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Himachal Pradesh High Court · body

2012 DIGILAW 901 (HP)

Meera Kumari v. State of H. P

2012-11-30

DHARAM CHAND CHAUDHARY

body2012
Judgment Dharam Chand Chaudhary, J. By means of this writ petition, following reliefs have been claimed: (i) Respondents No. 1 to 4 may kindly be directed to accept the joining report of petitioner on the basis of offer of appointment, Annexure P-3, given by respondent No.5. (ii) The appointment of respondent No.8 on the basis of interview held on 6.8.2007 may kindly be held wrong, illegal, arbitrary and may kindly be set aside. (iii) The respondents No. 1 to 3 may kindly be directed to take action in accordance with law against respondents No.6 and 8. 2. The petitioner being duly qualified for appointment as Art and Craft Teacher (Drawing Master) on PTA basis made application on 4.8.2007 for appointment as such in Govt. Middle School, Shillan, Tehsil Chopal, Distt. Shimla, H.P.. She was interviewed by the Selection Committee on 6.8.2007. Respondents No. 4 & 5 along with Sh. Santosh Kumar, Drawing Master and Secretary PTA Committee Govt. Middle School, Shillan were members of the Selection Committee. She fared well in the interview and was allegedly selected. Consequently, appointment letter, Annexure P-3 was issued to her and she reported for duties to Headmaster of the school i.e. respondent No.4. The said respondent refused to accept her joining report on the ground that it is not she, rather respondent No.8, who has been selected as Art and Craft Teacher and who has also been made offer of appointment. She reported the matter to Principal, Govt. Complex Sr. Sec. School, Shillan, who in turn directed respondent No.4 to produce the record pertaining to the interview conducted for the post in question. The grouse of the petitioner is that respondent No.4 in connivance with respondent No.7 and expert Santosh Kumar, Drawing Master and also the Secretary of the PTA Committee managed the appointment of his nephew respondent No.8 as Art and Craft Teacher who was simply plus two and not having diploma in Art and Craft Teacher from a recognized institute. 3. In this writ petition, following order came to be passed on 11.9.2007:-“CMP No. 2269 of 2007 Infructuous. CWP No.1394 of 2007 and CMP No. 2268 of 2007 Issue notices to respondents 5 to 8. In the meanwhile, status quo as existing on date with respect to the appointment of respondent No.8 shall be maintained by the parties. 3. In this writ petition, following order came to be passed on 11.9.2007:-“CMP No. 2269 of 2007 Infructuous. CWP No.1394 of 2007 and CMP No. 2268 of 2007 Issue notices to respondents 5 to 8. In the meanwhile, status quo as existing on date with respect to the appointment of respondent No.8 shall be maintained by the parties. It is further directed that respondents 1 and 3 shall take over the entire record relating to the selection of the teacher concerned from respondent No.4 and produce the same in this Court on the next date for this Court’s perusal.” 4. The respondent-state on entering appearance has contested the writ petition. Its stand as emerges from the perusal of the reply in a nutshell is that the petitioner did not appear for interview before the Selection Committee nor respondent No.5 President of PTA Committee participated in the Selection Committee as one of its members. Petitioner having not appeared was neither selected nor there was any occasion for her to submit joining report. Respondent No.5 however, has come forward with the plea that not only that he was one of the members of the Selection Committee but the petitioner also appeared in the interview and being on merits was selected. The stand so taken by the respondents in reply to the writ petition has led to passing the following order on 21.9.2012: “Heard for some time. The stand taken by respondents No.1 to 4 is that the petitioner never appeared in the interview for the post of Arts and Craft Teacher on 6.8.2007 at Government Middle School, Shillan, District Shimla. Mr. Abhishek Dogra, Advocate appearing for respondent No.5, has categorically raised the plea that the petitioner did appear for interview and was one of the meritorious candidates. Reply on behalf of respondent No.5 is stated to be filed but the same is not on record. Mr. Abhishek Dogra, Advocate to check the same and if filed, the Registry is directed to place the same on record. Learned Deputy Advocate General to retain the record till the next date. Today it is P.E.T. posted in respondent No.4 school who has produced the record. It is made clear that in terms of order passed on 11.9.2007 either respondent No.1 or respondent No.3 alone will produce the record in the Court and not respondent No.4. Post on 28th September, 2012.” 5. Today it is P.E.T. posted in respondent No.4 school who has produced the record. It is made clear that in terms of order passed on 11.9.2007 either respondent No.1 or respondent No.3 alone will produce the record in the Court and not respondent No.4. Post on 28th September, 2012.” 