IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No.2071/2008 Reserved on: 20.4.2009 Decided on: 25.5.2009 Reeta Rani. …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 : Mr. Dilip Sharma, Advocate. For the Respondents : Mr. Vikas Rathore, Deputy Advocate General for respondent No. 1 to 4. Mr. Jagdish Thakur, Advocate vice Mr. N.K. Thakur, Advocate for respondent No.5. Rajiv Sharma, J. The petitioner has assailed the appointment of respondent No.5 to the post of Volunteer Teacher in Government Primary School, Pamda, District Una. The appointment to the post of Volunteer Teacher was governed under the “Volunteer Teachers Employment Scheme, 1991”. The petitioner has passed her matriculation examination. She has also passed Bachelor of Arts (B.A.) and Bachelor of Education (B.Ed.) 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. 2 examinations. She sought employment as Volunteer Teacher in Government Primary School, Pamda. She was interviewed on 27.9.1991. However, the selection committee appointed respondent No.5 to the post of Volunteer Teacher in Government Primary School, Pamda. She assailed the appointment of respondent No.5 by way of present petition. It is averred in the petition that the petitioner was more meritorious and the selection committee could not award 30 marks to respondent No.5 for distance. According to the petitioner, the residence of respondent No.5 was situate in village Guglehar which was at a distance of 20 KMs from the school. The residence of the petitioner was situate within close proximity where the school is situated. The certificate in favour of respondent No.5 was issued by one Sh. Shadi Lal certifying that the distance from Gagret to school was 2.5 KMs. Respondent No.3 had asked respondent No.5 to produce the distance certificate. She supplied the certificate of distance (Annexure A-6) from Gagret to Government Primary School, Pamda certifying the same to be 8.5 KMs. The petitioner had secured overall 57.53 marks and respondent No.5 had secured 61.60 marks on the basis of interview held by the selection committee. The appointment of respondent No.5 was quashed on 2.10.1992 as per the averments contained in reply filed by respondents No. 1 to 4. Respondent No.5 has filed separate reply to the petition. She has primarily contended that the house of respondent No.5 was within the distance of 3 KMs from the school. The explanation for the issuance of Annexure A-6 is that the distance was to be covered by the shortest route and not by road. It is further averred in the reply that after the appointment of respondent No.5 as Volunteer Teacher she was imparted training and she has been issued 3 certificate of Junior Basic Trained Teacher by the respondent-State. She was appointed on regular basis on 9.4.1999. Mr. Dilip Sharma, Advocate has strenuously argued that the appointment of respondent No.5 was in contravention of the Volunteer Teachers Employment Scheme, 1991. He then contended that the house of respondent No.5 was situate at a distance of more than 5 KMs from the school and she was not entitled to get 30 marks for distance. Mr. Vikas Rathore, learned Deputy Advocate General has argued that initially appointment of respondent No.5 was quashed on 2.10.1992. However, she was re-engaged on the basis of the judgment rendered by this Court in CWP No. 690/1992 on 12.4.1993. He then contended that after the re-appointment of the petitioner, she had been imparted the Junior Basic Trained Teacher’s training and was regularly appointed and she resumed her duties in the year 1999. He further contended that with the passage of time and taking into consideration the subsequent developments, the petitioner cannot be granted any relief. He lastly contended that the petitioner cannot be offered any appointment at this belated stage since the Volunteer Teachers Employment Scheme, 1991 under which the petitioner is seeking employment has been scraped. At the request of Mr. Dilip Sharma, Advocate, the records of CWP No. 690/1992 and 847/2004 were summoned from the Record Room to adjudicate the lis effectively. I have heard the learned counsel for the parties and perused the record carefully. What emerges from the facts enumerated hereinabove and as per the averments contained in CWP No. 690/1992 and 847/2004 is that the petitioner and respondent No.5 had applied for the post of Volunteer 4 Teacher in Government Primary School, Pamda. The petitioner was interviewed alongwith respondent No.5 on 27.9.1991. Respondent No.5 was selected for the post of Volunteer Teacher. She resumed her duties. The case of the petitioner, as discussed in the opening part of the judgment, is that respondent No.5 could not be granted 30 marks for distance. Mr. Dilip Sharma, Advocate has relied on Annexure A-6 issued pursuant to Annexure A-5. This has been issued by the Assistant Engineer, Gagret, Sub Division, HPPWD. The distance from Gagret to Pamda as per Annexure A-6 is 8.5 KMs. In the earlier certificate issued by one Sh. Shadi Lal, the distance was shown to be 2.5 KMs from the residence of respondent No.5 to Government Primary School, Pamda. The appointment of respondent No.5 was quashed by the State after the filing of the original application in the erstwhile Himachal Pradesh Administrative Tribunal by the petitioner on 3.10.1992. Respondent No.5 approached this Court by way of CWP No. 690/1992 seeking her re- engagement. The petitioner was not added as a party in the CWP No. 690/1992. The Court had asked for the report from the Executive Engineer to ascertain the distance from the residence of respondent No.5 to the School. It is evident from the order dated 12.4.1993 that the Executive Engineer had certified that distance is between 4-5 KMs. This Court taking into consideration the certificate issued by the Executive Engineer and respondent No.5 was high up as compared to other candidates declared respondent No.5 entitled to the post of Volunteer Teacher. It is in these circumstances that Annexure P-4 annexed with CWP No. 690/1992 was quashed and set aside. The learned Himachal Pradesh Administrative Tribunal on the