Pradesh High Court
Krishan Lal vs State Of Himachal Pradesh And Others on 14 July, 2023
Bench: Tarlok Singh Chauhan, Satyen Vaidya
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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No.2306 of 2023
Date of Decision : 14th July, 2023
.
Krishan Lal
...... Petitioner
Versus
State of Himachal Pradesh and others
......Respondents
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge
The Hon'ble Mr. Justice Satyen Vaidya, Judge
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Whether approved for reporting? No
For the Petitioner : Mr. Sudhir Bhatnagar and Mr. Kunal Thakur,
r Advocate.
For the Respondents : Mr. Anup Rattan, Advocate General with
Mr. Ramakant Sharma & Ms. Sharmila Patiyal,
Additional Advocates General, Ms. Priyanka
Chauhan, Deputy Advocate General and
Mr. Rajat Chauhan, Law Officer, for the State.
Tarlok Singh Chauhan, Judge (oral)
The instant petition has been filed for grant of the following substantive relief(s): -
"A. That the writ in the nature of certiorari or any other appropriate writ, order or directions may kindly be issued, quashing the impugned act of the Respondents, more specifically the impugned order dated 20.03.2023 (Annexure P-8 and P-9) whereby the deputation order of the petitioner has 1 Whether reporters of Local Papers may be allowed to see the judgment?::: Downloaded on - 17/07/2023 20:33:08 :::CIS 2
been cancelled and respondent No.5 has been deputed in the place TODAY of petitioner being patently illegal, arbitrary, discriminatory and unconstitutional.
.
B. That a writ in the nature of Mandamus or any other appropriate writ order or directions directing the Respondent No.4 to comply with the order dated 13.03.2023 (Annexure P-5) and relieve the Petitioner from his duties as DPE at GMSSS Bajaura District Kullu H.P. enabling him to be deputed as Assistant District Physical Education (ADPEO) in the O/o Deputy Director Higher Education Kullu."
2. The petitioner was initially appointed as District Physical Education Teacher (DPE). The petitioner submitted an application for being posted as Assistant District Physical Education Officer (ADPEO) in the Office of Deputy Director Higher Education, Kullu, as he was the senior most DPE in the District.
His application was forwarded to the Deputy Director of Higher Education by the Principal of Government Senior Secondary School, Bajauria, District Kullu vide letter dated 25.2.2023.
Subsequently, the Director of Higher Education, Himachal Pradesh issued notification dated 4.3.2023, wherein it was directed that the senior most DPE in the District may be deputed in the Office against the vacant post of ADPEO without deputation ::: Downloaded on - 17/07/2023 20:33:08 :::CIS 3 allowance. The claim of the petitioner was duly considered by the respondents and vide Office order dated 13.3.2023, petitioner was ordered to be deputed as ADPEO in the Office against vacant .
post without deputation allowances. He was further directed to report in the Office on 20.3.2023. The petitioner accordingly applied to the Principal (4th respondent) vide his letter dated 18.3.2023 for relieving him so as to enable him to join duties as ADPEO. This letter was followed by another reminder dated 20.3.2023 at 11:55 a.m., but the Principal did not relieve the petitioner.
3. Surprisingly on 20.3.2023, the second respondent, i.e., Deputy Director of Higher Education intimated the petitioner that the deputation order had been cancelled with immediate effect.
What is more shocking is that after passing of the aforesaid order, another office order was issued, whereby the 5th respondent was deputed/deployed as ADPEO in place of the petitioner. It is in this backdrop that the petitioner has been constrained to file the instant petition.
4. The 5th respondent is though served but he neither appeared nor filed his reply. As regards respondents No.1 and 4, even though reply has been filed on their behalf, but there is no ::: Downloaded on - 17/07/2023 20:33:08 :::CIS 4 satisfactory explanation whatsoever set out in the reply, as to why the deputation order of the petitioner has been cancelled.
5. We have tried to search for the reasons and what we could .
find is contained in preliminary objections, which reads as under:-
"In this behalf, it is respectfully submitted that at present there are 14 posts of ADPEOs exist in HP Education Department i.e one post in each District Headquarter level, One post at Directorate of Higher Education and one post at Directorate of Elementary Education. As per existing R & P Rules, the post of Assistant Physical Training supervisor/diploma Holder in Physical Education (DPE) class -III (Non Gazetted), school cadre in Higher Education Department Himachal Pradesh was designated as ADPEO vide Govt. of HP letter dated 10-08-1987. The ratio for promote and direct recruitee is 50:50 i.e. 50% by promotion and 50% by direct recruitment w.e.f 25-09-2020.
