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Himachal Pradesh High Court · body

2016 DIGILAW 1261 (HP)

Manorma Verma v. State of HP

2016-07-01

SANDEEP SHARMA

body2016
JUDGMENT : Sandeep Sharma, J. 1. By way of present writ petition filed under Section 226 of the Constitution of India, the petitioner has invoked extraordinary jurisdiction of this Court and has prayed for following reliefs:- “(a) That a writ of Certiorari may be issued for quashing and setting-aside the impugned orders 30.6.2009 Annexure P-8 and Annexure P-6 notification dated 6.11.2008, whereby the learned Deputy Commissioner has dismissed the appeal filed by the present petition and upheld the finding of the learned SDM Theog, H.P. (b) That writ of mandamus may be issued directing the respondent to allow the petitioner to perform her duties as TGT (arts) in Government High School Chanair, Tehsil Theog, District Shimla, H.P. (c) That the notification dated 27.5.2008 be quashed and set-aside. (d) That the entire record pertaining to the case may be called for the kind perusal of this Hon’ble Court.” 2. Briefly stated facts as emerge from the record are that the petitioner was selected and appointed as Trained Graduate Teacher ( In short ‘TGT’) Arts in the Government High School Chanair, Tehsil Theog, District Shimla, Himachal Pradesh by Parents Teachers Association (in short ‘PTA’). PTA appointed the petitioner as TGT in terms of PTA Rules, 2006. Perusal of communication dated 20.9.2006 written by Headmaster Government High School Chanair, Theog addressed to learned Deputy Director of Education, Shimla, HP, suggests that the petitioner was appointed against the post of TGT (Arts) on merit basis by the PTA. Careful perusal of the letter also suggest that the petitioner was selected by the PTA in terms of PTA new Rules, formulated by State of Himachal Pradesh and appointment of the petitioner was made purely on temporary basis. Pursuant to aforesaid communication dated 20.9.2006, the petitioner applied within 15 days of the issuance of the aforesaid letter and joined at the aforementioned school as TGT. 3. Subsequently, Government of Himachal Pradesh, Higher Education Department issued a notification on 27.5.2008, providing that committees constituted in terms of notification dated 19.4.2008 would hear the affected parties/complainants after going through the records and guidelines to take appropriate decision. Vide communication dated 27.5.2008 (Annexure P-6), State of Himachal Pradesh framed following guidelines:- “1. The complaints by the affected parties have to be made to the Chairman of the Committee concerned on an Affidavit by 20th June, 2008. 2. Vide communication dated 27.5.2008 (Annexure P-6), State of Himachal Pradesh framed following guidelines:- “1. The complaints by the affected parties have to be made to the Chairman of the Committee concerned on an Affidavit by 20th June, 2008. 2. The Committees will inquire into the submissions made in the complaints such as adequate publicity not made, interview not held, all the eligible applicants not invited for interview or/and merit ignored or any other issue brought to the notice of the Committees. 3. The complaints against ignoring of merit shall be evaluated based on the evaluation criteria given in the enclosed Annexure-A. 4. Deputy Commissioner of the District will decide whether he will chair the Committee himself or nominate ADC or ADM for a College or for a group of Colleges. For the Senior Secondary/High Schools, he will nominate ADC, ADM or SDM for a school or for a group of schools. 5. The committee will forward its recommendations to the PTA and head of concerned educational institutions by 22nd September, 2008. 6. Further Grant-in-aid to the PTA and acceptance of the teachers will be as per recommendations of the Committee. 7. An appeal against the recommendations of the Committees can be made to Divisional Commissioner for Colleges and for other Educational Institutions to the Deputy Commissioner within 30 days from the date of recommendations. 8. The Chairman of the Committee concerned will set up a mechanism to receive complaints in this regard. 9. Principal of the College, the Principal of the Senior Secondary School and Headmaster of the High School will recheck the educational qualifications of all the teachers offered by the PTA and verify whether their educational qualifications are as per the requirement of R&P Rules of the post against which they are appointed. In case the qualifications do not meet the requirement no Grant-in-Aid is admissible to the PTA as already provided in Rule-7 of the Grant-in-Aid to PTA Rules-2006. 10. Cases where specific order has been made by the Hon’ble Court will be dealt keeping in view those Orders. 11. If allegation of adequate publicity not made, interview not held, all the eligible applicants not invited for interview or/and merit ignored is proved then the existing teacher provided by the PTA will not be accepted. 10. Cases where specific order has been made by the Hon’ble Court will be dealt keeping in view those Orders. 11. If allegation of adequate publicity not made, interview not held, all the eligible applicants not invited for interview or/and merit ignored is proved then the existing teacher provided by the PTA will not be accepted. The PTA provided teacher will also not be accepted if the Committee for other reasons comes to the conclusion that selection procedure was wrong and recommends non acceptance of the teacher.” 