IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.559 of 2004 Decided on : May 22, 2009 Bhim Sen …Petitioner. Versus Kailash Thakur and another …Respondents. Coram The Hon’ble Mr. R.B. Misra, Judge. The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Petitioner : Mr. B.B. Vaid, Advocate. For the Respondents : Mr. Rakesh Jaswal, Advocate, for respondent No.1. Mr. P.K. Sharma, Additional Advocate General, with Mr. P.M. Negi, Deputy Advocate General, and Mr. R.P. Singh, Assistant Advocate General, for respondents No.2 to 4. Per Surjit Singh, J (Oral) Petitioner Bhim Sen seeks judicial review of order dated 2nd July, 2004, passed by the then H.P. State Administrative Tribunal, in Original Application No.2291 of 2002, instituted by respondent Kailash Thakur, challenging the appointment of the petitioner, as Vidya Upasak, whereby the appointment of the petitioner has been quashed and respondent Kailash Thakur has been ordered to be appointed as Vidya Upasak, in place of the petitioner. 2. There used to be a scheme for appointment of Vidya Upasaks. The scheme was formulated by the State of Himachal Pradesh. In accordance with that scheme, one post of Vidya Whether reporters of the local papers may be allowed to see the judgment? …2… Upasak, in Government Primary School, Birni, Education Block Kullu, was sought to be filled up. Applications were invited. Twelve candidates, including the present petitioner and respondent Kailash Thakur, applied for the post. A committee, headed by SDO(C) of the concerned area made the selection. 50 marks were reserved for educational qualification and out of the remaining 50 marks, 10 marks were reserved for higher education, 5 marks for diploma, 10 marks for the place of residence of the candidate, 5 marks for SC/ST status, 5 marks for OBC status, 3 marks for physically handicapped persons, 2 marks for the persons belonging to IRDP families and 10 marks for viva-voce. Respondent No.1 Kailash Thakur claimed that he, being a Graduate, was ignored while the present petitioner, who was just 10+2 pass, was selected by being awarded the highest marks in viva-voce. 3. Petitioner filed reply, claiming that his score was the highest. Other respondents, i.e. the State of Himachal Pradesh and its functionaries, also took the plea that the selection was made on merit and the petitioner, having scored the highest marks, had been appointed. 4. Learned Tribunal allowed the Original Application of respondent Kailash Thakur, mainly for the reason that while respondent Kailash Thakur was awarded only a fraction of one mark, i.e. 0.8 mark, out of 10 marks, petitioner, who was only 10+2 pass, had been awarded 10 out of 10 marks. 5. We have gone through the comparative chart of the marks awarded to the candidates, under various heads. We find …3… that had the petitioner not been awarded 10 out of 10 marks, in viva-voce, he would not have been selected, because there was another candidate, namely Vijay Kumar, who had been awarded only 4 marks in viva-voce, but his total score was 42.35 marks, whereas petitioner’s total score, with the addition of 10 out of 10 marks, for viva-voce, was 42.87. That demonstrates that the petitioner was given 10 out of 10 marks only to bring him above other candidates, especially the candidate, named Vijay Kumar, whose total score was 42.35 marks, with just 4 out of 10 marks for viva-voce. This speaks volumes, so far as the allegation of bias is concerned. Therefore, we see no merit in the claim of the petitioner for his re-appointment as Vidya Upasak, after setting aside the order of the Tribunal. 6. However, we find that the Tribunal has directed the appointment of respondent Kailash Thakur, as Viday Upasak, after setting aside the appointment of the petitioner. We have been told that respondent Kailash Thakur, in compliance with the impugned order of the Tribunal, had been appointed in 2004 and is continuing as such ever since. 7. Comparative chart of merit, reproduced in the order of the Tribunal, shows that there were two other candidates, i.e. Vijay Kumar and Kamla Thakur, whose score was higher than that of respondent Kailash Thakur. Respondent Kailash Thakur was placed at number-4 in order of merit. Therefore, the Tribunal was not right in directing respondents No.2 to 4 to give appointment to Kailash Thakur, in place of the petitioner. …4… 8. Learned counsel says that since Kailash Thakur has been working for the last five years, his appointment may not be upset, at this belated stage. We are not convinced by the submission, for the simple reason that his appointment is only because of erroneous order of the Tribunal, which is based on the mistaken impression that he was next in order of merit and, hence, entitled to be appointed. Equity does not arise in favour of a person illegally appointed to a public post, on account of some erroneous order or direction by the Court or a Tribunal. 9. We have been told that now the scheme of appointment of Vidya Upasaks has been scrapped and new schemes are there, under which teachers are appointed, on contract basis, or on fixed amount of money. 10. In view of the abovestated position, we allow the present writ petition and partly set aside the order of the Tribunal, to the extent it directs the appointment of respondent Kailash Thakur as Vidya Upasak. The consequence of this order of ours is that respondent Kailash Thakur will cease to be a Vidya Upasak, with immediate effect and the post of teacher thus falling vacant, shall be filled up, in accordance with one of the prevailing schemes for appointment of teachers. Writ petition stands disposed of. ( R.B. Misra ), J. May 22, 2009(sd) ( Surjit Singh ), J.