Himachal Pradesh High Court
Jagdish Singh vs The State Of Hp And Others on 16 July, 2021
Bench: Anoop Chitkara
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWPOA No. 4707 of 2019
Date of Decision: 16.7.2021
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Jagdish Singh ...Petitioner.
Versus
The State of HP and others ...Respondents.
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 No
For the petitioner: Mr. Vishwa Bhushan, Advocate.
For the respondents: Mr. Nand Lal Thakur, Additional Advocate General
r for respondents-State.
Anoop Chitkara, Judge (Oral)
By way of this Original Application, applicant has prayed
for the following reliefs:-
(i) That the order of the selection of the respondent
No.6 made by the Selection Committee and the
appointment orders of the respondent No.6 against the
post of Part Time Water Carrier in Government
Primary School Bhati issued by the respondent No.3
may kindly be quashed.
(ii) That the respondents may further be directed to
appoint the applicant against the post of Part Time
Water Carrier in Govt. Primary School Bhati w.e.f. the
date the respondent No.6 was appointed as such, along
with all consequential benefits.
(iii) That any other relief, which the Hon'ble Tribunal
deems fit and proper in view of the facts and
circumstances of the case, may also be granted to the
applicant.
Whether reporters of Local Papers may be allowed to see the judgment?
(iv) That the record of the case may kindly be
summoned up and the cost of the application may be
awarded in favour of the applicant."
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2. The applicant did not annex the appointment letter/order of
6th respondent. However, vide supplementary affidavit filed on behalf of
3rd respondent, i.e. Block Elementary Education Officer, Jawali, District
Kangra on 26.5.2008, a specific stand was taken that on the basis of
interview held on 18.11.2004, the Selection Committee conveyed
through letter dated 3.12.2004 to the 3rd respondent that 6th respondent,
Nanak Chand, was selected for Government Primary School, Bhatti as
Part Time Water Carrier. It was also stated in the affidavit that no
detailed comparative merit list was available with the replying
respondents so as to arrive at a conclusion after excluding the selected
candidate, i.e. Nanak Chand, who was next in the merit list and in the
absence of such record, replying respondents decided to consider a fresh
selection for the said post in the same school.
3. Order dated 23.7.2007 passed by learned Tribunal, reads as
follows:
"SDM Jawali Mr. Sushil Kumar is present in person. He
has stated that he has sent the record to Block Primary
Education Officer Jawali in December, 2004. the learned
Addl. Advocte General submits that the complete result
sheet has not been sent to the Block Primary Education
Officer Jawali. The SDM, Jawali is directed to be present
on 20.8.2007 along with the complete record on which date
the matter be listed."
4. Mr. Vishwa Bhushan, learned counsel for the petitioner has
.
drawn attention of this Court to para-3 of the affidavit dated 26.5.2008
filed by respondent No.3, wherein it is stated that applicant, Nanak
Chand, although has joined his duties on 5.9.2006, however, neither he
attended his job nor performed his duties after 6.9.2006 and the
administration believed that he had left his job. The affidavit further
reveals that replying respondents have no knowledge about his
whereabouts.
5. Another affidavit dated 20th October, 2018 filed by SDM,
Jawali, District Kangra reveals that despite their best efforts they could
not trace the record pertaining to this case.
6. Since the appointment order must have some conditions and
any violation of such conditions, the joining would be in consequential,
because neither the appointment letter has been annexed nor form part of
the record. Based on the specific stand taken in para 3 of the affidavit
dated 26.5.2008, Block Elementary Education Officer, Jawali, wherein it
is stated that applicant, Nanak Chand, did not perform his duties after
6.9.2006 till the filing of the affidavit, i.e. 26.5.2008, hence it is
presumed that he was not interested to get the job.
7. Although 5th and 6th respondents were proceeded against ex
parte but despite the fact, 6th respondent was present in person. Order
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dated 18.12.2018 reads as under:
"Respondent No.6, who was earlier proceeded against ex
parte, but is present today, is accordingly permitted to join
further proceedings.
Respondent No.6, who is present in person, states that he is
working as Part-Time Water Carrier in GPS Sidhpur Ghar,
Tehsil Jawali, District Kangra, since 2004 and is
continuing till date, which aspect is also endorsed by the
learned Additional Advocate General and Mr. Ajay Singh,
Superintendent Grade-II, O/o Block Elementary Education
Officer, Jawali, District Kangra, who is present in person.
On the request of learned vice counsel appearing on
Behalf of the applicant, list for final hearing on
22.4.2019."
8. A perusal of the statement made on 18.12.2018 reveals that
he was working as Part-Time Water Carrier in GPS Sidhpur Ghar, Tehsil
Jawali, District Kangra since 2004, whereas although the interview was
held on 18.11.2004 and the applicant had joined on 5.9.2006 as per the
affidavit dated 26.5.2008. There is nothing to substantiate the statement
of 6th respondent.
9. Be that as it may, the matter pertains to the year 2004 and
we are in 2021, in the entirety of facts and circumstance of this case,
there is nothing for this Court to interfere at this stage. The affidavit filed
by 3rd respondent in the peculiar facts and circumstances of this case
where the record itself is not available and thus the reliefs claimed by
applicant cannot be adjudicated. Given above, the original application
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which got converted with the present petition is devoid of merits and the
is accordingly dismissed. However, liberty is reserved to the applicant to
approach again on the same cause of action, if need arises and such need
is justiciable. Pending miscellaneous applications, if any, also stand
disposed of.
(Anoop Chitkara),
Judge
th
16 July, 2021
(Guleria)