4. Pleadings on record suggest that respondent No. 5 filed complaint before the Committee constituted in terms of notification dated 27.5.2008 against the present petitioner alleging therein that PTA had not made appointment of the petitioner strictly in accordance with rules in vogue, however, it would be noticed at this stage that no complaint, whatsoever, is available on the record. Neither the same has been placed on record by the respondents with their reply nor it is available in the record called by this Court for examination. Pursuant to aforesaid complaint received from respondent No. 5, SDM Theog, passed order dated 6.11.2008, wherein he passed following order:- “Application of Sh. Shashi Bhushan, S/o Sh. Deep Ram, S/o Kajau Tehshil Theog, against the appointment of TGT Arts in GHS Channiar. Order In compliance of the Govt. Notification No. EDN-A-Kha[7]3/2006 dated Shimla-2 dated 27th May, 2008 has constituted a Committee to inquire into the cases of irregularities/ anomalies regarding appointment of teachers by the Parents Teacher Association in the Pradesh. As per the direction, the Committee has to go through the original record and guidelines conveyed by the govt. The Committee has to inquire into the various points as follows:- 1. Adequate publicity 2. Interview not held 3. All eligible applicants not invited or interview 4. Merit ignored 5. Any other issues brought to the notice of the Committee. 6. In case of merit ignored, the Annexure [a] has to be followed 7. PTA President The complaint has given an affidavit regarding his grievance and requested to inquire into the matter as under:- Merit ignored The desired record summoned and simultaneously, the complainant concerned in person. The Principal and Subject Specialist called upon the said date 16-8-2008 & 29-8-2008. 6. In case of merit ignored, the Annexure [a] has to be followed 7. PTA President The complaint has given an affidavit regarding his grievance and requested to inquire into the matter as under:- Merit ignored The desired record summoned and simultaneously, the complainant concerned in person. The Principal and Subject Specialist called upon the said date 16-8-2008 & 29-8-2008. As per the above facts, the committee comes to the conclusion that as per the record made available from the concerned school, it reveals that the appointment made by the PTA Committee does not fall in the norms fixed by the Govt. of H.P. and the appointment made by the PTA committee is cancelled and committee recommended the name of Geeta Sharma, D/o Sh. Ram Dutt Sharma.” 5. Before proceeding further, it would be apt to notice at this stage that though perusal of the aforesaid order passed by the learned SDM suggests that matter was placed before some committee constituted in terms of notification dated 27.5.2008 but surprisingly, there is no document either on the record of the Court case file or in the records produced by the respondents in terms of orders passed by this Court. This Court only could lay its hand to the order dated 6.11.2008, whereby learned SDM, cancelled the appointment of the petitioner made by the PTA committee and recommended the name of Ms. Geeta Sharma for the post. Aforesaid order though suggests that merit was ignored at the time of appointment of the petitioner made by PTA of the concerned school but as has been observed above, there is nothing on record from where, it can be inferred that how and in what manner, merit was actually ignored by the PTA at the time of making appointment of the petitioner against the post of TGT in the concerned school, rather, bare reading of the communication dated 6.11.2008 suggests that the complainant had given some affidavit, wherein he had made certain allegations but definitely, there is nothing on record to suggest that committee constituted in terms of notification dated 27.5.2008 actually deliberated upon the issue at hand and passed some speaking orders associating the present petitioner. 6. 6. Feeling aggrieved and dissatisfied with the order passed by the learned SDM, Theog, the petitioner filed appeal before the learned Deputy Commissioner Shimla, he while dismissing the appeal of the petitioner vide order dated 30.6.2009 passed following orders (Annexure P8 last para):- “I have gone through the record as well as the recommendation of the SDM Theog. I have also seen the result sheet as well as the comparative merit drawn by the enquiry committee on the basis of the criteria fixed by the Govt. The result sheet prepared by the PTA clearly shows that the marks have not been given by them as per criteria fixed by the Govt. The perusal of merit drawn by the enquiry committee on the basis of new criteria shows hat Km. Manorma scored 55.27 marks against 58.48 scored by the Geeta Sharma. In view of above the recommendation passed by the SDM Theog is upheld and the appeal is dismissed. File be consigned to G.R.R. after due completion.” 7. The petitioner being aggrieved with the order passed by the learned SDM and Deputy Commissioner Shimla, apprehending that his service would be terminated in terms of the recommendations made by the aforesaid authorities, approached this Court by way of present writ petition. The Hon’ble Division Bench of this Court vide order dated 10.8.2009, while admitting the petition and issuing notice to the respondents ordered that “the petitioner will be allowed to work as PTA Teacher (TGT Arts), in case, no other person has been appointed against her place.” 