Himachal Pradesh High Court
Smt. Kusum Lata vs State Of Himachal Pradesh And Others on 29 November, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CWP No. 6472 of 2014
Decided on : November 29, 2016
Smt. Kusum Lata ................Petitioner
.
Versus
State of Himachal Pradesh and others ..........Respondents
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge
Whether approved for reporting? Yes.
For the petitioner : Mr. K.C. Sankhyan, Advocate.
of
For the respondents : Mr. Ramesh Thakur, Deputy Advocate
General for respondents No.1 to 3.
rt Respondents No.4 and 5 ex parte.
Mr. Rajinder Singh Dogra, Advocate, for
respondent No.5.
Sandeep Sharma, Judge:
By way of present petition under Article 226 of the Constitution of India, petitioner has prayed for following main reliefs:
"i) That the selection and appointment of respondent No.5 Sh. Paras Ram as PGT (Eng) SMC issued vide order dated 18th July,2014 (Annexure P-9) may kindly be quashed and set aside and the respondents may kindly be directed to appoint the petitioner as PGT(Eng) under SMC Govt. SSS Gadagussain, Distt. Mandi forthwith.
ii). That the respondents particularly respondent No. Director, Hr.Edu. HP Shimla be directed to conduct detailed enquiry into the matter and panelize the respondent concerned for the act of commission & omission in deliberately ignoring the petitioner for her appointment."
2. Briefly stated the facts, as emerge from record are that the School Management Committee of Government Senior Secondary School Gadagussain (in short, 'SMC') advertised one post of PGT (English) as per "policy to engage Teacher(s) through the School ::: Downloaded on - 15/04/2017 21:38:22 :::HCHP 2 Management Committee purely on period basis in Elementary/Higher Education Department of Himachal Pradesh in Tribal/Difficult areas"
(annexure P-6 dated 17.7.2012). Petitioner being eligible candidate also applied for the post of PGT (English) on SMC basis for GSSS .
Gadagussain alongwith other fourteen candidates. As per record, interview was conducted on 26.6.2014 by respondents No.2 and 3, wherein eight candidates including petitioner and respondent No.5 appeared. On the basis of aforesaid interview held on 26.6.2014, SMC of declared result on 18.7.2014, wherein respondent No.5 was declared selected. After the selection of respondent No.5, petitioner procured rt copy of appointment letter issued in favour of respondent No.5 and also the result sheet of the interview held on 26.6.2014, under Right to Information Act. On the perusal of result sheet procured by the petitioner under Right to Information Act, petitioner came to know that respondent No5. has been given 10 marks being permanent resident of Patwar Circle Gadagussain, whereas respondent No.5 was permanent resident of village Pattan, Mohal Seraj, Tehsil Banjar, District Kullu (Annexure P-7). Since respondent No. 5 was awarded 10 marks for his being permanent resident of Patwar Circle, he had procured 35.17 marks in total, whereas petitioner who was actually resident of Patwar Circle Gadagussain procured 33.99 marks. As per the petitioner, if 10 marks awarded to respondent No. 5 on account of his being permanent resident of Patwar Circle Gadagussain are deducted as per policy, he could not have been at Sr. No. 1 and selected to the post of PGT (English) in the School concerned, as such, selection of respondent No. 5 deserves to be quashed and set aside being contrary to the recruitment procedure as laid down under the ::: Downloaded on - 15/04/2017 21:38:22 :::HCHP 3 Policy. Petitioner, after coming to know of aforesaid illegality having been committed by the interview committee, made a representation to respondent Nos. 3 and 4 praying therein for reviewing the wrong selection but when no action was taken, he got issued a legal notice .
(Annexure P-11) on 7.8.2014 under Section 80 CPC, to the respondents calling upon them to review selection of respondent No.5.
Since no action whatsoever, pursuant to issuance of legal notice was taken by the respondent, she was compelled to file instant writ of petition before this Court.
