Himachal Pradesh High Court
Jamna @ Yashodha Devi vs State Of H.P. & Others on 26 July, 2019
Bench: Dharam Chand Chaudhary, Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA LPA No.91 of 2016 Reserved on: 16.07.2019 Decided on: 26.7.2019 .
Jamna @ Yashodha Devi ....Appellant/Petitioner.
Versus State of H.P. & others ...... Respondents.
................................................................................................ Coram The Hon'ble Mr. Justice Dharam Chand Chaudhary, (J) The Hon'ble Ms. Justice Jyotsna Rewal Dua, (J).
Whether approved for reporting?1 Yes For the appellant: Mr. T.S Chauhan, for the appellant.
For the respondents: Mr. Vikas Rathore & Mr. Narinder Guleria, Addl. A.G.s with Mr. J.S. Guleria, Dy. A.G. for respondents No.1 to 4.
Ms. Devyani Sharma, Advocate, for respondent No.5.
Jyotsna Rewal Dua,(J) Feeling aggrieved against the judgment passed by learned Single Judge in CWP No.2303 of 2016, dated 10.05.2016, whereby merit-list for the post of Part Time Water Carrier in Government Senior Secondary School, Namhol, District Bilaspur, H.P, was ordered to be re-drawn after setting aside the appointment of respondent No.5, the writ petitioner has preferred 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 29/09/2019 01:20:11 :::HCHP 2this appeal. Parties are being referred to hereinafter as they were in the writ petition.
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2(i). Respondents-State, invited the applications for filling in a post of Part Time Water Carrier in Government Senior Secondary School, Namhol, District Bilaspur, H.P. The petitioner as well as respondent No.5, alongwith various other candidates applied for this post. The interviews were held on 14.02.2012. The result was declared. The score card of the petitioner and respondent No.5 was reflected as under:-
Sr. No. Name & Conc Distance from Home (as per Land Category Whethe Interv Total Remarks address erne patwari Cert Dono r iew/ d r or belong viva Panc Not to un-
hayat employ
ed
family
Max. Marks= 10 MM: MM:03 MM:05 MM: T:30
05 07
Yes/ 1.5 KM 2 3 4 5 SC ST OBC BP
No KM KM KM K L
M
Bifurcation 10 8 06 04 02 5 03 03 03 03 05 07 30
of marks
2. Yasodha Yes 10 - - - - - - - - - 05 02 17 BPL
Writ Devi @ certificate
petitioner Jamna dated
Devi W/o 16.2.11 not
Late Sh. valid
Gangi (Handicapp
Ram Vill ed) 92%
Khalota,
P.P.
Namhol,
Tehsil
Sadar,
District,
BLP (H.P.)
7. Prem Lata Yes 10 - - - - - - - - 03 05 04 22 Pry (DOB)
respondent w/o Rajesh 9.2.79
No.5 Kumar V.
Sosan P/O
Namhol
Tehsil
Sadar
District
Bilaspur
(H.P.)
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Respondent No.5, having scored a total of 22 marks as against the petitioner's total of 17 marks was selected as Part .
Time Water Carrier. The BPL certificate in favour of writ petitioner was not considered as its validity period of six months had lapsed on the date of interview. The appointment letter was therefore issued in favour of respondent No.5 on 12.04.2012, vide annexure R-5/G, pursuant to which respondent No.5 is working as Part Time Water Carrier.
Pleadings of parties:
2(ii). The petitioner feeling aggrieved against the selection and appointment of respondent No.5, challenged the same by way of writ petition. The challenge was primarily on following grounds:-
2(ii)(a) Petitioner is a widow and has two children. She is also suffering from 90% hearing disability. She belongs to below poverty line (BPL) family. She has no source of income, therefore, she deserved to be appointed as Part Time Water Carrier, more so, when one of the object of the recruiting Part Time Water Carrier is to provide an opportunity for un-employed youth to work in Government School of their villages and earn decent honorarium.::: Downloaded on - 29/09/2019 01:20:11 :::HCHP 4
2(ii)(b) Respondent No.5, had falsely projected herself as belonging to BPL family. In fact, respondent No.5 is owner of a Maruti car and therefore she was .
not eligible for issuance of BPL certificate, in terms of the guidelines framed for issuance of BPL certificate, which prohibited issuance of the said certificate in favour of those, who owned four wheeler. Respondent No.5 by concealing the fact of her owning four wheeler, has secured the appointment as Part Time Water Carrier. The appointment of respondent No.5 is the result of fraud played upon her and therefore, the appointment needs to be quashed.
