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2019 DIGILAW 662 (HP)

Kamal Kishore v. State of H. P.

2019-05-30

SURESHWAR THAKUR, VIVEK SINGH THAKUR

body2019
JUDGMENT : Sureshwar Thakur, J. Through, the instant Letters Patent Appeal, the appellant herein, casts, a challengen, upon, a verdict rendered by the learned Single Judge, upon, CWP No.11020 of 2011, on 1.4.2017, wherethrough, he dismissed the petition preferred therebefore, by the appellant herein. 2. The facts necessary, for, adjudication of the instant appeal, are, that the appellant was selected by the PTA, as Drawing Master at Government Middle School, Dhuma Devi, Tehsil Sadar, District Mandi, H.P. However, respondent No.4, namely, Nirmala Devi being aggrieved, with the, selection of the appellant, hence, preferred a complaint before the Inquiry Committee. On the aforesaid complaint, made by respondent No.4, an enquiry was conducted by the Committee constituted, for the disposal of such complainants. On inquiry, the committee ,came to the conclusion, that the proper procedure, to select, the candidate (s), for the post of Drawing Master, was not adopted by the PTA, and, the appointment of the appellant, as a Drawing Master in GMS, Dhuma Devi, made by the PTA is not in accordance with law and instruction contained in Para-11 of the guidelines of the Notification No. EDN-A (Kha)7-3/20067, of 27th May, 2008. The appellant being aggrieved therefrom, preferred an appeal before the Deputy Commissioner, Mandi, under PTA Rules, which was also dismissed. Being aggrieved, with the aforesaid order recorded by inquiry committee, and, further upheld, by the appellate authority, the appellant herein, preferred CWP No.11-1 of 2009 before this Court. Aforesaid writ petition came to be disposed of by the Division Bench of this Court vide order of 18th March, 2010, with the following directions :- ““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. . 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. . 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.....” 3. A perusal of the, afore, hence reflects qua in sequel to the afore-referred judgment, as, rendered by Divisional Bench, of this Court, an inquiry committee considered the matter afresh. The Inquiry Committee, with a view to comply with the orders, rendered by this Court on 4.8.2009, and, on 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, the, merit of the candidates, upon, taking into consideration, the, marks obtained by them in matriculation, plus two examination, B.A./M.A. and Diploma. The Interview Committee, on the basis of merit, drawn by it, took into consideration, the academic qualifications, referred to above, and, prepared the merit list, wherein, the appellant Kamal Kishore figured at Sr. The Interview Committee, on the basis of merit, drawn by it, took into consideration, the academic qualifications, referred to above, and, prepared the merit list, wherein, the appellant Kamal Kishore figured at Sr. No.8, and, hence concluded that, since, the appellant herein rather secured 8th position, though, he was not a meritorious candidate, for the aforesaid post, and, the committee also concluded qua respondent No.4 herein, who secured 6th position in the merit list, being also not, a meritorious candidate, for the aforesaid post, and, further came to the conclusion, that, with merit being ignored, by the then PTA, while appointing appellant herein, as Drawing Master at GMS, Dhuma Devi. Consequently, appointment of appellant herein, Kamal Kishore, as Drawing Master at Government Middle School, Dhuma Devi, made by the PTA, on 5.10.2007, was rather declared invalid. 4. The appellant herein, being aggrieved with the aforesaid order, rendered by committee concerned, approached this Court, by instituting CWP No. 11020 of 2011. The learned Single Judge, taking into consideration, pleadings, and, material adduced on record by the respective parties, as well as orders rendered, by the interviewing committee, affirmed the order of 30.8.2011, as, rendered by the inquiry committee. 5. We have heard the learned counsel for the parties and gone through the record carefully. 6. It is not disputed that CWP No. 1047 of 2009, earlier instituted by the appellant herein, stood, disposed of with a direction, to the inquiry committee, to consider, the matter afresh, in light of instructions referred, to in the judgment. The Division Bench, of this Court, while dealing with bunch matters including CWP No. 1047 of 2009, specifically took cognizance, of, a communication dated 24.9.2009, whereby a clarification, was issued by Director, Higher Education, Himachal Pradesh, for, 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, and, whereby a direction, was made, upon, the inquiry committee, to consider, the, matter afresh, in light of the instructions, contained in the letter referred to herein above. It would be profitable to take note, of, the 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. It would be profitable to take note, of, the 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.” 7. A perusal of aforesaid communication, makes, a display, that, the inquiry committee, while deciding the matter afresh hence was required to take into consideration, the, observations made by this Court, in CWP No. 525/2009, and, in CWP No. 2632/2008. At this stage, this Court, deems it necessary, to take note of the following observations, made by a 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.” 