Himachal Pradesh High Court
Savitri Devi vs State Of Himachal Pradesh & Ors on 13 December, 2016
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No. 2902 of 2013 Reserved on: 16.11.2016 Decided on: 05.12.2016 .
_______________________________________________________________ Savitri Devi. .....Petitioner.
Versus State of Himachal Pradesh & Ors.
......Respondents.
_____________________________________________________________ Coram The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
of 1 Whether approved for reporting? Yes.
For the petitioner: Ms. Ranjana Parmar, Sr. Advocate
rt with Ms. Komal Kumari, Advocate.
For the respondents: Mr. Virender K. Verma, Addl. AG,
with Mr. Pushpinder Jaswal, Dy.
AG, for respondents No. 1 to 3 & 5.
Mr. Pavnesh Thakur, Advocate, for
respondent No. 4.
Mr. Onkar Jairath, Advocate, for
respondent No. 6.
_______________________________________________________________ Chander Bhusan Barowalia, Judge.
The present writ petition is maintained by the petitioner, laying challenge against the order dated 04.05.2013, terminating the services of the petitioner, as Drawing Teacher, on which she was working as PTA (GIA) basis.
2. As per the petitioner, she was initially appointed on 20.09.2007, as Drawing Teacher on PTA basis, under grant in aid 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 21:43:40 :::HCHP 2policy. The petitioner continued teaching for last five years and there was no complaint from any quarter concern against her.
On 13.03.2013, respondent No. 5, being Principal of the School, .
misbehaved with the petitioner and before that also humiliated the petitioner on different occasions. On 13.05.2013, respondent No. 5 also gave beatings to the petitioner and threatened her that he will terminate her services. According to the petitioner, of respondent No. 5 has physically exploited her, when she agitated, the services of the petitioner had been wrongly terminated. To this effect, the petitioner lodged FIR, bearing No. rt 33/2013 at Police Station Kot Kehloor, District Bilaspur and case under Section 353, 332 read with Section, 34 of IPC was registered against respondent No. 5. The husband of the petitioner was also teaching in the same School and vide resolution dated 04.05.2013, he was recommended to be transferred to remote area. The service of the petitioner has been terminated by respondent No. 4 by passing the resolution, as he was the Secretary of the SMC. Respondent No. 5 has tried to force the petitioner to withdraw her complaint and when she did not accede his request, services of the petitioner, through SMC, were terminated. It is averred in the writ petition that no show cause notice was issued to explain the charges leveled against the petitioner, as such no enquiry was conducted to this ::: Downloaded on - 15/04/2017 21:43:40 :::HCHP 3 effect. Respondent No. 5, has passed the resolution only to take revenge, as petitioner has lodged FIR against him. Thus, the petitioner is praying for setting aside the order dated 04.05.2013 .
(Annexure P-1).
3. Reply to the writ petition, on behalf of respondents No. 1, 2, 3 & 5 has been filed through respondent No. 2, wherein it is averred that on 20.09.2007, in absence of PTA Committee, of the petitioner was engaged as Drawing Master on PTA basis by the then officiating Principal (who is the husband of the petitioner) of GSSS Saloa, District Bilaspur. The person, who was rt working earlier as Drawing Master in the said school, was transferred to GHS Kallar, District Bilaspur and was relieved from his duties on 18.09.2007. On the same day, resolution for filling up the post of Drawing Master, was passed by PTA Committee and applications were invited amongst the eligible candidates upto 19.09.2007. However, no record regarding said advertisement has been annexed by the petitioner. The date of interview was fixed for 20.09.2007 and petitioner was shown meritorious and appointment letter was issued to the petitioner. It is further averred in the reply that the appointment of the petitioner has not been made as per procedure laid down under Grant in Aid Rules, 2006, as adequate time for other candidates to submit their applications were not provided by the PTA Committee and ::: Downloaded on - 15/04/2017 21:43:40 :::HCHP 4 the whole process was concluded in hastily manner, which was merely a formality. Thus, the petition filed by the petitioner deserves to be dismissed.