basis of the order passed in CWP No. 690/1992 dated 12.4.1993 5 dismissed the present petition on 16.7.2004. The petitioner assailed order dated 16.7.2004 by filing CWP No. 847/2004 in this Court. The petitioner had also filed CMP (M) No. 941/2004 seeking review of the judgment rendered by this Court in CWP No. 690/2004. A Division Bench of this Court disposed of the writ petition alongwith CMP (M) No. 941/2004 on 1.12.2004. This Court was pleased to observe while disposing of the petition that the judgment dated 12.4.1993 rendered by this Court in CWP No. 690/1992 did not at all deal with any issue relating to appointment of respondent No.5 in any manner. It was further observed that the issue was alive and it formed the subject matter of the present petition. The Court finally observed that the present petition should have been heard and disposed of on its merits totally uninfluenced by the judgment of this Court in CWP No. 690/1992. It is in these circumstances that the petition was heard on merits. The appointment to the post of Volunteer Teacher governed under the Volunteer Teachers Employment Scheme, 1991. It is evident from the extract of the scheme that the candidate residing within 3 KMs of the School was entitled to 30 marks, the candidate residing from 3 to 5 KMs was entitled to 20 marks, the candidate residing from 5 to 8 KMs was entitled to 10 marks whereas the candidate residing from 8 to 10 KMs was entitled to 5 marks. 25 marks were carved out for personal interview and 45 marks for educational qualification. The petitioner had appeared in the interview with respondent No.5. According to the petitioner, the residence of respondent No.5 was in village Guglehar, which was more than 20 KMs from the school. The case of respondent No.5 throughout was that she was residing in Gagret town and the distance from her residence to Government Primary School, 6 Pamda was less than 3 KMs. According to the certificate issued by one Sh. Shadi Lal, Member of the Notified Area Committee (NAC), Gagret, the distance from Gagret to Government Primary School, Pamda was 2.5 KMs. The selection committee after taking into consideration this distance had awarded 30 marks to respondent No.5. The petitioner had raised objection for awarding 30 marks to respondent No.5 under distance criteria. Respondent No.3 directed respondent No.5 to produce certificate of distance from Gagret to Government Primary School, Pamda from the Executive Engineer, HPPWD (B&R). The Assistant Engineer issued the certificate Annexure A-6. The distance as per this certificate was 8.5 KMs from Gagret to Government Primary School, Pamda. This Court had directed the Executive Engineer in CWP No. 690/1992 to produce the certificate of distance from the residence of respondent No.5 to the School. He had certified the same to be 4 KMs as per the observations in the judgment dated 12.4.1993. There is no fix criteria how the distance was to be determined in the present case from the residence of the candidates to the School. The distance if taken from the road would be more vis-à-vis shortest possible route. Respondent No.5 in the reply to this petition has explained that the distance was not to be covered by road, but the same was to be taken into consideration by shortest possible route. However, the fact of the matter is that there is variance in the certificates issued by one Sh. Shadi Lal, Assistant Engineer and Executive Engineer from the residence of respondent No.5 to school. The selection committee was only seized of the certificate, which was produced by respondent No.5 whereby the distance was shown to be 2.5 KMs from the residence of respondent No.5 to the school. It is also true that respondent No.5 ought to have added the petitioner as party in CWP No. 690/1992. 7 The services of respondent No.5 were terminated during the pendency of this petition. She was reinstated only on the basis of judgment rendered by this Court in CWP No. 690/1992 on 12.4.1993. She has been imparted training on the basis of seniority of the Volunteer Teachers by the State Government. She has undergone the condensed course. She has placed on record the office orders dated 5.4.1999 and 9.4.1999 passed by the State Government whereby respondent No.5 has been appointed on regular basis as Junior Basic Trained Teacher. The petitioner has not assailed the issuance of office orders dated 5.4.1999 and 9.4.1999. It is not that the petitioner was not aware of these orders. These orders were already on record. The petitioner could always assail these orders by amending the petition. He has not chosen to do so. The Court has also to take into consideration the subsequent developments which have taken place during the pendency of the petition. What emerges from the facts enumerated hereinabove, more particularly, in view of the certificates issued by the authorities from time to time that the residence of respondent No.5 from the school was more than 4 KMs and she could not be granted 30 marks. In these circumstances she was not entitled to be appointed as Junior Basic Trained Teacher in the year 1992. However, the fact of the matter is that her appointment was cancelled by the State on 3.10.1992. She was reinstated by the intervention of this Court in CWP No. 690/1992. She has continuously worked thereafter and had undergone condensed course. She has been regularly appointed as Junior Basic Trained Teacher in the year 1999 as is evident from the orders dated 5.4.1999 and 9.4.1999. In other words, she had been working as Teacher for the last 17 years and at this stage her appointment cannot be cancelled. The petitioner has not assailed her 8 appointment made on regular basis in the year 1999 though these office orders were on record. The petitioner is also not entitled to any relief for the simple reason that the Volunteer Teachers Employment Scheme, 1991 has been scraped by the State. This Court cannot direct her appointment under the scheme which is no more in existence Accordingly, in view of the aforesaid observations, the petition is disposed of. No costs. 25.5. 2009 (Rajiv Sharma ), J. *awasthi*