IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No. 2355 of 2011 Date of decision: 07.07.2011 ________________________________________________________________ Laxmi Devi. .....Petitioners. Versus State of H.P. & 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? ________________________________________________________________ For the petitioners: Mr. Lalit K. Sharma, Advocate. For the respondent: Mr. R.K. Bawa, AG with Mr. Ankush Dass Sood and Mr. J.K. Verma, Dy. AG, for respondent No. 1. Mr. Virender S. Chauhan, Advocate, for respondent No. 2. V.K. Sharma, J. (Oral) The petition has been filed on the following prayers: “(i) That the impugned office order dated 18.3.2011 Annexure P-7 passed by the respondent No. 2 may kindly by set-aside and quashed and the respondents may be directed to allow the petitioner to continue to work as a Cook in Anganwari Workers Training Centre, Rasmain, Sundernagar, District Mandi unless she is being replaced by the regular appointee. (ii) That the appointment of respondent No. 4 as Cook in Anganwari Workers Training Centre, Rasmain, Sundernagar may kindly be set-aside and quashed.” 1 Whether reporters of Local Papers may be allowed to see the judgment? ...2... 2. In reply, respondent No. 2 has taken the following stand vide para 3 of the preliminary submissions: “3. That the present petition is not maintainable in the present from. It is submitted that it is crystal clear from the perusal of Annexure P-2 and Annexure P-3 that the appointment of the petitioner was purely on contract basis for six months only. It has been clearly mentioned in Annexure P-2 that vacancy, against which the petitioner was appointed, was purely temporary and the services of the petitioner were liable to be terminated at any time without issuing any notice and assigning any reason thereof. It is further submitted that services of the petitioner were engaged for specific period with effect from 17th June, 2009 to 28th February, 2010, however, due to stay granted by this Hon'ble Court the petitioner remained in service till 25th March, 2011. It is further submitted that the petitioner had duly signed the agreement dated 17.06.2009 with respect to her appointment and accepted all the terms and conditions laid down therein including the condition of period of service, hence the petitioner is estopped from challenging the impugned order due to her own acts and deeds. It is worthwhile to submit that post of the cook requires special skill and on such post the only criteria for appointment is merit. It is further submitted that post of the cook was advertised vide advertisement No. 327/09, annexed as Annexure A-2 with petition, with certain terms and conditions mentioned therein. The petitioner also applied for the said post but did not fulfill the requirement as mentioned in the advertisement. It is submitted that the present respondent No. 4 being the most eligible candidate was selected and appointed against the post on contract basis. As has been held by the Hon'ble Supreme Court in case titled as “State of U.P. And another versus Ram Adhar” 2009(1) Apex Court Judgments 562, that a person appointed on temporary capacity has no right to continue till regular ...3... selection rather legal position is that a temporary employee has no right to the post. In view of the settled law and also the admission of the petitioner through agreement, petitioner is not entitled for any kind of relief from this Hon'ble Court, hence the petition is liable to be dismissed.” 3. Vide Office Order dated 10.06.2009, Annexure P-2, the petitioner was appointed as Cook on contract basis for a period of six months at Anganwadi Workers Training Centre, Rasmaie, Tehsil Sundernagar, District Mandi, on a fixed honorarium of ` 500/- per month. The requisite agreement, Ex. P-3, was executed by her on 17.06.2009. However, according to her, later on, her services were orally terminated by respondent No. 3 on 17.12.2009 stating that respondent No. 4 has been engaged in her place. Being aggrieved, the petitioners filed CWP No. 17 of 2010, Laxmi Devi vs. State of Himachal Pradesh and others in this Court, which was disposed of vide judgment dated 08.12.2010, text whereof is as follows: “CMP No. 11181 of 2010 This is a petition to recall the judgment in CWP No. 17 of 2010. The said writ petition was disposed of alongwith a batch of other matters pertaining to Anganwari Workers by a common judgment dated 12.8.2010. But the case of the petitioner is different in the sense that she has been working as a Cook at Anganwari Training Centre, Rasmain, Sundernagar, District Mandi and that her appointment is made by the Child Welfare Council. Therefore, this matter practically has nothing to do with the issue referred to in the common judgment. In view of the inadvertent mistake, as above, the application is allowed and the judgment dated 12.8.2010 passed in CWP No. 17 of 2010 is recalled. CWP No.17 of 2010: 2. The issue raised in this writ petition pertains to the appointment and continuance of a Cook at Anganwari Training Centre, Rasmain, Sundernagar, ...4... District Mandi. We are informed that both the petitioner and the fourth respondent were engaged on contract basis and that engagement is by the second respondent. Therefore, we are of the view that in case there is any dispute with regard to the issue, the matter should be resolved by the second respondent with a notice to the parties. 