2(ii)(c) The father in-law of respondent No.5, namely, Sh. Vijay Ram is an ex-serviceman, whereafter he was re-employed by the State of Himachal Pradesh. After his superannuation, he was getting pension. The family of respondent No.5 is joint. Income of family of respondent No.5 is much more, hence, respondent No.5 is not eligible to be appointed as Part Time Water Carrier.
2(ii)(d) Respondent No.5's family income is much more as compared to the petitioner's. Respondent No.5 and her family is well off. Her husband is a ::: Downloaded on - 29/09/2019 01:20:11 :::HCHP 5 driver, earning handsome money by driving the vehicles. Therefore, it is not respondent No.5, but the petitioner who deserved to be appointed as Part .
Time Water Carrier.
3. Respondent No.5 filed her reply to the writ petition controverting the allegations levelled in the writ petition:-
3(i) Respondent No.5 denied that her husband is a driver.
3(ii) Allegations of a Maruti car in the name of respondent No.5 was not denied. However, purchase of four wheeler was sought to be justified, on the ground that father in-law of respondent No.5 aged around 66 years, suffers from joint pains, because of which, he frequently visits hospitals. It is her father in-law, who purchased the afore vehicle, out of his money, but in the name of respondent No.5.
3(iii) Respondent No.5 asserted that her family consisting of herself, her husband and children, are living separately from her father-in-law and her father-in-law has not provided anything to their family.
3(iv) Subsequent to filing of the writ petition, the inquiry in respect of income of respondent No.5 was carried out and total income of respondent No.5 ::: Downloaded on - 29/09/2019 01:20:11 :::HCHP 6 from all sources was found to be Rs.13,500/- and therefore, she would still fall in BPL family.
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4. Reply to the writ petition was filed by respondent No.4/Sub Divisional Officer-cum-Chairman of the Selection Committee, to the effect, that during inquiry, it has come out that respondent No.5, was owner of Maruti car, bearing Registration No.HP-25-6800, purchased on 24.01.2011 and that respondent No.5 has played fraud by concealing this fact, during selection process for the post of Part Time Water Carrier. Father in-law of respondent No.5, is not residing with her family as per BPL certificate. The official respondents, pursuant to detection of fraud played by respondent No.5, have now ordered for deletion of her name from BPL list. It was stated in the reply that income certificate of Rs.13,500/- was correctly issued in favour of respondent No.5.
Judgment in writ petition:
5. After going through the pleadings and the documents adduced by the parties, learned Single Judge, quashed the result of selection process so undertaken and also set aside the appointment of respondent No.5. Even though the appointment of respondent No.5 was quashed and set aside and directions were given to revise the merit list on the basis of same selection process after deducting (3) three marks given to respondent No.5 as belonging to the Below Poverty Line; yet the mark-sheet (table ::: Downloaded on - 29/09/2019 01:20:11 :::HCHP 7 extracted earlier), had made it evident that compliance of this direction would have again resulted in the appointment of respondent No.5, as after deduction of (3) three marks, she .
would still stand at 19 marks (22-3 = 19), therefore, she would still emerge at Serial No.1 of the merit list. Whereas, petitioner's total marks as reflected in the table extracted above are 17.
Further, direction in the impugned judgment was to give appointment to the candidate as per re-drawn merit-list.
6. Feeling aggrieved against the judgment passed by learned Single Judge, the petitioner has preferred the instant appeal.
6(i). We have heard learned counsel for parties, carefully gone through the pleadings, documents as well as the records of the selection process in question.
6(ii). In compliance to the directions issued by the learned Single Judge, the merit-list has been re-drawn by deducting (3) three marks earlier given to respondent No.5 under the heading 'as belonging to BPL category'. Respondent No.5, however, still standing at Serial No.1 of the revised merit-list with 19 marks has again been appointed as Part Time Water Carrier.
6(iii) In the present appeal, contention of learned counsel for writ petitioner/appellant is that once fraud played upon by respondent No.5, in obtaining BPL certificate on the basis of ::: Downloaded on - 29/09/2019 01:20:11 :::HCHP 8 which, she participated in the selection process, had come to knowledge, then the only legal option available was to cancel the entire selection process and to order fresh selection process.
