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2016 DIGILAW 2677 (HP)

Babita v. State of H. P.

2016-12-19

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. - The present petition is maintained by the petitioner under Article 226 of the Constitution of India for issuing the writ of certiorari, mandamus or any other appropriate writ/order or direction to the respondents. 2. Succinctly, the facts giving rise to the present petition, as per the petitioner, are that pursuant to interview held on 13.11.2014 by the School Management Committee/respondent (SMC), she was engaged as Drawing Master on and w.e.f. 15.11.2014. Surprisingly, she was asked verbally not to come on duty w.e.f. 01.03.2015. The petitioner has further contended that she is Plus Two and having Diploma in Arts and Crafts, thus she is fully eligible for the post of Drawing Master. She was initially engaged as Drawing Master by the SMC w.e.f. August, 2014, and she was being paid from collection made from the students. Subsequently, on 13.11.2014, SMC conducted interview for the post of Drawing Master on period basis qua GSSS, Badhalag, Solan, H.P., in which 12 out of 18 candidates participated. Merit list was drawn and the petitioner held first position and consequently she was issued an order of assignment on 14.11.2014. The petitioner joined her duties in the said school on 15.11.2014 and continued there till 28.02.2015, but till date no remuneration has been paid to the petitioner by the respondents. As per the petitioner, on 03.12.2014 fresh selection was conducted by the respondents, wherein also the petitioner, being meritorious, scored first rank out of 12 appearing candidates. However, to the utter surprise of the petitioner w.e.f. 01.03.2014 the Principal of the School verbally conveyed the petitioner not to come on duty. The respondents now intend to fill up the said vacancy through similar arrangement, which is wholly impermissible in law. However, to the utter surprise of the petitioner w.e.f. 01.03.2014 the Principal of the School verbally conveyed the petitioner not to come on duty. The respondents now intend to fill up the said vacancy through similar arrangement, which is wholly impermissible in law. Lastly, the petitioner, by way of filing the present writ petition, sought the following substantive reliefs: "(i) To issue a writ of certiorari or direction in nature thereof, quashing the impugned verbal order of respondent Principal whereby he has told the petitioner not to come on duty, as unconstitutional and illegal and contrary to the law; (ii) To issue a writ of mandamus, appropriate writ, order or direction in nature thereof, directing the respondent department/School Management Committee to continue the petitioner on the same post till fresh appointments are made by the respondent department on regular basis in accordance with Recruitment & Promotion Rules; (iii) To issue a further writ of mandamus or an appropriate writ, order or direction in nature thereof directing the respondents to reinstate the petitioner, in case the services of the petitioner are replaced by another incumbent appointed on the same basis and not on regular basis w.e.f. such illegal appointment with all consequential benefits and arrears of salary along with interest thereon @ 18% p.a.; (iv) To issue a further writ of mandamus or an appropriate writ, order or direction in nature thereof directing the respondents to pay the remuneration to the petitioner for the period from 15.11.2014 till 28.02.2015 along with interest thereon @ 18% p.a." 3. Respondents No. 1 to 4, by filing reply to the petition, have resisted the claim of the petitioner. The replying respondents have contended that the petitioner was engaged as Drawing Master on period basis by the President of SMC on 14.1.2014 pursuant to interview conducted under the Chairmanship of S.D.M. Solan. The petitioner joined her duties on 15.11.2014, however permission so granted for filling up the said post was withdrawn by respondent No. 3 on 21.11.2014, as no criteria was approved by the Government for distribution of marks in the personal interview. The petitioner performed her duties from 15.11.2014 to 24.11.2014 and private respondent No. 5 has to pay qua that period. The replying respondents have denied that the petitioner worked w.e.f. 15.11.2014 to 28.02.2015. The petitioner performed her duties from 15.11.2014 to 24.11.2014 and private respondent No. 5 has to pay qua that period. The replying respondents have denied that the petitioner worked w.e.f. 15.11.2014 to 28.02.2015. As per the replying respondents, the petitioner was not informed verbally not to come to School w.e.f. 01.03.2015, but on 24.11.2015 she noted the orders of respondent No. 4. Ultimately, the replying respondents prayed that the writ petition may be dismissed. 4. I have heard the learned counsel/Additional Advocate General for the appearing parties and gone through the record carefully. 5. The learned counsel for the petitioner has argued that the petitioner was duly selected in a selection process and subsequen procedure of selection, as approved by respondent No. 2, was not applicable to her, as the petitioner was selected/appointed before coming into force of that subsequent selection procedure. 6. Conversely, the learned Additional Advocate General has argued that the petitioner was asked not to work as she was selected in the earlier procedure of selection and same procedure stood withdrawn by respondent No. 3. 7. It is evident from the select list, which is annexed with the petition, that the petitioner was selected being most meritorious out of eighteen candidates. The selection committee was headed by S.D.M. Solan and they had awarded the marks after sub-dividing the marks for matric, Plus Two, Diploma, candidate belonging to the same Patwar Circle etc. etc. It is also manifest that the petitioner scored maximum marks in the said interview. The said selection process was not challenged by any other candidate, who appeared in it. 8. The petitioner was given appointment on 14.11.2014 and from the order it seems that the letter of the new procedure was received and issued after she was appointed. Though the petitioner has also enclosed with the petition a subsequent advertisement, inviting applications for the post in question, for which the petitioner was selected and appointed, but the respondents have stated that there was no such move ever. 9. In view of what has been discussed herein above, it is held that the petitioner was selected and appointed as Drawing Master in GSSS Badahlog, Tehsil Kasauli, District Solan, H.P., and she has a right to continue on the said post, as she was duly appointed after following the procedure prevalent at that time. 9. In view of what has been discussed herein above, it is held that the petitioner was selected and appointed as Drawing Master in GSSS Badahlog, Tehsil Kasauli, District Solan, H.P., and she has a right to continue on the said post, as she was duly appointed after following the procedure prevalent at that time. The right of the petitioner has not diminished and the same cannot be abridged. Thus, this Court comes to the conclusion that the action of the respondents in not allowing the petitioner to work continuously is arbitrary. The action of the respondents also violates the principle of audi alteram partem, as the petitioner was not even provided an opportunity of being heard by the respondents. 10. The net result of the above discussion is that verbal order dated 01.03.2015, passed by respondent No. 4, asking the petitioner not come on duty, is illegal and appropriate writ is required to be issued to the respondents. Therefore, the respondents are directed to allow the petitioner to work on the post on which she was duly selected and appointed by them on 13.11.2014. However, the petitioner is not held entitled to any remuneration/wages for the period she could not work. 11. In view of the above, the petition stands disposed of. All pending applications, if any, also stands disposed of. No order as to costs.