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Himachal Pradesh High Court · body

2017 DIGILAW 708 (HP)

Naresh Kumar v. State of H. P.

2017-06-21

AJAY MOHAN GOEL

body2017
JUDGMENT : Ajay Mohan Goel, J. By way of this writ petition, the petitioner has prayed for the following reliefs: “(i) That the order dated 17.1.2012, passed by enquiry committee may kindly be quashed with all consequential benefits while issuing the writ of Certiorari. (b) 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. Brief facts necessary of the adjudication of the present case are that the petitioner was appointed as Physical Education Teacher, under PTA Grant-in-Aid Rules, in September, 2006. The selection committee comprising of Chairman/Pradhan of PTA, Subject Expert and PTA Secretary found the petitioner to be most meritorious amongst three candidates who were considered for the post of Physical Education Teacher. This is apparent from Annexure P-7 appended alongwith a supplementary affidavit filed by the petitioner. Said appointment of the petitioner was assailed by respondent No. 4. 3. Vide order dated 15th October, 2008, Annexure P-1, the Inquiry Committee so constituted to look into the complaint made against the appointment made by the PTA, set aside the appointment of the present petitioner by holding that proper procedure to select the candidate for the post in issue was not followed and adopted by the PTA. As per the said Committee, the appointment of the petitioner was not in consonance with the instructions contained in para 11 of the guidelines of notification dated 27th May, 2008, relevant extract of the order is quoted here-in-below. “Findings: In view of above discussions, the committee has come to the conclusion that proper procedure to select the candidate for the above said post was not followed and adopted by the PTA and hence the appointment of Sh. Naresh Kumar as PET in GSSS Baryara made by the PTA of the said school is not acceptable as per instructions contained in Para 11 of the guidelines of the notification No. EDN-A-Khat (7)3/2006, dated the 27th May, 2008. Since proper procedure has not been followed by the PTA selection committee, the claim of the complainant for appointment in place of respondent also do not succeeds. Copy of this enquiry report be sent to the Principal-cum-Chairman (PTA) GSSS Baryara and PTA of the concerned school for further necessary action.” 4. Since proper procedure has not been followed by the PTA selection committee, the claim of the complainant for appointment in place of respondent also do not succeeds. Copy of this enquiry report be sent to the Principal-cum-Chairman (PTA) GSSS Baryara and PTA of the concerned school for further necessary action.” 4. In appeal, order so passed by the committee was upheld by the Appellate Authority vide order dated 24.12.2008, Annexure P-2. 5. Feeling aggrieved, the petitioner filed CWP No. 1101 of 2009 in this regard. The above referred petition was disposed of by this Court on 18th of March, 2010 in the following terms. “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 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 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.” 6. Thereafter, in compliance to order so passed by this Court in CWP No. 1101 of 2009, a fresh Inquiry Committee again went into the complaint which was so made against the appointment of the petitioner by respondent No. 4 and vide order dated 17th January, 2012, Annexure P-4, after determining the merit afresh of the three candidates who had participated in the initial selection held in September, 2006, the Committee held as under: “The record related to the appointment made by the PTA on this post was perused. It is found that there were only three candidates appeared for the interview for the said post held on 18.09.2006. In order to comply the orders of the Hon’ble High Court of H.P. dated 04.08.2009 and dated 28.07.2009 passed in the CWPs as referred to in the foregoing paras, to ensure transparency in the selection and also to arrive at a concrete conclusion on the basis of the objective analysis whether the merit has been ignored or not, the committee assess the merit on the basis of the following criteria:- 1. Matric 10 Marks 2. Plus-Two 10 Marks 3. BA/Graduation 10 Marks 4. BPED/Diploma 10 Marks Total 40 Marks In view of above mentioned criteria, the merit of each candidate is calculated as under:- Sr. Matric 10 Marks 2. Plus-Two 10 Marks 3. BA/Graduation 10 Marks 4. BPED/Diploma 10 Marks Total 40 Marks In view of above mentioned criteria, the merit of each candidate is calculated as under:- Sr. No. Name of candidate D.O.B. Marks obtained in Matric Marks obtained in + 2 Marks obtained in Graduation Marks obtained in BPEd/diploma Total Marks Merit position 10 10 10 10 40 1. Sh. Khem Chand S/O Sh. Ganga Ram 28.4.1981 365/700 5.21 157/400 3.92 400/1000 4 855/1200 7.12 20.25 II 2. Sh. Naresh Kumar S/o Sh.Hem Singh 06.03.1983 393/700 5.61 191/400 4.77 2163/3100 6.97 -- -- 17.35 III 3. Sh. Brij Lal S/o Sh. Mohan Singh 21.9.1978 320/700 4.57 149/400 3.72 2154/3100 6.94 852/1200 7.10 22.33 I From the above said merit calculation it can be very safely concluded that Sh. Brij Lal has secured first position whereas respondent Naresh Kumar has secured 3rd position. Hence, Sh. Brij Lal was the most meritorious candidate for the above post. Therefore, committee come to the conclusion that the merit has been ignored in the above selection by the then PTA Committee of the GSS Baryara Sub-Tehsil Kotli, District Mandi, H.P. Accordingly, appointment of respondent Naresh Kumar as PET, GSSS Baryara made by the PTA on the said school on 18.09.2006 was not valid.” 