Himachal Pradesh High Court
Decided On: 07.11.2024 vs State Of Himachal Pradesh & Others on 7 November, 2024
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
2024:HHC:11656
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No.8399 of 2024
Decided on: 07.11.2024
Ram Bhaj ... Petitioner
Versus
State of Himachal Pradesh & others ... Respondents
Coram
Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1Yes
_____________________________________________________
For the petitioner : Mr. Hirdaya Ram, Advocate.
For the respondents : Mr. Pushpinder Jaswal, Additional
Advocate General, for the
respondents-State.
Ajay Mohan Goel, Judge (Oral)
By way of this petition, the petitioner has prayed for the following reliefs:-
"i) To quash and set-aside Clause 7 (v) of the Part Time Multi Task Worker Policy-2020 (Annexure P-1) regarding distribution of marks whereby the SC/ST/OBC/BPL category have been clubbed together depriving the petitioner benefit of three marks for being member of BPL family in addition to three marks for belonging to SC category separately.
ii) To quashed and set aside the impugned appointment letter dated 09-08-2024 (Annexure P-12) issued in favour of the respondent No. 8 in illegal, unjust and arbitrary manner.
iii) To award three marks to the petitioner being member of BPL family (Annexure P-4) separately in addition to three marks for being member of Scheduled Caste Category (Annexure P-3).
iv) To allow the petitioner to continue working as Part 1 Whether reporters of the local papers may be allowed to see the judgment? 2
2024:HHC:11656 Time Multi Task Worker in GPS Dhakoli, Education Block Shillai, District Sirmour, H.P."
2. Brief facts necessary for the adjudication of the present petition are that a process was undertaken by the respondents to appoint Part Time Multi Task Workers in Government Primary School Dhakoli, Education Block Shillai, District Sirmour, H.P. According to the petitioner, he was selected as a Part Time Multi Task Worker vide order dated 05.07.2022. He joined as such on 07.07.2022. Feeling aggrieved by the appointment of the petitioner, respondent No.8 (private respondent) filed CWP No.5408 of 2022 before this Court, which was disposed of by this Court with the direction to the said respondent to approach the Quasi Judicial Authority. Thereafter, respondent No.8 approached the Appellate Authority, which in terms of order dated 30.04.2024 allowed the appeal of said respondent and set aside the appointment of the petitioner. In terms of the averments made in the Writ Petition, the petitioner assailed the order passed by the A.D.M. Sirmour before the next Appellate Authority, i.e. respondent No.2, which Authority in terms of order dated 14.05.2024 upheld the order passed by A.D.M. Sirmour and directed respondent No.4 to prepare a fresh result sheet. As a consequence thereof, the private respondent now stands appointed as a Part Time Multi Task Worker vide order dated 09.08.2024, which order has been assailed by the petitioner by way 3 2024:HHC:11656 of an appeal. During the pendency of this appeal, this Writ Petition stands filed by the petitioner, assailing the Notification (Annexure P-1), dated 11.03.2022, in terms whereof, the respondent-State framed a Recruitment Scheme titled as Part Time Multi Task Worker Policy, 2020.
3. Learned counsel for the petitioner has drawn the attention of the Court to Para-7 of the Scheme which deals with the selection criteria. Learned counsel has submitted that in terms of Para-7 (v), candidates belonging to SC/ST/OBC/BPL Categories are entitled for 3 marks. According to learned counsel, the Clause, in terms whereof, candidates belonging to SC/ST/OBC/BPL Category are entitled for 3 marks only is arbitrary because it denies a candidate like the petitioner who happens to be belonging to the BPL Category as well as SC Category, the benefit of belonging to both the Categories. Accordingly, he prays that the present Writ Petition be allowed in terms of the prayer made therein. Learned counsel has drawn the attention of the Court to Annexure P-14 appended with the petition, which are the Guidelines that have been framed by the Directorate of Elementary Education, to the Government of Himachal Pradesh qua engaging of Cook-cum-Helper under Mid Day Meal Scheme and has submitted that in terms of these Guidelines there are separate marks for candidates belonging to BPL Category and candidates belonging to SC/ST/OBC Category. Accordingly, he 4 2024:HHC:11656 submits that as the respondents are having different yardsticks when it comes to different schemes, the impugned scheme being discriminatory be set aside to the limited extent that the respondents be directed to allot separate marks to a candidate belonged to the BPL as well as SC Category for each of the Categories. Learned counsel further submits that Annexure P-12, i.e. the appointment order of the private respondent, dated 09.08.2024 be also quashed and set aside.
4. Reply to the petition has been filed by the State, which is ordered to be taken on record.
5. Learned Additional Advocate General has submitted that the petition per se is not maintainable, for the reason that when the petitioner has already availed the remedy of appeal against the appointment of the private respondent, then without waiting for the outcome thereof the petitioner cannot be allowed to invoke the writ jurisdiction of this Court. He also submitted that once the petitioner participated in the selection process knowing fully well as to what were the terms and conditions of the Notification which was governing appointment as a Part Time Multi Task Worker, he subsequently cannot be allowed to assail the conditions thereof. He further submitted that otherwise also there is no infirmity in the Notification (Annexure P-1), because in case the plea of the petitioner is accepted, then candidates like the petitioner, who 5 2024:HHC:11656 happen to be belonging to more than one Categories will steal a march over other candidates and will get an undue advantage, to the disadvantage of the other candidates. Accordingly, he prays that as there is no merit in the petition, the same be dismissed.
6. I have heard learned counsel for the parties and have also carefully gone through the pleadings as well as documents appended therewith.
