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2013 DIGILAW 870 (HP)

NISHA SHARMA v. STATE OF HIMACHAL PRADESH

2013-10-04

RAJIV SHARMA, SANJAY KAROL

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JUDGEMENT SANJAY KAROL, J. - 1. PETITIONER has prayed mainly for the following reliefs: "a) That the order dated 7 5 2013 passed by the Ld. Director of Education and order dated 3.8.2012 passed by the Ld. Dy. Director of Education may kindly be quashed and set aside and the respondents may kindly be directed to Whether reporters of Local Papers may be allowed to see the judgment? appoint the petitioner as Lect. Hindi at GSSS Dharampur being a selected candidate by the PTA from where the petitioner was replaced by the regular appointee and the appointment of respondent No.6 may kindly be set aside." 2. FOR the post of Lecturer, applications were invited by the PTA Committee, GSSS, Dharampur, District Mandi. On 20.6.2007, petitioner was given appointment on the basis of list prepared by the Selection Committee. Dispute arose with regard to such appointment. It be only observed that Amro Devi, Nisha Sharma and Monika Sharma who claimed their rights for appointment, filed petitions before this Court which were disposed vide judgment dated 21.3.2011 (Annexure P 9) and 22.6.2012 (Annexure P 11). As a consequence of directions issued by this Court, the Director of Higher Education (respondent No.2) has now passed the impugned order dated 7.5.2013 (Annexure P 15). Having heard learned counsel for the parties, we are of the considered view that no case for interference is made out in the present petition. It can not be said that the order passed by respondent No.2 is perverse, illegal, arbitrary or unreasonable in any manner. Operative portion of the order passed by respondent No.2 reads as under: "Now therefore, after taking into consideration the totality of facts and circumstances involved in this case the undersigned has no hesitation in coming to the conclusion that petitioner Monika Sharma is victim of wrongs committed by PTA GSSS Dharampur. Not only this there were repeated direction from Hon'ble High Court to re engage her but Nisha Sharma on one pretext or the other, caused various hindresses in her appointment/re engagement. When Hon'ble High Court directed the DDHE Mandi to hear and decide representation instead of deciding it either in favour or disfavour, he gave a new turn to the issue which is totally against the directions passed by the Hon'ble High Court. When Hon'ble High Court directed the DDHE Mandi to hear and decide representation instead of deciding it either in favour or disfavour, he gave a new turn to the issue which is totally against the directions passed by the Hon'ble High Court. At least when entire record was available, it was warranted to give findings but recommended for SMC engagement against vacancy thereby bringing third incumbent/stake holder to the scene, whereas such engagement under SMC policy can be made only against vacancy in hard/tribal region and GSSS Dharampur does not fall within the ambit of this policy of SMC engagement. He was to decide either in favour of Smt. Monika Sharma or Smt. Nisha Sharma as per record, rules/instruction issued by the govt. from time to time. Hence his recommendation/directions are also set aside in view of above discussed findings. The earlier engagement of the petitioner since 3.10.2005 to 31.3.2008 and upon thorough interpretation of result sheet as made above clearly leads to the only conclusion that the scale of balance tilts in favour of meritorious candidate Smt. Monika Sharma which though a delayed justice but deserves to be implemented with suitable action. Accordingly Principal GSSS Dharampur being member Secretary of then PTA is hereby directed to re engage Monika Sharma on PTA GIA basis and regular hand namely Sh. Inder Pal Thakur (regular) needs to be shifted by way of transfer to nearby school i.e. GSSS Tanehar, Distt. Mandi where the post of lecturer Hindi is lying vacant for considerable period. Though he has not opted or this school and opted for another school i.e. GSSS Baroti, GSSS Longni and GSSS Langna, Distt. Mandi but the post in these institutions is not lying vacant and GSSS Tanehar is situated at a distance of just 7 to 9 KM. Hence, Principal GSSS Dharampur is hereby directed to re engage the service of Smt. Monika Sharma on PTA basis and Sh. Inder Pal Thakur is hereby ordered to be transferred to GSSS Tanehar being a local adjustment in administrative exigency as such in public interest. May inform the parties." 3. IN our considered view, respondent No.2 rightly observed that orders passed by this Court were misconstrued as a result of which Monika Sharma who was more meritorious could not be given appointment. May inform the parties." 3. IN our considered view, respondent No.2 rightly observed that orders passed by this Court were misconstrued as a result of which Monika Sharma who was more meritorious could not be given appointment. Present petitioner, in fact, was favoured by the Selection Committee, who awarded 10 out of 10 marks in viva voce and awarded only 2 marks to Monika Sharma who otherwise had secured 41.37 marks. This perhaps was done for the reason that petitioner is relative of one of the members of the Selection Committee. Thus, the finding that there was favoritism and discrimination in the selection process is not out of place. 4. UNDER these circumstances, present petition devoid of merit is dismissed. Pending application(s), if any, also stand dismissed.