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2019 DIGILAW 1050 (HP)

Dromati Devi v. State of H. P.

2019-07-26

JYOTSNA REWAL DUA

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JUDGMENT : Jyotsna Rewal Dua, J. Petitioner has filed instant writ petition, against:- (i) The order passed by the School Management Committee on 07.09.2013, whereby her services as Mid Day Meal Worker in Government Primary School Shadla, Tehsil Sadar, District Mandi, H.P. were terminated on the basis of a resolution of even date and; (ii) The resolution dated 24.09.2013, whereby Arti Devi, respondent No.5, was appointed, as Mid Day Meal Worker in Government Primary School Shadla, Tehsil Sadar, District Mandi, H.P. in place of the writ petitioner. 2. Contentions of the petitioner:- 2(i) Learned counsel for the petitioner contends that:- (a) The services of the petitioner as Mid Day Meal Worker in the Government Primary School Shadla, Tehsil Sadar, District Mandi, H.P, have been terminated without issuing any notice to her and without complying with the principles of natural justice. (b) Appointment of respondent No.5, as Mid Day Meal Worker in place of the petitioner is not in accordance with law. 2(ii) Contentions of the respondents:- (a) Reply filed by respondent No.3, School Management Committee, has been adopted by official respondents No. 1, 2, 4 as well as by respondent No.5, Arti Devi vide order passed in this case on 20.06.2014. (b) The stand of learned counsel for respondent No.3, the School Management Committee, is that the petitioner's services as Mid Day Meal Worker, had to be terminated by the School Management Committee, as there were numerous complaints against her working. (c) It is further contended that no appointment order was actually issued in favour of the petitioner. 3. I have heard learned counsel for the parties and gone through the appended record. 4. With respect to observing principles of natural justice:- 4(i) The contention of respondent No.3/School Management Committee that numerous complaints against the petitioner, led to her termination, cannot be accepted, especially when, Annexure P-4, bearing the stamp of Headmaster Government Primary School Shadla, supplied to the writ petitioner, under Right to Information Act, states that till 07.09.2013, there had been no complaints against the petitioner, either from the teachers or from children or from the School Management Committee, itself. 4(ii) A bare perusal of the Resolution, Annexure P-1, dated 07.09.2013, shows that the services of the petitioner, have been ordered to be terminated from the post of Mid Day Meal Worker w.e.f. 09.09.2013. 4(ii) A bare perusal of the Resolution, Annexure P-1, dated 07.09.2013, shows that the services of the petitioner, have been ordered to be terminated from the post of Mid Day Meal Worker w.e.f. 09.09.2013. It is not in dispute that this termination was effected without issuing any notice to the petitioner. No representation/ explanation of the petitioner in any form was called for. Appointment of respondent No.5: 4(iii) (a) Vide Annexure P-2, dated 07.09.2013, the School Management Committee, resolved to allow respondent No.5, Arti Devi to work as Mid Day Meal Worker till a person is appointed for the said post, on permanent basis. Noticeably, this resolution at Annexure P-2, marks the presence of Arti Devi herself as the Member of School Management Committee. 4(iii) (b) Resolution dated 24.09.2013, Annexure P-3, approved the name of Arti Devi, respondent No.5, to be appointed on regular basis in place of the petitioner. Significantly, just like resolution at Annexure P-2, this resolution at Annexure P-3, also shows beneficiary of resolution, i.e. Arti Devi, respondent No.5, as one of its signatories. 4(iv) Even otherwise, respondent No.5, has straightway been appointed, as Mid Day Meal Worker under the resolution passed on 24.09.2013, Annexure P-3. Learned counsel for respondent No.3, has handed over a copy of guidelines for engaging workers under Mid Day Meal Scheme. These guidelines issued by respondents No.1 and 2, for engaging Cook-cum-Helper under Mid Day Meal Scheme, vide letter dated 08.12.2011, stipulate the notification of vacancies, calling of applications for hiring services of Cook-cum-Helper. Relevant Clause-8 of these guidelines, is reproduced hereinafter:- "Advertisement/Notification of Vacancies: The SMC of the concerned school will notify the vacancies. The President of the School Management Committee (SMC) will call applications for hiring services of cook-cum-helper against vacancy at the Gram Panchayat/Nagar Panchayat/Urban local body level. The vacancy may also be advertised through School Notice Boards and copy be sent to the concerned Panchayat/Urban Local Body." It is not the case of the respondents that before appointment of respondent No.5, Arti Devi, any advertisement/any notice/any publicity was issued/given for filling up the post of Mid Day Meal Worker in Government Primary School Shadla, Tehsil Sadar, District Mandi, H.P. The appointment of respondent No.5, Arti Devi Mid Day Meal Worker is, thus, in contravention of guidelines framed by respondents No. 1 and 2. It