State Of Himachal Pradesh vs Raj Kumar Parmar
2021 Latest Caselaw 4024 HP

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

ON THE 20th DAY OF AUGUST 2021

.

BEFORE

HON'BLE MR. JUSTICE RAVI MALIMATH,

ACTING CHIEF JUSTICE

&

HON'BLE MR. JUSTICE AJAY MOHAN GOEL

Between:-

r to REVIEW PETITION No.97 of 2019

1. STATE OF HIMACHAL PRADESH

THROUGH SECRETARY (EDUCATION) TO THE GOVT. OF HIMACHAL PRADESH, SHIMLA-171002.

2. THE DIRECTOR OF HIGHER EDUCATION,

HIMACHAL PRADESH, SHIMLA-171001.

3. PRINCIPAL, GOVT. COLLEGE, DAULATPUR CHOWK, DISTRICT UNA.

.....PETITIONERS

(BY ANKUSH DASS SOOD, SENIOR ADVOCATE

WITH MR.RANJAN SHARMA AND MR. VIKAS RATHORE, ADDITIONAL ADVOCATES GENERAL)

AND

1. RAJ KUMAR PARMAR, S/O SH. RASHPAL SINGH, R/O VPO AMBOA, TEHSIL AMB VIA DAULATPUR CHOWK, DISTT. UNA, H.P., PRESENTLY WORKING AS LECTURER PHYSICS IN GOVT. DEGREE COLLEGE

DAULATPUR CHOWK, DISTT. UNA, HIMACHAL PRADESH.

.....RESPONDENT

2. MANAGEMENT COMMITTEE

.

DAV COLLEGE, DAULATPUR CHOWK,

DISTRICT UNA, H.P.

THROUGH ITS VICE PRESIDENT CAPT, YASHPAL KANWAR,

SON OF SHRI PARMESHWARI DASS, RESIDENT OF VILLAGE AND POST OFFICE DAULATPUR CHOWK, TEHSIL AMB, UNA, H.P.

.....RESPONDENT/PROFORMA RESPONDENT

NONE FOR R-2) r to (SH. RAMAKANT SHARMA, ADVOCATE, FOR R-1

REVIEW PETITION No.99 of 2019

Between:-

1. STATE OF HIMACHAL PRADESH THROUGH SECRETARY (EDUCATION)

TO THE GOVT. OF HIMACHAL PRADESH, SHIMLA-171002.

2. THE DIRECTOR OF HIGHER EDUCATION, HIMACHAL PRADESH, SHIMLA-171001.

3. GOVT. DEGREE COLLEGE, THURAL, DISTT. KANGRA (HP)

THROUGH ITS PRINCIPAL.

.....PETITIONERS

(BY ANKUSH DASS SOOD, SENIOR ADVOCATE WITH MR.RANJAN SHARMA AND MR. VIKAS RATHORE, ADDITIONAL ADVOCATES GENERAL)

AND

1. MS. POOJA D/O LATE SHRI INSHWAR SINGH,

RESIDENT OF VILLAGE GHIANA KHURD, POST OFFICE JHEOL, TEHSIL DHARAMSHALA, DISTT. KANGRA.

.....RESPONDENT

.

2. M.C.M. MEMORIAL DEGREE COLLEGE MANAGEMENT, THURAL,

DISTT. KANGRA (HP) THROUGH ITS PRESIDENT.

.....RESPONDENT/PROFORMA RESPONDENT

(MS.SHREYA CHAUHAN, ADVOCATE, FOR R-1

NONE OF R-2)

r REVIEW PETITION No.100 of 2019

Between:-

1. STATE OF HIMACHAL PRADESH THROUGH SECRETARY (EDUCATION) TO THE GOVT. OF HIMACHAL PRADESH, SHIMLA-171002.

2. THE DIRECTOR OF HIGHER EDUCATION, HIMACHAL PRADESH, SHIMLA-171001.

3. PRINCIPAL, GOVT. COLLEGE, DAULATPUR CHOWK, DISTRICT UNA.

.....PETITIONERS

(BY ANKUSH DASS SOOD, SENIOR ADVOCATE WITH MR.RANJAN SHARMA AND MR. VIKAS RATHORE, ADDITIONAL ADVOCATES GENERAL)

AND

1. ROHINI RANA WIFE OF ARVIND KUMAR, RESIDENT OF VILLAGE & POST OFFICE CHALET, TEHSIL AMB, DISTRICT UNA, H.P. AND OTHERS .....RESPONDENT

2. HIMACHAL PRADESH UNIVERSITY, SUMMER HILL, THROUGH ITS REGISTRAR.

.....RESPONDENT/PROFORMA RESPONDENT

.

