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Himachal Pradesh High Court · body

2011 DIGILAW 2014 (HP)

Digvijay Singh v. State of H. P.

2011-04-04

V.K.AHUJA

body2011
JUDGMENT V.K. Ahuja, J. Petitioner Digvijay Singh, who is a contractual appointee being Lecturer in Physics, was posted at Government Senior Secondary School Shiva Badar, Tehsil Sadar, District Mandi, vide order dated 21.10.2010 (Annexure P-1). He submitted his joining report on 21.10.2010 (Annexure P-3) at Government Senior Secondary School Shiva Badar, Distt. Mandi. The said joining report was forwarded by the Director to the Principal of the school vide Annexure P-2. The petitioner alleges that he was never impleaded as a party in the writ petition filed by respondent No. 4 Deep Shikha and Annexure P-4, order dated 19.11.2010, was passed by the Director referring to the order passed by this Court on 29.9.2010 in CWP No. 6153 of 2010, which reads as under:- “Petitioner submits that there are vacant posts at Government Senior Secondary School, Haripurdhar, Sirmour, Government Senior Secondary School Noradhar, Sirmour and Government Senior Secondary School Katrai, Kullu. In case the 4th respondent can be accommodated in any of the vacant positions, as pointed out by the petitioner, the petitioner may not be relieved for the time being.” 2. A perusal of the interim order dated 29.9.2010 shows that the petitioner was not impleaded as a party. It appears that she alleged that respondent No. 4 Sanjeev Kumar was a affected party and she impleaded him and the order was passed by the Director transferring her to Shiva Badar and respondent No. 4 Sanjeev Kuar was posted at Government Senior Secondary School Sudhar, District Mandi. A perusal of the order passed by this Court Annexure R-4/3, shows that the petitioner is not a party to the petition, but one Sanjeev Kumar was impeladed as respondent No. 4. It refers to the interim order dated 29.9.2010 referred to above. However, a perusal of the order Annexure R-4/6 dated 11.11.2010 passed in CWP No. 6153 of 2010 shows that the petitioner was impeladed as a party in the petition. In view of the interim order passed by this Court on 29.9.2010, respondent No. 4 was adjusted at Government Senior Secondary School Shiva Badar. However, a perusal of the order placed on record today shows that CWP No. 6153 of 2010 was decided on 11.11.2010 and the same was dismissed as withdrawn. Therefore, it is clear that no final orders were passed in CWP No. 6153 of 2010. 3. However, a perusal of the order placed on record today shows that CWP No. 6153 of 2010 was decided on 11.11.2010 and the same was dismissed as withdrawn. Therefore, it is clear that no final orders were passed in CWP No. 6153 of 2010. 3. The learned counsel for the respondent No. 4 has placed a copy of the said order dated 11.11.2010 and has also attached a copy of the Memorandum of Parties, which suggests that the petitioner was also a party and was impleaded as respondent No. 4, though there is no such copies of the orders and has been placed on record vide which the petitioner was impleaded as a party. Thus, it is clear that the petitioner was not impleaded as a party as is clear from the interim order passed and the Director of Education passed the transfer order of the petitioner from Shiva Badar on the interim order passed by this Court, but finally the petition was directed to be dismissed as withdrawn and the interim orders had thus become in operative. Therefore, no orders were required to be passed by the Director in regard to the transfer of the petitioner. 4. The case of respondent No. 4 is that she was appointed on PTA basis as Lecturer in Physics vide Annexure R-4/1 dated 20.9.2007. The said order of appointment has been passed by the Principal, Government Senior Secondary School Shivabadar and it can be presumed that respondent No. 4 was posted at Shiva Badar. A perusal of Annexure R-4/5 dated 7.10.2010 shows that the Principal, Government Senior Secondary School Shiva Badar had written to the Director of Higher Education to clarify in regard to the posting order of Sanjeeev Kumar in reference to office order dated 24.9.2010 alleging that Deep Shikha has already been working on PTA basis and she has been granted stay by the High Court vide order dated 30.9.2010. Thereafter, there is nothing on record to show as to what was the reply of the Director of High Education and as to the fact that respondent No. 4 Deep Shikha had been working there after the joining of Sanjeev Kumar. However, a perusal of the joining report submitted by the petitioner on 21.10.2010 Annexure P-3, shows that the joining report of Digvijay Singh had been accepted by the Principal of Government Senior Secondary School Shiva Badar. However, a perusal of the joining report submitted by the petitioner on 21.10.2010 Annexure P-3, shows that the joining report of Digvijay Singh had been accepted by the Principal of Government Senior Secondary School Shiva Badar. Thus, it is clear that even if respondent No. 4 was working as a PTA teacher, since she has been replaced by a contractual employee i.e. petitioner on 21.10.2010, her appointment, therefore, stands terminated. According to the bond Annexure P-1, the contractual employee i.e. petitioner was not entitled to be transferred for a period of 5 years as per Clause (10). Thus, it is clear that respondent No. 4 Deep Shikha had been replaced by a contractual employee, who could not be transferred in view of the terms and conditions of his appointment for a period of 5 years. There is nothing on record to show that respondent No. 4 is working at Government Senior Secondary School Shiva Badar and accordingly, the order dated 20.11.2010 Annexure P-6, transferring the petitioner to Government Senior Secondary School Sudhar, cannot be said to be valid since the petitioner was a contractual employee, not liable to be transferred for a period of 5 years and as such, order dated 20.11.2010 Annexue P-6, is quashed. The petitioner shall continue working at Government Senior Secondary School, Shiva Badar accordingly. 5. In view of the above discussion, the writ petition filed by the petitioner stands allowed accordingly. 6. In view of the disposal of the main petition, all the pending miscellaneous application(s), if any, also stands disposed of.