Himachal Pradesh High Court
Mool Raj & Ors vs State Of Himachal Pradesh & Ors on 22 October, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 11266 of 2011
Date of Decision: 22.10.2016
______________________________ _________________________
.
[
Mool Raj & Ors. ......Petitioners
Versus
State of Himachal Pradesh & Ors. ..........Respondents
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
of
Whether approved for reporting1? No
For the petitioners: Mr. Hamender Singh Chandel, Advocate.
For the respondents: Mr. Rupinder Singh Thakur, Additional
rt Advocate General, with Mr. Rajat
Chauhan, Law Officer, for respondents No.1
to 3.
Mr. Rahul Mahajan, Advocate, for
respondent No.6.
Sandeep Sharma, J. (Oral)
By way of present writ petition, the petitioners have prayed for following main reliefs:-
1. That the order dated 4.11.2011, Annexure P-7, may be quashed and set aside. The selection of respondent No.6 at GSSS Pahal may be held illegal and set-aside.
2. That the selection/appointment as PET on PTA basis at Govt.
Middle School Bhamot, Tehsil Sunni, District Shimla, HP, may be done in accordance with the policy guidelines issued by the Government and the law laid down by this Hon'ble Court.
2. "Key facts" as emerge from the record are that in the year, 2007, process was initiated by respondent No.5 i.e. School Management Committee, Govt. Sr. Sec. School, Pahal Tehsil Sunni, Whether reporters of the Local papers are allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 21:25:56 :::HCHP -2-District Shimla, H.P., for filing up one post of Physical Education Teacher (PET) on PTA basis. Pursuant to aforesaid process, petitioner .
as well as respondent No.6 along with other eligible candidates applied for the posts. Interview was held on 20.8.2007 and respondent No.6 was selected by the Selection Committee and was offered appointment on PTA basis in the above school. Being aggrieved by of the alleged illegal selection of respondent No.6, present petitioner and other candidates, who appeared in interview dated 20.8.2007 filed complaint before Inquiry Committee headed by respondent rt No.3. Pursuant to aforesaid compliant, respondent No.3, after holding inquiry, termed selection of respondent No. 6 as illegal since same was not held to be in accordance with the policy guidelines framed for the purpose of appointment on PTA basis (Annexure P-1). It also emerge from the record that respondent No.6 being aggrieved and dis-satisfied with the order passed by respondent No.3, preferred an appeal before the worthy Deputy Commissioner, Shimla, which was disposed of vide order dated 24th June, 2009 (Annexure P-2), whereby matter was remanded back to respondent No.3 for fresh inquiry.
Respondent No.3 again conducted the inquiry and concluded that selection of respondent No.6 was illegal (Annexure P-3). But fact remains that respondent No.6 again preferred appeal before the learned Deputy Commissioner, which was rejected vide order dated ::: Downloaded on - 15/04/2017 21:25:56 :::HCHP -3- 10.5.2010(Annexure P-4). Respondent No. 6 preferred CWP No. 4448 of 2010 before this Court laying therein challenge to the order passed .
by respondent No.3 as well as the Deputy Commissioner, Shimla, this Court vide order dated 27.4.2011 disposed of the aforesaid writ petition and quashed the order dated 10.5.2010 i.e Annexure P-7 passed by the Deputy Commissioner in the appeal preferred by of respondent No.6. At this stage, it would be apt to reproduce herein below, the order dated 27.4.2011 passed by this Court in CWP No. 4448 of 2010. rt "1. From the impugned order dated 10.5.2010 (Annexure P-7) it is quite apparent that the decision is based on the findings of the Sub Divisional Enquiry Committee/Sub Divisional Magistrate which considered the petitioner's merit on the basis of the guidelines issued subsequent to the selection of the petitioner. The selection took place in a meeting held by the P.T.A. on 23.8.2007 whereas the criteria laid down by the Government, as relied upon and applied by the appropriate authority is laid down in the notification dated 27.5.2008. Thus the action of the respondent is clearly illegal.
2. Consequently on this short ground alone, Annexure P-7 is quashed with a direction to respondent No. 5 to consider the petitioner's case afresh and take decision, in accordance with law, after issuing notice to all concerned. Needful be positively done within a period of two months from today.
3. Petitioner submits that there is vacancy lying in Middle School, Bhamot. It is open for her to bring this fact to the notice of the concerned authority who may consider accommodating her there, in accordance with law."
3. Perusal of aforesaid order clearly suggests that since finding of the Sub-Divisional Enquiry Committee/Sub Divisional Magistrate was based on the guidelines issued subsequent to the ::: Downloaded on - 15/04/2017 21:25:56 :::HCHP -4- selection of the respondent No.6, this Court vide aforesaid order quashed the order dated 10.5.2010, passed by the learned Deputy .
