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2016 DIGILAW 1279 (HP)

Hira Devi v. State of H. P.

2016-07-05

VIVEK SINGH THAKUR

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JUDGMENT : Vivek Singh Thakur, J. Petitioner has preferred present petition against permitting respondent No.4 to serve on the post of Cook in Government Primary School, Baimu, Block Dundan, Tehsil Arki, District Solan, H.P. on the basis of principle “Last come First go” by decision dated 26.5.2010 (Annexure P-1) resulting into dispensation of service of petitioner as Cook from the said School. 2. It is undisputed that Respondent No.4 was appointed as helper in Government Primary School, Baimu vide Resolution dated 23.6.2005 (Annexure P-3). Petitioner was engaged as Cook vide Resolution dated 15.1.2008 (Annexure P-2) passed in meeting of Mid-Day Meal Scheme in the same school. Respondent No.4 was continuing as helper since 23.6.2005 till his removal vide Resolution dated 26.3.2010 (Annexure P-4) on account of rationalization in compliance of instructions issued by respondent-department dated 11.2.2010 (Annexure P-5). As per instructions, number of Cook-cum-Helper was fixed on the basis of strength of students in the school and in Enrolment Slabs 0-25, only one Cook-cum-Helper was allowed. In pursuance to instructions of respondent department, in a meeting of Gramin Shiksha Samitee-cum-Parents Teacher Association under Mid-Day Meal Programme conducted on 26.3.2010, petitioner was continued as Cook-cum-Helper and services of respondent no.4 were dispensed with. However, later on vide decision dated 26.5.2010 (Annexure P-1) respondent No.4 was permitted to serve as Cook, resulting into removal of petitioner from the said post. Respondent No.4 was serving under Mid-Day Meal Scheme as helper since 23.6.2005 whereas petitioner was serving under the said scheme as cook w.e.f. 15.01.2008. 3. It has been argued by learned counsel for petitioner that petitioner has been removed without following the principle of natural justice without serving a notice upon her. It has been further submitted that she was appointed as a cook on 15.1.2008 vide Annexure P-2 whereas respondent No.4 was never appointed as a cook and he was always serving as helper since his initial appointment. He has submitted that cook is always cook and helper cannot be equated with a cook and respondent No.4 had never challenged Resolution dated 26.3.2010 (Annexure P-4) vide which he was removed from the post of helper and petitioner was allowed to serve as Cook-cum-Helper in compliance of Policy of respondent-department. 4. He has submitted that cook is always cook and helper cannot be equated with a cook and respondent No.4 had never challenged Resolution dated 26.3.2010 (Annexure P-4) vide which he was removed from the post of helper and petitioner was allowed to serve as Cook-cum-Helper in compliance of Policy of respondent-department. 4. Learned counsel for respondent No.4 has submitted that there is no difference between Cook and Helper and as per Policy of respondent department Cook and Helper are equivalent to each other as respondent department has designated the post as Cook-cum-Helper and there is no post either of ‘Cook’ or ‘Helper’ and therefore, mention of Cook or Helper at the time of engaging petitioner and respondent is irrelevant rather both of them are to be considered on the same post i.e. Cook-cum-Helper. She has also relied upon judgment passed by this Court in CWP No.7415 of 2010, titled Narkali Vs. State of H.P. & Others, CWP No.3496 of 2010, titled Pawna Devi vs. State of Himachal Pradesh and others, CWP No.3599 of 2010, titled as Rajo Devi vs. State of H.P. & Ors., and CWP No.2547 of 2011, titled Anu Devi vs. State of H.P. & Ors. in which relying upon Instructions and Policy of respondent department, it has been held that Cook and Helpers are equivalent to each other and in case of rationalization, service of incumbent appointed at later point of time will be dispensed with irrespective of nomenclature assigned at the time of appointment. 5. Learned Deputy Advocate General has stated that as per instructions of the department there is only one designation as Cook-cum-Helper and number of Cook-cum-Helper is fixed on the basis of enrolment of students and Government has decided to follow principle of ‘Last come First go’ in case of rationalization of Cook-cum-Helper on the basis of strength of students. 6. On 11.2.2010, Director Elementary Education had issued a letter (Annexure P-5) stating that Honorarium to Cook-cum-Helper shall be increased to Rs.1000/- per month w.e.f. 1.2.2010 and in the same letter, he has also circulated norms for engaging number of Cook-cum-Helper in a School. This letter indicates that there is only one post i.e. Cook-cum-Helper under Mid-day Meal Scheme and number of Cook-cum-Helper will vary according to strength of students. There are no posts as only ‘Cook’ or only ‘Helper. 7. This letter indicates that there is only one post i.e. Cook-cum-Helper under Mid-day Meal Scheme and number of Cook-cum-Helper will vary according to strength of students. There are no posts as only ‘Cook’ or only ‘Helper. 7. Serving notice prior to dis-engagement of petitioner would have served no purpose as she has not been removed for any misconduct or any other reason impeaching her but on account of parameters fixed by the department based on settled law of land. Purpose of issuance of notice prior to removal is to provide safeguard to a person being removed so as to enable him to place material before the authorities so as to justify his/her continuation in opposition to removal. 8. In present case even after removal of the petitioner, there is no material on record for which, it can be held that removal of petitioner was not in accordance with law. Sufficient post decisional hearing has been given to petitioner but no case in favour of petitioner has been made out on the basis of material on record. Therefore, no prejudice has been caused to petitioner on account of her removal without serving notice. 9. The plea of petitioner that Helper cannot be equated with cook is also not tenable in view of instructions issued by the department as respondent department has not differentiated between Cook and Helper but has designated the person to be engaged under Mid-day Meal Scheme as Cook-cum-Helper. Therefore, mentioning of Cook or Helper at the time of engagement of service by School Management Committee does not make any difference and both of them are to be treated as Cook-cum-Helper and at the time of dispensation of service for any reason principle of ‘Last come First go’ is to be followed. 10. Plea of petitioner that respondent No.4 had not assailed his removal decided vide resolution dated 26.03.2010 (AnnexureP-4) and therefore his services can not be treated in continuation since 2005 is also of no help to the petitioner as the respondent No. 4 has been permitted to continue by taking decision dated 26.05.2010 (AnnexureP-1) by rectifying mistake following principle of ‘Last come First go’ and therefore there was no occasion for respondent No. 4 to assail decision dated 26.03.2010 (Annexure-P-4). 11. The impugned order has been passed on 26.5.2010 in compliance of Policy of the Government and instructions issued time to time in this regard. 11. The impugned order has been passed on 26.5.2010 in compliance of Policy of the Government and instructions issued time to time in this regard. As per instructions issued by the Government and also ratio laid down by this Court in judgments referred to hereinabove, there is no difference between Cooks and Helpers under Mid-Day Meal Scheme and respondent department has adopted the principle of ‘Last come First go’ for dispensing service of Cook-cum-Helper for any reason. 12. I find no infirmity, illegality and irregularity in impugned order. Respondent No.4 has rightly been permitted to serve as Cook following principle of ‘Last Come First Go’ as petitioner was engaged in the year 2008 whereas respondent No.4 was engaged in the year 2005. 13. In view of above discussion, petition fails and the same is dismissed with no order as to costs.