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Himachal Pradesh High Court · body

2012 DIGILAW 935 (HP)

Pushpa Devi v. State of Himachal Pradesh

2012-12-05

RAJIV SHARMA

body2012
JUDGMENT Rajiv Sharma, Judge. Since common questions of law and facts are involved in both the petitions, the same were taken up together for hearing and are being disposed of by a common judgment. However, in order to maintain clarity, facts of CWP No. 5929/2010-G have been taken into consider. 2. Petitioner lost her husband on 6.5.2003. Case of the petitioner was considered under clause 12 of the notification issued on 27.7.2001 for appointment to the post of Part Time Water Carrier in Government Primary School, Saheli-Bhewar. She entered into agreement with the Pradhan, Gram Panchayat, Karsai on 6.10.2004. She was offered appointment on 10.10.2004. The Deputy Director of Primary Education, Hamripur sent a communication to the Pradhan, Gram Panchayat, Karsai on 20.7.2009 bringing to his notice that since the petitioner has not renewed her contract, the post in question be treated as vacant. The Deputy Director of Primary Education also issued necessary direction to the Pradhan to cancel the appointment of the petitioner and convey the decision to her. Thereafter, the Deputy Director of Primary Education again sent a communication vide letter dated 19.1.2010 to the Pradhan to act in accordance with law. The copy of this letter has been placed on record by the petitioner in CWP No.391/2011-A at page 35 of the paper book. In sequel to these two communications dated 20.7.2009 and 19.1.2010, resolution was passed by the Pradhan, Gram Panchayat on 22.1.2010 whereby services of the petitioner were terminated. The Deputy Director of Primary Education, Hamirpur informed the Pradhan, Gram Panchayat, Karsai on 23.1.2010 that petitioner was eligible to be appointed as Part Time Water Carrier at the time of her appointment on 2.10.2004 and was advised to sign contract and allow her to continue. The Director, Education sent a letter to the Deputy Director of Primary Education, Hamirpur on 24.9.2010 to reinstate the petitioner. The Deputy Director of Primary Education, Hamirpur sent a communication to the Pradhan, Gram Panchayat, i.e. respondent No.5 to reinstate the petitioner on 5.10.2010 vide Annexure P-20. However, the fact of the matter is that agreement of the petitioner has not been renewed by the Pradhan, i.e. respondent No.5 despite three communications dated 23.1.2010, 24.9.2010 and 5.10.2010. The tentative seniority list dated 4.12.2009 has been issued whereby petitioner has been assigned Sr. No. 179 and in the new seniority list dated 24.6.2011, the name of the petitioner is at Sr. The tentative seniority list dated 4.12.2009 has been issued whereby petitioner has been assigned Sr. No. 179 and in the new seniority list dated 24.6.2011, the name of the petitioner is at Sr. No. 246. 3. Case of the petitioner Seema Devi, in a nutshell, is that after the termination of the services of Pushpa Devi petitioner in CWP No. 5929/2010-G, the post was lying vacant and the Gram Panchayat Karsai has recommended the case of the petitioner, namely, Seema Devi for appointment to the post of Part Time Water Carrier. She has also lost her husband in the month of April, 2010. 4. The stand of the respondent-State is that case of the petitioner Seema Devi was considered but since she has not submitted B.P.L./I.R.D.P. certificate, her case could not be considered. The resolution was passed by the Gram Panchyat, Karsai on 4.7.2010. Petitioner has obtained B.P.L. certificate only on 9.5.2011. 5. Mr. Rajesh Kumar has vehemently argued that the termination of the petitioner Pushapa Devi on 22.1.2010 is wholly arbitrary and unreasonable, thus, violative of Articles 14 and 16 of the Constitution of India. He then contended that the petitioner was fully eligible to be considered for appointment in the year 2004 and respondent No.5 was under obligation to review the contract on year to year basis. He also contended that despite three letters dated 23.1.2010, 24.9.2010 and 5.10.2010, respondent No.5 has not renewed the agreement. 6. Mr. Vikas Rathore, learned Deputy Advocate General has argued that since the petitioner has remarried and shifted to Gram Panchayat, Dalcheda, she was no more eligible to hold the post of Part Time Water Carrier in Government Primary School, Saheli. He also contended that as far as petitioner Seema Devi is concerned, she has failed to produce B.P.L./I.R.D.P. certificate at the time of her selection, thus, she could not be considered for appointment. 