IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 10161/2008 Reserved on: 29.7.2011 Decided on: 5.8. 2011 _____________________________________________ Devi Singh. …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 : Mr. Lalit K. Sharma, Advocate. For the Respondent: Mr. R.P. Singh, Asstt. A.G. for respondents No. 1 to 3. Mr. Sanjeev Kuthiala and Ms. Ambika Kotwal, Advocates for respondent No.4. ____________________________________________________ Justice Rajiv Sharma, Judge. Petitioner submitted an application for considering his candidature for appointment as Part Time Water Carrier in Government Primary School, Baag. Case of the petitioner was favourably considered and recommended by the competent authority, which led to issuance of Annexure A-3 dated 12.4.2002. However, the petitioner was not offered appointment and in the 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 meantime process was initiated for filling up the post by issuing fresh advertisement dated 7.6.2002. Petitioner submitted an application and he was interviewed alongwith other candidates on 12.7.2002. Petitioner approached the learned erstwhile Himachal Pradesh Tribunal seeking redressal of his grievance by way of O.A. No.1539/2002. Case of the petitioner, in a nutshell, was that he should be offered appointment on the basis of Annexure A-3 dated 12.4.2002 and that the post be not filled up on the basis of interview held on 12.7.2002. The Tribunal passed interim order in favour of the petitioner on 31.7.2002. It is evident from Annexure A-7 that Deputy Director of Primary Education has informed the Block Primary Education Officer, Sundernagar-II that the petitioner could not be offered appointment due to official mistake and the case be put up to the higher authorities for obtaining approval to appoint him as Part Time Water Carrier. However, surprisingly despite the interim order dated 31.7.2002, respondent No.4 was permitted to join his duties on 17.2.2003 pursuant to his selection on the basis of interview dated 12.7.2002. Petitioner on the basis of Annexure A-7 withdrew the original application on 3.11.2003 and the interim order dated 31.7.2002 3 was vacated. Respondent No.3 has also taken up the case of the petitioner with the respondent No.2 as per the pleadings on 12.12.2003 followed by reminder dated 23.12.2003. 2. Mr. Lalit K. Sharma has strenuously argued that the action of respondents No.1 and 3 of not offering appointment to the petitioner and initiating fresh selection process to the post of Part Time Water Carrier is illegal, arbitrary and thus violative of Articles 14 and 16 of the Constitution of India. He then contended that respondent No.4 has been permitted to join his duties despite the stay order dated 31.7.2002 granted by the erstwhile Tribunal. 3. Mr. R.P. Singh, learned Assistant Advocate General has vehemently argued that the appointment of the petitioner could not be made since he was not eligible as per clause 12 of the Scheme. He then contended that respondent No.4 has been found suitable pursuant to interview held on 12.7.2002. Mr. Sanjeev Kuthiala has argued that the appointment of respondent No.4 is in accordance with law. 4. I have heard the learned counsel for the parties and have perused the record carefully. 4 5. It is evident from the record that the petitioner has been issued appointment letter on 19.4.2002 under clause 12 of the Scheme. In all fairness, he should have been permitted to join his duties. Surprisingly, though the process had already culminated in view of Annexure A-3, respondent-State initiated fresh selection process by issuing advertisement on 7.6.2002 and the interviews were held on 12.7.2002. Respondent No.4, who was selected as Part Time Water Carrier, was permitted to join her duties despite the interim stay dated 31.7.2002. It is evident from Annexure A-7 that the appointment could not be offered due to some official mistake. In case the mistake has been admitted there was no reason why the petitioner has not been appointed pursuant to Annexure A-3 instead of permitting respondent No.4 to join her duties on 17.2.2003. Respondent-State was also directed to file supplementary affidavit how the case of the petitioner was recommended under clause 12. It is stated that the case of the petitioner for appointment as Part Time Water Carrier in Government Primary School, Baag was received from the competent authority with a rider “if in order”. It was not the case of the respondent- State initially at the time when the reply was filed by it 5 to the original application. Rather, as per reply, it was admitted that the petitioner could not be offered appointment due to official mistake. 6. In view of the observations and discussions made hereinabove, respondent-State ought to have permitted the petitioner to join his duties as Part Time Water Carrier pursuant to Annexure A-3 instead of permitting respondent No.4 to join her duties as Part Time Water Carrier in Government Primary School, Baag. There is no reason assigned in the reply why the process initiated, which had led to the recommendation of case of the petitioner vide Annexure A-3, has been scuttled and fresh process has been initiated. It is settled law by now that once the selection process is initiated, the same should be continued and the rules of the game cannot be changed midway. Petitioner had legitimate right to be appointed as Part Time Water Carrier, as per Annexure A-3 dated 12.4.2002. 7. It has come in the reply that the case of the petitioner can be considered for appointment as Part Time Water Carrier in any school where the post is lying vacant and the same is possible only on the approval of the Government. In normal circumstances, appointment of respondent No.4 was liable to be quashed, however, 6 taking into consideration that respondent No.4 also belongs to lower strata of society and continuing since 17.3.2002, her appointment is not disturbed. 8. Accordingly, the petition is disposed of with a direction to the respondents No.1 to 3 to consider the petitioner for appointment as Part Time Water Carrier in any school where the post is lying vacant in Sundernagar Block or adjoining block within a period of six weeks from the date of production of certified copy of this judgment. The petitioner shall be entitled to seniority from the date respondent No.4 was appointed. However, she is not entitled to back wages etc. No costs. (Justice Rajiv Sharma), Judge 5.8. 2011 *awasthi*