would be profitable to reproduce relevant Para of the judgment passed by the Hon'ble Apex Court in titled as Dharampal Satyapal Limited vs. Deputy Commissioner of Central Excise, Gauhati and others, (2015) 8 SCC 519 :- "28. It is on the aforesaid jurisprudential premise that the fundamental principles of natural justice, including audi alteram partem, have developed. It is for this reason that the courts have consistently insisted that such procedural fairness has to be adhered to before a decision is made and infraction thereof has led to the quashing of decisions taken. In many statutes, provisions are made ensuring that a notice is given to a person against whom an order is likely to be passed before a decision is made, but there may be instances where though an authority is vested with the powers to pass such orders, which affect the liberty or property of an individual but the statute may not contain a provision for prior hearing. But what is important to be noted is that the applicability of principles of natural justice is not dependent upon any statutory provision. The principle has to be mandatorily applied irrespective of the fact as to whether there is any such statutory provision or not." In titled as Nisha Devi vs. State of Himachal Pradesh and others, (2014) 16 SCC 392 the Hon'ble Apex Court, held as under:- "5. Trite though it is, we may yet again reiterate that the principle of audi alteram partem admits of no exception, and demands to be adhered to in all circumstances. In other words, before arriving at any decision which has serious implications and consequences to any person, such person must be heard in his defence." In titled as Canara Bank and others vs. Debasis Das and others, (2003) 4 SCC 557 the Hon'ble Apex Court, held as under:- "21. How then have the principles of natural justice been interpreted in the Courts and within what limits are they to be confined? Over the years by a process of judicial interpretation two rules have been evolved as representing the principles of natural justice in judicial process, including therein quasi judicial and administrative process. How then have the principles of natural justice been interpreted in the Courts and within what limits are they to be confined? Over the years by a process of judicial interpretation two rules have been evolved as representing the principles of natural justice in judicial process, including therein quasi judicial and administrative process. They constitute the basic elements of a fair hearing, having their roots in the innate sense of man for fair-play and justice which is not the preserve of any particular race or country but is shared in common by all men. The first rule is 'nemo judex in causa sua' or 'nemo debet esse judex in propria causa sua' as stated in Earl of Derby's case that is, "no man shall be a judge in his own cause". Coke used the form 'aliquis non debet esse judex in propria causa quia non potest esse judex at pars' (Co.Litt. 1418), that is, 'no man ought to be a judge in his own case, because he cannot act as Judge and at the same time be a party'. The form 'nemo potest esse simul actor et judex', that is, 'no one can be at once suitor and judge' is also at times used. The second rule is 'audi alteram partem', that is, 'hear the other side'." 4(v) In the instant case, it is apparent, thus, that principles of natural justice have not been complied with either in terminating the services of the petitioner or in appointment of respondent No.5, as Mid Day Meal Worker. Surprisingly, learned counsel for the School Management Committee, has argued for continuation of respondent No.5, on the grounds of equity. Respondent No.5's continuation w.e.f. 07.09.2013 will not create any equity in her favour, when her original appointment was void. Even otherwise, as observed earlier, she (respondent No.5) has herself participated as a Member of School Management Committee in selecting herself as Mid Day Meal Worker. It has also not been specifically disputed by the respondents that the petitioner had also been working as Mid Day Meal Worker since 2007 before her removal in 2013, without complying the principles of natural justices. 5. In view of the above, the writ petition is allowed to the extent that appointment of respondent No.5, Arti Devi, as Mid Day Meal Worker in Government Primary School Shadla, Tehsil Sadar, District Mandi, H.P., is quashed and set aside. 5. In view of the above, the writ petition is allowed to the extent that appointment of respondent No.5, Arti Devi, as Mid Day Meal Worker in Government Primary School Shadla, Tehsil Sadar, District Mandi, H.P., is quashed and set aside. The respondents are directed to conduct fresh selection process for filling up the post of Mid Day Meal Worker in Government Primary School Shadla, Tehsil Sadar, District Mandi, H.P., strictly in accordance with the guidelines framed in this regard by the State and to take it to logical conclusion within three months from today. The parties will be at liberty to apply for the post, if otherwise eligible. Consequently, the writ petition is disposed of, as such. Pending applications, if any, also stand disposed of.