7. Mr. Sanjeev Bhushan has supported the termination of Pushpa Devi petitioner vide resolution dated 22.1.2010. According to him, the name of the petitioner Pushpa Devi has been struck off from the Panchayat register in village Saheli Bhaver, she could not continue as Part Time Water Carrier. He also argued that the petitioner could not simultaneously work as Part Time Water Carrier and Mid-day Meal Worker. He lastly contended that his client has placed on record B.P.L. certificate on 9.5.2011. 8. He also argued that the petitioner could not simultaneously work as Part Time Water Carrier and Mid-day Meal Worker. He lastly contended that his client has placed on record B.P.L. certificate on 9.5.2011. 8. I have heard the learned counsel for the parties and have perused the pleadings meticulously. 9. What emerges from the facts enumerated hereinabove is that Pushpa Devi petitioner has been offered appointment on compassionate basis being widow on 10.10.2004. Necessary agreement was also entered into between the petitioner and Gram Panchayat on 6.10.2004. It would be apt at this stage to take into consideration the scheme/guidelines regulating the appointment to the post of Part Time Water Carrier issued vide notification dated 27.7.2001. According to clause 3 of the notification, the candidate must be permanent resident of village/Gram Panchayat/Urban Local Body of the area in which the school is located, where the vacancy of Part Time Water Carrier exists. Clause 12 deals with the compassionate appointment. It is evident from the phraseology employed in clause 12 that the Government has the power to offer appointment to any candidate without following the selection process if the candidate is widow, woman deserted by her husband, or otherwise destitute handicapped person and if the candidate falls below the poverty line as decided by the Rural Development Department from time to time. The appointments are to be made as per clause 14 on contract basis by the employer Gram Panchayat/Urban Local Body after executing a proper agreement between the candidates selected for appointment and the employer Gram Panchayat/Local Body. According to clause 18, the Part Time Water Carrier so recruited is to be treated as contractual employee of the Gram Panchayat/Urban Local Body. The appointing/punishing authority in respect of Part Time Water Carriers is the employer Gram Panchayat/Urban Local Body. The form of agreement has been provided under clause 14. According to clause 3 of the agreement, the service of the part time employee can be terminated in the following manner: I. “Automatically at the end of term given in the appointment letter. II. By the Gram Panchayat without previous notice, if the Gram Panchayat is satisfied on medical evidence before it, that the party of the first part is unfit and is likely for a considerable period to continue unfit by reason of ill health for the discharge of his/her duties. II. By the Gram Panchayat without previous notice, if the Gram Panchayat is satisfied on medical evidence before it, that the party of the first part is unfit and is likely for a considerable period to continue unfit by reason of ill health for the discharge of his/her duties. Provided always that the decision of the Gram Panchayat that the part of the first part is likely to continue unfit shall be conclusively binding on the party of the first part and there upon his/her services shall be terminated. III. By the Gram Panchayat of its officers having proper authority without any previous notice, if the party of the first part is on to be prima-facie quality of any insubordination, intemperance moral turpitude or other misconduct or of any breach or non-performance of unsuitable for the efficient performance of his/her duties. IV. By one month notice in writing given at any time during service under this agreement either by the Gram Anshkaleen Jalwvahaks to the Gram Panchayat or by the competent authority to the Gram Anshkaleen Jalvahaks. V. Provided always that the Gram Panchayat may pay the Gram Anshkaleen Jalvahaks one month’s remuneration in lieu of such notice and thereupon this agreement shall stand terminated forthwith.” 