IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 15569/2008 Reserved on: 27.7.2011 Decided on:5.8. 2011 _____________________________________________ Jamuna Devi. …Petitioner. Versus State of H.P. and others. …Respondents. _______________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the petitioner : Ms. Sunita Sharma, Advocate. For the Respondent: Mr. Vikas Rathore, Dy. A.G. with Mr. R.P. Singh, Asstt. A.G. for respondents No. 1 and 2. Respondent No.3 already ex parte. Mr. Y.K. Thakur, Advocate for respondent No.4. ____________________________________________________ Justice Rajiv Sharma, Judge. Petitioner belongs to below poverty line category. She is 50% physically challenged. She submitted an application for considering her candidature for the post of Part Time Water Carrier in Government Primary School, Sherla. It has come in the reply that the name of the 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 petitioner alongwith one Nika Ram was approved by the Government for the post of Part Time Water Carrier for Government Primary School, Sherla, District Solan under clause 12 of the Scheme dated 27.7.2001. It will be relevant at this stage to reproduce clause 12 of the Scheme, which reads thus: “12. Compassionate ground appointment. The Government will have the power to appoint any candidate as part time water carrier on compassionate ground without following the selection process if the candidates are widows, women deserted by their husbands, or otherwise destitute handicapped persons and if the candidates falls below the poverty line as defined by the Rural Development Department from time to time.” 2. It appears from the record that respondent No.4 was also interested seeking employment as Part Time Water Carrier. Additional Secretary to Hon’ble the Chief Minister sought information from the Directorate of Education for examining the case of respondent No.4. The same was forwarded by the Director, Primary Education to Deputy Director, Primary Education, Solan on 27.9.2004. The Deputy Director informed the Director on 6.11.2004 that respondent No.4 did not fulfill the conditions enumerated under clause 12 of the Scheme. According to Deputy Director, respondent No.4 has not supplied any document as far as first condition of clause 12 of the 3 Scheme was concerned and he has also failed to produce income certificate duly certified by Naib Tehsildar, Kandaghat. The Deputy Director, Primary Education, Solan informed the Director, Primary Education on 21.5.2005 in sequel to letter dated 22.3.2005 that the name of petitioner was recommended for the post of Part Time Water Carrier in Government Primary School, Sherla by the Government. Petitioner was physically challenged and she fell under below poverty line category. The certificate to this effect was issued by the competent authority. According to Deputy Director, Primary Education, petitioner fulfilled the criteria laid down under clause 12. The Deputy Director has also recommended the case of one Nikka Ram, who was 40% physically challenged and belonged to I.R.D.P. category. In the meantime, respondent No.4 approached the erstwhile Himachal Pradesh Administrative Tribunal by way of O.A. No. 1253/2005. The Tribunal disposed of the petition on 18.5.2005 by treating the same as representation to the Director, Primary Education/competent authority, which was directed to be considered and disposed of within six weeks from the date of receipt of order. The Director, Primary Education sent a communication to the Principal Secretary (Education) on 14.7.2005 informing him that 4 respondent No.4 could not be considered since he did not fulfill the criteria of clause 12 and this information had already been sent to him. There is also a reference to the candidature of petitioner and Nikka Ram. Request was made to consider the candidature of one of the candidates. The Deputy Director, Primary Education informed the Director, Primary Education on 9.6.2006 that case of the petitioner could not be considered in view of the stay granted by the Tribunal in O.A. No. 1253/2005. It is evident that O.A. No. 1253/2005 itself was decided on 18.5.2005. Thus, there was no order staying the appointment of the petitioner. However, the fact of the matter is that petitioner was not offered appointment and Nikka Ram was offered appointment in Government Primary School. Goela. Respondent No.4 was also appointed Part Time Water Carrier in Government Primary School, Sherla. 3. Ms. Sunita Sharma has strenuously argued that the action of respondents offering appointment to respondent No.4 vide Annexure A-8 dated 8.6.2007 is illegal, arbitrary and thus violative of Articles 14 and 16 of the Constitution of India. According to her, respondent No.4 was not eligible even as per clause 12 of the Scheme dated 27.7.2001. 