Himachal Pradesh High Court
Tej Ram vs State Of H.P. & Others on 11 July, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
CWP No: 387 of 2009.
Date of Decision: 11th July, 2016.
.
Tej Ram ....Petitioner.
Versus
State of H.P. & others ...Respondents.
Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
of
Whether approved for reporting?1 Yes.
For the Petitioner : Mr. P.P.Chauhan, Advocate.
For the Respondents:
rt Mr. Rupinder Singh Thakur,
Additional Advocate General, with
Mr. Rajat Chauhan, Law Officer,
for respondents No. 1 to 5.
Mr. Vivek Singh Thakur,
Advocate, for respondent No.8.
Sandeep Sharma, Judge (Oral)
By way of present writ petition under Article 226 of the Constitution of India, the petitioner has invoked the extra ordinary jurisdiction of this Court and has prayed for following relief:-
(a) to issue a writ of certiorari or direction in nature thereof, quashing the impugned notification dated 27.5.2008 being Annexure P-2 of the writ petition, as unconstitutional and Whether reporters of the local papers may be allowed to see the judgment?
yes.
::: Downloaded on - 15/04/2017 20:47:29 :::HCHP...2...
illegal and contrary to the rule by taking away vested legal rights of the petitioner and the selection criteria .
cannot have been laid down after the selection process is over and the appointment has been given to the petitioner;
(b) to issue a writ of certiorari or direction in nature thereof, quashing the of impugned order dated 21.08.2008 being Annexure P-4 passed by the rt respondent Sub Divisional Officer -
cum -Chairman, Enquiry Committee, Kullu and impugned order dated 09.01.2009 (Annexure P-6) passed by the respondent Deputy Commissioner, Kullu, as unconstitutional and illegal and contrary to the law;
(c) to issue a writ of mandamus, appropriate writ, order or direction in nature thereof, directing the respondent Department to permit the petitioner to continue discharging his duties as PET on parents Teacher Association basis in Government Middle School Benchi w.e.f. his illegal termination with all the consequential benefits, including arrears of salary along with interest ::: Downloaded on - 15/04/2017 20:47:29 :::HCHP ...3...
thereon @18% PA and quash the appointment of private respondent, if made during the pendency of this .
Civil Writ Petition;
(d). to issue an appropriate writ order or direction in nature thereof to give full justice to the petitioners in the circumstances of the case and may of pass such further writ, order or orders as this Hon'ble Court may deem fit, just and expedient in the rt circumstances of the case; and
(e) Direct the respondents to produce all the relevant records as along with reply for perusal by this Hon'ble Court;
(f) Allow the cost of this writ petition to the petitioner, and;
(d) Allow such other relief or pass such other orders as deemed fit and proper in the facts and circumstances of the case in favour of the petitioner and justice be done.
And for this Act of kindness, the humble petitioner as in duty bond, shall every pray."
::: Downloaded on - 15/04/2017 20:47:29 :::HCHP...4...
2. Briefly stated facts as emerge from the record are that the respondents-State realizing that there are large number of vacancies, especially in difficult and remote area .
schools lying vacant and there is no likelihood of making regular recruitment in near future, decided that PTAs may be allowed to make recruitment qua C & V category teachers i.e OT (Shashtries), LT, DM, and PETs (Annexure of P-1). However, while making aforesaid decision respondent specifically rt stipulated in the communication dated 13.7.2007 that no Music Teacher, Home Science Teacher or Craft Teacher, shall be provided by the PTAs for the time being. The respondents-State while issuing the aforesaid communication dated 13th July, 2007 authorizing PTAs to make appointment as referred above, prescribed the following procedures:-
(i) The PTA shall have to display the vacancy position in respect of posts intended to be filled up through PTAs giving venue/date of interviews on the notice board of the concerned school, the PTAs Office (if any), notice board of the Gram Panchayat concerned as well as the adjoining of the Gram Panchayat concerned as well as the adjoining Gram Panchayat. If PTAs ::: Downloaded on - 15/04/2017 20:47:29 :::HCHP ...5...
have sufficient funds they may even consider publicity through press/ advertisement.