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4. Reply to the writ petition was also filed by respondent No. 4, wherein it is averred that the petitioner was not eligible to be appointed as Drawing Master, as she did not studied the Drawing subject upto matriculation. The petitioner of has undertaken two courses i.e. 10+2 examination in the month of March, 2004 (Annexure R-4/A) and two years' diploma in Art & Craft in the month of July, 2005 (Annexure R-4/B), which show rt that the petitioner has done two courses at the same time. It is further averred that the petitioner has been awarded marks under the head "experience", for which she was not eligible, as she failed to produce the experience certificate at that relevant time, but later on her husband managed to produce the same by forged signature of Deputy Director of Education i.e. Annexure R-4/C. It is further averred that when the interview for the said post was conducted, husband of the petitioner was officiating as Principal of the School, which is illegal and against the settled principle of law. The merit list (Annexure R-4/D) prepared by the Selection Committee was signed by the husband of the petitioner. Thus, the appointment of the petitioner has been rightly terminated by the replying respondent ::: Downloaded on - 15/04/2017 21:43:40 :::HCHP 5 and the petition filed by the petitioner deserves to be dismissed with heavy costs.
5. Respondent No. 6 has also filed a reply and stating .
therein that the husband of the petitioner, in order to give undue advantage to her wife, selected his wife and denied the appointment of replying respondent, who was eligible for being appointed as Drawing Master. It is further averred that the marks of under the head "experience" were awarded to the petitioner, by way of forging the experience certificate. The experience certificate was also counter signed by the Deputy Director, rt Bilaspur on 07.07.2008 i.e., much later to the date of interview i.e. 20.09.2007. Hence, the present petition, preferred by the petitioner deserves to be dismissed.
6. The petitioner filed separate rejoinders to the replies filed by the respondents, wherein contents of the reply were denied and the averments made in the petition were reiterated.
7. Learned counsel for the petitioner has argued that the services of the petitioner have been terminated, without following the principles of natural justice. Respondent No. 5, against whom the petitioner has filed the complaint, acted as a disciplinary authority to terminate the services of the petitioner.
Learned counsel for the petitioner has further argued that, inspite of taking action against respondent No. 5, the respondents have ::: Downloaded on - 15/04/2017 21:43:40 :::HCHP 6 chosen to terminate the services of the petitioner. Respondent No. 5, who was interested person himself, passed the resolution for terminating the services of the petitioner.
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8. On the other hand, learned Additional Advocate General, has argued that the conduct of the petitioner and her husband was illegal and they had given beatings to the Principal of the School, i.e. respondent No. 5, hence the services of the of petitioner were rightly terminated by the Committee.
9. Learned counsel appearing on behalf of respondent No. 4 has argued that the services of the petitioner were rt terminated after following the due process.
10. Learned counsel appearing on behalf of respondent No. 6 has vehemently argued that the petitioner was appointed by none else, but her husband, when the husband of the petitioner was working as a Principal of the School and her appointment is void ab initio.
11. In rebuttal, learned counsel for the petitioner has argued that the petitioner was not appointed by her husband, but she was appointment by the Committee of which her husband was not a member. She has further stated that respondent No. 6, who was not eligible on the day of interview, manipulated the things against the petitioner. She has further argued that the husband of the petitioner has only counter ::: Downloaded on - 15/04/2017 21:43:40 :::HCHP 7 signed the recommendations of the Selection Committee as officiating Principal.
12. To appreciate the arguments of learned counsel for .
the parties, I have gone through the record carefully.
13. At the very outset, I would like to discuss the process of appointment of the petitioner. The petitioner was selected by the Committee, through proceedings, enclosed alongwith the of writ petition, as Annexure A-1. The proceedings shows that out of four candidates called, three candidates including the petitioner and respondent No. 6 were called for the interview and the rt petitioner obtained maximum marks. The proceedings of the Committee are, however, counter signed by Raj Kumar, who is stated to be the husband of the petitioner, but prime facie do not show that husband of the petitioner was a member of the Selection Committee, as the members of the Selection Committee were other three persons, including President of PTA, Subject expert and Secretary of the PTA. It has also come on record that respondent No. 6 has already assailed the appointment of the petitioner by filing a civil writ petition before this Hon'ble High Court. The aforesaid writ petition had been taken up by this Hon'ble Court on 21.04.2008 and direction was passed to the authority to consider and decide the same in accordance with law by passing a speaking order. Pursuant to ::: Downloaded on - 15/04/2017 21:43:40 :::HCHP 8 the directions of this Hon'ble Court, the matter was taken up by the competent authority and the same was decided on 10.10.2008, whereby the competent authority has upheld the .
appointment of the petitioner. Thereafter, the said order was not assailed and it attained finality, thus appointment of the petitioner cannot be questioned again, after such a longtime by the respondents.
