IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP(T) No. 16283 of 2008 Date of Decision : November 1, 2010 Smt. Taluka Sharma Petitioner Versus State of Himachal Pradesh and others Respondents Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the petitioner : Mr. Tarlok Chauhan, Advocate, for the petitioner. For the respondents : Mr. Ram Murti Bisht, Deputy Advocate General with Mr. Ramesh Thakur, Asstt. A.G. for respondents No. 1 to 3. Mr. Vivek Singh Thakur, Advocate, for respondent No. 4. Sanjay Karol, J. (Oral) Petitioner has prayed for the following reliefs:- “(i) The order Annexure A-7 passed in representation by the Director of Elementary Education, the respondent No. 2, may kindly be quashed and set aside being illegal, arbitrary, malafide and unconstitutional. (ii) That the respondents may be directed to appoint the applicant as Para Teacher T.G.T. (Medical) in Government Senior Secondary School, Hobar, Distt. Chamba, who is fully eligible and is on the top of the Whether reports of Local Papers may be allowed to see the judgment? 2 merit list, with all consequential benefits in the interest of justice. (iii) Any other relief which this Hon’ble Tribunal may deem just and proper in the circumstances of this case may also be granted in the interest of justice. (iv) That the respondents may also be directed to produce the entire record of the case for kind perusal of this Hon’ble Tribunal.” 2. The State of Himachal Pradesh formulated a scheme known as “The Himachal Pradesh Para Teachers (Lecturers in school cadre), Para Teachers (T.G.Ts), and Para Teachers (C&V Teachers) Policy-2003” (hereinafter referred to as the scheme). In terms of the scheme certain posts of Para Teachers (T.G.T.) (Medical) were notified for which petitioner also applied. The selection committee comprising of the S.D.M., Head of the concerned school and one Subject Matter Specialist was to be constituted for selecting the candidates. There is no dispute that petitioner participated in the selection process and merit list (Annexure A-1) was prepared. Petitioner was placed at Sl. No. 8 with 56.73 marks and one Smt. Supriya Lata was placed at Sl. No. 12 with 55.22 marks. Even though on merit petitioner scored more marks than Smt. Supriya Lata, but however Principal of the school tampered with the record and the merit list and on the basis of false bonafide resident certificate, added more marks to the marks already secured by Smt. Supriya Lata and issued her letter of appointment. On the complaint of the petitioner authorities took notice of this fact and initiated 3 action. This is also evident from letter dated 20.2.2004 (Annexure A-2) issued by the Sub Divisional Officer (C). It appears that inquiry was conducted and certificate of bonafide resident issued by the Tehsildar in favour of Smt. Supriya Lata was cancelled vide order dated 10.3.2004. Smt. Supriya Lata preferred an appeal before the Deputy Commissioner which also was dismissed on 20.10.2004 (Annexure A-4). Consequently order of appointment issued in favour of Smt. Supriya Lata was cancelled vide order dated 14.10.2005. 3. There is no dispute that on the post in question petitioner was to be appointed and even after cancellation of Smt. Supriya Lata’s appointment, respondent did not give appointment to the petitioner. 4. Evidently on 27.3.2004 petitioner had issued legal notice clearly pointing out that appointment order issued in favour of Smt. Supriya Lata was an act of fraud and abuse of process of law. She had also filed a petition before the erstwhile Himachal Pradesh Administrative Tribunal, assailing the appointment of Smt. Supriya Lata, in which on 23.4.2004 following order was passed:- “Notice pending admission. Learned Addl. Advocate General waives service of notice on behalf of respondents 1 to 3. Reply be filed within six weeks. Notice to respondents 4 and 5 with direction to file the reply within the above stipulated period. Appointment if any will be subject to the final decision of the original application. Dasti.” 4 5. This petition was disposed of vide orders dated 23.11.2006 which reads as under:- “OA-(D)-133/2004” “At the request of the learned counsel for the applicant and in the peculiar circumstances of this case, this original application is directed to be treated as representation to the Director of Education (Elementary), (earlier Director of Education) with directions to decide the same within a period of two months from the date of receipt of the copy of this order. The Director concerned will decide the representation of the applicant after affording an opportunity of personal hearing to the applicant. The Director concerned is further directed to consider the representation taking in to consideration Annexure A1 which is copy of the policy and Annexure – A2 (merit list). It is stated by the learned Addl. Advocate General that as per record the services of respondent No. 5 have been removed being ineligible. The original application stands finally disposed of in the light of above. Dasti.” 