.
(ii) Atleast 15 days time shall be given to desirous candidates to apply.
(iii) Dates for interview should be decided in advance. Interviews shall be held either on 5th or on 20th of a month so that the of desirous candidates have advance information about the interview dates. In case dates happen to fall on a rt holiday, interviews should be held on the next working day.
(iv) The candidates should be selected strictly on the basis of merit adopting by an objective competitive criteria.
(v) Only those candidates should be
selected who fulfill the requisite
educational and professional
qualification as per Recruitment and Promotion Rules for that post. Non unqualified person or who does not fulfill alteast minimum educational qualification shall be allowed to function as PTA teacher.
(vi) PTAs shall associate a subject matter specialist of the subject for which post interviews take place.
::: Downloaded on - 15/04/2017 20:47:29 :::HCHP...6...
The Headmaster/ Principal when accepting the candidature of a particular teacher under PTA .
shall satisfy himself that the above criteria has been met with. I may be made clear that no grant-in-aid shall be available to the PTAs in case any of the above codal formalities has not been completed. While conveying the names of the selected candidates to the Principal, the PTA of shall give an undertaking that the directions contained in para 3(i) to (vi) above have been complied with. Any appointment made by PTAs rtbetween 6.11.2006 and issue of this letter shall not be eligible for grant-in-aid while subsequent appointments shall be subject to the adoption of above procedure only.
You may kindly circulate these instructions to all the Principals/Headmasters of your District for strict compliance. Please note that any deviation from the above shall make the PTA ineligible for reimbursement of grant-in-
aid under GIA to PTA Rules, 2006. Other instructions relating to these appointments shall also be kept in view as circulated from time to time. The availability of TGTs by PTA shall not be made till further orders.
3. In pursuance to aforesaid communication/ circular issued by respondent No.6 i.e. Pradhan, Parents Teachers Associations( in short "PTA"), Government Middle School, Bench, Tehsil and District Kullu, H.P conducted ::: Downloaded on - 15/04/2017 20:47:29 :::HCHP ...7...
interviews for the post of Physical Education Teacher( in short" PET") on PTA basis for Government Middle School, Benchi. The interviews for the post were held on 5.10.2007, .
where 16 candidates along with petitioner as well as respondents No.7 and 8 appeared. Record further reveals that present petitioner was selected and appointed as PET in the Government Middle School, Benchi on 10th/11th of October, 2007. Thereafter vide Annexure P-2 i.e. letter No. DEM-A-Kha(7)3/2006, rt dated 27th May, 2008, Higher Education Department H.P. Government, issued notification in continuation of its earlier notification dated 19th April, 2008, whereby respondents-State had constituted committees to inquire into the cases of irregularly appointed teachers by the PTA but subsequently vide notification dated 27th May, 2008, Higher Education Department H.P. Govt., provided that the committees will hear the affected parties/complainants after going through the records and guidelines framed vide notification referred above.
4. Record reveals that respondent No.7 namely Om Prakash being aggrieved with the appointment of the present petitioner as PET filed complaint (Annexure P-3) ::: Downloaded on - 15/04/2017 20:47:29 :::HCHP ...8...
before learned Sub Divisional Magistrate, Kullu H.P complaining therein that the petitioner was appointed illegally and arbitrarily in violation of the Rules prescribed .
for the appointment of Teacher by PTA. The Sub Divisional Magistrate (Civil) vide order dated 21st August, 2008 ( Annexure P-4) ordered to remove the petitioner from the post of PET. Perusal of order dated 21st August, 2008 of suggest that on the basis of complaint filed by respondent No.7, Sub Divisional Magistrate(Civil) Kullu constituted rt committee in terms of the notification dated 19th April/27th May, 2008. It also appears that committee while considering the complaint preferred by respondent No.7 redrawn the merit list and concluded that the petitioner was wrongly appointed as PET since there were number of other persons including respondents No.7 and 8, who were higher in merit.