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We find force in the contention of the writ petitioner. The stand of respondent No.5 is that no fraud was practiced by her; the four wheeler in question was not purchased by her, but by her father-in-law, out of his money. Though we not going to the factual aspects, yet it is surprising to note that respondent No.5 had stated before inquiry committee (Annexure R-4/3) that her father-in-law lives separately from her nuclear family consisting her husband & children and that he (father-in-law) does not give them anything; yet the case projected by her is that this very father-in-law (who allegedly does not give them anything), purchased a four wheeler in name of his daughter-in-law (Respondent No.5) for purpose of going to hospitals on account of his joint pains. In this regard, one cannot loose sight of the fact of allegation levelled by writ petitioner that husband of respondent No.5 is a driver.
6(iv) Be that as it may. A fact that can not be lost sight of is that respondent No.5 was recorded owner of the four wheeler.
The vehicle was in her name prior to her getting the BPL certificate. BPL certificate was issued to her, as she had concealed the fact of her owning the vehicle. This BPL certificate was annexed by her at the time of seeking employment. Mere ::: Downloaded on - 29/09/2019 01:20:11 :::HCHP 9 deductions of (3) three marks, given to her, as belonging to BPL would not be in furtherance of either justice or equity or good conscious. A person who secures appointment by concealing .
information and by giving wrong information eventually plays fraud. The reply filed by the State has even otherwise admitted that respondent No.5 has obtained the appointment by practicing fraud. In this regard, it would be profitable to refer to the judgment passed in (2017) 8 Supreme Court Cases 670, titled Chairman and Managing Director, Food Corporation of India and others vs. Jagdish Balaram of India and others, wherein it was held as under:-
"69.3. The decision of this Court in R. Vishwanatha Pillai and in Dattatray which were rendered by Benches of three judges laid down the principle of law that where a benefit is secured by an individual such as an appointment to a post or admission to an educational institution on the basis that the candidate belongs to a reserved category for which the benefit is reserved, the invalidation of the caste or tribe claim upon verification would result in the appointment or, as the case may be, the admission being rendered void or non est."
In another judgment of Hon'ble Apex Court in JT 2018 (11) Supreme Court Cases 540, titled The State of Bihar and others vs. Kirti Narayan Prasad, it was held as under:-
"17. In the instant cases the writ petitioners have filed the petitions before the High Court with a specific prayer to regularize their service and to set aside the order of termination of their services. They have also challenged the report submitted by the State Committee. The real controversy is whether the writ petitioners were legally and validly appointed. The finding of the State Committee is that many writ petitioners had secured appointment by producing fake or forged appointment letter or had been ::: Downloaded on - 29/09/2019 01:20:11 :::HCHP 10 inducted in Government service surreptitiously by concerned Civil Surgeon-cum-Chief Medical Officer by issuing a posting order. The writ petitioners are the beneficiaries of illegal orders made by the Civil Surgeon-cum-Chief Medical officer. They were given .
notice to establish the genuineness of their appointment and to show cause. None of them could establish the genuineness or legality of their appointment before the State Committee. The State Committee on appreciation of the materials on record has opined that their appointment was illegal and void ab initio. We do not find any ground to disagree with the finding of the State Committee. In the circumstances, the question of regularization of their services by invoking para 53 of the judgment in Umadevi (supra) does not arise. Since the appointment of the petitioners is ab initio void, they cannot be said to be the civil servants of the State. Therefore, holding disciplinary proceedings envisaged by Article 311 of the Constitution or under any other disciplinary rules shall not arise."
7. In view of above, the present appeal is allowed. The selection and appointment of respondent No.5 as Part Time Water Carrier in Government Senior Secondary School, Namhol, District Bilaspur, H.P, is quashed and set aside. The impugned judgment passed by learned Single Judge on 03.05.2016 is also quashed and set aside. The entire selection process for filling in the post of Part Time Water Carrier in question is also quashed and set aside. Respondents No.1 to 4 are directed to conduct the selection process afresh for appointment to the post of Part Time Water Carrier in Government Senior Secondary School, Namhol, District Bilaspur, H.P. and to take the same to its logical conclusion within a period of three months from today. All the candidates who had earlier appeared in the interview for the post in question including respondent No.5 (if she is otherwise found ::: Downloaded on - 29/09/2019 01:20:11 :::HCHP 11 eligible) would also be at liberty to apply for the post afresh.
Appeal stands disposed of, so also, the pending application(s), if any.
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(Dharam Chand Chaudhary), Judge (Jyotsna Rewal Dua), Judge 26.07.2019 (rohit) r to ::: Downloaded on - 29/09/2019 01:20:11 :::HCHP