IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. LPA No.: 121 of 2010 with LPA No.122 of 122 of 2010. Decided on: 13.08.2010. __________________________________________________________ 1. LPA No.121 of 2010. Rajni Bala. … Appellant. Versus State of Himachal Pradesh and others. … Respondents. 2. LPA No.122 of 2010. Nisha Minhas. … Appellant. Versus State of Himachal Pradesh and others. ... Respondents. Coram The Hon’ble Mr. Justice Kurian Joseph, C.J. The Hon’ble Mr. Justice Rajiv Sharma, J. For the Appellant(s) : Mr. Onkar Jairath, Advocate for the appellant in LPA No.121 of 2010. Mr. Ajay Sharma, Advocate for the appellant in LPA No.122 of 2010. For the Respondents : Mr. R.K. Sharma, Senior Additional Advocate General for respondents No.1 and 2 (in both the appeals). Justice Kurian Joseph, C. J. (Oral): Both, the writ petitioner and the private respondent in CWP(T) No.13710 of 2008 have come in appeal. The issue pertains to selection and appointment to post of Primary Assistant Teacher in Government Primary School, Kala Panga in Tehsil Amb district Una. - 2 - 2. According to the writ petitioner, the private respondent, who is the daughter of Pradhan of Gram Panchayat, Sanghnai, Tehsil Amb, District Una, could not have been appointed as Primary Assistant Teacher for the simple reason that she is the daughter of the Pradhan of Gram Panchayat. There are other serious allegations leveled with regard to the selection process. It was pointed out that the private respondent was given full marks in interview so as to make her final positing above the writ petitioner by 1.3 marks, whereas, the writ petitioner was given only 8 marks out of 15. According to the private respondent, the Selection Committee having duly assessed the merit of the private respondent, this Court under Article 226 of the Constitution of India may not be justified in reassessing the decision of the Selection Committee. It is also submitted that the writ petitioner having participated in the selection, is not justified in later turning around and challenging the validity of the selection process. Still, further it is submitted that the Selection Committee having not pointed out any infirmity in the matter of appointment of the private respondent, the appointment cannot be faulted. 3. The learned Single Judge has set aside the appointment merely on the ground of infraction of Rule 137 of the Himachal Pradesh Panchayati Raj (General) Rules, 1997 (hereinafter referred to as ‘the Rules’). The learned single Judge also granted the liberty to make fresh selection. Still further, it was observed in the judgment that if the official respondents so desire, the salary paid to the private respondent can be recovered. Thus, aggrieved, both the writ petitioner and the private respondent have come up in appeal. - 3 - 4. According to the writ petitioner, the selection of the private respondent having been found to be illegal, the logical and natural consequences should only have been to issue a direction to appoint the next in the select list, duly prepared by the Selection Committee and it is not necessary to go for fresh selection. To that extent we find force in the submission. The selection is not set aside on account of any defect which goes to the roots of the selection. The selection of the private respondent alone is found defective or illegal on account of the award of marks and also on account of the infraction of Rule 137 of the Rules. Therefore, the writ petitioner is justified and well founded in contending that the fresh selection should not have been ordered to be made. 5. So far as the private respondent is concerned, who is appellant in LPA No.121 of 2010, the contention that she having been found eligible, by a duly constituted Selection Committee, the selection should not have been interfered with, cannot be appreciated. The Selection Committee can only assess the merit of the candidates. That is duly done. But even if the private respondent became meritorious, whether she could have been appointed in violation of the Rules is not the concern of the Selection Committee. That is concern only of the appointing authority. There cannot be any dispute that the private respondent cannot be appointed in view of Rule 137 of the Rules, which reads as follows:- “137. Other officers and servants of Panchayats (section 135 of the Act). – (1) The Panchayats subject to the availability of funds in the budget, may by a resolution propose to the Director or any other officer authorised, the number of employees required by it and salary and allowances to be paid to them and duties to be assigned to each of them. The Director or - 4 - any other office authorised by him may allow the appointment of such servant as he considers necessary for the efficient discharge of the duties with following conditions:- “No person shall be employed by a Panchayat, if he is near relative (father, grand father, father-in-law, wife, sister, sister’s husband, mother, daughter, niece, mother- in-law, daughter-in-law and husband) of any of its members or if he has been convicted of any criminal offence involving moral turpitude. No employee of the Panchayat shall be retained in service after he has attained the age of 58 years.” (2) A Panchayat for good and sufficient reasons may impose the following penalties on its employees:- (i) Censure. (ii) Recovery of whole or part of any pecuniary loss caused to the