Himachal Pradesh High Court
Kanta Devi vs State Of H.P. And Ors. ...Repondents on 5 August, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 5015 of 2010
Reserved on 22.7.2016
.
Date of Decision: 5.8.2016.
______________________________ _________________________
[
Kanta Devi ......Petitioner.
Versus
State of H.P. and Ors. ...Repondents
of
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes.
For the petitioner:
rt Mr. Inder Sharma, Advocate.
For the respondents: Mr. Rajat Chauhan, Law Officer, for
respondents No. 1 to 4-State.
Mr. L.S. Mehta, Advocate, for respondent
No. 5.
Mr. R.S. Gautam, Advocate, for
respondent No.6.
_________________________________________________________
Sandeep Sharma, J.
By way of present writ petition filed under Article 226 of the Constitution of India, the petitioner has prayed for following reliefs:-
(i) That the oral termination of the services of the petitioner may kindly be quashed and set-aside and the respondents be directed to reinstate back the present petitioner and she may be allowed to work as Whether reporters of the Local papers are allowed to see the judgment? Yes.::: Downloaded on - 15/04/2017 20:58:43 :::HCHP -2-
Mid-Day Meal worker in the same School/capacity under which she was working.
(ii) That the respondents may kindly be directed to .
consider the case of the present petitioner sympathetically taking into consideration all aspect of the matter within time bound period.
(iii) That the costs of this writ petition may kindly be awarded in favour of the petitioner.
of
(iv)That the entire record pertaining to the case may kindly be summoned for the kind perusal of this Hon'ble Court.
rt
(v) Any other order which this Hon'ble Court deems fit and proper in the facts and circumstances of the case may also be passed in favour of the petitioner.
2. Briefly stated facts as emerge from the record are that petitioner being aggrieved with the oral termination of the her services by respondent No.4 has approached this Court seeking direction to the respondent to reinstate her back in the service in the capacity of mid-day meal worker in the Govt. Primary School Garyala, Tehsil Karsog, District Mandi, H.P. It emerges from the record that pursuant to the scheme framed by Government of India, namely Mid-Day Meal Scheme (In short the Scheme), Govt.
of Himachal made certain appointments in various Govt.
primary/upper primary schools under the Scheme. Similarly, ::: Downloaded on - 15/04/2017 20:58:43 :::HCHP -3- present petitioner in terms of aforesaid scheme was appointed as Mid day meal worker in September, 2004 in the said school and .
since then, she had been performing her duties till her oral termination as alleged by the petitioner. However, perusal of letter dated 29.4.2010 (Annexure P1) suggests that state of HP issued necessary guidelines to all the Deputy Directors of of Elementary Education with regard to the engagement of mid day meal workers in primary and upper primary schools as per rt Govt. of India new norms. It would be apt to reproduce aforesaid guidelines.
"The GOI has revised/prescribed the norms of engaging Cook-cum-Helper under the Mid Day Meal Scheme which has been circulated to you vide this Directorate letter of even No. dated 23.2.2010.
The department is receiving representations from field offices regarding rationalization/engaging of Cook- cum-Helpers under new norms fixed by Govt. of India. In this regard, it is stated that in such cases where cook-
cum-helper is becoming surplus due to the new norms of revised enrollment slab, then the persons appointed on later date may be relieved off his duties on the principle of "last come first go"
You are, therefore, requested to issue directions to field offices that School Development Management Committee (SDMC) which is responsible for ::: Downloaded on - 15/04/2017 20:58:43 :::HCHP -4- implementation of MDM Scheme at school level, may follow the above mentioned principle while rationalizing the engagement of cook-cum-helper.
.
You are also directed to ensure that the anganwari worker and water carrier, who are performing the additional duties of cook-cum-helper, have given their option either to perform duties of anganwari /water carrier or cook cum helper under MDM scheme and of they may be assigned duties as per option exercised by them. In no case, the anganwari worker and water carrier have been assigned/given additional duties of
3. rt cook cum helper under MDMS."