Commissioner, whereby he had upheld the order passed by the Sub Divisional Enquiry Committee/ Sub Divisional Magistrate with direction to respondent No.5 to consider the petitioner's case afresh and take decision in accordance with law after issuing notices to all concern. It of also emerge from the record that Court while passing the aforesaid order came to conclusion that since selection of respondent No.6 took place in meeting held by PTA on 23.8.2007, the guidelines issued rt subsequent to aforesaid selection could not be relied upon by the Sub-Divisional Inquiry Committee/ Sub Divisional Magistrate while looking into the complaint filed by the petitioner herein. Para-3 of the aforesaid order further suggests that respondent No. 6 submitted before the Court that there is a vacancy lying in the Middle School Bhamot and as such, this Court in view of the aforesaid submissions having been made on behalf of the petitioner (respondent No.6), directed her to bring the aforesaid fact to the notice of concerned authority, which was decided to accommodate her there in accordance with law.
4. Subsequent to passing of aforesaid directions passed by this Court, the Sub-Divisional Magistrate (Rural) Shimla, passed order dated 4.11.2011, whereby authority on the basis of material made ::: Downloaded on - 15/04/2017 21:25:56 :::HCHP -5- available to it, came to conclusion that there was no irregularity in the selection of respondent No.6 and as such, held appointment of .
respondent No.6 valid in terms of PTA Rules in vogue at that relevant time. However, fact remains that since by that time, post of PET at Govt. Sr. Secondary School, Pahal, had been filled up on regular basis, Sub -Divisional Magistrate Shimla (Rural ) relying upon judgment of passed by the Division Bench of this Court in CWP No. 2702 of 2010 titled "Jagdeep Singh v. State of HP and ors" directed respondents No. 3 and 4 to appoint respondent No.6 either in Govt. Middle School rt Bhamot or Govt. Sr. Secondary School, Pahal, after accommodating the regular PET at nearby school. Pursuant to passing of aforesaid order by SDM (Rural) Shimla, respondent No.6 was offered appointment as PET on PTA basis at Govt. Middle School Bhamot, Tehsil Sunni, District Shimla, HP.
5. Since respondent No. 3 offered appointment to respondent No. 6 as PET at Govt. Middle School, Bhamot in terms of order dated 4.11. 2011 passed by SDM Shimla (A-7), present petitioner approached this Court by way of present petition praying therein for reliefs as reproduced above.
6. Mr. Hamender Singh Chandel, Vehemently argued that this Court while disposing of CWP No. 4448 of 2010 never directed respondent to give appointment to respondent No.6 in Middle School ::: Downloaded on - 15/04/2017 21:25:56 :::HCHP -6- Bhamot, on PTA basis. Rather this Court on the basis of submissions having been made on behalf of the petitioner simply observed that .
there is vacancy lying in Middle School Bhamot and it is open for the petitioner to bring this fact to the notice of the concerned authority who may accommodate her there in accordance with law. Mr. Chandel, while inviting attention of this Court to Annexure P-7 i.e order of dated 4.11.2011 passed by the SDM (Rural) Shimla, also contended that there was no authority, if any, with the SDM to direct respondent No.3 to offer appointment to respondent No. 6 at Govt. Middle rt School, Bhamot because that was being managed altogether by different PTA i.e. PTA Govt. Middle School Bhamot. He further stated that respondent No. 6 was offered post of PET on PTA basis on 23.8.2007 by the PTA Government Sr. Secondary School Pahal and by no stretch of imagination, she could be offered appointment in the Govt. Middle School on the basis of selection carried out by PTA Govt.
Senior Secondary School, Pahal in terms of interview held on 23.8.2007.
While specifically referring to the order dated 4.11.2011 passed by Sub Divisional Magistrate, Shimla (Rural) in terms of order dated 27.4.2011 in CWP No. 4448 of 2010. Mr. Chandel strenuously contended that since post of PTA qua which respondent No.6 was offered the appointment, pursuant to interview dated 23.8.2007, had been filled up in the Govt. Sr. Secondary School Pahal on regular basis, there was ::: Downloaded on - 15/04/2017 21:25:56 :::HCHP -7- no occasion, whatsoever to offer appointment to respondent No. 6 in another school that i.e Bhamot.
.
7. Mr. Rupinder Singh Thakur, learned Additional Advocate General, assisted by Mr. Rajat Chauhan, Law officer while referring to order dated 4.11.2011, passed by SDM Rural stated that same was rightly passed in compliance to order dated 27.4.2011 in CWP No. of 4448 of 2010, wherein direction was issued to conduct fresh inquiry into the matter. He further stated that perusal of fresh inquiry conducted by SDM clearly suggests that no substance was found in the contents rt of the complaint filed by the present petitioners and as such, selection of respondent No.6 was held valid and she was offered appointment accordingly. He has further stated that since the post of PET at Govt.
