Himachal Pradesh High Court
Kaushalya Devi vs The State Of Himachal Pradesh And Others on 1 October, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.2591 of 2018.
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Date of decision: 01.10.2019.
Kaushalya Devi .....Petitioner.
Versus
The State of Himachal Pradesh and others .....Respondents.
Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1 Yes For the Petitioner : Mr. Onkar Jairath, Advocate.
For the Respondents: Mr. Vinod Thakur, Additional Advocate General with Mr. Bhupinder Thakur and Ms. Svaneel Jaswal, Deputy Advocate Generals, for respondents No. 1 to 7 and 9.
Mr. Nimish Gupta, Advocate, for respondent No.8.
Tarlok Singh Chauhan, Judge (Oral).
On 20.08.2019, this Court passed the following orders:
"Heard in part. At this stage, it appears that the Director, Elementary Education is a necessary party 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 03/10/2019 20:25:56 :::HCHP 2 and he is accordingly impleaded as such and shall figure as respondent No. 9. He is directed to file his personal affidavit with regard to the certificates .
annexed with the petition as Annexures P-13 & P-14, respectively and shall specifically state as to:
(i) Whether the institution mentioned in the certificate is recognised and if so by whom and under what provisions of law.
(ii) Whether it is permissible for a candidate to pursue regular study in +2 and at the same time appear for the examination as mentioned in this certificate.
2. He shall also enquire into the authenticity of the experience certificate annexed with the petitioner as Annexure P-15 (page 45), which suggests that private respondent was working as a Pre Primary Volunteer Teacher w.e.f. 01.03.2014 to 31.03.2016 (two years) specially when admittedly this respondent was pursuing regular +2 course at Government Senior Secondary School, Gaunth.
3. Learned counsel for the petitioner has also brought to my notice the contradiction in the income certificates issued in favour of the private respondent No. 8, wherein in the first certificate Annexure P-17 at page 48, issued on 10.04.2018, the family income from all sources has been shown to be less than Rs.50,000/- and in another certificate of income issued on 12.06.2018 ::: Downloaded on - 03/10/2019 20:25:56 :::HCHP 3 Annexure P-18 at page 49 of the Paper Book, it has been mentioned that her family income from all sources does not exceed Rs.35,000/-.
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4. The learned counsel for the petitioner has invited my attention to another income certificate dated 24.03.2018, Annexure R/8-3, wherein it has been stated that the income of the family of the husband of respondent No. 8 does not exceed.
5. The Deputy Commissioner, Sirmaur, after holding a regular inquiry shall file his personal affidavit with regard to the income certificates as annexed with the petition as Annexures P-17 and P-
18 at pages 48 & 49 of the paper book.
6. The Deputy Commissioner shall further furnish his comments regarding the legality of the other certificates that are available at pages 89 to 104 (Annexure R/8-4 colly)
7. The Deputy Commissioner shall name(s) all officer(s), who has/have issued such certificate(s) and shall clearly specify whether such officer(s) is/are competent to issue such certificate(s) and shall further state that whether said officer(s) is/are still in service or have retired and supply the name, address, designation and place of posting of such officer(s).
8. Needful be done within four weeks. List on 17.09.2019.
Copy dasti."
::: Downloaded on - 03/10/2019 20:25:56 :::HCHP 42. In compliance to the aforesaid orders, the Deputy Commissioner, District Sirmaur at Nahan, H.P. has filed a .
detailed affidavit, wherein after holding inquiry, it has been observed as under:
"As far as the legality of these certificates is concerned, in this regard, it is submitted that these certificates have been issued by the Naib Tehsildar, Haripurdhar on the basis of income from agricultural land as reported by the patwaries concerned and self declaration submitted by the applicants. But during examination of the revenue record, the land details and income from land have been found to be mentioned wrongly by the patwaris concerned on the application forms of the applicants on the basis of which income certificates were issued to them. Hence, these certificates cannot be stated to be issued on the basis of actual facts and are not stated to be legally valid. Further, these certificates are issued for one year as per Para 28.11 of the H.P. Land Record Manual and there is no provision to issue income certificate for different purposes. The following Officers/Officials are concerned for issuing these certificates:-
Sr. Name of Designation/Address
No. Officer/
Official
1. Sh.Dinesh Naib-Tehsildar, Sub Tehsil Haripurdhar, Distt.
Kumar Sirmaur. He has joined as Naib Tehsildar,
Haripurdhar on 02.07.2016 and he remained as Naib Tehsildar in Sub-Tehsil Haripurdhar ::: Downloaded on - 03/10/2019 20:25:56 :::HCHP 5 w.e.f. 02.07.2016 to 25.04.2019 and since he was transferred thereafter but he again joined as Naib-Tehsildar on 08.07.2019 at Haripurdhar and since then he has been .
working as Naib-Tehsildar, Haripurdhar.