Close scrutiny of the aforesaid instructions issued by respondent-State Suggests that Govt. of India revised norms for engaging cook-cum-helper under the Scheme, which was earlier circulated by respondent-State to the various Directors of Elementary Education, HP, vide letter dated 23.2.2010. Since department had received representation from field officers regarding rationalization/cook-cum helper under the new norms framed by the Government of India, it issued directions to the concerned authorities that in cases where cook-cum-helper has become surplus due to new norms of revised enrollment slab, persons appointed on later date, may be relieved off on the principle of "last come first go".
::: Downloaded on - 15/04/2017 20:58:43 :::HCHP -5-4. In the present case, the petitioner was appointed as mid day meal worker in Govt. Primary School referred above, in .
2004 but it appears that in May, 2010, her services were terminated and in her place, respondent No. 5 was appointed who also joined her duties in the said school. The petitioner being aggrieved with her disengagement/termination filed of representation to Primary Block Education Officer, Karsog (AnnexureP-2) praying therein that she may be allowed to rt continue to serve as mid day meal worker in the said school.
Since no heed was paid to her requests by the concerned authorities, she was compelled to file the present writ-petition seeking relief as has been reproduced above.
5. Respondent Nos. 1 to 3 by way of filing reply refuted the claim put forth by the petitioner and stated that Govt. had decided to start cook cum helper of the Tribal area of State in first phase w.e.f May 2003 and thereafter vide letter dated 2.8.2004 started this program in tribal areas in second phase w.e.f.
1.9.2004. As per respondents No. 1 to 3, necessary directions were issued vide communication dated 2.8.2004 to all the Deputy Director of Elementary Education in the State of HP to ensure ::: Downloaded on - 15/04/2017 20:58:43 :::HCHP -6- implementation of the Scheme in primary schools of their area.
As per respondents, in clause 6.1 of the letter dated 2.8.2004, .
committee was required to be framed for implementation of the cooked meal in the school comprising of following members:
1. Present VEC or any active Member member nominated for the purpose
2. President of MTA/PTA or any Member of active Member nominated for the purpose
3. CHT/HT/Senior teacher of the Coordinator/ rt school. Member Secretary
6. Aforesaid respondents also stated that as per aforesaid instructions dated 11.2.2010 issued by the Government, there is a provision of appointment of one cook/helper against the strength of 25 students. However, if the strength increases from 25 to 100 then another cook/helper can be appointed by the SMC and committee itself is only responsible to make appointment for hiring services of the helper/cook at the honorarium as has been prescribed in the guidelines of the project. Respondents No. 1 to 3 categorically stated that they have no role whatsoever, to play in the engagement of cook or helper under the scheme and in this regard, only mid day meal ::: Downloaded on - 15/04/2017 20:58:43 :::HCHP -7- committee is responsible. However, respondents specifically stated that as per the Govt. instructions vide letter dated EDN-
.
H/(EE)(4)4-17/2008-MDM Policy dated 29.4.2010 principle of "last come first go" would prevail.
7. Records suggest that respondent No. 4 (SMC of Govt.
Primary School Gharyala) has not filed any reply. Respondent No. of 5 Smt. Premlata who was engaged as Mid day meal worker and was appointed in terms of resolution passed by it on 15th February, rt 2005, also filed reply and refuted the claim of the petitioner by stating that the petitioner has not come before the Court with clean hands, rather, purposely she has concealed the material facts from the Court to procure undue relief. Respondent No. 5 also stated that petitioner purposely did not array Ms. Meera Devi, who was necessary required to be arrayed as party for proper adjudication of the case. As per respondent No. 5, petitioner as well one Sumitra Kumari were engaged as mid-day meal cook and mid day helper respectively in Sept. 2004 for six months in first batch and thereafter, w.e.f. February, 2004 work was performed by Meera Devi and herself i.e. respondent No.5 in the second batch, for a period of next six months. As per respondent No. 5 ::: Downloaded on - 15/04/2017 20:58:43 :::HCHP -8- both the batches as mentioned above, performed their duties as such till Sept. 2005 thereafter Smt. Sumitra Kumari left the job. It .