7. Feeling aggrieved by the order so passed by the Inquiry Committee, the petitioner has filed the present writ petition. 8. I have heard learned Counsel for the parties and also gone through the pleadings of the case. 9. A perusal of the impugned order so passed by the Inquiry Committee dated 17.01.2012 demonstrates that the said Committee assessed the merit of the three candidates who had participated in the initial selection which included the present petitioner as well as respondent No. 3 on the basis of following criteria: “1. Matric 10 Marks 2. Plus-Two 10 Marks 3. BA/Graduation 10 Marks 4. BPED/Diploma 10 Marks Total 40 Marks” 10. By applying the said criteria, it re-determined the merit of the candidates and concluded that appointment of present petitioner made by PTA on 18.09.2006 was not valid. While doing so, it was observed by the Inquiry Committee that this Court in its order dated 18.03.2010 had directed that Inquiry Committee could consider the matter afresh in the light of observations made by this Court in CWP No. 525 of 2009, titled Ravinder Singh Vs. While doing so, it was observed by the Inquiry Committee that this Court in its order dated 18.03.2010 had directed that Inquiry Committee could consider the matter afresh in the light of observations made by this Court in CWP No. 525 of 2009, titled Ravinder Singh Vs. State, decided on 04.08.2009 and CWP No. 2632 of 2009, titled Koyal Kumar Vs. State, decided on 28.07.2009. 11. Before proceeding further, it is pertinent to refer to the judgment passed by Hon’ble Division Bench of this Court in CWP No. 525 of 2009, Ravinder Singh Vs. State. In the above mentioned judgment, it was held by this Court that notification issued by the State Government dated 27th May, 2008, lays down the parameters, which Inquiry Committee can only to look into pertaining to the appointments made on PTA basis. Hon’ble Division Bench of this Court in very unambiguous terms held that criteria cannot be applied retrospectively, that is to say that criteria laid down in notification dated 27th May, 2008 could not be applied retrospectively as it was well settled principle of law that State by executive instructions cannot take away the vested rights of any person with retrospective effect. Hon’ble Division Bench also categorically held that in such like cases, if PTA had followed some reasonable criteria, then fresh criteria cannot be applied to set aside the valid selection. 12. In the present case, the appointment of the present petitioner has been set aside by the Inquiry Committee by way of impugned order by applying fresh criteria to assess the merits of the candidates. A perusal of the impugned order demonstrates that there is no discussion made in the same that criteria which was applied by the earlier selection committee, which selected the petitioner for being appointed as Physical Education Teacher, suffered from any infirmity nor any conclusion in this regard has been arrived at in the impugned order by the Inquiry Committee. A perusal of the order of the selection committee which selected the petitioner dated 18.09.2006 demonstrates that the merit of the candidates was determined by the said committee by applying a uniform criteria by taking into consideration various relevant factors including the respective educational qualifications of the candidates and their experience etc. A perusal of the order of the selection committee which selected the petitioner dated 18.09.2006 demonstrates that the merit of the candidates was determined by the said committee by applying a uniform criteria by taking into consideration various relevant factors including the respective educational qualifications of the candidates and their experience etc. Therefore, it is not as if the petitioner was appointed as Physical Education Teacher in September, 2006 by adopting either an arbitrary criteria or by adopting unreasonable criteria. All the three candidates were assessed on the basis of same yardstick and the petitioner was found to be more meritorious amongst them. In my considered view, at the time of selection of the petitioner, PTA in fact had followed reasonable criteria and in this background, the new Inquiry Committee could not have applied a fresh criteria to re-assess the merits of the candidates. By doing so, the Inquiry Committee has not only done injustice to the petitioner but obviously has also done violence to the judgment passed by the Hon’ble Division Bench of this Court in CWP No. 525 of 2009, Ravinder Singh Vs. State, dated 04.08.2009. This is for the reason that before reassessing the merit of the candidates, the executive committee erred in not appreciating that the Hon’ble Division Bench of this Court in judgment referred to above had categorically directed that the notification which stood issued by the State Government dated 27th May, 2008 was not to be applied retrospectively and in case of appointments which were made before the issuance of the said notification, if a reasonable criteria had been followed by the PTA, then the Inquiry Committees were not to apply any fresh criteria to set aside a valid selection. 13. Therefore, in view of above discussion, this writ petition is allowed. Impugned order passed by the Inquiry Committee dated 17th January, 2012, Annexure P-4 is quashed and set aside and the appointment of the petitioner made against the post of Physical Education Teacher, pursuant to the selection which took place on the basis of interviews held on 18.09.2006, is upheld with all consequential benefits. Petition stands disposed of in above terms, so also pending miscellaneous applications, if any. No orders as to costs.