IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP(T) No. 12137of 2008 Reserved on: 17.06.2011 Date of decision: 23.06.2011 ________________________________________________________________ Binta Kumari. .....Petitioner. Versus State of H.P. and others. .....Respondents. Coram The Hon'ble Mr. Justice Kurian Joseph, C.J. The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? No. ________________________________________________________________ For the petitioners: Ms. Aruna Sharma, Advocate, vice Ms. Jyotysna Rewal Dua. For the respondents: Mr. R.K. Bawa, AG with Mr. Ankush Dass Sood, Addl. AG and Mr. J.K. Verma, Dy. AG, for respondents No. 1 and 2. V.K. Sharma, J. The petition has been filed on the following prayers: “(i) Impugned selection of respondent No. 3 as part time water carrier in Govt. Primary School Aar Tehsil Chopal District Shimla vide Annexure A-7 may kindly be set aside. (ii) Respondents may kindly be directed to issue appointment order for the post of part time water carrier in Govt. Primary School Aar Tehsil Chopal District Shimla, in favour of the applicant in view of peculiar facts and circumstances of the case as submitted in the Original Application. 1 Whether reporters of Local Papers may be allowed to see the judgment? ...2... 2. In reply, respondents No. 1 and 2 have taken the following stand vide paras 3 and 6(i): “3. That in reply to this para it is submitted that the respondent No. 3 has been appointed as Part Time water Carrier under Clause 12 of the policy as famed for the selection/appointment of Part Time Water Carrier in the department of Primary Education and under Rule 12 of the policy framed for the appointment of the Part Time Water Carrier in the Education Department the Govt. has the power to appoint any candidate as Part Time Water Carrier without following the selection process if the candidates are widow, women deserted by their husbands or otherwise destitute, handicapped person and if the candidate falls below the poverty line as defined by the rural development department from time to time. Since as per the information received from the Dy. Director of Primacy Education, Shimla the respondent No. 3, is handicapped and also belongs to the I.R.D.P. Family. Therefore, no wrong and illegality has been committed by the respondent state by appointing the respondent No. 3 as Part Time Water Carrier in G.P.S. Aar. Hence, the present original application filed by the applicant deserves to be dismissed. 6(i) That this para calls for no submissions, being a matter of record. However, it is submitted that as is evident from Annexure A-4 as annexed by the applicant with the present original application, the applicant suffers from 42% temporary hearing disability not permanent disability as alleged by ...3... the applicant in this para. It is also further submitted that as per the document supplied by the Dy. Director of Elementary Education, Shimla, the respondent No. 3 suffers from permanent disability to the extent of 42%. Hence, he has rightly been appointed as Part Time Water Carrier under rule 12 of the Policy.” 3. The following averments have been set up on behalf of respondent No. 3 in para 6(i to iii and iv): “6(i to iii) The submissions made in this para of OA pertain to personal particulars of applicant. However, it is submitted as per certificate issued by Sub Divisional Magistrate, Chopal, Annexure R-3/1, the family of replying respondent fulfills the conditions/criteria laid down for inclusion in the list of BPL families. The distance of the house the the replying respondent from school is about 300 meters as per certificate as Annexure R-3/2 with English Translation as Annexure R-3/2-T herewith. The replying respondent is also suffering from physical disability to the extent of 42% (Annexure R-3/3) herewith. The replying respondent also applied for the post of part-time water carrier, keeping in view his family circumstances, with all relevant documents. (iv) That the replying respondent has rightly been appointed as part-time water carrier. Being married is no disqualification for appointment to the said post. It is emphatically denied that replying respondent is a shopkeeper as alleged. The certificate at Annexure A-9 is signed by family ...4... members/relations of applicant along, which does not have legal sanctity. The statement in Annexure A-9 that replying respondent gets commission being Nambardar, is again of no consequence. The entire collection of revenue for one year is about one thousand rupees, against which he gets only about Rs. 172/- per year, if at all the above amount of revenue is recovered and not exempted by government. The replying respondent is getting Rs. 200/- per monthly as pension being physically handicapped, which again is not a disqualification for his appointment. Applicant also is a physically handicapped and she might also be getting pension on that account. The replying respondent had already resigned from Ward Membership. Keeping in view the totality of circumstances and the certificates submitted by replying respondent, he has rightly been offered appointment by the competent authority. As such the OA is misconceived and liable to be dismissed with costs.” 