Himachal Pradesh High Court
Sapna vs State Of H.P.& Others on 16 June, 2016
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No.9234 of 2013 alongwith CWP No.72 of 2014 .
Reserved on : 30.5.2016
Date of Decision: 16.6.2016
CWP No.9234 of 2013
Sapna ......Petitioner.
of
Versus
State of H.P.& others .....Respondents.
rt
CWP No.72 of 2014
Ushma Kumari ......Petitioner.
Versus
State of H.P.& Anr. .....Respondents.
Coram:
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting? Yes.
For the petitioner : Mr. S.D Gill, Advocate for the Petitioner in CWP No. 9234 of 2013 Ms. Sunita Sharma, Advocate, for the petitioner in CWP No. 72 of 2014.
For the Respondents : Mr. Virender K. Verma, Addl. A.G. with Mr. Pushpinder Jaswal, Deputy Advocate General, for respondents No. 1 & 2 in CWP No.9234 of 2013 and for respondent No.1 in CWP No.72 of 2014.
Mr. Ashok Kumar Ld. ASGI alongwith Mr. Angrej Kapoor, Advocate for respondent No.3 in CWP No.9234 of 2013 and for respondent No.2 in CWP No.72 of 2014.
::: Downloaded on - 15/04/2017 20:36:12 :::HCHP 2Chander Bhusan Barowalia, Judge The present writ petitions are maintained by .
the petitioners for issuance of writ of mandamus to respondents No.1 to 3 in CWP No.9234 of 2013 and to respondents No.1 and 2 in CWP No.72 of 2013 and not to act upon order dated 05.10.2013 and to implement of order dated 23.4.2012 passed by this High Court and also not to act upon order dated 30.9.2013 and to treat these rt notifications as nonest and the said orders be quashed and set aside and to appoint the petitioners on the post of Trained Graduate Teacher.
2. As both the writ petitions are assailing the same notification issued by the Chief Executive Officer, Kausali, Cantonment Board, District Solan, H.P. Therefore, these petitions are required to be disposed of together.
3. In CWP No.9234 of 2013, the petitioner has averred that respondent No.3 had taken the interview again for the post over which the petitioner was working for four years after due selection by respondent No.3 (Chief Executive Officer, Cantonment Board, Kasauli)and had given the job to one Ms. Ushma ::: Downloaded on - 15/04/2017 20:36:12 :::HCHP 3 (petitioner in CWP No.72 of 2014), which was against the natural justice and the law laid down by the Hon'ble Apex Court as well as the judgment dated 14.7.2010, .
passed by this Court in CWP No.486 of 2009 directing that the contract employee can be replaced by the regular hand only and not by the other contract employee.
of Thereafter, the petitioner filed writ petition bearing No.8383 of 2011, which was decided on 23.4.2012 and rt this Court had directed that in future, if any post or vacancy will arise, the petitioner shall be given preference keeping in view her experience of four years in Cantonment Board Middle School, Kasauli, but now the respondents have advertised the post of T.G.T. (Arts) vide notification dated 5.10.2013 vide annexure P-10. It is further averred that the petitioner represented to the respondents with reference to order dated 23.4.2012, but the representation of the petitioner has not been decided by the respondent No.3. It has further been alleged that notification dated 5.10.2013 has been issued for the post of TGT which is reserved for OBC candidate and the other post of T.G.T.(Science) is also reserved for SC candidate. So, there are two posts advertised by the respondents for TGT, but these post have been kept ::: Downloaded on - 15/04/2017 20:36:12 :::HCHP 4 reserved, which is stated to be against the reservation Policy and also against the directions of Hon'ble Apex Court regarding reservation of post or vacancy, whereas .
in the present case by advertising both the posts for reserved candidates by the respondent amounts to hundred percent reservation, which is totally against the of law. It has been averred that there are only two posts of T.G.T. in the Cantonment Board, Middle School, Kasauli.
rt It has been alleged that the Cantonment School follows the Recruitment and Promotion Rules of the State Government. It is also submitted that as per the policy of the State Government, the posts notified by the respondents cannot be reserved at the ratio of hundred percent, as has been done in the present case. So, the interference of this Court is required in order to give justice to the petitioners.