3. Pursuant to issuance of notice by this Court, respondent rt No. 5 i.e. selected candidate Paras Ram, filed reply, wherein he refuted the claim of the petitioner by stating that he was also permanent resident of village Thachadhar, Gram Panchayat Thachadhar, PO Gadagussain, Sub-tehsil Balichowki, District Mandi, which falls within Patwar Circle, Gadagussain, as per certificate, annexure R-5/A. He further claimed that he was rightly awarded 10 marks on the basis of his being resident of Patwar Circle Gadagussain.
4. Respondents No.1 to 4 failed to file any reply. However, during the course of hearing today, learned Deputy Advocate General, made available copy of communication sent by the Principal, Government Senior Secondary School Gadagussain, District Mandi, enclosing therein written statement/para-wise reply on behalf of respondent No.3, which is taken on record. Aforesaid communication also enclosed therewith communication dated 23.5.2015 sent by Naib Tehsildar Sub Tehsil Balichowki, and certificate issued by Gram Panchayat, Thachadhar, Development Block Seraj, Mandi, HP. Perusal of aforesaid communication/ proposed reply sent by the Principal, ::: Downloaded on - 15/04/2017 21:38:22 :::HCHP 4 GSSS suggests that the matter regarding awarding of 10 marks on the basis of local Patwar Circle was taken up with the revenue authorities i.e. Naib Tehsildar/Tehsildar of the area concerned for clarification.
Naib Tehsildar Balichowki District Mandi, HP and Secretary Gram .
Panchayat concerned, i.e. Thachadhar have clarified that Paras Ram (respondent No. 5) was not bonafide resident of Patwar Circle Gadagussain. It would be apt to reproduce para-7 of the aforesaid communication /proposed reply as under:
of "7. With reference to the office letter No. EDN-
H(19)B(1)-14/2012-SMC-CC dated 30-04-2015 pertaining to para No. 7 of CWP No. 6472 of 2014 the matter regarding awarding of 10 marks on the basis of local rt Patwar Circle was taken up with the revenue authorities i.e. Tehsildar/Naib Tehsildar of the Area concerned for clarification. The Naib Tehsildar Balichowki District Mandi (HP) and Secretary, Gram Panchayat concerned (i.e. GP Thachadhar) clarified that Sh. Paras Ram was not Bonafide resident of Patwar Circle Gadagusain Tehsil Balichowki District Mandi (HP) on the date interview (i.e. 26-06-2014) for the post of PGT English. Hence 10 marks cannot be awarded to him. The copy of letter No. NT/Balichowki/dk0dk0/2014-830 dated 23/05/2015 of the Naib Tehsildar Balichowki District Mandi (HP) and certificate issued by the Secretary of Gram Panchayat Thachadhar, are enclosed herewith for ready reference please."
5. Further perusal of communication dated 23.5.2015 of Naib Tehsildar, Sub Tehsil Bali Chowki, annexed with the communication sent by Principal, GSSS, suggests that respondent No.5, Paras Ram was not permanent resident of Patwar Circle Gadagussain till 8.5.2015 . Similarly, certificate dated 8.5.2015 suggests that the name of respondent No.5 Paras Ram son of Atma Ram, was not entered in the Parivar Register of Gram Panchayat Thachahar.
::: Downloaded on - 15/04/2017 21:38:22 :::HCHP 56. Perusal of annexure P-6 provides for appointment of teachers by the School Management Committee, relevant portion whereof reads as under:
" Procedure for the appointment of a Teacher by the SMC .
to the educational institutions of Tribal/ difficult Areas"
The School Management Committees of the educational Institutions located in the Tribal/Difficult areas have requested to fill up vacant posts of teachers in their schools. The Government is making all efforts to fill up all the vacant posts in the educational institutions in the State but even then some posts in the Tribal/Difficult of areas remain vacant due to retirement, transfers, promotions etc. As such the studies of the students suffers badly. Keeping in view the betterment of the study of students in these areas, it has been decided by the Government to permit the School Management rt Committees of educational institution situated in Tribal/Difficult areas as notified by the Department of Personnel (Annexure-I), to provide the teachers against vacant post as per the clause 15 of the "Right of Children to Free and Compulsory Education Act, 2009". The Government hereby frames the following procedure for the appointment of teachers through the SMCs purely on period basis:
1. ...