5 4. Mr. Vikas Rathore, learned Deputy Advocate General and Mr. Y.K. Thakur have supported the issuance of Annexure A-8 dated 8.6.2007. Respondents No.1 and 2 have filed the reply. 5. Respondents No.3 and 4 were proceeded ex parte and no reply was filed by them. 6. I have heard the learned counsel for the parties and have perused the record carefully. 7. What emerges from the facts enumerated hereinabove is that petitioner is physically challenged to the extent of 50%. She belongs to below poverty line category. Her candidature stood approved by the Hon’ble Chief Minister alongwith one Nikka Ram. Respondent No.4, as is evident from letter dated 6.11.2004, was not found suitable for appointment to the post of Part Time Water Carrier. He did not fulfill the conditions enumerated under clause 12. The Deputy Director, Primary Education had also recommended the case of the petitioner on 21.5.2005 for considering her candidature alongwith Nikka Ram. The Tribunal has disposed of the original application preferred by respondent No.4 on 18.5.2005 by treating the same as representation to the Director, Primary Education/competent authority. The Director, Primary Education has informed the Principal 6 Secretary (Education) on 14.7.2005 that respondent No.4 was not eligible as per clause 12. He has given reference of the candidature of petitioner and Nikka Ram. The Deputy Director, Primary Education has informed the Director, Primary Education that the candidature of petitioner could not be considered due to stay in O.A. No. 1253/2005. As noticed above, O.A. No. 1253/2005 stood disposed of on 18.5.2005 and there was no stay when letter dated 9.6.2006 was written. It has also come in the reply that the candidature of the petitioner and Nikka Ram was sent back to the Government seeking further direction. A specific stand taken by the respondent-State is that the representation was decided by respondent No.1 in favour of respondent No.4 by invoking clause 21 of the notification dated 27.7.2001. The decision taken by the Principal Secretary (Education) has not been placed on record. Under what circumstances clause 21 has been invoked has not been spelt out. The Court is of the considered view that clause 12 itself is a relaxation clause and there could not be any further relaxation as pleaded by the respondent-State on the basis of clause 21. It is clearly stipulated under clause 12 that the Government has the power to appoint needy person without following the selection process, if the candidate is widow, woman 7 deserted by her husband or otherwise destitute handicapped person and if the person falls below the poverty line as defined by the Rural Development Department from time to time. Appointment under clause 12 can be made to the categories as stipulated therein. Since respondent No.4 did not belong to any of the above categories and did not fulfill the income criteria, his candidature could not be considered by invoking clause 21. The act of the Principal Secretary (Education) to invoke clause 21 was wholly arbitrary and unreasonable. It has been the stand of the Director; Primary Education that respondent No.4 was not eligible to be considered for appointment to the post of Part Time Water Carrier. This aspect of the matter has been over looked by the Principal Secretary (Education) while deciding the representation in his favour. The relaxation clause must conform to Article 14 and 16 of the Constitution of India. A candidate, who was not eligible as per notification dated 27.7.2001, could not be made eligible for appointment, that too, on compassionate grounds. The action of the Principal Secretary (Education) to consider the case of respondent No.4 by invoking clause 21 has resulted into failure of justice. The name of the petitioner already stood recommended by the competent authority and she was the 8 most suitable candidate for appointment taking into consideration her disability coupled with the fact that she belongs to below poverty line category. The Principal Secretary (Education) has given preference to a person, who was not needy vis-à-vis the petitioner seeking appointment, that too, as Part Time Water Carrier. 8. Accordingly, in view of the observations and discussions made hereinabove, the petition is allowed. Annexure A-8 dated 8.6.2007 is quashed and set aside. Respondents No.1 and 2 are directed to issue appointment letter to the petitioner for the post of Part Time Water Carrier in Government Primary School, Sherla within a period of four weeks from the date of production of certified copy of this judgment by the petitioner. Respondent No.4 shall cease to work forthwith as Part Time Water Carrier in Government Primary School, Sherla. No costs. (Justice Rajiv Sharma), Judge. 5.8. 2011 *awasthi*