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2012 DIGILAW 124 (HP)

Anil Kumar Kalta v. State Of Himachal Pradesh

2012-03-23

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. - The petition has been filed with the following prayer:- "(a). To issue a writ, order or direction in the nature of mandamus directing the respondent No.4 to take joining of the petitioner as Physical Education Teacher in Govt. Middle School Shashan, under complex, Govt. Sr. Sec. School, Jubbal, Teh. Jubbal, Distt. Shimla, HP." 2. The petitioner is matriculate and has undergone the course of Physical Training Instructor (PTI) in first Division from Maa Sarswati VTC, Near Cadila Factory, Pinjore Road, Baddi, one of the recognised institutions by State Council for Vocational Training, Himachal Pradesh, Sundernagar. One post of PTI was lying vacant in Government Middle School Shashan, Tehsil Jubbal under complex Government Senior Secondary School, Jubbal, District Shimla. The 5th respondent had initiated the process for filling up the said post in September, 2007. The petitioner being duly qualified for the post in question had also app lied for appointment against the post in question. He was considered for appointment as PTI in the above School on 20.9.200 7 by a Committee consisting of Pradhan and Secretary of the 5th respondent and one expert from complex Government Seni or Secondary School, Jubbal constituted by the 5th respondent along with other candidates. The result Annexure P-2 was prepared by the Selection Committee and the petitioner being at Sr. No.1 in the merit was recommended to be appointed as PTI by the 5th respondent vide communication dated 21.9.2007 Annexure P-3. The selection Committee ha d also conducted interview to fill up the post of Shastri lying vacant in that very School. Although the incumbent recommended for appointment as Shastri and Shri Dula Ram was permitted by respondent No.4 to resume his duties in the School as PTA Teacher yet the petitioner was not allowed to join his duty at the pretext that due to General Election for Himachal Pradesh Legislative Assembly, the Code of Conduct was imposed in the State by the Election Commission. His joining was not accepted even after lifting of Code of Conduct and the completion of the Election process. 3. His joining was not accepted even after lifting of Code of Conduct and the completion of the Election process. 3. It is in this backdrop, the petitioner has approached this Court by filing the present writ petition for issuance of a direction in the nature of prayer (a) above on the grounds that Shri Dula Ram selected against the post of Shastri by the same selection Committee was allowed to join duties, however, the 4th respondent has not allowed him to join duties irrespective of his being in merit and having been selected by a Committee constituted by the 5th respondent. 4. Respondents No.1 to 4 in reply to the writ petition have come forward with the version that this writ petition have been filed by the petitioner in collusion with the 5th respondent as according to them more meritorious candidates were ignored whereas the petitioner who is only matriculate and is having only diploma in Physical Education, was selected by the said respondent to give him undue benefit. The selection of the petitioner was thus stated to be not fair and as such cancelled on a complaint Annexure R-1 made by Ms. Reena Chauhan one of the candidates who had also applied for the post in question. The selection of the petitioner was set-aside and the affected candidates were informed vide notice Annexure R-2. It is denied that the 5th respondent had recommended the name of the petitioner to the 4th respondent for appointment as PTI in Government Middle School, Shashan and also re quested to allow to join his duties in the said school. It is, however, admitted that the incumbent appointed by the same selection committee against the post of Shastri was allowed to join his duties in the school in question. It is also submitted that since on the complaint of Ms. Reena Chauhan proceedings of the selection Committee were cancelled therefore no record is available with the 4th respondent regarding the selection of the petitioner. 5. The petitioner in rejoinder has denied the contentions to the contrary in the reply being wrong and on merits while reiterating the case as set out in the writ petition has also brought on record Annexures P-6 and P-7, the information supplied to him by the Superintendent of the office of Tehsildar Jubbal, the Public Information under Right to Information Act. 6. 6. I have heard learned counsel on both sides and also gone through the record. 7. Undisputedly, there was post of PTI lying vacant in middle School Shashan, Tehsil Jubbal, District Shimla. The petitioner was also considered along with other candidates by he selection Committee constituted by the 5th respondent on 20.9.2007. 