6. Petitioner’s representation stands decided in terms of Annexure A-7 which reads as under:- “ORDER Whereas, Smt. Taluka Sharma has filed an O.A. No. (D)133/2004---V/S State and above mentioned case was listed before the Hon’ble Administrative at Dharamsala on 23.11.2006 when the same was disposed of with the directions to the Director of Elementary Education to treat the O.A. as representation and decide the same within a period of two months. 5 In-compliance to orders ibid, Smt. Taluka Sharma was telegraphically informed to attend the Office on 24.1.2007 alongwith all relevant record. The Principal, GSSS Hobar Distt. Chamba was also directed to attend Directorate of Elementary Education on 24.1.2007. Smt. Taluka Sharma could not attend personal hearing and on her behalf her father-in-law attended the office alongwith Principal GSSS Hobar. The father-in-law of Smt. Taluka Sharma pleaded that Smt. Supriya Lata has wrongly been appointed as para teacher as she produced fake bonafide certificate. He further requested that her daughter-in-law may be appointed as para teacher. On verification of record which concerned Principal produced, I came to the conclusion that appointment of Smt. Supriya Lata stand already terminated by the principal vide Office order no:-Edn-SEE-A-13/2005-149- 152 dated 14.10.2005. So far as request of the applicant to appoint her as para teacher is concerned it cannot be acceded to as above policy stand lapsed. Moreover, the Principal stated that one PTA is working on the post against which Smt. Supriya Lata was wrongly appointed as para teacher. O.A. stand disposed of.” 7. Aggrieved of the same petitioner has filed the instant petition. 8. State, in its reply disclosed that in place of Smt. Supriya Lata, Smt. Sangeeta Gupta was appointed as P.T.A. Consequently she was impleaded as a party. She also filed her reply. Respondents have opposed the petition on the ground that the scheme under which petitioner was selected has lapsed and private respondent stands appointed in terms of new scheme commonly known as P.T.A. 6 9. In support of his contention Mr. Tarlok Chauhan, learned counsel for the petitioner has referred to and relied upon the decisions rendered by the Apex Court in Purushottam versus Chairman, M.S.E.B. and another, (1999) 6 SCC 49 and State of U.P. versus Ram Swarup Saroj, (2000) 3 SCC 699. 10. Mr. Ram Murti Bisht, learned Deputy Advocate General has referred to and relied upon the decisions rendered by the Apex Court in Bihar State Electricity Board versus Suresh Prasad and others, (2004) 2 SCC 681; Rani Laxmibai Kshetriya, Gramin Bank versus Chand Behari Kapoor and others, (1998) 7 SCC 469; Surinder Singh and others versus State of Punjab and another, (1997) 8 SCC 488 and Rakhi Ray and others versus High Court of Delhi and others, (2010) 2 SCC 637. 11. From the record it is evident that since day one petitioner has been agitating her grievance before the appropriate authorities. She was deprived of her appointment, based on merit, due to illegal actions of the functionaries of the respondent/State. A fraud was perpetuated against the State as also the petitioner and the authorities in power abused their position to favour a particular individual. Petitioner brought this fact to the notice of the authorities and yet they slept over the matter and did not take prompt action in this regard. It was only when she was forced to litigate, under compulsion did the authorities eventually took action by canceling the appointment of Smt. Supriya Lata. Instead of taking action against the erring officials respondents chose not to give 7 appointment to the petitioner and deprive her of her legitimate right. A valuable right for consideration for appointment had accrued in her favour after she had undergone the selection process in accordance with law. With the cancellation of the order of appointment of Smt. Supriya Lata the post did not lapse. 