Research › Search › Judgment

Himachal Pradesh High Court · body

2015 DIGILAW 1078 (HP)

Dabey Ram v. State of Himachal Pradesh

2015-08-12

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

body2015
JUDGMENT Tarlok Singh Chauhan, J. 1. The appellant has taken exception to the judgment passed by the learned writ Court on 15.5.2012 in CWP (T) No. 8727 of 2008, whereby his appointment as Water Carrier came to be quashed and set aside. 2. The facts in brief may be noticed. In the year 2002 selection process for filling up post of Water Carrier for Government Primary School, Barmadi was initiated, in which the appellant, as also respondent No. 4 (who was the writ petitioner) participated. The name of the appellant was recommended by the Selection Committee and he accordingly came to be appointed. His selection was questioned by the writ petitioner on the ground that his selection was against the policy/instructions/guidelines and notification of the Government and the respondents have adopted a policy of pick and choose, depriving the writ petitioner of being appointed, though he belongs to IRDP/BPL category and is also from Scheduled Caste category. He claimed a preferential right on the ground that he had served the school free of cost and also donated land to the school. 3. The official respondents contested the petition and supported the appointment of the appellant herein and it was averred that the selection of the appellant has been made strictly in accordance with the instructions/guidelines issued by the State Government. The official respondents reproduced the recommendations of the Selection Committee, which are as under:- “Applicant:- Distance from home to school Whether land was donated SC/ST/OBC Whether un-employed family Viva Total Marks Yes Yes Yes Yes ----- ----- 10 5 3 5 3 26 Respondent No. 4:- Distance from home to school Whether land was donated SC/ST/OBC Whether un-employed family Viva Total Marks Yes Yes ----- Yes ----- ----- 10 5 ----- 5 6.5 26.5 It appears that in the reply filed by the official respondents there was no mention of the appellant or his ancestors having donated land to the State Government so as to entitle him to the award of 5 marks. This led to the passing of the following order by the learned writ Court on 8.12.2010:- “The respondent is directed to file a supplementary affidavit whether respondent No. 4 or his ancestors have donated the land entitling him to five marks by next date. List on 7th January, 2011.” 4. This led to the passing of the following order by the learned writ Court on 8.12.2010:- “The respondent is directed to file a supplementary affidavit whether respondent No. 4 or his ancestors have donated the land entitling him to five marks by next date. List on 7th January, 2011.” 4. In compliance to the aforesaid direction, the official respondents filed supplementary affidavit, where it was mentioned that as per information received from the Block Elementary Education, Banjar, District Kullu, Sh. Narpat Ram, S/o Sh. Noop Ram R/o Village Jawal, P.O. Kanoun, Tehsil Sainj, District Kullu has donated 0-10 biswa of land to the Government Primary School, Barmadi and the appellant had also produced at the time of selection land donation certificate verified by Pradhan, in which Sh. Narpat Ram had executed a will of his land in favour of the appellant. It was also averred that the appellant was the care taker of Sh. Narpat Ram, as he was living with him. 5. The writ Court quashed the appointment of the appellant on the grounds that:- (i) The revenue record only reflects the gift made by Sh.Narpat Ram and not the appellant. (ii) Will executed by Sh. Narpat Ram in favour of the appellant was not produced on record. (iii) No reasons forthcoming why Sh. Narpat Ram made a Will in favour of the appellant. (iv) The procedure prescribed under Sub Rule (2) of Rule 21 of the H.P. Panchayti Raj Rules, 1997 (for short the “Rules”) has not been followed, while entering the name of the appellant in the Family Register of Narpat Ram. 6. The order passed by the learned writ Court has been assailed on various grounds, as taken in the memo of appeal. We have heard the learned counsel for the parties and have gone through the records of the case. Ground No. (i) 7. It is not in dispute that Sh. Narpat Ram was alive at the time of the selection and being the owner of the property his name was duly reflected in the revenue record. The Will executed by him would only come into operation after his death when succession on the basis of this Will is claimed and the property is mutated in favour of the legatee i.e. appellant and consequent to such mutation, these entries are then reflected and incorporated in the jamabandis. The Will executed by him would only come into operation after his death when succession on the basis of this Will is claimed and the property is mutated in favour of the legatee i.e. appellant and consequent to such mutation, these entries are then reflected and incorporated in the jamabandis. Therefore, it was what obvious that the revenue record would only reflect the gift made by Sh. Narpat Ram and not the appellant. Ground No. (ii). 8. The original record of selection was produced for our perusal, which apart from containing other documents contained the will executed by Sh. Narpat Ram in favour of the appellant, which was executed and registered on 12.3.1981 and therefore, there was no reason to conclude that the will executed by Sh. Narpat Ram was in fact not available on record. Ground No. (iii). 9. Though the law does not envisage or provide for recording of reasons as to why one was bequeathing his property to another, but in the instant case, it has specifically been mentioned in the will executed by Sh. Narpat Ram that his wife had left his company more than three years back and thereafter he was being looked after by his cousin Lal Chand and his nephew Dabey Ram (appellant herein) and that is why he was executing will in favour of his cousin Lal Chand and nephew Dabey Ram. Ground No. (iv). 10. Though the appellant has been non-suited on the ground of non compliance of Sub Rule (2) of Rule 21 of the H.P. Panchayati Raj Rules, but the record reveals that no such ground was even raised by the petitioner. Therefore, before invoking and applying this provision we feel it was incumbent upon the learned writ Court to have afforded an opportunity to the opposite parties to meet out this argument. 11. That apart, the impugned order does not even spell out as to how and in what matter the procedure prescribed under Sub Rule 2 of Rule 21 of the Rules had not been followed. 12. In view of the aforesaid discussion, we find merit in this appeal and the same is accordingly allowed. The writ petition filed by respondent No. 4 herein is ordered to be dismissed. 12. In view of the aforesaid discussion, we find merit in this appeal and the same is accordingly allowed. The writ petition filed by respondent No. 4 herein is ordered to be dismissed. Since the services of the appellant have been discontinued on 18.8.2013, he is directed to be reinstated in service with all back wages along with all consequential benefits, as if the appellant had throughout been in uninterrupted service, notionally, as per the directions passed by this Court earlier on 25.10.2013. Records of selection be returned against proper receipt. Parties are left to bear their costs.