4. Reply to the petition was filed by the respondents wherein it is stated that the respondents have strictly acted in accordance with Rules and direction contained in the judgment dated 17.6.2013, passed by this Court in LPA No.178 of 2010, vide which Cantonment Board, Kasauli, was permitted to fill up the regular posts in accordance with Rules and further ::: Downloaded on - 15/04/2017 20:36:12 :::HCHP 5 averred that the petitioner is habitual to file various writ petitions on the same and similar grounds. It has been submitted that vide order dated 18.6.2010, this .
Court had directed the replying- respondents to conduct interview for appointment to the post of TGT (Arts) subject to the result of the writ petition. Accordingly, the of petitioner was asked by the Cantonment Board, Kasauli, vide order dated 16.7.2010 to appear in the interview for rt the said post on 2.8.2010 for which a call letter was issued, which was received by the petitioner, but she did not appear in the interview on fixed date. Further averred that the appointment of the candidate, who was selected by the selection committee, was made. A specific direction had been given by this Court in the writ petition filed by the petitioner bearing CWP No.8383 of 2011, which was disposed of on 23.4.2012, to the effect that in the next available vacancy in the TGT (Arts) in the School, the petitioner shall be preferentially appointed. It is further submitted that the post of TGT (Arts) was filled on contract basis and Ms. Ushma Kumari was appointed at the place of the petitioner. It has further been averred that the petitioner has no legal right to claim the preference in terms of the order dated ::: Downloaded on - 15/04/2017 20:36:12 :::HCHP 6 23.4.2012, passed by this Court in CWP No.311 of 2010.
It has been mentioned that the reservation for TGT post has been made as per Roster maintained by the .
Cantonment Board and the Board follows the 13 Point post based roster for direct recruitment i.e. for cadre strength upto 13 posts. It has further been submitted of that there were following six posts of Teachers under Head G (1) (a)- School.
rt
1. TGT - 02 posts
2. Shastri - 01 post
3. D.M. - 01 post and
4. PET - 01 post It has also been alleged that as per roster, six posts have already been reserved and the 7th and 8th post of TGT become reserved for SC and OBC categories respectively.
Rule 5-B(1) of the Cantonment Fund Servants Rules, 1937 provides that no person aged below 18 years and more than 25 years shall be appointed to any post under a Board; provided that officer Commanding-in-Chief the Commander, may if he considers it necessary to do and subject to any direction issued by the Central Government in this behalf, relax the aforesaid age limits generally or specific Cantonments or with reference to individual cases to such extent, as he considers ::: Downloaded on - 15/04/2017 20:36:12 :::HCHP 7 appropriate. The respondents in their reply have also alleged that the averments made in the petition are false and frivolous and that the petitioner is in the habit of .
filing frivolous petition and wasting the precious time of the Court.
5. After bare perusal of the facts of the present of petition, it is observed that the petitioner had been replaced by appointing Ms. Ushma Kumari and her right rt has been ignored inspite of the fact that she has rendered service in the Institution and spent the precious period of her life, therefore, CWP No.8383 of 2011 maintained by the petitioners was disposed of on 23.4.2012 with the following order:-
Learned Assistant Solicitor General of India reports that there is no vacancy in the post of TGT (Arts) as of now. It is made clear that in the next available vacancy in the TGT (Arts) in the Cantonment Board, School, Kasauli, Ms. Sapna, writ petitioner in CWP No.8383 of 2011, shall be preferentially appointed. It is also made clear that in case Ms. Sapna applies for any new vacancy in the post of TGT (Arts) in other schools, her experience of four years in Cantonment Board, Kasauli shall also be counted, while making the selection.
Authenticated copy to the parties."