5. Present petitioner being aggrieved with the order dated 21.8.2008, passed by Sub Divisional Magistrate Kullu, H.P filed an appeal before the learned Deputy Commissioner, Kullu, District Kullu,H.P but same was dismissed vide order dated 9.1.2009 (Annexure P-6) .
::: Downloaded on - 15/04/2017 20:47:29 :::HCHP...9...
6. Perusal of Annexure P-6, passed by learned Deputy Commissioner, Kullu suggest that vide notification EDN-A-Kha(7)3/2006 dated 19.4.2008 and 27.05.2008, .
new rules were framed and respondent No.4 was appointed as Chairman of inquiry Committee, who vide order dated 21.8.2008 concluded that the petitioner was not appointed in accordance with Rules as PET in the school concerned of and as such, ordered removal of the petitioner. However, careful perusal of the order dated 21.8.2008 nowhere rt suggest that Inquiry Committee while deciding the complaint of respondent No.7 actually referred to the records of the interviews conducted/held by the PTA on 5.10.2007, where 16 candidates including petitioner, respondents No.7 and 8 had appeared. It appears that committee decided the complaint of respondent No.7 on the basis of the guidelines framed vide notification dated 27.5.2008 without referring to the PTA Rules 2006, which were prevalent at the time of appointment of the petitioner in the year, 2007. But at this stage, after perusing the impugned order, passed by SDM as well as Deputy Commissioner kullu, it is not clear at all whether any proceeding were ever initiated by the SDM ( Civil) Kullu ::: Downloaded on - 15/04/2017 20:47:29 :::HCHP ...10...
strictly in terms of notification dated 19-04-2008/27-05- 2008 because bare perusal of order passed by SDM suggest that after receipt of complaint made on behalf of .
respondent No. 7, merit list was redrawn and marks were given on the basis of mechanism evolved vide notification dated 27-05-2008, whereas in opinion of this Court, committee at first instance was supposed to ascertain of whether appointment of petitioner, which was made in the year 2007 was in accordance with rules prevalent at that rt time or not. It is undisputed that at the time of appointment in the year 2007, petitioner was appointed in terms of PTA Rules 2006. Hence, any decision of the inquiry committee constituted in terms of the notification dated 27-05-2008 redrawing the merit list on the basis of notification, which was admittedly issued in the year 2008 could not be made basis to conclude that the appointment made in the year 2007 was in violation of the Rules made in the year 2008.
During the proceedings of the case, this Court was unable to lay its hand on any document suggestive of the fact that the respondents had actually conducted some inquiry on the complaint submitted by respondent No. 7 because only document which is available on record is impugned order ::: Downloaded on - 15/04/2017 20:47:29 :::HCHP ...11...
dated 21.8.2008 passed by SDM(Civil) Kullu, which nowhere suggest that while holding that appointment of petitioner is bad, committee had taken into consideration .
the record pertaining to the selection process held in the year, 2007 i.e. 5.10.2007. Rather, perusal of this order dated 21.8.2008 clearly demonstrate that all the candidates whose candidature were considered in the year, 2007 by the of then PTA were again scrutinized by this Committee afresh on the basis of guidelines contained in notification dated rt 27.5.2008. But at this stage, this Court is at loss to fathom that how the Rules made in the year, 2008 could be made applicable in the case of the petitioner, who was admittedly appointed in the year, 2007 on the basis of PTA Rules 2006, prevalent at that time.
7. However, during the proceedings/ hearing of the case, learned counsel representing the respondent No.8 made available copy of judgment dated 23rd November, 2010 passed by Division Bench of this Court in CWP No.2286 of 2009. Further perusal of order dated 16.11.2009 passed in the instant case by this Court also suggest that CWP No.2286 of 2009 was ordered to be tagged with the present matter but some how same stands ::: Downloaded on - 15/04/2017 20:47:29 :::HCHP ...12...
decided on 23rd November, 2010. Perusal of the judgment dated 23.11.2010 suggest that writ petitioner in that case (respondent No.8) had prayed for following relief:-
.
