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2019 DIGILAW 566 (HP)

Satpal Singh v. State of H. P.

2019-05-06

TARLOK SINGH CHAUHAN

body2019
JUDGMENT : Tarlok Singh Chauhan, J. Aggrieved by the appointment of respondent No.8 as Part Time Water Carrier in Govt. Primary School, Khood, the petitioner has filed the instant writ petition claiming therein the following substantive reliefs: "(i) The appointment of respondent No.8, Annexure P-7, may kindly be held wrong, illegal, arbitrary, discriminatory and violative of Article 14 and 16 of the Constitution of India as well as violative of the guidelines issued by the Government of Himachal Pradesh for appointment of Part-Time Water Carriers. (ii) Respondents may kindly be directed to redraw the merit list of the candidates appeared in interview for the post of Part- Time Water Carrier for Government Primary School, Khood strictly in accordance with the guidelines issued by the Government of Himachal Pradesh, Annexure P-1 and thereafter to offer appointment to the candidate securing highest marks." 2. One of the most contentious issues that have been raised in the writ petition pertains to the awarding of 5 marks for the candidates whose families have been donated land for school in terms of Clause 6(ii) of the Recruitment Scheme, for appointment as Part Time Water Carriers in the schools of Education Department (Elementary & Higher Education Departments) issued vide notification dated 25.7.2011 (Annexure P-1). 3. When the case came before a co-ordinate Bench of this Court on 29.4.2017, the respondent-State was directed to produce revenue records to establish as to who was the owner of the land which purportedly was gifted by the petitioner/predecessor-in-interest of the petitioner in favour of Education Department in the year 1985-86. 4. This was followed by the order dated 25.5.2017 wherein apart from other queries, a specific query was raised to the effect that the donation of the land could be anywhere in the State of Himachal Pradesh and for any school or the said donation had to be specifically for the school for which the candidates intend to apply for appointment as Part Time Water Carrier. 5. In compliance to the said directions, the Additional Chief Secretary (Education), Government of Himachal Pradesh, vide his personal affidavit dated 4.7.2017, wherein in para 2 (a) and (b) stated as under: "2. 5. In compliance to the said directions, the Additional Chief Secretary (Education), Government of Himachal Pradesh, vide his personal affidavit dated 4.7.2017, wherein in para 2 (a) and (b) stated as under: "2. That the point wise reply of the order is as under: (a) That the matter was taken up with the Director of Elementary Education, H.P. who vide their letter dated 24.6.2017 (copy enclosed as Annexure R-I) has informed that as per the recruitment scheme dated 25.7.2011 of the Part Time Water Carrier whereby 5 marks have been allocated to the candidate who or whose family has donated the land to the particular school concerned. It is further submitted that as regards intention of the scheme is concerned, the same has been explained in clause I (Objectives) of the Scheme as annexed with the petition as Annexure P-1. (b) That as per policy, land donated must be in a particular school, where he/she applied for appointment as PTWC. No marks have been given to such candidates, who was donated land to particular school and applied for appointment as PTWC in another school." 6. However, when the case subsequently came up for consideration on 29.4.2019, this Court passed the following orders: "Respondents-State is directed to impart instructions as to whether the building, playground or any other part of the school is standing upon the land donated by the petitioner and further inform this Court as to whether the land donated by the private respondents was for the aforesaid purpose or for the construction of building, playground etc. of a different school." 7. In compliance to the order, the learned Deputy Advocate General has placed before this Court a communication dated 1.5.2019 received from the Directorate of Elementary Education, the relevant portion whereof reads as under: "...In this regard, as per information received from the Deputy Director of Elementary Education, Sirmour at Nahan, the father of the petitioner has donated land comprised in Khasra No. 885 measuring 2-01 Bigha situated in Mouja Khood, Tehsil Sangrah to Govt. Primary School, Khood. On this land 05 class rooms, 01 kitchen and two toilets have been constructed and 18 feet width bramada also exists, where morning assembly is conducted and playground has also been constructed in Khasra No.885. Primary School, Khood. On this land 05 class rooms, 01 kitchen and two toilets have been constructed and 18 feet width bramada also exists, where morning assembly is conducted and playground has also been constructed in Khasra No.885. Further, it is submitted that the father of private respondent No.8 has executed a gift deed No.219/11 on dated 26.12.2011 comprised in Khasra No.485 measuring 1 bigha 19 biswa for construction of Govt. Primary School, Sachci Tirmalthi situated at Mouza Khood, but the school has not been constructed on that land till date." 8. Reverting back to the facts, it would be noticed that both the petitioner as also respondent No.8 were awarded 5 marks each under Clause 6 (ii) of the Scheme for having donated the land for school. However, it has specifically come on record that the land donated by respondent No.8 vide Gift Deed No.219/11 dated 26.12.2011 was not for the particular school where the vacancy arose, whereas the land donated by the petitioner relates to the land where the concerned school is situated. 9. However, Mr. R.S. Chandel, learned counsel for respondent No.8 would vehemently argue that no marks could have been awarded to the petitioner as the Government Primary School, Khood has been constructed over Khasra No.885 and this khasra number does not even belong belong to the petitioner. It is further argued that the petitioner or his family members have not donated the land. 10. I find no merit in this argument. Firstly, the family of the petitioners comprised of Bhagwanu and Thabal had donated 2 bighas 1 biswa of land comprised in Khasra No. 885 vide Gift Deed dated 22.2.1977 and thereafter the petitioner had donated the land measuring 2-01 bigha for Education Department standing on Khasra No. 886 in Mauza Khood, Tehsil Sangrah, over which the Government Primary School, Khood is situated. 