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Himachal Pradesh High Court · body

2012 DIGILAW 853 (HP)

Jitender Kumar v. State of Himachal Pradesh

2012-11-20

DHARAM CHAND CHAUDHARY

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Judgment Dharam Chand Chaudhary, J. Challenge herein is to the order Annexure A-8 passed by the 2nd respondent pursuant to order passed by erstwhile Administrative Tribunal in an original application preferred against the petitioner by one Ghanshayam (since dead), the 5th respondent, whereby the appointment of the petitioner as Primary Assistant Teacher in Government Primary School, Sanahan, Block Mehla-I, District Chamba, has been quashed. 2. The respondents initiated process for filling up one post of Primary Assistant Teacher in Government Primary School, Sanahan, Block Mehla-I, under Gram Panchayat Gurad, pursuant to notification dated 20.3.2006 Annexure A-5. The petitioner, amongst others, submitted the application supported with requisite documents for appointment as Primary Assistant Teacher in the said School. His application was entertained and he was called for interview. The original record produced by learned Additional Advocate General reveals that he was interviewed on 4.3.2006 along with other candidates by a selection committee constituted under the Chairmanship of Sub Divisional Officer (Civil), Chamba, District Chamba. The selection committee had interviewed the petitioner and other candidates and awarded marks as per the criteria prescribed under the Scheme Annexure A-3 read with amendment therein Annexure A-4. 3. In view of the petitioner having furnished certificate to the effect that no one is in Government/Semi Government job, therefore, besides the marks for educational qualification and personal interview, he was awarded ten marks on account of being a member of unemployed family also. The original result sheet available in the record reveals that he topped the merit list and consequently appointed as Primary Assistant Teacher in the School in question. 4. The 5th respondent (since dead) had assailed the appointment of the petitioner initially before erstwhile Himachal Pradesh Administrative Tribunal by filing OA (D) No.119/2006 on the sole ground that his mother was working as a part time water carrier at the relevant time and as such he has produced a false certificate to this effect. The original application was ordered to be treated as representation to the nd respondent and disposed of accordingly. 5. Consequently, the 2nd respondent decided the same vide impugned order Annexure A-8. It has been held in this order that the employment certificate produced by the petitioner along with his application was false as not only his brother was working as Clerk, but his mother was also working as part time water carrier at the relevant time. 5. Consequently, the 2nd respondent decided the same vide impugned order Annexure A-8. It has been held in this order that the employment certificate produced by the petitioner along with his application was false as not only his brother was working as Clerk, but his mother was also working as part time water carrier at the relevant time. It is this order, which has been assailed on the grounds inter alia that the mother of the petitioner being part time water carrier cannot be treated as government servant and so far as the brother of the petitioner is concerned, he is employed as clerk, however, residing separately w.e.f. 27.9.2005 and as such his appointment could have not been set aside. This petition, however, on abolition of the Tribunal came to be transferred to this Court for disposal. 6. The 5th respondent had contested the writ petition. He, however, passed away during the pendency thereof and his name stands deleted from the array of parties vide order passed in this writ petition on 24.8.2012. Even prior to the deletion of the name of said respondent, learned counsel representing him had stated before this Court that he was no more interested to prosecute this petition any further. This statement came to be made on 9.7.2012, at such a stage when respondent No.5 was alive, having passed away on 8.8.2012 as per the death certificate placed on record. Meaning thereby that the only challenge to the appointment of the petitioner by the 5th respondent also ceases to exist. 7. On behalf of respondent-State, reply has not been filed, however, on the direction of this Court, entire record leading to the selection of Primary Assistant Teacher in the school in question has been produced. 8. Ms. Priyanka Chauhan, Advocate appearing on behalf of the petitioner has argued that the mother of the petitioner, who at the relevant time was working as part time water carrier cannot be treated a government servant by any stretch of imagination and so far as the brother of the petitioner is concerned, he according to learned counsel is residing separately since September, 2005. In support of such contentions, learned counsel has placed reliance on the judgment of the erstwhile State Administrative Tribunal Annexure A-11 and also the certificates, Annexures A-9 and A-10. 9. In support of such contentions, learned counsel has placed reliance on the judgment of the erstwhile State Administrative Tribunal Annexure A-11 and also the certificates, Annexures A-9 and A-10. 