Sr. Secondary School Pahal, had been filled on regular basis, respondent No.6 was rightly offered appointment on PTA basis at Government Middle School, Bhamot in light of the judgment passed by the Division Bench in CWP No. 2702 of 2010.
8. Mr. Rahul Mahajan, Counsel, representing respondent No. 6 also supported the order dated 4.11.2011 whereby respondents No. 3 and 4 were directed to appoint respondent No.6 either in Govt.
Middle School, Bhamot or Government Senior Secondary School, Pahal after accommodating the regular PET at nearby school. He further contended that since in fresh inquiry conducted by S.D.O. in ::: Downloaded on - 15/04/2017 21:25:56 :::HCHP -8- terms of order passed by this Court, selection of respondent No.6 pursuant to interview dated 23.8.2007 was held valid, she deserved to .
be appointed at Government Senior Secondary School, Pahal but since during the pendency of the aforesaid dispute, post of Physical Education Teacher at Government Senior Secondary School, Pahal had been filled up on regular basis, she was rightly offered of appointment at Govt. Senior Middle School, Bhamot, on the basis of her selection in a interview held by PTA on 23.8.2007. In the aforesaid background, the respondents prayed for dismissal of the present rt petition being devoid of any merit.
9. I have heard learned counsel for the parties as well carefully gone through the record.
10. It is undisputed before me that pursuant to selection process initiated by PTA Govt. Senior Secondary School, Pahal, present petitioner as well as respondent No. 6 applied for the post of PET on PTA basis at Govt. Senior Secondary School Pahal. It is also not disputed that on 23.8.2007, interview committee found respondent No.6 eligible to be appointed on PTA basis against the post of PET available at Govt. Senior Secondary School, Pahal but being aggrieved and dissatisfied with the selection of respondent No. 6, the petitioner herein filed complaint before Sub-Divisional Officer Rural Shimla alleging therein that appointment of respondent No.6 was not ::: Downloaded on - 15/04/2017 21:25:56 :::HCHP -9- in accordance with the PTA Rules. SDO (Shimla) on the basis of two inquiries conducted on two occasions came to conclusion that .
selection of respondent No.6 was not in accordance with the law and as such, set aside the same. Subsequent to passing of aforesaid order by SDO (Rural) Shimla, respondent No.6 preferred an appeal before the Deputy Commissioner, Shimla, who vide order dated 10.5.2010, of rejected the same. Thereafter, this Court in CWP No. 4448 of 2010, preferred by respondent No. 6 came to conclusion that Sub Divisional Inquiry Committee/SDM while rejecting/setting aside the appointment rt of respondent No. 6 considered the petitioners' merits on the basis of guidelines and as such, it set aside the order passed by the Deputy Commissioner with direction consider the case of the petitioners afresh and decide in accordance with the law. Perusal of Annexure P-7 i.e. order dated 4.11.2011 passed by the SDM (Rural) Shimla, though suggests that pursuant to directions contained in order dated 27.4.2011, passed in CWP No 4448 of 2010, matter was inquired afresh by the Sub-Divisional Magistrate Shimla (Rural), wherein the appointment of respondent No. 6 pursuant to interview held on 23.8.2007 was held valid but fact remains that by that time, post of PET qua which, respondent was appointed, was filled up in the Govt.
Senior Secondary School, Pahal on regular basis. At this Stage, it may be observed that initially, selection of respondent No.6 pursuant to ::: Downloaded on - 15/04/2017 21:25:56 :::HCHP
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interview held on 23.8.2007, conducted by PTA Government Senior Secondary School, Pahal was against the post of PET at Government .
Senior Secondary School, Pahal, which admittedly came to be filled up on regular basis before passing of order dated 4.11.2011 by SDM Shimla (Rural) and this Court is of the view that since post of Physical Education Teacher at Government Sr. Secondary School, Pahal was of filled up on regular basis, there was no authority, whatsoever, with the SDM Shimla (Rural) to direct respondent Nos. 3 and 4 to offer appointment to the petitioner either in Govt. Middle School Bhamot or rt Govt. Sr. Secondary School, Pahal after accommodating the regular PET at nearby School. Once it stands established on record that the post of PET qua which respondent No.6 was appointed on PTA basis in terms of interview dated 23.8.2007, stood filled on regular basis, it is not understood under what law/authority, the Sub Divisional Magistrate Shimla (Rural) ordered respondent Nos. 3 and 4 to offer appointment to respondent No.6 either in Govt. Middle School Bhamot or Govt. Sr. Secondary School, Pahal after accommodating the regular PET at nearby school.