5. In this context the order passed on 1.11.2012 also reads as follows:- “Heard further. Reply-affidavit filed by the 5th respondent is on record. The contentions raised therein belie the stand of respondents No.1 to 4 that neither the 5th respondent attended the meeting of Selection Committee held on 6.8.2007 in the capacity of President, PTA Committee, Government Middle School, Shillan, nor the petitioner appeared before the Selection Committee and rather reveal that respondent No.5 was very much present in the meeting of Selection Committee, which has conducted the interview of the candidates for the post of Art & Craft Teacher and the petitioner appeared before the Selection Committee as well as secured maximum marks. In the record of the Selection Committee produced by learned Additional Advocate General, the petitioner, however, has been shown absent and the name of 5th respondent being one of the members of the Selection Committee does not find mention therein. In view of the reply so filed by the respondent prima facie the reply to the writ petition filed on behalf of respondents No.1 to 4 is contrary to the factual position. 2. The record further reveals that on a complaint made against the selection of the 8th respondent by Ms. Shivani, one of the candidates for the post in question, the Sub Divisional Officer (Civil)-cum-Chairman, PTA Committee, Chopal, District Shimla has set aside the appointment of the said respondent vide order dated 22.9.2008. For want of instructions qua this aspect of the matter, learned counsel representing the petitioner and learned Additional Advocate General have expressed their inability to make any submission in this behalf. They seek adjournment to have current instructions. Let the instructions be now obtained within two weeks. 3. In view of the above submission, the 2nd and 4th respondents to remain present in person on the next date to explain their position and assist this Court. 4. Learned Additional Advocate General to retain the record and produce the same on the next date. Post on 23.11.2012.” 6. Let the instructions be now obtained within two weeks. 3. In view of the above submission, the 2nd and 4th respondents to remain present in person on the next date to explain their position and assist this Court. 4. Learned Additional Advocate General to retain the record and produce the same on the next date. Post on 23.11.2012.” 6. Consequently, on the last date of hearing, the second respondent was present in person and produced the record again. As noticed on the previous date, as per Resolution No.6 passed by the PTA Committee on 6.8.2007, respondent No.5 did not participate in the meeting of Selection Committee as he was not happy with the criteria prescribed for making selection. The record pertaining to the appointment of the candidates taken on the date of interview reveals that the petitioner was marked absent and has not been awarded marks for personal interview. The record thus reveals that neither the 5th respondent was a member of the Selection Committee nor the petitioner appeared in the interview. No doubt respondent No.8 was recommended for appointment as PTA teacher, however, as noticed from the record his appointment was cancelled by the SDO (C), Chopal on a complaint registered as CTL-33/08 made against him by Ms. Shivani, one of the candidates for the post in question. Pursuant to further direction as to whether the 8th respondent is still continuing in the school or not, learned Addl. Advocate General has placed on record a communication he received from the 2nd respondent. Perusal thereof further reveals that after the petitioner having complained the matter to Principal, Complex Sr. Sec. School, Shillan, he referred the matter to the 3rd respondent for necessary direction. The Deputy Director found the appointment of respondent No.8 as PTA teacher contrary to the departmental instructions issued vide letter No. EDN-H(8)17(2)46/2006-PTA dated 2.8.2006, whereby only the President, PTA, Secretary, PTA and one expert in the subject concerned could have constituted the Selection Committee and, therefore, appointment of respondent No.8 was not approved. This communication further reveals that presently neither respondent No.8 nor the petitioner are working as Art and Craft Teacher on PTA basis in the school in question and rather said post is lying vacant. It has also been pointed out that all appointments in Education Department are being made as per the provisions of Right of Children to Free and Compulsory Education Act, 2009. It has also been pointed out that all appointments in Education Department are being made as per the provisions of Right of Children to Free and Compulsory Education Act, 2009. 7. In view of the position, as emerges from the record, this writ petition for the relief to hold the appointment of respondent No.8 as wrong, illegal and arbitrary has become infructuous. In view of the record now having been produced which has to be believed to be true and correct neither respondent No.5 was a member of the Selection Committee nor the petitioner appeared for the interview. Above all, on coming into being the RTE Act, no appointment including on PTA basis can be made in Education Department save and except in accordance with the provisions contained thereunder. Thus the direction to allow the petitioner to join duties in the school in question as Art and Craft Teacher cannot also be passed in this writ petition. However, the post is still lying vacant and as such the only anxiety and concern of this Court is that the academic career of the students may not suffer for want of Art and Craft Teacher. Therefore, there shall be a direction to the respondent-State to take steps for filling up the post in question in the school immediately either by way of recruitment or transfer/posting. 8. With the above observations, the writ petition is disposed of so also the pending application(s), if any.