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2017 DIGILAW 286 (HP)

Kamal Kishore v. State of H. P.

2017-04-01

SANDEEP SHARMA

body2017
JUDGMENT : Sandeep Sharma, J. Petitioner herein, being aggrieved with the order dated 30.08.2011 (Annexure P-4) passed by Enquiry Committee, whereby his appointment/selection as Drawing Master in Government Middle School, Dhuma Devi, made by Parents Teacher Association (for short ‘PTA’) on 5.10.2007 was not held to be valid, approached this Court by way of instant petition filed under Article 226 of the Constitution of India seeking therein the following relief(s):- “(i) That the order dated 30.8.2011, passed by enquiry committee may kindly be quashed with all consequential benefits while issuing the writ of Certiorari. (ii) That the petitioner may kindly be allowed to work as PTA teacher as per grant in aid rules while issuing the writ in the nature of mandamus and any other order which may deem fit be passed in the interest of justice”. 2. Briefly stated facts, as emerged from the record, are that in September, 2007 petitioner was selected by the concerned PTA as Drawing Master at Government Middle School, Dhuma Devi, Tehsil Sadar, District Mandi, H.P. (for short GMS, Dhuma Devi). However, respondent No.5; namely; Smt. Nirmala Devi, being aggrieved with the selection of petitioner, preferred a complaint before the Enquiry Committee stating therein that merit was ignored at the time of selection by PTA of the School. On the aforesaid complaint having been filed by respondent No.5, enquiry was conducted by the Committee constituted for the disposal of such complaints vide Notification No.EDN-A(Kha)7-3/2006, dated 19th April, 2008, issued by the Secretary (Higher Education) to the Government of Himachal Pradesh. Enquiry Committee conducted inquiry at GMS, Dhuma Devi on 17.9.2008 strictly in terms of the instructions/guidelines issued by Government vide Notification dated 27th May, 2008. Committee, after careful perusal of the record made available by Headmaster of concerned school, came to the conclusion that proper procedure to select the candidate for the post of Drawing Master was not adopted by the PTA and as such alleged appointment of petitioner namely Kamal Kishore, as a Drawing Master in GMS, Dhuma Devi, made by PTA is not in accordance with law and instructions contained in Para-11 of the guidelines of the Notification No.EDN-A(Kha)7-3/2006, dated 27th May, 2008. Petitioner, being aggrieved with the aforesaid findings of Enquiry Committee, preferred an appeal before Deputy Commissioner, Mandi, District Mandi under PTA Rules, which was dismissed. 3. Petitioner, being aggrieved with the aforesaid findings of Enquiry Committee, preferred an appeal before Deputy Commissioner, Mandi, District Mandi under PTA Rules, which was dismissed. 3. Since petitioner was not satisfied with the rejection of his appeal by the Deputy Commissioner, preferred CWP bearing No.1047 of 2009, titled: Kamal Kishore vs. State of H.P. and Others before this Court, which came to be decided by Division Bench of this Court vide its judgment dated 18th March, 2010. It would be relevant to reproduce here-in-below the following relevant portion of the judgment:- “The issue raised in these Writ Petitions pertains to the selection and appointment of teachers by the Parents Teacher Association. Learned counsel appearing on both sides point that the Director Higher Education, Himachal Pradesh has issued a communication dated 24th September, 2009, and the cases require fresh consideration in the light of the said communication. The relevant portion of the communication of the Director, Higher Education, Himachal Pradesh reads as follows:- “Refer to letter No.EDN-kha(7)3706-1, dated 3.9.2009 from the Principal Secretary (Education) to the Govt. of Himachal Pradesh addressed to this directorate and copy endorsed to you and others vide which the government has asked to move an application immediate before the chairman of the concerned enquiry committee in view of the decision of CWP No.525/2009 titled as Ravinder Singh vs. State and CWP No.2632/2009 titled as Koyal Kumar vs. State wherein the Hon’ble High Court of Himachal Pradesh while setting aside the orders of the committee has directed that Committee after giving adequate opportunity of hearing to the petitioner as well as the other respondents can look into the matter and decide whether the appointment of the petitioner was valid or not. The committee while deciding the issue will keep into consideration the observation of the Hon’ble High Court made in CWPs. The copy of the judgment/orders passed by the Hon’ble High Court CWP No.2632/2009 titled as Koyal Kumar vs. State is also being sent to all the Deputy Directors. Therefore, you are directed to comply with the directions of the Government