11. As per communication dated 1.5.2019 (supra) by the Director of Elementary Education to the learned Advocate General, five class rooms, one kitchen and two toilets having been constructed and 18 feet wide bramada also exists where morning assembly is conducted and even the playground had been constructed over this khasra number. 12. As regards the earlier Gift Deed of 1977, it would be noticed that Mehru, Thabal and Bhagwanu all were the sons of Keshu and the present petitioner is the grand-son, being son of Sainya Ram S/o Mehru. 12. As regards the earlier Gift Deed of 1977, it would be noticed that Mehru, Thabal and Bhagwanu all were the sons of Keshu and the present petitioner is the grand-son, being son of Sainya Ram S/o Mehru. At the time of execution of the Gift Deed, Mehru, Thabal and Bhagwanu were the owners of the land in joint possession. Therefore, obviously even if the Gift Deed contained the names of only two co-owners, the same is deemed to have been executed by all the co-owners and such gift when assailed by any stranger deemed to be a donation from the families of the candidate. The term "family" as regards stranger has to be given a wide meaning and it is only when there is a dispute amongst the members of the "family", the same would have to be construed narrowly. 13. The word "family" will have to be a liberal and comprehensive meaning especially when the gift is assailed by a stranger and not a member of the family and would in any event include the members of undivided family as in the instant case. 14. In its ordinarily and primary sense, the term "family" signifies the collective body of persons living in one house or under one head or manager or one domestic government. In this restricted sense, the term "family" would include only parents and their children. It may include even grandchildren and all the persons of the same blood living together. In its broader sense, it may include persons who were not connected by blood depending upon the context in which the word is used. The word "family" is a word of great flexibility and is capable of different meanings (Refer: K.V. Muthu vs. Angamuthu Ammal (1997) 2 SCC 53 ). 15. Here, it has been established on record that the earlier gift deed dated 20.2.1977 was executed by two brothers i.e. Bhagwanu and Thabal, who were the members of undivided family and thus they were within the term "whose family have been donated the land for school." 16. Apart from the above, this Court is of the considered opinion that the defence as raised by learned counsel for respondent No.8 is not at all available to him in view of the subsequent developments noticed below. 17. Apart from the above, this Court is of the considered opinion that the defence as raised by learned counsel for respondent No.8 is not at all available to him in view of the subsequent developments noticed below. 17. It is not in dispute that respondent No.8 in the year 2017 filed a writ petition which was registered as CWP No. 1262 of 2017 wherein he prayed for the following reliefs: "(i) That writ in the nature of certiorari may very kindly be issued and impugned certificate Exhibit P-4 may very kindly be quashed and set-aside. (ii) That writ in the nature of mandamus may very kindly be issued by directing the respondents to withdraw the benefit/marks extended/awarded to the respondent No.5 on the basis of Annexure P-4." 18. However, when the said writ petition came up for hearing before a co-ordinate Bench of this Court, on 18.4.2018 respondent No.8 was caught on wrong wicket and withdrew the said writ petition as is evident from paras 2 and 3 of the order, which reads thus: "2. When the learned counsel for the petitioner was asked with regard to maintainability of the petition and his locus to assail certificate Annexure P-4 by filing a petition under Article 226 of the Constitution of India, he prayed that he may be permitted to withdraw the petition with liberty to assail the same before the competent authority/ competent Court of law. 3. Permission, as prayed for, is granted. The writ petition is dismissed as withdrawn with liberty prayed for, subject to all just exceptions. Pending applications, if any, also stand disposed of." 19. Once respondent No.8 with his eyes wide open had questioned the awarding of five marks in favour of the petitioner for the donation of the land for school and the said petition has been withdrawn, that too, subject to all just exceptions, then it is not at all open to respondent No.8 to question the awarding of five marks in favour of the petitioner on account of the land donated by his family. 20. Not only respondent No.8 is estopped by his overt adventurous act in which he indulged, but containing such a plea would only encourage forum shopping and thereby promote dishonesty and deceit and pollute the stream of justice. 20. Not only respondent No.8 is estopped by his overt adventurous act in which he indulged, but containing such a plea would only encourage forum shopping and thereby promote dishonesty and deceit and pollute the stream of justice. Unless this practice is nipped in the bud, it would encourage unscrupulous litigants and encourage them to entertain the idea that they can indulge in forum shopping, which has no sanction in law and certainly no sanctity. 21. In view of the aforesaid discussion, I find merit in this petition and the same is accordingly allowed and the appointment of respondent No.8 as Part-Time Water Carrier in Govt. Primary School, Khood is quashed and set-aside and the respondents are directed to redraw the merit list of the candidates, who appeared in the interview in accordance with the Scheme (Annexure P-1). 22. The writ petition is disposed of in the aforesaid terms, so also the pending applications, if any, leaving the parties to bear their own costs.