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2015 DIGILAW 1062 (HP)

Inder Dev v. State of Himachal Pradesh

2015-08-10

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

body2015
JUDGMENT Mansoor Ahmad Mir, J. 1. This Letters Patent Appeal is directed against the judgment dated 15.10.2012, made by the learned Single Judge of this Court in CWP (T) No. 12690 of 2008, titled Sh. Vinod Kumar versus State of H.P. and others, whereby the writ petition came to be allowed and the selection and appointment of the respondent-appellant herein was quashed with direction to the State-respondents No. 1 to 3 in the writ petition to consider the case of the writ petitioner-respondent No. 7 herein for appointment, for short “the impugned judgment” on the grounds taken in the memo of appeal. BRIEF FACTS 2. It appears that the Government of Himachal Pradesh framed the Recruitment Scheme for the appointment of Part-Time Water Carriers in the Schools of Education Department, hereinafter referred to as “the Scheme” for short. Clause 12 of the said Scheme deals with the appointment on compassionate grounds. It is apt to reproduce Clause 12 of the said Scheme herein: “12. Compassionate ground appointment. The government will have the power to appoint any candidate as part time water carrier on compassionate ground without following the selection process if the candidates are widows, women deserted by their husbands, or otherwise destitute handicapped persons and if the candidates falls below the poverty line as defined by the Rural Development Department from time to time.” 3. The contest for the post of Part Time Water Carrier was in between the writ petitioner, namely, Vinod Kumar and respondent Inder Dev-appellant herein. The appellant herein came to be appointed by the authorities concerned as Part time Water Carrier and writ petitioner-appellant herein sought quashment of his appointment by the medium of Original Application No. 275 of 2005 before the State Administrative Tribunal, hereinafter referred to as “the Tribunal, for short”. The said Original Application came to be disposed of by the Tribunal by treating the same as representation and the Principal Secretary (Education)-respondent No. 1 was directed to consider the representation and dispose of the same within two months from the date of receipt of the copy of order. The said Original Application came to be disposed of by the Tribunal by treating the same as representation and the Principal Secretary (Education)-respondent No. 1 was directed to consider the representation and dispose of the same within two months from the date of receipt of the copy of order. The said representation was considered and rejected vide order dated 26th November 2005 (Annexure A-12), constraining the petitioner-respondent No. 7 herein to question the said rejection order by the medium of Original Application No. 10 of 2006 praying for the following reliefs :- “(a) The action of the respondents in appointing the Respondent No. 5 as Part-Time Water Carrier High Court of H.P. in Govt. Primary School, Khanyol Bagra, Tehsil Karsog, District Mandi, (HP) may kindly be quashed and set aside. The Respondents may kindly be directed to consider the applicant for appointment as Part-Time Water Carrier in the said School. (b) The order of the respondent No. 1 dated 26.11.2005 contained in Annexure A-12 may kindly be quashed and set aside in the interests of justice. (c) The respondent No. 5 may kindly be directed to place on record before this Hon’ble Tribunal the details of his moveable and immoveable properties/assets. (d) The Respondent No. 1 may kindly be directed to hold enquiry against the erring officials for issuing wrong certificates in favour of the Respondent No. 5 and to take suitable action against them. (e) The Respondents may kindly be directed to produce the entire relevant record for the perusal of this Hon’ble Court for just decision of the O.A. in the interests of justice and after the perusal of the record, any other or further relief as may be warranted by the facts and circumstances of the case, may kindly be allowed ion favour of the Applicant and against the Respondents in the interests of justice.” 4. The Original Application No. 10 of 2006, supra, on the abolition of the Tribunal, was transferred to this Court and came to be registered as CWP (T) No. 12690 of 2008. 5. The respondents have filed reply. The Original Application No. 10 of 2006, supra, on the abolition of the Tribunal, was transferred to this Court and came to be registered as CWP (T) No. 12690 of 2008. 