9. On the other hand, learned Additional Advocate General submits that the documents, Annexures A-9 and A-10 were never produced with the application submitted by the petitioner and so far as the mother of the petitioner is concerned, according to learned Additional Advocate General, she being a part time water carrier at the relevant time and now promoted vide order Annexure R-5/5 to the application registered as CMP (T) No. 230/10 as whole time contingent paid employee was Government servant for all intents and purposes. 10. Having gone through the record and the submissions made on both sides, I find considerable force in the case of the petitioner as set out in the petition for the reason that the certificate Annexure A-7 was entertained by the selection committee and not objected to by anyone at the relevant time. Otherwise also, a certificate of this nature issued by a competent authority can only be cancelled by the competent authority, no doubt, after affording an opportunity of being heard to the incumbent concerned. So long as the cancellation is not made by the competent authority, in accordance with law and procedure, the incumbent concerned cannot be deprived of the post to which he has been appointed on the basis of such certificate, he produced at the relevant time. It is held so by a Division Bench of this Court in CWP No.1096 of 2010 titled Raksha Devi vs. State of H.P. & Others and connected matters, 2010, Him.L.R.(2), 964, where the appointment of the petitioners as Anganwari Worker/ Helper was cancelled on the ground that the income certificates they furnished at the time of their selection were fake and fictitious, however, without resorting to the cancellation thereof, in accordance with law, after affording an opportunity of being heard to the party(s). The relevant portion of this judgment is extracted hereinblow :- “5. In case the authority is of the view that the income certificate issued to any Anganwadi Workers/ Helpers in these cases, is not based on proper computation of income, it will be open to the competent authority to take steps to cancel the same. The relevant portion of this judgment is extracted hereinblow :- “5. In case the authority is of the view that the income certificate issued to any Anganwadi Workers/ Helpers in these cases, is not based on proper computation of income, it will be open to the competent authority to take steps to cancel the same. But it is made clear that such cancellation shall only be, after affording an opportunity for hearing to the incumbent concerned. So long as the cancellation is not made by the competent authority in accordance with law, and procedure for cancellation and in case notice is not given to the affected party in the enquiry, the incumbent concerned shall not be deprived of their posts, to which they were appointed, based on the income certificates, they produced at the relevant time.” 11. Admittedly, neither deceased respondent, nor anyone else has assailed the validity of this certificate till date. As regards the objections that the mother of the petitioner was working as part time water carrier at the relevant time, irrespective of the view of the matter taken by a Bench of erstwhile Administrative Tribunal, I deem it appropriate to leave the question of validity of the certificate Annexure A-7 open to be considered and decided by the competent authority, in case assailed by any aggrieved person, in accordance with law. So far as Shri Shashi Kumar, brother of the complainant is concerned, no doubt he is in government employment and working as clerk, however, the fact remains that the validity of the no employment certificate Annexure A-7 was not challenged on the ground that the brother of the petitioner is employed as Clerk before the erstwhile Tribunal. The contention raised on behalf of the respondent-State that these certificates Annexures A-9 and A-10 were not produced at an appropriate stage is not sustainable for the reason that the certificate Annexure A-7 was never challenged on this ground before the competent authority and even before the erstwhile Tribunal. Irrespective of this, from the perusal of the documents Annexures A-9 and A-10, I am satisfied that said Shri Shashi Kumar was residing separately w.e.f. 27.9.2005 from the petitioner and his mother. The petitioner, otherwise also, seems to be meritorious as not only for educational qualification i.e. 10+2 but for personal interview also, he has been awarded more marks as compared to other candidates appeared in the interview. The petitioner, otherwise also, seems to be meritorious as not only for educational qualification i.e. 10+2 but for personal interview also, he has been awarded more marks as compared to other candidates appeared in the interview. Pursuant to his appointment, he has not yet been disengaged from employment, in view of the fact that the implementation of the impugned order Annexure A-8 was stayed vide interim order dated 8.11.2007 passed in this writ petition, which is still in force. 12. In view of what has been stated hereinabove, impugned order dated 22.10.2007/25.10.2007 Annexure A-8 is hereby quashed and set aside with a direction to the respondents to allow the petitioner to continue as Primary Assistant Teacher in Government Primary School Sanahan, leaving the question of validity of the certificate Annexure A-7 open to be considered and decided by the competent authority in case assailed by any aggrieved person, in accordance with law. 13. The writ petition is disposed of, as above, so also the pending application(s), if any.