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Himachal Pradesh High Court · body

2016 DIGILAW 2616 (HP)

Anjali Devi v. State of H. P.

2016-12-08

VIVEK SINGH THAKUR

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JUDGMENT : VIVEK SINGH THAKUR J. 1. By way of present petition, petitioner has challenged appointment of respondent No. 3 as Part Time Water Carrier (herein after referred to as PTWC) in Government Primary School, Baghthal Madhana, District Sirmour, H.P. on the ground that petitioner is more deserving candidate to be appointed on compassionate ground under Rule 12 of Recruitment Scheme for the appointment of Part Time Water Carriers in Schools of Education Department (herein after referred to as 'Scheme’). 2. During course of arguments, learned counsel for respondent No. 3 has adopted reply filed by respondents No. 1 and 2. As per reply of respondents No. 1 and 2, appointment of respondent No. 3 was approved by Government under Rule 12 of the Scheme for the post of Part Time Water Carrier (PTWC) in Government Primary School, Baghthal Madhana and was sent to Deputy Director, Elementary Education, Sirmour on 8.4.2013 for further action and after completing all formalities, President School Management Committee, Government Primary School, Baghthal Madhana was directed to appoint respondent No. 3 on 16.4.2013 as PTWC in the said school and in pursuance to her appointment, she joined her duties on 18.4.2013. It is further stated in reply that approval of petitioner was also received under Rule 12 of the Scheme for the same post in the same school, but said approval was sent to Deputy Director, Elementary Education on 16.4.2013, who had referred back the case of petitioner with remarks that post of Part Time Water Carrier (PTWC) was not vacant in Government Primary School, Baghthal Madhana. 3. I have heard learned counsel for parties and perused the record. 4. Clause/Rule 12 of the Scheme empowers respondent-State to make appointments of 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. Copy of Scheme has been placed on record as Annexure P-8. 5. Petitioner claims that she is permanently disabled to the extent of 45%, having academic qualification of +2, belongs to below poverty line family with income of Rs. 6,000/- per annum from all sources and an unemployed person also registered with Employment Exchange. Copy of Scheme has been placed on record as Annexure P-8. 5. Petitioner claims that she is permanently disabled to the extent of 45%, having academic qualification of +2, belongs to below poverty line family with income of Rs. 6,000/- per annum from all sources and an unemployed person also registered with Employment Exchange. She further claims that she has lost her father and there is none to look after her and because of permanent disability, she is unable to do any kind of manual work. Being an eligible candidate, she had applied to respondent No. 2 for the post of PTWC vide application (Annexure P-6) on the ground that her father had donated land for construction of aforesaid school long back ago, somewhere in the year 1964. She has also placed copy of mutation dated 21.3.1964 on record as Annexure P-7. It is also averred that her village is situated at a shorter distance from the school premises in comparison to respondent No. 3. It is submitted by learned counsel for the petitioner that respondent No. 2 has not adopted procedure for appointment of respondent No. 3 and swayed only by the fact that she is a widow. Competence of respondent No. 2 to appoint any candidate on compassionate ground has also been disputed by stating that respondent No. 3 had been appointed by respondent No. 2 and not by Government, as power to appoint on compassionate ground vested only with the Government. 6. Respondents No. 1 and 2 have clarified in their reply that appointment of respondent No. 3 was approved by the Government and sent to respondent No. 2, who only completed the codal formalities in pursuance to approval of Government. 7. Petitioner has not rebutted averments of reply filed by respondents No. 1 and 2 and no rejoinder has been preferred to be filed. Learned counsel for the petitioner has relied upon judgment of Division Bench of this Court in Mangla Devi Vs. State of H.P. and others, Latest HLJ 2015 (HP) 902, vide which Rule 12 of the Scheme has been quashed and set aside, being ultra virus and thus she has prayed for quashing and setting aside of the appointment of respondent No. 3 made exercising powers under Clause/Rule 12 of the Scheme. 8. State of H.P. and others, Latest HLJ 2015 (HP) 902, vide which Rule 12 of the Scheme has been quashed and set aside, being ultra virus and thus she has prayed for quashing and setting aside of the appointment of respondent No. 3 made exercising powers under Clause/Rule 12 of the Scheme. 8. In judgment rendered by Division Bench in Mangla Devi's case (supra) Rule 12 of the Scheme has been struck down by declaring the said Rule ultra virus. In present case, petitioner herself is also harping upon Rule 12 of the Scheme and it is not case of the petitioner that appointment of respondent No. 3 made under Rule 12 of the Scheme is bad for unconstitutionality of Rule 12, but on the basis of her family circumstances, petitioner is also claiming appointment on the basis of power of the State under Rule 12 on compassionate ground. It is not case of the petitioner that post in question should have been advertised, rather she herself had applied vide Annexure P-6 for compassionate appointment by the Government. Moreover, Rule 12 of the Scheme was struck down on 15th May, 2015 without any direction with respect to appointment made before striking down of Rule 12 of the Scheme and rightly so, as appointments made prior to 15th May, 2015 under this Rule were neither in question nor the candidates appointed prior to that date were party in that petition. Therefore, candidates appointed under Rule 12 of the Scheme prior to striking down of the said Rule will not be liable to be ousted automatically on the basis of ratio laid down by Division Bench in the aforesaid judgment, unless their appointment is assailed on that ground. 9. In present case, petitioner herself is claiming right under Rule 12 of the Scheme, therefore, striking down of Rule 12 of the Scheme subsequent to the appointment of respondent No. 3 is not having any advantage to petitioner, rather it has adverse effect on her claim, as except claiming her entitlement for appointment under provisions of Rule 12 of the Scheme, there is no other ground for asserting her claim for appointment to the post of PTWC against which respondent No. 3 has been appointed. 10. 10. At the time appointment of respondent No. 3, Rule 12 of the Scheme was in force and she was found within the criteria fixed for appointment under the said Rule and petitioner has not questioned the power of respondent-State to appoint candidate under Rule 12 of the Scheme at relevant point of time, but has claimed her right to be appointed in the same manner in exercise of powers under Rule 12. 11. In view of above discussion, I find no merit in this petition and the same is dismissed accordingly, along with pending application (s), if any.