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Himachal Pradesh High Court · body

2013 DIGILAW 319 (HP)

Alka Agnihotri v. State of Himachal Pradesh

2013-04-17

RAJIV SHARMA

body2013
JUDGMENT Justice Rajiv Sharma, Judge. The posts of Language Teachers in the respondent-Department are filled up 37.5% by way of direct recruitment, 37.5% batch-wise basis and remaining 25% from J.B.T. Teachers category. Interviews for filling up the posts batch-wise basis were held on 2.2.2012. Petitioner was also interviewed. She was offered appointment on 9.2.2012. Pursuant to order dated 9.2.2012, petitioner joined on 17.2.2012. One Ms. Anu Mahajan approached this Court by way of CWP No.3608/2012. Case of Anu Mahajan was that prescription of age limit was contrary to law. In CWP No. 3608/2012 the Division Bench of this Court passed the following order on 13.8.2012: “Respondents No. 2 & 3 seek some more time to file the reply. In case the petitioner was not appointed only on account of having crossed the age of 45 years and in case the petitioner has registered her name in the Employment Exchange concerned with the required qualification before attaining the age of 45 years, she shall be offered appointment. In the process, in case any of the persons already appointed is to be disturbed, such person shall be issued a notice and the incumbent shall be offered an opportunity of hearing also. The process, as above, shall be completed within three weeks from the date of production of a copy of this order. Post for further orders on 5th September, 2012.” 2. Ms. Anu Mahan was appointed pursuant to the directions issued by this Court in CWP No.3608/2012. In sequel to order dated 13.8.2012 passed in CWP No. 3608/2012, petitioner was served with a notice on 10.9.2012. Petitioner filed reply to the same on 14.9.2012. In the meantime, petitioner filed CWP No.8085/2012. The same was disposed of by this Court on 24.9.2012. Operative portion of judgment dated 24.9.2012 reads as under: “Petitioner has been issued Annexure P-12 notice, proposing termination of her services on account of appointment of one Anu Mahajan. The appointment is on batch-wise basis in District Hamirpur. It is seen from Annexure P-12, notice that steps were taken for filling up 12 posts. According to the petitioner, there are more posts in the 37.5% quota. Petitioner has submitted a detailed reply, Annexure P-13. Be that as it may. The appointment is on batch-wise basis in District Hamirpur. It is seen from Annexure P-12, notice that steps were taken for filling up 12 posts. According to the petitioner, there are more posts in the 37.5% quota. Petitioner has submitted a detailed reply, Annexure P-13. Be that as it may. In case quota of 37.5% has more than 12 posts in District Hamirpur for appointment to the post of Language Teacher and in case the petitioner is otherwise meritorious, she shall be continued. 2. With these observations, the writ petition stands disposed of, so also the pending application(s), if any.” 3. However, the fact of the matter is that judgment was rendered by this Court on 24.9.2012, the services of the petitioner had already been terminated on 20.9.2012 and the petitioner was served with the order on 26.9.2012. Petitioner has not been permitted to join her duties as per order dated 28.9.2012 vide Annexure P-16. Petitioner has also made representation for the redressal of her grievance on 3.10.2012. It is in these circumstances the petitioner has filed the present petition assailing office order dated 20.9.2012 whereby services of the petitioner have been terminated. Petitioner has also prayed for quashing of orders dated 10.9.2012 and 28.9.2012. 4. 77 posts of Language Teachers were lying vacant in Hamirpur District. Out of these 77 posts posts, 37.5% posts were to be filled up through batch-wise recruitment, 37.5% through H.P. Staff Service Selection Board, Hamirpur and remaining 25% posts were to be filled from amongst the eligible Junior Basic Trained Teachers. In the reply affidavit, it has been specifically stated that the Government has permitted to fill up only 12 posts. Petitioner is at the bottom of the merit list prepared for filling up the posts batch-wise basis. 5. Mr. Bhuvnesh Sharma has vehemently argued that the services of the petitioner could not be terminated in view of the judgment passed by this Court in CWP No.3608/2012 dated 24.9.2012. The Division Bench has noted that the steps were taken up only for filling up 12 posts, though it was the submission by the petitioner in CWP No.8085/2012 that posts were lying vacant against 37.5% quota. The Court, in the present petition, had directed the Assistant Advocate General to seek instructions with regard to vacancies on 9.10.2012. The Division Bench has noted that the steps were taken up only for filling up 12 posts, though it was the submission by the petitioner in CWP No.8085/2012 that posts were lying vacant against 37.5% quota. The Court, in the present petition, had directed the Assistant Advocate General to seek instructions with regard to vacancies on 9.10.2012. Similarly, on 18.10.2012, the Court had issued directions to respondent No.3 to furnish vacancy position in the post of Language Teacher in District Hamirpur in 37.5% quota. It is clear from order dated 12.11.2012 that the petitioner was informed by the Deputy Director, Hamirpur that 77 posts were lying vacant in District Hamirpur. According to the Deputy Director, there were only 30 posts vacant under 37.5% quota and only 12 posts were permitted to be filled up by the State Government. In the reply, the stand of the respondent-State is that since only 12 posts were permitted to be filled up, the remaining posts could not be filled up. The Court cannot direct the State Government to fill up the posts. It is for the State Government that how many posts are to be filled up. Ms. Anu Mahajan was not appointed against batch-wise quota on the ground that she had crossed the age of 45 years. The Court had directed that in case the petitioner was not appointed and in case the petitioner has registered her name in the Employment Exchange concerned with the required qualification before attaining the age of 45 years, she shall be offered appointment. She was appointed pursuant to the order of the Court dated 13.8.2012. The Court while passing order on 13.8.2012 in CWP No. 3608/2012 had directed that in case the appointment of any person was to be disturbed, such person was required to be issued notice and he was also required to be offered an opportunity of hearing. This was to be completed within a period of three weeks. Respondent-State has complied with the order dated 13.8.2012 while issuing notice to the petitioner on 10.9.2012, to which petitioner has filed reply on 14.9.2012. The order has been passed after receiving the reply of the petitioner on 20.9.2012. In fact, the petitioner should have brought to the notice of the Court that her services have already been terminated on 20.9.2012. Respondent-State has complied with the order dated 13.8.2012 while issuing notice to the petitioner on 10.9.2012, to which petitioner has filed reply on 14.9.2012. The order has been passed after receiving the reply of the petitioner on 20.9.2012. In fact, the petitioner should have brought to the notice of the Court that her services have already been terminated on 20.9.2012. Since services of the petitioner stood terminated, she has rightly been prevented from joining her duties on 28.9.2012. Since, as noticed above, only 12 posts were permitted to be filled up by the State Government, even as argued by Mr. Bhuvnesh Sharma, more posts were lying vacant, the Court cannot issue mandamus to the State Government to fill up the posts. Once the services of the petitioner have been terminated on 20.9.2012 and she has rightly been prevented from discharging the duties on 28.9.2012, State Government could not permit her to discharge her duties. 6. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in the writ petition and the same is dismissed. Pending application(s), if any, also stands disposed of. No costs.