12. The Apex Court in Purushottam (supra) has held as under:- “4. In view of the rival submission the question that arises for consideration is whether a duly-selected person for being appointed and illegally kept out of employment on account of untenable decision on the part of the employer, can be denied the said appointment on the ground that the panel has expired in the meantime. We find sufficient force in the contention of Mr. Deshpande appearing for the appellant inasmuch as there is no dispute that the appellant was duly selected and was entitled to be appointed to the post but for the illegal decision of the screening committee which decision in the meantime has been reversed by the High Court and that decision of the High Court has reached its finality. The right of the appellant to be appointed against the post to which he has been selected cannot be taken away on the pretext that the said panel has in the meantime expired and the post has already been filled up by somebody else. Usurpation of the post by somebody else is not on account of any defect on the part of the appellant, but on the erroneous decision of the employer himself. In that view of the matter, the appellant’s right to be appointed to the post has been illegally taken away by the employer. We, therefore, set aside the impugned order and judgment of the High Court and direct the Maharashtra State Electricity Board to appoint the appellant to the post for which he was duly selected within two months from today. 8 We make it clear that appointment would be prospective in nature.” 13. In Ram Swarup Saroj (supra) it has also been held that:- “10. Similarly, the plea that a list of selected candidates for appointment to the State services remains valid for a period of one year only is primarily a question depending on facts and yet the plea was not raised before the High Court. Secondly, we find that the select list was finalised in the month of November 1996 and the writ petition was filed by the respondent in the month of October 1997, i.e., before the expiry of one year from the date of the list. Merely because a period of one year has elapsed during the pendency of litigation, we cannot decline to grant the relief to which the respondent has been found entitled by the High Court. We may place on record that during the course of hearing of the SLP before this Court, on 29-9-1999 we had directed the learned Additional Advocate General for the State of U.P. to bring on record on affidavit the status of present recruitment of the judicial officers and the present vacancy position in the subordinate judiciary. In the affidavit of the Joint Secretary, Department of Appointment, State Government, Uttar Pradesh sworn in on 4-11-1999 and filed before this Court it is stated that as on 14-10-1999 there were 231 vacancies existing in the cadre of Munsif Magistrates (now Civil Judge, Junior Division/Judicial Magistrates). That being the factual position we see no reason why the direction made by the High Court should be upset in an appeal preferred by the State of Uttar Pradesh.” 14. In a different context though the Apex Court in Union of India and another versus Hemraj Singh Chauhan and others, (2010) 4 9 SCC 290 has held that delay on the part of the State in not promoting an employee within a reasonable period defeats his constitutional fundamental right. 15. It cannot be disputed that inclusion of name in the panel of select list does not create an indefensible or vested right of appointment. The decisions relied upon by the State are totally inapplicable to the instant facts. In the instant case respondents themselves choose to fill up the post in question under the then prevalent scheme. Petitioner pursued the matter all along. Only on her intervention was the fraud discovered and reluctantly action taken by the State. It is not a case where the scheme has been done away with in totality and posts abolished. It is only that the scheme has been discontinued. It is not the case of the respondents/ State that posts filled up under the scheme also stand abolished. Hence in the present circumstances it would not matter if the scheme had been discontinued with the passage of time. In view of the aforesaid objection raised by the State that with the lapsing of the relevant policy petitioner cannot be considered for appointment under the scheme is untenable in law. 16. Consequently petition needs to be allowed and Annexure A-7 insofar as it affects the petitioner’s right is quashed. Respondents are directed to consider the petitioner’s case for appointment as prayed for. 17. Private respondent No. 4 stood selected and appointed only in the year 2006. The stand taken by the respondents/State that 10 private respondent No. 4 was appointed against the post of Smt. Supriya Lata does not appear to be correct for the reason that the appointment of said respondent was under the new scheme and not the old scheme. It is clarified that the appointment of private respondent No. 4 is not being quashed for the reason that her appointment is under the new scheme. 18. Petition stands disposed of accordingly. (Sanjay Karol), Judge. November 1, 2010 (PK)