8. Mr. Dilip K. Sharma, Advocate, representing the petitioner vehemently argued that the impugned orders are not sustainable as the same are not based upon the correct appreciation of the documentary evidence available on record. He contended that the petitioner was rightly appointed by PTA, on 20.9.2006 purely on merit basis and strictly in terms of the grant-in-aid rules, 2006, which were in vogue at that time as far as appointment of teachers by the PTA is concerned. He forcefully contended that the respondents had no occasion, whatsoever, to entertain the complaint of respondent No. 6, especially, when she had participated in the selection process and appeared in the interview. Once she appeared in the interview, she had no right, whatsoever, to challenge the appointment of the petitioner, which was purely made on the merit basis. He forcefully contended that the respondents had no occasion, whatsoever, to entertain the complaint of respondent No. 6, especially, when she had participated in the selection process and appeared in the interview. Once she appeared in the interview, she had no right, whatsoever, to challenge the appointment of the petitioner, which was purely made on the merit basis. He also urged that learned SDM while passing order dated never associated the petitioner in any manner. No notice, whatsoever, was ever issued to the petitioner intimating therein with regard to filing of complaint, if any, by respondent No. 5. He prayed that since order dated 6.11.2008 passed by the learned SDM, was passed at his back without affording him any opportunity of being heard, same deserves to be quashed and set-aside. 9. On the other hand, Mr. Rupinder Singh Thakur, learned Additional Advocate General, duly assisted by Mr. Rajat Chauhan, Law Officer, for the respondent-State supported the impugned orders recommending therein cancellation of the appointment of petitioner. He forcefully contended that since PTA had appointed the present petitioner in violation of the rules framed by the respondent, his appointment has been rightly cancelled by the authorities and as such, no interference, whatsoever, of this Court is warranted in the present facts and circumstances of the case. However, during the arguments having been made by him, he was unable to demonstrate from the record that how committee constituted in terms of notification dated 27.5.2008 actually dealt with the complaint, if any, lodged by respondent No. 5. Though learned AG produced record pertaining to the inquiry conducted by the respondent on the basis of the complaint but he was unable to point out any document suggestive of the fact that at that time of so called inquiry, other members were also associated and on the basis of some rules as has been observed in the order dated 6.11.2008, committee had drawn some comparative merit. Rather, learned Additional Advocate General to substantiate his arguments only relied upon the merit list drawn by the PTA on 18.9.2006, where petitioner was appointed as TGT (Arts) in the school concerned. Rather, learned Additional Advocate General to substantiate his arguments only relied upon the merit list drawn by the PTA on 18.9.2006, where petitioner was appointed as TGT (Arts) in the school concerned. Though, in order dated 6.11.2008, there is mention with regard to complainant having been filed an affidavit specifically alleging therein that “merit Ignored” but in the absence of any complaint, this Court is unable to accept the aforesaid contention of respondent No. 6 as well as other respondents. Otherwise also perusal of the communication dated 6.11.2008 nowhere suggests that aforesaid allegation of merit having been ignored at the time of recruitment of the petitioner, has been dealt with by the committee headed by learned SDM because there is nothing on record to suggest that some comparative statement was drawn by the so called committee after receipt of complaint from respondent No. 5. There is no document available on record to suggest that meeting, if any, of committee ever held after the receipt of complaint from respondent No. 5. This court could only lay its hand to letter dated 6.11.2009, wherein it finds mention that “as per the record made available from the concerned school, it reveals that the appointment made by the PTA Committee does not fall in the norms fixed by the Govt. of H.P. and the appointment made by the PTA committee is cancelled and committee recommended the name of Geeta Sharma, D/o Sh. Ram Dutt Sharma.” Hence, this Court, in the absence of record, if any, with regard to inquiry allegedly conducted by the committee constituted in terms of notification dated 27.5.2008, whereby, the appointment made by PTA committee has been ordered to be cancelled, really finds it difficult to accept the contention put forth on behalf of respondents. Further perusal of order dated 30.6.2009 passed by learned Deputy Commissioner in the appeal preferred by the petitioner suggests that inquiry committee had drawn some merit list on the basis of new criteria, wherein present petitioner Kumari Manorma secured 55.2 marks against 58.48 secured by Geeta Sharma. But this is not understood that how learned Deputy Commissioner came to the aforesaid conclusion in the absence of any record. At least, this