::: Downloaded on - 15/04/2017 20:36:12 :::HCHP 86. So far as the averments made in the second writ petition (CWP No.72 of 2014) are concerned, the petitioner is stated to have been appointed as TGT(Arts) .
since July, 2005 till 31st December, 2005 and her services were terminated. Again the petitioner was re-engaged as TGT(Arts) on 01.6.2011 on the basis of interview held on of 28.2.2011 and worked as such till the filing of the present petition. It has been further averred that the School has rt been affiliated to the H.P. Board of School Education and the petitioner is giving 100% result. It is further alleged that the respondent Board had issued an employment notice creating five new posts, out of which on one post, the petitioner is working. It has also been alleged that these vacancies had been created for the persons already working for the last 6 years. However, the respondents advertised fresh notice from open market after utilizing the services of the petitioner and similarly situated persons, who have already spent more than six years in the Institution.
7. In reply to the contents of the writ petition, the respondents denied all the facts mentioned in the writ petition and averred that they have acted in accordance with the Rules and as per the directions ::: Downloaded on - 15/04/2017 20:36:12 :::HCHP 9 contained in judgment dated 17.6.2013 passed by this Court in LPA No.178 of 2010 vide which the Cantonment Board, Kasauli was permitted to fill up the regular posts .
in accordance with the Rules. The respondents have denied that the petitioner was re-engaged and again alleged that the petitioner was engaged as a fresh of candidate.
8. From the above facts, it is clear that the rt petitioner Ms. Ushma Kumari was firstly engaged in the School as TGT(Arts) by the respondent/Cantonment Board from July, 2005 till December, 2005 for six months and thereafter, her services were terminated and the petitioner Ms. Sapna in CWP No.9234 of 2013, was engaged on the same post on 20.3.2006 and she continued as such till 31.12.2009. Thereafter, again the respondents engaged Ushma Kumari, petitioner in CWP No.72 of 2014 on 01.6.2011 and she is continuing. Now, the respondents have advertised the post of TGT(Arts).
Admittedly, both the petitioners belong to un-reserved category.
9. In the writ petition maintained by Ms. Sapna earlier i.e. CWP No.8383/2012, this Court had ordered that in the next available vacancy for the TGT(Arts) in ::: Downloaded on - 15/04/2017 20:36:12 :::HCHP 10 the Cantonment Board Middle School, Kasauli. Ms. Sapna shall be preferably appointed. At that time, the petitioner Ushma Kumari was working in the School .
and that is why the respondent has brought to the notice of the Court that there is no vacancy of TGT(Arts) in the School. It is worthwhile to note here that in CWP of No.4615 of 2013-B, dated 24.9.2013, this Court in Writ Petition filed by the petitioner Rakesh Kashyap & others rt has also observed as under:
"We fail to understand as to how the policy of the State can bind the respondents, who are governed by the Central Legislation. Respondents have relied on the provisions of Rule 5B (1) and 5B (2) of the Cantonment Fund Servants Rules, 1937. Sub-Rule (2) postulates that no person, aged below 18 years and more than 25 years, shall be appointed to any post under a Board. Respondents are bound by the said stipulation. Proviso to the said sub-rule, however, bestows Authority in the Central Government to relax the age limits. The communication, produced by learned Assistant Solicitor General of India, issued under the signature of Chief Executive Officer, Kasauli, addressed to him, is dated 16th September, 2013, in no uncertain terms mention that if the petitioners were to apply for relaxation of age, that proposal will be considered in accordance with law before finalization of the selection ::: Downloaded on - 15/04/2017 20:36:12 :::HCHP 11 process. The petitioners, if so advised, are free to apply for relaxation of age limit specified in Rule 5B (2) of the Rules of 1937 and if such representation is made, we have no manner of .
doubt that the appropriate Authority will consider the same expeditiously and if the relaxation is granted, petitioners can participate in the ensuing selection process. Besides this, nothing more can be done in the present petition.
of The same is disposed of accordingly."
10. This Hon'ble Court in LPA No.178 of 2010 rt has passed the following order:
"We have heard all these matters together as the same involve similar issues.
