IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.: 2728 of 2009. Reserved on: 28.10.2010. Decided on: 09.11.2010. __________________________________________________________ Raj Dulari. … Petitioner. Versus State of Himachal Pradesh and others. … Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Petitioner : Ms. Ranjana Parmar, Advocate. For the Respondents : Mr. P.M. Negi, Deputy Advocate General with Mr. R.P. Singh, Assistant Advocate General. Rajiv Sharma, J.: Material facts necessary for adjudication of this petition are that the petitioner has obtained one year Condensed Course of Nursery Teacher from Manava Bharti, Mussoorie, Dehradun. She got her name registered with the employment exchange. Her name was sponsored by the employment exchange pursuant to which she was issued call letter on 28.6.1996 for the post of Nursery Teacher. She appeared in the interview on 11.7.1996. She was offered appointment letter on 19.9.1996, pursuant to which she joined her duties as Nursery Teacher at Government Pre-Primary School, Dadahoo, District Sirmour on 21.9.1996. The appointment letter dated 19.9.1996 was withdrawn by 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - the respondents on 30.9.1996. Petitioner assailed this order dated 30.9.1996 before the erstwhile learned Himachal Pradesh Administrative Tribunal by way of O.A. No.1509 of 1996. The interim order was passed by the learned Tribunal on 10.10.1996. O.A. No.1509 of 1996 was transferred to this Court and assigned CWP(T) No.3807 of 2008. The same was disposed of by this Court on 5.5.2009. In sequel thereto, the petitioner was directed to appear before the Deputy Director of Elementary Education, district Sirmour on 2.7.2009. She also made a representation. The Deputy Director of Elementary Education, Sirmour passed the impugned order on 6th August, 2009 whereby the services of the petitioner were terminated with immediate effect. Petitioner has assailed Annexure P-7, dated 6th August, 2009. 2. Ms. Ranjana Parmar, learned counsel for the petitioner has strenuously argued that the appointment of the petitioner was in accordance with law. She then contended that there was no requirement under the Recruitment and Promotion Rules, Annexure R-1 that the recruitment was to be made by the H.P. Public Service Commission. She further argued that her client is eligible for appointment to the post of Nursery Teacher as per the Scheme framed by the Respondent-State on 12th August, 1997. 3. Mr. P.M. Negi, learned Deputy Advocate General has strenuously argued that the appointment of petitioner, dated 19.9.1996 was in contravention of law. He has supported the order dated 6.8.2009. 4. I have heard learned counsel for the parties and gone through the pleadings carefully. 5. Petitioner has done Condensed Course, as noticed above from Manava Bharati, Mussoorie, Dehradun in the Academic Session - 3 - 1984-85. Her name stood sponsored by the employment exchange. She appeared in the interview before the Deputy Director of Elementary Education, Sirmour on 11.7.1996. Thereafter she was offered appointment on 19.9.1996, on the basis of which she joined her duties on 21.9.1996. The appointment letter dated 19.9.1996 was withdrawn on 30.9.1996. Learned Tribunal granted interim relief to the petitioner on 10.10.1996. She continuously worked from 10.10.1996 onwards on the basis of interim order passed by the learned Tribunal. The O.A. No.1509 of 1996, preferred by the petitioner was disposed of by this Court on 5.5.2009. In sequel thereto, the petitioner’s services were terminated on 6.8.2009. 6. Ms. Ranjana Parmar, learned counsel for the petitioner has taken the Court through the Recruitment and Promotion Rules, called the “Himachal Pradesh, Education Department, Nursery Teacher (Class-III- Non-Gazetted) R & P Rules, 1989. The minimum qualification prescribed for the post is that a candidate should possess a Nursery Teacher Training Certificate from an institution duly recognized by a State. Rule 13 of the said Rules provides the circumstances under which the H.P., PSC is to be consulted in making recruitment. Rule 15 whereof provides that selection for appointment to the post in the case of direct recruitment shall be made on the basis of viva-voce test of recruiting authority as the case may be, so consider necessary or expedient by a written test or practical test, the standard/syllabus etc. of which will be determined by the recruiting authority. It is not provided under the Rules, who is the recruiting agency for filling-up the post in question. The only observation made against Rule 13 is, as required under the law. Even under Rule 13, the language employed is the - 4 - circumstances under which the H.P., PSC is to be consulted in making recruitment. It is not clear that the selection was to be made by the H.P., PSC alone. The fact of the matter is that the petitioner has neither misrepresented nor played any fraud at the time when she was offered appointment on 19.9.1996 to the post of Nursery Teacher. She was called for interview on 11.7.1996 and it was only after her suitability was adjudged by the Deputy Director of Elementary Education, Sirmour, she was offered appointment letter, dated 19.9.1996. She has worked continuously with effect from 21.9.1996 upto 10.10.1996 and thereafter on the basis of the interim orders passed by the learned Tribunal upto 6.8.2009. She has worked for a period of almost 13 years. There is no complaint against the petitioner. 7. In the impugned order, these facts have not been taken into consideration by the Deputy Director of Elementary Education. He could not overlook the experience gained by the petitioner with effect form 21.9.1996 onwards. The petitioner cannot in any manner be faulted for the manner in which she has been recruited. Even if it is assumed hypothetically that the recruitment to the post in question was to be made through the Public Service Commission, it is the respondents who are at fault and not the petitioner. 8. The matter is required to be looked into from another angle also. The Court had directed the respondent-State to file supplementary affidavit whether the petitioner was eligible under the Scheme framed on 12th August, 1997 or not. The order was passed on 17.8.2010. In sequel thereto the supplementary affidavit has been filed by the Director of Elementary Education, admitting therein that as per information received from the Deputy Director of Elementary Education, Sirmour, the - 5 - petitioner is eligible and qualified as per the Scheme (H.P. Nursery Trained Teacher Scheme, 1997) promulgated on 12.8.1997. This further strengthens the case of the petitioner that she was fully eligible and qualified to be considered for the post in the year 1996. Respondent- State has also not placed any contemporaneous material on record to suggest even remotely that any notice was ever issued to the Deputy Director of Elementary Education, Sirmour for appointing the petitioner as Nursery Teacher on 19.9.1996. In view of the circumstances mentioned above, the respondents are estopped from canceling the appointment of the petitioner. The petitioner has changed her position to the detriment on the basis of letter dated 19.9.1996. She has become overage and the juniors to her have been appointed as Nursery Teachers on batch wise basis as per the averments contained in the petition, which have not been denied by the respondents. 9. Consequently, in view of the observations made hereinabove, the petition is allowed. Annexure P-7, dated 6.8.2009 is quashed and set aside. Petitioner shall be deemed to be in service for all intents and purposes with effect from 19.9.1996 onwards. The respondents are directed to permit the petitioner to join her duties, within a period of one week after the production of certified copy of this judgment. The pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs. (Rajiv Sharma), Judge. November 09, 2010. (sck).