Kuldeep Kant vs State Of H.P. & Ors

Jyotsna Rewal Dua, J

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.

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.

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.

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 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.