2. The leading appeal is directed against the judgment of the learned Single Judge of this Court, dated 14th July, 2010, in CWP No. 486 of 2009. The learned Single Judge allowed the writ petition filed by the respondents and issued following directions:
"In view of the above stated position, writ petition is allowed and respondent No. 2 is directed to continue with the services of the petitioners, until teachers on regular basis, that is to say not on contract basis, are appointed in their place. This order, however, does not mean that the petitioners cannot be removed or they will be entitled for renewal of contract, even if they commit any act of misconduct or their performance is not satisfactory."::: Downloaded on - 15/04/2017 20:36:12 :::HCHP 12
3. Counsel for the Union of India points out that the Department in respect of the School at Kasauli has since decided to create five regular posts, which will have to be filled up in accordance with .
law.
4. In view of this statement, nothing more requires to be done in the leading appeal, except to observe that the appellant would be free to proceed with the selection process for filling up of the newly created regular posts in Kasuali School. So long as the selection process is not completed and appointment orders issued to fill up the rt regular posts, the appellant would be bound by the direction contained in the impugned decision extracted hitherto.
5. On this basis, the appeal is disposed of.
6. As regards the companion writ petitions, the same pertain to Schools other than Kasauli School. The grievance of the petitioner is identical to that of the contract teachers, who were petitioners in CWP No. 486 of 2009. Therefore, we are inclined to dispose of these writ petitions on the same terms as directed by the learned Single Judge vide order, dated 14th July, 2010, in particular, para 5 thereof.
7. Counsel for the petitioners would submit that even in respect of the Schools referred to in the respective writ petitions, the department must create regular posts and make appointment after following selection process in accordance with law. That is a matter to be considered by the department.
::: Downloaded on - 15/04/2017 20:36:12 :::HCHP 138. We are not examining the correctness of the submission made by the learned Assistant Solicitor General of India that insofar as Schools referred to in the writ petitions, the possibility of .
creating regular posts may be impractical and perhaps not possible. As aforesaid, it is for the department to take a call on that issue, but so long as the said Schools continue to appoint teachers on contract basis, the direction contained in the of order, dated 14th July, 2010, in CWP No. 486 of 2009, will squarely apply even to these cases.
rt
9. Counsel for the petitioners submits that as per the contract executed between the parties, while filling up the regular vacancies, the petitioners, who have been appointed on contract basis, can also be considered, subject to eligibility. It is not necessary to dilate on this aspect any further having observed in the earlier part of this judgment that the regular posts to be created in the stated Schools, if any, will have to be filled in accordance with law.
10. The writ petitions are disposed of accordingly."
11. In C.W.P. No.72 of 2014, Ms. Ushma Kumari has averred that the State Government is regularizing the Teachers after six years of service and those Rules are applicable to the respondents-Board also but the respondent/Board is not regularizing the services of the ::: Downloaded on - 15/04/2017 20:36:12 :::HCHP 14 petitioner. It is the case of Ms Ushma Kumari that Board has arbitrarily fixed the age from 18 years to 25 years in order to oust the petitioner. It is further submitted that .
the respondent Board has arbitrarily reserved the post of TGT(Arts) for OBC category in order to oust the petitioner.
The case of the petitioner is that since the petitioner has of already completed three years, she is entitled for regularization after six years. In reply thereto, the rt respondents have categorically stated that the posts are being filled up on regular basis and the Hon'ble Court has already passed the order in CWP No.4615 of 2013 on the petition filed by the other similarly situated teachers/petitioners that in case the representations are made by the petitioners before the appropriate Authority with regard to the relaxation of the age, the petitioner can also participate in the selection process subject to the condition that if relaxation is granted. In reply it has also been mentioned that the 7th and 8th posts shall go to reserved categories of SC and OBC.