(MS.MEGHA KAPUR GAUTAM, ADVOCATE FOR R-1 MR. NEEL KAMAL SHARMA, ADVOCATE FOR R-2)

REVIEW PETITION No.101 of 2019

Between:-

1. STATE OF HIMACHAL PRADESH THROUGH SECRETARY (EDUCATION) TO THE GOVT. OF HIMACHAL PRADESH, SHIMLA-171002.

2. THE DIRECTOR OF HIGHER EDUCATION, HIMACHAL PRADESH, SHIMLA-171001.

3. PRINCIPAL, GOVT. COLLEGE, DAULATPUR CHOWK, DISTRICT UNA.

.....PETITIONERS

(BY ANKUSH DASS SOOD, SENIOR ADVOCATE WITH MR.RANJAN SHARMA AND MR. VIKAS RATHORE, ADDITIONAL ADVOCATES GENERAL)

AND

1. SH. CHAMAN LAL BALI, LECTURER IN D.A.V. PG COLLEGE DAULATPUR CHOWK (NOW GOVT. DEGREE COLLEGE,

DAULATPUR CHOWK, DISTRCIT UNA HIMACHAL PRADESH & OTHERS .....RESPONDENT

2. HIMACHAL PRADESH UNIVERSITY, SUMMER HILL, THROUGH ITS REGISTRAR.

3. MANAGEMENT COMMITTEE OF DAV COLLEGE DAULATPUR,

DISTRICT UNA, HIMACHAL PRADESH THROUGH ITS CHAIRMAN.

.....RESPONDENT/PROFORMA RESPONDENTS

(MR.DILIP SHARMA, SENIOR ADVOCATE WITH

.

MR.MANISH SHARMA, ADVOCATE, FOR R-1.

MR. NEEL KAMAL SHARMA, ADVOCATE FOR R-2 NONE FOR R-3)

_____________________________________________________ These petitions coming on for orders this day,

Hon'ble Mr. Justice Ravi Malimath, passed the following:

r to ORDER

CMP(M) No.1279 of 2019 in Review Petition No.97 of 2019 CMP(M) No.1314 of 2019 in Review Petition No.99 of 2019

CMP(M) No.1315 of 2019 in Review Petition No.100 of 2019 CMP(M) No.1316 of 2019 in Review Petition No.101 of 2019

These applications have been filed by the review

petitioners, seeking for condonation of delay in filing the review

petitions. It is stated in the affidavit that after the common order

was passed by the Appellate Court in LPA No.517 of 2012 and

connected matters, copy of the judgment was examined by the

various sections of the office of the petitioners. Some information

was sought for by the Department vide letter dated 18.01.2018.

The same was replied to on 29.01.2019. Thereafter, a meeting

was convened to form a decision as to whether they have to file a

review petition or not. On a decision being taken by the officers

and the Advocate General to file the review petitions, the delay

has occasioned.

.

2. Reply to the applications have been filed by the

respondents.

3. We have considered the reasons assigned. The

order of the appellate Court was in a batch of cases which were

disposed off by a common order. Reliefs were granted to various

petitioners on their eligibility. It was only at the time of execution,

they came to know that some of the petitioners were not entitled

to relief due to lack of qualification. In the said process the delay

has occurred.

4. On hearing learned counsels, we are of the

considered view that the reasons assigned, constitutes sufficient

cause. Hence, the delay in filing the review petitions is condoned.

Review Petition Nos.97, 99,100 & 101 of 2019

5. These petitions are filed, seeking to review the order

dated 30.10.2018, passed by the Division Bench of this Court in

LPA No.517 of 2012 and connected matters. In terms of the said

order, the State was directed to fix the pay notionally without any

arrears of pay. However, the benefit of seniority was granted from

the date of absorption etc.. Subsequent to the order passed by

the Division Bench, the respondents-State attempted to put the

.

same into execution. Various writ petitioners were granted due

relief. However, so far as the instant respondents in these review

petitions are concerned, it was found that they do not qualify for

absorption. The grounds urged are that they do not possess the

requisite qualification. Therefore, so far as these four respondents

are concerned, they cannot be absorbed. The same is disputed by

the learned counsel for the respondents. That the said contentions

were neither taken nor addressed before the Appellate Court. That

such a contention is being raised for the first time in the review

petition and hence, cannot be accepted. They have been working

for quite a long period of time and hence, should not be disturbed.

6. On hearing learned counsels, we are of the view that

appropriate interference is called for.

7. The questions of qualification of the respondents and

as to whether they are liable to be absorbed or not, have not been

considered in the order under review. In para-18 of the said order,

the facts of one writ petitioner were considered. The facts with

regard to the other petitioners were not considered. Therefore, on

the analogy of granting relief to the one writ petitioner therein, as

stated in para-18, the same was extended to the other writ

.

petitioners. It is needless to state that each one of the

respondents herein have a different background. Their

qualifications are different. Therefore, they were required to be

considered independently. As to whether they were qualified or

not is a matter to be decided by the Appellate Court and not by

this Court. It is suffice for us to hold that the non-consideration of

the requirement of a qualification entails the review of the said

order. That a person cannot be appointed, if he does not possess

the requisite qualification. The said position in law has been

reiterated by the Hon'ble Supreme Court in a number of cases.

Therefore, only because a ground has not been urged, will not

render the appointment of an unqualified person to be a valid

appointment. However, it is for the Appellate Court to determine

the validity of their qualification.

8. For all the aforesaid reasons, the review petitions are

allowed. The order dated 30.10.2018, so far as it pertains to LPA

Nos.517 of 2012, 86 of 2013, 98 of 2013 and 195 of 2015 is

reviewed and recalled. The said appeals are restored to file. Due

to the long pendency of the appeals, the same are directed to be

listed for final hearing on 31st August, 2021.

.

                                              ( Ravi Malimath )
                                            Acting Chief Justice




    August 20, 2021
          (vt)
                    r         to            ( Ajay Mohan Goel )
                                                    Judge