The DPEs are placed as ADPEO and there is no financial benefit on placement to the post of ADPEO. Both posts are in identical scale. It is also submitted that placement process of DPEs to ADPEOs has been stayed by Hon'ble High Court in CWP No. 316/2020 titled as Sohan Singh & others Vs State of H.P."
::: Downloaded on - 17/07/2023 20:33:08 :::CIS 56. Apart from that, we find a little bit of explanation in Paragraphs-8 and 9 of reply on merits which read as under:-
"8-9 That the contents of these paras are also .
admitted being a matter of record. However, it is submitted that petitioner was deputed as Deputy Superintendent for conducting the Annual Examination of HP Education Board which was commenced w.e.f 10-03-2023 vide office order dated 6-03-2023. The petitioner was to be relieved from examination duty after 12.00 (Noon) on 20-03- 23 after examination. However, the process of relieving was started and charges were being handed over to one Sh. Vinod Kumar (TGT). But his reliving was postponed and his deputation orders were cancelled by competent authority."
7. A perusal of the aforesaid averments would go to show that it was the Principal of the school, who despite repeated request of the petitioner had not relieved the petitioner and as per the official respondents, he could have been relieved from the examination duty only after 12:00 noon on 20.3.2023.
8. Be it noted that the petitioner had already submitted an application for his relieving on 20.3.2023 at 11:55 a.m. itself and even according to the official respondents, the process of relieving had started and charge was being handed over to one Vinod ::: Downloaded on - 17/07/2023 20:33:08 :::CIS 6 Kumar (TGT), but thereafter the relieving was postponed and the deputation orders of the petitioner were ordered to be cancelled.
9. We are astounded with the reply submitted by the official .
respondents. We would have very well appreciated that the official respondents would have clearly and candidly conceded that it was on account of fault of the Principal of the school that the deputation orders of the petitioner as ADPEO had been cancelled.
Rather, they are trying to invent reasons, which are absolutely false, absurd and otherwise not sustainable in the eyes of law.
10. The State is the largest litigant today paying a huge expenditure on litigation and making it drain on public exchequer.
In any case, the Officers of the State should shoulder responsibility and muster courage to call a spade a spade rather than trying to litigate cantankerously, thereby chocking the dockets of this Court.
11. We have repeatedly impressed upon the State Government to implement the Litigation Policy. It is only then that we can expect, find a sense and sensibility in the litigation being instituted by the State and its agencies.
12. We are really at a complete loss why the State in the instant case will still try to justify its action when the same is totally unjustifiable ::: Downloaded on - 17/07/2023 20:33:08 :::CIS 7 apart from being unfair and illegal and otherwise designed to confer illegal benefits upon the private respondent.
13. The official respondents need to be reminded that the law does .
not compel the impossible in accordance with the maxim, 'lex non cogit ad impossibilia', Once, the petitioner was not relieved by the Principal within the stipulated time, we wonder how the respondents expected the petitioner to join within the stipulated time and further how the deputation orders of the petitioner could have been cancelled by the
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r to respondents and the private respondent posted in place of the petitioner.
The maxim of law 'impotentia excusat legem' is intimately connected with another maxim of law 'lex non cogit ad impossibilia'.
'Impotentia execusat legem' is that when there is a necessary or invincible disability to perform the mandatory part of the law that impotentia excuses. The law does not compel one to do that which one cannot possibly perform. "Where the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and has no remedy over it, there the law will in general excuse him".
15. In view of the aforesaid discussions and reasons stated above, we find merit in the instant petition and the same is accordingly allowed. The impugned order, whereby deputation of the petitioner is being cancelled and the subsequent order, whereby the private respondent has been ordered to be deputed in place of the petitioner, ::: Downloaded on - 17/07/2023 20:33:08 :::CIS 8 both dated 20.3.2023 (Annexures P-8 and P-9), respectively are ordered to be quashed and set aside.
16. Pending application(s), if any, shall also stand disposed of.
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( Tarlok Singh Chauhan )
Judge
[[ [
( Satyen Vaidya)
July 14, 2023 (KS) Judge
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