(i) That he may be appointed in terms of orders passed by respondent No.4 dated 21.8.2008 Annexure P-10 which is selection list being a selected candidate as the petitioner is having higher rank in of comparison of 16 candidates and further including the respondent No.7 and 8 who are on the lesser side.
rt (ii) That the respondents may kindly be directed to give all the benefits to the petitioner as admissible in near future under the law and policy for such post in question."
8. Further careful perusal of judgment dated 23.11.2010 passed by Division Bench of this Court in CWP No.2286 of 2009 suggest that taking note of the averments contained in that writ petition, Division Bench of this Court concluded as under:-
" In view of the above clarification issued by the Director of Higher Education, Himachal Pradesh, the impugned orders are liable to be set aside. Ordered accordingly. However, we ::: Downloaded on - 15/04/2017 20:47:29 :::HCHP ...13...
make it clear that it will be open to the Enquiry Committee to consider the matter afresh in the light of the instruction referred to above. The .
needful, if required, shall be done expeditiously from the date of the production of a copy of this Judgment by either side. It is also made clear that in the cases of those teachers who are working in the schools, in case they have not been paid their due wages, the same shall be of paid and the State shall ensure that the required grant-in-aid is given to the Schools, as per the Rules forthwith. In case the vacancy still rtexists, we make it clear that it will be open to the respondents to reengage the petitioner, subject to the outcome of the inquiry and in case, the petitioner is thus reengaged, he shall be paid the eligible benefits during the period of service."
9. Close reading of the judgment dated 23.11.2010 passed by Division Bench of this Court clearly suggest that order dated 21.8.2008, which is subject matter of the present writ petition, has been already quashed and set aside by the Division Bench of this Court with the direction to the Inquiry committee to consider the matter afresh in the light of the instructions issued on 24th September, 2009. Since by way of present writ petition, petitioner has also prayed for quashing of order dated 21.8.2008 passed ::: Downloaded on - 15/04/2017 20:47:29 :::HCHP ...14...
by SDM (Civil) Kullu, which has been already quashed and set aside by Division Bench of this Court in CWP No. 2286/2009, this Court sees no reason, whatsoever, to .
interfere in the present matter. However, it may be clarified that once Division Bench in CWP No.2286 of 2009 quashed the order dated 21.8.2008 passed by SDM (Civil) Kullu, any further order passed by the Deputy Commissioner in appeal of filed by petitioner against order dated 21.8.2008 also deserves to be quashed and set aside because appeal rt is/was continuation of the proceedings initiated at the level of SDM, who had passed order dated 21.8.2008 on the basis of complaint made by respondent No.7.
10. But keeping in view the peculiar facts and circumstances of the case, it would be in the interest of justice and strictly in compliance of the judgment dated 23.11.2010 passed by Division Bench of this Court in CWP NO.2286 of 2009, to direct the respondents to consider the matter afresh in the light of instructions issued vide notification dated 24.9.2009 as well as directions contained in para 3 of the judgment passed by the Division Bench of this Court, if not already complied with. At his stage, it may be observed that inquiry committee while deciding the ::: Downloaded on - 15/04/2017 20:47:29 :::HCHP ...15...
matter afresh in the light of the instructions dated 24.9.2009 shall keep it in mind that appointment of petitioner was made in the year, 2007 that too on the basis .
of PTA Rules 2006 prevalent at that time and as such, Inquiry Committee is expected/ required to ascertain whether appointment of petitioner as PET in the year, 2007 was strictly in terms of PTA Rules 2006 prevalent at that of time or not.
11. rt Since the petitioner as well as respondents No.7 and 8 have been litigating for the last 6-7 years, it would be in the interest of justice, if respondents are directed to conclude the inquiry in terms of judgment dated 23.11.210 within stipulated time. Accordingly, respondents are directed to do the needful as observed above within a period of three months.
In view of the discussion made hereinabove, the present petition is accordingly disposed of. Pending application(s), if any, shall also stands(s) disposed of.
(Sandeep Sharma )
July 11, 2016 Judge
(shankar)
::: Downloaded on - 15/04/2017 20:47:29 :::HCHP