IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 999 of 2011 Decided on: 29.6.2011 Kanta Devi …..Petitioner Versus Director, Elementary Education and others .... Respondents Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 No. For the petitioner : Mr. Anuj Gupta, Advocate. For the respondents : Mr. Ankush Dass Sood, Addl. A.G. and Mr. J.K. Verma, Dy.A.G. for respondent No. 1. Mr. B. Nandan Vasishta, Advocate, for respondent No.2. Mr. Neel Kamal Sood, Advocate, for respondent No.3. Justice V.K. Sharma, Judge (oral). The petitioner has averred as under vide paras 2 to 6 of the petition:- “2. That in the year 2004, mid day meal scheme was introduced in the State of H.P. by the Respondents. The petitioner was appointed as Cook under the said scheme, on 1st Sept, 2005 as Cum Helper (Mid day Meal Worker) in Govt. Primary School, Koela, 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 P.O. Pallar, Tehsil Sangrah, District Sirmaur and she had been working as such till her illegal termination by Respondent No.2 on 8-4-2010. 3. That as a matter of fact, one Smt. Subhadra wife of Sh. Kamaldev had also been appointed as a Cook cum helper, in the Govt. Primary School Koela, alongwith the petitioner in September, 2005. Both of them joined their duties on the same date. The said Smt. Subhadra Devi, thereafter got appointed as Anganwadi Worker in Koela Block and she left her services as a mid day meal worker in July, 2007. 4. That thereafter Respondent No.3, was appointed as mid day meal worker in the place of Smt. Subhadra Devi, and she had been working as such till date. 4. That on 14th January, 2010 the state of H.P. issued some clarifications with respect to mid day meal workers working in different schools in the state of H.P. The said clarifications were notified to the Headmasters of the Schools, vide letter dated 29.4.2010. Copy of circular/letter dated 29.4.2010 is filed herewith as Ann. P-1. Vide the said clarification, the state govt had proposed to reduce the number of Mid day Meal workers, depending on the strength of the students at various schools. It was notified to all the Deputy Directors Concerned that “in such cases where cook-cum helper is becoming surplus due to the new norms of revised 3 enrolment slab, then the person appointed on later date may be relieved off his duties on the principle of last come first go. 5. That as submitted above, the petitioner was the senior most amongst the persons employed in the Govt Primary School, Koela while Respondent No.3, having been appointed in the place of Smt. Subhadra Devi, in the year 2007 was certainly junior to the petitioner. It is worthwhile to submit here that prior to the termination of the services of the petitioner, only two persons i.e the petitioner and respondent No.3, were working under the Mid day meal scheme at Government Primary School, Koela. On account of the clarification of the Govt, one person out of the two, was required to be removed on the basis of the strength of students in the School. As per policy, the petitioner who had been working in the School ever since Sept, 2005, was senior to Respondent No.3, and ought to have been retained as Cook-cum-Helper. However the Respondent No.2, has wrongly and illegally retained the services of Respondent No.3, while the services of the petitioner has been terminated orally. 6. That the petitioner represented to the District Magistrate, to undo the wrong done to her and to reinstate her in services and to act in accordance with the mandate of the policy. However no action was taken by the said authority on the representation of the 4 petitioner. Copy of the representation made to the District Magistrate is filed herewith as Ann P-2. Similarly, the residents of village Koela also represented to Deputy Director, Primary Education about the illegal acts of the School Management Committee vide their representation dated 25-6-2010, however again no action had been taken by the said authority. A copy of termination order dated 22-4-2010 is filed herewith as Ann-P-3 while a copy of experience certificate issued by the Pradhan Gram Panchayat, Koela is also filed herewith as Ann-P-4.” 2. On the above averments, the following relief is prayer for:- “That the termination dated 8-4-2011 of the petitioner, from the post of Cook Cum Helper at Govt. Primary School, Koela may be declared arbitrary, illegal and unconstitutional, and the petitioner be held entitled to reinstatement.” 3. There are no replies as yet. 4. On 7.3.2011, the following order was passed by this court in this matter:- “Notice dasti to the second respondent. No notice at this stage need be issued to the third respondent. The second respondent will explain as to whether the petitioner is senior to the third respondent. Competent Officer with records will be present before this Court on 29th March, 2011.” 