IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP(T) No. 4037 of 2008 Date of decision: 14.12.2010 ________________________________________________________________ Pawna Devi. .....Petitioner. Versus The State of H.P. & others. .....Respondents. Coram The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? No ________________________________________________________________ For the petitioner: Mr. Rakesh Bharti, Advocate.. For the respondents: Mr. Anil Jaswal, Deputy Advocate General, for respondents No. 1 to 3. Mr. K.B. Khajuria, Advocate, for respondent No. 4. V.K. Sharma, J. (Oral). The petition has been filed on the following prayers vide para 7 (I) to (iii) :- “ I) That the appointment of Respondent No.4, Smt. Phulan Devi, may be quashed/set aside by directing the Respondents No.1 to 3 to take the joining of applicant in her place in Government Primary School, Thaliar, P.O Naura, Block Bhawarna, Tehsil Palampur, Distt-Kangra. ii) That the Respondent Nos.1 to 3 may kindly be directed to regularize the services of the applicant 1 Whether reporters of Local Papers may be allowed to see the judgment? No as Water carrier in view of the scheme notified by ANNEXURE A/4 and appointment letter :: 2 :: ANNEXDURE A/5. iii) That the Respondents No.1 to 3 be directed to pay the applicant her back wages with interest.” 2. In reply, on behalf of respondents No.1 to 3, it is stated as under :- “ It is pertinent to mention here that the applicant Smt. Pawana Devi was offered appointed by the Respondent No.3 (District Primary Education Officer, Kangra) vide order No. ES-Kangra/P.E-7/96 dated 20/1/97, but she fails to join as such in G.P.S. Thalial Block Bhwarna Distt. Kangra till 4/02/97, when the Selection Committee seleted the Respondent No.4 Smt. Phulan Devi who had already been working in G.P.S. Thalial. 3. In supplementary affidavit dated 24th June, 2005 filed on behalf of respondent No.1 to 3, the following stand has been taken vide paras 2 and 4 :- “2. That in this regard it is submitted that as per the certificate issued by the Head Teacher Sh. Duni Chand which has been supplied by the Block Primary Education Officer, Bghawarna (Kangra) that the respondent No.4 Smt. Phoolan Devi had been working as Part Time Water Carrier in the school from 6/96 to 30th September/1999. The copy of the certificate of the Head Teacher of Sh. Duni Chand is annexed and the same is marked as Annexure R-1. However, as per the attendance register of the school the respondent No.4 Smt. Phoona Devi had been shown working as Part Time Water Carrier from sept/1997. The copy of the attendance register for the month of September and Oct/ 1997 showing this fact is annexed and the same is marked as Annexure R/2 & 3 respectively and the annexure R/1 is also signed by Sh. Duni Chand Head Teacher. But there is no record in the school that the applicant was being working in the said school since 1995 which is show in annexure A/1 i.e. the certificate of experience issued by Head Teacher and the Pradhan Gram Panchayat Naura and annexure A/3 issued by the same Pradhan does not prove any truth without any record of the school as per the entry in the attendance register of the school. 4. It is further submitted that the applicant vide order dated 20.1.1997 i.e. annexure A/5 was appointed as Part Time Water Carrier in the said school. However, :: 3 :: she did not join her duties in the school. Thereafter a fresh selection was made by the selection committee duly constituted for the purpose and the selection committee selected the Respondent No.4 Part Time Water Carrier and on the recommendation of the selection committee respondent No.4 was appointed as Part Time Water Carrier in the school and the name of the applicant was kept in waiting list which is clear from the copy of the selection list duly supplied by the BDO Bhawanara. The copy of the same is also annexed and is marked as Annexure R/IV.” 4. In yet another supplementary affidavit filed on dated 16th May, 2007 the stand on behalf of respondent No. 1 to 3 vide para 2 is to the following effect :- “ That in this regard it is submitted that as per the information provided by the BEEO Bhawarana he has stated that the applicant did not work as honarary Part Time Water Carrier in GPS Thalial, P.O Naura Tehsil, Palampur, District Kangra (H.P) prior to the issuance of the appointment order of Part Time Water Carrier by the District Pry Eduction Officer, Kangra on dated 20.1.1997 i.e. Annexure A/5 as such the appointment order was not given to the applicant in view of the condition laid down by the District Pry Education Officer, Kangra while forwarding the letter dated 20.1.97 to the BPEO Bhawarana i.e. Sr. No.3 in which it has specifically been made clear that if any candidate is working for more than two years and above the appointment may not be given and the matter may be sent back for further directions. In this regard, it is further submitted that one Smt. Phoolan Devi was already working on honarary basis in the school for more than two years that is why the appointment was not given to the applicant. However, it is further submitted that the selection process was also followed by the replying respondent for the post of Part Time Water Carrier for the school but the appointment was offered to the Smt. PhoolanDevi (respondent No.4) by giving her priority as she was already working on the school on honorary basis for which selection process was followed. The copy of the same has already been annexed with the supplementary affidavit filed earlier in view of this Hon'ble Tribunal order dated 20.12.2004. Hence, the present OA deserves to be dismissed on this score alone.” 5. In view of the above, it is manifest that self contradictory stands have been taken on behalf of respondents No.1 to 3. However, the fact :: 4 :: remains that it was the petitioner who was first appointed as Water Carrier in Government Primary School, Thalial, vide office order dated 20.1.1997, Annexure A-5. A perusal of this document would go to show that there is a hand written endorsement on the same at the left side margin on the top to the effect that “All the Applications have been sent to SDM, Palampur for scrutiny” signed by BPEO, Bhawanara and is dated 12.2.1997. However, the stand taken on behalf of respondents No. 1 to 3 is that since the petitioner failed to join duty, private respondent No.4 was appointed in her place. However, there is no documentary proof in support of this assertion either in the nature of a notice issued to the petitioner intimating that since she had failed to join, appointment would be offered to the next candidate or any other official communication to this effect. 6. In view of what has been stated hereinabove, it is apparent that the petitioner who was duly selected for appointment as Water Carrier was left out and in her place private respondent No.4 was given appointment. However, it is stated at the bar that private respondent No.4 who has since been regularized in service is going to retire on attaining the age of superannuation on and w.e.f. 31.12.2010. 7. In view of the above, the petition is allowed with a direction to respondents No.1 to 3/competent authority to consider the case of the petitioner for appointment as Part Time Water Carrier in Government primary School, Thalial, on and w.e.f. 1.1.2011 against the likely vacancy arising out of retirement of private respondent No.4, along with consequential benefits, if any, in accordance with law and justice. :: 5 :: 8. In view of the above, the petition stands disposed of, so also the pending CMP(s), if any. (V.K. Sharma) Judge 14th December, 2010 CS