IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 546 of 2011 Decided on: 06.09.2011 Minakshi Kapoor …Petitioner. Versus State of H.P. & others …Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the petitioner: Mr. Rajesh Kumar, Advocate. For the respondents: Mr. Vivek Singh Thakur, Additional Advocate General, for respondents No. 1 to 3. Mr. Lalit Kumar Sharma, Advocate, for respondent No. 4. Deepak Gupta, J. (Oral) The petitioner, by means of this petition, has challenged the order of transfer dated 31st January, 2011, whereby the petitioner, who is Lecturer (Hindi) at Government Senior Secondary School, Gagal (Mandi) has been transferred / adjusted at Government Senior Secondary School Mandap (Mandi). 2. The undisputed facts are that the petitioner is a regularly appointed teacher and was appointed as TGT (Arts) on 07.05.1999. On 26.02.2007, one Shri Ashwani Kumar was 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. -: 2 :- transferred from Government Senior Secondary School Gagal, Mandi and on the same day, i.e., on 26.02.2007, respondent No. 4, Smt. Yashima Kumari Rana, was appointed in his place on PTA basis. The appointment of respondent No. 4 was challenged by a number of persons and a complaint was filed before the Deputy Commissioner, Mandi, on the grounds that no advertisement had been issued and no interviews were held. This is apparent from the fact that respondent No. 4 had been appointed on the same date when Shri Ashwani Kumar was transferred from the Government Senior Secondary School Gagal. The Inquiry Committee actually found that there is no record of any advertisement having been issued prior to the appointment of respondent No. 4. It also found that no opportunity was afforded to other eligible candidates for being appointed to the said post. The Committee, therefore, came to the conclusion that no proper procedure had been followed and hence, the appointment of Smt. Yashima Kumari Rana was set aside. 3. Thereafter, Smt. Yashima Kumari Rana filed CWP No. 998 of 2009 and alongwith the writ petition, an application for stay was filed, in which the following order was passed: “........... Respondents No. 1 to 4 may file reply within two weeks. In the meanwhile, petitioner shall be allowed to continue as PTA teacher, in case nobody has been appointed in his place against the post of PTA Lecturer (Hindi), from which post he has been removed by the impugned order. This order is, however, subject to the condition that the petitioner can be replaced by a regular teacher.” 4. A perusal of this order clearly shows that though the disengagement of Smt. Yashima Kumari Rana was stayed, it was -: 3 :- made clear that she could be replaced by a regular teacher. When the matter came up for hearing before a Division Bench of this Court on 28th May, 2010, learned counsel for Smt. Yashima Kumari Rana withdrew the writ petition without prejudice to his liberty to file a fresh petition. Thereafter, Smt. Yashima Kumari Rana filed another petition being CWP No. 2875 of 2010 and this was listed before a Division Bench of this Court on 02.06.2010. Though, in the petition a reference to the earlier petition was made but true facts were not set out. In the meantime, the petitioner, Smt. Minakshi Kapoor, was transferred to GSSS Gagal vide order dated 25th June, 2009. Obviously, in view of the clear cut orders passed by this Court in the earlier writ petition filed by Smt. Yashima Kumari Rana, she could be replaced by the regular teacher appointed in her place. She did not bring this fact to the notice of the Court when she withdrew the petition and in the subsequent petition, she did not even inform the Court that, in fact, her earlier petition was directed against the report of the Inquiry Committee, wherein her services had been terminated. In this second petition, she tried to portray that she was a PTA teacher being replaced by a regular teacher. In these circumstances, this Court passed a direction that the petitioner may be adjusted at some other post, if available. 5. It would be pertinent to mention that the Division Bench of this Court was not apprised of the fact that the appointment of Smt. Yashima Kumari Rana had been set aside on the ground that it had not been advertised and she was basically a -: 4 :- back door entrant even to a post of PTA teacher. The deputy Commissioner, however, held that he was not entitled to decide this issue and after making his comments stated that the order be sent to the Deputy Director (Higher Education) for appropriate orders. 6. The present petitioner, Smt. Minakshi Kapoor, also filed CWP No. 7996 of 2010 before this Court bringing to the notice of this Court the entire facts and thereafter, the dispute between both the parties was referred to the Director Higher Education, who passed the impugned order. 7. From the facts narrated above, it is apparent that Smt. Yashima Kumari Rana was not properly appointed to the post of PTA teacher as her appointment was made without issuing any advertisement and following the proper procedure of selection. She withdrew her earlier petition and filed a new petition without disclosing to the Court that in the earlier petition, she had challenged the order holding that her appointment was invalid. The Division Bench of this Court passed the orders under the impression that she had been validly appointed as PTA teacher and, thereafter, the Director of Higher Education, notwithstanding the fact that Smt. Minakshi Kapoor had been working at Gagal, transferred her and ordered that she be adjusted that GSSS Mandap and permitted Smt. Yashima Kumari Rana to continue at GSSS Gagal. 8. This Court in CWP No. 20 of 2011, after discussing the entire law, held as follows: -: 5 :- “9. I may also add that the interest of the students has to be kept uppermost in mind. Even where PTA teachers are duly qualified they have not been selected after following a proper method of selection and their appointments by the Parents Teacher Association is on a stop gap basis only to fill up the temporary vacancies. The regular teachers on the other hand are appointed on the basis of written tests and interviews conducted by the Department or the Public Service Commission or by the Subordinate Selection Board. Nothing prevents the teachers appointed on PTA basis from applying for these posts. Once people are appointed on regular basis after passing a test a presumption arises that they are more competent than teachers who have not been selected. Why should the students who are studying in the schools where PTA teachers appointed be deprived of having the benefit of regularly appointed teachers who will necessarily have all the essential qualifications and would be better suited to teach the children? The inconvenience of the teachers appointed on PTA basis cannot be a ground to set at naught the fundamental right of education which the children have under Article 21-A of the Constitution of India. 10. It has been urged before this Court that the petitioner who is regular teacher may be adjusted somewhere else and respondent No.4 who has been appointed on PTA basis may be permitted to continue. This Court is not to run the administration. The Apex Court time and again has laid down the law that the Courts should not interfere in administrative matters and that transfer orders should not be lightly interfered with unless they are actuated by mala fides or are arbitrary. 11. When a regular hand is appointed he has to be posted somewhere. It is for the Department to decide at which place such a person should be posted and once he has been posted, a teacher working on a stop gap arrangement as under the PTA scheme, cannot claim that the said teacher should not be disturbed.” 9. In the present case, even the appointment of Smt. Yashima Kumari Rana was totally illegal and against the PTA scheme. How can she claim any right over the petitioner, who is a regularly appointed teacher. Smt. Yashima Kumari Rana is also found guilty of trying to mislead the Court. Therefore, the present -: 6 :- writ petition is allowed and the appointment of Smt. Yashima Kumari Rana as PTA teacher is quashed and set aside and the petitioner shall be permitted to continue at Gagal. Smt. Yashima Kumari Rana is also held liable to pay costs of 20,000/- to Smt. Minakshi Kapoor. 10. The writ petition is allowed in the aforesaid terms. (Deepak Gupta) Judge September 06, 2011 (rajni)