and take action in the matter accordingly.” In view of the above clarification issued by the Director of Higher Education, Himachal Pradesh, the impugned orders are liable to be set aside. Ordered accordingly. Therefore, you are directed to comply with the directions of the Government and take action in the matter accordingly.” In view of the above clarification issued by the Director of Higher Education, Himachal Pradesh, the impugned orders are liable to be set aside. Ordered accordingly. However, we make it clear that it will be open to the Enquiry Committee to consider the matters afresh in the light of the instruction referred to above. The needful, if required, shall be done within a period of four months from the date of the production of a copy of this judgment by either side. It is also made clear that in the cases of those teachers who are working in the schools, in case they have not been paid their due wages, the same shall be paid and the State shall ensure that the required grant-in-aid is given to the Schools, as per the Rules forthwith. The writ petitions are disposed of, so also the pending applications, if any.” 4. Subsequent to passing of aforesaid judgment by Division Bench of this Court, matter was inquired into afresh by the Enquiry Committee in the light of observations made by the Division Bench of this Court in the judgment referred hereinabove. Enquiry Committee, while considering the matter afresh, fixed following criteria to assess the merit of nine candidates, who had appeared in the interview for the post of Drawing Master held on 5.10.2007:- Matric - 10 marks Plus two - 10 marks BA/Graduation - 10 marks Diploma - 10 marks Total - 40 marks 5. Enquiry Committee, applying the aforesaid criteria, prepared comparative merit list, wherein name of petitioner Kamal Kishore figured at Sr.No.8. Enquiry Committee, while passing order dated 30th August, 2011 in terms of aforesaid judgment passed by Division Bench of this Court, specifically concluded that petitioner; namely; Kamal Kishore, has secured 8th position and as such he was not most meritorious candidate for the aforesaid post. Enquiry Committee further concluded that even complainant Smt.Nirmala Devi, who secured 6th position of the merit list, is also not meritorious candidate for the above post. Enquiry Committee further concluded that even complainant Smt.Nirmala Devi, who secured 6th position of the merit list, is also not meritorious candidate for the above post. Committee, on the basis of material available on record, concluded that merit was ignored in the selection by the then PTA Committee of the GMS, Dhuma Devi, Tehsil Sadar, Mandi, District Mandi, H.P. accordingly, appointment/selection of petitioner Kamal Kishore as Drawing Master in GMS Dhuma Devi made by the PTA of the said school on 05.10.2007 was not valid. 6. Mr. Shyam Chauhan, learned counsel representing the petitioner, while referring to impugned order dated 30th August, 2011 (Annexure P-4) strenuously argued that the same is not sustainable in the eye of law as the same is in complete violation of judgment passed by the Division Bench of this Court and as such same deserves to be quashed and set aside. Mr. Chauhan further contended that the petitioner was appointed to the post of Drawing Master, pursuant to interview held on 05.10.2007, whereas new guidelines/criteria, as have been followed by the Committee while passing order dated 30.08.2011, came into force on 27th May, 2008 and as such could not be made applicable in the case of present petitioner. Mr. Chauhan further invited the attention of this Court to the judgment passed by Division Bench of this Court in CWP No.525 of 2009, titled : Ravinder Singh vs. State of H.P. and Others, decided on 4.8.2009, to demonstrate that criteria laid down in the Notification dated 27.05.2008 could not have been applied retrospectively in the case of the present petitioner. 7. Mr. Ramesh Thakur, learned Deputy Advocate General, while refuting the aforesaid contention of the learned counsel representing the petitioner, specifically invited the attention of this Court to the judgment dated 18th March, 2010, passed by Division Bench of this Court in CWP No.1047 of 2009 supra, to demonstrate that liberty was reserved to Enquiry Committee to consider the matter afresh in the light of instructions contained in communication dated 24th September, 2009 issued by Director, Higher Education to the Government of Himachal Pradesh. Mr. Mr. Thakur further contended that bare perusal of criteria fixed by the Enquiry Committee, while considering the matter afresh in the light of judgment passed by this Court, suggests that no injustice was caused to any candidate who had appeared for the interview held on 5.10.2007, rather case of each and every candidate was considered on the basis of uniform criteria. 