8. I find considerable force in the submissions that the petitioner has been selected on merits made by learned counsel representing him. The reference in this behalf can be made to the evaluation chart Annexure P-2/P-7, prepared by the selection committee after interviewing the candidates called for interview. The petitioner having passed the matriculation examination in first division and also the diploma in Physical Education in First Division has been awarded the marks accordingly for his merit. The contentions in reply to the writ petition that the 5th respondent wants to appoint the petitioner by hook or crook had no legs to stand for the reason that out of the marks in the hands of the members of Selection Committee the Pradhan of the 5th respondent has awarded 9.50 marks to said Smt. Reena Chauhan whereas only 7 to the petitioner. Similarly, the expert has awarded 7.5 marks to Ms. Reena Chauhan whereas 7 to the petitioner. As regards the Secretary of the 5th respondent is concerned, he has awarded 4.5 marks each to the petitioner and said Ms. Reena Chauhan. Thus, the possibility of there being any favouritism in the matter of the selection of the petitioner stand absolutely ruled out. The present rather is a case where the respondents seem to have not approached to this Court with clean hands for the reasons that their denial in the reply to writ petition qua availability of any record pertaining to Selection process stands falsified from Annexure P-6, which is a communication addressed to the petitioner by the Superintendent, office of the Tehsildar Jubbal, whereby a copy of the Evaluation Chart (Annexure P-7) prepared by the selection Committee was supplied to the petitioner after collecting the same from Headmaster Government Middle School Shashan. Meaning thereby that the record pertaining to selection of the petitioner was available with the respondent, however, this fact was deliberately concealed for the reasons best known to them. 9. Meaning thereby that the record pertaining to selection of the petitioner was available with the respondent, however, this fact was deliberately concealed for the reasons best known to them. 9. True it is that there is cutting/over-writing of date in Annexure P-3 whereby the name of the petitioner was recommended to the 4th respondent with the request to allow him to join duties as PTA Teacher to the post of Physical Training Instructor yet availability of Annexure P-7 with the headmaster Government Middle School Shashan reveal that the same was received by the respondent and available with them. It also falsify the plea raised in the reply that the proceedings of the selection committee held on 20.9.2007 were cancelled and that the 5th respondent with a view to extend undue benefit to the petitioner had called him alone for interview on 5.10.2007 and recommended his name against the post in question because in Annexure P-7 supplied to the petitioner pursuant to an application he filed under the Right to Information Act, the names of all candidates including the so called complainant Ms. Reena Chauhan find mention. It cannot also be believed that the complaint has been filed by said Ms. Reena Chauhan. Ha d she been aggrieved in any manner whatsoever she would have resorted to the legal remedy available to her against the selection of the petitioner in accordance with law. 10. The conduct of the 4th respondent also appears to be not above-board because on one hand one Shri Dula Ram recommended by the same selection committee for appointment as Shastri in the same school was allowed to join duties whereas the petitioner was not allowed to join duties irrespective of the fact that he was recommended to be appointed as Physical Training Instructor in the said school by a duly constituted Selection Committee. 11. Although the 5th respondent did not appear before this Court despite service yet in the light of what has been stated hereinabove, it cannot be said by any stretch of imagination that the selection of the petitioner was not fair. 11. Although the 5th respondent did not appear before this Court despite service yet in the light of what has been stated hereinabove, it cannot be said by any stretch of imagination that the selection of the petitioner was not fair. The joining of the petitioner though was stated to be deferred due to Assembly Election and imposition of the Code of Conduct by the Election Commission however, it is not so and rather indefinitely because he was not allowed to join his duties after such election was over and the Code of Conduct lifted and even till the filing of the writ petition whereas Shri Dula Ram was allowed to join duties during the imposition of the code of conduct. The present is thus a case where the petitioner has been discriminated against the similarly situated person. 12. Although learned counsel representing the petitioner is not in a position to explain this court as to whether the post of Physical Training Instructor is still lying vacant in Government Middle School Shashan or not yet this Court finds the present a fit case where respondents No. 4 and 5 are liable to be directed to accept the joining of the petitioner if the post of PTI is still lying vacant in the school. 13. In view of the forgoing reasons though no direction as sought by the petitioner vide prayer (a) in the writ petition can be passed at this stage, however, there will be a direction to the 4th and 5th respondent to allow the petitioner to join duties as PTA Teacher against the post of Physical Training Instructor in Government Middle School, Shashan, Tehsil Jubbal, District Shimla in case the said post is still lying vacant forthwith on production of a copy of this judgment by the petitioner before the 4th respondent. 14. With the above observations, the Writ Petition stands finally disposed of. No order so as to costs.