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2010 DIGILAW 3082 (PNJ)

Saroj Devi v. State Of Haryana

2010-11-17

L.N.MITTAL

body2010
Judgment L.N.Mittal, J. 1. By this common judgment, I am disposing of two appeals i.e. instant R.S.A. No.4253 of 2010 and also R.S.A. No.4254 of 2010 titled Saroj Devi v. Suresh Kumar and others as both these appeals have arisen out of the same suit. 2. Both these appeals have been preferred by Saroj Devi-plaintiff, who was partly successful in the trial court, but has been completely non-suited by the lower appellate court. The appellant-plaintiff filed suit alleging that applications were invited for appointment of Guest Teachers in schools of Haryana vide Government order dated 29.11.2005. The plaintiff alleged that in supersession of the said order, Government issued further guidelines vide advertisement in newspaper dated 17.12.2005 giving preference to candidates belonging to the same place, where the appointment of Guest Teachers is to be made, over the candidates belonging to other places. The plaintiff, defendant No.5 Suresh Kumar and four other persons applied for the post of Guest Teacher in Hindi subject of Government Senior Secondary School, Assandh, District Karnal. In the merit list, defendant No.5 was placed at Sr. No.l, whereas the plaintiff was placed at Sr. No.2 and accordingly, defendant No.5 has been appointed as Guest Teacher. 3. The plaintiff in the suit challenged the appointment of defendant No.5 as Guest Teacher alleging that the plaintiff is resident of Assandh, where the appointment was to be made, whereas defendant No.5 is resident of Villaeg Chochra and therefore, in view of guidelines mentioned in advertisement dated 17.12.2005, the plaintiff being local resident of Assandh, deserved preference over defendant No.5 being outsider. The plaintiff also alleged that defendant No.5 wrongfully and with mala fide intention got deleted on 18.12.2005 his name from the ration card of his father in Village Chochra and got inserted his name on 22.12.2005 in the ration card of his relative Vinod Kumar at Assandh. It was pleaded that applications were to be submitted up to 20.12.2005 and appointment was made w.e.f. 21.12.2005 and therefore, inclusion of name of defendant No.5 in the ration card of Vinod Kumar at Assandh on 22.12.2005 is of no use. Accordingly, the plaintiff sought declaration that appointment of defendant No.5 as Guest Teacher Hindi in the aforesaid school is illegal and ultra vires being in contravention of guidelines and the criteria issued by the Government and that plaintiff is entitled to be appointed as Guest Teacher. Accordingly, the plaintiff sought declaration that appointment of defendant No.5 as Guest Teacher Hindi in the aforesaid school is illegal and ultra vires being in contravention of guidelines and the criteria issued by the Government and that plaintiff is entitled to be appointed as Guest Teacher. Accordingly, the plaintiff also sought mandatory injunction directing the defendants to appoint plaintiff as Guest Teacher in place of defendant No.5. The plaintiff also sought salary for the intervening period. 4. Defendants No.4 and 5 filed separate written statements and defendants No.1 to 3 filed separate joint written statement. Issuance of guidelines vide publication in newspaper dated 17.12.2005 was contested and denied. It was alleged that appointments were to be made on the basis of Government order dated 29.11.2005. It was also pleaded that appointment of defendant No.5 on the basis of merit list is legal and valid. It was also pleaded that name of defendant No.5 stood included in ration card at Assandh. Various other pleas were also raised. 5. Learned Additional Civil Judge (Senior Division), Assandh, vide judgment and decree dated 31.01.2009, partly decreed the suit declaring that appointment of defendant No.5 is illegal. However, relief of mandatory injunction sought for by the plaintiff for her own appointment as Guest Teacher in place of defendant No.5 and for payment of salary was declined. Both plaintiff and defendant No.5 preferred separate first appeals against the judgment and decree of the trial court. Learned Additional District Judge, Karnal, vide common judgment dated 19.10.2010, dismissed the appeal preferred by the plaintiff and allowed the appeal preferred by defendant No.5 Suresh Kumar and thereby, dismissed the suit of the plaintiff. Feeling aggrieved, plaintiff has preferred the two second appeals because there were two first appeals. 6. I have heard learned counsel for the appellant and perused the case file. 7. Learned counsel for the appellant vehemently contended that according to advertisement dated 17.12.2005, preference was to be given to the local candidates over the outsiders and the said guidelines were upheld by this Court in C.W.P. No.2743 of 2006 titled Balraj Singh and others v. State of Haryana and others, vide order dated 20.03.2006. It was contended that the plaintiff, being local candidate, was entitled to preference over defendant No.5 being outsider. 8. I have carefully considered the aforesaid contention, but find myself unable to accept the same. It was contended that the plaintiff, being local candidate, was entitled to preference over defendant No.5 being outsider. 8. I have carefully considered the aforesaid contention, but find myself unable to accept the same. Relevant guideline No.(iv) contained in advertisement dated 17.12.2005, which has been heavily relied on by counsel for the appellant, is reproduced hereunder from the judgment of the lower appellate court:- "iv) The principal/Headmaster/DDO will process all the applications received. If the principal/Headmaster/DDO receives applications more than the vacancies for that academic session, then he/she shall give preference to the applicants having higher academic merit. While appointments in the guest faculty, the preference will be given to the candidate of that very village/area. The merit list of such candidates would be prepared. If the candidate of that concerned area is not available, then, the merit list of candidates of that division will be prepared. Second preference will be given to the candidate of that division. Third preference will be given to the candidates of that district." 9. Perusal of the aforesaid guidelines reveals that preference had to be given to the applicants having higher academic merit. Thereafter, preference had to be given to the local candidate over the outsider. In the instant case, admittedly, defendant No.5 has higher academic merit over the plaintiff. Consequently, even according to the aforesaid guidelines, defendant No.5 had to be given preference in appointment over the plaintiff. If both of them had the same academic merit, then perhaps, on the basis of aforesaid guidelines, the plaintiff being local candidate could be given preference over any outsider. However, the plaintiff, merely on the basis of being local candidate, could not be given preference over outsider having better or higher merit. The guidelines specifically provided that the applicant having higher academic merit, was to be given preference. On the other hand, if interpretation sought to be given by the counsel for the appellant, that a local candidate lower in merit should be given preference over an outsider with higher merit, is accepted, it would also result in infringement of the cardinal principle of equality enshrined in Articles 14 and 16 of the Constitution of India. The criterion of 1ocal residence of the candidate being given preference could be adopted only if merit of the two candidates i.e. a local candidate and outsider is same. The criterion of 1ocal residence of the candidate being given preference could be adopted only if merit of the two candidates i.e. a local candidate and outsider is same. However, if merit of the outsider candidate is higher, then preference cannot be given to the candidate lower in merit merely on the ground of being resident of the same place or village, where the appointment is to be made. 10. For the reasons aforesaid, I find no illegality in the impugned judgment of the lower appellate court non-suiting the plaintiff on interpretation of the guidelines for appointment of Guest Teachers, as concluded in the preceding paragraph. No question of law, much less substantial question of law, armes for determination in the instant second appeals. Both the appeals are accordingly dismissed in limine being devoid of merit.