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2017 DIGILAW 901 (HP)

Brij Lal v. State of H. P.

2017-08-03

SANDEEP SHARMA, SANJAY KAROL

body2017
JUDGMENT : Sandeep Sharma, J. By way of instant Letters Patent Appeal, challenge has been laid to judgment dated 21.6.2017 passed by learned Single Judge in CWP No. 1641 of 2012, whereby learned Single Judge, while allowing writ petition preferred by the petitioner, set aside the order dated 17.1.2012 passed by inquiry committee and upheld the appointment of the petitioner made against the post of Physical Education Teacher (PET) pursuant to interview held on 18.9.2006. 2. Briefly stated the facts as emerge from the record are that respondent No. 4(petitioner in CWP No. 1641 of 2012) was appointed as PET under PTA Grant-in-Aid Rules, 2006 in September 2006. However, the fact remains that aforesaid appointment of the petitioner was assailed by Brij Lal (appellant herein). Vide order dated 15.10.2008, inquiry committee was constituted to look into aforesaid complaint made by the appellant against appointment of the respondent No.4, namely Naresh Kumar, on the ground that proper procedure to select candidate for the post in issue, was not followed and adopted by PTA. Committee, vide aforesaid order dated 15.10.2008, held that appointment of the petitioner was not in consonance with the instructions contained in para-11 of the guidelines/Notification dated 27.5.2008, which has been taken note by the learned Single Judge. It also emerges from the record that order passed by Committee was upheld by appellate authority, vide order dated 24.12.2008. Being aggrieved with aforesaid order passed by inquiry committee, which was further upheld by the appellate authority, respondent No.4 namely Naresh Kumar, preferred CWP No.1101 of 2009, before this Court. Aforesaid writ petition came to be disposed of by this Court vide judgment dated 18.3.2010, wherein, Division Bench, taking note of letter No. EDN-Kha(7)3706-I dated 3.9.2009, quashed impugned order, reserving liberty to the inquiry committee to consider the matter, afresh in view of instructions contained in letter dated 3.9.2009. 3. At this stage, it would be profitable to take note of relevant portion of judgment dated 18.3.2010, as under: “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. . 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. 632/2009 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. 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.....” 4. Record, reveals that sequel to aforesaid judgment passed by Divisional Bench, inquiry committee considered matter afresh. Inquiry Committee with a view to comply with the orders passed by this Court on 4.8.2009 and 28.7.2009, in CWP No. 525/2009, titled Ravinder Singh versus State of H.P. and others and CWP No. 2632 of 2008 titled Koyal Kumar versus State of H.P. and others, assessed merit of the candidates taking into consideration marks obtained by them in matriculation, plus two examination, B.A./M.A. and B.P.Ed./Diploma. Interview Committee, on the basis of merit, drawn by it, taking into consideration, academic qualifications, referred to above, came to the conclusion that appellant namely Brij Lal, was required to be appointed as PET on PTA basis and not respondent No.4, namely Naresh Kumar. Committee, specifically came to the conclusion that the merit was ignored by the then PTA, while appointing respondent No.4, Naresh Kumar as PET. Accordingly, appointment of respondent No.4, Naresh Kumar, as PET in GSSS Baryara made by PTA on 18.9.2006, was declared invalid. 5. Respondent No.4, being aggrieved with the aforesaid order passed by interview committee approached this Court by way of CWP No. 1641 of 2012. Learned Single Judge, taking note of pleadings and material adduced on record by the respective parties, as well as orders passed by interview committee, quashed order dated 17.1.2012 passed by inquiry committee and upheld selection of respondent No.4 to the post of Physical Education Teacher, pursuant to selection held on the basis of interview held on 18.9.2006. 6. We have heard the learned counsel for the parties and gone through the record carefully. 7. It is not in dispute that CWP No. 1101/2009 having been filed by respondent No. 4 was disposed of with the direction to the inquiry committee to consider the matter afresh in light of instructions referred to in the judgment. Division Bench, of this Court, while dealing with bunch matters including CWP No. 1101 of 2009, specifically taking note of communication dated 24.9.2009, whereby clarification was issued by Director, Higher Education, Himachal Pradesh, taking note of letter No. EDN-kha(7)3706-1 dated 3.9.2009, issued by Principal Secretary (Education) to the Government of Himachal Pradesh, directed the inquiry committee to consider matter afresh in light of the instructions contained in the letter referred to herein above. 