8. During proceedings of the case, this Court had an occasion to peruse the judgment dated 18th March, 2010 (Annexure P-3), as reproduced hereinabove, perusal whereof clearly suggests that issue with regard to selection and appointment of various teachers by PTA came to be decided by the Division Bench of this Court, wherein learned counsel representing the parties invited the attention of Division Bench to the communication dated 24th September, 2009 issued by Director Higher Education, Himachal Pradesh to demonstrate that certain matters require afresh consideration in the light of aforesaid communication. Perusal of judgment, referred hereinabove, clearly suggests that learned counsel representing the petitioner in that case also consented for fresh consideration of his case in the light of aforesaid communication and as such, at this stage, it does not lie in the mouth of learned counsel for the petitioner to contend that instructions contained in communication dated 24.09.2009 could not be made applicable in the case of petitioner by the Enquiry Committee, while deciding his case afresh. Communication dated 24.09.2009 clearly suggests that Principal Secretary (Education) to the Government of Himachal Pradesh, taking note of judgment passed by Division Bench of this Court in CWP No.525 of 2009, titled: Ravinder Singh vs. State of H.P. and CWP No.2632 of 2009, titled Koyal Kumar vs. State directed the concerned Authority to look into the matter afresh and decide whether the appointment of the petitioner was valid or not. Vide aforesaid communication, Enquiry Committee was advised to take into consideration the observations of the Hon’ble High Court made in the aforesaid CWPs while deciding the issue. 9. Apart from above, perusal of judgment dated 18th March, 2010 passed by Division Bench of this Court in CWP No.1047 of 2009 clearly suggests that liberty was reserved to the Enquiry Committee to consider the matter afresh in the light of instructions contained in communication dated 24th September, 2009. 9. Apart from above, perusal of judgment dated 18th March, 2010 passed by Division Bench of this Court in CWP No.1047 of 2009 clearly suggests that liberty was reserved to the Enquiry Committee to consider the matter afresh in the light of instructions contained in communication dated 24th September, 2009. Perusal of impugned order dated 30.8.2011 (Annexure P-4) clearly suggests that Enquiry Committee, passed impugned order after considering the judgments passed by the Division Bench of this Court in CWP No.1047 of 2009, CWP No.525 of 2009 and CWP No.2632 of 2009, supra. 10. Careful perusal of judgment passed by Division Bench of this Court in CWP No.525 of 2009 clearly suggests that though Division Bench had held that criteria laid down by Notification dated 27.5.2008 could not have applied retrospectively but also observed that this Court has consistently held that all appointments by the PTA should be made on objective basis and merit should not be ignored. 11. This Court, after carefully examining the aforesaid order made by Enquiry Committee (Annexure P-4), sees no reason to agree with the arguments having been advanced by learned counsel for the petitioner that same is not in accordance with various directions issued by Division Bench of this Court in the cases, as referred above. Rather, close scrutiny of order dated 30.7.2011 clearly suggests that Enquiry Committee solely with a view to arrive at a concrete conclusion that merit has been ignored or not, evolved uniform criteria, which otherwise appears to be fair and just. It is admitted case of the parties that on 5.7.2007, when the interview for the post of Drawing Master held in GMS Dhuma Devi, nine candidates including the petitioner and respondent No.4 appeared. Enquiry Committee, while assessing the matter afresh, considered the cases of all those nine candidates, who originally appeared in the interview on 5.7.2007 and assessed their merit as per criteria fixed by it. Since, name of the petitioner appeared at Sr.No.8 on the basis of fresh assessment carried out by Enquiry Committee, his appointment to the post of Drawing Master was rightly held not to be valid. 12. Since, name of the petitioner appeared at Sr.No.8 on the basis of fresh assessment carried out by Enquiry Committee, his appointment to the post of Drawing Master was rightly held not to be valid. 12. Consequently, in view of detailed discussion made hereinabove, this Court sees no illegality and infirmity in the order dated 30.8.2011 passed by the Enquiry Committee, pursuant to judgment dated 18th March, 2010 passed by Division Bench of this Court in CWP No.1047 of 2009 and as such same is upheld. This petition is dismissed. Interim direction, if any, is vacated. All miscellaneous applications are disposed of.