4. The petitioner is aggrieved by the appointment of respondent No. 3 as Part Time Water Carrier in Government Primary School Aar, Tehsil Chopal, District Shimla. The records reveal that she has passed Senior Secondary (Plus Two) examination (Annexure A-1). As per certificate, Annexure A-2, no member of her family is in government service. Annual income of her family as per certificate, Annexure A-3, is ` 4000/- and she fulfills the conditions/criteria laid down for inclusion in the list of BPL families by the Rural Development Department, though her ...5... name could not be included as such at the time of finalization of the list. She is physically challenged to the extent of 42%, though temporary/moderate on account of hearing impairment as per certificate, Annexure A-4. 5. It is manifest from memo dated 22.12.2004, Annexure A-5, addressed to the petitioner from the office of respondent No. 2, Director Primary Education, Himachal Pradesh, that she was an applicant for the aforesaid post of Part Time Water Carrier and the requisite certificates were asked for from her vide this memo. 6. Respondent No. 3 was appointed against the above post vide letter dated 19.03.2005, Annexure A-7. 7. The records further reveal that prior to his appointment as Part Time Water Carrier respondent No. 3 was Member Gram Panchayat Bijmal, Tehsil Chopal, District Shimla, which fact, apart from having been admitted by him, is also evidenced by certificate, Annexure A-8. He has admitted in his reply that he is village Namberdar, but with meagre income. Insofar as the annual income of respondent No. 3 is concerned, he is also similarly situate as the petitioner, as is evident from Certificate R-3/1. As per Certificate, Annexure R-3/3, he is physically challenged to the extent of 42% which is permanent/moderate in nature on account of “fracture ileum with B/L genu recurrnatum deformity both elbows”. Certificate, Annexure R-3/2, is to the effect that his house is situate at a distance of 300 meters from the aforesaid school. ...6... There is nothing on record as to what is the educational qualification of respondent No. 3. However, according to the petitioner, he has studied upto 8th or 9th class, which averment has not been specifically denied by him. It is also not shown as to whether any other member of his family is in government service. 8. The appointment of respondent No. 3 is justified by respondents No. 1 and 2 only on the ground that he is physically challenged to the extent of 42% and the disability is permanent in nature. Thus it was within the power of the department to appoint him under Clause 12 of the policy framed for selection/appointment of Part Time Water Carrier without following the selection process. However, when applications for the post were in fact called for, such a course could not have been legally adopted by the department and more so when the petitioner is also a physically challenged person to the extent of 42%, albeit the fact that the disability is temporary in nature. The respondents have not brought any material on record to show whether any differentiation could have been made on the basis of the disability being permanent/temporary in nature. 9. Furthermore, the petitioner is a woman, though was unmarried at the material time and as such did not fall within the category of widow or deserted by husband. No member of her family was in government service. To the contrary, it is manifest on the face of record that respondent No. 3 is an influential person, ...7... being village Namberdar as also Member Gram Panchayat. As already noticed, he had resigned from the latter position only after his appointment as Part Time Water Carrier. The petitioner has also alleged that respondent No. 3 is a shopkeeper with considerable income, but the certificate to this effect (Annexure A-1) said to have been issued by the residents of village Aar is signed by only five persons and has not been issued by any competent authority and thus much reliance cannot be placed on the same. 10. Since both the petitioner and respondent No. 3 belong to the same village, the distance of their respective houses from the school is also not of much consequence. 11. In view of the above, the action on the part of the respondents to have first called for applications for the post and thereafter appointing respondent No. 3 against the same without following the selection process is on the face of it arbitrary and cannot be sustained and more so when respondent No. 3, who has been held to be an influential person in the village, has been preferred against the petitioner who, from the available materials, has apparently an edge over respondent No. 3. 12. In the result, the petition succeeds and is accordingly allowed. Consequently, Annexure A-7, is quashed and the appointment of respondent No. 3 as Part Time Water Carrier in Government Primary School, Aar, Tehsil Chopal, District Shimla, is ...8... set aside. There will be a direction to the Deputy Director of Education, Shimla to consider the matter afresh, weigh the comparative disadvantages of the applicants, consider the educational qualification and other relevant factors including the income. The lesser in income shall certainly be preferred. It is also made clear that other things being equal, petitioner, in the peculiar facts of this case, shall be preferred. The needful shall be done within one month from the date of production of copy of the judgment. 13. The petition stands disposed of so also pending application(s), if any. (Justice Kurian Joseph) Chief Justice (Justice V.K. Sharma) Judge 23rd June, 2011 (virender)