10. In the instant case, the petitioner has not been served with any show cause notice nor has she been paid any salary in lieu of notice. There is no contemporaneous material placed on record by the respondent-State and respondent No.5 that petitioner was remiss in discharge of her duties. She has been terminated only on the ground that the contract was not renewed between 2005 to 2009. The agreement has to be signed by the Gram Panchayat, i.e. respondent No.5. Petitioner could only make a request but she could not force respondent No.5 to sign the agreement. It was, rather, the duty of respondent No.5 to execute the agreement as per norms notified in the year 2001. Respondent-State has taken a very contradictory stand as per the pleadings and the material placed on record. The Deputy Director of Primary Education has issued instructions to the Gram Panchayat on 20.7.2009 and 19.1.2010 to terminate the services of the petitioner since she has not renewed the agreement. The Director Elementary on 24.9.2010 vide Annexure P-19 has directed the Deputy Directory of Primary Education, Hamirpur to inform the Pradhan to reinstate the petitioner. The Deputy Director of Primary Education has issued instructions to the Gram Panchayat on 20.7.2009 and 19.1.2010 to terminate the services of the petitioner since she has not renewed the agreement. The Director Elementary on 24.9.2010 vide Annexure P-19 has directed the Deputy Directory of Primary Education, Hamirpur to inform the Pradhan to reinstate the petitioner. In sequel to order dated 24.9.2010, respondent No.3 has also sent communication to respondent No. 5 on 5.10.2010 vide Annexure P-20 to reinstate the petitioner. However, the fact of the matter is that despite these communications dated 24.9.2010 and 5.10.2010, the contract has not been renewed. Plea of the respondent-State that the services of the petitioner have been terminated, only on the ground that she is ceased to be permanent resident of the Gram Panchayat, merits rejection. The eligibility of the petitioner was to be seen at the time of selection and when appointment letter dated 10.10.2004 was issued in her favour. She was fully eligible to be considered for appointment as Part Time Water Carrier as per clause 12. She has remarried and shifted to Gram Panchayat, Dalcheda, which is at a distance of 7 KMs from Government Primary School, Saheli-Bhewar. 11. Mr. Rajesh Kumar has also drawn the attention of the Court to page 93 whereby respondent No.5 on 28.3.2011 has stated that since this Court is seized of the matter, the agreement could not be signed between the parties. 12. As far as the petitioner in CWP No. 391/2011-A is concerned, after the termination of services of petitioner Pushpa Devi, her case was recommended by the Pradhan, Gram Panchayat, Karsai vide resolution dated 4.7.2010. Case of petitioner Seema Devi was considered in accordance with law but since she has failed to produce the B.P.L./I.R.D.P. certificate, she could not be considered under clause 12. B.P.L. certificate has been obtained by the petitioner only on 9.5.2011. The eligibility of the petitioner was to be seen on the date when the resolution was passed on 4.7.2011. Accordingly, there is no illegality in the action of respondent-State whereby case of petitioner Seema Devi has been rejected. 13. Though agreement of the petitioner has not been renewed by the Pradhan from time to time but her name was shown in the seniority list dated 4.12.2009 at Sr. No. 179 and in the seniority list dated 24.6.2011, name of the petitioner has been shown at Sr. 13. Though agreement of the petitioner has not been renewed by the Pradhan from time to time but her name was shown in the seniority list dated 4.12.2009 at Sr. No. 179 and in the seniority list dated 24.6.2011, name of the petitioner has been shown at Sr. No. 246. Mr. Rajesh Kumar submitted at the Bar that the petitioner is eligible to be regularized after completion of eight years’ service. 14. The appointing/punishing authority of the petitioner is Gram Panchayat and not the State. In the instant case, services of the petitioner have been terminated on the basis of letters dated 20.7.2009 and 19.1.2010 issued by the Director of Primary Education. These two letters have been taken into consideration for terminating the services of the petitioner. Gram Panchayat should have taken decision instead of abdicating its powers. 15. Accordingly, in view of the observations and analysis made hereinabove, CWP No.5929 of 2010-G is allowed. Annexure P-9 dated 22.1.2010 is quashed and set aside. Respondent No.5 is directed to enter into agreement with the petitioner within a period of three weeks from today. Petitioner shall be paid due and admissible salary for the period, she has worked as Part Time Water Carrier. CWP No. 391/2011-A is dismissed being devoid of merit. Pending application(s), if any, also stands dismissed.