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Himachal Pradesh High Court · body

2016 DIGILAW 742 (HP)

Trishla Devi v. State of H. P.

2016-05-10

VIVEK SINGH THAKUR

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JUDGMENT : Vivek Singh Thakur, J. The petitioner has challenged consideration of respondent No. 4 and respondent No. 5 to the post of Part-Time Water Carrier in Government Primary School Manpur Deora-II, Tehsil Poanta Sahib, District Sirmaur (H.P), situated in Gram Panchayat Manpur Deora on the ground that respondent No. 4 and respondent No. 5 were not eligible to be considered to the said post of Part-Time Water Carrier, as they do not belong to Gram Panchayat Manpur Deora but to adjoining Gram Panchayats Gorkhuwala and Singhpura having Government Primary Schools in their own Gram Panchayats. Petitioner has prayed for quashing of selection of respondent No. 4 as well as placing of respondent No. 5 at Serial No. 1 of the waiting list. 2. The Recruitment Scheme for appointment of Part- Time Water Carrier in the Schools of Education Department (Elementary & Higher Education Departments) (hereinafter referred to Recruitment Scheme) notified by the Government of H.P. vide notification dated 25.07.2011 has been placed on record by petitioner as Annexure P-1. Clause-3 of the Recruitment Scheme provides eligibility criteria which is as under:- 3. Eligibility Criteria:- Only such candidates will be eligible to apply for a post of Part Time Water Carrier, who are:- Citizen of India. Of a sound mind. Have never been involved in any act of criminal nature. Permanent resident of the village/Gram Panchayat at/Urban local body of the area, in which the school is located, where the vacancy of part time water carrier exist. The candidates belonging to such adjacent Gram Panchayats where there is no GSSS/GHS/GSM/GPS shall have the opportunity with him/her to apply for the post of Part Time Water Carrier falling vacant in the equivalent school situated in the adjacent Panchayats. 4. Last condition of aforesaid Clause-3 provides that candidates belonging to adjacent Gram Panchayats will have the opportunity/eligibility to apply for the post of Part-Time Water Carrier falling vacant in a school situated in the adjacent Panchayats only in case there is no such equivalent school in their own Gram Panchayat. 5. The Government Primary School Manpur Deora-II is situated in Gram Panchayat Manpur Deora and petitioner is resident of the said Panchayat whereas respondent No. 4 and 5 belong to Gram Panchayats Gorkhuwala and Singhpura respectively and there are Government Primary Schools situated in area of their respective Panchayats. 6. 5. The Government Primary School Manpur Deora-II is situated in Gram Panchayat Manpur Deora and petitioner is resident of the said Panchayat whereas respondent No. 4 and 5 belong to Gram Panchayats Gorkhuwala and Singhpura respectively and there are Government Primary Schools situated in area of their respective Panchayats. 6. Vide letter dated 11.01.2012 (Annexure P-2) Sub Divisional Officer (C) Poanta Sahib had conveyed on 18.01.2012 as date fixed for interview to the post of Part-Time Water Carrier in Government Primary School Manpur Deora- II, Tehsil Poanta Sahib, District Sirmaur, H.P. on 18th January, 2012. 7. Petitioner, respondents No. 4 and 5 had applied and had appeared in interview to the post of Part-Time Water Carrier in Government Primary School Manpur Deora-II. In pursuance to the interview, merit list was prepared by selection committee, which has been placed on record by petitioner as Annexure A-I and by respondent No. 4 as Annexure R-4/2. As per this merit list, the respondent No. 4 has been selected, respondent No. 5 has been placed at Serial No. 1 in waiting and the petitioner is at Serial No. 2 in waiting. 8. It has been submitted on behalf of respondent No. 4 that the distance from residence of respondent No. 4 to the Government Primary School Manpur Deora-II is 3 kms. as certified by Up-Pradhan Gram Panchayat Gorkhuwala vide certificate Annexure R-4/11. Up-Pradhan has also certified that respondent No. 4 is a widow living with her mother-in-law alongwith her two daughters. Respondent No. 4 belongs to Scheduled Caste category, as per certificate R-4/7. Respondent No. 4 has also placed on record the non-employment certificate Annexure R-4/A. It has been argued on behalf of the respondent No. 4 that petitioner is not entitled to invoke writ jurisdiction of this Court and the petitioner should have availed alternate remedy of filing appeal against the appointment of the respondent No. 4. 