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2010 DIGILAW 1125 (HP)

Puran Chand v. State of Himachal Pradesh

2010-09-20

RAJIV SHARMA

body2010
JUDGEMENT Rajiv Sharma, J.Petitioner has challenged the appointment of respondent No.5 to the post of Water Carrier in Government Primary School, Bhogra, Tehsil Theog, District Shimla. The case of the petitioner, in a nutshell, is that since he has been appointed by the Gram Panchayat, he was required to be continued as Part Time Water Carrier and alternatively, he was required to be given preference for working in the same school from 10thMay, 1992. He has relied upon Annexures A-4 and A-6. 2. The case of the respondent-State, in a nutshell, is that since the petitioner was not appointed by the Gram Panchayat, he was not entitled for appointment under the Scheme framed by the State Government. It has further been averred by the respondent-State that the Selection Committee was constituted and it found respondent No.5 suitable for being appointed as Part Time Water Carrier. 3. Mr. Dinesh Thakur, learned counsel for the petitioner has strenuously argued that the appointment of respondent No.5 is illegal and arbitrary. His main contention is that his client was required to be given preference over respondent No.5 after taking into consideration his experience with effect from 10.5.1992. 4. Mr. P. M. Negi, learned Deputy Advocate General and Mr. Neel Kamal Sood, Advocate have supported the appointment of respondent No.5. 5. According to the reply filed by the respondents, applications were invited in the year 1996 as per instructions issued by the Government. The applications received were to be scrutinized by a committee headed by the Sub-Divisional Magistrate and two other members, i.e. B.D.O. and B.P.E.O. The Selection Committee on the basis of marks prescribed under the instructions, selected respondent No.5. In order to maintain transparency, it was verified by the respondent-State whether the petitioner was appointed by the Gram Panchayat or not. Respondent No.4 intimated that there were no particulars available regarding the appointment of the petitioner as Water Carrier by the Panchayat in his office. It was necessary for the petitioner to have placed on record the copy of the appointment letter issued either by the Parents Teacher Association or by the Gram Panchayat. The petitioner has failed to do so. In these circumstances, the Court cannot look into Annexures A-4 and A-6. Respondent No.5 was appointed vide letter dated 17th July, 1997. Petitioner has not assailed this order specifically. The petitioner has failed to do so. In these circumstances, the Court cannot look into Annexures A-4 and A-6. Respondent No.5 was appointed vide letter dated 17th July, 1997. Petitioner has not assailed this order specifically. Moreover, the suitability of respondent No.5 was adjudged by the duly constituted Selection Committee. There is no malafide alleged against any member(s) of the Selection Committee. In view of this, the Court will not sit in appeal over the selection made by the duly constituted Selection Committee. 6. Their Lordships of Hon’ble Supreme Court in Hari Bansh Lal vs. Sahodar Prasad Mahto & Ors., 2010(8) Scale, 623 have held that suitability or otherwise of a candidate for appointment to a post is the function of the appointing authority and not of the Court unless the appointment is contrary to statutory provisions/rules. Their Lordships have held as under (paras 13, 14 and 15):- “ In The State of Mysore and Another vs. Syed Mahmood and Others, (1968) 3 SCR 363 = AIR 1968 SC 1113, it was held that suitability or otherwise, appointing authority is the best person and the court cannot issue a positive writ without giving the authority/Government opportunity in the first instance to consider his/her claim for promotion. The same view has been reiterated in Statesman (Private) Ltd. Vs. H.R. Deb and Others, (1968) 3 SCR 614 = AIR 1968 SC 1495. In State Bank of India and Others vs. Mohd. Mynuddin, (1987) 4 SCC 486, after adverting to earlier decision of this Court in The State of Mysore & Anr. Vs. Syed Mahmood & Ors., (1968) 3 SCR 363 this Court held: “… The ratio of the above decision is that where the State Government or a statutory authority is under an obligation to promote an employee to a higher post which has to be filled up by selection the State Government or the statutory authority alone should be directed to consider the question whether the employee is entitled to be so promoted and that the court should not ordinarily issue a writ to the government or the statutory authority to promote an officer straightway. The principle enunciated in the above decision is equally applicable to the case in hand.” It is clear from the above decisions, suitability or otherwise of a candidate for appointment to a post is the function of the appointing authority and not of the court unless the appointment is contrary to statutory provisions/rules.” 7. Accordingly, in view of the observation made hereinabove, there is no merit in the petition and the same is dismissed, so also the pending application(s), if any. There shall be no order as to costs.