8. It would be profitable to take note of communication dated 24.9.2009 as under: “Refer to letter No. EDN-kha(7)3706-1 dated 3-9-2009 from the Principal Secretary (Education) to the Govt. 8. It would be profitable to take note of communication dated 24.9.2009 as under: “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. 632/2009 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 direct ed to comply with the directions of the Government and take action in the matter accordingly.” 9. Perusal of aforesaid communication clearly suggests that inquiry committee, while deciding matter afresh was required to take into consideration observations made by this Court in CWP’s No. 525/2009 and 2632/2008. At this stage, this Court deems it necessary to take note of following observations made by Division Bench of this Court in CWP No. 525/2009, titled Ravinder Singh versus State of H.P. and others: “The notification, dated 27th May, 2008 talks about the committees constituted in April, 2008. It provides that all complaints should be made latest by 20th June, 2008. It lays down the parameters which the Committees can inquire into. These are:- Adequate publicity not made; Interviews not held; All the eligible applicants not invited for interview; Merit ignored; and or any other issue brought to the notice of the Committee. The notification also lays down that the complaints against ignoring of the merit shall be evaluated based on the evaluation criteria in Annexure-A attached to the notification. We are of the considered view that this criteria cannot be applied retrospectively. The notification also lays down that the complaints against ignoring of the merit shall be evaluated based on the evaluation criteria in Annexure-A attached to the notification. We are of the considered view that this criteria cannot be applied retrospectively. If the PTA has followed a rational criteria this substituted criteria cannot be applied retrospectively to cases where interviews were held and selections made even before this criteria had been thought about by any person. It is a well settled principle of law that the State by executive instructions cannot take away the vested right of any person with retrospective effect. We may make it clear that we are not saying that if the PTA has not at all followed any objective criteria and has totally ignored merit, the Committee should not interfere. If, however, the PTA has followed some reasonable criteria then the fresh thought of criteria cannot be applied to set aside a valid selection. Therefore, the criteria laid down in the notification dated 27.5.2008 could not have been applied retrospectively.” 10. Division Bench of this Court, while dealing with CWP No. 525/2009, categorically held that criteria laid down in Notification dated 27.5.2008, could not have been applied retrospectively. Division Bench, in the aforesaid case, while setting aside orders of D.C. as well as order of the Committee passed in that case, further held that Committee, after giving adequate opportunity of hearing to the petitioner as well as respondent can look into the matter and decide whether appointment of petitioner was valid or not? 11. After having carefully perused material available on record vis-à-vis impugned judgment passed by learned Single Judge, we find that inquiry committee, while carrying out fresh exercise in terms of judgment passed by Division Bench on 18.3.2010, in CWP No. 1101 of 2009, re-determined merit of the candidates in terms of criteria laid down in Notification dated 27.5.2008. At this stage, it may be reiterated that vide aforesaid judgment dated 18.3.2010, direction was issued to inquiry committee, to decide case of the petitioner afresh in terms of instructions contained in communication dated 24.9.2009, wherein admittedly, inquiry committees were directed to decide issue with regard to appointments of PTA teachers, taking into consideration observations of this Court made in CWP No. 525/2009. In the aforesaid facts, Division Bench had specifically held that criteria laid down in Notification dated 27.5.2008, could not be applied retrospectively. In the aforesaid facts, Division Bench had specifically held that criteria laid down in Notification dated 27.5.2008, could not be applied retrospectively. This Court sees no force in the arguments of Mr. G.R. Palsra, that order dated 17.1.2012 passed by inquiry committee is strictly in accordance with judgment passed by Division Bench of this Court on 18.3.2010, in CWP No. 1101/2009. Since Committee was required to decide the case of the petitioner in view of observations made by this Court in aforesaid case, there was no occasion as such for the inquiry committee to re-determine the merit of candidates including petitioner and respondent, on the basis of criteria laid down vide Notification dated 27.5.2008, rather, Committee, while considering complaint, if any, of unsuccessful candidate, ought to