11. Needless to say, appointment, if any, on PTA basis is purely temporary arrangement till the time post is not filled up on regular basis. Since in the present case, respondent No.6 was appointed on PTA basis qua the post of PET Govt. Senior Secondary ::: Downloaded on - 15/04/2017 21:25:56 :::HCHP
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School, Pahal, SDM was not right in directing respondents No. 3 and 4 to appoint respondent No.6 either in Govt. Middle School Bhamot or .
Govt. Sr. Secondary School, Pahal after accommodating the regular PET at nearby school, rather, this Court is of the view that claim, if any, of the respondent No.6 qua the post of PET on PTA basis at Govt. Sr. Secondary School, Pahal had come to an end immediately after the of appointment of regular hand qua the post of PET at Govt. Sr. Secondary School Pahal.
12. Apart from above, this Court after perusing order dated rt 4.11.2011 (Annexure P-7) is at loss to fathom that how SDM Rural applied judgment of Division Bench of this Court in CWP No. 2702 of 2010 titled "Jagdeep Singh v. State of HP and Ors." while directing respondents No. 3 and 4 to appoint respondent No.6 either in Govt.
Middle School Bhamot or Govt. Sr. Secondary School, Pahal because perusal of aforesaid judgment, nowhere suggests that same could be made applicable in the case of respondent No. 6 because perusal whereof clearly suggests that there was no general direction, rather, same was confined to the case of Jagdeep Singh only and as such, this Court has no hesitation to conclude that SDM (Rural) wrongly applied the same in the case of respondent No.6 while offering her appointment at Govt. Middle School Bhamot.
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13. Now while adverting to the another contention put forth by respondent No.6 that respondent No. 6 was rightly offered .
appointment at Govt. Middle School, Bhamot in terms of order dated 27.4.2011 passed by this Court in CWP No. 4448 of 2010, this Court finds that there was no such direction passed by this Court on 27.4.2011 in CWP No.4448 of 2010 to offer appointment to respondent No.6 in of Govt. Middle School, Bhamot, rather, para-3 of the odrer which has already been reproduced above, clearly suggests that respondent No.6 (petitioner) had submitted before the Court that there is a rt vacant post lying in Govt. Middle School, Bhamot and this Court directed her to bring aforesaid fact to the notice of the aforesaid authority who were directed to consider/accommodate her there in accordance with law.
14. At the cost of repetition, especially, in view of the facts and circumstances, as has been discussed in detail, this Court is of the view that no appointment, if any, could be offered to respondent No.6, especially, at Govt. Middle School, Bhamot on the basis of her initial selection held on 23.8.2007 by PTA Government Senior Secondary School, Pahal because advertisement, if any, by PTA Government Secondary School, Pahal was for Govt. Sr. Secondary School, Pahal, not Govt. Middle School, Bhamot.
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15. During proceedings of the case I was informed that there are two different PTAs for aforesaid two schools. After carefully .
perusing the entire record as well as pleadings available on record, it can be safely concluded that neither PTA Bhamot initiated any process for filing up posts of PET on PTA basis nor respondent No.6 was offered appointment as PET by PTA Bhamot, rather, respondent No.6 of was offered appointment by PTA Government Sr. Secondary School, Pahal vide interview dated 23.8.2007, which later came to be filled on regular basis. rt
16. Consequently, in view of the detailed discussion made herein above, present petition is allowed and Annexure P-7 i.e. order dated 4.11.2011, passed by the SDM, wherein directions were issued to respondent No.3 and 4 to offer appointment to respondent No. 6 Bhamot, are quashed and set-aside. However this Court, keeping in view the fact that respondent No.6 at present is working against post of PET at Govt. Middle School Bhamot without proper selection by PTA of Govt. Middle School Bhamot, deems it fit to issue directions to PTA Bhamot to initiate fresh selection process for appointment of PET on PTA basis if post is available strictly in accordance with the PTA Rules in vogue, wherein present petitioner as well as respondent No. 6 can also participate subject to their eligibility. However, it is ordered that till the time fresh selection process is completed, respondent No. 6 shall ::: Downloaded on - 15/04/2017 21:25:56 :::HCHP
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be allowed to continue as PET on PTA basis in the Govt. Middle School Bhamot. Concerned authorities are directed to complete the entire .
selection process, as has been ordered by this judgment afresh within a period of six months. The petition stands disposed of, so also pending application(s), if any.
of
22nd September, 2016 (Sandeep Sharma),
manjit Judge.
rt
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