Himachal Pradesh High Court
Sudama Nand vs State Of H.P. And Others on 6 March, 2020
Author: Jyotsna Rewal Dua
Bench: L. Narayana Swamy, Jyotsna Rewal Dua
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HIGH COURT OF HIMACHAL PRADESH, SHIMLA
LPA No. 40 of 2019
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Judgment reserved on 28.02.2020
Date of decision: 06.03.2020
Sudama Nand ...Appellant
Versus
State of H.P. and others ...Respondents
__________________________________________________________
Coram:
The Hon'ble Mr. Justice L. Narayana Swamy, Chief Justice
The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge
Whether approved for reporting1 :
For the Petitioner: Mr. R.S. Chandel, Advocate.
For the Respondents: Mr. Ashok Sharma, Advocate General, with Mr.
J.K. Verma, Mr. Adarsh Sharma, Ms. Ritta
Goswami and Mr. Nand Lal Thakur, Additional
Advocates General, for respondents No. 1 to 5.
Mr.Bimal Gupta, Senior Advocate with Ms.
Kusum Chaudhary, for respondent No. 8.
__________________________________________________
Jyotsna Rewal Dua,J.
Learned Single Judge allowed the writ petition filed by respondent No. 8 (Satpal Singh) and held that five marks were wrongly awarded to the appellant (Sudama Nand) in the selection process undertaken for appointment of part time water carrier and accordingly, set aside his appointment as such with a further direction to the official 1 Whether Reporters of local newspaper are permitted to see the judgment ?
::: Downloaded on - 06/03/2020 20:27:26 :::HCHP 2respondents to re-draw the merit list of the candidates who appeared in the interview in accordance with the recruitment Scheme. Aggrieved, instant appeal has been preferred by Sudama Nand.
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2. For convenience, parties hereinafter are being referred to as they were before the learned Single Judge.
Facts may be noticed hereinafter :-
(i) Selection process was undertaken for appointment to the post of part time water carrier in Government Primary School, Khood, Post Office Jarag, Tehsil Renuka Ji, District Sirmour, H.P. Writ petitioner (Satpal) and respondent No. 8 therein (Sudama Nand) participated in the selection process alongwith ten other candidates. Both were awarded five marks each for donating land for school. Result was pronounced on 30.01.2012. Respondent No. 8 was declared selected and appointed as such.
(ii) The petitioner, after unsuccessfully representing to the authorities against the selection of respondent No.8, preferred CWP No. 663 of 2012 on 03.02.2012 for quashing the selection of respondent No. 8 as part time water carrier in Government Primary School, Khood. The challenge was mainly on the ground that neither respondent No. 8 nor his family had donated any land for Government Primary School Khood, therefore, he was not entitled for five marks awarded to him on account of land donation for the school.
::: Downloaded on - 06/03/2020 20:27:26 :::HCHP 3(iii) Respondent No. 8 had also filed his own separate writ petition bearing CWP No. 1262 of 2017, inter alia, against award of five marks to the petitioner for donation of land for Government Primary .
School, Khood. CWP No. 1262 of 2017 was withdrawn by respondent No. 8 (writ petitioner therein) vide order dated 18.04.2018 with liberty to raise questions before the competent authority/competent Court of law.
The writ petition was dismissed as withdrawn with liberty, as prayed for, subject to all just exceptions.
(iv) Learned Single Judge allowed CWP No. 663 of 2012 vide judgment dated 06.05.2019, which is impugned in the instant appeal.
3. We have heard learned counsel for the parties and gone through the record.
4. The dispute pertains to eligibility for award of five marks under the heading 'land donated for school' in terms of the policy framed on 25.07.2011 by the State of Himachal Pradesh for appointment of part time water carrier in schools of Education department. The policy dated 25.07.2011 has been framed with one of the objectives being "providing an opportunity for the unemployed youths of Himachal Pradesh to work in Government Schools of their villages located in or adjacent to jurisdiction of Gram Panchayats/Urban local bodies and earn a decent honourarium as well". The eligibility criteria provided in para 3 of the Policy is extracted hereinafter :-
::: Downloaded on - 06/03/2020 20:27:26 :::HCHP 4"3. ELIGIBILITY CRITERIA:-
Only such candidates will be eligible to apply for a post of Part Time Water Carrier, who are :-
- Citizen of India.
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- Of a sound mind.
- Have never been involved in any act of criminal
nature.
- Permanent resident of the village/Gram
Panchayat/Urban local body of the area, in which the school is located, where the vacancy of part time water carrier exists..........."
The selection criteria, provided under the Policy, stipulates in para 7(iv) of the Policy which reads as follows:-
"7 INTERVIEW AND MARKS
(i) ..................
(ii)..................
(iii)..................
(iv) The selection will be purely specific to a particular school only."
and at serial No. 7(2) whereof, five marks have been allocated for the candidates, whose families have donated land for school.
