Kuldeep Kant vs State Of H.P. & Ors
2021 Latest Caselaw 2108 HP

        IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                  CWPOA No. 6362 of 2020 alongwith




                                                                          .
                                  CMP-T No. 317 of 2019





                                   Decided on: 16.3.2021





    Kuldeep Kant                                       .....Petitioner.
                                  Versus
    State of H.P. & ors.                               .....Respondents.



    Coram

    Ms. Justice Jyotsna Rewal Dua, Judge.


    Whether approved for reporting?1


    For the petitioner                   :       Mr. Onkar Jairath, Advocate.

    For the respondents                  :       Mr. Anil Jaswal, Addl. AG with Mr.
                                                 Manoj Bagga, Asstt. AG for
                                                 respondents No. 1 to 3.




                                                 Nemo for respondent No. 4.





                                                 Respondent No.5 already exparte.





    Jyotsna Rewal Dua, Judge (Oral)

Instant petition has been preferred under Section 19

of Administrative Tribunal Act for the following substantive

reliefs:-

"a) That the inquiry conducted by the respondent No. 2 is liable to be quashed and set aside which without associating the applicant.

Whether the reporters of the local papers may be allowed to see the Judgment?

b) The appointment of the respondent No. 4 is liable

.

to be set aside which has been made in violation of the

policy and for having diploma which is not recognized for the purpose of the employment.

c) That the respondent No. 4 is less meritorious as

per annexure A-3 therefore, appointment is illegal is liable to be set side.

d) That he respondent No. 2 may be directed to

consider the applicant for appointment as DM on PTA basis being meritorious."

Alongwith the original application, CMP-T No.

317/2019 has been filed under Section 21(2) of Administrative

Tribunal Act, seeking to condone the delay as occurred in filing

the original application.

2. Heard learned Counsel for the parties and gone

through the record.

2(i) A selection process was undertaken by the

respondents-State for appointment of Drawing Master under the

PTA Grant in Aid Rules. Petitioner, respondents No. 4 and 5

alongwith others participated in the selection process conducted

in the year 2006. Respondent No. 4 was eventually selected as

Drawing Master by the PTA and he joined as such in the year

2006 itself.

2(ii) A complaint was lodged by the petitioner against

selection and appointment of respondent No. 4 before the Sub

Divisional Magistrate (SDM), Theog on the ground that merits of

the candidates had been ignored in the s election process. The

inquiry committee under the chairmanship of SDM, by applying

.

the critera of selection notified on 27.5.2008, passed an order

setting aside the selection and appointment of respondent No. 4.

A writ petition bearing No. 3401 of 2009 was instituted by

respondent No. 4 before this Court against the order passed by

the SDM, Theog. The writ petition was disposed of on 22.4.2010

directing the Sub Divisional Magistrate to re-consider the matter

in light of the instructions dated 24.9.2009 issued by the State.

In the interregnum, respondent No. 4 was permitted to continue

to work as PTA appointed teacher. The relevant part of judgment

as made available by learned counsel for the petitioner reads as

under:-

"The issue raised in these Writ Petitions pertains

to the selection and appointment of teachers by the Parents Teacher Association. Learned counsel appearing on

both sides point that the Director, Higher Education, Himachal Pradesh has issued a communication dated 24th

September, 2009, and the cases require fresh consideration in the light of the said communication. . The relevant portion of the communication of the Director, Higher Education, Himachal Pradesh reads as follows:

"Refer to letter No. EDN-kha(7)3706-1 dated 3-9-2009 from the Principal Secretary (Education) to the Govt. of Himachal Pradesh addressed to this directorate and copy endorsed to you and others vide which the government has asked to move an application immediate before the chairman of the concerned enquiry committee in view of the decision of CWP No. 525/2009 titled as Ravinder Singh vs. State and CWP No. 2632/2009 titled as Koyal Kumar vs. State wherein the Hon'ble High Court of

Himachal Pradesh while setting aside the orders of the committee has directed that Committee after giving adequate opportunity of hearing to the petitioner as well as the other respondents can

.

look into the matter and decide whether the appointment of the

petitioner was valid or not. The committee while deciding the issue will keep into consideration the observation of the Hon'ble High Court made in CWPs. The copy of the judgment/orders

passed by the Hon'ble High Court CWP No. 2632/2009 titled as Koyal Kumar vs. State is also being sent to all the Deputy Directors.

Therefore, you are directed to comply with the

directions of the Government and take action in the matter accordingly."

In view of the above clarification issued by the Director of Higher Education, Himachal Pradesh, the

impugned orders are liable to be set aside. Ordered

accordingly. However, we make it clear that it will be open to the Enquiry Committee to consider the matters afresh in the light of the instruction referred to above. The needful, if required, shall be done within a period of four months from

the date of the production of a copy of this judgment by either side. It is also made clear that in the cases of those teachers, who are working in the schools, in case they

have not been paid their due wages, the same shall be paid and the State shall ensure that the required grant-in-

aid is given to the Schools, as per the Rules forthwith. The writ petitions are disposed of, so also the pending applications, if any."

Pursuant to the directions issued in CWP No. 3401 of

2009, the inquiry committee reconsidered the matter and vide

order dated 12.12.2013 held that selection of Art and Craft

teacher was as per merit. The complaint preferred by the

petitioner, was accordingly turned down. Aggrieved against

rejection of his complaint vide order dated 12.12.2013, the

petitioner has filed the instant petition in May 2017.

3. Learned counsel for the petitioner contended that the

result of the selection process/distribution of marks for

.

evaluation of the candidates, as placed on record at Annexure

A-4, reveals that the petitioner has been discriminated by the

Pradhan of PTA in allocation of marks. The record shows that

Pradhan of the concerned PTA, against whom allegations have

been advanced during hearing has not been impleaded as a

r to respondent to the original application. Even otherwise petitioner

is admittedly third in the merit list. The impugned order was

passed on 12.12.2013. The order has been assailed by way of

instant petition filed in May 2017. No cogent explanation for the

delay in assailing the order has come forth. The ground of his

non-association by the official respondents during the inquiry

proceedings culminating in passing of impugned order taken by

the petitioner for condoning the delay in filing the main petition,

has been strongly refuted by the respondents. Zimni orders of

inquiry proceeding have been placed on record reflecting

presence and association of petitioner therein, which fact has

gone unrebutted.

Admittedly, the selected candidate/respondent No. 4

is working on the said post ever since July 2006. With the efflux

of time, by not challenging the order dated 12.12.2013 within the

period prescribed under the Administrative Tribunal Act or within

a reasonable period, thereafter rights have accrued in favour of

selected candidate who is working on the post w.e.f. July 2006.

.

For the aforesaid reasons, I do not find any reasons to

condone either the delay or the laches. Therefore, for the

aforesaid reasons, I find no reasons to interfere in the order

dated 12.12.2013. The petition is accordingly dismissed. Pending

application(s), if any, shall also stand disposed of.

    16th March, 2021
                        r           to    Jyotsna Rewal Dua
                                                Judge

           (vs)