Court was unable to lay its hand to merit list, if any, drawn by the Inquiry committee on the basis of new criteria. But this is not understood that how learned Deputy Commissioner came to the aforesaid conclusion in the absence of any record. At least, this Court was unable to lay its hand to merit list, if any, drawn by the Inquiry committee on the basis of new criteria. It appears that learned Deputy Commissioner without looking into the records only accepted the order of the ld. SDM and dismissed the appeal preferred by the petitioner. Moreover, careful perusal of the reply filed by respondents No. 4 i.e. PTA suggests that appointment of present petitioner was made strictly in terms of PTA Rules, 2006, which was in vogue at the time of making appointment on contract basis by PTA. It would be apt to reproduce Para No. 3 of the reply filed by respondent No. 4 i.e. PTA:- “3. That the contents of para-3 of the writ petition are also admitted in toto. It is worthwhile to mention here that the PTA under the Chairmanship of replying respondent found the petitioner most suitable and meritorious as compared to other candidates appeared in the interview for the selection of TGT (Arts) teacher in Govt. High School, Chanair, Tehsil Theog, District, Shimla. The petitioner as per Annexure P-4 is suffering 55% disability (Locomotor) and her place of residence is only about one Km away from the school and that too in the same Panchayat (GP Pargaya). As far as the non selected candidate Shri Shashi Bhushan, respondent No. 5 is concerned is a permanent resident of village Kajau which is at a distance of more than 15 km away from the Govt. High School Chanair. It is pertinent to mention here that Shri Shashi Bhushan, respondent No. 5 got his degree from an institution not recognized by Govt. of Himachal Pradesh and as such his candidature was rejected by the PTA Committee. The candidature of respondent No. 6, Ms. Geeta was also not found to be suitable as per PTA Rules, 2006, as she belongs to Village Bagharan, V&PO Chhota Shimla, Tehsil and District Shimla and the said place of residence of Respondent No. 6 is about 17 Km. from the school. The PTA was justified in rejecting the candidature of said Geeta Sharma. Geeta was also not found to be suitable as per PTA Rules, 2006, as she belongs to Village Bagharan, V&PO Chhota Shimla, Tehsil and District Shimla and the said place of residence of Respondent No. 6 is about 17 Km. from the school. The PTA was justified in rejecting the candidature of said Geeta Sharma. The learned SDM Theog while passing the impugned order (Annexure P-7) has not taken into consideration the said disqualification of Respondents No. 5 and 6, therefore, the order Annexfure-P7 is not sustainable in law and the same is liable to be quashed.” Careful perusal of the aforesaid reply filed by respondent No. 4 leaves no doubt in the mind of this Court that the petitioner was appointed as a TGT Arts by PTA strictly in terms of PTA Rules, 2006, which was the guiding factor for the PTA for making appointment of teachers on contract basis at that relevant time. Rather, close scrutiny of reply filed by respondent No. 4 suggests that petitioner being most eligible candidate available at that time, was rightly appointed by PTA. Court sees no reason to disbelieve the version put forth by respondent No. 4 in their reply, which is duly supported by an affidavit, in the absence of some documentary evidence suggestive of something contrary. Moreover, there is no allegation of mala-fide or bias against the PTA in the writ petition. Respondent No. 5 while making complaint, if any, only alleged that merit has been ignored but no mala-fide, whatsoever, has been alleged against the PTA, rather, reply filed by respondents No. 2 and 3 is silent qua the appointment made by PTA. Respondents have only stated that during scrutiny of documents and after hearing the complainant as well as Principal of institution, it was found that appointment made by the PTA is not in accordance with the norms of Govt. as per Annexures P6 dated 27.5.2008. But at this stage, fact remains that once the appointment of the petitioner was made in the year, 2006 that too strictly, in terms of PTA Rules, 2006, there is no question of compliance if any of the rules framed by the respondent with regard to the selection/ appointment by PTA in terms of rules framed in year 2008. 10. But at this stage, fact remains that once the appointment of the petitioner was made in the year, 2006 that too strictly, in terms of PTA Rules, 2006, there is no question of compliance if any of the rules framed by the respondent with regard to the selection/ appointment by PTA in terms of rules framed in year 2008. 10. Admittedly, in the present case, the petitioner was appointed by PTA in the year 2006 in accordance with PTA Rules 2006, which was in vogue and as such assertion of the respondent- State that appointment of PTA was not made in accordance with the Rule framed in year, 2008 has no force and same deserve to be rejected outrightly. 11. Consequently, in view of the detailed discussion made hereinabove, the petition is allowed and impugned orders are quashed and set-aside and respondents are directed to allow the petitioner to continue against the post of TGT in the Govt. High School Chanair, Tehsil Thoeg, District Shimla, H.P. The petition stands disposed of, so also pending applications, if any.