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2018 DIGILAW 2071 (HP)

Gaurav Thakur v. Prem Singh

2018-11-22

CHANDER BHUSAN BAROWALIA, DHARAM CHAND CHAUDHARY

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JUDGMENT Dharam Chand Chaudhary, J. - Judgment dated 26.06.2015 passed by learned Single Judge in CWP No. 206 of 2013 is under challenge in this appeal. The controversy as brought to the Court lies in a narrow compass, as we have only to consider that the engagement of someone as Mid Day Meal Worker under the scheme, Annexure A-1 to the appeal is a service in the Government or not. However, before coming to the point in issue, it is desirable to take note of the facts, in a nutshell. 2. The appellant (hereinafter referred to as ''respondent No.6'') and respondent No.1 (hereinafter referred as the ''writ-petitioner'') both belong to village Sarad Lohari Tehsil Rakkar, District Kangra, H.P. There was a vacancy of Part-time Water Carrier in Government Primary School, Sarad Dogri, Tehsil Rakkar, District Kangra, H.P. The applications to fill up the said vacancy were invited from the eligible candidates. The writ-petitioner and respondent No.6 both being eligible had submitted their applications and were interviewed on 23.3.2011 by a Selection Committee comprising S.D.O(Civil) concerned, Headmaster of the school and the President, School Management Committee. Respondent No.6 having secured 24 marks as per the criteria prescribed and also on the basis of personal interview was selected and appointed as Water Carrier in the school. The appointment letter dated 27.2.2012 is Annexure R-4 to the reply filed in the writ petition by respondents No. 1 to 5. He reported for duties on 28.2.2012, as is apparent from Annexure R-4 to the reply. Meaning thereby that since February, 2012, it is respondent No.6 who is working as Water Carrier in Government Primary School, Sarad Dogri. 3. The writ-petitioner aggrieved by the appointment of respondent No.6 had preferred CWP No. 1944 of 2012, which was disposed of by a Division Bench of this Court with liberty reserved to the petitioner to file representation before the 3rd respondent and a direction to the said respondent to decide the same after affording the opportunity of being heard to the petitioner vide judgment dated 2nd April, 2012, Annexure P-13 to the writ petition. The representation made by the petitioner was considered by the competent authority and decided vide order dated 12.09.2012, Annexure P-15 with the observations that respondent No.6 has been selected by the Selection Committee and also appointed as Part-time Water Carrier, hence it was not deemed proper to interfere with the selection and appointment. The representation made by the petitioner was considered by the competent authority and decided vide order dated 12.09.2012, Annexure P-15 with the observations that respondent No.6 has been selected by the Selection Committee and also appointed as Part-time Water Carrier, hence it was not deemed proper to interfere with the selection and appointment. This has led in filing another writ petition (CWP No. 206 of 2013) decided vide judgment, under challenge in this appeal. 4. On hearing Mr. Shrawan Dogra, learned Senior Advocate assisted by Mr. Umesh Kanwar and Mr. Harsh Kalta, Advocates on behalf of appellant-respondent No.6 and Mr. Bhuvnesh Sharma, learned counsel on behalf of respondent No.1-writ petitioner as well as Mr. Narinder Guleria, learned Additional Advocate General on behalf of the respondent-State and also going through the impugned judgment of learned Single Judge while interpreting the guidelines applicable for appointment as Part-time Water Carrier and also taking note of the factum of mother of respondent No.6, at the relevant time, was working as Mid Day Meal Worker, has concluded that in terms of Clause 7(4) of the guideline applicable for appointment as Parttime Water Carrier, it is the candidates belonging to a family of which no one is in government service alone entitled to get five marks. Learned Single Judge has construed the mother of respondent No.6 working as Mid Day Meal Worker being in Government service has held the five marks awarded to him in the capacity of a member of the family of which no member is in Government service, illegal and contrary to the scheme. We, however, are not in agreement with such interpretation given by learned Single Judge for the reason that the employment under "Mid Day Meal Worker Scheme" cannot be treated as service in Government by any stretch of imagination. 5. We, however, are not in agreement with such interpretation given by learned Single Judge for the reason that the employment under "Mid Day Meal Worker Scheme" cannot be treated as service in Government by any stretch of imagination. 