have examined, whether PTA had followed some ‘reasonable’ criteria at the time of making selection to the post of PET or not? 12. Mr. G.R. Palsra, learned counsel representing the appellant, was unable to point out discussion, if any, in order dated 17.1.2012 passed by inquiry committee, with regard to criteria adopted by selection committee in the interview held on 18.9.2006. Perusal of order dated 18.9.2006, suggests that merit of candidates was determined by Committee by applying uniform criteria taking into consideration various relevant factors, including educational qualifications possessed by the candidates and their experience etc. There is nothing in the order dated 17.1.2012, from where it could be inferred that selection committee, while appointing respondent No.4, adopted unreasonable and arbitrary criteria, to accommodate respondent No. 4, rather, this Court, after having carefully perused record, finds that all the concerned candidates, including appellant and respondent No.4, were assessed on the same yard stick and since respondent No.4 was found to be more meritorious amongst them, he was rightly offered appointment to the post of PET. 13. At this stage, this Court, at the cost of repetition, may again refer to judgment 4.8.2009 passed by this Court in CWP No. 525/2009, titled Ravinder Singh versus State of H.P. and others, wherein Division Bench, while testing validity of notification dated 27.5.2008, specifically held that criteria laid down in notification can not be applied retrospectively and if PTA has not at all followed any objective criteria and has totally ignored merit, the Committee can interfere. If, however, the PTA has followed reasonable criteria then fresh criteria cannot be applied to set aside a valid selection. 14. Mr. If, however, the PTA has followed reasonable criteria then fresh criteria cannot be applied to set aside a valid selection. 14. Mr. G.R. Palsra, learned counsel representing the appellant, was unable to show on record that inquiry committee while examining merit afresh in terms of judgment dated 18.3.2010, did not examine the case of candidates, who had appeared in the initial selection process, in terms of criteria laid down in notification dated 27.5.2008, rather, it set aside the selection of respondent No.4, taking note of the fact that PTA did not follow some reasonable criteria. 15. Since, the learned counsel for the appellant was unable to point out that the authorities concerned, while appointing respondent No.4 as Physical Education Teacher, in September, 2006, adopted arbitrary criteria, this Court sees no illegality or infirmity in the findings returned by the learned single Judge that it was not open for the selection committee to redraw the merit, that too, on the basis of criteria laid down in Notification dated 27.5.2008. Admittedly, there is nothing on record suggestive of the fact that criteria adopted by selection committee at the time of initial interview held on 18.9.2006, was not in vogue, as such, matter, if any, could be re-considered by inquiry committee in terms of judgment passed by this Court taking into consideration criteria prevalent at the time of selection in the year 2006, not as per criteria laid down vide notification dated 27.5.2008. In order dated 17.1.2012, though Committee has observed that selection committee while selecting respondent No.4 ignored merit but there is no discussion as such that in what manner, merit was ignored by selection committee, in the year 2006. It clearly emerge from merit drawn by selection committee in the year 2006 that candidates, who had appeared in the interview were also awarded marks in the interview. It also emerge from the record that respondent No.4 was given weightage by selection committee taking into consideration land donated by him to the School concerned. 16. It clearly emerge from merit drawn by selection committee in the year 2006 that candidates, who had appeared in the interview were also awarded marks in the interview. It also emerge from the record that respondent No.4 was given weightage by selection committee taking into consideration land donated by him to the School concerned. 16. In view of aforesaid discussion, this Court is in agreement with the findings returned by learned single Judge that selection committee erred in not appreciating judgment passed by Division Bench, whereby it had categorically held that instructions issued by the respondents, dated 27.5.2008, can not be applied retrospectively and in case appointments made before issuance of aforesaid instructions are found to be based on reasonable criteria followed by PTA then it was not binding for inquiry committee to apply fresh criteria to set aside valid selection. 17. Consequently, in view of above, there is no merit in the present appeal and the same is dismissed. Pending applications, if any, are disposed of. Interim directions, if any, are also vacated.