has also come in the reply of respondent No. 5 that since 2006 petitioner as well as respondents No. 5 and 6 Meera Devi were performing their duties till 7th May, 2010 on batch wise basis. But on 7.5.2010, respondent No. 4 passed a resolution that out of of petitioner and Smt. Meera Devi-respondent No. 6, one would be allowed to continue as mid day meal cook. Since, petitioner did rt not accept the aforesaid decision of the committee, her services were terminated and as such, petitioner was replaced by respondent No.6 Meera Devi, who was admittedly not arrayed as party by the petitioner at the time of filing of the petition but subsequently during the pendency of the petition, she was arrayed party as Respondent No.6. Respondent No. 6 also filed separate reply, wherein she refuted all the averments contained in the writ petition. She has specifically stated in her reply that at no point of time services of the petitioner were disengaged orally, rather her service were terminated by respondent No. 4 due to her disobedience and unsatisfactory performance. Careful perusal of the reply filed by respondent No. 6 also suggests that ::: Downloaded on - 15/04/2017 20:58:43 :::HCHP -9- on 7.5.2010, SMC, passed resolution, wherein it was decided that one person out of petitioner and respondent No. 6 would be .
engaged. Since petitioner did not accept the decision of the Committee, SMC decided to engage respondent Nos. 5 and 6 in place of the petitioner.
8. Shri Inder Sharma, counsel for the petitioner of vehemently argued that action of the respondent in terminating the services of the petitioner orally is not sustainable and as such, rt same deserves to be quashed and set-aside. Mr. Sharma, Vehemently argued that respondent No.4 while terminating service of the petitioner has miserably failed to adhere to instructions issued by Government vide letter dated 29.4.2010, wherein it has been specifically provided that principle of last come first go would prevail as far as appointment and disengagement of mid day meal cook cum helper is concerned.
It is contended on behalf of the petitioner that it stands duly proved on record that the petitioner had joined as mid day meal worker in the said School in September, 2004 where as respondents No.5 and 6 joined after her and as such, action of respondents in dis-engaging her from service is totally contrary to ::: Downloaded on - 15/04/2017 20:58:43 :::HCHP
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the aforesaid instruction issued by the State of Himachal Pradesh.
Mr. Sharma, argued that bare perusal of the reply filed by .
respondents No. 5 and 6 clearly suggests that they were appointed at later point of time, whereas petitioner was appointed/engaged prior to them, but for no fault of her, her services were dis-engaged by respondent No. 4 and as such, of illegal action of terminating her services is required to rectified in accordance with law and petitioner deserves to be re-engaged rt as mid day worker in the said school. He also invited attention of this Court to the judgment passed in CWP No. 3599 of 2010 to demonstrate that principle of "last come first go" was required to be followed by the respondent while regulating the services of mid day meal cum helper.
9. Per contra, Mr. Rajat Chauhan, Law Officer, supported the decision taken by respondent No. 4 in appointing respondents No. 5 and 6 as mid day meal cook cum helper after terminating services of the petitioner. Shri Chauhan, invited attention of this Court to the record produced qua the appointment of the petitioner as well as respondents No. 5 and 6 by respondent No. 4 to demonstrate that on 7.5.2010 in the ::: Downloaded on - 15/04/2017 20:58:43 :::HCHP
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meeting of School Management Committee, it was decided that one person out of the petitioner and respondent No. 6 would be .
retained/appointed as mid day meal cook in the school and decision in that regard was to be taken on vote of committee members. He invited attention of this Court to that part of the decision, wherein it was specifically resolved that decision would of be binding on both the parties and in case of dis-obedience, her services would be terminated. As per Mr. Chauhan, Since rt petitioner failed to abide by the decision taken in meeting on 7th May, 2010, she invited termination from her engagement as mid day cook cum helper due to her misbehavior and dis-obedience.