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14. Now, the next question which arises for determination in the present writ petition is that whether the termination order of the petitioner, passed by the respondents is rt legally sustainable or not? Respondents No. 1 to 3 & 5 in their reply, has specifically stated in this regard, that as per the information received from respondent No. 5, the petitioner and her husband have oftenly misbehaved with him and disobeyed his orders, which created nuisance in the School and adversely affected the studies of the students, consequently, the services of the petitioner were rightly terminated by the SMC of the said institution. It has been further alleged that the petitioner was under the shelter of her husband, who was also working as Lecturer (Hindi) and used to officiate as Principal, in the absence of respondent No. 5. As per respondents No. 1 to 3 & 5, the petitioner and her husband have badly beaten respondent No. 5 while he was on duty and the matter was also reported to the ::: Downloaded on - 15/04/2017 21:43:40 :::HCHP 9 Police, vide FIR No. 32 dated 13.03.2013, registered under Sections 353, 332 and 34 of IPC. It is further stated that respondent No. 5 is competent to terminate the services of the .
petitioner, as per the guidelines.
15. The respondents have nowhere stated that they had followed the procedure, as prescribed, nor given any notice to the petitioner before terminating her services. It has come on of record that the petitioner has also lodged report against respondent No. 5, which was not registered by the Police and only after the intervention of the Court, the same was registered rt i.e., FIR No. 33 of 2013 at Police Station Kot Kehloor, District Bilaspur, under Sections 353, 332 read with Section, 34 of IPC.
Meaning thereby that the FIR is also pending against respondent No. 5. In these circumstances, it is very clear that respondent No. 5 passed the order of termination when he was interested, so, the same is nothing, but a mala fide order, which is unreasonable, unconstitutional and not sustainable in the eyes of law. Respondent No. 5 was interested, as he was himself a complainant, as well as named accused by the petitioner in her complaint. The petitioner has specifically stated that inspite of taking action against respondent No. 5, as per the guidelines of Hon'ble Supreme Court in "Vishakha's" case, respondent No. 5 was asking the petitioner to withdraw her complaint and ::: Downloaded on - 15/04/2017 21:43:40 :::HCHP 10 allegations and when she refused, the order was passed. Further the petitioner was not heard before passing the order against her.
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16. So, it is amply clear that the order of termination passed by respondents, terminating the services of the petitioner, as PTA Teacher, is beyond the confines of legitimacy, arbitrary, unconstitutional, against the principles of natural justice, void ab of initio and without affording opportunity of being heard to the petitioner, passed by respondent No. 5, who was an interested person and is thus mala fide and not sustainable. Therefore, the rt termination order of the petitioner, as Drawing Master PTA, (Annexure P-1) dated 04.05.2013, is not sustainable and is accordingly quashed. As a result of quashing of this order, the petitioner is held entitled for all the benefits which accrued to her, after passing order dated 04.05.2013 (Annexure P-1), being non-existent.
17. Accordingly, the present writ petition is allowed and order dated 04.05.2013 (Annexure P-1) is quashed and the petitioner is held entitled for all consequential benefits, including reinstatement.
18. However, in the peculiar facts and circumstances of the case, parties are left to bear their own cost(s).
::: Downloaded on - 15/04/2017 21:43:40 :::HCHP 1119. In view of the above, the writ petition, as also pending application(s), if any, shall stand(s) disposed of.
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(Chander Bhusan Barowalia) Judge 5th December, 2016 (raman) of rt ::: Downloaded on - 15/04/2017 21:43:40 :::HCHP