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2018 DIGILAW 258 (HP)

Rekha Devi v. Principal Secretary Education To Govt Of Himachal Pradesh

2018-03-06

AJAY MOHAN GOEL, SANJAY KAROL

body2018
JUDGMENT Ajay Mohan Goel, J —As both these Execution Petitions arise out of the judgment, dated 18.05.2015, passed by this Court in CWP No. 2958 of 2009, titled Jyoti Kumari & ors. Vs. The Secretary Education & anr., they are being disposed of by a common judgment. 2. It is not in dispute that the execution petitioners were writ petitioners in CWP No. 2958 of 2009. Feeling aggrieved by the fact that the respondent-State was not considering the petitioners as "wards of ex-servicemen" under the quota reserved for "wards of ex-servicemen" for appointment against the post(s) of TGT (Medical) , for which interviews were held in the month of July/August 2009, on the ground that the petitioners being married daughters of ex-servicemen, could not be considered as dependent on ex-servicemen for employment against the quota reserved for ex-servicemen, they filed CWP No. 2958 of 2009 alongwith other petitioners. The petition was allowed by this Court vide judgment, dated 18th May, 2015 in the following terms: "5. Accordingly, the writ petition is allowed. Note appended to Annexure P-1 on the basis of Annexure R-1 dated 22.2.2003, is quashed and set aside. The respondents are directed to interview the petitioners for the post of TGT (Med.) , against their respective batch and to issue appointment letters to them with all consequential benefits within six weeks. Pending application(s) , if any shall stand disposed of." 3. It is not in dispute that the judgment, dated 18.05.2015 has attained finality. These execution petitions stand filed for execution of the said judgment, wherein the respondents were directed to interview the petitioners for the post of TGT (Medical) against their respective batch and also issue appointment letters to them with all consequential benefits, within a period of six weeks from the date of judgment. The grievance of the petitioners is that though both of them were duly interviewed in consonance with the judgment passed by this Court supra, however, they have not been offered appointment letters, on the ground that a condition stood imposed at the time of conducting their fresh interviews in October 2015 that the petitioners should also possess the qualification of having passed the Teacher Eligibility Test (hereinafter referred to as "TET") . 4. 4. According to learned counsel for the petitioners, the act of the State of not offering them appointment on the ground that they had not passed the TET was totally unsustainable in the eyes of law, as respondents were not appreciating that cause of action arose in favour of the petitioners in the year 2009, when they were not called for interviews and as the act of the respondents on the basis of which the petitioners were not invited for interview was held to be illegal by the Court, therefore, the directions passed by this Court are to be implemented, taking into consideration the qualification required for the post as it existed in the year 2009 and not as in the year 2015. 5. We have heard the learned counsel for the parties and have also gone through the judgment passed by this Court in CWP No. 2958 of 2009, as also the response/compliance affidavits filed to the execution petition(s) by the State. 6. It is evident from the stand of the respondents that the only reason as per the State as to why the petitioners have not been offered appointment in terms of the directions passed by this Court in CWP No. 2958 of 2009 is that they have not passed TET. It is not in dispute that the condition of passing TET was not existing in the Recruitment and Promotion Rules as in the year 2009. Further, it is also not in dispute and in fact it is clearly borne out from the compliance affidavit so filed by Director of Elementary Education, Himachal Pradesh in response to the order passed by this Court on 19.12.2017 that sufficient number of posts belonging to the category of "wards of exservicemen" were available as on 01.01.2009 against which the petitioners were to be adjusted. For ready reference, the relevant portion of the affidavit is quoted hereinbelow: "1. That the instant Execution petition is pending adjudication before the Hon''ble High Court and was lastly listed on 19.12.2017 when the Hon''ble Court was pleased to direct the respondents to file affidavit indicating therein the vacancies for the year 2009. 2. That in compliance to the above directions, it is submitted that the Ex-servicemen Cell issued N.A.C. (Non-availability Certificate) on 20.09.2008 and 27.08.2008 to fill up the post of TGT (Medical) from the ward of Ex-servicemen quota. 2. That in compliance to the above directions, it is submitted that the Ex-servicemen Cell issued N.A.C. (Non-availability Certificate) on 20.09.2008 and 27.08.2008 to fill up the post of TGT (Medical) from the ward of Ex-servicemen quota. Consequent upon issuance of N.A.C. by Ex-servicemen Cell, requisition for the following posts of T.G.T. (Medical) was sent to all the employment exchanges for sponsoring the names of eligible candidates of ward of ex-servicemen on 01.01.2009:- General OBC SC ST Total 76 17 24 09 126 It is further submitted that the interview was conducted during July, 2009 to September, 2009 and the following posts were filled from the penal of ward of ex-servicemen. General OBC SC ST Total 58 13 14 02 87 7. It is settled law that Executing Court cannot go behind the decree. There is a mandamus issued by this Court in CWP No. 2958 of 2009 not only to interview the petitioners for the post of TGT (Medical) against their respective batch, but also issue appointment letters to them with all consequential benefits. This judgment has attained finality. It is not in dispute that their (petitioners) respective batch is of the year 2009 and sufficient vacancies were available from amongst the quota of "ward of ex-servicemen" against which the petitioners could have been adjusted against the said batch. 8. Accordingly, these Execution Petitions are allowed and the respondent-State is directed to offer appointments to the petitioners as per the judgment, dated 18.05.2015, passed by this Court in CWP No. 2958 of 2009, titled as Jyoti Kumari & ors. Vs. The Secretary Education & anr. against their respective batch, without insisting upon the petitioners having passed TET qualification, as it is not the case of the State that as in the year 2009, the petitioners were not eligible to be appointed against the post(s) in issue. Execution Petitions stand disposed of in above terms.