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Himachal Pradesh High Court · body

2015 DIGILAW 607 (HP)

Sarita Devi v. State of H. P.

2015-05-27

SURESHWAR THAKUR

body2015
JUDGMENT : Sureshwar Thakur, J. The petitioner was appointed as Cutting and Tailoring Teacher in Gram Panchayat Bhoor. Her appointment in the aforesaid capacity was not challenged on the score of hers not fulfilling the prescribed eligibility criteria yet has been challenged on the ground that the prohibition engrafted in the provisions of Section 135 of the Himachal Pradesh Panchayati Raj Act, 1994 and the apposite rules framed there-under existing in Rule 137 of the Himachal Pradesh Panchayati Raj (General) Rules, 1997, against the appointment of any person by the Panchayat concerned in the event of such person holding/standing in relation to a person holding any office or being an office bearer in the Panchayat concerned, having stood attracted inasmuch, as, the husband of the petitioner is a Ward Member of the Panchayat concerned. The provisions of Section 135 of the Himachal Pradesh Panchayati Raj Act, 1994 and the apposite rules framed there-under existing in Rule 137 of the Himachal Pradesh Panchayati Raj (General) Rules, 1997, stand extracted hereinafter:- “Section 135: Other Officers and servants of Panchayats :- (1) Subject to the provision of Section 134 every Panchayat may, with the previous approval of prescribed authority, appoint such other officers and servants as it considers necessary for the efficient discharge of its duties. (2) The qualifications, method of recruitment, salaries, leave allowances and other conditions of service including disciplinary matters of such officers and servants shall be such as may be prescribed. Rule 137: “No person shall be employed by a Panchayat, if he is a near relative (father, grandfather, father-in-law, maternal or paternal uncle, son, grandson, son-in-law, daughter, niece, mother-in-law, daughter-in-law and husband) of any of the members or if he has been convicted of any criminal offence involving moral turpitude. No employee of the Panchayat shall be retained in service after he has attained the age of 58 years.” 2. For reiteration the prohibition is contended to have been constituted/attracted by the fact of the husband of the appointee/petitioner being a ward member of the Gram Panchayat, Bhoor. However, for attracting or inviting the prohibition engrafted in the above-referred extracted provisions of law, the apt and relevant date is of significance. For reiteration the prohibition is contended to have been constituted/attracted by the fact of the husband of the appointee/petitioner being a ward member of the Gram Panchayat, Bhoor. However, for attracting or inviting the prohibition engrafted in the above-referred extracted provisions of law, the apt and relevant date is of significance. The learned Deputy Advocate General has placed on record a resolution passed by the Panchayat concerned disclosing therein the factum that the husband of the petitioner was elected as a ward member of Gram Panchayat, Bhoor on 23.1.2006. However, the petitioner stood appointed by the Panchayat concerned as a cutting and tailoring teacher in the year 2004 and only in the event of the husband of the petitioner having been elected as a ward member in the Panchayat concerned on a date or time contemporaneous to the appointment of the petitioner would the prohibition constituted by the aforesaid provisions of law, stand attracted. Obviously, when the apposite or relevant and germane stage for determining the attraction of the prohibition engrafted in the herein above extracted rules/provisions of law, is the date of appointment of the petitioner in the capacity aforesaid by the Gram Panchayat concerned naturally then when at the apposite and relevant stage the husband of the petitioner was not elected as a Ward Member of the Panchayat concerned. In sequel the prohibition engrafted in the aforesaid provisions of law stood not attracted so as to oust the petitioner from continuing as Cutting and Tailoring Teacher. Consequently, annexure P-5 of 30.3.2006 is quashed and set-aside and the respondent/State is directed to appoint/reengage the petitioner forthwith, if so suitable and entitled to in accordance with law. The petition is disposed of accordingly. No costs.