8. The Division Bench of this Court, while dealing with CWP No. 525/2009, categorically held that the criteria, laid down, in Notification dated 27.5.2008, could not have been applied retrospectively. The Division Bench, of, this Court, in the aforesaid case, while setting aside orders of the D.C., as well as, order (s) of the Committee, rendered hence directions, that, the Committee, after giving, an, adequate opportunity of hearing, to the petitioner, as well as, to the respondent, can look into the matter, and, decide whether, the, appointment, of, the petitioner was valid or not. 9. After going through the relevant material available on record, vis-à-vis, impugned judgment, rendered by the learned Single Judge, we find that the inquiry committee, while carrying out a fresh exercise, in terms of the judgment rendered, by the Division Bench, on 18.3.2010, in CWP No. 1047 of 2009, re-determined the 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 the aforesaid judgment rendered on 18.3.2010, rather a direction was issued to the inquiry committee, to decide case of the petitioner afresh in terms of instructions, contained in communication dated 24.9.2009, wherein admittedly, the inquiry committees were directed to decide the issue with regard to appointments of PTA teachers, upon, theirs, taking into consideration, the, observations of this Court made in CWP No. 525/2009. In the aforesaid facts, the Division Bench had specifically, held that, the criteria laid down in Notification dated 27.5.2008, could not be applied retrospectively. This Court, does not, find any force, in, the arguments addressed before this Court, by the learned Additional Advocate General, that, the order rendered, on, 30.8.2011 hence by the inquiry committee, is strictly in accordance with judgment, rendered by the Division Bench of this Court, on 18.3.2010, in CWP No. 1047 of 2009. Since, the Committee was required to decide the case of the petitioner/appellant herein, in view of observations made by this Court, in aforesaid case, there was no occasion, as such, for the inquiry committee, to re404 determine, the merit of candidates, including the petitioner/appellant herein, and, of respondent No.4, on the basis of criteria laid down vide Notification dated 27.5.2008, rather, the Committee, while considering complaint, if any, of unsuccessful candidate, rather ought to have examined, whether PTA had followed some 'reasonable’ criteria, at the time of making selection, to the apposite post or not. 10. The learned Additional Advocate General, was unable to point out discussion, if any, existing in the order dated 30.08.2011, rendered by the inquiry committee, with regard to the criteria, adopted by the selection committee, in the interview, held on 5.10.2007. However, a perusal of order of 5.10.2007, unveils, qua the merit of candidates, being, determined by the Committee by applying, a, uniform criteria, and, it also taking into consideration, various relevant factors, including educational qualifications possessed, by the candidates, and, their experience etc. However, a perusal of order of 5.10.2007, unveils, qua the merit of candidates, being, determined by the Committee by applying, a, uniform criteria, and, it also taking into consideration, various relevant factors, including educational qualifications possessed, by the candidates, and, their experience etc. There is nothing in the order 30.8.2011, from where it could be inferred, that the selection committee, while appointing, the petitioner/appellant herein, hence, adopted, an, unreasonable and arbitrary criteria, to accommodate him, rather, this Court, after having carefully perused record, finds that all the aspirants, including the petitioner/appellant herein, and, respondent No.4, were assessed, on the same yard stick, and, since the petitioner/appellant herein, was found to be more, meritorious amongst them, thereupon, he was aptly offered appointment, to the post of Drawing Master, in, Government Middle School, Dhuma Devi. 11. At this stage, this Court, reiteratedly, 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, the Division Bench of this Court, while testing the validity, of, a notification dated 27.5.2008, it specifically held, that, the criteria laid down in the afore notification being not applicable retrospectively, and, if PTA has not at all followed, any objective criteria, and, has totally ignored merit, thereupon, the Committee can interfere. If, however, the PTA has followed, a, reasonable criteria than, a, fresh criteria cannot be applied, to set aside, a valid selection. Since, a reasonable criteria has been adopted, thereupon, the impugned verdict cannot be upheld. 12. Furthermore, the learned Additional Advocate General, was unable to show, from, the records, that the inquiry committee while examining the merit afresh in terms, of, judgment of 18.3.2010, hence not examining, the case of the candidates, who had appeared in the initial selection process, and, in terms of criteria, laid down in notification dated 27.5.2008, rather, it set aside, the selection of the appellant herein, upon it, taking note of the fact, that, PTA did not follow some reasonable criteria. 13. 13. Since, the learned Additional Advocate General was unable to point out that the authorities concerned, while appointing the appellant herein as Drawing Master in Government Middle School, Dhuma, on 5.10.2007, theirs adopting hence a arbitrary criteria, thereupon, this Court is constrained to conclude, that the learned Single Judge, has committed a grave error in rejecting the claim of the appellant herein, conspicuously, since 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 hence suggestive, of, the fact that, the criteria adopted by the selection committee, at the time of initial interview, held on 5.10.2007, was not in vogue, as such, matter, if any, could be re-considered, by the inquiry committee, and, in terms of judgment passed by this Court, upon, its taking into consideration, the, criteria prevalent at the time of selection, made, in the year 2006, and, not as per criteria laid down, vide notification dated 27.5.2008. In order of 30.08.2011, though the Committee has observed, that, the selection committee, while selecting the appellant herein, hence, ignored the merit but there is no discussion as such, that in what manner, merit was ignored by the selection committee, in the year 2007. It clearly emerges, from, the merit drawn, by selection committee in the year 2007, that the candidates, who had appeared in the interview, were also awarded hence marks in the interview. 14. For the foregoing reasons, the instant appeal is allowed, and, judgment rendered, upon, CWP No. 11020 of 2011, on 1.4.2017 by the learned Single Judge of this Court, is set aside. Consequently, order of 30.8.2011 rendered by enquiry committee is quashed and set aside, and, the appointment of the appellant herein, made against, the post of Drawing Master, pursuant to the selection made, on 5.10.2007 is upheld, with all consequential benefits. All pending applications also stand disposed of.