Himachal Pradesh High Court
Between vs State Of Himachal Pradesh on 30 June, 2022
Bench: Sabina, Satyen Vaidya
REPORTABLE/NON-REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 30th DAY OF JUNE, 2022
BEFORE
.
HON'BLE MRS. JUSTICE SABINA
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
CIVIL WRIT PETITION No. 4197 OF 2022
Between:-
SMT. KHIMI DEVI W/O SH. SARV DAYAL,
AGED 32 YEARS, R/O VILLAGE BHADEULI,
POST OFFICE SACHANI, TEHSIL BHUNTER,
DISTRICT KULLU, HIMACHAL PRADESH.
......PETITIONER
(BY MR. ONKAR JAIRATH, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH ITS SECRETARY
(EDUCATION), TO THE GOVT. OF
H.P. SHIMLA.
2. THE DIRECTOR OF ELEMENTARY EDUCATION,
LALPANI, SHIMLA, HIMACHAL PRADESH.
3. THE SUB DIVISIONAL OFFICER (CIVIL)
BHUNTER, DISTRICT KULLU, H.P.-CUM-
CHAIRMAN, PART TIME MULTI TASK
WORKER SELECTION COMMITTEE.
4. SMT. LEELA DEVI, W/O LATE SH. SHIBU
RAM, R/O VILLAGE BHADEULI, POST
OFFICE SACHANI, TEHSIL BHUNTER,
DISTRICT KULLU, HIMACHAL PRADESH.
...RESPONDENTS
(BY MR. ASHWANI K. SHARMA, ADDITIONAL
ADVOCATE GENERAL, FOR R-1 TO R-3).
::: Downloaded on - 01/07/2022 20:02:44 :::CIS
-2-
This petition coming on for admission before notice
this day, Hon'ble Mr. Justice Satyen Vaidya, passed the
.
following:
ORDER
Heard.
2. By way of instant petition, petitioner has prayed for the grant of following reliefs:
(A) That a writ in the nature of Certiorari or any other r appropriate writ, order or direction may kindly be issued quashing and setting aside the impugned clarification dated 24.05.2022 contained in Annexure P-2, whereby, the term "family" has been defined contrary to the spirit of the parent policy.
(B) That a writ in the nature of Mandamus or any other appropriate, writ, order or direction may kindly be issued directing the respondents to award 8 marks to the petitioner under the parameter, "Candidates whose families have donated land for school" and consequently select and appoint the petitioner as Part Time Multi Task Worker.
(C) That a writ in the nature of Certiorari or any other appropriate writ, order or direction may kindly be issued and setting aside the appointment of the private respondent on the post of Part Time Multi ::: Downloaded on - 01/07/2022 20:02:44 :::CIS -3- Task Worker."
3. The case of petitioner is that the Government of Himachal Pradesh has framed and notified a policy "Part Time .
Multi Task Worker Policy, 2020 (for short "Policy") for the appointment of Part Time Multi Task Workers in the Government schools of Himachal Pradesh under Higher & Elementary Education Department. As per Clause 7 (iv) of the Policy, 8 marks are allocated for candidates whose families have donated land for school.
4. The petitioner applied for the post of Part Time Multi Task Worker in response to public notice dated 25.04.2022, inviting applications from eligible candidates for the post of Part Time Multi Task Worker lying vacant in Government Primary School, Bhadeuli, District Kullu, H.P. Petitioner was called for personal interview and physical verification of documents and she accordingly appeared for the said purpose before the Sub Divisional Magistrate on 23.06.2022. However, petitioner remained unsuccessful and respondent No.4 was selected.
5. The grievance of the petitioner is that rejection of her candidature is arbitrary and illegal. The father-in-law of petitioner was a donor of land for the school and she was ::: Downloaded on - 01/07/2022 20:02:44 :::CIS -4- entitled for 8 marks being member of the family of her father-in-law.