5. The respondents have filed reply. It appears that the Sub-Divisional Officer (Civil)–cum-Sub-Divisional Magistrate Karsog, District Mandi, H.P. who was not party in Original Application No. 275 of 2005, was arrayed as party respondent in Original Application No. 10 of 2006, filed his affidavit and stated that the appellant does not belong to a BPL family as per enquiry conducted by the Tehsildar Karsog. The appellant has not filed any replica or supplementary affidavit in response to the reply filed by respondent No. 7 in the Original Application. 6. The learned Single Judge held that the appellant-writ respondent No. 5 was not belonging to BPL category and was also not physically handicapped person, as per the mandate given in clause 12 of the Scheme, quoted supra. 7. The aim and object of the Scheme was to provide relief, sustenance to the widows, women deserted by their husbands, or other destitute handicapped persons and if the candidate falls below the poverty line, as defined by the Rural Development Department from time to time. 8. The appellant-writ respondent No. 5 had obtained certificate (Annexure R5/1) of physically handicapped person, from the competent authority, was upheld by the respondent No. 1, who rejected the representation of the writ petitioner vide order dated 26.11.2015, Annexure A12. 9. Thus, the moot questions involved in this lis are as under: (i) Whether the Writ Court has rightly held that the appellant was not a physically handicapped person and was also not belonging to BPL family? (ii) The said certificate was not questioned and without seeking quashment of the said certificate, was the Writ Court within its power to quash the appointment of appellant-writ respondent No. 5, directing the respondents to consider the case of the writ petitioner-respondent No. 7 herein, for appointment? (iii) Was the Writ Court within its power to hold that the appellant-writ respondent No. 5 was not a deserted handicapped person while discussing the provisions, as contained in paragraph No. 20.4.7 of Chapter 20 of the Hand Book on Personnel Matters Vol.-II (Second Edition)? 10. Apparently, the appointment was to be made on compassionate grounds. (iii) Was the Writ Court within its power to hold that the appellant-writ respondent No. 5 was not a deserted handicapped person while discussing the provisions, as contained in paragraph No. 20.4.7 of Chapter 20 of the Hand Book on Personnel Matters Vol.-II (Second Edition)? 10. Apparently, the appointment was to be made on compassionate grounds. The word physically handicapped is neither given or defined in clause 12 of the Scheme, supra nor it is recorded anywhere that she or he should be physically handicapped as given in Hand Book on Personnel Matters. The certificate (Annexure R5/1), issued in favour of the appellant was also not questioned. The Writ Court held that he was not deserted handicapped person. 11. The Writ Court has also not quashed the rejection order dated 26.11.2015, Annexure A-12 whereby representation came to be rejected in terms of the order made by the Tribunal in OA No. 275 of 2005. 12. The Writ Court has also not determined whether the writ petitioner-respondent No. 7 herein was eligible and falling within the frame-work of Clause 12 of the Scheme, supra. 13. In the given circumstances, it is a fit case which requires interference and the impugned judgment needs to be set aside. But the handicap is that during the course of the arguments Mr. H.K. Paul, Advocate argued that the writ petitioner-respondent No. 7 herein came to be appointed during the pendency of the appeal and is in position as on today. 14. The learned Advocate General stated that the order of appointment is outcome of the impugned judgment and argued that the impugned judgment merits to be set aside and resultantly the appointment has to be withdrawn. 15. Keeping in view the peculiar facts and circumstances, we deem it proper to set aside the impugned judgment and remand the case to the learned Tribunal with request to the learned Tribunal to decide the matter afresh, while keeping in view all the facts, pleadings, and the aim and object of the Scheme, supra in general and Clause 12 of the Scheme, supra, in particular, within four weeks w.e.f. 17th August, 2015. 16. Parties are at liberty to complete pleadings and also to file additional pleadings before the learned Tribunal, so that, the matter can be set at rest once for all. Till then, the appointment of respondent No. 7 shall remain in force. 16. Parties are at liberty to complete pleadings and also to file additional pleadings before the learned Tribunal, so that, the matter can be set at rest once for all. Till then, the appointment of respondent No. 7 shall remain in force. It is made clear that the writ petitioner-respondent No. 7 herein is beneficiary of the impugned judgment and shall not claim any right, title or interest, if the decision goes against him. 17. The parties are directed to cause appearance before the learned Tribunal on 17th August, 2015. Registry to send down the file to the Tribunal, after proper indexing.