IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No.: 8651 of 2008 Date of decision: 26.7.2010 Saibu Ram … Petitioner. Versus State of H.P. and others …Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the petitioner: Mr. Dilip Sharma, Advocate. For the respondents No. 1 to 3: Mr. Rajesh Mandhotra, Deputy Advocate General For the respondent No.5 Mr. P.P.Chauhan, Advocate. Deepak Gupta, J. (Oral) 1. The petitioner and respondent No.5 applied for the post of part time water carrier in Government Primary School, Kumbarla in Nerwa Block. Interviews for the said post were held on July 30, 2002. Undisputedly, both the petitioner and the respondent No.5 belong to the Scheduled Castes and were unemployed. The State in its reply has given a chart showing the marks awarded to the petitioner and the private respondent under various heads. The same is reproduced as under:- 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 S. Name of Candidate Distance S/C nonem- Land Viva Total N. ployment doner 1. 2. 3. 4. 5. 6. 7. ---------------------------------------------------------------------------------------- 1. Sh. Saibu Ram 10. 3. 5. -- 5. 23. (Petitioner) 2. Sh.Sohan Lal 10. 3. 5. -- 6. 24. (Respondent No.5) 2. The contention of the petitioner is that respondent Sohan Lal had been wrongly been given 10 marks for distance. As per the criteria laid down in the notification dated 27.7.2001 which was applicable at the relevant time the marks to be awarded on account of distance are as follows:- “In the interview marks shall be awarded to the candidates out of 30. The distribution of marks shall be as under:- 1) For candidates of village/Town at distance: a) Upto 1.5 Km from School: 10 marks. b) upto 2 km from school: 08 marks c) upto 3 km from school: 06 marks. d) upto 4 km from school: 04 marks. e) upto 5 km from school: 02 marks.” 3. Due to this dispute raised by the petitioner, the learned Tribunal on 22.3.2005 in the presence of the learned counsel for the respondent No.5 directed that the Assistant Engineer, HPPWD, Nerwa be added as a party and he should issue a certificate showing the distance between the house 3 of the respondent No.5 and GPS Kumbarla and place the same on record. Thereafter the said certificate was produced before the learned Tribunal on 21.7.2005 and the learned Tribunal has recorded as under:- “Records has been produced by the respondent-State. There is a Certificate on record issued by Assistant Engineer, HPPWD Sub Division, Nerwa, which shows the distance between Kandal to Kumbarala as per survey conducted by the PWD for the purposed road is 4.5 k.m.” 4. In case the distance between the village of the respondent No.5 and the school in question is 4.5 k.m he would be entitled to only two marks on account of distance, which would put him seven marks below the petitioner. The petitioner would have 23 marks and the respondent No.5 would have only 16 marks in total. 5. Faced with this situation, Shri P.P.Chauhan, learned counsel for respondent No.5 urged that the question as to what is the distance between the school and the residence of the respondent is a disputed question of fact and the respondent should be relegated to the remedy of the civil suit. Such an objection, if raised at an earlier stage may have 4 been entertained but I cannot be oblivious to the fact that this petition was filed in the year 2002. In 2005 in the presence of the learned counsel an order was passed directing an official of the State Government to certify the distance. Thereafter, the distance certificate was given. At no stage during the proceedings before the Tribunal this plea of alternative remedy was raised and in fact even after this certificate was filed more than five years back no objection to the same has been filed. Now, it does not lie in the mouth of the respondent No.5 to urge that the certificate is incorrect or that there is a shorter distance available by pedestrian track. 6. In view of the above discussion, the writ petition is allowed. The appointment of respondent No.5 is quashed and respondents-State are directed to appoint the petitioner as a part time water- carrier within two months from today. No order as to costs. 26th July, 2010 ( Deepak Gupta ) ™ Judge.