6. Sh. Onkar Jairath, learned counsel for the .
petitioner, at the very outset contended that the clarification issued by respondent No.2 on 24.05.2022 whereby the term "family" for the purposes of Clause 7 (iv) of the Policy has been restricted to mean only "Land Donor or His/Her Spouse and their Children" is bad in law inasmuch as the same amounts to overriding the provision of a Policy framed under the provisions of Constitution of India. Such contention on behalf of petitioner is not sustainable on the basis of material on record. The notification, Annexure P-1, notifying the Policy does not specify as to under which provision of law the Policy has been framed. The nature of employment contemplated under the Policy is part time, that too, on contractual basis under the School Management Committees. The Part Time Multi Task Worker is entitled to consolidated honorarium of Rs.5625/- per month for ten months in an academic year. It has specifically been provided in Clause 16 of the Policy that the persons appointed as Part Time Multi Task Worker under the Scheme, will have no right, claim for regularization/ absorption/appointment as regular Class-IV employees of the ::: Downloaded on - 01/07/2022 20:02:44 :::CIS -5- State Government. In these circumstances, the post of Part Time Multi Task Worker cannot be said to be a civil post. Thus, the Policy cannot be said to have any semblance of .
rules that can be framed under proviso to Article 309 of the Constitution of India. The Policy is thus an administrative measure of temporary nature. Therefore, the clarification dated 24.05.2022 issued by respondent No.2 cannot be said to be bad in law especially when the State Government has acted upon it.
7. Clause 7 (iv) of the Policy only provided for grant of 8 marks to those candidates whose families have donated land for school. The term "families" as noticed above, had been used in general term. No details were provided as to who would be included in term "families". In view of this, the clarification dated 24.05.2022, is only clarificatory in nature.
8. Learned counsel for the petitioner further contended that the petitioner as per Family Register maintained under the Himachal Pradesh Panchayati Raj Act, is member of the family, which had donated land for the school. Reliance has been placed on Annexure P-5. The clarification dated 24.05.2022 in respect of Clause 7 (iv) of the Policy has been alleged to be bad in law being in violation of ::: Downloaded on - 01/07/2022 20:02:44 :::CIS -6- the definition of "family" provided in Section 2 (13-B) of the Himachal Pradesh Panchayati Raj Act, 1994.
9. The Policy to appoint the Part Time Multi Task .
Worker has no relation to the provisions of the Himachal Pradesh Panchayati Raj Act. The Policy has not been framed keeping in view the aims and objectives of the said Act. Thus, the contention raised on behalf of petitioner that clarification dated 24.5.2022 violates against definition of "family" under the Himachal Pradesh Panchayati Raj Act, is wholly misconceived.
10. Section 2 (13-B) of the Himachal Pradesh Panchayati Raj Act reads as under:
"2(13-B)"family" means a joint family of all persons descended from common ancestor including adoption, who live, worship and mess together permanently as shown in the parivar register of the Gram Panchayat."
11. The purpose of defining "family" in aforesaid manner in the Himachal Pradesh Panchayati Raj Act is to achieve the objectives of the said Act. Whereas, the Policy has altogether different objectives viz.:
a) To provide Part Time Multi Task Worker in all the schools in Himachal Pradesh through ::: Downloaded on - 01/07/2022 20:02:44 :::CIS -7- creation of new posts.
b) To encourage decentralization of powers by empowering the SMCs in the effective running of Govt. Schools.
.
c) To provide an opportunity for the eligible unemployed candidates to earn honorarium at local level."
12. Thus, the "family" as defined in the Policy cannot be said to be bad in law merely because it is different than the definition of "family" in the Himachal Pradesh Panchayati Raj Act.
13. In view of above discussion, the petitioner has failed to make out any case for interference by this Court in exercise of jurisdiction under Article 226 of the Constitution of India.
14. The petition is accordingly disposed of in the aforesaid terms, so also the pending application(s), if any.
(Sabina)
Judge
30th June, 2022. (Satyen Vaidya)
(GR) Judge
::: Downloaded on - 01/07/2022 20:02:44 :::CIS