Mr. Chauhan also invited attention of this Court to the guidelines/norms circulated for engaging cook-cum helper under the Scheme of State Government vide letter dated December, 2011, wherein specific norms have been laid down for appointing cook cum helpers under the Scheme. He specifically invited attention to the Clause-4 of the aforesaid guidelines, to demonstrate that different enrollment slabs have been provided for deciding that how many cook cum helpers can be appointed in one particular school. He also placed on record documents ::: Downloaded on - 15/04/2017 20:58:43 :::HCHP
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indicating strength of the students in school, which suggests that only 16 students are studying in the aforesaid school and as such .
one cook cum helper can be appointed in terms of clause 4 of the fresh guidelines vide letter dated 21.8.2011. Rather, careful perusal of clause-5 and 6 of the guidelines suggests that certain qualifications have been prescribed for appointment to the post of of mid day meal cook cum helper Mr. Chauhan, forcefully contended that initially petitioner along with respondent No. 5 rt was appointed as mid day meal cook cum helper in the primary school in 2004 on the batch wise basis for six months and as such, she continued to work till May, 2 010 but subsequently, her services were terminated on account of her insubordination and misbehavior.
10. M/s. L.S. Mehta and RS. Gautam, Advocates, appearing for respondents No. 5 and 6, respectively, also supported the decision of respondent No. 4 in terminating service of the petitioner. Both the counsel strenuously argued that respondents No. 5 and 6 were also appointed as mid day cook helper by respondent No. 4 in the said school along with petitioner on batch wise bases. Mr. Mehta specifically stated that ::: Downloaded on - 15/04/2017 20:58:43 :::HCHP
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respondent No. 5 continuously worked with petitioner in first batch specifically in terms of the decision taken by the Committee-
.
respondent No. 4 and thereafter, after the termination of the service of the petitioner, she was allowed to continue. Mr. Gautam, counsel for respondent No. 6 contended that there is no fault, if any, of respondent No. 6, who was appointed as mid day of cook in terms of resolution dated 5.2.2005 passed by the Committee and he also invited attention of the resolution dated rt 7.5.2010, wherein the Committee had decided that out of petitioner and respondent No. 6 i.e Meera Devi, one would be engaged and in this regard, decision would be taken by the vote of the committee members. Since, the petitioner did not accept the decision, her services were terminated and decision was taken to engage respondent No. 5 and respondent No.6 .
11. I have heard learned counsel for the parties as well carefully gone through the record
12. Conjoint reading of the pleadings as well as documents annexed with the same clearly suggests that the petitioner was appointed/engaged as mid day meal worker in 2004 and as such, she continued working till her termination in ::: Downloaded on - 15/04/2017 20:58:43 :::HCHP
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2010. But it also emerges from the record that the petitioner as well as one Smt. Sumitra Kumari were appointed as mid day meal .
cook and helper in September, 2004 in first batch for six months and thereafter, from February, 2004, this work was to be performed by respondents No. 5 and 6 Meera Devi and Prem Lata in the second batch for next six months. It also emerges from of the record that they continued performing their duties in batches till September, 2004 and thereafter Smt. Sumitra Kumari left the rt job. Record further reveals that since 2006, the petitioner and respondents No. 5 & 6 kept on performing their duties till 7.5.2010 on batch wise basis. Subsequently, on 7.5.2010 respondent No. 4, i.e. the Committee passed a resolution (Annexure R/2/T)and decided that Prem Lata may be appointed for mid day meal, whereas it was further resolved that only one person between petitioner and repondent No. 6 would be retained on the basis of vote to be cast by members of the committee. It was further resolved in resolution that the person, who would show dis-
obedience to decision of the Committee, would be terminated.
Since petitioner did not accept the decision of the committee, she was terminated and as a result of which, respondents No. 5 ::: Downloaded on - 15/04/2017 20:58:43 :::HCHP
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an 6 were engaged to work as mid day meal cook and helper.
Feeling aggrieved and dissatisfied with the termination, she .
approached this Court by way of present petition and sought direction to the respondents to reengage her as mid day meal cook in the said school.
13. Careful perusal of the averments contained in the writ of petition as well as submissions having been made at the time of hearing clearly suggests that petitioner has specifically rt challenged her termination on the ground of non-adhering to the principle of "last come first go" as provided in the instructions issued by the Government of HP in letter No. EDN-H/(EE)(4)4- 17/2008-MDM Policy dated 29.4.2010, wherein it has been specifically provided that principle of "last come first go" would prevail with regard to the appointment and disengagement of MDM cook cum helper in the primary schools.
