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2020 DIGILAW 599 (HP)

Duni Chand v. State of Himachal Pradesh

2020-09-15

AJAY MOHAN GOEL

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JUDGMENT Ajay Mohan Goel, J. - By way of this petition, the petitioner has prayed for the following substantive reliefs: - (i) "That the office order dated 23rd July, 2019, Annexure P-12, may kindly be quashed and set aside and the respondents may very kindly be directed to re-engage the applicant in Govt. Senior Secondary School Dharwar Thach as TGT (NonMedical) with immediate effect. (ii) That the respondents may be directed to release the "Grant in Aid" admissible to the petitioner from initial date of engagement to till date." 2. Undisputed facts are that petitioner was initially engaged by the Local PTA, vide resolution dated 03.05.2005 against the post of TGT (Non-Medical) on fixed honorarium of Rs.1,500/- per month at Government Senior Secondary School, Dharwar Thach, District Mandi. He served, as such, till 07.06.2006, when his services were disengaged on account of joining of a regular teacher in the School. It appears that when the vacancy in the School again fell somewhere in the year 2014, the petitioner made a representation for his being appointed against the post, so vacated and the Sub-Divisional Magistrate concerned passed an order to re-engage the petitioner in the School in issue. Thereafter, on 27th January, 2015, his services were again terminated. 3. Feeling aggrieved, petitioner filed Civil Writ Petition No.1554 of 2015, which was later-on transferred to the learned erstwhile Himachal Pradesh Administrative Tribunal and decided as T.A. No.6111 of 2015, vide order dated 15.03.2016 by observing that as the petitioner had claimed parity with one Kanwar Singh, whose petition, i.e., CWP No.9963 of 2014, stood decided by this Court, vide order dated 17.06.2015, therefore, his case be examined in the light of the judgment of this Court passed in Kanwar Singh's case (supra), and if he is similarly situated, then similar treatment be extended to the petitioner. 4. The case of the petitioner was rejected by the Competent Authority, vide Annexure P-9, in October, 2016. 4. The case of the petitioner was rejected by the Competent Authority, vide Annexure P-9, in October, 2016. This order was assailed by way of OA No.5998 of 2016, which was again disposed of by the learned erstwhile Tribunal on the request of the present petitioner therein, vide order dated 25.09.2018 that as the petitioner pleaded that he was similarly situated as the petitioner in CWP No.11731 of 2011, titled as Pushpender Kumar Versus State of Himachal Pradesh and others, therefore, subject to verification and on finding the petitioner to be similarly situated as Pushpender Kumar, similar treatment be extended to him. 5. The Competent Authority has again rejected the claim of the petitioner, vide Annexure P-12, dated 23rd July, 2019, and feeling aggrieved, the petitioner has filed this Writ Petition 6. I have heard the learned counsel for the parties and gone through the pleadings as well as documents appended therewith. 7. The issue involved in this petition is in a very-very narrow compass. Petitioner was initially appointed in the year, 2005, as already mentioned herein-above, by the Local PTA as TGT (Non-Medical), on the fixed monthly honorarium of Rs.1,500/-. He performed his duties, as such, till the joining of a regular teacher on 7th June, 2006. In other words, his services stood disengaged not for any other reason, but for the reason that a regular teacher stood appointed against the post in issue. Subsequent engagement of the petitioner in the year, 2014 by the concerned SubDivisional Magistrate upon a representation so made by the present petitioner when vacancy again fell vacant, was totally erroneous, because, in my considered view, petitioner had no right to be re-engaged as a PTA teacher simply because a vacancy had fallen vacant in the School in issue again, where the petitioner stood earlier engaged as a PTA teacher, that too about 7-8 years back. 8. The indulgence which was shown by the concerned Sub-Divisional Magistrate to the petitioner in the year 2014, was totally misplaced for the simple reason that communication of the Government of Himachal Pradesh, Annexure P-2, dated 25.08.2014, which was relied upon for offering re-appointment to the petitioner, in fact, did not cover the case of the petitioner because that communication referred to, such like PTA appointees whose services were terminated on the report of the Enquiry Committee. I reiterate that services of the petitioner were not terminated in the year, 2007 by the Enquiry Committee, but he stood disengaged on account of a regular incumbent joining the post in issue. 9. A perusal of order passed by the Competent Authority, Annexure P-12, demonstrates that this is exactly what has been held by the Competent Authority while rejecting the case of the petitioner. In the previous proceedings, which were initiated by him before the learned erstwhile Tribunal, he pleaded that he was similarly situated to one Pushpender Kumar and the learned erstwhile Tribunal was pleased to dispose of the Original Application on the ground that in case the petitioner was found to be similarly situated as Pushpender Kumar, then he be treated similarly. The Competent Authority in its order has held by assigning reasons as to why the petitioner was similarly situated as Pushpender Kumar. The Competent Authority has held that the services of the petitioner in Pushpender Kumar's case (supra), were terminated on the basis of findings returned by the Enquiry Committee, whereas, the services of the present petitioner were terminated on joining of a regular teacher. The findings returned by the Competent Authority that the petitioner was not similarly situated as Pushpender Kumar, are correct findings and there is no infirmity in the same. 10. For the aforesaid reasons, this Court does not finds any merit in the present petition and the same is accordingly dismissed. Pending miscellaneous application(s), if any, also stand disposed of. 11. Before parting, this Court intends to make a small observation with regard to the stop-gap arrangements, which are being resorted to by the Education Department in various Schools in the State of Himachal Pradesh, in the matter of appointment etc. of teachers. Pending miscellaneous application(s), if any, also stand disposed of. 11. Before parting, this Court intends to make a small observation with regard to the stop-gap arrangements, which are being resorted to by the Education Department in various Schools in the State of Himachal Pradesh, in the matter of appointment etc. of teachers. A teacher has to be appointed to a School, be it a teacher imparting education to the child, who has taken his first step in the School or be it a teacher, who has to impart education to the students of 10+2 level, strictly as per Recruitment and Promotion Rules, which are in vogue and which have been so framed by the Governor of Himachal Pradesh by exercising powers vested by virtue of proviso to Article 309 of the Constitution of India, yet, the Rules are not being adhered to in letter and spirit and in the garb of exigency of service, backdoor entries are being allowed under various nomenclature. Least to say that this is deprecable practice. Constitution of India confers upon all Citizens of India, a right to be considered for appointment against the post provided the candidate fulfils the eligibility criteria. By resorting to the backdoor tactics, not only favoritism is being encouraged, merit is being discouraged and sacrificed. Despite various decisions having been passed by this Court impressing upon the State that teaching posts should be filled up strictly in accordance with the Recruitment and Promotion Rules, still the same is not being done. This Court again impresses upon the State Government to ensure in the larger interest of the Society at large in general and students in particular that adhocism should not be resorted to and the posts of teacher in Schools should be strictly filled up as per Recruitment and Promotion Rules, so that merit prevails.