Panchayat by negligence or breach of orders of the Panchayat. (iii) Removal or dismissal of employees: Provided that before imposing any penalty the employees shall be informed of the specific charges against him and shall be given a reasonable opportunity to explain his position or produce any evidence. (3) An employee who has been punished under sub-rule (2) may prefer an appeal within thirty days of communication of the order of punishment to the employee to the District Panchayat Officer in case penalty is imposed by the Gram Panchayat or Panchayat Samiti and to the Director in case the penalty is imposed by Zila Parishad. - 5 - (4) In case of non-availability of sufficient work, the services of any employee of a Panchayat can be dispensed with by giving him one month’s notice or in lieu thereof one month’s pay. (5) CCS (Conduct) Rules, 1964, as amended from time to time shall apply to the servants of a Panchayat in so far as they are not inconsistent with the provisions of the Act and these rules: Provided that for the word “Government” and the words “Government Servants” where-ever they occur in the aforesaid Rules, the words “Panchayat” and the words “employee of Panchayat” shall be deemed to have been substituted, respectively.” 6. Therefore, it has become unnecessary to go into whether the Selection Committee was justified in granting full marks etc. 7. Learned counsel for the private respondent has taken another contention that the appointment is under a Scheme and hence the Panchayati Raj Rules do not apply. No doubt, the appointment to Primary Assistant Teacher is under a Scheme, but the Scheme contemplates appointment by the Panchayat for all purposes. The Himachal Pradesh Prathmik Sahayak Adhyapak/Primary Assistant Teacher (PAT) Scheme, 2003, clause 5(a) reads as follows: “5. METHOD OF RECRUITMETN AND CONDITIONS OF SERVICE:- (a) Under this scheme Prathmik Sahayak Adhyapak/Primary Assistant Teacher (PAT) shall be appointed by the respective Gram Panchayats of the area in which the primary school is located, in accordance with the procedure mentioned, here in after. “ 8. However, under clause 9 of the Scheme, it is provided as under:- - 6 - “9. APPOINTING/PUNISHING AUTHORITY The Prathmik Sahayak Adhyapak/Primary Assistant Teacher (PAT) so recruited shall be contractual employees of the Gram Panchayats, for all intents and purposes. The appointing/ punishing authority in respect of Prathmik Sahayak Adhyapak/ Primary Assistant Teacher (PAT) will be the employer, Gram Panchayat. The Prathmik Sahayak Adhyapak/Primary Assistant Teacher (PAT) shall maintain absolute discipline and observe timings of the school. Prathmik Sahayak Adhyapak/Primary Assistant Teacher (PAT) shall enter into an agreement with the concerned Gram Panchayats. The form of agreement as at Annexure-II. Note:- The services of the Prathmik Sahayak Adhyapak/ Primary Assistant Teacher (PAT) shall be liable for termination by the concerned Gram Panchayat on charges of continued unauthorized absence, moral turpitude, misconduct, involvement in political activities OR on indulging in the act of indiscipline OR any other acts mentioned in Para-5 of this scheme.” 9. Therefore, it is clear that the appointment is made by the Panchayat. If that be so, the same is in violation of Rules since the private respondent is none other than the daughter of the Pradhan of Gram Panchayat. The Scheme/Rules are not under challenge. Therefore, the appointment being clearly in violation of the Rules, we do not find any infirmity in the judgment. 10. Another contention taken by the private respondent is that in case any relation participates in the selection process, which is not permitted under the scheme, it has vitiated that selection and, therefore, a fresh selection is to be conducted, keeping away the Pradhan. We are afraid, that contention cannot be appreciated. So far as the selection of private respondent alone is concerned, since her father is Pradhan of the Gram Panchayat and hence he could not have participated in the - 7 - selection process. His participation does not in any way affect so far as the selection of other candidates is concerned, since they do not come under the definition of near relatives, violating the Rules under the Scheme. 11. The learned counsel for private respondent finally made another submission regarding recovery. As far as the private respondent is concerned, he has rightly pointed out the recovery cannot be effected from her since she has worked as Primary Assistant Teacher though her selection has since been found to be defective and illegal. We find force in that submission. Therefore, we make it clear that the recovery, if so advised, shall not be done from the private respondent. 12. In the facts and circumstances, as discussed above, LPA No.121 of 2010 filed by the private respondent is dismissed subject to the only clarification that the recovery, if so advised, shall not be made from the appellant (private respondent). It can be made from those who are responsible for the defective selection. So far as LPA No.122 of 2010 is concerned, the same is partly allowed to the effect that fresh selection need not be conducted. In case the appellant is next in the merit, she shall be appointed forthwith. The pending application(s), if any, also stand disposed of. (Justice Kurian Joseph), Chief Justice. (Justice Rajiv Sharma), Judge. August 13, 2010. (sck).