5. In view of Rule 2 (h) of CCS (CCA) Rules, the meaning of word "Government Servant" is as under:- "Government Servant" means a person who- (i) is a member of a service or holds a civil post under the Union, and includes any such person on foreign service or whose services are temporarily placed at the disposal of a State Government, or a local or other authority; (ii) is a member of a service or holds a civil post under a State Government and whose services are temporarily placed at the disposal of the Central Government; (iii) is in the service of a local or other authority and whose services are temporarily placed at the disposal of the Central Government." The definition as given to word "Government Servant" therefore makes it crystal clear that such a servant must holds a civil post under the Union or the State Government and also any local or other authority. Therefore, a mid day meal worker, who does not hold a civil post and rather is engaged under a scheme framed for the purpose of payment of the honorarium as discussed hereinabove cannot be said to have hold a civil post under the Union or State Government. 6. A Mid Day Meal Worker is engaged on payment of honorarium, which earlier was Rs.400/- per month and now Rs.1,000/-, after its revision in the year 2011. The services of Mid Day Meal Worker are required in the school only on the days when school remains open and not on holidays and also during vacations. Meaning thereby that a Mid Day Meal Worker renders services in a school only for a period less than 10 months in a calender year. Otherwise also, the engagement of Mid Day Meal Worker is under the scheme having no right or claim to seek regularization or any other benefit, admissible to a Government servant. True it is that the guidelines for appointment as Part-time Water Carrier provides for giving preference to the candidates belonging to the families of which no member is in Government/Semi-Government service. True it is that the guidelines for appointment as Part-time Water Carrier provides for giving preference to the candidates belonging to the families of which no member is in Government/Semi-Government service. Respondent No.6, in view of discussion hereinabove and in our considered opinion, also belongs to a family from which no member is in Government service. 7. Now, if coming to the criteria regarding distribution of marks prescribed in the policy under Clause 7(iv), there is provision of awarding five marks to a candidate belonging to a family of which no one is in government service. We feel that Clause 7(3) and 4 of the guidelines reproduced in para 6 of the impugned judgment have to be read together and not in isolation. The word ''unemployed'' in Clause 7(4) contemplates a candidate from whose family no-one is there in Government service. 8. We are not in agreement with the submissions made by Mr. Bhuvnesh Sharma, learned counsel that word ''unemployed'' in Section 7(4) of the policy constitutes any employment and not confined to the employment with the Government, for the reason that the scheme framed either for engagement as Mid Day Meal Worker or appointment of Part-time Water Carrier are the Government sponsored schemes and any other meaning except the employment in Government service cannot be assigned words " No employees" therein. Therefore, for all the reasons hereinabove, the Selection Committee has rightly awarded five marks to respondent No.6 and being in merit, he has rightly been appointed as Part-time Water Carrier. He is working in the school for a period over six years and at this stage, otherwise also, it would not be proper to quash his appointment and order for fresh selection. Support in this regard can be drawn from the judgment of the Apex Court in Abhay Kumar Singh and others V. State of Bihar and others , (2015) 1 SCC 90 . The relevant extract of this judgment is reproduced as under:- "12. We have given due consideration to the rival submissions. It remains undisputed that the allegation of manipulation was duly enquired into and a finding was recorded against the appellants. Irrespective of the question whether the criteria adopted in making the selection on the basis of more height of candidates was valid, the fact remains that the appellants were held to have manipulated and got their height wrongly recorded more than their actual height. Irrespective of the question whether the criteria adopted in making the selection on the basis of more height of candidates was valid, the fact remains that the appellants were held to have manipulated and got their height wrongly recorded more than their actual height. At the same time, responsibility for correct recording of the height was of the Department and after the appellants were duly selected and appointed, and were in service for four years, their termination, in facts and circumstances, would be too harsh. In these circumstances while we are not inclined to reinstate the appellants with back wages and continuity of service, we direct that the appellants be given fresh appointment as constables against available vacancies within three months from the date of receipt of a copy of this order." 9. In view of what has been said hereinabove, we allow the present appeal and quash the impugned judgment. Consequently, the writ petition is dismissed, so also the pending application(s), if any.