9. In the Recruitment Scheme Annexure P-1, there is no provision for filing appeal. Learned counsel for respondent No. 4 was also not able to point out any provision for filing appeal against the appointment of Part Time Water Carrier under the Recruitment Scheme Annexure P-1. Therefore, plea of respondent No. 4 regarding availability of alternate remedy of filing appeal is not sustainable. 10. Learned counsel for respondent No. 4 was also not able to point out any provision for filing appeal against the appointment of Part Time Water Carrier under the Recruitment Scheme Annexure P-1. Therefore, plea of respondent No. 4 regarding availability of alternate remedy of filing appeal is not sustainable. 10. It has been submitted on behalf of respondent No. 5 that the petitioner is not a suitable candidate to the post in question whereas respondent No. 5, being handicapped candidate belonging to OBC category having distance of 3 Kms. of his residence from the School is eligible and most suitable person for appointment to the post in question. In support of his claim, the respondent No. 5 has placed on record Medical certificate indicating 45% disability Annexure R-5/1, Distance certificate R-5/2, OBC category certificate R- 5/3 and non-employment certificate as Annexure R-5/4. It has been further submitted on his behalf that as per Clause- 12 of the Recruitment Scheme (Annexure P-1) respondent No. 5 is most suitable persons to be appointed. 11. The claim of respondent No. 5 on the basis of clause-12 of Recruitment Scheme Annexure P1 is not sustainable in present case as petitioner and respondents No. 4 and 5 had applied to the post of Part Time Water Carrier advertised by respondent authority under clause-5 of Recruitment Scheme inviting applications to the said post whereas clause-12 of the Recruitment Scheme confers power on the Government to appoint any candidate as Part Time Water Carrier on compassionate ground out of the candidates falling in category mentioned in clause-12 without following the selection process. In present case, selection process has been followed and petitioner, respondents No. 4 and 5 had participated in the said process, therefore, eligibility and suitability of the candidates in present case is to be determined on the basis of clause-3 and other provisions of the Recruitment Scheme relevant to be considered in completing selection process and not on the basis of clause-12 in which power to appoint any candidate has been conferred on the State without following selection process. 12. 12. With regard to non-employment of respondent No. 4, the petitioner has placed on record documents received under Right to Information Act, as Annexure P-5 indicating that respondent No. 5 and had been working as a Mid Day Meal Worker in Government Primary School Gorkhuwala at the time of interview and had left the said job on 27.01.2012, but after grant of interim stay in the present petition she had again joined the said job on 1.03.2012. In rebuttal to the same it is contented on behalf of respondent No. 4 that appointment to the post of Mid Day Meal Worker is a part time job for 1-2 hours and it should not be considered as an employment of the respondent No. 4 for determining her eligibility to the post of Part Time Water Carrier. 13. Clause-7 of Recruitment Scheme provides 05 marks for a candidate belonging to unemployed family at the time of interview. Stage of entitlement of marks on the basis of non-employment candidate will come only after the candidates is found to be eligible for applying to the post. Therefore, issue determining status of Mid Day Meal Worker not necessary to be considered as respondents No. 4 and 5 were not eligible to be considered to the post of Part-Time Water Carrier in Government Primary School Manpur Deora-II because there are Government Primary Schools in their respective Gram Panchayats to which they belong and Clause- 3 of Recruitment Scheme provides that candidate belonging to adjacent Gram Panchayat will be eligible only in case there is no equivalent School situated in their own Gram Panchayat. 14. In view of the aforesaid discussion, petition is allowed and appointment of respondent No. 4 to the post of Part-Time Water Carrier in Gram Panchayat Primary School Manpur Deora-II and placement of respondent No. 5 at Serial No. 1 of the waiting list are quashed and set-aside consequently the respondent authority is directed to consider the petitioner being next in merit, for offering appointment in accordance with law within a one month from today.