14. With a view to ascertain the correctness and genuineness of the stand of the petitioner that her services could not be terminated ahead of respondents No. 5 and 6, who were appointed at later point of time, this Court had summoned record of appointment made by respondent No.4, which was produced ::: Downloaded on - 15/04/2017 20:58:43 :::HCHP
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in the Court during the proceedings of the case. Careful perusal of the record available to this Court suggests that initially .
petitioner was appointed by respondent No. 4 in terms of the resolution dated 31.8.2014, wherein it was decided that petitioner namely Kanta Devi as well as Sumitra Devi would be appointed as mid day meal cook for a period starting from September, 2004 till of February, 2005. Further perusal of resolution dated 31.8.2004 also suggests that in the same meeting ,it was also deicide that after rt February, 2005, respondent No. 5 Prem Lata and respondent No. 6 Meera Devi would be performing work of the mid day meal cook and mid day helper. Similarly, further perusal of the minutes of meeting of respondent No.4 also suggests that petitioner and Sumitra Devi respondent No.6 were again engaged as mid day cook and mid day helper for the period starting from September, 2004 to February, 2005. In this resolution, it was also resolved that after completion of period of aforesaid persons, respondents No. 5 and 6, would be working as mid day meal cook and mid day helper respectively.
15. This Court while examining records could also lay its hand to the minutes of meetings held from time to time w.e.f ::: Downloaded on - 15/04/2017 20:58:43 :::HCHP
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26.2.2005 till year, 2010, perusal whereof suggests that till 7th May, 2010, when next meeting of respondent No. 4 was held, aforesaid .
appointment of rendering services on batch basis by the petitioner, respondents No. 5 & 6 continued without there being any complaint. Thereafter, perusal of minutes of meeting held on 7.5.2010 suggests that it was unanimously resolved that of respondent No. 5 Prem Lata would be engaged as mid day meal cook, whereas only one person between petitioner and rt respondent No. 6 would be retained on the basis of vote to be cast by the members of the committee. Further perusal of the resolution (supra) suggests that, it was also resolved that person who will not honour the decision taken by the committee, would be terminated. Since petitioner did not accept the aforesaid decision, respondent No 4-Committee decided to terminate her services on account of misbehavior and appointed respondents No. 5 and 6 respectively as mid day meal cook and helper.
16. After perusing record made available to this court, one thing clearly emerges that on 31st August, 2004, respondent No. 4 had appointed the petitioner Kanta Devi, Sumitra Devi, Prem Lata (R-5) and Meera Devi (R-6) respectively for the said ::: Downloaded on - 15/04/2017 20:58:43 :::HCHP
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post, however, it was decided in that meeting that aforesaid persons would be working on batch basis. The petitioner as well .
as Sumitra Devi were allowed to work against the said post on batch wise basis from September, 2004 till february, 2005, whereas respondents No. 5 and 6 were engaged in batch starting from March, 2005 to September, 2005. It is also clear from the record of that aforesaid arrangement as was decided for meeting dated 31.8.2004 remained in practice/continued till 7th May, 2010, when rt respondent No. 4 passed resolution and terminated services of the petitioner on account of her dis-obedience and misbehaviors
17. In view of the above, it cannot be concluded that petitioner was appointed alone as mid day meal cook on 31.8.2004, because admittedly at that time there were other persons Sumitra Devi, Prem Lata and Meera Devi who were also appointed against the same posts for rendering their services in the said school. At this stage, the petitioner cannot be allowed to take benefit/advantage of the fact that pursuant to her appointment in terms of resolution dated 31.8.2004, she was allowed to work in first batch because admittedly, all the four persons named above, were also engaged as mid day meal ::: Downloaded on - 15/04/2017 20:58:43 :::HCHP
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cook and helper on 31.8.2004. Hence, contention put forth by the petitioner that her services could not be terminated by .