3. Therefore, this writ petition is disposed of directing the second respondent to look into the grievance of the petitioner and the fourth respondent, after affording an opportunity of hearing to the petitioner and the fourth respondent and also the third respondent-Principal. Appropriate orders in accordance with law and justice in the matter as above shall be passed by the second respondent within a month from the date of the production of a copy of this judgment by either party. Till orders as above are passed, the arrangement, as on today, will continue.” 4. In compliance of the above direction issued vide judgment dated 08.12.2010 in CWP No. 17 of 2010, the matter was considered by respondent No. 2, who passed order dated 18.03.2011, which reads as under: “The Hon'ble High Court of Himachal Pradesh while disposing of the Civil Writ Petition No. 17 of 2010 titled Smt. Laxmi Devi vs. State of H.P. and others has directed as under:- “Therefore, this Writ Petition is disposed of directing the Second Respondent to look into the grievance of the Petition and the Fourth Respondent, after affording an opportunity of hearing to the Petitioner and the Fourth Respondent and also the Third Respondent-Principal. Appropriate orders in accordance with law and justice in the matter as above shall be passed by the Second respondent within a month from the date of the production of a copy of this judgment by either party. Till orders as above are passed, the arrangement, as on today, will continue.” In pursuance of the Orders of the Hon'ble High Court of Himachal Pradesh, the Petitioner Smt. Laxmi Devi, Respondent No. 3 i.e. Principal of the Institute and Respondent No. 4 i.e. Shri Narotam Ram were ...5... issued notice vide letter No. CWP No. 17/2010/HPHCC@-6158 to 6160 dated 22nd February, 2011, requesting them to appear before the undersigned on 28th February, 2011 for personal hearing, so that their grievances if any, particularly that of the Petitioner could be looked into. The Petitioner Smt. Laxmi Devi was informed in detail by the undersigned regarding appointment of Respondent No. 4. She was told that the Council has adopted the proper and transparent procedure to fill up the post of Cook, which was advertised on 5th September, 2009 clearly mentioning the requisite qualification and experience. The Petitioner was informed that she was not selected as she did not having the requisite experience at the time of interview and this was the sole reason for her non-selection. She was also informed that the Respondent No. 4 was appointed purely on merit basis as he was having the requisite qualification & experience. There is only one sanctioned post of Cook. It will not be feasible and possible for the Respondent Council to allow two persons to work against one post. Also it will be illegal and unjust to terminate the services of Respondent No. 4, who was appointed after adopting proper procedure. However, the Petitioner was told that the Council is sympathetic towards her concerns and will make all qualification & experience. The Petitioner was asked to give her written consent in this behalf. Her consent was received in this Office on 08th March, 2011,wherein she has reiterated that she only wants to work at Rasmaie, Distt. Mandi as Cook. Other grievances mentioned in the petition were not found correct. Therefore, keeping in view the facts and circumstances of the instant case, the contents and grievances raised by the petitioner are dis-allowed in the interest of natural justice and fair play. The part time services of Smt. Laxmi Devi, Petitioner as Cook are terminated with effect from 25th March, 2011.” ...6... 5. As per Office Order dated 10.06.2009, Annexure P-2, contractual appointment of the petitioner was for a period of six months, i.e., up to 10.12.2009. However, since the requisite agreement was executed by her on 17.06.2009, in any case the term of her appointment can be taken to be up to 17.12.2009. It appears that in the meantime fresh process for appointment to the post was initiated by way of an advertisement notice, photocopy whereof has been brought on record by the petitioner. Consequently, respondent No. 4 was appointed as Cook vide Office Order dated 23.12.2009, that is, after expiry of the period of contractual appointment of the petitioner. A perusal of copy of result sheet and the proceedings of the Interview Committee, obtained by the petitioner under the Right to Information Act and placed on record, would go to show that she had also participated in the fresh process, but could not be selected as her score in the personal interview was far below the performance of respondent No. 4, who was ultimately selected. 6. Order dated 18.03.2011, Annexure P-7, passed by respondent No. 2, in pursuance of judgment dated 08.12.2010 in CWP No. 17 of 2010, which stands already extracted hereinabove, specifically records as under: “However, the Petitioner was told that the Council is sympathetic towards her concerns and will make all qualification & experience. The Petitioner was asked to give her written consent in this behalf. Her consent was received in this Office on 08th March, 2011,wherein she has reiterated that she only wants to work at ...7... Rasmaie, Distt. Mandi as Cook.” 7. In view of the above stand on behalf of the respondent- Council, the petition is disposed of with a direction to respondent No. 2 to consider the case of the petitioner for appointment as Cook against the first available vacancy that may arise in future in any establishment under its control in Sub Division Sundernagar, District Mandi, on preferential basis in accordance with law. 8. The petition is disposed of in the above terms, so also pending application(s), if any. (Justice Kurian Joseph) Chief Justice (Justice V.K. Sharma) Judge 7th July, 2011 (virender) V.K. Sharma, J.