12. The respondents have not given the detail of the posts in their reply but it can be inferred from the reply ::: Downloaded on - 15/04/2017 20:36:12 :::HCHP 15 that they had taken into consideration all the posts including the TGT(Arts) posts as one cadre. This they might have taken either in order to oust the petitioners .
from the competition or to implement the 13 Point Roster in a manner that the representation is given to all the categories in the School as per the Roster. While perusing of Annexure-R2, this Court finds that Note No.3 has not been followed by the respondents, same reads as under:-
rt "3. The relevant rotation by the indicated reserved category could be skipped over if it leads to more than 50% representation of reserved category."
13. There is nothing on record to suggest that the respondents have taken Note 3 into consideration while advertising the posts.
14. It is clear that respondent No.3 (Cantonment Board), recruited the petitioner Ms Sapna in the year 2006, and allowed her to continue for more than four years and thereafter without assigning any reason and at their own will terminated the services of the petitioner Ms Sapna and appointed petitioner Ms Upasna Kumari (petitioner in CWP No.72 of 2014) and allowed her to continue again for more than three years. Though the ::: Downloaded on - 15/04/2017 20:36:12 :::HCHP 16 petitioner has placed on record the documents of the respondent as Annexure-P10 (in CWP No.72 of 2014) wherein under the R.T.I. Act, the respondent has given the .
information on the following points:
(a) Which roster, Cantonment Board following in filling teaching post in Cantonment Schools/Central / Concerned State?.
of In reply it is informed that 13 point roster applicable to small cadre posts upto 13 posts approved by Central Govt. is being followed by rt Cantt. Board for filling teaching posts in Cantt. Board School, Kasauli.
(b) Is separate roster for each grade/group/cadre will be followed by Cantonment Boards?
In reply the Cantonment Board has informed that separate roster is being followed for each cadre for 2 or more posts in the cadre.
15. It means that even the respondents have stated that separate roster is being followed for each cadre for two or more post in that cadre.
16. From the above, it is clear that the action of the respondents in advertising the posts nowhere shows that the respondents have considered Note 3 as contained in Annexure - R2. However, the answer given by the ::: Downloaded on - 15/04/2017 20:36:12 :::HCHP 17 respondent vide their letter dated 28th February, 2014 in the RTI application of Amit Gupta, which is reproduced above also depicts that the respondents still require to .
apply their minds before issuing any advertisement as the advertisement seems to have been issued after taking all the posts in one cadre, which is against the information as of supplied by the respondents under RTI application, copy of which has been enclosed as Annexure P-10 in the rt petition of Ushma Kumari bearing CWP No.72 of 2014.
17. Smt. Ushma has also worked as TGT for the last three years after the termination of the services of Sapna Kumari by the respondents and she has also acquired same right because of her continuance on the post. The respondents are required to advertise the posts after taking into consideration Note No.3 of Annexure R-2 and also stand as depicted with regard to the roster and cadre in Annexure P-10 the information supplied to one Amit Gupta under the RTI Act. The respondents are required to consider the relaxation of age of the petitioners when regular appointments are to be made.
18. The net result of the above discussion is that both the writ petitions are required to be disposed of with a direction to the respondents to advertise the post (s) and ::: Downloaded on - 15/04/2017 20:36:12 :::HCHP 18 make selection after taking into consideration the above stated position. It is ordered that the respondents shall re-advertise the post (s) of TGT(Arts) and make selection .
after taking into consideration the concise decision with regard to the roster and reservation and directions of this Court.
of
19. It is ordered that while making appointment to the posts of TGT(Arts), the respondents should comply rt with the orders passed by the Hon'ble Division Bench of this Court in CWP No.8383 of 2011, dated 23.4.2012, as well as the order passed by the Hon'ble Division Bench of this Court in LPA No.178 of 2010 then only fill up the regular posts after adhering to their stand as found mention in Note No.3 of the Roster and follow the information, as supplied under the Right to Information Act.
20. With the aforesaid observations/directions, the writ petitions are disposed of accordingly. No order as to costs.
(Chander Bhusan Barowalia),
16th June 2015 Judge
(M. gandhi)
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