IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP(T) No. 8627 of 2008 Date of Decision : April 6, 2011 Ganga Singh Petitioner Versus State of H.P. and others Respondents Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the petitioner : Mr. P. P. Chauhan, Advocate. For the respondents : Mr. Ram Murti Bisht, Deputy Advocate General with Mr. Vinod Thakur, Dy. A.G. for respondents No. 1 to 5. Mr. L. N. Sharma, Advocate, for respondent No. 7. Sanjay Karol, J. (Oral) In this petition filed on 8.8.2002 petitioner has prayed for the following reliefs:- “(a) Quash the impugned order A-1 whereby the respondent department has selected the respondent No. 7, being issued arbitrarily, malafide and illegally by the respondents; (b) Direct the respondents to select and appoint the applicant against the post of Vidya Upasak on the basis of merits, with all the consequential benefits: Whether reports of Local Papers may be allowed to see the judgment? 2 (c) Direct the respondents to produce all the relevant documents along with their reply for perusal by this Hon’ble Tribunal; (d) Allow the cost of this O.A.; (e) Pass such other order or directions as deemed fit and proper in favour of the applicant.” 2. The matter was adjourned from time to time on the asking of the respondents and the erstwhile Himachal Pradesh Administrative Tribunal had also summoned and perused the record. After perusing the same on 24.9.2004 the following order was passed:- “Pradhan concerned is present in person alongwith the record. He has also produced agreement condition No. 7 of which shows that the candidates should have have more than one living spouses. It is admitted position that respondent No. 7 is having two spouses. Record of selection has also been produced, the applicant has secured 44 marks and respondent No. 7 has secured 45.5 marks. List for consideration on 21.10.2004.” 3. Undisputedly this order has neither been assailed nor disputed by the private respondent. 4. It is the grievance of the petitioner that appointment of private respondent No. 7, in terms of letter dated 30.7.2002 (Annexure A-1) is illegal for the reason that private respondent was ineligible as on the date of selection/appointment on account of having married twice and both his wives lived together with him. After the record produced by the State was perused by the Tribunal aforesaid order dated 24.9.2004 was passed. The factum of second marriage during the subsistence of first marriage is also not disputed by private respondent No. 7. But however the defence 3 taken is that the first marriage stands annulled by way of a customary divorce. Now nothing has been shown to the effect that any such custom was prevalent in the area whereby parties, being Hindus, could be divorced. Annulment of marriage has to be in accordance with the Hindu Marriage Act, 1955. Private respondent No. 7 has placed on record the Pariwar Register showing that on the basis of the customary divorce name of Ms. Anita Devi, being wife of private respondent stands deleted on 26.3.2003. Significantly this was got done only after the filing of the instant petition. Be that as it may be, any entry made in the Pariwar Register cannot be used as a conclusive proof determining the marital status of the parties. Consequently private respondent No. 7 was ineligible for consideration and selection as Vidya Upasak under the Gram Vidhya Upasak Appointment Scheme, 2001. His appointment in terms of Annexure A-1 is also illegal and as such is quashed. 5. According to petitioner he was No. 2 on the panel and was thus fully eligible to and entitled to be appointed on the post in question. Mr. Ram Murti Bisht, learned Dy. Advocate General has invited my attention to the supplementary affidavit filed on 25.2.2011 to the effect that the policy in question now stands repealed and that fresh engagements of J.B.T. teachers in primary schools is on contract basis and strictly in accordance with the R & P Rules. 6. The post in question under the original scheme has not been abolished. In fact all persons employed as Vidya Upasaks under the scheme are now being regularized by the State Government. Petitioner was otherwise fully eligible and entitled to be appointed as Vidya Upasak under the said scheme. As such, there is a direction to respondent No. 1 to consider the petitioner’s case in light of the merit list 4 prepared at the time of selection of the post in question. Needful be positively done within a period of two months from today. 7. Mr. P. P. Chauhan, learned counsel for the petitioner submits that his client is not interested in monetary benefits including salary etc. but however his seniority be protected. This aspect of the matter shall also be taken into account while taking the decision. 8. With the aforesaid observations present petition stands disposed of. Dasti copy. (Sanjay Karol), Judge. April 6, 2011 (PK)