7. It is a matter of record that against the appointment of the private candidate as a Part Time Multi Task Worker, the petitioner has already preferred an appeal which is pending adjudication. In light of this fact, this Court is of the considered view that the petitioner cannot simultaneously be allowed to assail the appointment of the private respondent by way of this Writ Petition also. Therefore, it is held that challenge to the appointment of the private respondent without waiting for the adjudication of the appeal which already stands filed by the petitioner against the appointment of the private respondent, is not maintainable.
8. As far as the contention of the petitioner that Notification, dated 11.03.2022 is arbitrary and discriminatory is concerned, this Court does not concur with the plea of the petitioner and the contention of learned counsel for the petitioner. The Notification in issue has been issued by Secretary (Education) to the Government of Himachal Pradesh at the pleasure of the Hon'ble 6 2024:HHC:11656 Governor of the State of Himachal Pradesh. In terms of this Notification, the following selection criteria has been prescribed to inter alia judge the merit of a candidate:-
"7. Selection Criteria/Marks (as amended upto date)
i) The selection committee shall judge the suitability of the candidates purely on merit. The Chairman/ Member Secretary of the committee will keep complete record of the selection process.
ii) The selection committee shall hold counseling by calling all the eligible candidates.
iii) Preference will be given to candidates who are from families without any member in Govt. service.
iv) The selection will be purely specific to a particular school only.
v) In the selection process marks shall be awarded to the candidates out of 38.
The distribution of marks shall be as under:-
i. Distance from Schools (08 Marks) (Certificate to be issued by Panchayat Secretary of the concerned Gram Panchayat for rural areas and Executive Officer of Urban Local Bodies for urban areas) For candidates:
(a) From the same ward of the 08 Marks
Gram Panchayat/Urban Local Body
in which school is situated
(b) From the other wards of the 06 Marks
Gram Panchayat/Urban Local Body
in which school is situated
(c) From the adjoining contiguous 02 Marks
7
2024:HHC:11656
Gram Panchayat/Urban Local Body
in which school is situated
ii. Education Qualifications (08 Marks)
If Class 5th passed 05 Marks
If Class 8th passed 08 Marks
iii. Allocation to various categories: (08 Marks)
(a) Widows/Orphans/ Persons with 08 Marks
benchmark disabilities
(b) Person living in extreme indigent 05 Marks
conditions
(c) Women deserted by husbands 03 Marks
iv. For candidates whose families have 08 Marks
Donated land for school
v. Candidates belonging to SC/ST/OBC/BPL 03 Marks vi. Candidates belonging to unemployed Families 03 Marks Total 38 Marks"
Amongst other factors which have been taken into consideration, one of the factors which the Policy envisages is that a candidate who belongs to SC/ST/OBC and BPL Category, shall be entitled for 3 marks.
9. Incidentally, as far as appointment as a Part Time Multi Task Worker is concerned, the same per se does not attract reservation. In other words, the posts are not reserved for SC/ST or any other Category, but incentive is given to the Categories in terms of the selection criteria that is mentioned in the Notification. It is not 8 2024:HHC:11656 these four Categories only which have been clubbed together for the purpose of grant of 3 marks. A perusal of the Notification demonstrates that widows, orphans, persons with benchmark disabilities stand identified as a Class and in terms of the selection criteria in case a candidate falls under either of these Categories, then he or she is entitled for 8 marks.
10. The argument of learned counsel for the petitioner that because the petitioner belongs to BPL Category as well as SC Category, therefore he is entitled for 6 marks as he should be given 3 marks for belonging to BPL Category and 3 marks for belonging to SC Category is worth negation. This is for the reason that if this argument of learned counsel is taken to its logical conclusion, then under the classification of widow, orphan and persons with benchmark disabilities, in case there is a widow who happens to be an orphan and also a person with benchmark disability, then she will claim 24 marks.
11. If this interpretation is given to the Notification or if the Notification is held to be bad and it is ordered that to each Category/Class separate marks be allotted, then it shall defeat the very purpose of giving benefit to the candidates who belong to the categories for whom some incentive has been given in terms of the Notification as then there will be a group of candidates which will steal a march over and other candidates from same class. To 9 2024:HHC:11656 elaborate it, there may be a case that a ST Category candidate also happens to be a SC Category candidate. Then in such a circumstance, the candidate who belongs to ST as well as SC Category will get 6 marks and he will steal a march over a candidate who simply happens to belongs to SC Category or ST Category.
12. Furthermore, as far as reservation is concerned, there is reservation of 15% for SC Category as compared to 7.5% for ST Category. If the contention of the petitioner that there has to be a separation and segregation of the Categories for the purpose of grant of marks is concerned, then a SC Category Candidate may come to the Court and say that because the quota of SC Category is 15% as compared to 7.5% of ST Category or let us say 5% of the candidates suffering from benchmark disability, he may claim that in the Policy there should be proportionally more marks allotted to SC Category on pro-rata basis as compared to the other Categories. This cannot be accepted and the State cannot be directed to give separate marks for each Category which shall create a situation that a candidate who happens to be belonging to more than one Categories will opt a march over the other candidates.
13. Now as far as the reference to Annexure P-14 is concerned, this Court is of the considered view that Annexure P-14 is just a Guideline that has been issued by the Director, Elementary Education and comparison therewith vis-a-vis a Notification which 10 2024:HHC:11656 has been issued at the behest of the Hon'ble Governor of the State of Himachal Pradesh cannot be made. Otherwise also, as this Court is of the considered view that there is neither any arbitrariness nor any discrimination in the mode and manner in which the Selection Criteria allocates marks to the Categories envisaged therein and further, as this Court does not finds any merit in the present petition, the same is dismissed. Pending miscellaneous applications, if any, also stand disposed of accordingly.
(Ajay Mohan Goel) Judge November 07, 2024 (Rishi)