respondent No. 4 ahead of respondents No. 5 and 6 in violation of instructions contained in letter dated 29.4.2010, whereby it has been specifically instructed that principle of last come first go would prevail with regard to regulation of service of mid day cook of and helper in the primary schools. Hence, in view of the aforesaid facts, after perusal of the record, this court is of the considered rt view that judgment passed by this Court in 3599 of 2010 dated 23rd November, 2010 relied upon by the petitioner cannot be made applicable in the present facts and circumstances because bare perusal of the decision dated 23.11.2010 passed in CWP No. 3599 of 2010 suggests that persons junior to her in that case was retained at the time of termination of service of the petitioner but in the present case, as clearly emerge from the record that all the four persons including petitioner and one Smt. Sumitra Devi were appointed on same date vide same resolution dated 31.8.2004 and as such, it cannot be said that services of the petitioner were terminated in violation of the principle of "last come first go". Moreover, perusal of the records made available ::: Downloaded on - 15/04/2017 20:58:43 :::HCHP
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to this Court suggests that at present, keeping in view the strength of the school i.e 16 students, there is/was only requirement of one .
person in terms of the fresh guidelines issued by the State of Himachal Pradesh vide letter dated 8.12.2011, wherein specific slabs have been prescribed for making appointments of cook and helper in particular school. It is apt to reproduce clauses 4, 5 of and 6, which reads as under:-
"4. Student Norms of Engagement:
rt The Government of India vide letter F.No. 1-1/2008- Desk(MDM) dated 24th September, 2009 prescribed the norms for engaging the cook-cum-helper under this scheme, which has been implemented by the State Government vide letter No.EDN.F(4)4/2007-II dated 112.2010 as per following table:-
SN Enrolment No. of Cook-cum-
Slabs Helpers allowed
1 1-25 1
2. 26-100 2
3 101-200 3
4 201-300 4
5 301-400 5
6 401-500 6
7 501-600 7
8 601-700 8
9 701-800 9
10 801-900 10
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5.Mode of appointment:-
The appointment shall be made by the School .
Managing Committees (SMC) at the school level.
6. Eligibility Criteria:
Only such candidates will be eligible to apply of the post of MDM Cook cum Helper, who are:-
a) Citizen of India.
of
b) Permanent resident of the village/Gram Panchayat/Urban local body of the area, in which the school is located.
rt c) The candidates belonging to such adjacent Gram Panchayats where there is no GSSS/GHS/GMS/GPS shall have the opportunity with him/her to apply for the post of Cook cum helper falling vacant in the equivalent school situated in the adjacent Panchayats.
d) Should be medically fit and free from any contagious disease.
e) Not involved in any act of crime.
f) Has knowledge/ experience of cooking for the children."
It is ample clear from the perusal of the clauses (supra )that fresh guidelines have been issued vide letter dated 8.12.2011 and as per same, only one person can be appointed in the school.
Apart from above, fresh mode of appointment has been ::: Downloaded on - 15/04/2017 20:58:43 :::HCHP
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provided by aforesaid letter, wherein specific eligibility criterion has been provided by the respondent for engaging mid day .
meal cook cum helper.
18. Hence, in view the aforesaid discussion as well as fresh guidelines issued by respondents, this Court deems it fit to direct respondent No. 4 to make fresh appointment of the said post in of the school strictly in terms of fresh guidelines circulated vide communication dated 8.12.2011. At this stage, it may be rt observed that practice of respondent No.4 appointing four persons qua two posts i.e. one mid day cook and one mid day helper in one school that too on batch wise basis cannot be termed to be a healthy practice. Rather, this decision has created lot of confusion among the petitioner as well as other respondents, who were appointed on same day in same school vide resolution dated 31.8.2004. Accordingly, this Court solely with a view to bring transparency and clarity with regard to appointment of mid day meal cook and helper in the Government Primary School Garyala, Tehsil Karsog, District Mandi, HP, deems it fit to direct respondent No. 4 to make fresh appointments strictly in terms of fresh guidelines as has been ::: Downloaded on - 15/04/2017 20:58:43 :::HCHP
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referred above to the said post under the scheme. Needless to say, it would be open for the petitioner as well as for respondents .
No. 5 and 6 to participate in the fresh selection process to be carried out by the respondent No. 4 in terms of this Judgment subject to their eligibility. Consequently in view of the above, petition is disposed of accordingly, along with pending of application(s), if any.
5th August, 2016
rt (Sandeep Sharma),
Judge.
manjit
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