(ii) Respondent No. 8 has been granted five marks on the strength of land bearing Khasra No. 485, measuring 01-09 bighas situated in mauza Khood, donated by his father in favour of Education department on 26.12.2011. However, it is an admitted case of the parties that the Government Primary School Khood, for which the post of part time water carrier was advertised, has not been constructed over the land donated by the father of respondent No. 8. In fact, on the land donated by respondent No. 8, no school till date has been constructed by the Education Department. In this regard, learned Deputy Advocate General had placed a communication, dated 01.05.2019 received from the ::: Downloaded on - 06/03/2020 20:27:26 :::HCHP 5 Directorate of Elementary Education, on record of writ petition, the relevant extracts whereof are as under:-
".................Further, it is submitted that the father of .
private respondent No. 8 has executed a gift deed No. 219/11 on dated 26.12.2011 comprised in Khasra No. 485 measuring 1 bigha 19 biswa for construction of Govt. Primary School, Sachci Tirmalthi, situated at Mouza Khood, but the school has not been constructed on that land till date:' Thus, though the land has been donated by the father of respondent No. 8 in Mauza Khood, however, no school has been constructed over this land. The affidavit filed by Additional Chief Secretary (Education) to the Government of Himachal Pradesh, dated 04.07.2017, is categoric that as per Policy the land donated must be for that particular school where a candidate applies for appointment as part time water carrier and further that no marks can be given to a candidate who has donated the land to a particular school and applied for appointment as part time water carrier in another school. This is in tune with the objectives and stipulations in the Policy dated 25.07.2011 for appointment of part time water carrier. Reliance on cases where appointment has been made in deviation from this Policy, cannot advance the case of respondent No. 8, as negative equality cannot be sought. We, therefore, do not find any infirmity in the observations and directions of the learned Single Judge that five marks under the category land donated to school were wrongly awarded to respondent No. 8 and were required to be deducted from his total tally.::: Downloaded on - 06/03/2020 20:27:26 :::HCHP 6
5. The appellant-respondent No. 8 has raised the contention that writ petitioner was also not entitled for five marks under the category land donated to school in view of the fact that land measuring .
2-1 bigha comprised in Khasra No. 885, situated in Mauza Khood, Tehsil Renuka Ji, District Sirmour, H.P. was donated by the brothers of grand father of the petitioner vide gift deed dated 22.02.1977. It has been contended that the brothers of the grand father of the petitioner, sons of Shri Keshu, will not come within the definition of word 'family', used in the policy, therefore, petitioner cannot be granted five marks under the category land donated by the family for the school. The argument raised by respondent No. 8 is liable to be rejected as the word 'family' has to be given a wide meaning in the context of Policy in question, the object of which is to provide employment to the unemployed poor villagers whose families donate land for the school.
Learned Senior Counsel for the writ petitioner with the help of record has also established that at the time of donation of land in 1977, the family of petitioner was joint. There was no partition effected amongst sons of Shri Keshu, including grand father of petitioner, therefore, it cannot be said that grand father of the petitioner had not gifted the land.
The word 'Family' has not been defined in the Policy. In K. V. Muthu Vs. Angamuthu Ammal, (1997) 2 SCC 53, the Hon'ble Apex Court held that in its ordinary and primary sense, the term "family" signifies ::: Downloaded on - 06/03/2020 20:27:26 :::HCHP 7 the collective body of persons living in one house or under one head or manager or one domestic government. In its restricted sense, "family"
would include only parents and their children. It may include even .
grandchildren and all the persons of the same blood living together. In its broader sense, it may include persons who are not connected by blood depending upon the context in which the word is used. The word "family" is a word of great flexibility and is capable of different meanings. Further, in Baldev Sahai Bangia Vs. R.C. Bhasin, AIR (1982) 2 SCC 1091, the Hon'ble Apex Court held that a beneficial provision must be meaningfully construed so as to advance the object of the Act, and curing any lacuna or defect appearing in the same. The word 'family' has to be given not a restricted but a wider meaning so as to include not only the head of the family but all members or descendants from the common ancestors who are actually living with the same head. Learned Senior Counsel also submitted that in any case, father of the writ petitioner, himself, had also donated Khasra No. 886, measuring 2-1 bigha comprised in Mauza Khood, Tehsil Sangrah, District Sirmour, H.P., for the purpose of Government Primary School, Khood. This fact also finds mention in the Communication dated 01.05.2019 placed on record of the writ petition by the learned Deputy Advocate General. There is no rebuttal to these factual submissions on behalf of respondent No. 8. Therefore, no error can be found in award of ::: Downloaded on - 06/03/2020 20:27:26 :::HCHP 8 five marks to the writ petitioner under the category 'land donated by the family for the school'. In any case, respondent No. 8, having withdrawn CWP No. 1262 of 2017 vide order dated 18.04.2018 with liberty to .
press the issues involved in his writ petition before the competent authority/Court of law subject to all just exceptions, cannot even be permitted to raise these issues in the reply filed by him to the writ petition, preferred by Shri Satpal.
In view of the above discussion, no case to interfere with the judgment under challenge is made out. The impugned judgment suffers from no infirmity. The appeal, being devoid of any merit, is accordingly dismissed.
( L. Narayana Swamy ),
Chief Justice
March 06, 2020(K) ( Jyotsna Rewal Dua),
Judge
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