2. ...
3. ...
4. Member of the selection committee will be as under:-
1. President SMC
2. Head of the Institution-cum-Member Secretary of SMC
3. Subject expert from outside the concerned Institution.
4. Senior most Regular Teacher of the concerned Institution, (if the regular Teacher is not available, in the concerned institution, the same be called from the adjoining institution).
5. The SMC will conduct an interview and follow distribution of Marks for evaluation during the course of Selection Process as per Annexure-II. Preference will be given to local eligible candidates."
7. Further, the scheme for evaluation of SMC's during the course of selection process suggests that 10 marks can be awarded to ::: Downloaded on - 15/04/2017 21:38:22 :::HCHP 6 a candidate on account of his/her being permanent resident of Patwar Circle, where School is located. In this regard relevant portion of the scheme providing for Distribution of Marks* for evaluation of SMCs during the course of Selection Process, is reproduced herein below:
.
ANNEXURE-II Distribution of Marks* for evaluation of SMCs during the course of Selection Process.
Qualification PGT TGT LT JBT
Shastri
1. Matric - - 5 5
of
2. 10+2 - - 5 5
3. Graduation/Shastri 10 10 10 10
4. B.Ed. for PGT TGT 10 10 - -
JBT Certificate for
rtJBT posts
5. Post-Graduation 10 5 10 -
6. TET - 10 10 10
7. Ph.D 10
8.(a) Permanent resident - 10* 10* 10*
of the concerned
Panchayat where
the Primary
/Middle School
located.
8.(b) Permanent resident 10* - - -
of the concerned
Patwar Circle
where the High
Senior Secondary
School located.
9 Interview 10 10 10 10
60 60 60 60
8. Perusal of clause 8 (b) suggests that 10 marks can only be awarded to those candidates, who are permanent residents of concerned Patwar Circle where higher/senior secondary school is situated. In the present case, as emerges from record, respondent No.5 was not permanent resident of concerned Patwar Circle Gadagussain and as such he could not be awarded 10 marks on account of his being permanent resident of Patwar Circle Gadagussain ::: Downloaded on - 15/04/2017 21:38:22 :::HCHP 7 where School was located. In the instant case, perusal of annexure P-
10 (result sheet) suggests that respondent No.5 was awarded 10 marks for being permanent resident of Patwar Circle Gadagussain, as a result of which he secured 35.17 marks in total, whereas petitioner .
secured 33.99 marks in total.
9. By way of present petition, petitioner claimed that if 10 marks wrongly awarded to respondent No.5 under aforesaid head are deducted, she comes at Sr. No.1 of merit list and deserves to be of appointed as PGT (English).
10. It duly stands proved on record that respondent No.5 was rt wrongly awarded 10 marks on account of his being permanent resident of Patwar Circle Gadagussain because, admittedly, at that time, he was not the resident of Patwar Circle Gadagussain. As such, this Court has no hesitation to conclude that he was wrongly awarded 10 marks.
11. In view of detailed discussion herein above, present petition is allowed and appointment order of respondent No.5 (annexure P-9 dated 18.7.2014, as PGT (English) in Government Senior Secondary School Gadagussain on period basis is hereby quashed and set aside. Respondent-State is directed to offer appointment as PGT (English) in Government Senior Secondary School Gadagussain to the petitioner., who was next in merit.
12. Pending applications are disposed of.
(Sandeep Sharma) Judge November 29, 2016 (vikrant) ::: Downloaded on - 15/04/2017 21:38:22 :::HCHP