2. Sh.Satpal Patwari Patwar Circle, Tikkri Dasakna, Sub Sharma Tehsil Haripurdhar, presently working as JBT Teacher in Govt. Primary School, Kota Pab, Tehsil Shillai, District Sirmaur, H.P. He has joined as patwari on 17.10.2015 and quit his job of patwari on 23.01.2019.
3. Sh. Babu Patwari, Patwar Circle Badol, Sub-Tehsil, Ram Haripurdhar. He has joined on 16.06.2016 and since then he has been working as Patwari, Patwar Circle Badol.
4. Sh. Chajju Patwari, Patwar Circle Bhalad, Sub-Tehsil, Ram r Haripurdhar. He remained as Patwari there till 06.12.2018.
5. Sh. Baru Ram Junior Office Assistant (IT) Office of the Sub-
Tehsil, Hairpurdhar, District Sirmaur, H.P. He has joined as Junior Office Assistant (IT) on
03.10.2017 and since then he has been working in the office of Sub-Tehsil, Haripurdhar.
Besides, it is further submitted that in the instant case, the then patwaris as well as Naib-Tehsildar did not strictly adhere to the provisions laid down in para 28.8 and 28.9 of the Himachal Pradesh Land Record Manual and erred while issuing above mentioned income certificates."
3. The aforesaid officials have failed to realize that the offices being held by them are public offices which are meant for use and not for abuse and in case repositories of such offices spoil the rule, then the law is not that powerless and would step ::: Downloaded on - 03/10/2019 20:25:56 :::HCHP 6 in to not only quash such arbitrary actions, but would also ensure that such abuse is not repeated in future. Being Officers .
of the State, they could not have acted like a private individual, who is free to act in a manner whatsoever he likes, unless interdicted by law. It needs no reiteration that the State and its Officers have to strictly fall within the four corners of law and all their activities are governed by rules, regulations, instructions etc.
4. to The situation, in best, is described by the Hon'ble Supreme Court in Noida Entrepreneurs Association vs. Noida and others, (2011) 6 SCC 508, wherein it was observed as under:
"Power vested by the State in a public authority should be viewed as a trust coupled with duty to be exercised in large public and social interest. Power is to be exercised strictly adhering to the statutory provisions and fact situation of a case. "Public authorities cannot play fast and loose with the powers vested in them." A decision taken in an arbitrary manner contradicts the principle of legitimate expectation. An authority is under a legal obligation to exercise the power reasonably and in good faith to effectuate the purpose for which power stood conferred. In this context, "in good faith" means "for legitimate reasons." It must be exercised bona fide for the purpose and for none other."::: Downloaded on - 03/10/2019 20:25:56 :::HCHP 7
5. At this stage, it may not be appropriate for the Court to comment upon the role of each of the aforesaid persons, but .
the clout and influence exercised by them can be well imagined from the fact that on the last date and even today, learned counsel for the petitioner, on instructions, from his client stated that he was under instructions not to press the instant petition.
However, the mere fact that the petitioner does not want to pursue the instant writ petition cannot be a ground to simply brush aside or ignore what has come in the inquiry.
6. Accordingly, the Deputy Commissioner, District Sirmaur at Nahan, H.P. is directed to hold a departmental inquiry against the aforesaid erring officials and take the same to its logical end and complete the same before 31.03.2020. In addition thereto, the Deputy Commissioner, District Sirmaur at Nahan, H.P. may of his own or through the concerned authority initiate appropriate action including criminal action against the Society for Child Relief and Women Welfare, Nahan, District Sirmaur, which has issued the diploma in Nursery Teacher Training.
7. No doubt, one of the officials, Shri Satpal Sharma has quit his job as Patwari on 23.01.2019, but that itself cannot be a ground not to conduct an inquiry against the said official. Apart ::: Downloaded on - 03/10/2019 20:25:56 :::HCHP 8 from the above, the Deputy Commissioner, District Sirmaur at Nahan, after collecting the entire records shall hand over a copy .
thereof to the Superintendent of Police, District Sirmaur at Nahan, who in turn, will cause an inquiry/investigation to be conducted by an Officer not lower in rank to a Deputy Superintendent of Police. In case, complicity of any person or each of them is found to have been, prima facie, established during such inquiry/investigation, then an FIR be registered and thereafter the same be taken to its logical end.
8. Before parting, it needs to be noted that even though the petitioner does not press the instant writ petition, however, the selection is based on income certificates, which evidently have been issued without adherence to the provisions laid down in 28.8 and 28.9 of the Himachal Pradesh Land Records Manual and have rather been issued wrongly by the Patwari concerned on the application forms of the applicant. Therefore, the selection is set aside and the respondents are directed to conduct fresh selection in accordance with law within a period of six weeks from today
9. The writ petition is disposed of in the aforesaid terms, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.
::: Downloaded on - 03/10/2019 20:25:56 :::HCHP 910. For compliance, to come up on 02.04.2020.
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(Tarlok Singh Chauhan) 1 October, 2019.
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Judge
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