5 5. In sequence to the above order dated 7.3.2011, the records were made available and on perusal of the same the following order came to be passed on 29.3.2011:- “Heard. In reference to the order dated 7.3.2011, Shri Balbir Singh, Gramin Vidya Upasak, deployed in Government Primary School, Paloila, is present before this Court along with records. Fresh dasti notice be issued to respondent No.3 in addition to usual service. 2. The register produced before us reveals that a meeting of Committee of Government Primary School, Paloila was conducted under the Chairmanship of Jai Gopal Sharma, wherein it was decided that both Smt. Subhadra and Smt. Kanta Devi would prepare the mid-day-meal in the said School. Such resolution was signed by Jai Gopal Sharma, Chairman, Kamal Dev and Rattan Singh and also signed by the Central Chief. In a subsequent resolution/meeting dated 31.8.2007 under the Chairmanship of Ram Dass, Pardhan Gram Panchayat, it was resolved that the work of cooking shall be done both by Smt. Surekha Devi and Smt. Kanta Devi. From the resolution dated 31.8.2007 it appears that Subhadra appointed earlier as a Cook-cum- Helper was subsequently selected as Anganwari Assistant, as such, Smt. Surekha Devi was appointed afresh as Cook-cum- Helper. Later on Smt. Surekha Devi has been placed in meeting dated 31.8.2007 at Sr. No.1 6 without any rhyme or reason. The register reveals that Kanta Devi has been appointed as Cook-cum-Helper before Smt. Surekha Devi. These registers shall also be made available on next date of hearing. 3. Second register reveals that a meeting was conducted on 8.4.2010 and it was resolved that in its earlier meeting/resolution dated 31.3.2010 all the items were not taken up, therefore, those left over items were to be taken up on 8.4.2010. All the members present, therefore, had decided that Smt. Surekha Devi shall be kept as Cook-cum-Helper for preparing the mid day meal in the School. This resolution has to be examined as the same is in conflict with circular dated 29.4.2010. As per the circular dated 29.4.2010, clarification has been given regarding deployment of Mid Day Meal workers in Primary & upper Primary Schools under MSM Scheme. As per Government of India’s new norms, it appears that the cases where Cook-cum-Helper is becoming surplus as per revised enrolment slab, then the person appointed on later date may be relieved off his duties on the principle of “Last come first go”. Such direction was issued vide circular dated 29.4.2010 to the field offices making the School Development Management Committee (SDMC), responsible for implementation of ‘MDM’. The circular dated 29.4.2010 also indicates that the Anganwari worker and water carrier, performing the additional duties of Cook-cum- 7 Helper have to give their option either to perform duties of Anganwari worker/water carrier or Cook-cum-Helper under ‘MDM’ scheme and they may be assigned duties as per option exercised by them and in no case, the Anganwari worker/water carrier is not to be assigned/given additional duties of Cook- cum-Helper under MDM Scheme. 4. It appears from the records that Kanta Devi was appointed earlier to Smt. Surekha Devi. However, before passing any order in the present writ petition, the respondent No.3 is to be heard. List on 26.4.2011. Copy dasti.” 6. Today the learned Addl. Advocate General has filed communication dated 25.3.2011, by way of instructions received by the learned Advocate General, Himachal Pradesh, from respondent No.1-Director, Elementary Education:- “Kindly refer to your letter No. CWP 999/2011-6703 dated 09.03.2011 on the subject cited above vide which it has been informed that the case was listed on 7.3.2011 when the Hon’ble Court has directed the respondents to explain whether the petitioner is senior to respondent No.3 or not. In this regard it is submitted that as per the information received from the Deputy Director of Elementary Education, Sirmour, the petitioner i.e Smt. Kanta as per record 8 is senior to the respondent No.3 i.e Smt. Surekha Devi. Hence, the Hon’ble Court may be apprised accordingly please.” 7. Thus, it is manifest that petitioner Smt. Kanta Devi is admittedly senior to the private respondent, Smt. Surekha Devi. It being so, in view of the latest Govt. of India norms circulated vide letter dated 29.4.2010, Annexure P-1, the former deserved to be retained as Cook-cum-Helper in preference to the latter, on the principle of ‘last come first go’. 8. In view of the above, order of termination of the petitioner dated 8.4.2011, as Cook-cum-Helper in Govt. Primary School,Koela, Tehsil Sangrah, Distt. Sirmaur, is quashed, with a direction to respondents No. 1 and 2/competent authority to reinstate the petitioner forthwith in place of respondent No.3. 9. The writ petition, so also the pending application(s), if any, stand disposed of in the above terms. (Justice Kurian Joseph), Chief Justice (Justice V.K. Sharma) Judge. June 29, 2011 (LSP)