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Himachal Pradesh High Court · body

2016 DIGILAW 2513 (HP)

Krishna Devi v. State of H. P.

2016-11-29

VIVEK SINGH THAKUR

body2016
JUDGMENT : Vivek Singh Thakur, J. In present petition, appointment of respondent No. 6 as Part Time Water Carrier (herein after referred to as PTWC) in Government Primary School, Tipp, Education Block Dehra, District Kangra, H.P. has been challenged. 2. I have heard learned counsel for parties and perused the documents placed on record. 3. Clause/Rule 12 of Recruitment Scheme for the appointment of Part Time Water Carriers in schools of Education Department (herein after referred to as 'Scheme’) (Annexure P-1) empowers respondent-State to appoint PTWC on compassionate grounds, without following the selection process, amongst widows, women deserted by their husbands or otherwise destitute, handicapped persons if such candidate falls below the poverty line as defined by Rural Development Department from time to time. 4. Petitioner claims that she belongs to an IRDP family and no member of her family is serving in Government Department or Public Sector Undertaking and since she belongs to below poverty line family, thus has been included in the National Health Insurance Scheme. Therefore, as per Scheme she was most suitable person to be appointed as PTWC in Government Primary School, Tipp. 5. As per claim of the petitioner, post of PTWC in Government Primary School, Tipp was advertised by respondents No. 3 to 5 and in response to the said advertisement, she had submitted her application and her name was recommended by Gram Panchayat, Surani by passing an unanimous resolution dated 4.4.2010 (Annexure P-4). 6. It is contended on behalf of petitioner that name of respondent No. 6 was neither recommended nor was she eligible for appointment as PTWC under the provisions of Scheme (Annexure P-1), whereas, name of petitioner was recommended for appointment as water carrier in the Government Primary School, Tipp as her name was included in list of approved candidates. For substantiating her plea, she has relied upon Annexure P-5, claiming the same as list of candidates approved/recommended for appointment as PTWC in the schools mentioned against their names. In this list, name of petitioner has been shown at Sr. No. 6 against Government Primary School, Tipp. 7. For substantiating her plea, she has relied upon Annexure P-5, claiming the same as list of candidates approved/recommended for appointment as PTWC in the schools mentioned against their names. In this list, name of petitioner has been shown at Sr. No. 6 against Government Primary School, Tipp. 7. It is further alleged by the petitioner that respondent No. 6 is joint owner of about 112 Kanal land in her village and her husband was working in a private firm/concern at Ludhiana Punjab, who expired in an accident during the course of his employment and as such, respondent No.6 had received more than Rs.3,00,000/- under Workmen Compensation Act and therefore, she was not eligible to be appointed under clause/Rule 12 of the Scheme. 8. Respondents No. 1 to 4 have filed reply to the petition, justifying appointment of respondent No. 6 as PTWC on compassionate grounds under clause/Rule 12 of the Scheme, as respondent No. 6 was below poverty line and a widow. It has further been clarified by respondent-State that Annexure P-5 is not a list of candidates approved or recommended for appointment as PTWC, but the same is list of candidates whose names were referred to the office of Deputy Director of Elementary Education for examination and prior to examination and approval for appointment of petitioner, approval for appointment of respondent No. 6 was granted and as such she was appointed as PTWC who joined her duties after completing all codal formalities under Clause/Rule 12 of the Scheme. 9. In reply, respondents 1 to 4 have denied claim of petitioner that post of PTWC in Government Primary School, Tipp was advertised for filling up through interview and it is stated that case of petitioner was received for examination, whereas in the meantime name of respondent No. 6 was approved by Government, in pursuance to which respondent No. 6 was appointed and allowed to join her duty. 10. Respondent No. 5, Gram Panchayat has not chosen to contest the petition and no reply has been filed on its behalf. 11. Respondent No. 6 has filed separate reply stating therein that being a widow and belonging to BPL family, she was eligible and entitled to be appointed on compassionate grounds under Clause/Rule 12 of the Scheme. She has placed on record copy of BPL certificate and certificate of income below Rs. 11. Respondent No. 6 has filed separate reply stating therein that being a widow and belonging to BPL family, she was eligible and entitled to be appointed on compassionate grounds under Clause/Rule 12 of the Scheme. She has placed on record copy of BPL certificate and certificate of income below Rs. 10,500/- per annum as Annexures R-6/A and R-6/B. Respondent No. 6 has also alleged concealment of material facts by petitioner by stating that petitioner is working as cook under Mid Day Meal Scheme in the same school, i.e. Government Primary School, Tipp. Respondent No. 6 has also clarified in reply that she was not only recipient of amount of compensation under Workmen Compensation Act on account of death of her husband, but it was disbursed amongst all dependents of deceased and share of respondent No. 6 in joint holding is meager one. It is also alleged that to the contrary, Sh. Braham Dass father-in-law of the petitioner being an ex-serviceman is receiving substantially handsome amount of pension. 12. Petitioner has not preferred to file rejoinder and also averments of replying respondents No. 1 to 4 and 6 have been otherwise rebutted Learned counsel for petitioner has also relied upon judgment dated 15.5.2015 passed by Division Bench of this Court in CWP No. 7498 of 2014, titled as Mangla Devi Vs. State of H.P. and others, vide which Clause/Rule 12 of the Scheme has been quashed and set aside being ultra virus and thus he has prayed for quashing and setting aside the appointment of respondent No. 6, made exercising power under Clause/Rule 12 of the Scheme. 13. In judgment rendered by Division Bench in CWP No. 7498 of 2014 Clause/Rule 12 of Scheme has been struck down by declaring it ultra virus. In present case petitioner has not challenged the vires of clause/rule 12 of the Scheme, rather has claimed right under the same Clause/Rule 12 itself and clause/rule 12 of the Scheme was struck down on May 15, 2015 without any direction with respect to appointments made before striking down of the said Clause/Rule 12 of the Scheme as all appointments made prior to 15.5.2015 under this clause/Rule were neither in question in that petition nor the candidates appointed prior to the said date were party before the Court. Therefore, candidates appointed under Clause/Rule 12 of Scheme prior to striking down of the said Clause/Rule will not be liable to be ousted automatically or otherwise on the basis of ratio laid down by the Division Bench in judgment referred supra, unless their appointments are assailed on that ground. 14. In present case, petitioner herself is banking upon provisions of Clause/Rule 12 of the Scheme. Therefore, striking down of Clause/Rule 12 of the Scheme is not advantageous to her, rather it has adverse effect on her claim as except claiming her entitlement for appointment under provisions of Clause/Rule 12 of the Scheme, there is no other ground for her appointment to the post of PTWC against which respondent No. 6 has been appointed. 15. Respondent No. 6 is serving till date and concealment of appointment of petitioner as Mid Day Meal worker has also not been disputed. At the time of appointment of respondent No. 6 Clause/Rule 12 of Scheme was in force and she was considered and found within criteria fixed for appointment under the said Clause/Rule. It is admitted fact that respondent No. 6 is widow and she has also placed on record BPL certificate Annexure P-6/A and Income Certificate Annexure P-6/B, whereas petitioner, though, has claimed her belonging to below poverty line family but no document substantiating her claim has been placed on record. Petitioner has not questioned power of respondent-State to appoint a candidate under Clause/Rule 12 of Scheme but has claimed her right for appointment in exercise of power under Clause/Rule 12 of the Scheme. 16. In view of above discussion, present petition, being devoid of merits is dismissed, along with pending application (s), if any.